State v. Teissedre , 30 Kan. 210 ( 1883 )

The opinion of the court was delivered by

Horton, C. J.:

The defendant was convicted of keeping and maintaining a common nuisance in violation of the act prohibiting the manufacture and sale of intoxicating liquors, except for certain specified purposes. Judgment was rendered on the'25th day of October, 1881, and on the next day he attempted to take an appeal by service of a notice upon the clerk of the court where the judgment was entered, stating that he appealed from the judgment, and by serving a similar notice at the same time upon the prosecuting attorney. The transcript was not filed within thirty days after the service of the notice of appeal, and not until July 31, 1882. The defendant alleges that Subsequently, and on August 10, 1882, a few days after the filing of the transcript in this court, another notice of appeal was served upon the clerk of the court where the judgment was rendered, and that on the same day a similar notice was served upon the prosecuting attorney. The transcript in this court fails to show any notice of appeal or service thereof other than the notice served on October 26, 1881. On the 2d day of September, 1882, the defendant filed with the clerk of this court two papers not entitled in this case in this court, but entitled in the case in the district court of Cloud county, purporting to be ac- • knowledgments of service of notice of appeal by the clerk and prosecuting attorney. They were never filed in the district court of Cloud county, and have not been certified by the clerk of the court to be a part of the record of that court relating to this case. Neither the clerk of the district court of Cloud county nor the prosecuting attorney of that county has personally appeared in this court and waived notice of appeal, nor has any evidence been presented to us that the signatures of the parties acknowledging service of the notice of appeal are genuine.

On December 29, 1882, a motion was filed in this court by the state to dismiss the appeal, for the reason that the transcript had not been filed within thirty days after servicé of the notice of appeal of October 26, 1881. This motion came on for hearing at the January sitting of this court for 1883, and was overruled. At that time our attention was not directed to the omission in the transcript of the notice of appeal pretended to have been served August 10,1882, nor was any suggestion made of the insufficiency of the proof of the notice of appeal. On the other hand, at that time it seemed to be conceded that service of the notice of appeal had been properly made on August 10, 1882, and that- due proof of the service of the notice of appeal was before this court. The motion was denied, solely upon the ground that to perfect an appeal and give this court jurisdiction in a criminal action to review the decision of the trial court or some intermediate order thereof, not only is service of the notice of the appeal on the clerk and prosecuting attorney requisite, but this is to be supplemented by the filing of the transcript within thirty days after the service of the notice, (The State v. McEwen, 12 Kas. 37; McLean v. The State, 28 id. 373;) and that until the transcript is filed in this court there can be no suspension of the judgment of the district court or-any stay of execution of that court, even when the judgment is for a fine only, as the appeal is in no condition to be heard or disposed of upon its merits. The motion of December 29th is renewed.

It is also suggested in connection therewith, that the papers filed with us on September 2, 1882, ought to have been filed in the district court of Cloud county, and in the absence of proof of the signatures thereto are not to be considered by this court. The objections to the pretended service of the notice of appeal of August 10, 1882, are well taken. If the record in this court does not show that the notice of appeal has been served, this court has no jurisdiction to act, and the case must be dismissed. (Carr v. The State, 1 Kas. 334; The State v. King, 1 id. 466.) The criminal code provides for proof of notice of appeal to the appellee before the appeal is tried. (Criminal Code, §289.) As the service of the notice of appeal on the clerk and the attorney is a necessary step in the appeal and an important part of the record, it should appear in the transcript filed, that this court may see and its records show it has jurisdiction of the cause. (Carr v. The State, supra.) If this notice does not appear in the transcript filed, then there should be an express waiver of the notice of appeal by the clerk and prosecuting attorney. (The State v. Boyle, 10 Kas. 113.) Or, if this is not done, there should be satisfactory proof to us of the service of the notice of appeal. We cannot take judicial notice of the genuineness of the signatures to the notice of appeal filed in this court on September 2, 1882, and such papers, being entitled in the cause in the district court of Cloud county, ought not to have been filed here. These papers should have been filed in the court below, where they belong, and then brought to this court in the transcript. If filed here at all, they should be accompanied with due proof of the genuineness of the signatures thereto. With this view of the papers filed September 2, 1882, we cannot hold that the notice of appeal was served August 10, 1882, and therefore the so-called service of appeal of that date must be disregarded. The transcript was not filed in this court within thirty days after the service of the notice of appeal of October 26, 1881, and the objections now made to the record must prevail, and the appeal be dismissed. •

, The judgment of the district court will be carried into execution.

Valentine, J., concurring.