Lewis v. Miller, 4 Greene 95

Opinion by Kinney, J. Motion made in this case to dismiss the appeal on the ground that it was not taken within a year, as notice was not served on appellee within that time. The Code § 1973, requires appeals to be taken within one year from the time the judgment is rendered, and § 1911, provides for the manner of talcing appeals. This is “by service of a notice in writing on the adverse party, his, agent or attorney, and also on the clerk of the court in which the proceedings were had,” &c.

It appears from the record that the notice upon the clerk was in time, and the transcript was duly filed in this court, but as the appeal can only be taken by service upon the adverse party and cleric, and as service upon the party is just as essential as upon the clerk, it follows that unless the statute in this particular has beeu complied with, the appeal is not properly in this court, and should be dismissed. The object of the notice upon the clerk is to-authorize him to make the transcript, and this notice is substituted for, and performs the office of the writ of error .under the former practice.

But the opposite party can only be made appellant by the service of notice upon him. It is as necessary in order to make him a party in this court as the original notice or writ in the court below. L. B. Beeves, for the motion. J. 0. Hall, against. Motion granted.