Winton

This is an appeal from an order granting defendant’s motion to correct the record by changing the file-mark upon her notice of appeal from January 17 to January 16, 1918.

[1] It is conceded, as of course it must be, that in :the taking of an appeal the notice thereof must be both served and filed within the time permitted by law. Neither alone is sufficient. In the present proceeding it appears that the plaintiff had obtained a judgment against the defendant, and that the last day upon which the latter might take, an appeal was January 16, 1918. On that day she served a notice of appeal, and the question here, presented is, Was the notice also filed on that day or, as indicated by the filing mark thereon, upon the day following?

According to the affidavit in support of the motion the person who served the notice, desiring to file the same, proceeded to the office of the clerk of the court, and arrived there at about 5 o’clock in the afternoon, which is the hour the office closes. In searching for a deputy to whom she might hand the notice for the purpose of filing she wandered out of the office, and when she shortly thereafter tried to re-enter she found the office closed. A…