The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1900-05-30
IN DOUBT AS TO THE LAW.
Judge Otis Denies Betz's Motion to
Dismiss Appeal.

Judge Otis, of the district court, yes
terday filed his order denying the motion
of Louis Betz, mace by his attorney, ].
G. Michael, at special term of court last
Saturday, to dismiss the appeal and
points of contest, in the matter of the
contest Of j. ]. McCardy of the election of
Louis Betz to the office of city comptrol-
Ter, on the ground that the court never
acquired and has not now any jurisdic-
ton in the premises.
Accompanying the order, the court filed
the following explanatory memorandum:
This IS a motion to dismiss the appeal
from the award of the canvassing board
upon the ground that the notice of appeal
was insufficient to confer jurisdiction
upon the court 1t is not claimed that
the appellant was not entitled to take an
appeal or that the record, as it now
stands; taken as whole, does not amply
show such right. Such right, however
in that it does not disclose that the APP
pellant was either a candidate or electof
and it is insisted that the notice is in
this respect fatally defective.
Assuming that the notice mentioned in
section l72, General Statute 1894, must be
given when an appeal is taken by
to be so held in Duryea VS. Sibley Is N.
W., S65, do not think the statute con-
templates that such notice must contain
any allegation showing that the party
court is entitled to appeal. Such right,
the same as any other point the con-
teStant seeks to raise, would more prop
erly appear in the grounds of contest
which he is required to serve upon his
adversary, and which stands as his Plead
ing in the case. The statute nowhere
defines what this notice of appeal shall
contain, 1t is not necessary to serve it
upon the adverse party, nor is he or any
one else called upon to take any action
whatever by reason of it. 1t simply oper-
ates as notice that an appeal has been
taken, and it is of no effect unless fol-
lowed up by the service of points of con-
test as prescribed by the statute In
this respect, the requirements of the stat
ute radically differ from the statutes con-
strued-in the decision cited and relied on
by contestee'S counsel, where the notice
and grounds of contest are all embraced
in one paper and which constituted as it
were both summons and complaint in the
proceeding. Ii is certainly necessary and
proper that the right to appeal should
be made to somewhere appear of record
in the course of the pieadings and if
controversial evidence would be neces-
Sary to sustain such issue. But where
the notice and grounds of contest are
different papers 1t would seem that the
notice partook rather of the nature of a
summons In a civil action, to be followed
by a proper pleading in which should
appear proper avermentS of contestants
rights and grievances in the premises
Until this pleading is served the party
awarded the office is not required to act
at all, and when it is served he is then
appraised of every matter of contest nee
essary for his defense"
'P. S.-While Duryea VS.. Sibley, cited
above, must be accepted as the law of
this court until overruled, it does not
accord with my views as to the construc-
ton to be given to the act of 1S99 That
is wholly independent act repeating all
other legislation on the subject Section
1S5 (section $780, Gen. Stat 1880 expressly
provides what notice contestant for a
city office shall give, and I can see no
reference to section 167 (section 172, Gen.
Stat. 1890, as the court has done in the
case cited. It seems to me such refer
ence was intentionally omitted by the
legislature. Otis, J."