In re Newton

• Citation: 3 N.W. 311,2 Dak. 39
• Parties: In the Matter of the Opening of Gold Street, Deadwood, D. T. George N. Newton, Appellant.
• Decision Date: 01 January 1879
• Court: Supreme Court of South Dakota

3 N.W. 311

2 Dak. 39

In the Matter of the Opening of Gold Street, Deadwood, D. T. George N. Newton, Appellant.

Supreme Court of the Territory of Dakota.

Filed _______, 1879.

Appeal from the district court of Lawrence county.

Motion to dismiss the appeal.

W. H. Parker, for the motion.

J. R. Gamble, contra.

SHANNON, C. J.

It is provided by section 409 of the Code of Civil Procedure that if the appellant fail to cause the requisite papers to be transmitted to the supreme court the appeal may be dismissed. The requisite papers are clearly prescribed in section 408, and in the rules of this court. First, there must be a certified copy of the notice of appeal. [Rules 4 and 8 of the supreme court.]

By section 403, c. 16, same Code, it is enacted that “the modes of reviewing a judgment or order in a civil action shall be those prescribed by this chapter.” By section 407 it is declared that “an appeal must be made by the service of a notice in writing on the adverse party or his attorney, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same, or some specified part thereof.” There is no other mode in the chapter for reviewing a judgment or order by appeal, and it is therefore a prerequisite that an appeal must be so made. Without it this court obtains no jurisdiction of the cause.

Appellate jurisdiction is conferred, under the organic law, by section 22 of the Code, and the same authority which gives the jurisdiction points out the manner in which a case shall be brought before us. We have no power to dispense with the provisions of the law as to the mode, nor to change or modify them. Carroll et al v. Dorsey et al. 20 How. U. S. R. 207; Castro v. United States, 3 Wall. 47.

The service of the notice of appeal is a jurisdictional question, which can be taken advantage of at any time before there is a positive act of submission to the appellate court. To this point see People v. Eldridge, 7 How. Pr. R. 108;Tripp v. De Bow 5 How. Pr. R. 114; S. C. 3 Code R. 163. An omission in this respect cannot be supplied or rectified. Morris v. Morange, 26 How. Pr. R. 247; S. C. 17 Abb. 86, affirmed; 38 N. Y. 172; 4 Abb. N. S. 447; 31 How. Pr. R. 631,n.; Hastings v. Halleck, 10 Cal. 31, 491;Buffandeau v. Edmundson, 24 Cal. 94;Whippley v. Mills, 9 Cal. 641.

In the case of Kelsey et al. v. Forsyth, 21 How. 85, it was held by the supreme court of the United States “that an agreement of parties cannot authorize this court to revise a judgment of an inferior court in any other mode of proceedings than that which the law prescribes.” See also Mordecai v. Lindsay, 19 How. 200; Sampson v. Welsh, 24 How. 207. Among the papers transmitted to this court there is not a certified copy of any notice. On the argument of this motion it was not even pretended that there ever was any notice in writing to be served on anybody. On the contrary we have a simple statement, signed by one of ...