No. 16,506 | Minn. | Dec 17, 1909
On May. 4, 1909, judgment was entered in the district court of the county of Eed Lake against the appellant herein, and it appealed therefrom to this court on May 6, 1909. On November 8, 1909, it served notice on the respondent that it dismissed its appeal, and filed the notice, .with proof of service, with the clerk of the district court, and on the same day attempted to appeal again from the judgment by serving a notice of appeal therefrom. On November .8, 1909, the original appeal was dismissed, under rule 4 of this court, for appellant’s failure to cause the proper return to be filed within the time limited. This is a motion to dismiss the second alleged .appeal.
The attempt of the appellant to dismiss the first appeal was a nullity. Merrill v. Dearing, 24 Minn. 179" date_filed="1877-10-05" court="Minn." case_name="Merrill v. Dearing">24 Minn. 179. It follows that, when the second notice of appeal was served, the case was pending in this court •on the first appeal from the judgment, and we have the question whether a second appeal from a judgment or order may be taken while .a former valid appeal therefrom by the same party is pending. The •dismissal of an appeal in this court does not preclude the taking of another appeal in the same cause within the time limited (E. L. 1905, § 4377); but the question here to be decided is whether a party having taken an appeal to this court may, while it is pending, take another appeal from the same order or judgment. We hold that it cannot, for the reason that such a case is not within the provision of the statute providing for a second appeal from the same order or judgment.
It is apparent in this case that the appellant’s counsel was under the impression that his attempt to dismiss the first appeal was effective when he served the second notice of appeal; but the right of appeal is a purely statutory one, and if the statute is not complied with the court is without discretion to grant any relief.
Appeal' dismissed.