ages, and no appeal taken within said time as provided by statute. (2) No notice of appeal was ever served on the defendant of the taking of said appeal, within sixty days from the time of the assessment of damages by the commissioners."

Certain affidavits were filed, as well by the appellant as by the defendant, and considered by the court in disposing of the above objection, one or more of which will be hereinafter referred to. On the third day of October, 1885, the district court sustained the objection of the defendant to its jurisdiction to entertain the said appeal and try said cause, and thereupon dismissed the said appeal at the costs of the plaintiff. The plaintiff brings the cause to this court on error.

The errors assigned are: (1) The court erred in dismissing the appeal in said cause, and in dismissing said cause; (2) the court erred in rendering judgment for the defendant in said cause.

Section 97 of chapter 16 of the Compiled Statutes, after providing for the selection and summoning of six disinterested freeholders of the county for the purpose of assessing damages, where the right of way for railroads is sought to be appropriated, and pointing out the duties of such freeholders as commissioners in making, certifying, and reporting such assessment, contains the following proviso: "Provided, that either party may have the right to appeal, from such assessment of damages, to the district court of the county in which such lands are situated, within sixty days after such assessment; and, in case of such appeal, the decision and finding of the district court shall be transmitted by the clerk thereof, duly certified, to the county clerk, to be filed and recorded, as herein before provided, in his office," etc.

As to how such appeal shall be made or taken, what papers filed or oaths taken, or whether any, the statute is wholly silent. And yet it will not be denied that something must be done to bring the case within the jurisdiction of the district court. Nor will it be denied that whatever must be done to give the appellate court jurisdiction must be done within 60 days after such assessment. The word "assessment" here doubtless covers all the official acts of the commissioners or assessors in respect to the real estate in question necessary to its appropriation; so that the 60 days, during which the right of appeal is declared to exist, commences to run upon the performance of the last official act of the commissioners, to-wit, the making of their report in writing to the county judge of the county; that is to say, delivering their report to said county judge.

As above stated, it will not be denied that it is necessary that something must be done by the party who would avail himself of the right of appeal guarantied to "either party" by the statute above quoted; and whatever that thing is, or those things are, it cannot be something that is merely voluntary on his part, which he may do or not do, and still, by the doing of some other or different thing, bring himself within the benefits of the law, and give the appellate court jurisdiction of his case.

In the case at bar, the plaintiff served a notice on the county judge that he appealed to the district court from the finding and award of the commissioners,etc. This notice was served within 60 days from the assessment of damages. He also served a like notice, addressed to the defendant company, upon a person who had acted as right-of-way agent, or assistant right-of-way agent, of the defendant company, in and about the said condemnation proceedings. This notice was also served, as aforesaid, within 60 days from the assessment of damages. Whether this person was such an agent of the defendant company upon whom service of process or of notice, in a proper case, could be made as upon said corporation, is a question raised and discussed in the briefs, but which, with my views of the controlling question involved in the case, it is deemed unnecessary to decide. The plaintiff also, within 60 days from the assessment of damages, filed in the district court a petition against the said

railroad company based upon his claim for damages for such right of way greater than those awarded by said commissioners.

Were either or all of these proceedings sufficient to constitute an appeal, and to give the district court jurisdiction of the case? So far as notice is concerned, I remember no case, nor are we cited to any, where notice to the opposite party has been held to be a jurisdictional matter, in case of appeal, under any statute. It has often been held to be the right of an appellee to have notice before the appellant would be permitted to proceed with the case, but not as a matter of jurisdiction.

In the case of Republican Val. R. Co. v. Linn, 15 Neb. 234, S. C. 18 N. W. Rep. 35, it was assigned for error that the district court overruled a motion to dismiss the appeal for the want of notice. The point was disposed of in this court upon the consideration that both parties in that case appealed from the award of the commissioners; but, in writing the opinion, I made a thorough search of the authorities, and rather from what I failed to find reached the conclusion that no notice was necessary, even outside of the consideration that there were mutual appeals in that case. I am still of that opinion; and, if I am correct, then the reverse of the proposition is equally true, and the service of notice in such cases, being unnecessary, is voluntary and gratuitous, and confers no jurisdiction on the appellate court.

In the case of Nebraska Ry. Co. v. Van Dusen, 6 Neb. 160, the error assigned was that the district court dismissed the appeal of the railroad company on motion of Van Dusen; the ground of such motion being-First, that "no appeal-bond had been given;" and, second, because the plaintiff "had not prosecuted its appeal as provided by law." In the opinion reversing the case, the court, by Judge GANTT, said: "In appeals from the assessment of damages in cases like the one at bar, it is not essentially requisite to file pleadings in the district court, and it has not been usually the practice to do so." If, then, it is not necessary to file pleadings in eases of this kind, the gratuitous and unnecessary filing of a petition therein cannot be held to supply the want of such papers or proceedings as are requisite.

The general understanding of the profession in this state has been, as I believe, that the essentially requisite proceeding to perfect an appeal from the award of commissioners in a case of this kind, and to give the district court jurisdiction of the same, is to file in the said court, or in the office of the clerk thereof, a certified transcript, from the county judge, of the condemnation proceedings, from the original application to said county judge for the appointment of commissioners to the report of such commissioners in the respective case, both inclusive.

The case of Republican Val. R. Co. v. McPherson, 12 Neb. 480, S. C. 11 N. W. Rep. 739, arose upon "an original action brought in the district court by Mrs. McPherson to reinstate her appeal, which had been dismissed by said court for the reason that a transcript had not been filed therein within sixty days from the assessment of damages. In her petition she alleged that the right of way over her land was condemned, for the use of said railroad company, on the seventh day of November, 1879; that no record of said proceedings was kept in the office of the county judge of said county; that on the twenty-second day of December, 1879, and at various other times, said Mary McPherson notified said judge of her intention to appeal said cause to the district court of said county, and she tendered to him the fees, and demanded a transcript of said proceedings to file in said district court, but was unable to obtain the same; * * * that, as soon as she possibly could procure a transcript from said county judge, she did so, and handed the same to the clerk of the district court; * * * that, on account of the refusal of said county judge to make and deliver to her the said transcript, she was unable to file the same within the 60 days allowed by law," etc. This court, by the present chief justice, in the opinion, say: "It is also stated that at the May

term, 1881, of said court, said appeal was dismissed because the transcript was not filed therein within sixty days. Two affidavits are also filed in support of said petition. The question to be determined is, did the district court err in reinstating the appeal? The petition and affidavits show diligence on the part of the appellant, and that she made every effort to perfect the appeal within the time limited by statute, but was prevented by the negligence, or failure to perform his duty, of the county judge. The case, therefore, falls within the rule laid down in Dobson v. Dobson, 7 Neb. 296, and is sufficient to entitle the party to an appeal."

In the case at bar the transcript of the condemnation proceedings was not filed in the district court within the 60 days provided by law. It appears from the affidavit of P. J. Dempster, attorney for plaintiff in error, that some effort was made by him to comply with the law in that respect. And this brings us to the real question upon which the case must turn: Did the plaintiff use due diligence, and was he prevented from complying with the law, and perfecting his appeal in time, by the negligence or fault of some officer of the law?

The evidence upon this point before the district court, and before this, consists of the affidavit of Mr. Dempster above referred to, and that of L. H. Kent, county judge, both of which I here copy:

"P. J. Dempster, being first duly sworn, deposes and says that he is the duly-authorized agent of James S. Gifford, the plaintiff in this case; that on or about July 9, 1885, I wrote to L. H. Kent, county judge of said county, and ordered a transcript of all records made by him in the above-mentioned proceedings, and also requested him to deliver or send said transcript to J. A. Piper, clerk of district court of Harlan county; that on or about July 14, 1885, I sent the petition filed herein to J. A. Piper, clerk of the district court of said county, to be filed with the transcript of proceedings had before the county judge in the premises, supposing that said transcript had been previously delivered, as requested, by the county judge, and knew no better until a few days later, when I was informed by said clerk of district court that no transcript had been delivered to him."

"L. H. Kent, being duly sworn, on oath says that he is the identical L. H. Kent who is county judge of Harlan county; that on or about July 9, 1885, R. J. Dempster mailed to me three notices of appeal on the awards made by the commissioners for the right of way of the Republican Valley & Kansas Railroad Company over the land of J. S. Gifford, in Harlan county, Nebraska; that I am unable to find the letter of said P. J. Dempster, which was in the same envelope with the notices of appeal; that in said letter said Dempster asked me if a bond was necessary in taking the appeal; that I have no knowledge of said Dempster requesting a transcript of said proceedings; that I supposed that when I had the commissioner's award recorded in the clerk's office, that that was a sufficient transcript: that I delivered said award to J. A. Piper, county clerk, or his deputy, for record; that no one ever came to me or made a personal request of me for any further transcript than the awards which I gave to Piper for record, until September 29, 1885; that no one ever tendered or paid me any fees for any transcript whatever."

It will be seen by an examination of Mr. Dempster's affidavit that it falls far short of bringing the case within the facts or reason of the case of Railroad Co. v. McPherson, supra. There the appellant had applied more than once to the county judge for a transcript, and tendered him his fees therefor, and had been deprived of her appeal in time by the unlawful refusal or negligence of the county judge to furnish the transcript. She had placed herself in a position to demand this service of the county judge as a matter of law and of right. That she was deprived of them was the fault of the constituted authority, and was traceable to no laches on her part. In the case at bar, the plaintiff, according to the affidavit, ordered a transcript by letter, and re

quested the county judge to deliver or send it to the clerk of the district court. This was not a service which, in any event, or upon any demand and tender of fees, would become due to the plaintiff, or to any party, from the county judge. It was not demanded as a matter of law or of right, but requested, doubtless, as a matter of favor or courtesy. Had this service been performed by the county judge as requested, so far as delivering or sending the transcript to the clerk of the district court was concerned, he would have done it only as a friend or agent of the plaintiff, or of his attorney, and not in his official capacity as county judge; and so his failure or neglect in that regard is the failure or negligence of the plaintiff.

I come to the conclusion, therefore, that the essential act by which an appeal in cases of this kind may be taken, and the right preserved, is the filing of a transcript in the district court; and that not having been done in this case within the time limited by statute, nor sufficient cause shown for such failure without laches on the part of the appellant, the appeal was rightly dismissed.

The judgment of the district court is affirmed.

WAY . WAY and others, impleaded, etc.

(Supreme Court of Wisconsin. January 11, 1887.)

HUSBAND AND WIFE-DIVORCE-ANTENUPTIAL CONVEYANCE-CANCELLATION AND TRUST FOR WIFE'S ALIMONY.

In an action for divorce, in which plaintiff seeks to have a trust declared, by way of alimony, in certain lands conveyed by her husband prior to marriage, where the evidence shows that defendant, on the day of his marriage, conveyed to his brother and sister all his interest in lands left by their father to them jointly, and that such conveyance was fraudulent, and the grantees held it in trust for the husband, the court, on granting the divorce, will decree the husband's interest in said lands to be conveyed to the plaintiff in fee-simple as alimony, and the deed by the husband to be canceled as fraudulent and void.

Appeal from circuit court, Clark county.

Action for divorce, and to declare a trust. Judgment for plaintiff. Defendants appeal.

B. F. French, (R. J. MacBride, of counsel,) for appellants, Seward Way and others, etc. James O'Neill, for respondent, Emma Way.

COLE. C. J. There is no appeal from that part of the judgment which dissolves the marriage existing between the plaintiff and Arthur Way. We may assume that this marriage was valid; and, upon the divorce being granted on plaintiff's application, she would be entitled to such relief, in respect to alimony, as the court might deem just and proper. It is not material, so far as the questions before us are concerned, to inquire whether Arthur was induced to enter into this marriage because he had made a promise to do so, or whether it was on account of her condition, which he felt he was responsible for, and feared, as he well might under the circumstances, that he would have trouble with her father if he did not marry her. His real motives for entering into the marriage are not very pertinent to the question as to her rights in his real estate incident to the marriage. The learned counsel for the appellants insists that Arthur owned no real estate in this state, or but a very little, at least, at the time of his marriage. He claims that he had previously conveyed his interest in his father's estate to his brother, Seward, and sister, Nettie, for a valuable consideration, and that this conveyance is not open to any legal objection. But it is indisputable that that deed was made on the very day of the marriage, and but a few hours before it was consummated. But counsel claims that this evidence shows that it was made in good faith, without any notice on the part of the grantees that Arthur contemplated marrying the plaintiff; also that it was in pursuance of a parol agreement made between

the parties in May or June previously. The circuit court, however, found that this conveyance was voluntary, and was executed by Arthur with a fraudulent intent to defraud the plaintiff, and to prevent her from obtaining any interest or rights in his property, -to place it in such a condition as to defeat her rights in it after marriage; and that the brother and sister were privy to, and participated in, this fraudulent purpose.

After a careful examination of all the evidence, we are forced to the conclusion that these findings are in accord with the weight of the testimony. We shall state our conclusions upon the evidence without entering into any discussion of it. We make this remark, in passing, that, while there is much testimony tending to prove that Arthur's conveyance of his interest in his father's estate was made in good faith, for an honest purpose, there is much direct proof, as well as many circumstances, which tend to impeach it for fraud. Confessedly, he exercised many acts of ownership over property which he claims to have parted with all interest in by this deed. True, he attempts to explain why he did these things; but there is testimony of disinterested persons as to his declarations that he had deeded his property away so that the plaintiff could not get any of it. Indeed, it is difficult to resist the conclusion, upon the whole case, that this was his real purpose in making the conveyance. Seward and Nettie testified to a state of facts which seem almost incredible, when they say they did not know at the time when the deed was executed that Arthur was in trouble, and was going to marry the plaintiff. Besides, Arthur's conduct in respect to his wife, and his treatment of her, were anything but honorable and fair. His pretense that he was forced to marry her is only consistent with the supposition that he was, at least, conscious that he had got her with child. He immediately abandoned her, and has always refused to contribute anything to her support, or the support of her child. But we will make no further comments on the evidence.

Assuming, then, that the findings of fact are correct, we come to the questions of law arising upon them. These do not seem difficult of solution. If the conveyance in question was voluntary and fraudulent, and Seward and Nettie held the property in trust for Arthur, there can be no doubt of the power of the court, in this divorce proceeding, to cancel that deed, and to decree that the interest of Arthur in the property be vested in the plaintiff as alimony out of his estate.

In Jones v. Jones, 64 Wis. 301, S. C. 25 N. W. Rep. 218, the wife, after her dower had become absolute by the death of her husband, asserted and successfully maintained her marital rights in premises which the husband had conveyed just prior to the marriage, in fraud of her rights. That was not as strong a case upon the facts showing the invalidity of the conveyance as the one at bar, which is a case of premeditated fraud. Still that decision rests upon the well-established doctrine in equity that a secret, voluntary conveyance of property by the intended husband, in contemplation of marriage, with out the knowledge of his intended wife, is fraudulent and void, as against her, being in derogation of her rights and just expectations. It must be conceded that this is the general rule of law, though there are exceptions to it. But we think it would be difficult to find a case where either party to a marriage contract made a voluntary conveyance of his or her entire property without the knowledge of the other, just prior to the marriage, with the fraudulent purpose of defeating the marital rights of such other, where the transaction has been upheld. That is the case before us. Besides, this is a divorce suit, where the court is expressly authorized by statute to award to the wife such alimony out of the husband's estate as it shall deem just and reasonable, or to divide and distribute the estate of the husband, both real and personal, between the parties, and to divest and transfer the title thereof, having due regard to the legal and equitable rights of each party. Section 2364, Rev. St.; Donovan v. Donovan, 20 Wis. 616. And it would be a reproach to the court if