74 P. 497 | Wyo. | 1903
Plaintiff in error took an appeal in this case from a judgment of a Justice of the Peace to the District Court. The appellee moved the District Court to dismiss the appeal upon the two grounds that the justice did not allow the appeal within five days after the notice and filing of the appeal bond, and that he did not transmit his transcript and the papers in the case within five days to the Clerk of the District Court. The motion was sustained and the appeal dismissed.
The statute provides that any person desiring to appeal from a judgment of a Justice of the Peace shall, within fifteen days after the rendition of the judgment, file with the justice a notice of such desire and either pay the ac
It appears from the transcript that, on the same day the judgment was rendered, the appellant filed his notice of appeal and also his bond, which was approved by the justice, and that the justice thereupon allowed the appeal. There was, therefore, no merit whatever in the first ground stated in the motion.
But it appears by the file mark of the Clerk of the District Court that the transcript and other papers were filed with him on May 31st, more than five days after appellant filed his bond and notice of appeal. On May 20th, which was within the limited five days, appellant had paid to the Clerk his fees for docketing the appeal and for the issuance and service of a notice to the appellee that the appeal was docketed, and such notice was issued and served upon appellee’s attorney, as permitted by statute, on June 1st, the day after the transcript was filed, as shown by the file mark of the Clerk.
Did the fact that the justice failed to perform the duty required of him by statute, to transmit his transcript and the papers within five days, authorize the District Court to dismiss the appeal? In reason and by the great weight of authority, it did not. The transmittal is the duty of the officer and not of the appellant. There is no reason why he should be held responsible for its performance, and the statute does not make him responsible. The statute does not undertake to punish the appellant for the failure of the officer to perform his duty, and there is no intimation in any of its provisions that the penalty of such failure shall be a dismissal of the appeal. In some states the statutes require that the appellant shall, within a time specified, file
Moreover, another provision of the statute itself clearly .and necessarily implies that a performance by the justice •of the duty imposed upon him, within the time limited, is not jurisdictional. Section 4410, Revised Statutes, provides that, if he fail to allow an appeal, he may be compelled, by rule and attachment, to do so and to return the transcript and papers required to be returned by him. It will not be contended that a rule or attachment could properly issue until the justice had failed in his duty by suffering the time to elapse within which he ought have made his return. And having called into exercise the machinery of the statute to bring the proceedings before the District Court after the time prescribed, it would be absurd to then dismiss them for the reason that the time prescribed had elapsed. It is entirely evident that this is not the purpose of the statute.
The dismissal of the appeal was erroneous. The judgment will be reversed and the cause remanded, with instructions to the District Court to reinstate the same upon the docket for such further proceedings as may be proper.
