McFarland v. Butler

By the Gowrt Derry, J. This action was originally commenced before a justice of the peace, from whose judgment an appeal was attempted to betaken to the District Court. One John L. McDonald appeared as attorney for the defendant, (now appellant,) both before the justice and in the District [76] court, aud was so recorded. In the latter court, A. E. Cape-hart was associated with him as attorney, and took charge of the case in the Supreme Court, where it was carried by appeal. No written notice of the substitution of Capehart as attorney in place of McDonald, was given to the respondent. Our statute on this subject is imperative. By section 14, page 667, Bub. Stat., it is provided that until written notice of substitution is given, the adverse party “ is bound to recognize the former attorney.” At the time when the motion to dismiss the appeal was made in the district court and granted, the case was in fact on the calendar. McDonald was present, and made no objection, but on the contrary, assented to that disposition of the action. Even if the appellant was entitled, as is contended, to notice of the motion to dismiss, that right was certainly waived by McDonald if he was his attorney. "We perceive no reason why he should not be so regarded, for assuming that by an entry upon the minutes, or by a recognition of Capehart as scle attorney, the adverse party might waive his right to written, notice of substitution, the affidavits on which the motion to set aside the order of dismissal was based, do not establish either state of facts. The continuance of McDonald’s connection with the case is perfectly consistent with Capehart’s association with him in the district court, and with Capehart’s sole charge of the action in the Supreme Court. On the merits, we think, the order of dismissal was correct. Sec. 136, page 517, Pub. Stat., provides that no appeal shall be allowed unless “ an affidavit shall be filed with the justice, &c.” Sec. 139, same page, requires the justice to return to the district court, “ all the process and other papers relating to the suit and filed with the justice, &c.” This makes it clearly the duty of the justice to include the affidavit for an appeal in his return. If, then, no affidavit appears in his return, the presumption is that none was filed, and therefore that the district court never acquired jurisdiction. Of course [77] an amended return may be compelled under tbe statute. We do not deem it necessary to dwell upon the other points raised on the argument. The order of the District Court is affirmed.