(dissenhng). The district court, upon appeal, affirmed the judgment of the county court upon motion, without giving appellant any opportunity to have his case heard upon its inerits. Ought such ac*449tion to be sustained? This is the sole question presented for our determination upon this record.
It is conceded that no authority can be found in support of the action of the district court, unless it grows out of the following section of the statute relating to appeals to that court from the county court:
“Sec. 4. If the appeal be not taken on the same day on which the judgment is rendered the appellant shall serve the appellee, or his attorney of record, within five days after the appeal is taken, with a notice in writing stating that an appeal has been taken from the judgment therein specified, which notice shall be served by delivering a copy thereof to such appellee or his attorney of record. If the appellant fail to give notice of his appeal when such notice is required, the appellee may, at any time before such notice is actually served, and after the time when it should have been served, have the judgment of the county court affirmed or the appeal dismissed, at his option..” Sess. Laws, 1885, p. 159.
In this case the notice of the appeal had been actually served before any steps were taken in the district court by appellee for the purpose of having the judgment affirmed. Hence, it is clear that, by the literal terms of the act, appellee was not entitled to the judgment of affirmance. It is claimed, however, that appellee was within the spirit of the provision. The statute is a harsh one, penal in character, and ought not, in my judgment, to be thus extended by construction. Appellant is not required to give notice of his intention to take an appeal. The notice must be to the effect “that an appeal has been taken from the judgment therein specified.” Prom this it is apparent that the giving of notice is not a necessary step in perfecting the appeal.
The appeal was perfected when the appeal bond was approved and filed. This has been repeatedly announced by this court. The jurisdiction of the district court to affirm the judgment can only be maintained upon the *450theory that the appeal had been perfected. Therefoi’e, the rule requiring statutes providing for appeals to be strictly construed against the appellant has no application. The appeal in this case having been properly perfected, appellee, before he was entitled to have the judgment affirmed, or the appeal dismissed, for failure to give the required notice, must show his right to such a judgment affirmatively, and ask that it be entered. The court cannot act sua sponte. The failure of notice must be shown by affidavit, unless waived; and appellee must, in some appropriate way, give notice to the court of his intention to take advantage of the statute. If he proceeds without doing this, his right is thereby waived. Robertson v. O’Reilly, ante, p. 441. He must also indicate to the court his election as to whether he will have the appeal dismissed or the judgment affirmed. In the case of Law v. Nelson, ante, p. 409, the action of the court was based upon a written motion supported by affidavit; and the convenience of such practice is apparent. Until appellee signifies his intention to avail himself of the statute by filing a motion or affidavit, or in some way invoking action of the court in his favor, appellee should be allowed to serve his notice of appeal, and thereby prevent summary action of the court against him.
By the terms of the act, appellee’s right to have the appeal dismissed or the judgment affirmed, at his election, is made to depend upon his moving in the matter before the notice of the appeal has been served upon him. The appellant is not only given five days in which to serve such notice, but he may do so at any time before appellee becomes an actor and signifies his intention to claim the benefit of the statute.
The written notice of motion provided by the code has, I think, always been construed to require notice simply of the time set for the hearing of the motion; and appellee ought not to be allowed to cut off appellant’s right to give notice of the appeal, and thereby deprive him of *451an opportunity to have his case tried upon its merits, by anything short of an application or notice made or filed with the court. No good reason is perceived why a notice given out of court, by appellee, of his intention to make such an application at a future time, should operate to preclude appellant from giving notice of the appeal, and subject him to the penalty of the statute.
By permitting appellants to give the notice of appeal at any time before steps have been actually instituted in the district court for the purpose of having the appeal dismissed or the judgment affirmed, full force and effect is given to the statute.
In this state county judges are not required to be learned in the law. In fact, these offices are not infrequently filled by those who have never been admitted to the bar, and no strained construction should be placed upon the statute that will result in preventing a review by appellate courts of the merits of cases determined before these tribunals.
The conclusion reached by the majority of the court, in my judgment, is not warranted by the language of the act, and ought not to be upheld. '
Affirmed.