State Savings Bank v. Ratcliffe

111 Iowa 662 | Iowa | 1900

Deemer, J.

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Notice of appeal, purporting to be duly signed, with acceptance of service thereon by attorneys for plaintiff, was duly filed with the clerk of the district court. The acceptance of service was within the time required by law, and on the face of it the notice is sufficient to give us jurisdiction. Some time-after the paper was filed plaintiff’s counsel moved for a correction thereof in the district court by striking out the names of defendants’ attorneys, purporting to be appended to the notice. A showing was made in support of this motion, from which the trial court found that the notice was not in fact signed when accepted by plaintiff’s counsel, and it made an order correcting the same accordingly. From this order an appeal was taken. There is no doubt that the evidence before the trial court fully justified the order correcting the notice. But it is said the court had no jurisdiction to correct it. Section 4127 of the Code seems to confer jurisdiction on the trial court to make such an order. No time is fixed by statute within which to- make application, and nothing but laches or equitable reasons will defeat it. Fisher v. Railway Co., 104 Iowa, 588; Risser v. Martin, 86 Iowa, 392. But it is said the court should have considered certain correspondence between the parties as constituting notice. If that be true, it gave no ground' for holdiug that the notice of appeal was in fact signed. The notice to correct was filed in time, and was properly sustained. As the notice was not signed, it was no notice. Doerr v. Association, 92 Iowa, 39. As plaintiff’s attorneys accepted service of the paper, it is argued that they are estopped from claiming no notice. That question is also settled by the Doerr Case, supra. The correspondence passing between the parties is not relied on as sufficient in this connection, and we have no occasion to consider whether the letters passing between the parties cured the defect. There must be a notice of appeal, to give us jurisdiction. Consent of parties will not take the place of notice. As we have no jurisdiction, the main case must be dismissed, and the appeal from the order correcting the record aeeirmed.