Spafford v. White River Valley Land & Live Stock Co.

By the Court, Bonnifield, J.: Counsel for respondent moved this court to dismiss this appeal on the ground that no notice of appeal was served on the respondent. The record shows that the notice and undertaking were filed on the 25th day of March, 1897, and the proof of service shows that the notice was served on the 19th day of March, 1897. “To render an appeal effectual the filing of the notice of appeal must precede or be contemporaneous with the service of the copy, otherwise that which purports to be a copy fails as such for want of an original to support it.” (Lyon County v. Washoe County, 8 Nev. 177.) “The appeal is taken by filing and serving the notice.” (Lambert v. Moore, 1 Nev. 344; Peran v. Monroe, 1 Nev. 484.) To render an appeal effectual for any purpose, in any case, a written undertaking executed upon the part of the appel *185 lant must be filed, or the required deposit of money made with the clerk, within five days after the notice of appeal is filed. (General Statutes, sec. 3363.) “In order to take and perfect an appeal, the appellant should first file his notice' of appeal, next serve it, and within five days of the filing of the notice, file an undertaking on appeal; the service of the notice must precede or be contemporaneous with the service.” (Reese M. Co. v. Rye Patch M. Co., 15 Nev. 341.) Upon the plain provisions of the statute and the above authorities the appeal in the case is dismissed.