Henness v. Wells

Pee Ctjeiam. This action was originally commenced before a justice of the peace in Polk County, where the defendant had a judgment in her favor. The plaintiff undertook to appeal from said judgment to the Circuit Court, but filed his notice of appeal with the justice without any proof of service being indorsed thereon. The attempted proof of service was placed on the notice at least six days after the notice was filed. Upon these facts the Circuit Court dismissed the appeal, from which judgment this appeal is taken. Briney v. Starr, 6 Or. 207, is decisive against the appellant. The provisions of the Code construed in that ease is in substance the same as the statute regulating appeals from Justices’ Courts, and there is no reason why the latter should not receive the same construction as the former. Section 2119 of Hill’s Code requires the filing of the notice of appeal with the justice, “with proof of service indorsed thereon.” The filing of such notice without the requisite proof of service indorsed is ineffectual for any purpose. Let the judgment be affirmed.