Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-06-30
For Respondents.
OPINION


Respondents move to dismiss the APP
peal 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 at
torney for respondents resides at Reno
in Washoe county. The distance from
Ely to Reno is upwards of four hundred
miles. There is a regular mail commun-
ication between the places. The attorney
for appellant filed the notice of appeal
December l3, 1898, and mailed copy,
postage paid, at Ely on the same day,
addressed to the respondents attorney at
Reno. There is no contention as to the
facts. The question is at what time did
the service take place? The provisions
OF the Civil Practice Act applicable, are
as follows:
"Sec. 497. Service hy mail may be
made. when the person making the ser
vice and the person upon whom it Is to
he made, reside at different places, be-
tween which there is regular commun-
ication by mail.
"Sec 1873 In case of service by mail.
the notice or other paper shall be de-
posted in the pos;oflice, addressed to the
person upon whom it is to be served, at
his lace of residence, and the postage
paid. And in such case the time of ser
vice shall be increased one day for every
twenty-five miles distance between the
place of deposit and place of address
(Secs. 1928, Com. Laws
Appellants claim that the notice was
served by depositing copy in the post
office Respondents contend that as the
service was by mail, it was not complete
until Ii days from the time of the de
post, as the statute increases the time o
service one day tor each twenty-t
miles of the dis ance between the place
of deposit and place of address. II re
spondents' contention is the law thu
notice of appeal was not served until at
ter the filing of the undertaking upol
appeal and the appeal should be dis
missed.
When the deposit is made in the post
office under the provisions above sc
service is complete. The purpose of tn
statute in extending the time of the sci
vice one day for every twenty-five mile
between the place of deposit and tn
place of address is to give the party r.
ceiving the notice or other paper time
act upon it if action is required. n
time is required tor action upon motto
of appeal by the notice, and the statu
does not contemplate such a case.
The motion is denied.
Numerous specifications Of error Ill
made. In the view that we have take
it will only be necessary to consider tt
question whether the verdict of the jun
is contrary to the evidence. 1t appea
that the Comanche mining claim was l
Gated in the year 1873. That sometin
thereafter the Homestake mining clai
was located. The claims run in mort
erly and southerly direction. Betwee
them was an unappropriated piece
mining ground about 800 feet in width
its southerly end, running to a point
F: the north caused by the conveyance
the west line of the Homestake and tt
east line of the Comanche. This piece
ground, apparently triangular in shaI
was located by the plaintiffs as the La
Chance mining claim. They claim
hat the thirty-two tons Of ore in contr