Fuller v. McClure

Hall, J. The question in this case involves the construction of section 3055, Revised Statutes, concerning appeals from justices of the peace, and proceedings thereon. The section is as follows : “If the appeal be not allowed on the same day on which the judgment is rendered, the appellant shall serve the appellee, at least ten days before the first day of the term at which the cause is to be determined, with a notice in writing, stating the fact that an appeal has been taken from the judgment therein specified. The notice may be served in like manner as an original writ of summons, or by delivering a copy of the same to the appellee, by any person competent to be sworn as a witness, and when the appellee does not reside in the county, and has no agent in the suit therein, within the knowledge of the justice, the service may be by leaving a copy of such notice with the justice.” Whatever doubt there may be as to the service of the notice, authorized by the above section, when the appellee does not reside within the county of the justice, we feel confident that when the appellee does reside within such county, the service must be upon Mm, himself. And when a different kind of service is made, the fact that the appellee does not reside in the county, if such be the fact, must be made to appear. In this case that fact does not appear, and we must pass upon the sufficiency of the service, upon the presumption that the appellee did reside in the county. [421] We hold that the mode of service prescribed by the statute is exclusive (Hyde v. Goldsby, ante, p. 29), and that the service of the notice, not being such as prescribed by the statute, "was of no effect. In other words, there was no notice of appeal given. The court properly, therefore, sustained the motion. Rev. Stat., sect. 3057. Judgment affirmed. Ellison, J., concurs; Philips, P. J., absent.