Redhead, Norton, Lathrop & Co. v. Baker

Given, J. — I. The abstract shows a stipulation as follows, signed by the attorneys for the different parties: “It is hereby stipulated and agreed, by and between the parties to the above-entitled cause, that the same may be submitted to the supreme court of Iowa, and be heard at the October term thereof, to be held at Des Moines, Iowa, commencing on the first Tuesday of October, 1888, on the foregoing abstract of record of appellant, and additional abstract of appellee, if one should be filed; and that the same presents a true abstract of the record in said cause, and contains all the evidence introduced or offered on the hearing of said cause; and the filing of a transcript herein is hereby waived.” It also shows notice of appeal and service, as follows: “After usual caption,' reading ‘to each and all of said defendants, and to said intervenor, or to Chamberlain & Stewart and Carpenter & Evans, their attorneys, and to L. A. Wilkinson, clerk of said court: “ ‘You and each of you are hereby notified that Redhead, Norton, Lathrop & Co., plaintiffs above named, have appealed from the judgment of the district court aforesaid, against plaintiffs in above-entitled cause, on the second day of July, 1888, to the supreme court of Iowa; and that said appeal will be for hearing and trial at the October term of said court, to be held at Des Moines, Iowa, commencing on the first Tuesday of October, 1888. “ ‘ N. B. Raymond, “ ‘ For plaintiffs. [164] • “ ‘ Due and legal service of the foregoing notice of appeal is hereby accepted, this third day of September, 1888. “.‘Carpenter & Evans,; “ ‘For Eli and Abigail Baker and Gr. F. Walker and T. Hawery, Assignee. “ ‘Chamberlain & Stewart, “ ‘For E. S. Harter and C. D. Coddington, Adam Baker, Daniel L. Baker.’ ” ' It will be observed that, while notice of appeal is addressed to the attorneys, and to L. A. Wilkinson, clerk of said court, it does not appear that any service thereof was made on the clerk. Code, section 4408, provides that “an appeal shall not be perfected until the notice thereof has been served upon both the party and the clerk, and the clerk paid or secured his fees for a transcript.” In State v. Rogers, 71 Iowa, 753, notice of . appeal had not been served upon the clerk. The court says: “The statute provides for such service, and without it we cannot hold that the appeal was perfected. It follows that we have no jurisdiction of the case, and the appeal must be dismissed.” See, also, Fitzgerald v. Kelso, 71 Iowa, 731, and Day v. Insurance Co., 72 Iowa, 598. The appeal must be Dismissed