Aneta Mercantile Co. v. Groseth
| Decision Date | 20 June 1910 |
| Citation | 127 N.W. 718,20 N.D. 137 |
| Court | North Dakota Supreme Court |
Rehearing denied Sept. 13, 1910.
Appeal from District Court, Nelson county; Chas. F. Templeton, J.
Affirmed.
Skulason & Burtness, for appellants.
Method of acquiring jurisdiction on appeal is established. Eldridge v. Knight, 11 N.D. 552, 93 N.W. 860; Deardoff v. Thorstensen, 16 N.D. 355, 113 N.W. 616.
General appearance confers jurisdiction. Steven v. Nebraska & I Ins. Co. 29 Neb. 187, 45 N.W. 284; Goodrich v Omaha, 11 Neb. 204, 7 N.W. 442; Auspach v. Ferguson, 71 Iowa 144, 32 N.W. 249; Baisley v. Baisley, 113 Mo. 544, 35 Am. St. Rep. 726, 21 S.W. 29; Orear v. Clough, 52 Mo. 55; Peters v. St. Louis & I. M. R. Co. 59 Mo. 406; Shaffer v. Trimble, 2 G. Greene, 464; Grafton v. Union Ferry Co. 40 N.Y. S. R. 137, 13 N.Y.S. 878; Stanton v. Haverhill Bridge, 47 Vt. 172; Harvey v. Skipwith, 16 Gratt. 410; Marye v. Strouse, 6 Sawy. 204, 5 F. 494, 2 Mor. Min. Rep. 294; Miller v. State, 35 Ark. 276; Bazzo v. Wallace, 16 Neb. 290, 20 N.W. 315; Wm. Deering & Co. v. Venne, 7 N.D. 576, 75 N.W. 926; Benoit v. Revoir, 8 N.D. 226, 77 N.W. 605; Moorhouse v. Donica, 13 Or. 435, 11 P. 71; Hayworth v. Rogan, 77 Tex. 362, 14 S.W. 70; Matthews v. Superior Court, 70 Cal. 527, 11 P. 665; Shay v. Superior Court, 57 Cal. 541; Morgan v. Garretson & G. Lumber Co. 105 Mo.App. 239, 79 S.W. 997.
M. A. Shirley, for respondent.
Appeal statutes are mandatory, and compliance therewith jurisdictional. Richardson v. Campbell, 9 N.D. 100, 81 N.W. 31; Haessly v. Thate, 16 N.D. 403, 114 N.W. 311; Deardoff v. Thorstensen, 16 N.D. 355, 113 N.W. 616; Eldridge v. Knight, 11 N.D. 552, 93 N.W. 860; Lough v. White, 14 N.D. 353, 104 N.W. 518; Thompson v. Fargo Heating & Plumbing Co. 14 N.D. 405, 104 N.W. 525.
Statutory provisions as to appeals are mandatory. Ramsdell v. Duxberry, 14 S.D. 222, 85 N.W. 221, 17 S.D. 311, 96 N.W. 132; Brown v. Chicago, M. & St. P. R. Co. 10 S.D. 633, 66 Am. St. Rep. 730, 75 N.W. 198; Plano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N.W. 85; Telford v. Ashland, 100 Wis. 238, 75 N.W. 1006; Gruetzmacher v. Wanninger, 113 Wis. 34, 88 N.W. 929.
Judgment was entered by default in justice court against the defendants for $ 226.76. Appellants sought to take an appeal to the district court of Nelson county from such judgment, but omitted to serve their pleading with their notice of appeal and under taking. The notice of appeal and undertaking were duly served and filed. The case was docketed in the district court previous to the January, 1909, term thereof. Before the opening of such term, the attorneys for the respective parties entered into a written stipulation for the continuance of the case over the January, 1909, term, which stipulation was filed in the district court on December 30, 1908. When the case was called on January 4, 1909, the court noted in the docket that the case was continued by stipulation. In May, 1909, the defendants made application to the judge of the district court, after notice to the respondent, for an order granting them leave to serve and file their pleading, but this motion was denied. Thereafter the attorney for the respondent served a notice of motion to dismiss the appeal upon the ground that the same had never been perfected by the reason of the failure to serve the pleading. This motion was granted, and judgment of dismissal entered accordingly, from which judgment this appeal is taken.
Appellants assign three errors: (1) The court erred in dismissing the appeal from the justice court, for the reason that the service of the pleading of the appellants with the undertaking on appeal is not a jurisdictional prerequisite, is not a mandatory, but a directory provision. (2) The court erred in dismissing the appeal from the justice court for the reason that, by the stipulation to continue the case, the respondent had made a general appearance in the district court, and had thereby waived any irregularities in the appeal. (3) The court erred in refusing to permit the appellants to serve and file their answers.
Two questions are necessary to be considered for decision in the appeal: (1) Was the failure to serve and file appellants' pleading with the notice and undertaking jurisdictionally fatal to the appeal? (2) If such serving is jurisdictional, was there a waiver of the failure by the stipulation to continue the case over the January, 1909, term of said district court?
If these questions are answered adversely to the contention of the appellants, then the refusal of the court to allow appellants to serve and file their answer is not material. The sections of the Revised Codes of 1905, relating to appeals from justice courts, so far as material, are as follows: Section 8500: "The appeal is taken by serving the notice of appeal on the adverse party or his attorney and by filing the notice of appeal together with the undertaking required by law with the clerk of the district court of the county in which the appeal was taken." Section 8502: "To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by 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 approved by and filed in the office of the clerk of the district court of the county to which the appeal is taken." Section 8506: "The undertaking for appeal must be served with the notice; also appellant's pleading when the judgment appealed from was taken by default." Appeals are matters of statutory regulation, and, unless the statute has been complied with, there is no appeal, unless there is a noncompliance with some requirement that can be and has been waived. Deardoff v. Thorstensen, 16 N.D. 355, 113 N.W. 616. Appeals from default justice judgments are not allowed in some jurisdictions. 24 Cyc. Law & Proc. p. 652, and cases cited.
It is earnestly contended by appellants that the service of the appellants' pleading is not jurisdictional, and that the district court acquired jurisdiction both of the person of the appellee, and of the subject-matter, upon the service and filing of the notice of appeal and the undertaking; that, if service of the pleading is one of the steps required to be taken to confer jurisdiction, such service relates only to the jurisdiction of the person, and not of the subject-matter, jurisdiction of the subject-matter being conferred by the service and filing of the undertaking, and contends that whether the service of the pleading be regarded as a mere irregularity or as something which resulted in lack of jurisdiction of the person, then the stipulation to continue the case was a complete submission to the jurisdiction of the appellate court, and the defect was cured. Section 8506, supra, seems to us to be mandatory. It provides that the undertaking must be served with the notice also appellant's pleading when the judgment appealed from was taken by default. There is no issue until the pleading is served. Hence there is no subject-matter at issue between the parties, and no issue to be tried or heard in the appellate court, until the defendant has answered or demurred, and thus made an issue, so that the requirement of the service of a pleading in such a case on the part of appellant would seem to be vitally essential in order to create an issue, a subject-matter in dispute, the jurisdiction over which is transferred to and vested in the district court by the proper taking of the...
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