Bond v. Davis , 37 Iowa 163 ( 1873 )

Cole, J.

The circuit court did not err in overruling the motion to dismiss the appeal. The statute nowhere declares that service of a notice of the appeal is necessary to perfect it; nor does it authorize the dismissal because of a failure to give such notice. Whereas, it does declare that upon filing the transcript the cause will be deemed in the district court (Rev., § 3926), and also that if the notice is not served at least ten days before the term to which the cause is returnable, the suit may, on motion of the appellee, be continued at the costs of the appellant. Rev., § 3930. The statute having fixed the consequences of a failure to serve the notice in proper time, it amounts to an implied negation of other consequences — eapressio uninis exclusio alterius. The fact that the cause was continued at the first term, on motion of the appellant, instead of the appellees, would not affect the rights of the parties. See, as bearing upon the case, McCormick v. Bishop, 3 G. Greene, 99; Coon v. Matthews et al., 10 Iowa, 290; Mediken v. Mason & Co., id. 406 ; Quillan v. Windsor, 6 id. 396.

Affirmed.