Stierlen v. Stierlen
| Decision Date | 18 April 1899 |
| Citation | 78 N.W. 990,8 N.D. 297 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Burleigh County; Winchester, J.
Action by George Stierlen against Emma Stierlen. From an order vacating judgment for plaintiff, he appeals.
Dismissed.
Appeal dismissed.
Boucher Philbrick & Cochrane (W. P. Miller, of counsel), for appellant.
Edward S. Allen and Eugene F. Burt (W. H. Barnett, of counsel), for respondent.
In this action the trial court entered a judgment in plaintiff's favor for a divorce from the bonds of matrimony, on the 17th day of November, 1896. Subsequently and after notice and a hearing in the trial court, that court entered an order vacating such judgment. Written notice of said order was served on counsel for the plaintiff on March 30, 1898. From the order vacating the judgment, plaintiff has attempted to appeal to this Court. Counsel for plaintiff with that object in view, and within the time limited by statute, to-wit, on May 12, 1898, served on defendant's counsel a proper notice of appeal from said order; but counsel omitted to file such notice, or any notice of appeal with the clerk of the District Court for Burleigh county within the statutory period of 60 days, and such notice was not filed with the clerk until July 23, 1898, at which date it was so filed. Upon the filing of said notice, the clerk of the District Court transmitted the record to this Court, and at a term of this Court, held at Fargo on March 28, 1899, the plaintiff, by his counsel, appeared and made application to this Court, under section 5606, Rev. Codes, for the settlement of a statement of the case, to be used in connection with such appeal. This application was opposed upon numerous grounds, none of which are now important, save one, which will be presently considered, and which we deem decisive of the case in this Court for jurisdictional reasons.
Defendant's counsel calls attention to the state of the appeal record and contends that, inasmuch as no appeal is pending in this Court, this Court is without authority to settle a statement, or take any action whatever in the case. In our opinion, this contention must be sustained. We are of the opinion that the failure to file the notice of appeal with the clerk of the District Court, within the time fixed by statute for taking an appeal from an order of the District Court, is fatal to the appeal. After fixing a time within which the appeal must be taken (Rev. Codes, § 5605), the statute proceeds to point out the particular steps which are essential in taking an appeal to this Court from an order or judgment entered in the District Court. These steps are two in number. Section 5606 is as follows: "An appeal must be taken by serving a notice in writing, signed by the appellant or his attorney, on the adverse party, and filing the same in the office of the clerk of the court in which the judgment or order appealed from is entered." It will be noticed that this statute nowhere declares that either one of these two prerequisite steps is more important than the other in the process of taking an appeal; nor is there an intimation in the statute that either the service or filing of the notice can be postponed, under any circumstances, to a date beyond the limit fixed by statute for taking an appeal. If the filing may be postponed, we are unable to see any sound reason why the service of the notice should not also be postponed, to meet the exigencies of cases. Questions of practical convenience cannot control the matter; but, if they could do so, we are inclined to think that notice to the clerk of taking an appeal is of as much practical importance as notice to the party. Until the clerk receives notice officially that an appeal is taken, he cannot safely proceed to perform his further duties with respect to the action. The statutory language which we have quoted is an innovation upon the pre-existing practice, made by the Revised Codes. Before being amended, the statute required two distinct services of the notice of appeal,--one, upon the party; the other, upon the clerk of the District Court. See Comp. Laws, § 5215. This Court has held, in accordance with the weight of authority, that under the original statute both services were essential, and one as much as the other. It has been held in Minnesota, however, under a similar statute, that a service upon the clerk could be accomplished by a mere filing of the notice with him, with proof of service upon the party. This ruling is tantamount to saying...
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