#### Ketchum vs. Freeman.

*Notice of appeal: Jurisdiction.-*— Judgment *for costs*— Estoppel.

1. Where no notice of an appeal from a justice of the peace has been served, the circuit court does not acquire any jurisdiction — not even to render judgment against the appellant for costs on dismissing the appeal.

3. The facts that the party against whom judgment was rendered by the justice of the peace filed an appeal bond and paid the state tax, and that, knowing of the order dismissing the appeal, he did not move to set aside the judgment for costs for more than a year, and did not offer to pay the judgment injustice’s court, do not estop him from denying the validity of the judgment for costs on appeal.

APPEAL from the Circuit Court for *Trempealeau*County.

A judgment for $33.60 having been rendered against the plaintiff, in May, 1861, in an action before a justice of the peace, he undertook to appeal, filed his appeal bond, which was approved, and the justice, in July, 1861, returned the testimony, proceedings and judgment to the circuit court, certifying that “plaintiff filed bond and perfected his appeal June 5th, 1861; ” and further, that his fees and the suit tax were paid on the same day. It appears, however, that the notice of appeal and the affidavit required by sec. 205, ch. 120, R. S., were never presented to the justice. In April, 1862, the circuit court, on defendant’s motion, made an order reciting that the cause had been continued on the calendar for two terms, without having been brought to trial, and directing the appeal to be dismissed. In July, 1867, the clerk entered a judgment for the costs, and'docketed the same, as of April, 1862; and a transcript was filed in Monroe county, and execution issued. In September, 1868, plaintiff moved that the judgment and all subsequent proceedings be set aside. Defendant filed an affidavit stating, among other things, that plaintiff ’ s attorney *297knew, at tke time, tliat tke appeal kad keen dismissed, and affiant was informed and believed-tkat plaintiff kirn-self knew tke fact at tke time, or soon afterward, but kad taken no steps, until said September, 1868, to set aside tke order of dismissal, or to pay tke judgment in tke justice’s court, or in tke circuit court, but kad allowed said action to rest for over five years, to tke great injury of defendant; tkat some of defendant’s witnesses, wko were sworn on tke trial of said action, kad since died, and others kad left tke state, and plaintiff kimself kad left tke state, and now resided in New York, . and kad no property in tke state liable to execution. Tke court refused to set aside tke judgment, etc., and plaintiff appealed.

*Newman <&*Button, for appellant,

to tke point tkat tke judgment for costs was void, cited *Mitchel v. Ken*nedy, 1 Wis. 511; *Pelton v. Blooming grove,*3 id. 310; *Brearley v. Warren,*id. 397; *Pratt v. Brown,*4 id. 188 ; *Ohinnock v. Stevens,*23 id. 396 ; *Latham v. Fdgerton,*9 Cow. 227. 2. A void judgment may be set aside on motion at a subsequent term, and after one year. *Sayles v. Davis,*20 Wis. 302 ; *2Etna Life Ins. Go. v. McCormick,*id. 265; *Weatherbee v. Weatherbee,*id. 499; *Swezey v. Bartlett,*3 Abb. (N. S.) 444;- *Dederick v. Pichley,*19 Wend. 190. 3. Lackes or lapse of time cannot affect a jurisdictional question. *Titus v. Pelyea,*16 How. Pr. 371; *Swezey v. Bartlett, supra.*

Or. *T. Freeman,*respondent,

in person, contended tkat plaintiff kad been guilty of gross lackes (R. S., ck. 125, §§ 38-40; 17 Wis. 58 ; 14 id. 200; 6 id. 164; 20 id. 265; 1 How. Pr. 245); and tkat, after filing kis bond, reciting tke appeal, and taking all tke other steps kere taken, ke was estopped from denying tke appeal. 1 Wis. 382; 10 id. 443 ; 12 id. 466.

Paiíte, J.

It is evident tkat tke appeal from tke justice was never perfected, so.as to give tke circuit court any jurisdiction of tke case. Tke notice of appeal, wkick *298is absolutely essential, was never served. The circuit court had, therefore, no power to render a judgment for costs, as has been decided by this court. *Mitchell v.*Kennedy, 1 Wis. 511; *Pratt v.*Brown, 4 id. 188.

In *Paine v. Chase,*14 Wis. 653, this court held that, where a writ of error was sued out of this court, and was dismissed because there was no judgment to which it would lie, judgment for costs on such dismissal might be rendered here. Perhaps some of the reasoning of the chief justice, as well as that in some of the cases cited by him, would tend t.o sustain a different conclusion from that arrived at in *Mitchell v.*Kennedy, and *Pratt v. Brown.*But the case was distinguished from them upon the ground that the suing out of a writ of error was commencing a new suit in this court, of which it had jurisdiction, at least so far as the parties were concerned; and the former cases were not overruled. The practice having been settled by them, we are not inclined to disturb it.

The judgment for costs was, therefore, improper and void for want of jurisdiction to render it; and it ought to have been set aside on motion. *Sayles v.*Davis, 20 Wis. 302; *Insurance Co. v.*McCormick, id. 265.

There is no ground for applying the doctrine of estop-pel. Parties to judicial proceedings are bound to take notice whether the court has jurisdiction to render any judgment which they ask for against others ; and, if not, they must be held to take such judgment at their peril.

*By WCé Court.*— The order appealed from is reversed, with costs, and the cause remanded, with directions to grant the motion.