Bonds v. Hickman

By the Court, Rhodes, J. The attorneys of the parties appended to the transcript the following stipulation : “ It is hereby agreed that the foregoing is a true copy of the pleadings, the patent of the United States referred to therein, the minutes of the Court, and judgment in said case, and that the case be argued thereon. Notice of appeal admitted as duly filed and served, also the filing of appeal bond, insertion of copies waived.” The respondent moves that the appeal be dismissed on the ground that the Court had no jurisdiction of the case, because, as he alleges, no notice of appeal was filed. The motion is based on a certificate of the Clerk of the District Court, and an affidavit stating that in fact no notice of appeal was filed. In the counter affidavit filed by the appellant, it is not stated that a notice of appeal was filed; but he contends that the Court cannot go back of the stipulation—that the stipulation affords conclusive evidence that the notice was filed.

Filing of notice of appeal indispensable to perfect an appeal.

It is provided by section three hundred and thirty-three of the Practice Act, that “ a judgment or order in a civil action, except when expressly made final by this Act, may be reviewed as prescribed by this title, and not otherwise;” and section [463]three hundred and thirty-seven provides that an appeal shall be taken by filing with the Clerk of the Court in which the judgment or order is entered, a notice of appeal, and serving a copy thereof upon the adverse party or his attorney. That is the only mode prescribed by the Act in which an appeal to the Supreme Court can be taken. The filing of the notice of appeal is indispensable, in order to enable the appellate Court to obtain jurisdiction of the cause. (Hastings v. Halleck, 10 Cal. 31; Buffandeau v. Edmondson, 24 Cal. 94.) A waiver of the filing by the stipulation of the parties is not the equivalent of the filing of the notice, for consent, though it may waive error, cannot confer jurisdiction. (Coffin v. Tracy, 3 Caines, 129; Low v. Rice, 8 John. 409; Lindsay v. McClelland, 1 Bibb, 262; Ormsby v. Lynch, Litt. Selec. Cases, 303; Banks v. Fowler, 3 Litt. 332.)

But this principle does not dispose of the difficulty in the case, for, admitting the necessity of the filing of the notice of appeal as an essential part of the proceedings by which the appellate Court acquires jurisdiction, the real question is what is competent evidence in this Court, to prove or disprove the filing of the notice. The notice itself, together with the official indorsement of its being filed, form a part of the record of the cause in the Court below, and neither of them have any place as original papers in the appellate Court. Causes brought before the Court by appeal are heard upon a transcript of the record of the Court below or a portion thereof, the transcript being made up and the documents of which it is composed being authenticated, before it reaches this Court. The evidence of the filing, as well as of the contents of the notice, constitutes an essential part of the transcript, for, as we have remarked, no provision being made for the filing of the notice in this Court, it cannot constitute a part of the record of this Court unless it appears in the transcript. A copy of the notice and the indorsement of its being filed, certified by the Clerk of the Court below, would, in the absence of a rule permitting a different mode of authentication, be the best evidence in this Court of the filing as well as of the con