Stolt v. Chi., M. & St. P. Ry. Co.
| Decision Date | 25 April 1892 |
| Citation | 49 Minn. 353,51 N.W. 1103 |
| Court | Minnesota Supreme Court |
| Parties | STOLT v CHICAGO, M. & ST. P. RY. CO. |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
1. The proof, filed with a justice of the peace, of the service of a notice of appeal from a judgment rendered by such justice, is of no effect if it shows only a delivery of the notice to the wife of the person upon whom service should be made, without showing that such substituted service was “at the residence” of such person.
2. The filing of proof of a legally effectual service of the notice of appeal is jurisdictional, and a failure to comply with the statute cannot be cured by amendment after the time to appeal has expired.
Appeal from district court, Traverse county; BROWN, Judge.
Action by E. M. Stolt against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.
W. H. Norris, for appellant.
J. Bohmbach, (F. W. Rent, of counsel,) for respondent.
The affidavit of the service of notice of appeal which was filed with the justice of the peace was insufficient to show a service which can be recognized as having any legal effect. The statute (Gen. St. 1878, c. 65, § 114) allows service to be made otherwise than personally, by leaving a copy of the notice “at the residence” of the person to be served. The affidavit of service in question shows that a copy of the notice was delivered to the wife of the person upon whom service was sought to be made, but it does not show that this was at the residence of such person. The justice having allowed the appeal, it was dismissed in the district court, a motion for leave to amend the proof of service having been refused. The rulings of the district court were in accordance with the construction which has always been put upon our statute regulating appeals from justice's court. Effect has been given to the statute according to its somewhat strict terms. What is there prescribed as requisites, without compliance with which “no appeal shall be allowed,” have been regarded as jurisdictional proceedings, and, unless complied with, no appeal is effected, and the district court acquires no jurisdiction. It was so held as to the filing of the prescribed affidavit,-McFarland v. Butler, 11 Minn. 72, (Gil. 42;)Knight v. Elliott, 22 Minn. 551;-as to the payment of the justice's fees,-Trigg v. Larson, 10 Minn. 220, (Gil. 175;)-and as to the service of a notice of appeal, and the filing of the same, with proof of...
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