Opinion
No. 28,213.
November 28, 1930.
On appeal jurisdiction of court must affirmatively appear from record.
Jurisdiction on appeal cannot be conferred by consent of counsel or litigants. The duty is on appellant to make jurisdiction appear plainly and affirmatively from the printed record.
Plaintiff appealed from an order of the district court for Dakota county, Albert Johnson, J. denying his motion for a new trial. Appeal dismissed for failure of appellant to serve and file his notice of appeal within the statutory time.
Harry A. Hageman, for appellant.
Nathan H. Chase, for respondent.
Plaintiff appeals from an order denying a new trial. The findings and order for judgment were made July 29, 1926. Plaintiff's motion for amended findings or new trial was denied by an order of August 27, 1927. That year of delay was but a beginning. Notice of the filing of the order was given and service admitted September 7, 1927. The notice, with the proof of service, was not part of the record when the case came here. It has since been produced in response to our request and filed. Notwithstanding the service of notice of the order denying the motion for new trial, September 7, 1927, the notice of appeal therefrom was not served until June 26, 1930.
In order to be effective for any purpose such a notice must be served and filed within 30 days from the notice by the adverse party of the filing of the order appealed from. G. S. 1923 (2 Mason, 1927) §§ 9492, 9497. Counsel for defendant has been so accommodating as not to question our jurisdiction, but that does not help plaintiff. The jurisdiction of this court on appeal does not rest upon the consent of counsel or litigants. If it does not exist otherwise, no amount of accommodation on their part can create it. The appeal must be dismissed.
The printed record should show jurisdiction plainly and affirmatively. In this case the notice of appeal was not printed, nor is there in the printed record any reference to its date. There is only the misleading statement that one was "duly served and filed as provided by statute."
Appeal dismissed.