Wambach v. Grand lodge of Iowa

• Decision Date: 19 May 1893
• Citation: 55 N.W. 516,88 Iowa 313
• Parties: WAMBACH v. GRAND LODGE OF IOWA, LEGION OF HONOR.
• Court: Iowa Supreme Court

88 Iowa 313

55 N.W. 516

WAMBACH

v.GRAND LODGE OF IOWA, LEGION OF HONOR.

Supreme Court of Iowa.

May 19, 1893.

Appeal from district court, Hamilton county; J. L. Stevens, Judge.

Action on a beneficiary certificate. Judgment for plaintiff, and the defendant appealed.J. L. Kamrar and A. St. Clair Smith, for appellant.

Wesley Martin and Geo. Wambach, for appellee.

GRANGER, J.

It is suggested by appellee that the abstract is an affirmative showing that the court is without jurisdiction. An appeal must be taken “within six months from the rendition of the judgment or order appealed from; not afterwards.” Code, § 3173. Time, in taking an appeal, is a jurisdictional fact. It must affirmatively appear. Where the jurisdictional facts do not appear, the appeal must be dismissed. Plummer v. Bank, 74 Iowa, 731, 33 N. W. Rep. 150. Appearance does not cure the defect. State v. Clossner, (Iowa,) 51 N. W. Rep. 16, and authorities there cited. The abstract shows that upon the filing of the answer, February 9, 1891, “this action came on for trial to a jury,” etc. At the conclusion of the evidence the court sustained a motion to take the case from the jury, and enter judgment for the plaintiff. This is the only showing in the abstract as to the date of the judgment. The abstract then shows that “on the 15th day of December, 1891, the defendant appealed to this court, by serving notice,” etc. It thus appears from the abstract that the appeal was taken some 10 months after the judgment or order appealed from. We are in such a case entirely without jurisdiction. Of our own motion, we are required, before trial, to “see to it” that a case is one of which we have jurisdiction. Plummer v. Bank, supra.

The appeal must be, and is, dismissed.