Pilkington v. Potwin

• Decision Date: 22 November 1913
• Parties: PILKINGTON v. POTWIN.
• Court: Iowa Supreme Court

163 Iowa 86

144 N.W. 39

PILKINGTON

v.POTWIN.^d1

Supreme Court of Iowa.

Nov. 22, 1913.

Appeal from District Court, Polk County; James P. Hewitt, Judge.

On December 17, 1910, I. A. Potwin filed with the auditor of Polk county, Iowa, a statement of general consent to sell intoxicating liquors in the city of Des Moines. Said statement was canvassed by the board of supervisors and by it held sufficient on January 18, 1911. From this finding the plaintiff, W. J. Pilkington, a citizen of Des Moines, appealed to the district court. The cause was tried in the district court, and on November 6, 1911, said court made a finding of facts and conclusions of law. Among other things the court found that at the general election in 1910 there were cast in said city 13,435 votes, and a majority thereof is 6,718; that the statement of general consent filed with the county auditor contained in all 8,450 names, 1,187 of which were invalid because some of them were not on the poll list, some were withdrawn, others signed a name different or slightly different from his true name; that there were some who signed their true names but the signatures were changed since the names were signed, but that there was no evidence as to when or by whom the changes were made; that some did not correspond with the names having the same ward and precinct number on the poll list; that some were signed without being verified and accompanied by a sufficient affidavit; that some were duplicates; that there were 7,263 valid signatures, or 545 more than a majority; and that the statement was sufficient. Plaintiff appeals. Reversed.Popham & Havener, of Marengo, for appellant.

E. T. Morris, T. L. Sellers, Guernsey, Parker & Miller, and Thomas J. Guthrie, Co. Atty., all of Des Moines, for appellee.

PRESTON, J.

1. Appellee's motion to affirm, which was submitted with the case, will be first disposed of. It is finally conceded in the record that defendant's name is I. A. Potwin. Appellant first served a notice of appeal December 9, 1911, as follows:

“In the District Court of Iowa, in and for Polk County.

W. J. Pilkington v. I. N. Potwin.

Notice of Appeal.

To I. N. Potwin, or to Thomas Sellers, E. T. Morris, Guernsey, Parker & Miller, Attorneys for Defendant, and to the clerk of the District Court in and for Polk County, Iowa: You and each of you are hereby notified that W. J. Pilkington has appealed from the whole of the judgment rendered in the above-entitled case, which judgment is found of record in District Court Journal 93, at pages 518 and 519, of Polk county, Iowa, and has appealed from each and every ruling made throughout the trial of said cause made adverse to said W. J. Pilkington. Said appeal will come on for hearing at the January term of the Supreme Court of Iowa, which court convenes on the second Tuesday of January, 1912. Popham & Havener, Attorneys for W. J. Pilkington.”

The acceptance of service by the attorneys was as follows:

“State of Iowa, County of Polk--ss.:

We, the undersigned, attorneys for I. N. Potwin, hereby accept service of the foregoing notice of appeal and acknowledge receipt of two copies of the same this 9th day of December, A. D. 1911. Guernsey, Parker & Miller, E. T. Morris, T. L. Sellers, Attorneys for I. N. Potwin.”

The name I. N. Potwin, as it first appears in the acceptance, is written or printed with a typewriter and was evidently prepared by counsel for appellant; the same name, as it appears after the signatures of counsel, is written with pen and ink and appears to be (from an inspection of the original which has been certified) in the same handwriting as the signatures of counsel. It should be observed that the notice is not addressed to I. A. Potwin, nor does that name appear in the notice or acceptance, and attorneys do not accept service for such a person or for the defendant. The case was docketed in the office of the clerk of this court as No. 28,829.

Another notice of appeal was served May 9, 1912, and is entitled W. J. Pilkinton, Plaintiff, v. I. A. Potwain, Defendant, and is addressed to I. A. Potwain, or I. A. Potwin, or L. A. Potwain, or I. N. Potwin, or attorneys of record, etc. The body of this notice is substantially the same as the first one, except that in it this clause appears: “In some places in the record in the above-entitled cause the name of the defendant is written I. A. Potwain, I. A. Potwin, I. N. Potwin, or L. A. Potwain, but all of said names are intended for one and the same person.” The attorneys accepted service for defendant. Under this notice the case was separately docketed here as No. 28,926. This was served within six months from the date of the judgment.

July 20, 1912, appellee filed a motion to affirm, under rule 39, § 4120, of the Code, on the ground that the notice of appeal was served and filed December 9, 1911, and that the first term of the Supreme Court convening thereafter was January 9, 1912, and the second term thereafter convened on May 7, 1912; that the second term after notice of appeal was served was the May term, 1912, and appellant has failed to file an abstract of record. A copy of the first notice of appeal, and the service and return thereof, together with a copy of the judgment, was attached to the motion.

On August 7, 1912, appellant filed a dismissal, to which was attached a copy of the first notice of appeal. The dismissal is as follows:

“In the Supreme Court of the State of Iowa.

W. J. Pilkington v. I. N. Potwin.

Dismissal of Appeal under Notice Filed with the Clerk of the District Court of Iowa, in and for Polk County, on December 9, 1911.

To the Supreme Court of the State of Iowa, or to any Judge Thereof, or to the Clerk Thereof: Comes now W. J. Pilkington, appellant in the above-entitled matter, and dismisses his appeal, without prejudice, taken under and by virtue of the notice filed December 9, 1911, with J. P. Maher, clerk of the district court of Iowa, in and for Polk county, said notice and service thereof being in the words and figures as set out in Exhibit A hereto attached. You are hereby directed to make the entry of such dismissal of said appeal in said cause, and this is your authority therefor. Dated this 6th day of August, 1912. Popham & Havener, Attorneys for W. J. Pilkington, Appellant.”

This dismissal was filed in the case docketed as No. 28,829. Appellee refiled the motion to affirm. Under date of September 18, 1912, the record is: “First appeal in the case having been dismissed August 7, 1912, the motion of appellee to dismiss the second appeal is overruled.” Later a rehearing was granted, and the case now stands on appellee's motion to affirm, and the only ground stated in the motion is that the abstract was not filed in time. Under the statutes and the method therein prescribed for computing time, we think the motion was not well taken on that ground. But it is not necessary to determine that question now because there was a dismissal of whatever rights appellant acquired, if any, under the first notice. The question now, or at least one question, is as to the effect of such dismissal. The question has been fully argued whether, under the entire record, the court has jurisdiction to hear and determine the appeal doubtless on the theory that such a question may be raised at any stage of the proceedings.

The contentions of the appellee are substantially that the first notice was good and was the only valid appeal then pending; that the mistake in the middle initial of appellee's name did not constitute a defective notice because the notice intelligently referred to the judgment, book and page where recorded, was served upon the attorneys for appellee, and in other respects was sufficient; that appellant dismissed his appeal August 7, 1912; that when an appeal is perfected by service of notice the cause is transferred to this court; that, after an appeal has been perfected, it is pending in this court until dismissed, and, while so pending, the service of a second notice of appeal is nugatory and adds nothing to this court's jurisdiction and is therefore of no force; that he had a right to have a ruling on his motion to affirm; and that he may not be deprived of the right to have the Supreme Court exercise its discretion of dismissing or affirming.

Appellant contends that the motion to affirm should be overruled and the case decided upon its merits because the first notice of appeal was not a notice as provided by law; that the first notice of appeal was not addressed to the appellee, I. A. Potwin; that in the first notice of appeal the attorneys accepted service, not as the attorneys for I. A. Potwin, but as the attorneys for I. N. Potwin; that the appellant has a right to dismiss his first appeal, even though appellee's motion for affirmance is filed, and to serve a notice of his second appeal, if the same is done within six months; that, even if the first notice of appeal was sufficient, it had ceased to have any operation or effect when the second notice was served; and that a failure to file the abstract under the first notice for the May term, 1912, caused the first notice of appeal to be of no effect.

[1] It is not disputed by appellant that, where a proper notice of appeal has been served and the appeal perfected, the lower court loses jurisdiction and the cause is transferred to this court. It has been held that a subsequent appeal by the same party, while such former appeal is pending, is nugatory. State v. King, 6 S. D. 297, 60 N. W. 75;Newbury v. Lumber Co., 106 Iowa, 140, 153, 76 N. W. 514;Stutsman v. Sharpless, 125 Iowa, 335, 101 N. W. 105. In Newbury's Case the court said that when the second notice of appeal was served the cause was pending in this court, and the second notice added nothing to the jurisdiction which this court then had of the case or to its power to grant relief. We apprehend this is so because the first notice was sufficient to give this court jurisdiction. The case cited assumes that...