The facts sufficiently appear in the opinion. Respondents move to dismiss the appeal for the reason that the undertaking on appeal was filed before the copy of the notice of appeal was served. The action was tried at Ely, in White Pine county. One of the attorneys of appellants resides at that place. The attorney for respondents resides at Reno, in Washoe county. The distance from Ely to Reno is upward of 400 miles. There is a regular mail communication between the places. The attorney for appellants filed the notice of appeal December 13, 1898, and mailed a copy, postage paid, at Ely, on the same day, addressed to the respondents' attorney at Reno. There is no contention as to the facts.
*Page 409The question is: At what time did the service take place?
The provisions of the civil practice act applicable, are as follows:
"Sec. 497. Service by mail may be made, when the person making the service and the person upon whom it is to be made, reside at different places, between which there is a regular communication by mail.
"Sec. 498. In case of service by mail, the notice or other paper shall be deposited in the postoffice, addressed to the person upon whom it is to be served, at his place of residence, and the postage paid. And in such case the time of service shall be increased one day for every twenty-five miles distance between the place of deposit and place of address."
(Sections 3592, 3593, Comp. Laws.)
Appellants claim that the notice was served by depositing a copy in the postoffice. Respondents contend that, as the service was by mail, it was not complete until eighteen days from the time of the deposit, as the statute increases the time of service one day for each twenty-five miles of the distance between the place of deposit and place of address. If respondents' contention is the law, the notice of appeal was not served until after the filing of the undertaking upon appeal, and the appeal should be dismissed. When the deposit is made in the postoffice under the provisions above set forth, nothing further is required, and the service is complete.
The purpose of the statute in extending the time of the service one day for every twenty-five miles between the place of deposit and the place of address is to give the party receiving the notice or other paper time to act upon it if action is required. No time is required for action upon a notice of appeal by the notice, and the statute does not contemplate such a case.
The motion is denied.
Numerous specifications of error are made. In the view that we have taken it will only be necessary to consider the question whether the verdict of the jury is contrary to the evidence.
It appears that the Comanche mining claim was located in the year 1878; that some time thereafter the Homestake mining claim was located. The claims run in a northerly and southerly direction. Between them was an unappropriated *Page 410 piece of mining ground about 300 feet in width at its southerly end, running to a point at the north, caused by the convergence of the west line of the Homestake, and the east side line of the Comanche. This piece of ground, apparently triangular in shape, was located by the plaintiffs as the Last Chance mining claim. They claimed that the thirty-two tons of ore in controversy were taken out of this ground.
It is admitted that, to have entitled them to the verdict, it was incumbent upon them to have established the fact by the testimony. Mr. Roberts, one of the plaintiffs, was the only witness who testified in their behalf in this respect. In his testimony in chief he said that the ore was taken out of the Last Chance mine in the year 1897, but, upon being recalled, and shown the diagram of Comanche mine as surveyed by Mr. Pardy, October 11, 1893, testified that "the ore in dispute was taken from that part of the ground which is represented on this map by the word `ore' written in pencil, just west of the east side line" (of the Comanche).
Considering the testimony as a whole, it was contrary to the verdict rendered, and the judgment must be reversed, and cause remanded for a new trial.
*Page 411It is so ordered.