Territory v. Hanna

• Decision Date: 31 August 1884
• Citation: Territory v. Hanna, 5 Mont. 246 (Mont. 1884)
• Parties: TERRITORY v. HANNA.
• Court: Montana Supreme Court

5 Mont. 246

TERRITORY

v.HANNA.

Supreme Court of the Territory of Montana.

August Term, 1884.

Motion to dismiss an appeal.

I. D. McCutcheon, for appellant.

J. A. Johnston, Atty. Gen., for respondent.

WADE, C. J.

The plaintiff moves the court to dismiss the appeal herein for the reason that no notice of appeal was served upon the clerk as the statute requires, and that the transcript was not filed within the time provided by law. Our statute provides that an appeal in a criminal case is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant a similar notice must be served upon the attorney prosecuting. Appeals are matters of statutory regulation. There must be a substantial compliance with the statute in order to confer jurisdiction upon the appellate court. 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. Courtright v Berkins, 2 Mont. 404.

An appeal can only be taken from the district court to the supreme court by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. Unless the notice is served there is no appeal. A notice directed to the attorney prosecuting, and served upon him and filed with the clerk, is not the service of notice upon the clerk. The clerk is not presumed to know the contents of papers filed with him, addressed to other persons, and of which he is simply the custodian. The times at which, and...