178 P. 73 | Utah | 1919
The plaintiff filed an original application in this court in which he prayed for a writ of certiorari against the district court of Weber County. Such writ was duly issued, and the parties have appeared in this court.
On'June 6, 1916, one Frances Hawkins commenced an action in the municipal court of Ogden City, Utah, against, the plaintiff herein. The plaintiff, who was defendant in that action, filed an answer to the complaint, and also set up a counterclaim against said Frances Hawkins in said action. Such proceedings were thereafter had in that action that on December 7, 1916, the municipal court disallowed the counterclaim, and also denied said Frances Hawkins any relief upon her complaint, and entered judgment dismissing said action. On December 8, 1916, pursuant to our statute, the-plaintiff in this action served notice in writing on said Frances Hawkins of the entry of said judgment. On January 8, 1917, thirty-one days after the service of said notice of the entry of judgment, said Frances Hawkins served notice on the plaintiff herein that she intended to and would appeal from said judgment of dismissal to the district court of Weber County,’ and she thereafter duly perfected her said appeal in said court, and filed an amended complaint in said action in said court. The plaintiff herein appeared in the district court aforesaid, and filed a general demurrer to the amended complaint, and issues were thereafter duly joined, and a trial of the issues was had in said district court, which resulted in a judgment in favor of said Frances Hawkins and against the plaintiff herein. On November 8,1918, the plaintiff herein filed a motion to vacate and set aside said judgment against him upon the ground that the appeal in said action was not taken until after the expiration of thirty days, thirty days being the period of time fixed by our statute within which appeals must be taken from judgments entered in municipal courts to the district court. The district court denied said motion and refused to set aside said judgment. This proceeding is instituted, therefore, for the purpose of annulling the action of the district court in refusing to set aside said judgment.
The ground upon which this application is based is that the district court was without jurisdiction to hear and deter
The only question for determination on this application is, did the district court have jurisdiction of said appeal or did it exceed its jurisdiction in entering a judgment therein?
“While it has been held that, where the justice of the peace had no jurisdiction of the subject-matter of an action, the parties cannot confer jurisdiction on-the appellate court by consent, the better view seems to be that, where the appellate court has original as well as appellate jurisdiction of the cause, jurisdiction of both the subject-matter and the person may be conferred upon it b.y waiver or consent.”
In Lee v. Parrett, supra, the Supreme Court of Minnesota, in passing upon the question now under consideration, in the course of the opinion said:
“Whether the objection to the jurisdiction of the justice would have been valid or not, if it had been seasonably and properly taken, we need not inquire. No objection appears to,have been taken to the jurisdiction of the district court until the case reached this court. The case was one of which the district court could acquire complete jurisdiction by the voluntary appearance of the parties and their voluntary submission of the matters in controversy between them to its adjudication. That is precisely what was done in this case, and the effect was to confer upon the district court complete jurisdiction to render the judgment appealed from. ’ ’
In Mackey v. Briggs, supra, where a like question was being considered, the justice writing the opinion said:
“ It is urged, and apparently with some degree of confidence, that the acquirement of jurisdiction by the district court, through the appeal,*212 must regularly appear, and that without it that court would be entirely without jurisdiction to hear and determine the cause. However true this principle might be when applied to courts having an exclusive appellate jurisdiction, it is inapplicable to the determination of the jurisdiction of the district court when a case is brought there upon appeal from the county court. The district courts of this state are courts of general jurisdiction, and, as is apparent from the record, that court, sitting in Gilpin County, had jurisdiction both of the subject-matter of the suit and of the parties to the action. When the. case was brought to the district court, the parties appeared in person and by counsel, and the case was tried to a jury without objection from the defendant. Under these circumstances he cannot be heard to complain. This court has decided that wherever the appellate court has original jurisdiction of the subject-matter, and the parties voluntarily appear and go to trial on the merits without- exception, their conduct amounts to a waiver of the objection, and they cannot afterwards object. Todd v. De la Mott, 9 Colo. 222 [11 Pac. 90].”
The foregoing excerpts clearly indicate the trend of the decisions, and hence we refrain from quoting further .from the cases.
In .view of the authorities, we feel constrained to hold, therefdre, that the plaintiff in this proceeding, in appearing and trying the appeal in the district court of Weber County, waived his right to object that the appeal was not taken in time, and that the said court had jurisdiction of the subject-matter involved in the appeal, and of the parties, and that the judgment entered on said appeal cannot now be assailed upon the ground stated in the application.
The proceedings are dismissed at plaintiff’s costs.