Cordello v. Deponte

120 N.W. 902, 107 Minn. 573, 1909 Minn. LEXIS 612

• Court: Supreme Court of Minnesota
• Decided: April 30, 1909
• Docket: Nos. 15,975—(3)
• Status: Published

Opinion

PER CURIAM.

Judgment was entered for plaintiff on default in the justice court, and appealed by defendant to the municipal court. Plaintiff moved in the municipal court for a dismissal of the appeal, and that the judgment of the justice court be affirmed, on the ground that no proof of service was indorsed on the notice of appeal. A continuance of the case was taken, an amended return was made, showing proof of service of the notice, and the motion to dismiss the appeal was denied. The case came on for final hearing, and on April 23, 1908, judgment was entered for plaintiff in the sum of $30, and the defendant appealed to this court from an order denying his motion for a new trial.

It would seem that the motion to dismiss the action in the municipal court was renewed in that court upon the further ground that the proof of service of the notice of appeal was not filed with the justice of the peace within ten days after the service of the notice. The facts appearing from the record justified the trial court in denying the motion to dismiss the appeal upon both grounds. The trial court was justified in allowing the complaint to be amended to conform with the evidence, and in finding that defendant was indebted to the plaintiff in the amount of the judgment. The point that the notice of appeal from the justice court was not served within ten days from the entry of judgment is raised in this court for the first time, and will not be considered.

Affirmed.