Wambach v. Grand Lodge

55 N.W. 516, 88 Iowa 313

Opinion

Granger, J.

It is suggested by the appellee that the abstract is an affirmative showing that the court is without jurisdiction. An appeal must betaken “within six months from the rendition of the judgment or order appealed from; not afterwards.” Code, section 3173. Time, in taking an appeal, is a jurisdictional fact. It must affirmatively appear. Where the jurisdictional facts do not appear, the appeal, must be dismissed. Plummer v. People’s Nat. Bank, 74 Iowa, 731. Appearance does not cure the defect. State ex rel. v. Clossner, 84 Iowa, 401, and authorities there cited. The abstract shows that upon the filing of the answer, February 9, 1891, “this action came on for trial to a jury,” etc. At the conclusion of the evidence the court sustained a motion to take the case from the jury, and enter judgment for the plaintiff. This is the only showing in the abstract as to the date of the judgment. The abstract then shows that “on the-fifteenth day of December, 1891, the defendant appealed to this court, by serving notice,” etc. It thus appears from the abstract that the appeal was taken some ten months after the judgment or order appealed from. We are in such a case entirely without jurisdiction. Of our own motion, we are required, before-trial, to “see to it” that a case is one of which we have-jurisdiction. Plummer v. Bank, supra.

The appeal must be, and is, dismissed.