Whittle v. Renner

Thornton, J.: In this cause a motion is made to dismiss the appeal taken from the judgment and from the order denying a new trial, on the ground that the notices of appeal were not served on the attorney of record of the plaintiff in the Court below, respondent here. T. A. Bantz was the attorney of record, and the notice of appeal was served on E. Shearer. There was no substitution of Shearer in place of Bantz. It provided by § 940 of the Code of Civil Procedure, that “ an appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same or some specific part thereof, and serving a similar notice on the adverse party or his attorney.” In Prescott v. Salthouse, 53 Cal. 221, an appeal was dismissed where the notice of appeal was signed and service made by Julius Lee, Esq., who was not the attorney of record of the party on whose behalf the appeal was attempted to be taken. The Code of Civil Procedure nowhere expressly requires that the notice of appeal must be signed by the attorney of record [396] of the party taking the appeal. We are not, however, disposed to question the correctness of the judgment in Prescott v. Salthouse. The section from which the words above quoted are taken requires service of the notice “on the adverse party or his attorney.” The attorney here referred to is the attorney of record. The service on the adverse party must be a service on him personally, and in this case there had been no such service. We find nothing in the record which shows a waiver of the service on the attorney of record. The motion to dismiss the appeal is granted, and an order will he entered to that effect. Sharpstein, J., and Myrick, J., concurred.