
    Sorenson v. Donahoe.
    1. Service oí a copy oí a notice of appeal from a justice’s court to the circuit confers no jurisdiction on the county court, though the original notice designate that court instead of the circuit court.
    2. Where the county court obtains no jurisdiction of an appeal from a justice’s court because the notice of appeal is insufficient, it cannot affirm; it can only dismiss.
    (Opinion filed July 12, 1899.)
    
      Appeal from Minnehaha county court. Hon. W. A. Wilkes, Judge.
    Action in justice’s court by Louis Sorenson against Den Donahoe. There was a judgment for plaintiff, and an appeal was .dismissed by the county court, which also affirmed, the judgment, and defendant appeals.
    Modified.
    The facts are stated in the opinion.
    
      G. B. Krause, for appellant.
    
      P. J. Bocjde and G. P. Bates, for respondent.
   Fuller, J.

The following are the facts and circumstances upon which a notice of appeal from a justice of the peace to the county court'was held insufficient to confer jurisdiction: After the entry of judgment lor plaintiff in justice court, and within the time provided by law, defendant’s counsel served his notice of appeal uppn one of the attorneys for plaintiff by delivering to him the following copy, the receipt of which was duly admitted on the original: “Please take notice that the defendant in the above-entitled actipn appeals from the whole of the judgment rendered and entered therein on the 30th day of November, A. D. 1897, in favor of said plaintiff and against said defendant, for the sum of seventy-five dollars, debt and damage, and costs taxed at twenty-nine and 40-100 dollars, to the circuit court. Second judicial - circuit, in and for Minnehaha county, upon questions of law and fact, and demands a new trial. ” The principal contention arises over the fact that the circuit court, instead of the county court, is designated in the copy as the forum to which the appeal was taken, and, upon the face of the original notice of appeal, pen marks are drawn over the typewritten woi'd ‘ ‘circuit, ” and the word ‘ ‘county,” written with pen and ink appears above the line. From the sharply conflicting testimony concerning the point, a finding by the trial court, either that this change was made before the original notice of appeal was served or not until a later time, would be amply sustained; and, be that as it may, the copy served in the manner provided by section 6129 of the Compiled Laws, and upon which respondent rightfully relied, was a notice of appeal to the circuit court, and conferred no jurisdiction upon the county court, No argument or citation of authority is needed in support of a point so obviously beyond controversy. As the dismissal of the appeal operated merely to remit the parties to such legal rights as may be found to exist, the county court was without jurisdiction to affirm upon its merits the judgment rendered by the justice of the peace, and its action with reference thereto should be vacated and set aside. Thus modified, the judgment appealed fr«m is affirmed.  