The record shows that the appellee, Boggs, appeared in the court below by his attorneys. The only notice of appeal, given in the case, was served upon Boggs personally. Section 339 of the Code provides that a copy of such notice may be served upon the adverse party or his attorney; but it affords no light as to the circumstances under which service may properly be made upon one or the other. By section 397 it is provided as follows : ‘£ But in all cases where the party has an attorney in the action or proceeding, the service of papers, when required, shall be upon the attorney instead of the party, except of summons, writs, and other process, issued in the suit, and of papers to bring him into contempt.”
A notice of appeal is not, within the meaning of the Code, either a summons, writ or other process. Tripp v. DeBow, 5 How. Pr. 116.
Where the party has an attorney, notice of appeal, served upon the party himself, has no force or effect whatever. Such is the construction of a similar provision in the California Code. Abraham v. Stokes, 39 Cal. 150; Grant v. White, 6 id. 55.
There having been no positive act of submission to the jurisdiction of this court by the attorney of Boggs, and he having appeared to protest against the validity of the appeal, by moving that it be dismissed upon the ground that the statutory notice had not been given, this court is powerless to save the appeal.
The appeal will be dismissed without prejudice.
' Dismissed.