Bert and Susie WAUNEKA, Appellants, vs. Franklin NESWOOD, Appellee
Wauneka v. Neswood
4 Navajo Rptr. 69
Bert and Susie WAUNEKA, Appellants, vs. Franklin NESWOOD, Appellee.
No. A-CV-16-83
COURT OF APPEALS OF THE NAVAJO NATION
September 26, 1983
Bert and Susie WAUNEKA, Appellants, vs. Franklin NESWOOD, Appellee.
Gary E. Larance, Esq., Window Rock, Navajo Nation (Arizona) for Appellants. Eric R. Biggs, Esq., Window Rock, Navajo Nation (Arizona) for Appellee.
This opinion deals with the meaning of the requirement that appeal papers be served by delivery and by means of "personal service or by certified mail." 6(a), Rules of Appellate Procedure. The facts in this case lead to the determination made by the court. The notice of appeal in this case was filed on July 5, 1983. The appeal is from a judgment of the Window Rock District Court on June 2, 1983. The certificate of service on the notice of appeal indicates that the notice was "delivered" to opposing counsel on July 5th.
The file also contains a photocopy of an envelope addressed to Eric Biggs, dated July 12, 1983. The envelope was apparently one for first class mail, since there is a 20 cent stamp on the envelope.
The appellee has moved to dismiss the appeal on the ground that Rule 6(a) was not satisfied. There was a subsequent motion to amend the appeal by adding a certificate of service showing service of a copy of the appeal papers by means of certified mail on August 25, 1983.
Apparently there was an attempt to make personal service upon the appellee's counsel on July 5th, but he was not in his office. The problem is that even if Mr. Biggs was not in his office at DNA, there is nothing in the record to show service upon him by leaving a copy of the papers with his secretary. This court must dismiss actions which are not filed within the statutory period because it is jurisdictional. However the court will have to look at the substance of what happens when looking at service questions. It should be noted that the courts indicate that service requirements should be complied with, "although minor deviations from the specified procedure will not necessarily be fatal to the appeal." 4 Am.Jur.2d, Appeal and Error Sec. 320. Some courts require that "personal service" rules be complied with by actual service upon the person to receive the document, while others have upheld service on a guardian or at a place of residence. See, Tripp v. Santa Rosa Street Railroad Company, 144 U.S. 126 (1982); "Service", 'Personal Service', Black's Law Dictionary, p. 1534 (4th Ed. 1968).
The rule is properly interpreted as indicating that service of appeal documents must be made on the same date as the appeal is filed, or if the filing is by mail, the appeal papers should be sent to the clerk of court and counsel at the same time. A service by first class mail is not a "minor deviation" from our role. "Personal Service" for the purposes of our rule will include personally delivering copies upon the individuals entitled to notice (the opposing party or his counsel) or leaving copies at the place of residence of the opposing parties or with the office secretary or staff person of counsel.
In this case there is no showing there was any attempt to either leave copies with the attorney for the appellee or to mail the papers to him by certified mail on the date they were filed. Therefore service was improper.
The court also notes that the proper date for the filing of the appeal was July 2nd, and not July 5th and that the jurisdictional requirement was not met.
Finally, certificates of service must show the precise method of service upon counsel or a party, and they must show the exact date of service.
Therefore this appeal is hereby DISMISSED.