State ex rel. Farrell v. Clossner

51 N.W. 16, 84 Iowa 401

• Court: Supreme Court of Iowa
• Decided: January 29, 1892
• Status: Published

Opinion

Bobinson, C. J.

The only statement contained in the abstract in regard to an appeal is as follows: “July, 1890, notice of an appeal to the supreme court was served upon Messrs. Joy, Hudson, Call & Joy, attorneys of record for defendant.” In order to take an appeal the notice required by statute must be served on the clerk of the court wherein the proceedings were had. Code, sec. 3178. It is necessary that the abstract show affirmatively that an appeal has been taken. Gleason v. Collett, 77 Iowa, 448; Schooley v. Ins. Co., 76 Iowa, 78; Donnelly v. Cedar Co., 75 Iowa, 536. It is also necessary that the abstract show service of notice on the clerk as well as on the adverse party or his attorneys. Redhead v. Baker, 80 Iowa, 163; Hayden v. Goeppinger, 78 Iowa, 753; McManus v. Swift, 76 Iowa, 576; Independent Dist. v. Apperle, 76 Iowa, 238. The taking of an appeal is jurisdictional, and is not waived by the appearance of the parties to the merits of the case without objection for the failure to take an appeal. When jurisdiction is not shown, we are required to dismiss the case. Talbort v. Noble, 75 Iowa, 169; Plummer v. Bank, 74 Iowa, 731; Phillips v. Follet, 69 Iowa, 39.

We dispose of cases otherwise than on their merits with reluctance, but in this case there is no alternative. Dismissed.