Suisun Lumber Co. v. Fairfield School District

The defendant, through its board of trustees, entered into a written contract with one C. C. Foy, on the fourth day of January, 1908, for the construction of a grammar school building, for the sum of $16,000 in cash and the old school building at the agreed value of $1,000. Under the stipulations of the .contract said building was to be completed ■by the first day of August, 1908.

The plaintiff, prior to the twenty-first day of September, 1908, furnished the said Foy certain materials which, accord ing to the averments of the complaint, “were to be used and were used in the construction of the schoolhouse building described in the said contract and on the said date there was due and unpaid from the said C. C. Foy to the plaintiff the sum of $2,400.28 for the materials furnished as aforesaid. ’ ’

On the said twenty-first day of September, 1908, so the complaint alleges and the evidence shows, “the plaintiff delivered to and served on the said Fairfield School District, and on each of said trustees personally, a certain written notice” in accordance with the following provision of section 1184 of the Code of Civil Procedure: “. . . Any of the persons mentioned in section eleven…

In the petition for rehearing of this cause before this court, counsel for the respondent] while conceding that there is an appeal from the order denying the defendant’s motion for a new trial, insistías they originally insisted, that there is no appeal from the judgment. The judgment was entered on October 4, 1911. The notice of motion for a new trial was served and filed on the fourteenth day of October, 1911, from which circumstance it is assumed that the defendant must have had actual notice of the rendition and entry of judgment at that time. We think this assumption is correct, and that the defendant must necessarily have had such notice of the fact of the entry of judgment, otherwise the intention to move for a new trial would not have been noticed. The appeal from the judgment was taken on Feb ruary 1, 1912, a little over four months after the date of the entry of the judgment. Under section 941b of the Code of Civil Procedure the appeal from the judgment is required to be taken within sixty days from the notice of the entry of judgment. It has been held that, under said section, neither a notice of the appeal from the judgment to the adverse party nor an undertaking on…