After the caption of the case, the notice of the appeal is as follows: "To A. G. Kingsbury, W. A. Gilmore, His Attorney, and Hon. T. M. Reed, U. S. Commissioner and Ex Officio Justice of the Peace: "You and each of you will please take notice that the defendant in the above-entitled action hereby appeals to the United States District Court for the District of Alaska, Second Division, from the judgment rendered and entered in the said U. S. Commissioner's court by the said Hon. T. M. Reed, U. S. Commissioner and ex officio justice of the peace, on the 12th day of February, 1906, in favor of said plaintiff and against said defendant, and from the whole thereof. "This appeal is taken on questions of both law and fact. "Dated at Nome, Alaska, this 14th day of March, 1906. "W. H. Bard, Attorney for Defendant." A notice of appeal from a commissioner's court is a species of judicial process (Driver v. McAllister, 1 Wash. T. 368), whose sufficiency must appear to the court on its face. The notice of appeal must be adequate, and there must be proper service thereof, or this court acquires no jurisdiction of the person. In these particulars the notice bears a strong resemblance to a summons. The statute requires that in an action for the recovery of money or damages the summons shall state what sum judgment shall be taken for upon default, and in other actions the summons must state that upon default of the defendant to answer the plaintiff will apply for the relief demanded. Section 44, Code Civ. Proc. Alaska. There is no reason why the process which summons the defendant into the commissioner's court should designate the judgment that will be taken upon default, while the process which brings the respondent into this court upon appeal and begins a proceeding de novo should be less specific. The purpose of the notice of appeal is to apprise the respondent of the institution of the appeal in a particular case. In passing upon a motion of this kind the court cannot consider any supposed actual knowledge alleged to exist in the mind of the respondent as to an action previously tried in the commissioner's court as supplementing in any manner the facts set forth in the notice of appeal. The sole question is: Does the notice of appeal on its face disclose such facts that the law will arbitrarily infer actual notice would be given even to a stranger? State v. Hanlon, 32 Or. 95, 48 Pac. 353. In seeking an answer to this question, the peculiarities of the jurisdiction and practice in the commissioner's court must constantly be borne in mind. For this reason decisions upon the sufficiency of notices in appeals from a court of general jurisdiction cannot throw much light upon the present inquiry. The essentials of the notice are well set forth in Neppach v. Jordan, 13 Or. 246, 10 Pac. 341, as follows: "The notice of appeal must be directed to the adverse party, and must inform him that the appellant appeals from the judgment. The court must be able to identify the judgment from the notice. ** A judgment is sufficiently described when the court in which it is rendered is given, the names of the parties to the judgment, the date of the judgment, and for what it was rendered." We have heretofore, in the case of United States v. Sam. Larsen (428 Crim.) 2 Alaska, 577, decided that a notice of appeal in a criminal case tried before a commissioner does not sufficiently describe the judgment appealed from unless the notice of appeal states what crime the defendant was convicted of. To say in a criminal case that the defendant appeals from the "judgment of conviction," or in a civil case from the "judgment in favor of said plaintiff and against said defendant," describes no judgment, since the very fact of an appeal being taken by the defendant, in both instances, shows the only thing the notice pretends to disclose, namely, a judgment adverse to appellant. There must be something to show "for what the judgment was rendered." In civil matters the commissioner has jurisdiction for the recovery of money or damages, to the extent of $1,000; for the recovery of specific chattels, not exceeding in value $1,000; in an action for a penalty, to the same extent; and also, in the statutes of forcible entry and detainer, may render a judgment for the possession of realty. Here are at least four different matters which may be litigated under the civil jurisdiction of a commissioner's court. If the crime of which a defendant has been convicted in a criminal case must be set out in the notice of appeal in description of the judgment, so in a civil action, by a parity of reasoning, must the notice of appeal designate on which of the four or five subjects mentioned a judgment has been rendered. A notice of appeal, which, after giving the caption of the case, describes the judgment only as a judgment in favor of said plaintiff and against said defendant, could be fit to a judgment rendered on an action based. on a contract, on a tort, for the possession of a horse, or for the possession of a house and lot. A notice is defective if the description of the judgment contained therein disagrees with the judgment disclosed in the transcript. Ream v. Howard, 19 Or. 491, 24 Pac. 913. And, if the description of the judgment is so scanty that it is impossible to determine whether or not there is an agreement or a disagreement between the judgment and the notice, the effect is the same. The notice is unintelligible and fails of its purpose. There must be sufficient data in the notice by which to make a full comparison, and a comparison cannot be made by comparing three particulars of the description in the notice with the record or transcript of judgment. Both might agree as to the title of the court, the parties, and the date even on which judgment was rendered, and yet differ entirely as to the most important particular; that is, "for what the judgment was rendered." We concur with Judge Brown in Weitzman v. Handy, 1 Alaska, 658, and with the dissenting opinion of Dunbar, C. J., in State ex rel. Maltby v. Superior Court of Spokane County, 7 Wash. 223, 34 Pac. 922, in suggesting that there may be more than one judgment rendered in the same court on a certain day and between the same parties. True, such might be unusual; but a rule of law must cover the ordinary as well as the exceptional. We are clearly of opinion, therefore, that the notice of appeal in this case fails to describe the judgment with sufficient certainty, and that our conclusions herein are fully sustained by the great weight of authority in Oregon, from which state our own statute has been copied, as well as the ruling of the District Court for the District of Alaska, First Division. See Neppach v. Jordan, 13 Or. 216, 10 Pac. 341; Lancaster v. McDonald, 14 Or. 264, 12 Pac. 374; Crawford v. Wist, 26 Or. 596, 39 Pac. 218; Beck v. Thompson, 35 Or. 182, 57 Pac. 419, 76 Am. St. Rep. 471; Weitzman v. Handy, 1 Alaska, 658. Nor is the opinion expressed herein inconsistent with the cases cited by counsel for appellant, except possibly the very weak case of State ex rel. Maltby v. Superior Court of Spokane County, 7 Wash. 223, 34 Pac. 922. On the other hand, most of them sustain the present position. The case of United States v. Adams, 6 Wall. 101, 18 L. Ed. 792, was a motion to dismiss an appeal from the United States Court of Claims. The act of March 3, 1863 (12 Stat. 765, c. 92, § 5), provides that: "Either party may appeal to the Supreme Court, where the amount in controversy exceeds $3,000, under such regulations as the said Supreme Court may direct: Provided, that such appeal shall be taken within ninety days after the rendition of such judgment or decree." Under this statute the Supreme Court laid down certain rules regulating appeals. Before the period of 90 days had elapsed the United States filed with the clerk of the Court of Claims the following: "Theodore Adams v. The United States, 1886. "The United States, by E. P. Norton, its solicitor, makes application to the honorable Court of Claims for an appeal of the case of Theodore Adams v. The United States to the Supreme Court of the "Solicitor for the United States." After the expiration of the period of time allowed at the next session of the Court of Claims, the solicitor for the United States moved for an allowance of the appeal, and the following day the court allowed the appeal. When the case was called in the Supreme Court, a motion was made to dismiss the appeal, because the order of allowance was made after the expiration of the 90 days. The Supreme Court, speaking through Justice Miller, held that taking an appeal was under the statute a matter of right, that "no regulation of the Supreme Court, nor any judicial discretion of the Court of Claims could deprive either party of the right" to appeal, "though the former may frame appropriate rules in accordance with which the right must be exercised"; that, as the right depended upon the volition of the party alone, his act in filing the notice in the clerk's office before the expiration of 90 days was a clear indication of his intention, and was a "taking," within the meaning of the statute; and that the order of allowance, the act of the Court of Claims, was not the "taking" of the appeal. It is obvious that this case bears no resemblance to appeals from a commissioner's court. Under our Code, one of the conditions on which an appeal may be taken is that a notice shall be served on the opposite party or his attorney. The right to appeal is conditional; whilst in the case cited it was an absolute right. What the Supreme Court decided was that the notice was sufficient evidence of an intention to exercise a right already given; not, as in the case before us, a notice which must be complete before a right is initiated. It is perfectly plain that a paper might evidence an intention to exercise a right, and still not comply with the conditions upon which a right is conferred. |