Briney v. Starr

By tbe Court, Prim, C. J.:

Subdivision 1 of section 527, page 280,-of the Civil Code, provides that “the appellant shall cause a notice to be served on the adverse party, and file the original, with the proof of service indorsed thereon, with the clerk where the judgment, etc., is entered.” Subdivision 5 of same section .declares that “an appeal shall be taken by serving and filing the notice of appeal within sixty days from the entry of the judgment,” etc.

These parts of that section indicate that the notice of appeal, on its filing, must be accompanied by the proof of service in the shape of an indorsement thereon. In case an amendment is desired, or further time required to perfect the appeal, we have held it necessary to apply to the court below for such grant or permission. In no event could an attorney, without such leave, by his act change the legal effect of a paper then on the files. In this ease the time within which an appeal must be taken had expired before any service appeared upon the papers; and we hold that without any leave obtained below, the act of the attorney was unauthorized, and of no effect; and, no proof of proper service existing, the appeal is dismissed.

Note. — The aboye decision was rendered at tbe September term, 1870. In tbe reports for that term it was overlooked.