Stonehouse v. Smith

Bronson, J. This is an appeal from a judgment dismissing an appeal from the justice’s court. Upon a trial had in the justice’s court judgment was rendered for the plaintiffs. Defendant appealed, but did not serve his undertaking upon plaintiffs or their attorney. For such failure the trial court dismissed the appeal. Defendant requests a construction of §§ 9163, 9165, and 9169, Comp. Laws. 1913, and their application to a litigant not in default. These sections were, respectively, §§ 6771, 6772, and 6776, Revised Codes 1895, forming a part of chapter 6, Justice’s Code, relating to appeals in civil actions. Section 6776 provides: “The undertaking given on appeal and appellant’s pleading, if the judgment appealed from was taken by default, must be served with a notice of appeal.” This section was amended by chap. 6, Laws of 1897, so as to read “The undertaking for appeal must be served with the notice; also appellant’s pleading when the judgment appealed from was taken by default.” Plainly, the statutory provision requires that the undertaking for appeal must be served in all cases with the notice. It is a jurisdictional prerequisite. This court has expressly so held in Richardson v. Campbell, 9 N. D. 100, 81 N. W. 31. The judgment is affirmed with costs. Bibdzell, Ch. J., and CheistiaNsoN, Geace, and RobiksoN, JJ., concur.