Puckett v. Moody, 17 Wash. 609

17 Wash. 609 | Wash. | 1897

Per Curiam.

The respondents move the court to dismiss the appeal herein on the ground that there was no proof of the service of the notice of appeal filed with said notice or within the time prescribed by law. Section 4, Laws 1893, p. 121, provides that, within five days after service of the notice of appeal, the appellant shall file with, the clerk of the superior court the original or a copy of the notice with proof of the service thereof, and that thereupon the clerk shall enter such notice with proof of service in the journal of the court. It is conceded that there was no proof of service of the appeal notice filed as required. The appellant endeavors to meet the motion on three grounds, one of which is that a notice of appeal was given in open court, and a supplemental record has been sent here to show that fact. It appears, however, that this notice was given on the 3d day of February, 1897, while the bond on appeal was not filed until February 25th, the day the written notice of appeal was filed. The first notice was, therefore, invalid.

It is next contended that the motion should not prevail for the reason that the respondents on said 25th day of February admitted notice of the filing of appellant’s proposed findings and his exception to the findings of the court, which admission was of record. But this was no proof of the service of the appeal notice.

The appellant has also filed affidavits in this court showing that as a matter of fact the written notice of qppeal was served on the respondents on the day that it was filed, but this proof comes too late to comply with the statute. It has been repeatedly held that the notice of appeal is jurisdictional, and that the statute must be complied with. The proof of its service is jurisdictional also. Howard v. Shaw, 10 Wash. 151 (38 Pac. 746); Fairfield v. Binnian, 13 Wash. 1 (42 Pac. 632).

The motion to dismiss is granted.