CüMMiNS, J., delivered the opinion of the court,
MoBbide, C. J., and Kelly, J., concurring. This was an action in replevin, originally commenced and tried in the justice's court for the recovery of specific per*57sonal property, or its value, which was determined in favor of tbe plaintiff. From that court tbe defendant appealed to tbe probate court of Nez Perce county. When tbe cause was called up for bearing in tbe probate court, on tbe fifth of February, 1864, plaintiff, by bis counsel, moved tbe court to dismiss tbe cause, upon tbe ground that tbe probate court did not possess, nor could it exercise, appellate jurisdiction. This motion was allowed by tbe court, and tbe cause accordingly dismissed. From tbis judgment, or order of dismissal, tbe defendant appealed to tbe district court of tbe first judicial district. On tbe first day of April, 1864, tbe cause being called up for bearing in tbe district court, that court reversed tbe judgment of tbe probate court in sustaining tbe motion, bolding that tbe probate court was properly invested with and could exercise appellate jurisdiction, and bence erred in dismissing tbe cause. But wbetber tbe case was remanded to tbe probate court, as would bave been proper under tbis ruling, for further or for any proceedings, does not clearly appear from tbe record before us.
From tbe judgment of tbe district court disallowing tbe motion filed in tbe probate court, and declaring that that court could legally exercise appellate jurisdiction, tbe plaintiff appeals to tbis court. Upon tbis state of facts, tbe respondent files a motion to dismiss tbe appeal upon tbe grounds: -
1. That there is no evidence in tbe record or transcript from tbe court below of service of tbe notice of appeal on tbe respondent.
2. There is no judgment of tbe court below (meaning tbe justice's court) from which an appeal will lie.
As to tbe first point raised by tbis motion, it is true tbe record does not show or contain those facts necessary to constitute legal service of a notice. A certified copy of tbe notice of appeal is set out in tbe transcript, together with a certificate of tbe clerk that tbe appeal was "duly taken to tbe supreme court by the filing and service of tbe proper notice," etc. Tbe rule is well understood that it is for tbe court and not for tbe clerk to determine wbetber an appeal has been properly taken. It is tbe duty only of tbe clerk to *58certify to tbe facts as they exist, in relation to tbe notice and its service; and it is tbe province of tbe court to determine whether these facts constituted legal service - such service as will give this court jurisdiction of tbe respondent. If they do not, the certificate of tbe clerk that a "judgment has been duly appealed," will not obviate tbe defect in tbe record.
Though it does not affirmatively appear on tbe papers in this court that due