Bubb v. Cain

| Kan. | Jul 15, 1887

The opinion of the court was delivered by

Valentine, J.:

The sole question presented for consideration in this case is, whether the district court erred in dismissing the appeal. The judgment of the justice of the peace was rendered on November 27,1885. An appeal bond was properly drawn up, signed, and inclosed in a letter, and this letter was properly registered and deposited in the post office at Ellin wood on December 2, 1885, and addressed to John Van Patten, the justice of the peace, at Sterling, Kansas, where he received his mail, and the letter was received at that post office on the same day, but the justice did not call for it, or receive it, or even know that it was there, until December 14, 1885, when he received it, and on the next day he approved the bond and filed the same in the case. We do not think that this constitutes a good appeal. In order to effect a valid appeal, the appeal bond must be filed with the justice “ within ten days from the rendition of the judgment.” (Justices Code, §§121, 122.) It is the duty of the party attempting to appeal, to see that the appeal bond is placed in the hands of the justice, or in his office, within the time required by law, and if it is not, no valid appeal is taken.

It is claimed, however, that in this case the appellee waived the irregularity in the taking of the appeal, by making a general appearance in the case in the district court. We do not think, however, that any such appearance was made. No appearance at all was made to the merits of the action, and no appearance was made admitting the jurisdiction of the court generally in the action; but the appearances that were made were clearly made for the purpose of questioning the jurisdiction of the court to finally hear and determine the case. The first appearance was to file a motion and affidavit showing that in fact no legal appeal had been taken, and therefore that the district court did not have jurisdiction to hear and determine the case, and asking for a complete transcript showing affirmatively such want of jurisdiction. The next appearance was to file a motion to dismiss the appeal, for the reason that no legal appeal had been taken, and therefore that no jurisdiction to hear and determine the case had been obtained. Clearly there was no intended waiver in this case of the defects in taking the appeal; and we do not think that any of the appearances that were made constituted any waiver of' such defects.

We do not think that the court below committed any error in dismissing the appeal, and therefore its judgment will be affirmed.

All the Justices concurring.