Perri v. Beaumont

California Supreme Court

Perri v. Beaumont

25 P. 1109, 88 Cal. 108, 1891 Cal. LEXIS 654

CourtCalifornia Supreme Court

DecidedFebruary 19, 1891

DocketNo. 13737

StatusPublished

Cited by9 cases

This text of 25 P. 1109 (Perri v. Beaumont) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Perri v. Beaumont, 25 P. 1109, 88 Cal. 108, 1891 Cal. LEXIS 654 (Cal. 1891).

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Opinion

Paterson, J.

The affidavit of service by mail states that a copy of a ivithin notice was deposited in the post-office at Sumner, California, postage thereon prepaid, addressed to Haggin & Dibble, attorneys for respondent, 45 Nevada Block, San Francisco, California, on February 8, 1890; that said attorneys reside at San Francisco, and the attorneys for appellant reside at Sumner, and that there is regular communication by mail between the two places.

The affidavit is uncertain as to the notice referred to; and as it was made on the 10th of February, 1890, it fails to show the places of residence of the respective attorneys on February 8th, and, strictly construed, is insufficient (Doerfler v. Schmidt, 64 Cal. 265); but as the defect is one arising, doubtless, out of a careless use of language, and the objection being rather technical, we deem it a proper exercise of our discretion to grant the appellant’s request to file another affidavit of service. The court should be liberal in granting amendments which can cause the respondent no injustice, and which will secure to the appellant a hearing on the merits.

If a sufficient affidavit of service is filed within five days from date hereof, the motion to dismiss will be denied; otherwise it will be granted.

Harrison, J., Garoutte, J., McFarland, J., De Haven, J., Sharpstein, J., and Beatty, C. J., concurred.

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Paterson, J.

The affidavit of service by mail states that a copy of a ivithin notice was deposited in the post-office at Sumner, California, postage thereon prepaid, addressed to Haggin & Dibble, attorneys for respondent, 45 Nevada Block, San Francisco, California, on February 8, 1890; that said attorneys reside at San Francisco, and the attorneys for appellant reside at Sumner, and that there is regular communication by mail between the two places.

The affidavit is uncertain as to the notice referred to; and as it was made on the 10th of February, 1890, it fails to show the places of residence of the respective attorneys on February 8th, and, strictly construed, is insufficient (Doerfler v. Schmidt, 64 Cal. 265); but as the defect is one arising, doubtless, out of a careless use of language, and the objection being rather technical, we deem it a proper exercise of our discretion to grant the appellant’s request to file another affidavit of service. The court should be liberal in granting amendments which can cause the respondent no injustice, and which will secure to the appellant a hearing on the merits.

If a sufficient affidavit of service is filed within five days from date hereof, the motion to dismiss will be denied; otherwise it will be granted.

Harrison, J., Garoutte, J., McFarland, J., De Haven, J., Sharpstein, J., and Beatty, C. J., concurred.

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Bluebook (online)

25 P. 1109, 88 Cal. 108, 1891 Cal. LEXIS 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perri-v-beaumont-cal-1891.

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