Henness v. Wells

• Citation: 16 Or. 266,19 P. 121
• Parties: HENNESS v. WELLS.
• Decision Date: 03 May 1888
• Court: Supreme Court of Oregon

19 P. 121

16 Or. 266

HENNESS v. WELLS.

Supreme Court of Oregon

May 3, 1888

Appeal from circuit court, Polk county.

(Syllabus by the Court.)

Section 2119, Hill, Code, requires the notice of appeal to be filed with the justice 'with the proof of service indorsed thereon. ' The filing of notice without such proof of service is ineffectual for any purpose. Briney v. Starr, 6 OR. 207, approved and followed.

PER CURIAM.

This action was originally commenced before a justice of the peace in Polk county, where the defendant had a judgment in her favor. The plaintiff undertook to appeal from said judgment to the circuit court, but filed his notice of appeal with the justice without any proof of service being indorsed thereon. The attempted proof of service was placed on the notice at least six days after the notice was filed. Upon these facts the circuit court dismissed the appeal, from which judgment this appeal is taken. Briney v. Starr, 6 Or. 207, is decisive against the appellant. The provision of the Code construed in that case is in substance the same as the statute regulating appeals from justices' courts, and there is no reason why the latter should not receive the same construction as the former. Section 2119, Hill, Code, requires the filing of the notice of appeal with the justice "with proof of service indorsed thereon." The filing of such notice without the requisite proof of service indorsed is ineffectual for any purpose. Let the judgment be affirmed.