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61 Cal. 507

Cunningham v. Warnekey

California Supreme Court

Decided October 9, 1882

California Supreme Court · decided 1882-10-09

Appeal by defendant from the judgment of the Superior Court of the County of Sonoma. Pressley, J. Action for the abatement of nuisance in a public highway. The plaintiff had judgment in the Court below and moved in this Court to dismiss the appeal, on the ground that it did not appear that the notice of appeal had ever been served. The other facts are stated in the opinion of the Court.

Good law ✅— No negative treatment on recordhow we know

Decided 1882-10-09

How this case has been cited

Cited by 11 later decisions — most recently April 1979

7 state decisions

401882189019001910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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The Court:

¶1The affidavit of service of notice of appeal is as follows:

“ Daniel Brennan being duly sworn deposes and says: I am, and was at the time of service by mailage of the within copy notice of appeal, a white male citizen over the age of eighteen years, and competent to bé a witness in this action; that on the fifteenth day of August, 1881,1 se.rved the within copy notice of appeal by mailage on A. B. Ware, Esq., attorney for plaintiff, by leaving in the United States Postoffice in the city of Santa Rosa, county of Sonoma, and State of California, a copy of the within notice of appeal, directed to said A. B. Ware, Esq., at his place of business in said city of Santa Rosa, and county and State aforesaid, and paying the full postage price thereon and the same registered.
“ Daniel Brennan.
“ Subscribed,” etc.

¶2The affidavit does not show where the affiant or where defendant (appellant) resided. The person making the service and the person served must reside, or have their offices in “different places ” to justify the service by mail. As between persons both of whom were in Santa Rosa, the service should have been personal. (C. C. P. 1012,1013.)

¶3Appeal dismissed.

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