Bruner v. Wade

85 Iowa 666 | Iowa | 1892

Given, J.

I. The question involved in this appeal in whether, under the allegations of the petition, the 1. Appeal: notice: form: service. plaintiff is entitled to the relief demanded. If from these allegations it appears that an appeal was taken from the judgment in the former case, he is not, and the demurrer was properly sustained; if otherwise, it should have been overruled. The plaintiff contends that there was no appeal, because the notice was not served upon or directed to him. The notice was addressed “To the above-named plaintiff, or to W. H. Stivers, Esq., his attorney.” Immediately preceding this the title of the case was given, wherein this plaintiff was designated by name as plaintiff. The notice was duly served upon W. H. Stivers, attorney for plaintiff, and upon the clerk. The notice and service were in substantial compliance with sections 3178 and 3179 of the Code, and were sufficient.

II. The appellant’s further contention is that there was no appeal, for the reason that the clerk was not 2. -: payment of clerk’s fees for transcript. “paid or secured his fees for a transcript in said appeal at any time within six mon^g 0£ ^he rendition of said judgment.” It is not alleged, however, that the clerk has not since been paid or secured his fees for a transcript. Counsel discuss the question whether paying of securing the clerk’s fees is indispensable to an appeal. This question does not arise upon the record, and is not, therefore, considered. The question presented is whether the clerk’s fees must be paid or secured within the six months allowed for taking an appeal. In Fairburn v. Goldsmith, 56 Iowa, 347, it is said:' “It seems to us- a-distinction is recognized by-the statute between an appeal and a perfected appeal. The appeal must be taken in the time by the service of the notice required by the statute; and there is no provision fixing a time when it must be perfected by paying or securing the fees of the clerk for a transcript.” Following this case, we must hold that the demurrer was properly sustained, as the petition fails to show that the clerk’s fees for. a transcript were not at any time paid or secured. Affiemed.

Kinne, J., took no part in the determination of this case.