Spitzhak v. Regenik
| Decision Date | 11 July 1913 |
| Citation | 122 Minn. 352,142 N.W. 709 |
| Parties | SPITZHAK v. REGENIK et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Stearns County; C. A. Nye, Judge.
Action by Susanna Spitzhak against John Regenik and others. From judgment for plaintiff, defendants appeal. Reversed.
Under Revised Laws 1905, s 3982, a notice of appeal from justice court must be served personally or by leaving a copy at the residence of the person served. Leaving a copy at the office of such person is not sufficient.
The proper service of a notice of appeal and the filing of proper proof thereof are essential to the jurisdiction of the district court.
In an action of which the district court has original jurisdiction, defects in the proceedings to perfect an appeal may be waived by a general appearance of the respondent in district court.
Presence in court at a general term call of the calendar, when the case is set for trial, without either participation or objection, does not constitute a ‘general appearance.’ J. D. Sullivan and J. B. Pattison, both of St. Cloud, for appellants.
Bruener & Ahles, of St. Cloud, and M. J. Daly, of Perham, for respondent.
This is an action in replevin, commenced in justice court. The justice found for the defendant. Plaintiff prepared a notice of appeal to the district court in regular form. In the record is an affidavit of one Ahles that ‘he served the within notice of appeal upon J. D. Sullivan, attorney for defendant herein, by delivering to and leaving at his office a true and correct copy thereof.’
[1] 1. This service was not sufficient. The statute provides that ‘the party appealing shall serve a notice upon the opposite party, his agent or attorney,’ and that ‘such notice shall be served by delivering a copy thereof to the person upon whom service is made, or by leaving a copy at his residence,’ Rev. Laws 1905, § 3982. The leaving of a copy at the office of the person served is palpably not a compliance with this statute.
[2] 2. The proper service of a notice of appeal and the filing of proper proof thereof are essential to the jurisdiction of the district court, and jurisdiction was not conferred upon the district court by this appeal. Stolt v. C., M. & St. P. Ry. Co., 49 Minn. 353, 51 N. W. 1103;Treat v. United Order of Foresters, 109 Minn. 110, 123 N. W. 62.
[3] 3. We entertain no doubt that in a case of this sort any of the steps necessary to perfect an appeal may be waived by a general appearance of the respondent in district court. The question of jurisdiction relates solely to jurisdiction over the person, and not to jurisdiction over the subject-matter. The subject-matter of the action is a few turkeys of the value of $25, and the action is replevin. The district court has ample jurisdiction to entertain a cause involving this subject-matter and to entertain this form of action. It possessed both original and appellate jurisdiction as to such matters. All that was necessary was that the parties be properly before it. The parties could be brought before it, either by a summons in an action commenced in district court, or by a regular appeal from a justice court which possessed jurisdiction. If the summons is not served in such manner as to give the court jurisdiction, a general appearance waives such defect...
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