Horr v. Aberdeen Packing Co.

The opinion of the court was delivered by

Stiles, J.

The notice of appeal in this case was served by mail, and the proof of mailing was made by the affidavit of appellant's attorney. Bespondent moves to dismiss for want of notice, under Code Proc., §797, which provides for services of notices by an officer or by some disinterested person, on the ground that the attorney of a party is not a disinterested person. It is also contended that the service of a notice of appeal prescribed by Code Proc., §1441, is a personal service. The respondent had its place of business in Pacific county, and its attorney resided in Oregon.

Sec. 1441 authorizes this court to make general rules governing the manner of serving notices of appeal and of all other notices, orders and process connected with appeals. Rule 26 covers service by mail. Code Proc., §1405, authorizes the attorney to give the notice, and we think the implication is that he may make the service himself. Certainly the universal practice is and long has been, in this state, for attorneys to make such service without the intervention of a third person. The motion is denied.

This case is identical with that of Pratsch v. Aberdeen Packing Company, ante, p. 346, except that the appellant here tendered respondent a deed of the premises, demanded the return of his money, abandoned possession of his lot, and brought his action to rescind the contract. Having failed to sustain his action, there is nothing to be done in the case but to affirm the judgment of dismissal, and it is so ordered.

Anders, Scott and Hoyt, JJ., concur.

Dunbar, G. J., concurs in the result.