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I appeal a case and I just received a dismissal from the…

Customer Question
I appeal a case...

I appeal a case and I just received a dismissal from the court. It says that I did not file my appeal on time. But the plaintiff when they filed the case they never served me because I did not have an attorney. I still don't have an attorney because I cannot afford. Can I appeal this dismissal again in the same superior court or should I file in Supreme court?

Lawyer's Assistant: Since laws vary from place to place, what state is this in?

California

Lawyer's Assistant: Has anything been filed or reported?

I filled the appeal in july 2017 and I just received a court hearing for 10/13/2017 on 09/18/2017 and again I received dismissal on 09/20/2017

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I was not given a chance to tell the judge that the plaintiff never served me.

Submitted: 8 months ago.Category: Legal
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Customer reply replied 8 months ago
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9/25/2017
Lawyer: legalgems, Lawyer replied 8 months ago
legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 13,001
Experience: Just Answer consultant at Self employed
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I am very sorry to hear this. In O'Keefe v Miller, a california case, the court stated that a general appearance is a waiver of service of process. So if a defendant appears at court that waives service unless they enter a special appearance and challenge defective service by filing a motion to quash service under the Code of Civil Procedure 418.Otherwise the court will not be able to address defects in service.I wish I had better news but I could not locate authority with a different result.Questions? Please post here otherwise kindly rate positively. Thank you!
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Customer reply replied 8 months ago
The plaintiff file a case against me in 2016 but did not serve me. I received in 2017 and filed immediately for an appeal.
The judge should hear the argument and ask the prove of service from the plaintiff.
Lawyer: legalgems, Lawyer replied 8 months ago
The problem is that in order to challenge service of process, the defendant would need to bring a motion to quash service at the trial court level. An appeal is only for mistake of law by the judge, not by a party. Most unfortunately.
Under CCP 473 a party can file a motion to set aside a judgment based on mistake, inadvertence etc. That deals with mistakes by a party or attorney versus the judge.
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Lawyer: legalgems, Lawyer replied 8 months ago
Sample motion herehttps://www.google.com/url?sa=t&source=web&rct=j&url=http://www.courts.ca.gov/partners/documents/blankn.o.m.6months.pdf&ved=0ahUKEwiY4f-Mob_WAhUDOiYKHUCGDCUQFggdMAA&usg=AFQjCNHW8wFRaqJD6At55fT70bYEJ5WyTA
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Lawyer: legalgems, Lawyer replied 8 months ago
Here is that statute...https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP§ionNum=473.I hope this information is helpful!
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Lawyer: legalgems, Lawyer replied 8 months ago

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