Muckle v. Columbia County

108 P. 120, 56 Or. 146, 1910 Ore. LEXIS 148

Opinion

Mr. Justice Eakin

delivered the opinion of the court.

Judgment was rendered in this cause on July 21, 1909. The notice of appeal therefrom was filed January 21, 1910, but no proof of service was indorsed therein. One of the appellants, Martin White, sheriff, on February 18, 1910, obtained ex parte leave from the lower court permitting him to attach to the notice of appeal the certificate of said Martin White, a sheriff, that he had served the notice on January 21, 1910.

1. By statute (Section 549, B. & C. Comp.) it is provided that, when notice has not been given in open court, appellant must, within six months from the entry of the judgment, .file with the clerk of the court in which the judgment is rendered the notice of appeal, with the proof of service indorsed thereon. Compliance with this requirement is jurisdictional: Briney v. Starr, 6 Or. 207; Henness v. Wells, 16 Or. 266 (19 Pac. 121); Dowell v. Bolt, 45 Or. 89 (75 Pac. 714); Rodman v. Manning, 50 Or. 507 (93 Pac. 366).

2. Neither can the sheriff serve the notice of appeal in a case in which he is a-party appellant: Williams v. Schmidt, 14 Or. 470 (13 Pac. 305). Section 539, B. & C. Comp. Each of these defects is fatal to the appeal.

The appeal is dismissed. Dismissed.