Munk v. Anderson

68 N.W. 407, 94 Wis. 27, 1896 Wisc. LEXIS 119

• Court: Wisconsin Supreme Court
• Decided: September 22, 1896
• Status: Published

Opinion

Marshall, J.

The judgment appealed from ivas duly perfected on the 6th day of September, 1892. Notice of the entry of such judgment was served on appellants’ attorneys on the 8th day of September, 1892. Notice of the appeal was served on respondents’ attorneys on the 16th day of August, 1891. The undertaking for costs was served on the 16th day of December, 1894, more than two years after the entry of judgment. No deposit of money was made in lieu of such undertaking, nor was there any waiver, in any way, of such undertaking or deposit. Such being the record, the respondents’ attorneys moved the court to dismiss the appeal for want of jurisdiction of the court to entertain it.

The motion to dismiss must be granted. Sec. 8049, R. S., provides that: “ An appeal must be taken by serving a notice, in writing, signed by the appellant or his attorney, on the adverse party, and on the clerk of the court, in which the judgment or order appealed from is entered. . . . The appeal shall be deemed taken by the service of the notice of appeal, and perfected on service of the undertaking for costs, or the deposit of money instead, or the waiver thereof, as hereinafter prescribed.” Sec. 3051 provides that such waiver may be made in writing. Under sec. 8039, R. S., the time limited for taking the appeal is two years from the entry of judgment (Parker v. McAvoy, 36 Wis. 322), and such time cannot be extended in any.manner. Hence, unless the record shows the appeal perfected within the time and in the manner.so provided, this court cannot obtain any jurisdiction to entertain it. Herrick v Racine W. & D. Co. 43 Wis. 93.

By the Court.— The appeal is dismissed.