Hunsaker v. Harris ( 1910 )

STRAUP, O. J.

Tbis is an action brought in the district court for forcible entry and detainer. Upon a trial of the issues a motion of nonsuit was granted' and a judgment rendered on the 4th day of March, 1909. The judgment was entered on the day following. It does not appear that a motion for a new trial was made. The judgment of nonsuit, therefore, became final on the 5th day of March, 1909. On the 24th day of June, 1909, a notice of appeal was served and filed by the plaintiff, appealing from that judgment to this court. A motion is here made to dismiss the appeal on the ground that the appeal was not taken within time.

By our Code of Civil Procedure the rights and remedies in an action of forcible entry and detainer are defined and the procedure prescribed. It is there provided (section 3586, Comp, laws 1907) that “either party may, within ten days, appeal from the judgment rendered.” It is further provided that execution of the judgment shall not be stayed unless an undertaking, as by that section provided, be made and filed within ten days. By the succeeding section of the forcible entry and detainer chapter it is provided that “the provisions of this Code relating to civil actions, appeals, and new trials, so far as they are not inconsistent with the provisions of this chapter, apply to the proceedings mentioned in this chapter.” The Code, relating to appeals in civil actions in general (section 3301, Comp. Laws 1907), provides that an appeal may be taken within six months from the entry of the judgment or order appealed from. If the appellant was entitled to prosecute the appeal under the provisions of section 3301, the appeal was taken in time. If he was required to prosecute the appeal under the provisions of section 3586, it was not in time; the appeal not having been taken until 111 days after the entry of the judgment. We thiuk he was required to prosecute the appeal under the latter section and within ten days from the rendition of the judgment, or, at least, within ten days from the entry of it. The manner of taking appeals is statutory. The Legislature fixed a period of ten days within which an 1,2 appeal may be taken from a judgment rendered in an action of forcible entry and deatiner. It undoubtedly had the power to prescribe such a time. A party desiring to appeal from a judgment rendered in sueb an action is required to take and perfect it in tbe manner prescribed by tbe special statutory provision relating to tbe subject of forcible entry and detainer. Tbe provisions of tbe Code as to ordinary cases of appeal, so far as tbey are inconsistent with tbe special statutory provisions relating to tbe subject, bave no application to sueb cases. (Hastings v. Hennessey, 52 Mo. App. 172; Hadley v. Bernero, 103 Mo. App. 549, 78 S. W. 64; Slaughter v. Crouch [Ky.], 64 S. W. 968; Audubon Hotel v. Braunig, 119 La. 1070, 44 South. 891; Saxton v. Curley, 112 Ill. App. 450; Getty v. Miller, 10 Colo. App. 331, 51 Pac. 166.)

Tbe appeal not being in conformity with sueb provisions, it follows that we bave no jurisdetion of tbe 3 case, and that tbe appeal must therefore be dismissed, with costs.

Such is tbe order.

FRICK and McCARTY, JJ., concur.