Summary
In Federal Land Bank of Omaha v. LeMars Mutual Ins. Co., 65 S.D. 143, 272 N.W. 285, this court held that a statute that required a notice of appeal to be filed with the clerk of courts meant exactly what it said — that the notice had to be physically present in the clerk's office within the time fixed by the statute and that the fact that the notice had been deposited in the mails within the time period was not sufficient compliance with the statute.
Summary of this case from Johnson v. HersethOpinion
File No. 8022.
Opinion filed March 29, 1937.
1. Appeal and Error.
Filing of notice of appeal within time limit provided by statute is jurisdictional (Rev. Code 1919, § 3147).
2. Appeal and Error.
Notice of appeal mailed to clerk of court on day on which time to appeal expired and received by clerk a day or two thereafter held too late to perfect appeal, since notice is not filed until such times as it is in hands of officer charged with that duty (Rev. Code 1919, §§ 3146, 3147).
3. Appeal and Error.
Agreement between clerk of court and counsel of appellant, in accordance with which notice of appeal was marked filed before time to appeal had expired, though notice had not been received in time, held not to extend statutory time within which notice of appeal must be filed (Rev. Code 1919, §§ 3146, 3147).
Appeal from Circuit Court, Charles Mix County; HON.C.C. PUCKETT, Judge.
Action by the Federal Land Bank of Omaha against the Le Mars Mutual Insurance Company of Sioux Falls. From a judgment in favor of the defendant, the plaintiff appeals, and the defendant moves to dismiss the appeal.
Appeal dismissed.
Bielski, Elliott McQuillen, of Sioux Falls, for Appellant.
L.E. Waggoner, of Sioux Falls, for Respondent.
Under the provision of section 3147, Rev. Code 1919, appellant's time to appeal from the judgment herein expired on the 1st day of October, 1936. Late in the evening of that day appellant's attorney living at Sioux Falls mailed to the clerk of courts of Charles Mix county at Lake Andes, S.D., a notice of appeal and bond, together with the clerk's fee. This letter, together with the inclosures, reached the clerk of courts on either the 2d or 3d day of October. Conformable to an agreement had with counsel the clerk marked the papers filed as of October 1st. However, it is conceded that the papers were not in the clerk's office on October 1st, but reached that office either on the 2d or 3d day of October, and after the time for appealing from the judgment had expired. Respondent has moved to dismiss the appeal.
Section 3146, Rev. Code 1919, provides: "An appeal must be taken by serving on the adverse party and filing with the clerk of the court in which the judgment or order appealed from is entered a notice in writing, signed by the appellant or his attorney. * * * The appeal shall be deemed to be taken by the service and filing of the notice of appeal."
[1, 3] We are convinced that the filing of the notice of appeal within the time limit provided by section 3147 is jurisdictional. Grieves v. Danaher, 60 S.D. 120, 243 N.W. 916; Furman v Anderson, 61 S.D. 378, 249 N.W. 626; Ireland v. Ireland, 62 S.D. 300, 252 N.W. 852. Appellant contends that depositing in the mail on October 1st constituted a filing within the meaning of section 3146. In support of this contention appellant suggests that service of papers on an attorney is considered complete from the time of depositing in the mails. However, the authority for service of papers by mail is found in the statutes, and these statutory provisions govern. Sections 2,581 to 2585, Rev. Code 1919. There is no statutory provision regarding filing by mail, and it seems clear to us that the paper is not filed at least until such time as it is in the hands of the officer who is charged with that duty. In this case the notice of appeal was not in the hands of the clerk or in the clerk's office until after the time for appeal had expired. Clearly, any agreement between the clerk and counsel for appellant with regard to the filing of this notice of appeal did not extend the statutory time within which the notice of appeal must be filed. See Sanford v. Kilpatrick, 42 S.D. 32, 172 N.W. 805.
The appeal must be dismissed. It is so ordered.
RUDOLPH, P.J., and POLLEY, ROBERTS, and WARREN, JJ., concur.
SMITH, J., not sitting.