275 N.W. 833 | Minn. | 1937
Lead Opinion
The issue presented is the single one of whether a notice of appeal in an election contest, filed within ten days after the canvass of the election in the office of the deputy clerk at Hibbing from which notice the words "to be tried at the village of Hibbing" had been omitted, conferred jurisdiction on the court. If jurisdiction was conferred, then clearly the court was in error, otherwise the order made must stand for affirmance.
1. As has already been mentioned, 1 Mason Minn. St. 1927, § 488, is the principal statute involved. This statute provides that contestant in such proceeding must file his notice of appeal with the clerk of the district court of his residence within ten days after the canvass is completed. The filing of such notice within the statutory limitation is jurisdictional. Baberick v. Magner,
2. In St. Louis county there are three places in addition to the city of Duluth where chief deputy clerks function, Virginia, Ely, *229 and Hibbing. Under the provisions of L. 1931, c. 160, 3 Mason Minn. St. 1936 Supp. § 166, "the office of said deputy clerk at said places shall be equally deemed the office of the clerk of court for all purposes except the filing of papers in actionsor proceedings to be tried at Duluth." (Italics supplied.) Duluth, as is well known, is the county seat of St. Louis county, and there is no other. In other words, for the filing of papers in cases to be tried at Duluth, the office of the clerk at any of the mentioned places outside of Duluth is not the office of the clerk of the district court.
L. 1931, c. 195, 3 Mason Minn. St. 1936 Supp. § 172, specifically states that any party seeking to invoke the jurisdiction of the court in "any election contest" shall, in the notice of appeal "or other jurisdictional instrument issued therein, in addition to the usual provisions," "print, stamp or write thereon the words 'to be tried at the village of Hibbing.' " In the instant case contestant did not do anything of the kind. Obviously, then, under the statute, the proceeding here attempted would have to be at Duluth, and that city was the place and the only place for the filing of the notice.
3. Contestant does not seriously question this result except that in his brief he expresses the opinion that this court in Fritz v. Hanfler,
Always to be remembered is the rule that on matters involving jurisdiction of the court "where the mode of acquiring jurisdiction is prescribed by statute compliance therewith is essential or the proceedings will be a nullity." 15 C. J. p. 797 [§ 92]. "Jurisdiction may depend upon the existence of one of two or more alternative facts or conditions; and where certain facts must exist as a necessary prerequisite to the jurisdiction of a court, they must exist at or before the time when the court assumes jurisdiction. Whenever the attention of the court is called to the absence of a jurisdictional fact, it may, and should, refuse to exceed its powers." 15 C. J. p. 732 [§ 27]. "Until the service of a proper notice of appeal the district *230
court has no jurisdiction for any purpose. And it cannot appropriate to itself a jurisdiction which the law does not give it by correcting or permitting the correction of a notice of appeal after the time for taking the appeal has expired." In re Estate of Mikkelson,
The court in its memorandum so clearly states its reasons for the result reached that the following quotation therefrom should be made:
"The office of the clerk of court at Hibbing is not the office of the clerk of court for filing papers in matters triable at Duluth. Chapter 160, Laws of 1931; Chapter 195, Laws of 1931. If this was a contest arising in Duluth or that vicinity, or at Virginia or Ely, it would be very apparent that the filing of the papers at Hibbing, where no designation was made, was improper. The fact that it arose at Chisholm, which is only a few miles from Hibbing, can make no difference. The plaintiff or contestant can start his action or contest or appeal in any one of the three places besides Duluth in the county by proper designation; if he makes no designation it is triable in Duluth, and he must be deemed to have so intended.
"The court cannot change the statutes. The statute requires notice of appeal to be filed in the office of the clerk of the District Court within ten days. This is a jurisdictional prerequisite to the right of the court to consider the case at all. Notice of appeal was not filed in the office of the clerk of court within the ten-day period. The court has acquired no jurisdiction. The court cannot allow an amendment."
Order affirmed.
Dissenting Opinion
By L. 1931, c. 160, 3 Mason Minn. St. 1936 Supp. § 166, the office of the deputy clerk of court at Hibbing is equally deemed the office of the clerk of court of St. Louis county for all purposes except the filing of papers in proceedings to be tried at Duluth. This election contest was in fact to be tried at Hibbing, and therefore the office of the deputy clerk was the office of the clerk of court of St. *231 Louis county, and it was permissible under said act to file the notice with the deputy clerk at Hibbing.
1. An amendment to cure the defect in the notice by adding that the action is to be tried in the village of Hibbing is permissible under 2 Mason Minn. St. 1927, § 9243, which provides:
"A notice or other paper shall be effectual though the title of the action be omitted, or it be otherwise defective as to the designation of the court or the parties, if it intelligibly refers to the action or proceeding. In furtherance of justice, the court, on proper terms, may permit any other defect or error in the papers to be amended, and may relieve against any mischance, omission, or defect within one year after it occurs; * * *"
Section 9283 authorizes courts in all proceedings to relieve against omissions and mistakes and permit defects or errors in notices and other papers to be amended in the furtherance of justice. The two statutes clearly indicate that a defect of the kind involved in this case can be cured by amendment and that a court should permit such amendment in the furtherance of justice. Notices of election contest are treated as the pleadings in the case, "and may be amended in the discretion of the court." 1 Mason Minn. St. 1927, § 488. Construing the three cited sections of the statutes together, there can be no doubt that the notice of election in this case was amendable to cure the alleged defect.
Election contests rest on statutory authority, and the statutes authorizing them are to be strictly pursued, but it is yet true that "this court has never been averse to the allowance of a fair opportunity of ascertaining the actual result of an election. The important thing is that the truth be ascertained and the will of the voters be given effect; and the notice of appeal is intended as an aid, not a hindrance, to a fair investigation." Moon v. Harris,
The strict, irremediable adherence to statutory directions required by the majority opinion is not demanded in ordinary civil proceedings. Thus where a statute provided that in a mechanic's lien action the summons shall require the answers to be filed with *232
the clerk of court, we held that the mistake of having a summons require the defendants to serve their answers as in the ordinary action "was amendable or might be disregarded." Melvey v. Bowman,
2. Section 172 should be construed as being directory rather than mandatory, to the end that proceedings had thereunder may be adaptable in the furtherance of justice. It is not to be construed as mandatory simply because it provides that one wishing a proceeding to be tried at Hibbing "shall" write, print, stamp, etc., on the instrument that the action is to be tried at Hibbing. The word "shall" is often construed as meaning "may." It indicates that the statute is to be obeyed, but it does not necessarily indicate that failure strictly to comply is jurisdictional or fatal to proceedings had thereunder. Wenger v. Wenger,
MR. JUSTICE STONE took no part in the consideration or decision of this case. *234