Spicer v. Kennedy

174 N.W. 821, 144 Minn. 158, 1919 Minn. LEXIS 708

• Court: Supreme Court of Minnesota
• Decided: November 14, 1919
• Docket: No. 21,471
• Status: Published

Opinions

Holt, J.

Appeals from judgments rendered by justices of the peace in the city of St. Paul are made to the municipal court of that city, but the procedure in respect to the notice of appeal and contents thereof is governed by section 7602, G. S. 1913. Plaintiffs attempted to take such appeal. It was dismissed by the municipal court and the judgment of the justice affirmed, because the notice failed to state the ground of appeal.

Due sendee of a proper notice of appeal is essential to give the appellate court jurisdiction. The section referred to requires the notice to give one of two grounds of appeal, viz.: “That the appeal is taken upon questions of law alone, or upon questions of both law and fact.” It has been held that the requirement is mandatory, and that a notice omitting to state the ground of appeal confers no jurisdiction. Smith v. Kistler, 84 Minn. 102, 86 N. W. 876; Buie v. Great Northern Ry. Co. 94 Minn. 405, 103 N. W. 11.

The original notice served has been returned to this court. It is upon a printed blank and the last line thereof, above the date and signature, contains these words in print: “And that said appeal is taken upon questions of,” and the remainder of the line, being a little more than one-half thereof, is blank; evidently so left for the purpose of filling in one or the other of the two grounds upon which the appeal must be taken. Immediately below the blank space of the line are in print, inclosed in parenthesis, the words “law or law and fact.” It is plain that these words were so placed by the one who prepared the blank form, to call the attention of the user thereof to the fact that it was necessary to insert one or' the other of the grounds in the blank space provided in the line above. ■It is out of the question to consider the words in parenthesis a part of the notice. But, even if it could be done, appellants would not be helped, for, as held in Smith v. Kistler, supra, the purpose of the statute in stating the ground o'f appeal was to advise the other party upon which one of the alternative grounds -the appeal was to be disposed of, and in this notice, if read as appellants make it appear in the “paper book,” no one could tell upon which of the two grounds the appeal was taken.

The notice being ineffectual to confer jurisdiction, it follows that plaintiffs’ application to the municipal court to amend the same could not be entertained. The documents necessary to perfect an appeal from a justice court must show on their face a compliance with the statute within the time allowed 'for appeal. After the time has expired nothing can be done to remedy a defect in such documents. Grimes v. Fall, 81 Minn. 225, 83 N. W. 835. In other words, the appellate court lacks power to amend the record transmitted by the justice so as to give itself jurisdiction. But if the record transmitted once confers jurisdiction upon the appellate court, then that court may relieve on account of excusable mistakes or defaults occurring after the appeal is perfected. Such was the case in Wentworth v. National Live Stock Ins. Co. 110 Minn. 107, 124 N. W. 977, cited by appellant.

It cannot be held that, by joining with the motion for a dismissal a request for an affirmance of the judgment of the justice court, or by the admission of service of the notice of plaintiffs’ motion to amend the notice of appeal and opposing the granting thereof, there was a general appearance or a consent to try the merits of the case in the municipal court. It is perfectly apparent that the request to affirm was made upon the sole ground that, since the notice of appeal failed to confer jurisdiction iipon the municipal court, the dismissal of the appeal brought into operation the power to affirm expressly given the appellate court in such case by section 7611, G. S. 1913. The request for affirmance under this section was therefore not inconsistent with the claim of want of jurisdiction, and the case is not within the rule referred to in Spencer v. Court of Honor, 120 Minn. 422, 139 N. W. 815. It may be that, as the section now reads, the affirmance is not mandatory, but it certainly is authorized. State v. Long, 103 Minn. 29, 114 N. W. 248; Holmes v. Igo, 110 Minn. 133, 124 N. W. 974. Asking for only what the statute authorizes upon dismissal should not be construed into a general appearance or a consent to try a cause not properly in court. Nor should a party be held to have made a general appearance or to have conferred jurisdiction by simply admitting service of a notice of motion in a cause. And especially should it not be so held here, where defendant at once served the notice of motion for a dismissal solely on the ground that the municipal court was without jurisdiction of the cause. This motion was noticed for hearing at the time and place that plaintiffs had noticed for the hearing of theirs. Under these circumstances' the appearance to oppose plaintiffs’ motion should not be regarded as anything but a persistent objection to jurisdiction and not as a consent to try the cause anew in the municipal court.

It is regrettable that no relief can be granted plaintiffs against the errors of the justice court which resulted no doubt in an unjust judgment. But since the defective notice of appeal required a dismissal of the appeal, and the statute authorizes the appellate court to affirm the judgment of the justice court when an appeal is for any cause dismissed, we find no 'legal ground for reversing the action of the municipal court in entering such judgment.

The judgment is affirmed.