Strom v. Lindstrom

Julius J. Olson, Justice. The parties to this cause were opposing candidates for the office of alderman in the third ward of Chisholm at the December 3, 1935, election. On December 11 the canvassing board found and determined that respondent had been elected to that office. Thereupon contestant, pursuant to the provisions of 1 Mason Minn. St. 1927, § 488, sought to appeal to the district court from the declared re- *228 suit. The notice of appeal was filed within ten days after the declared result by the canvassing board, but the filing was made at the office of the deputy clerk at Hibbing, and the notice did not contain the words, as required by the statute: “to be tried at the Village of Hibbing.” A copy of the notice was later filed at Duluth but not within the statutory limit of ten days. Respondent made special appearance on the return day challenging the jurisdiction of the court on the ground that the notice of appeal had not been filed in time. The court sustained respondent’s special appearance and, in conformity with his motion, dismissed the appeal. Later contestant procured an order to show cause why he should not be permitted to amend his notice of contest by inserting therein the words required by the statute: “to be tried at the Village of Hibbing.” The basis for his claim to bring about this change was stated in his notice of motion to be “that the words ‘to be tried at the village of Hibbing’ were by inadvertence omitted from the notice of contest.” The court denied the motion. Contestant has appealed from the order dismissing the contest for lack of jurisdiction, but not from the order refusing to vacate. The issue presented is the single one of whether a notice of appeal in an election contest, filed within ten days after the canvass of the election in the office of the deputy clerk at Hibbing from which notice the words “to be tried at the village of Hibbing” had been omitted, conferred jurisdiction on the court. If jurisdiction was conferred, then clearly the court was in error, otherwise the order made must stand for affirmance. As has already been mentioned, 1 Mason Minn. St. 1927, § 488, is the principal statute involved. This statute provides that contestant in such proceeding must file his notice of appeal with the clerk of the district court of his residence within ten days after the canvass is completed. The filing of such notice within the statutory limitation is jurisdictional. Baberick v. Magner, 9 Minn. 217 (232); Odegard v. Lemire, 107 Minn. 315, 119 N. W. 1057; Whittier v. Village of Farmington, 115 Minn. 182, 131 N. W. 1079. In St. Louis county there are three places in addition to the city, of Duluth where chief deputy clerks function, Virginia, Ely, *229 and Hibbing. Under the provisions of L. 1931, c. 160, 3 Mason Minn. St. 1936 Supp. § 166, “the office of said deputy clerk at said places shall be equally deemed the office of the clerk of court for all purposes except the filing of papers in actions or proceedings to he tried at Duluth.” (Italics supplied.) Duluth, as is well known, is the county seat of St. Louis county, and there is no other. In other words, for the filing of papers in cases to be tried at Duluth, the office of the clerk at any of the mentioned places outside of Duluth is not the office of the clerk of the district court. L. 1931, c. 195, 3 Mason Minn. St. 1936 Supp. § 172, specifically states that any party seeking to invoke the jurisdiction of the court in “any election contest” shall, in the notice of appeal “or other jurisdictional instrument issued therein, in addition to the usual provisions,” “print, stamp or write thereon the words ‘to be tried at the village of Hibbing.’ ” In the instant case contestant did not do anything of the kind. Obviously, then, under the statute, the proceeding here attempted would have to be at Duluth, and that city was the place and the only place for the filing of the notice. Contestant does not seriously question this result except that in his brief he expresses the opinion that this court in Fritz v. Hanfler, 195 Minn. 640, 263 N. W. 910, 911, permitted an amendment to the notice of appeal. That case does not aid contestant. There (195 Minn. 643) “the court already had jurisdiction of the parties, and the amendment merely placed contestant in a position to continue the contest alone.” Always to be remembered is the rule that on matters involving jurisdiction of the court “where the mode of acquiring jurisdiction is prescribed by statute compliance therewith is essential or the proceedings will be a nullity.” 15 C. J. p. 797 [§ 92], “Jurisdiction may depend upon the existence of one of two or more alternative facts or conditions; and where certain facts must exist as a necessary prerequisite to the jurisdiction of a court, they must exist at or before the time when the court assumes jurisdiction. Whenever the attention of the court is called to the absence of a jurisdictional fact, it may, and should, refuse to exceed its powers.” 15 C. J. p. 732 [§ 27]. “Until the service of a proper notice of appeal the district *230 court has no jurisdiction for any purpose. And it cannot appropriate to itself a jurisdiction which the law does’ not give it by correcting or permitting the correction of a notice of appeal after the time for taking the appeal has expired.” In re Estate of Mikkelson, 178 Minn. 601, 603, 228 N. W. 171, 175. The court in its memorandum so clearly states its reasons for the result reached that the following quotation therefrom should be made: “The office of the clerk of court at Hibbing is not the office of the clerk of court for filing papers in matters triable at Duluth. Chapter 160, Laws of 1931; Chapter 195, Laws of 1931. If this was a contest arising in Duluth or that vicinity, or at Virginia or Ely, it would be very apparent that the filing of the papers at Hibbing, where no designation was made, Avas improper. The fact that it arose at Chisholm, Avhich is only a feAv miles from Hibbing, can make no difference. The plaintiff or contestant can start his action or contest or appeal in any one of the three places besides Duluth in the county by proper designation; if he makes no designation it is triable in Duluth, and he must be deemed to have so intended. “The court cannot change the statutes. The statute requires notice of appeal to be filed in the office of the clerk of the District Court Avithin ten days. This is a jurisdictional prerequisite to the right of the court to consider the case at all. Notice of appeal was not filed in the office of the clerk of court Avithin the ten-day period. The court has acquired no jurisdiction. The court cannot allow an amendment.” Order affirmed.