Parker v. Denny

Opinion by

Greene, Chief Justice.

This is a motion to dismiss the appeal. The cause was brought here under the appellatory provisions of the Code, by the appellant Hollon Parker.

Two grounds for dismissal are urged: 1st, That no notice of appeal, as required by Section 454 of the Code, was ever served on John F. Boyer ; 2d, That there is nothing in the transcript to certify this Court that it has before it the whole of the evidence.

Both points we deem well taken. It was necessary and jurisdictional, for instituting this appeal, to make Boyer a party to it.. (Code, Sections 454, 455, 458; 7 Peters, 399.)

But he could only be made a party by a voluntary joinder, or appearance, or in the compulsory mode provided by statute.

He has not appeared. A notice of intention to appeal was served on him, but no notice of the appeal actually prosecuted was ever given. He is not in Court.

As to the other point, this Court, following the case of Coleman v. Yesler, has several times decided that the whole of the-evidence should be certified in an appeal case. This Court must have the cause in its entirety before it, in order to proceed. Section 451 of the Code prescribes the form of certificate, and' no certificate but the statutory will avail.

We cannot get jurisdiction by stipulation, or estoppel, or waiver.

No statutory certificate is here.

The motion is granted.

We concur : John P. Hoyt, Associate Justice.

George Turner, Associate Justice.