
    Territory, respondent, v. Harris, appellant.
    Appeals in Criminal Cases. — The notice of appeal must he served in accordance with section 398, division 3, Compiled Statutes of Montana. — In the ease at bar, an appeal had been dismissed for the reason that the notice of appeal had not been served upon the clerk of the district court. The dismissal was without prejudice to another appeal, and leave was granted the defendant to use the same transcript on the second appeal. Defendant refiled the said transcript, with the single addition of the name of the clerk signed to the acceptance of service of the original notice of appeal. Held, that this did not constitute a new appeal.
    
      Appeal f-rom District Court, Lewis and Clarke County.
    
    Wade & Toole, for the appellant.
    W. E. Cullen, Attorney-General, for the respondent.
   Galbraith, J.

This is a motion to strike the above appeal from the calendar, for the reason that no appeal has been taken therein, and also for the reason that this court has no jurisdiction of the case. The following facts appear of record on this motion. On the nineteenth day of December, 1887, the motion for a new trial made by the appellant was overruled, and judgment pronounced against him. On the same day the appellant filed his notice of appeal. The transcript was filed in this court on the twenty-eighth day of December, 1887. On the 14th of January, 1888, this appeal was dismissed, for the reason that the notice of the appeal had not been served upon the clerk as required by law, but without prejudice to another appeal. This was upon the authority of the ease of Territory v. Hanna, 5 Mont. 246, where the same proposition was decided. At the time of the dismissal of this appeal the appellant obtained leave of the court to use the same transcript. On the .14th of January this transcript was filed in this court. The record shows that the notice of appeal is the same as that in the appeal which was dismissed, with the single addition of the name of the clerk of the district court signed to the acceptance of service of the notice of appeal. This is the only notice of appeal which appears in the record. This does not make it another appeal. It is the same appeal as that which was dismissed on the 14th of January, 1888. This is a case similar to Rogers v. Law, 21 How. 526, in which it was held that after an appeal had been docketed and dismissed, under the sixty-third rule of court, at a prior term of the court, the same case cannot be docketed without a new appeal.” This appeal has already been dismissed, and this transcript is stricken from the records of the court.

Motion sustained.

McLeary, J., and Bach, J., concur.  