Pierre Savings Bank v. Ellis

Fuller, J. Upon the ground that the .notice of appeal was never served on the clerk of the court in which the judg [252] ment appealed from was entered, respondent moves to dismiss this appeal. From the record it appears that the original notice of appeal was delivered by one of appellant’s attorneys to the clerk with the direction that the safne be filed, and, although the affidavits offered in resistance of the motion to dismiss recite “that such service was made by delivering to and leaving with said clerk of court said notice of appeal in writing, ” no service was had upon, or admission thereof obtained from, the clerk; and the acts relied upon by counsel, as constituting service upon the clerk, amount simply to filing the notice in his office, and are wholly insufficient to justify a conclusion that the notice of appeal was served upon the clerk as required by statute, or in any manner. The requirement of Sec. 5215 of the Compiled Laws that “an appeal must be taken by serving a notice in writing * * * on the adverse party, and on the clerk of the court” is mandatory, and, in the absence of such service, this court is without jurisdiction of the cause. Irrigation Co. v. Schone, 2 S. D. 344, 50 N. W. 356. For the reason that no appeal has been taken, the proceedings in this court must be dismissed. It is so ordered.