
    [No. 7,518.
    Department One.]
    November 8, 1882.
    ROWENA G. STEELE v. BOARD OF SUPERVISORS OF MERCED COUNTY.
    Service or Notice by Mail—Appeal—Notice or Appeal—Dismissal or Appeal.—On the authority of Beed'v. Allison, 10 P. O. L. J. 239, appeal dismissed.
    Appeal by defendants from the judgment of the Superior Court of the County of Merced. Marks, J.
    Petition for writ of mandate to compel the Board of Supervisors of Merced County to award the county printing to the ' plaintiff. The petition for the writ was filed in the Superior Court of Merced County on August 27, 1880. Defendants demurred to the writ; the demurrer was overruled, and defendants declining to answer, judgment was given against them. The notice of appeal was dated November 5,1880.
    As appears from return of service indorsed thereon, it was served on the sixth day of November, 1880, on the plaintiff, Rowena G. Steele, personally, at the county of Merced, by the Sheriff of that county. The affidavit of service of the notice upon the plaintiff’s attorney is in the words and figures following:
    “ State of California, County of Merced, ss.: Zue G. Peek, being-duly sworn, deposes and says: he is a white male citizen over the age of twenty-one years, and he is clerk in the office of Frank H. Farrar, District Attorney of Merced County, California. That, as such clerk, he did, on the eighth day of November, A. D. 1880, deposit in the United States post-office in the town of Merced, county of Merced, State of California, a sealed envelope with a six-cent United States postage stamp imprinted thereon, containing a true and correct copy of the annexed notice of appeal, and directed to Mrs. Laura DeForce Gordon, 29 Montgomery Block, San Francisco, California.
    “ That affiant is informed and believes, and so states the facts to be, that said Laura DeForce Gordon is the attorney of record for the plaintiff in the action wherein the annexed notice of appeal is given, and that her place of business is at 29 Montgomery Block, in the City and County of San Francisco, State of California. Zue G. Peck.”
    Respondent moved to dismiss the appeal on the ground that no service of the notice of appeal was shown in the transcript on appeal.
    
      Laura De Force Gordon, for the motion.
    This appeal should be dismissed, as there is nothing in the transcript to show or prove service of “Notice of Appeal,” which must be shown. (Hildreth v. Gwindon, 10 Cal. 490.) The alleged service on Rowena G. Steele by the Sheriff personally is nugatory and void. (C. C. P., § 1015; Grant v. White, 6 Cal. 55; Abrahams v. Stokes, 39 id. 150; Whittle v. Renner, 55 id. 395; Prescott v. Salthouse, 53 id. 221.) The only proof offered is a pretended service shown by the affidavit of Zue G. Peck, which affidavit is manifestly insufficient in the following particulars:
    1. It does not show that the residence or place of business of the parties giving notice is in a different place than that of the respondent’s attorney, to whom they thus attempt to give notice. Service by mail can only be made where the persons making the service and the person to whom it is to be made, reside, or have their places of business, in different places, between which there is a regular communication by mail. (C. C. P., § 1012; Moore v. Besse, 35 Cal. 184; Schenck v. McKie, 4 How. Pr. 246.)
    2. The affidavit of Peek fails to show a single step towards a valid service of “ Notice of Appeal.” It does not show that the mailing of the notice was done at the request of the appellants or their attorney, or on their behalf. Without some authority to do so, he had no right to mail the notice, and it should be disregarded. (McMillan v. Reynolds, 11 Cal. 379.)
    
      3. It does not show that the postage was paid. The affiant’s statement there was “ a six-cent U. S. postage-stamp imprinted upon the envelope,” inclosing “ annexed Notice of Appeal,” does not indicate whether that amount was sufficient to pay the postage on the same, nor does he state that the said stamps were uncanceled.
    4. The affidavit of the mailing of the notice does not show that the notice of appeal mentioned in said affidavit was the notice of appeal in this cause, or to what cause it did refer.
    5. The affidavit fails to state that, at the time of the mailing of the notice, the residence or place of business of the plaintiff’s attorney was in the City and County of San Francisco, to which place he swore he had addressed the said notice on the eighth day of November, 1880, although the affiant says he “believes’’that on the fifteenth day of November, 1880, the date on which the jurat is made to the said affidavit, that the place of business of plaintiff’s attorney is in the said City and County of San Francisco; but there is nothing in this affidavit of mailing notice that even pretends to show that the residence of plaintiff’s attorney was in San Francisco at the date of mailing the notice. There is an interval of seven days between the time of mailing notice and the making of the affidavit that “ affiant believes the place of business of plaintiff’s attorney to be in San Francisco.” It is wholly immaterial where plaintiff’s attorney resided seven days after the mailing of the notice. Where did she reside or have her place of business on the eighth of November, 1880, the date of mailing of the notice ? (Moore v. Besse, supra.)
    
    6.. The affidavit contains no mention that there is a regular communication by mail between the place of business of the person giving notice and the person to whom the notice is given, as is positively required by the statute. (C. C. P., § 1012.) Nor does it show that there is any communication by mail whatever, which renders the pretended service fatally defective, and must be so regarded. (People v. Alameda T. P. Road Co., 30 Cal. 182.) The affidavit of service is ineffectual, if not strictly in compliance with the statute. (People v. Alameda R. Road Co., and cases cited, 30 id. 182; Dall v. Smith, 32 id. 475.) “The appeal should show due service.” (Franklin v. Reiner, 8 id. 341.) “Unless it affirmatively appear in the record that a copy of the notice of appeal has been served upon the adverse party or his attorney, the Supreme Court cannot take jurisdiction of the case. (Hildreth v. Gwimdon, 10 id. 490.)
    
      Frank H. Farrar and P. JD. Wigginton, contra,
   The Court :

The motion to dismiss the appeal in this case is sustained on the authority of Reed v. Allison, 10 P. C. L. J. 239, and cases cited therein.

Appeal dismissed.  