Stolt v. Chicago, Milwaukee & St. Paul Ry. Co.

49 Minn. 353 | Minn. | 1892

Per Curiam:.

The affidavit of the service of notice of appeal which was filed with the justice of the peace was insufficient to show a service which can be recognized as having any legal effect. The statute 1878 G. S. ch. 65, § 114, allows service to be made otherwise than personally, by leaving a copy of the notice “at the residence” of the person to be served. The affidavit of service in question shows that a copy of the notice was delivered to the wife of the person upon whom service was sought to be made, but it does not show that this was at the residence of such person. The justice having allowed the appeal, it was dismissed in the district court, a motion for leave to amend the proof of service having been refused.

(Opinion published 51 N. W. Rep. 1103.)

The rulings of the district court were in accordance with the construction which has always been put upon our statute regulating appeals from justice’s court. Effect has been given to the statute according to its somewhat strict terms. What are there prescribed as requisites, without compliance with which “no appeal shall be allowed,” have been regarded as jurisdictional proceedings, and, unless complied with, no appeal is effected, and the district court acquires no jurisdiction. It was so held as to the filing of the prescribed affidavit,—McFarland v. Butler, 11 Minn. 72, (Gil. 42;) Knight v. Elliott, 22 Minn. 551;—as to the payment of the justice’s fees,—Trigg v. Larson, 10 Minn. 220, (Gil. 175;)—and as to the service of a notice of appeal, and the filing of the same, with proof of service, with the justice of the peace,—Larrabee v. Morrison, 15 Minn. 196, (Gil. 151;) Pettingill v. Donnelly, 27 Minn. 332, (7 N. W. Rep. 360;) Marsile v. Milwaukee & St. P. Ry. Co., 23 Minn. 4; Cremer v. Hartmann, 31 Minn. 97, (21 N. W. Rep. 341.) The statute makes the filing of proof of service of the notice of appeal as essential as any other of the prescribed requisites. The justice is authorized to allow the appeal only “upon compliance with the foregoing provisions.” 1878 G. S. eh. 65, § 115. If an appeal is not perfected within the time prescribed, it cannot be done afterwards by amendment of such proceedings. See Pettingill v. Donnelly, Knight v. Elliott, and Cremer v. Hartmann, supra. The provisions in chapter sixty-six (66) of the statute, relating to the power of the district court to allow amendments, has never been regarded as applicable to qualify the strict jurisdictional requirements above referred to. Until an appeal has been effected, the district court has no jurisdiction in the matter.

Order affirmed.