
    Decided April 12, 1910.
    MUCKLE v. COLUMBIA COUNTY.
    [108 Pac. 120.]
    Appeal and Error — Notice op Appeal — Necessity for Indorsement of Service on Notice.
    1. Compliance with Section 549, B. & C. Comp., providing that, when notice has not been given in open court, appellant must, within six months from entry of the judgment, file with the clerk of the court in which the judgment is rendered the notice of appeal, with the proof of service indorsed thereon, is jurisdictional.
    Appeal and Error — Notice of Appeal — Service by Officer Who Is Appellant.
    2. A sheriff cannot serve the notice of appeal in a case in which he is an appellant.
    From Columbia: James U. Campbell, Judge.
    This is an action by James Muckle and Charles. Muckle, against Columbia County, and Martin White, sheriff. From a judgment in favor of plaintiffs, the defendants appeal.
    Dismissed.
    
      
      Mr. Lionel R. Webster and Messrs. Dillard & Day for the motion.
    
      Mr. Edmund B. Tongue and Mr. M. E. Miller, contra.
    
   Mr. Justice Eakin

delivered the opinion of the court.

Judgment was rendered in this cause on July 21, 1909. The notice of appeal therefrom was filed January 21, 1910, but no proof of service was indorsed therein. One of the appellants, Martin White, sheriff, on February 18, 1910, obtained ex parte leave from the lower court permitting him to attach to the notice of appeal the certificate of said Martin White, a sheriff, that he had served the notice on January 21, 1910.

By statute (Section 549, B. & C. Comp.) it is provided that, when notice has not been given in open court, appellant must, within six months from the entry of the judgment, .file with the clerk of the court in which the judgment is rendered the notice of appeal, with the proof of service indorsed thereon. Compliance with this requirement is jurisdictional: Briney v. Starr, 6 Or. 207; Henness v. Wells, 16 Or. 266 (19 Pac. 121); Dowell v. Bolt, 45 Or. 89 (75 Pac. 714); Rodman v. Manning, 50 Or. 507 (93 Pac. 366).

Neither can the sheriff serve the notice of appeal in a case in which he is a-party appellant: Williams v. Schmidt, 14 Or. 470 (13 Pac. 305). Section 539, B. & C. Comp. Each of these defects is fatal to the appeal.

The appeal is dismissed. Dismissed.  