Lambert v. Moore ( 1865 )

The opinion of the Court was rendered by

Beattv, J., Beos--NAN, J.,

concurring.

Chief Justice Lewis did not sit in this case, for the reason that he was counsel in the Court below.

This was an action brought in the Probate Court of Washoe County, for the recovery of a certain piece of land. The cause was tried in that Court and judgment rendered in favor of respondent on the 11th day of November, 1864, for restitution of the premises described in his complaint.

It appears from the minutes of the Court that upon the announcement of the judgment of the Court, the appellant gave notice of appeal, and procured an order to be made staying proceedings for ten days, that he might make his statement on appeal.

On the 19th a bond on appeal to the District Court was executed and filed.

On the 26th a statement on appeal was filed.

When tbe case came on for bearing in tbe District Court, tbe counsel for respondent moved to dismiss tbe appeal. Upon wbat ground tbis motion was based or urged is not disclosed by tbe record.

Tbe Court overruled tbe motion to dismiss, but decided tbe case upon its merits in favor of respondent.

In tbe argument in tbis Court, respondent urges tbe point tbat there was no appeal from tbe Probate Court to tbe District Court; tbat tbe District Court bad no jurisdiction of tbe case, and should have dismissed tbe appeal on motion. Tbis view of tbe case is based on two clauses of tbe Practice Act. Section 215, which relates to appeals in general, is in these words: “ Tbe appeal shall be made by filing with the Clerk of tbe Court, with whom tbe judgment or order appealed from is entered, a notice stating tbe appeal from tbe same, or some specific part thereof, and serving a coisy of the notice upon tbe adverse party or bis attorney.”

There is no written notice of appeal shown to exist, by tbe transcript; there is no attempt by affidavit or otherwise to show tbe loss of such a paper. Tbe appellant relies simply upon a recital in tbe minutes of tbe Court, tbat such a notice bad been given. Admitting, for tbe argument, that the minutes of tbe Court, if they clearly recited tbe facts of tbe filing, service, etc., of notice of appeal, would dispense with tbe necessity of producing a copy of tbe notice, evidence of its service, etc., let us see wbat these minutes do show. The-language is as follows:

“Defendant’s counsel gave notice of appeal, and it was ordered tbat proceedings be stayed for ten days, to enable defendant’s counsel to make a statement.”

Tbis recital, with tbe most liberal construction, could hardly be made to convey tbe idea tbat defendant’s counsel bad filed a written notice of appeal with tbe Clerk, and served a copy thereof on the adverse party, as be was by law required to do, in order to make an appeal.

There is a total absence of even an intimation that such notice, if given, bad been served on the opposite party. But tbe conclusion we come to from tbe reading of these minutes, is, tbat tbe defendant, on tbe rendition of judgment, announced in open Court bis intention to appeal, and based upon that announcement a request for stay of proceedings..

This would certainly be a proper practice. The intention expressed by counsel would be a sufficient ground to induce a Court under ordinary circumstances to grant a reasonable stay of proceedings.

This announcement of intention is probably the notice of appeal alluded to in the minutes. Such an announcement, however fully entered in the minutes, and although made in the presence of the opposite party (which is not affirmatively shown in this case), would not be a compliance with section 275 of the Practice Act, and would not make an appeal.

In addition to the defective notice of appeal, there is another fatal defect in this case.

Section 286 of Practice Act is in these words: “ To render an appeal effectual for any purpose, in any case, a written undertaking shall be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, not exceeding three hundred dollars; or that sum shall be deposited with the Clerk with whom the judgment or order was entered, to abide the event of the appeal. Such undertaking shall be filed or such deposit made with the Clerk within five days after the notice of appeal is filed.”

Now, if the minutes of the Court show a notice of appeal was so given qs to make an appeal, it must have been given at or before the fime of making the minutes referred to. These were made on the lltli of November. The bond on an appeal was not filed until the 19th of November, or more than five days after the notice. The language of this section is explicit, and it has been held in California, under the section of their Act, from which ours is copied, that if more than five days intervened between the notice and bond or undertaking, the whole proceeding is void, and no appeal is perfected.

Ve hold, then, that there never was an appeal perfected from the Probate Court to the District Court. The judgment of the Probate Court stood just as if there never had been any attempt to appeal. Execution may issue on that judgment as on any other judgment of the Probate Court.

Tbe District Court never bad jurisdiction of tbe case as an appellate Court, and consequently tbis Court bas none. Tbe cause will be stricken from tbe calendar and no judgment entered herein.