81 N.W. 31 | N.D. | 1899
The plaintiff secured judgment in Justice Court in Cass county upon a claim against the estate of W. L. Richardson, deceased, which had been rejected by the administrator. The administrator attempted to appeal to the District Court from that judgment, and with that end in view, within the time allowed by the statute, served a notice of appeal upon plaintiff’s counsel, and filed the notice so served with the clerk of the District Court of Cass county. No undertaking of any kind was served, however, either with the notice of appeal or at all. An undertaking in form was filed in the clerk’s office. The plaintiff moved the dismissal of defendant’s appeal in the District Court upon the grounds — First, that no undertaking had been served upon the plaintiff or his counsel; second, that no such undertaking as is required by law had been filed with the clerk of the District Court. The defendant, at the hearing of the motion to dismiss, asked leave to amend and perfect his appeal by serving and filing a new undertaking. This was denied, and plaintiff’s motion to dismiss was granted upon both of the grounds upon which it was made, and a judgment was ordered and entered dismissing the appeal. The defendant appeals from the judgment of dismissal, and presents for review the rulings of the court which we have just mentioned.
The appeal attempted to be taken from the judgment of the Justice Court is governed by chapter 6 of the Justices’ Code, relating to appeals from Justices’ Courts. Chapters 6 and 7 of the Laws of 1897 do not affect any of the particular provisions of the Revised Codes which we shall have occasion to discuss as governing this appeal. Is the service of an undertaking necessary to give the District Court Jurisdiction, or is jurisdiction given merely by the service and filing of the notice of appeal and filing of the undertaking? We are of opinion that service of the undertaking is a jurisdictional prerequisite. Section 6776, Rev. Codes, as amended by chapter 6, Laws 1897, in force when this appeal was taken, provides that “the undertaking must be served with the notice. The remaining portion of the section relates to the method of excepting to the sureties 011 the undertaking, and the manner in which they may justify, and
Appellant’s chief contention is that, as administrator, he was not required to give and serve an undertaking to avail himself and the estate of the right of appeal. In support of this, counsel cites the following from section 6258, Rev. Codes: “An executor, administrator or guardian may appeal without filing an undertaking from a decree or order made in any proceeding in a case in which he has given an official bond; and when he appeals in that manner the bond stands in place of such undertaking.” The language just quoted is clearly not applicable to appeals from Justice and District Courts. Section 6258, supra, is one of the 26 sections which are found in article 9, chapter 3, Prob. Code, and relate .solely to appeals from the county court, as is clearly shown by the first section (section 6254), which reads: “Any party or other person specified in the next section who deems himself aggrieved may appeal, as prescribed in this article, from a decree or from an order affecting a substantial right made by a County Court to the District Court of the same county.” Each and every section of article 9, including the section relied upon, relates to appeals from the county to the District Court, and the widest possible interpretation would not permit us to say that the section relied upon had any reference or bearing upon appeals from the judgment of other courts.
Appeals from Justice Courts are regulated by chapter 6 of Justice’s Code, as amended. Any party dissatisfied with a judgment may appeal to the District Court by complying with the statutory requirements for such appeal. One of these is found in section 6772, and is this: “To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by a sufficient surety to the effect that the appellant will pay all costs which may be awarded against him on the appeal, not exceeding one hundred dollars, which undertaking shall be
Judgment affirmed.