272 N.W. 285 | S.D. | 1937
Under the provision of section 3147, Rev. Code 1919, appellant's time to appeal from the judgment herein expired on the 1st day of October, 1936. Late in the evening of that day appellant's attorney living at Sioux Falls mailed to the clerk of courts of Charles Mix county at Lake Andes, S.D., a notice of appeal and bond, together with the clerk's fee. This letter, together with the inclosures, reached the clerk of courts on either the 2d or 3d day of October. Conformable to an agreement had with counsel the clerk marked the papers filed as of October 1st. However, it is conceded that the papers were not in the clerk's office on October 1st, but reached that office either on the 2d or 3d day of October, and after the time for appealing from the judgment had expired. Respondent has moved to dismiss the appeal.
Section 3146, Rev. Code 1919, provides: "An appeal must be taken by serving on the adverse party and filing with the clerk of the court in which the judgment or order appealed from is entered a notice in writing, signed by the appellant or his attorney. * * * The appeal shall be deemed to be taken by the service and filing of the notice of appeal."
[1, 3] We are convinced that the filing of the notice of appeal within the time limit provided by section 3147 is jurisdictional. *145
Grieves v. Danaher,
The appeal must be dismissed. It is so ordered.
RUDOLPH, P.J., and POLLEY, ROBERTS, and WARREN, JJ., concur.
SMITH, J., not sitting.