Valley Land & Irrigation Co. v. Schone

• Decision Date: 24 November 1891
• Citation: Valley Land & Irrigation Co. v. Schone, 2 S.D. 344, 50 N.W. 356 (S.D. 1891)
• Court: South Dakota Supreme Court
• Parties: Valley Land & Irrigation Co. v. Schone et al.

2 S.D. 344

50 N.W. 356

Valley Land & Irrigation Co.

v.Schone et al.

Supreme Court of South Dakota.

Nov. 24, 1891.

Syllabus by the Court.

1. The statute (section 5215, Comp. Laws) prescribes the way by which a case may be transferred for review from the trial court to this court, and the jurisdiction of this court depends upon compliance with its provisions.

2. It is just as essential that the notice of appeal be served upon the clerk as upon the adverse party, and filing such notice in the clerk's office does not constitute such service upon the clerk.

3. The appellate jurisdiction of this court will not be presumed, but must affirmatively appear from the record.

4. The printed abstract prepared and served by appellants, and consented to by respondent, is the record upon which a case is heard in this court, and such abstract must affirmatively show the jurisdiction of this court, or the appeal will be dismissed.

Appeal from circuit court, Grant county; J. O. Andrews, Judge.

Action by the Valley Land & Irrigation Company against Alexander W. Schone and others for an injunction. The injunction was granted, and defendants appeal. Appeal dismissed.Glass & Van Buskirk and A. M. Weeden, for appellants. John L. Pyle, for respondent.

KELLAM, P. J.

Respondent moves to dismiss this appeal upon two grounds, the first of which only will be noticed. The motion in respect to the ground to be considered is based upon the original records and papers sent up from the trial court,- more particularly upon the notice of appeal and the proof of service thereof, and upon appellants' printed abstract,-and is urged upon the ground that neither the original record and papers nor the printed abstract show that the notice of appeal was served upon “the adverse party and upon the clerk of the court in which the judgment or order appealed from is entered.” The original papers-and we examine them because by the notice they and the printed abstract are the papers upon which the motion to dismiss is to be heard-show that the notice of appeal was served on respondent's attorneys, but they do not show that it was served on the clerk of the court. It only appears that it was filed in his office. Section 5215, Comp. Laws, prescribes the manner in which and means by which a case may be transferred for review from the trial court to this court, and the jurisdiction of this court depends upon compliance with its provisions. It was just as essential that the notice of appeal be served on the clerk as on respondent, and simply filing the notice in the clerk's office did not constitute such service upon him. Peck v. Phillips, (Dak.) 34 N. W. Rep. 65....