Brier v. Chicago, Burlington & Pacific R'y Co.

Beck, Cii. J.

*603

, x court';1 umeiy oirakueoessary‘

*602 I. The plaintiff moves this court to dis *603 miss the appeal upon the ground that the notice of appeal was not served upon the clerk of the circuit court within the time prescribed by the statute. A similar motion was made at a prior term, which was overruled upon the ground that the record of the court below showed that there had been timely notice of the appeal upon the clerk. Plaintiff had leave to take proper measures to correct the record of the court below according to the facts. An amended or further record and abstract show that, in a proceeding instituted in the circuit court, the record was so corrected as to show that the appeal was not taken in the time prescribed by the statute. As the case now stands upon the record before us, it appears that the notice was not served within the time prescribed by law. ~We cannot, therefore, entertain an appeal.

. waiver of statutory nopearan06*111 court;apractlC0' II. Counsel for defendant insist that the plaintiff, by appearance in this court, has waived the want of notice upon the clerk. This appearance was made in filing an amended and additional abstract in the case. It is a^so aReged- that he'served an argument upon defendant. But these things were all done before the time for service of notice upon the clerk had expired. Plaintiff could have well supposed that the service would be made upon the clerk within the time prescribed by law, and his acts, therefore, ought not to be taken as a waiver of notice to the clerk, which could have been made thereafter, wdthin the time required by law. The service of the notice after the time fixed by the statute is not a mere irregularity as to the form of the notice, or of the service. It amounts, in fact, to want of the notice required by the statute. The decisions of this court, cited by-counsel, to the effect that appearance will waive irregularity in process and service, are not applicable to the case. Motions of this kind are quite frequently submitted in this court with causes presented upon their merits, and upon the submission of this cause counsel were advised of Air practice, and that plaintiff would not be *604 held to waive objection on the ground of want of service on the clerk of the circuit court, by submitting the motion to dismiss the appeal with the case.

3.___; no-inf correction by lower court. . III. Counsel insist that the circuit court had no jurisdiction to correct the record of the court below. The correction consisted in affixing to the acceptance by the clerk of the service of the notice the true date, i • i « -, . . which was" after the expiration of the time prescribed by the statute. As the record stood .before correction, it appeared that the acceptance was within the lawful time. The act of the clerk was done through mistake, or omission to date liis acceptance. Upon service of the notice of appeal it should be filed or deposited with the clerk below. It therefore becomes one of the original papers in the case, and is a part of the record therein. Code, § 196. In this record, on account of a mistake of the clerk, or his omission to affix the date to his acceptance of service, an error occurs which materially affects the rights of the plaintiff. Its correction in the court below is authorized by motion, as was done in this case, within the time prescribed by law. See Code, § 3156.

The conclusion we reach imposes upon us the duty of dismissing the appeal, which is now done.

Dismissed.