Peck v. Phillips
| Decision Date | 20 May 1887 |
| Citation | 34 N.W. 65,4 Dakota 430 |
| Parties | Peck v. Phillips. |
| Court | North Dakota Supreme Court |
On motion to dismiss appeal.
A. C Phillips, pro se, and Winsor & Swezey, for appellant. D. R Bailey, and T. B. McMartin, for respondent.
This was a motion made in this court to dismiss the appellant's appeal. Two grounds were assigned as the basis for the motion--First, because no service of the notice of appeal was made upon the clerk of the district court, as required by law; second, because no sufficient undertaking on appeal had been executed by appellant.
The judgment was entered on the twenty-seventh day of February 1886. On the sixth day of March notice of appeal was duly served by copy on the attorney for respondent, and on the same day the original notice was filed (as any other paper in the case would be) in the office of the clerk of the district court. And it is insisted that this was not such a service upon a clerk of the court as is contemplated by section 407 of the Code of Civil Procedure, which is as follows: "An appeal must be made--(1) 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," etc.; and the question is, was the filing of the notice of appeal in the office of the clerk of the court with the other papers in the case a sufficient service upon the clerk, within the meaning of that statute? We think not. What purpose or object the law-makers were seeking to accomplish by requiring a copy to be served upon the clerk that would not be attained by filing the original notice with him, we may not stop to discuss. The important consideration is to establish and settle the practice which has been far from uniform in all the courts of the territory.
Sections 514-516 of the Code of Civil Procedure prescribe the mode for the service of notice in civil actions, and the method there prescribed was adopted by the appellant in this case in his service upon the attorney, viz., service of a copy, with proof of service by affidavit of the person serving. This is the usual manner of service under our Code, and, where the service is personal, it should be so made, unless the adverse party accepts service, as he may do, and avoid the necessity of the proof. In view of all the sections of the Code above referred to, we see no reason for saying that any different manner of service is...
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