Cremer v. Hartmann

34 Minn. 97 | Minn. | 1885

Vanderburgh, J.

The plaintiff in this action recovered a judgment in justice’s court. The defendant appealed to the municipal court, city of St. Paul, where the plaintiff moved to dismiss the appeal on the ground that the notice of appeal, with proof of service thereof, had not been made and filed with the justice as required by statute. The only proof of service was: “Due service of the within notice is hereby admitted this second day of June, 1884. M. A. Cremer, pr. W. J. C., Agent.” The record, therefore, shows affirmatively that the admission of service was made, not by plaintiff, but by some person as agent, whose initials alone are given, but whose authority is not disclosed. We cannot assume that such person acted for the plaintiff in the justice’s court, for there is nothing to indicate such fact upon the record, and all the papers filed with the justice are returned, and the plaintiff appeared by another person acting as attorney for him in that court. The statute is peremptory. Service of the-notice is not alone sufficient. The notice of appeal, with proof of service, must be filed within the specified time in order to perfect the appeal and authorize its allowance. There appears to be no good reason why the statute should not have allowed such defects to be cured by amendment, but it does not. There is no saving clause, and the record must be completed as required. It follows that the municipal court erred in refusing to grant the motion to dismiss, 'which seems to have been properly and seasonably made.

Judgment reversed, and the appeal from the justice’s court ordered dismissed.