104 N.W. 518 | N.D. | 1905
The defendant appeals from a judgment of the district court of Cass county dismissing his appeal from a justice court judgment. The appeal was dismissed because of defendant’s failure to serve an undertaking within thirty days after the judgment was rendered, that being the period fixed by the statute for taking appeals. Section 6771,'Rev. Codes 1899. The record shows that the justice court judgment was rendered July 31, 1903. The defendant served his notice of appeal on August 22, 1903, and on August 28, 1903, he filed the notice of appeal with the clerk of the district court, and also an undertaking in due form, and
Counsel for appellant contend that Richardson v. Campbell, supra, was not correctly decided, and the provisions of our present statute requiring the service of the undertaking and service of notice of deposit when money is deposited in lieu of an undertaking has nothing to do with the question of jurisdiction. The basis of this contention is found in the language of a number of provisions of the old statute, which are preserved in the present statute without change. If the language relied upon stood alone, counsel’s position would undoubtedly be correct. These provisions must, however, be read and construed with the added provisions requiring service. The majority of the court as now constituted did not participate in the decision of Richardson v. Campbell. We are all agreed, however, that no adequate reason has been advanced for departing from the construction announced in that case.
Judgment affirmed.