Weare v. Superior Court

California Court of Appeal

Weare v. Superior Court

273 P. 870, 96 Cal. App. 138, 1929 Cal. App. LEXIS 887

CourtCalifornia Court of Appeal

DecidedJanuary 4, 1929

DocketDocket No. 6418.

StatusPublished

This text of 273 P. 870 (Weare v. Superior Court) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Weare v. Superior Court, 273 P. 870, 96 Cal. App. 138, 1929 Cal. App. LEXIS 887 (Cal. Ct. App. 1929).

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Opinion

THE COURT.

In an action in the justice's court of Brawley township, wherein petitioner Weare was defendant, a judgment was entered in his favor. Thereafter, and within due time, a notice of appeal was served and filed. It is admitted that this notice was sufficient in all respects except that it was not signed by the attorney for plaintiff, or at all. Petitioner moved the Superior Court to dismiss said purported appeal on the ground that the purported notice of appeal was insufficient to give the Superior Court jurisdiction of the cause. The court denied that motion and set the case down for trial, and said court, unless prohibited from so doing, will proceed to a hearing and determination of the cause.

The statute which provides for such appeals does not in terms require that a notice of appeal be signed. So far as appears from the petition herein the notice of appeal may have been filed and served by the plaintiffs themselves, or by their attorney. In our opinion the stated facts are not sufficient to sustain the claim of petitioner that there is no pending appeal and that respondent court is without jurisdiction of said cause. In reaching this conclusion, we have not failed to consider the decision in Prescott v. Salt-house, 53 Cal. 221 (cited by petitioner), and the later cases, Harrigan v. Bolte, 67 Cal. xix [8 Pac. 184], Anglo Cal. Trust Co. v. Oakland Railways, 191 Cal. 387 [216 Pac. 578], and Starkweather v. Eddy, 196 Cal. 73 [235 Pac. 734].

The petition is denied.

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THE COURT.

In an action in the justice's court of Brawley township, wherein petitioner Weare was defendant, a judgment was entered in his favor. Thereafter, and within due time, a notice of appeal was served and filed. It is admitted that this notice was sufficient in all respects except that it was not signed by the attorney for plaintiff, or at all. Petitioner moved the Superior Court to dismiss said purported appeal on the ground that the purported notice of appeal was insufficient to give the Superior Court jurisdiction of the cause. The court denied that motion and set the case down for trial, and said court, unless prohibited from so doing, will proceed to a hearing and determination of the cause.

The statute which provides for such appeals does not in terms require that a notice of appeal be signed. So far as appears from the petition herein the notice of appeal may have been filed and served by the plaintiffs themselves, or by their attorney. In our opinion the stated facts are not sufficient to sustain the claim of petitioner that there is no pending appeal and that respondent court is without jurisdiction of said cause. In reaching this conclusion, we have not failed to consider the decision in Prescott v. Salt-house, 53 Cal. 221 (cited by petitioner), and the later cases, Harrigan v. Bolte, 67 Cal. xix [8 Pac. 184], Anglo Cal. Trust Co. v. Oakland Railways, 191 Cal. 387 [216 Pac. 578], and Starkweather v. Eddy, 196 Cal. 73 [235 Pac. 734].

The petition is denied.

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273 P. 870, 96 Cal. App. 138, 1929 Cal. App. LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weare-v-superior-court-calctapp-1929.

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