Pennypacker v. Floyd

Ladd, C. J. Appellants’ abstract merely recited that plaintiffs perfected their appeal by serving notice of appeal on defendant’s attorney, and the clerk of the district court. In an amendment to the abstract, appellee denies that an [234] appeal was perfected by serving notice of appeal as alleged, and avers that a paper, properly addressed and in due form, but unsigned, was mailed to appellee’s attorney, with the request that he acknowledge service thereon, which was done; and thereafter, and without appellee’s consent or knowledge, plaintiffs’ attorneys signed same. This was denied; whereupon, defendant applied to the district court to strike the signature to said notice therefrom; for, as was alleged, it was attached subsequent to the acknowledgment of service thereon by the appellee. On hearing, the court ordered that the signature of Treichler & Treichler be stricken from the notice. This ruling has such support in the evidence — is sustained by such preponderance of the evidence— as to preclude any interference therewith. The attorney for defendant, the stenographer employed in his office, and defendant say it was not signed when the acknowledgment of service was made. One of the attorneys of plaintiffs testifies that he signed it before mailing the notice to appellee’s attorney. See Hamill v. Joseph Schlitz Brewing Co., 165 Iowa 266. But it is argued that, as the notice of appeal, though unsigned, was presented by attorneys for plaintiffs in the trial court, and service accepted by counsel for appellee, with knowledge of whence the notice emanated, this was a sufficient notice. In forwarding the paper for acknowledgment of service, counsel wrote defendant’s attorney: “Herewith notice of appeal in case of Pennypacker et al. v. Floyd. Will you please accept service of same, and return one copy to us?” This was signed, “Treichler & Treichler,” and, of course, indicated whence it came; but we are not persuaded that this supplied the defect in omitting signature to the' notice. Though the statute does not, in express terms, exact the signature of the notice of appeal, we said, in Doerr v. Southwestern M. L. Assn., 92 Iowa 39: [235] “We think this essential' to its validity. It must purport to emanate from someone, in order that the adverse party may be advised that it comes from a proper source. To be binding upon the appellant, it ought to be subscribed, either by himself, or someone .authorized to act for him. Without such attestation, the document is, in effect, no more than a blank piece of paper. It is not a case of defective notice, but of no notice.” In State Sav. Bank v. Ratcliffe, 111 Iowa 662, in ruling on the same question, the court declared that, “As the notice was not signed, it was no notice.” If no notice, presenting the notice for acknowledgment of service surely would not transform it into a notice. It merely advised the other side whence the paper, such as it was, came, — that is, from the attorneys having the right to take the appeal. Service of notice of appeal is essential to confer jurisdiction in this state, and jurisdiction can be conferred in no other way. Doerr v. Southwestern M. & L. Assn., supra. Our attention has been directed to several cases where the presentation of an unsigned notice of appeal by attorney for appellant personally, and acknowledgment of service by the attorney for appellee, has been held to obviate the omission of signature; but these decisions are on appeals from justice court, where jurisdiction may be conferred by consent (Eaton v. Supervisors, 42 Wis. 317; Evangelical Luth. Society v. Koehler, 59 Wis. 650 [18 N. W. 476]; Cella v. Schnairs, 42 Mo. App. 316), or where appearance by a party without questioning the notice is a waiver of service thereof as to him (Perkins v. Indiana Mfg. Co., 58 Ind. App. 220 [108 N. E. 165]). . We are content with the holding of this court that an unsigned notice of appeal is no notice, and that the service of a notice of appeal, duly signed, is essential to confer jurisdiction. Our conclusion is that the order of court cor [236] recting the record should be, and it is, affirmed, and that the motion to dismiss the appeal from the judgment in the main case should be, and is, sustained. One half of the costs of printing appellee’s amendment to abstract is taxed to appellee. Affirmed on appeal from order correcting record; dismissed on appeal from judgment. Evans, Gaynor, Preston, and Stevens, JJ., concur. Salinger, J., specially concurs.