Opinion
No. 1499.
October Term, 1897.
APPEAL from the District Court of the State of Nevada, White Pine county; G. F. Talbot, District Judge:
R. M. Clarke, for Appellant.
Thomas Wren, for Respondent:
Respondent objects to the consideration of this appeal and moves the court to dismiss the same upon the ground that no notice of appeal was served upon the respondent or his attorneys, at any time, by appellants or their attorneys. (Gen. Stats. 3353; Johnson et al. v. Badger M. M. Co. et al., 12 Nev. 261.)
Motion by W. H. H. Spafford to dismiss an appeal taken by the White River Valley Land and Live Stock Company, Appellants, and Mary C. Millspaugh, Intervenor. Appeal dismissed.
Counsel for respondent moved this court to dismiss this appeal on the ground that no notice of appeal was served on the respondent. The record shows that the notice and undertaking were filed on the 25th day of March, 1897, and the proof of service shows that the notice was served on the 19th day of March, 1897. "To render an appeal effectual the filing of the notice of appeal must precede or be contemporaneous with the service of the copy, otherwise that which purports to be a copy fails as such for want of an original to support it." ( Lyon County v. Washoe County, 8 Nev. 177.)
"The appeal is taken by filing and serving the notice." ( Lambert v. Moore, 1 Nev. 344; Peran v. Monroe, 1 Nev. 484.)
To render an appeal effectual for any purpose, in any case, a written undertaking executed upon the part of the appellant must be filed, or the required deposit of money made with the clerk, within five days after the notice of appeal is filed. (General Statutes, sec. 3363.)
"In order to take and perfect an appeal, the appellant should first file his notice of appeal, next serve it, and within five days of the filing of the notice, file an undertaking on appeal; the service of the notice must precede or be contemporaneous with the service." ( Reese M. Co. v. Rye Patch M. Co., 15 Nev. 341.)
Upon the plain provisions of the statute and the above authorities the appeal in the case is dismissed.