¶1I respectfully dissent from that portion of the decision in this case which denies the respondent’s motion to dismiss the appeal. It is conceded that the record. *67fails to show any service of 'the notice of appeal upon the clerk of the court in which the judgment appealed from was entered. The service of such notice was an essential requisite of the appeal,— made so by the statute, in language as plain as printed words can make it. Sec. 3049, Stats. 1898, says: “ An appeal must be taken by serving a notice in writing, signed by the appellant or his attorney, on the adverse party and on the clerk of the cou/rt in which the judgment or order appealed from is entered.” Presumably, the requirement that the notice should be served upon the clerk was put into the statute for some useful purpose. Sec. 2820 provides that such service may be made by delivery of a copy thereof to the clerk, or, if not found, at his office or residence. Respondent’s motion is based upon the fact that no such service has been made. Yates v. Shepardson, 37 Wis. 315, cited in the opinion, holds distinctly that cases can only be brought to this court by appeal in the manner prescribed by the statute. "When the record fails to show compliance therewith, unless such proof is furnished, clearly the appeal should be dismissed. If the record fails to show such a notice given, the presumption is that such notice was not given. If the legislature meant that filing the original notice with the clerk was sufficient notice to him, it would have been an easy matter to have said so. They did not say so. They said the appeal must be taken by service of a notice in writing upon the clerk. Tiling an original notice with him is no more a service upon him than it would be service on the attorney. He is made the legal custodian of the papers in the case, and they are to be filed with him after the usual steps have been taken to secure jurisdiction. To say that such filing is to be deemed equivalent to service upon him is contrary to the express requirements of the statute, and repugnant to all rules of practice in such cases. Against this construction of the law_I desire my protest to be entered.
104 Wis. 61
Mackin v. Madden
Decided September 26, 1899
Wisconsin Supreme Court · decided 1899-09-26
S. GilsoN, Circuit Judge. Patrick Madden, deceased, willed his property as follows: To his wife for life, remainder over, one half of the real estate to Phillip Madden without incumbrance, $100 to his daughter, Elizabeth Coleman, $5 to Andrew Madden, and the rest and residue, after the payment of all of his debts, to Mary Ann Brown. Substantially all the property possessed by the testator at the time of his death was a homestead incumbered by a mortgage.
Relies on Yates v. Shepardson
Good law ✅— No negative treatment on recordhow we know
Reversed · Decided 1899-09-26
How this case has been cited
Cited by 13 later decisions — most recently December 1943
13 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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