Smith v. Kistler

• Citation: 86 N.W. 876,84 Minn. 102
• Parties: SMITH v. KISTLER.
• Decision Date: 28 June 1901
• Court: Minnesota Supreme Court

84 Minn. 102

86 N.W. 876

SMITH

v.KISTLER.

Supreme Court of Minnesota.

June 28, 1901.

Appeal from district court, Hennepin county; C. B. Elliott, Judge.

Action by J. F. Smith against James Kistler. Judgment before a justice for plaintiff, and appeal therefrom was dismissed, and defendant appeals. Affirmed.

Syllabus by the Court

1. A notice of appeal from a justice judgment should state specifically the grounds upon which such appeal is taken, whether ‘upon questions of law alone, or upon questions of fact alone, or upon questions of both law and fact,’ and an omission to state any ground of appeal is fatal to the efficiency of the same.

2. Docket entries of a justice, certified to the district court by the justice on appeal, are not conclusive as against jurisdictional facts contained in the notice itself.

3. A certificate of a justice, on appeal, that all papers have been returned, will be presumed to refer to the only notice found in the files so returned, and, if its identity is questioned, the burden is upon the party who denies it to secure an amended return, if necessary to determine that question. F. A. Gilman, for appellant.

Castner & Grotte, for respondent.

LOVELY, J.

Plaintiff recovered a judgment before a justice of the peace in Hennepin county. Defendant attempted to appeal therefrom. The district court dismissed the appeal upon the ground that no proper notice thereof had been served and filed with the justice as required by law. The only notice of appeal contained in the return, upon which an admission of service by plaintiff's counsel was indorsed, omitted any statement of the grounds of appeal, in disregard of the requirements of the statute to state therein ‘whether it is taken upon questions of law alone, or upon questions of fact alone, or upon questions of both law and fact.’ Section 5068, Gen. St. 1894. This omission was held to be fatal, and insufficient to confer jurisdiction to review the action on any ground by the district court. The appeal was dismissed, and the judgment entered therein is brought here for review.

The due service of a proper notice of appeal, filed with the justice within the time required after the judgment, is essential to give the district court jurisdiction to hear and determine the cause. McFarland v. Butler, 11 Minn. 72 (Gil. 42); Larrabee v. Morrison, 15 Minn. 196 (Gil. 151); Marsile v. Railway Co., 23 Minn. 4;Stolt v. Railway Co., 49 Minn. 353, 51 N. W. 1103;Looney v. Drometer, 69 Minn. 505, 72 N. W. 797. The designation of the grounds of appeal in the notice is undoubtedly required for a very substantial purpose, viz. to give the opposite party information whether the cause should be tried de novo, and, if so, to enable him to summon witnesses and prepare for trial; or if it should be heard, as formerly, on certiorari, upon the rulings and orders of the justice that no such preparation need be made. The appealing party has the right, by his notice of appeal, to determine in which form the cause shall be reviewed, and the manifest purpose of the statute was...