Marsile v. Milwaukee & St. Paul Railway Co.

Cornell, J. Among the statutory prerequisites to the allowance of an appeal in a justice’s court, not only the notice of appeal must be served upon the opposite party within ten ■days after the judgment, but such original notice, with proof of service thereof, must be filed with the justice who rendered the judgment within ten days after such service. Gen. St. c. 65, § 104. The fact that the statute (§ 102) especially provides that an appeal allowed by a justice shall not be dismissed by reason of an omission to comply with one of the conditions of the appeal prescribed by section 104— the execution of a proper bond — necessarily implies that the other conditions jurisdictional to its allowance cannot be dispensed with, nor can their omission be remedied or supplied after the prescribed time within which they must be complied with has expired. The entry in the justice’s docket in this case shows that the appeal was allowed by the justice upon the affidavit and bond alone. It cannot be presumed that any notice of appeal, with proof of service thereof, was filed with him prior to the allowance of the appeal, or within the required time, because the justice expressly certifies to the correctness of his docket as containing an entry of all the proceedings in the action, together with all the papers on file before him, and no mention is made of the filing of any notice of appeal and proof of service thereof. On this ground the appeal from the judgment of the justice should have been dis-* missed. [6] The judgment of the district court is reversed, with directions to dismiss the appeal taken from the judgment rendered by the justice.