PERNELLA NORTH, Appellant, v. R. J. CLARKE, Appellee

Argued December 2, 1924. Decided January 6, 1925.

Johnson, C. J., Witherspoon and Bey-Solow, JJ.

It is the notice of appeal duly issued and served upon appellee which confers jurisdiction upon the appellate court over the appellee.

Mr. Justice Witherspoon delivered the opinion of the court:

Objection to the Probation of a Will-Appellee’s Motion to Dismiss Appeal. At the call of this case the appellee submitted a motion for the consideration of the court asking that the court dismiss the appeal for the reason that there had not been issued and served upon the appellee the notice of appeal as is required by law; and citing in his argument the Act of 1894 regulating how appeals are to be taken.

Appellant contended that the duty of giving notice to appellee in appeals is settled upon the clerk of the court, and his failure to do so should not prejudice the rights of appellant.

This contention at first sight might in sympathy carry great force; it is quite differently regarded in a court of justice. The paramount object of a court is to impart justice according to the law of the land, within the bounds of which it is confined.

This court is of the opinion that the notice of appeal occupies a most conspicuous place in an appeal. It is the notice that completes the appeal, and it cannot be contended with legal force that the appellate court should enter upon the trial of a case with an incomplete record. We are of the opinion that it is the notice in appeal cases that gives the appellate court jurisdiction over the appellee, and this has been repeatedly set forth in the decisions handed down from time to time by this court.

The notice of appeal in the appellate court performs the same office that the writ of summons performs in the court of original jurisdiction. And where it appears that the notice has been given this court is bound to take notice and give the necessary relief. (See Kwasi Adai v. Jackson et al., Lib. Semi Ann. Series, No. 4, p. 23.) See also the opinion of this court handed down at the June term, 1913 of this court; a very elaborate comment was made upon the effect of the failure of serving notice of appeal upon the appelle.3, which we feel should be upheld by the court, there being no reason shown to the contrary. (See the case Greaves v. Johnstone, Lib. Semi Ann. Series, No. 2, p. 4.)

This case should be dismissed with costs against appellant. And it is so ordered.

J. W. Cooper, and John W. Taylor, for appellant.

R. E. Dixon, for appellee.