Warner v. Teachenor

BUCK, J. This cause comes into this court on appeals from final judgment, and from an order overruling a motion for a new trial. The respondent appears specially by his .attorney, and moves a dismissal of the appeal from the judgment on the ground that more than one year had elapsed from the entry of the judgment until the taking of the appeal, and also from the Order overruling the motion for a new trial: 1, For. defect in the undertaking; 2. Because the notice .of appeal contains simply the surname of plaintiff and respondent, without the. Christian name; 3. That the record shows.no service .of notice of appeal. The objection that the appeal from the judgment was not taken in time, was not contested by the attorney for the appellant, and the defect in the undertaking having been cured by the filing of a- new undertaking under section 657 of our Practice Act, there remains only the objection to the contents, and service of the notice of appeal, to be passed upon. The proof of service of the notice of appeal is contained in the affidavit of the attorney for defendants and appellants to the effect "that affiant served the notice-upon the attorney for respondent and plaintiff by leaving a true copy thereof at his office in Boise City, Ada county, Idaho territory, on the twenty-first of May, 1883.” Section 685 of the Code of Civil Procedure provides that service may ibe made upon an attorney during his absence from his office by leaving the - notice with his clerk therein, or with a.person having'charge thereof; or, when there is'no person in the office, by leaving it between the .hours of 8 in the morning and 6 in the afternoon in a conspicuous place •in the office. 'This section provides for constructive service instead of personal, and being in derogation of the' common law, which required personal, service, the statute must be strictly construed. . In Jackson v. Gardner, 2 Caines, 95, the court say, speaking of an affidavit of service like the one at bar: "The affidavit is [40] defective; it does not state that there was no one in the office. The notice might have been slipped down without any intimation and have remained unobserved. To make such service good it ought to have stated that there was not anyone in the office.” This is still more distinctly declared to be the law in Doll v. Smith, 32 Cal. 475, in a case in all respects identical with the one at bar. It is maintained by the appellants that under section 269 of the Code of Civil Procedure, the defect in proof should be disregarded. But service of notice of appeal is a jurisdictional fact Which affects the substantial rights of the parties, and the court is of the opinion that the section referred to does not contemplate the disregarding of a defect in proof of a fact necessary to 'give the court jurisdiction of the matter in controversy. As to the contents of the notice itself the court is not prepared to say that it is' so defective as not to give the respondent sufficient information as to the judgment appealed from. The determination of the court as to the service of the notice of appeal, however, fenders it unnecessary to consider the contents of the notice. The motion of respondent is sustained, and the appeals are dismissed. Priekett, J., concurred. Morgan, C. J., did not sit in this case.