Looney v. Drometer

72 N.W. 797, 69 Minn. 505, 1897 Minn. LEXIS 314

• Court: Supreme Court of Minnesota
• Decided: November 2, 1897
• Docket: Nos. 10,734—(164)
• Status: Published

Opinion

PER CURIAM.

The district court should have granted plaintiff’s motion to dismiss the appeal on the ground that it did not appear that the notice of appeal, with proof of service, was ever filed with the justice as required by statute. This is a jurisdictional prerequisite to the allowance of an appeal that cannot be dispensed with. Without it there is no appeal. Marsile v. Milwaukee, 28 Minn. 4; Larrabee v. Morrison, 15 Minn. 151 (196). There is no presumption that the notice of appeal was filed. Every jurisdictional fact must appear in the return of the justice. McFarland v. Butler, 11 Minn. 42 (72); Marsile v. Milwaukee, supra. If the notice of appeal was in fact filed with the justice, but the justice’s return was defective, the appellant might, on a proper showing, have applied to the district court for an order directing the justice to make an amended return; but, as this was not done, the court should have granted plaintiff’s motion to dismiss the appeal.

Judgment reversed, and cause remanded, with directions to the district court to dismiss the appeal.