M'Manus v. Swift

• Decision Date: 21 January 1889
• Citation: 76 Iowa 576,41 N.W. 364
• Parties: M'Manus v. Swift et al.
• Court: Iowa Supreme Court

76 Iowa 576

41 N.W. 364

M'Manus

v.Swift et al.

Supreme Court of Iowa.

Jan. 21, 1889.

From district court, Madison county; A. W. Wilkinson, Judge.

Action by Felix M'Manus against Patrick Swift, Bridget Swift, and Ed. Swift.V. Wainwright, for plaintiff. T. C. Gilpin and John Leonard & Son, for defendants.

REED, C. J.

This cause was submitted on an abstract which shows that a judgment was rendered in favor of plaintiff in the district court. It does not show, however, that an appeal has been taken to this court, and no transcript of the record was filed. The recital in the abstract is that “defendant Ed. Swift filed notice and acceptance by plaintiff's attorney of appeal to October term, 1888, of supreme court, on May 2, 1888.” There is no recital of the service of the notice on the clerk. Under the statute, (Code, § 3178,) service on the clerk is essential, and an appeal cannot be taken without it. The question was not made by counsel, but it is jurisdictional, and we cannot consider a cause, unless it is shown by the record that we have jurisdiction, even though no question as to our jurisdiction is made by counsel. In the condition in which the case appears to be, the only disposition we can make of it is to dismiss it, and that order will be made. Dismissed.