Seiffert v. Police Commission of City of Helena

• Decision Date: 17 July 1964
• Docket Number: No. 10729,10729
• Citation: 394 P.2d 172,144 Mont. 52
• Parties: Roy E. SEIFFERT, Petitioner and Respondent, v. The POLICE COMMISSION OF the CITY OF HELENA, State of Montana, and Fred P. Pfeiffer, James F. Neely, and Michael J. Hughes, constituting the members of said Police commission, Respondents and Appellants, and The City of Helena et al., Respondents and Appellants.
• Court: Montana Supreme Court

Page 172

394 P.2d 172

144 Mont. 52

Roy E. SEIFFERT, Petitioner and Respondent, v. The POLICE COMMISSION OF the CITY OF HELENA, State of Montana, and Fred P. Pfeiffer, James F. Neely, and Michael J. Hughes, constituting the members of said Police commission, Respondents and Appellants, and The City of Helena et al., Respondents and Appellants.

No. 10729.

Supreme Court of Montana.

Submitted July 13, 1964.

Decided July 17, 1964.

Michael G. Chilton, City Atty., Helena, for appellants.

Lloyd J. Skedd, Helena, for respondent.

PER CURIAM.

In this cause a motion to dismiss the appeal was filed by the respondent on the ground that the appellants failed to perfect their appeal within six months after entry of judgment.

It appears that judgment was entered on December 17, 1963; a notice of appeal was filed in the district court on December 30, 1963, but no service thereof was made upon the respondent. On June 23, 1964, respondent served on appellants and filed in this court his motion to dismiss, together with a motion to quash writ of supersedeas heretofore issued by this court on December 30, 1963. Following service of such motions, and on the same day, June 23, 1964, appellants served a copy of their notice of appeal upon the respondent, being more than six months after entry of the judgment.

R.C.M.1947, Sec. 93-8004, provides that an appeal from a final judgment in an action or special proceeding may be taken within six months after the entry thereof.

R.C.M.1947, Sec. 93-8005, provides the method of taking an appeal in these words:

'An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party, or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless, within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing.'

In Creek v. Bozeman Water Works, 22 Mont. 327, 56 P. 362, decided in 1899, this court stated: 'The statutory provisions regulating the manner of taking and perfecting appeals must be strictly pursued.' Through a succession of opinions covering sixty-five years this court has never deviated from that holding.

Mr. Justice Matthews in Mitchell v. Banking Corporation, 81 Mont. 459, 465, 264 P. 127, 129, stated it in these words:

'The statutory provisions prescribing the mode of taking an appeal are mandatory and must be complied with or the appellate court acquires no jurisdiction of the matter. Creek v. Bozeman Water Works, Co., 22 Mont. 327, 56 P. 362; Hines v. Carl, 22 Mont. 501, 57 P. 88; Washoe Copper Co. v. Hickey, 23 Mont. 319, 58 P. 866; Featherman v. Granite County, 28 Mont. 462, 72 P. 972.

'The objections raised by the motion to dismiss therefore go to the jurisdiction of this court to hear and determine the appeal, and, if any one of them is well taken, or, in other words, if it appears from the record that any of the mandatory provisions of the above statute have not been complied with, we have no alternative to a dismissal of the appeal. Milliken v. Houghton, 75 Cal. 539, 17 P. 641; Seibert v. First Nat. Bank, 25 Okl. 778, 108 P. 628; Berlin Machinery Works v. Bradford-Kennedy Co., 21 Idaho, 669, 123 P. 637.'

In Endresse v. Van Vleet, 118 Mont. 533, 169 P.2d 719, Mr. Justice Adair reiterated such holding in these words:

'It is elementary that the first question which must be determined by a court in every case is that of jurisdiction. Fitzpatrick v. Sonoma County, 97 Cal.App. 588, 276 P. 113; Welsh v. Koch, 4 Cal.App. 571, 88 P. 604. In fact it is the duty of a court to examine its jurisdiction, whether raised by any party or not, and sua sponte to determine its own jurisdiction. Williams v. Sherman, 36 Idaho 494, 212 P. 971; McNee v. Hart, 117 Okl. 220, 246 P. 373; Kramer v. Pixton, 72 Utah 1, 268 P. 1029, 1031; Luckenbach v. Krempel, 188 Cal. 175, 204 P. 591; Kreiss v. Hotaling, 96 Cal. 617, 31 P. 740.

"The methods of taking appeals, being statutory and jurisdictional, must be followed, in order to give this court jurisdiction to entertain the appeal.' Featherman v. Granite County, 28 Mont. 462, 464, 72 P. 972, 973. 'The appellant is charged with the duty of perfecting his appeal in the manner provided by law, and error in this regard affects the jurisdiction of the appellate court.' Clarke v. Swartz, 87 Mont. 1, 285 P. 177, 178.'

In In re Malick's Estate, 124 Mont. 585, 589, 228 P.2d 963, 965, Mr. Chief Justice Adair restated the principle in these words:

'The appellant is charged with the duty of perfecting his appeal in the manner and within the time provided by law and unless such mandatory statutory provisions are complied with this court acquires no jurisdiction to entertain and determine the appeal. Endresse v. Van Vleet, supra; Reardon v. Gilligan Mont. , 202 P.2d 242; Clarke v. Swartz, 87 Mont. 1, 2, 285 P. 177; Mitchell v. Banking Corporation of Montana, 81 Mont....