
    McManus v. Swift et al.
    
    Appeal: no notice on clerk below : dismissal. There being nothing in the record of this case, as presented to this court, to show that notice of the appeal has been served on the clerk of the district court from which it comes, as required by section 3178 of the Code, this court has no jurisdiction except to dismiss the cause ; and this it must do, although the question is not raised by counsel.
    
      Appeal from Madison District Court. — Hon. A. W. Wilkinson, Judge.
    Filed, January 21, 1889.
    
      V. Wainwright, for appellant.
    
      T. C. Gilpin and John Leonard & Son, for appellees.
   Reed, C. J.

— This cause was submitted on an abstract which shows that a judgment was rendered in favor of plaintiff in the district court. It does not show, however, that an appeal has been taken to this court, and no transcript of the record was filed. The recital in the abstract is that “ defendant Ed. Swift filed notice and acceptance by plaintiff’s attorney of appeal to October term, 1888, of supreme court, on May 2, 1888.” There is no recital of the service of the notice on the clerk. Under the statute (Code, sec. 3178), services on the clerk is essential, and an appeal cannot be taken'without it. The question was not made by counsel, but it is jurisdictional, and we cannot consider a cause, unless it is shown by the record that we have jurisdiction, even though no question as to dur jurisdiction is made by counsel. In the condition in which the case appears to be, the only disposition we can make of it is to dismiss it, and that order will be made.

Dismissed.  