87 P. 167 | Utah | 1906
The petitioner herein applied to this court for a writ of certiorari for the purpose of reviewing the action of one of the judges of the district court in respect to the dismissal of an appeal to that cou-rt -from a judgment entered in the justice’s court of Salt Lake City, the writ being directed to Hon. T. D. Lewis, one of the judges of the Third Judicial District of the state of Utah, and before whomi the proceedings were had. For convenience the applicant for the writ will be designated petitioner, and the judge will be styled respondent.
The facts upon which the petition is based may be briefly yet comprehensively stated as follows: On the 9th day of June^ 1906, one James Earl commenced an action of forcible detainer against the petitioner herein in the justice’s court of Salt Lake City, which action, in due time,'and on the 20th of said month, eventuated in a judgment for $125 and for restitution of certain premises in favor of said Earl and against the petitioner. On the 3d day of July following, the petitioner filed a notice of appeal in said court, and on' the 9th day of said month he filed an undertaking on appeal. Oh the 11th said Earl duly filed .exceptions to the sufficiency of the sureties on said undertaking, and demanded that said sureties justify, as provided by the statutes of this state. Due notice of said exceptions was duly served on the attorney for the petitioner. Up to this time the petitioner had not served any notice on said Earl or his attorney of the filing of an undertaking on appeal, but served such a notice on the 12th day of July, and after said exceptions were filed. The sureties on said undertaking failed to justify within two days after
We remark here that it will be observed that the case originated in the justice’s court, and therefore in view of section 9 of article 8 of the Constitution of this state no appeal from the action of the district court to> this court was permissible in this case. The petitioner therefore availed himself of what he conceived to be his only remedy, namely, a “writ of
The writ of certiorari may be granted by tbis court, as provided in section 3630, Revised Statutes 1898,
“When an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer and there is no appeal, nor in the judgment of the court or judge, any plain, speedy and adequate remedy.”
By section 3636, Revised Statutes 1898, it is provided:
“The review upon this writ [certiorari] cannot be extended further than to determine whether the inferior tribunal, board, or officer has. regularly pursued the authority of such tribunal, board, or officer.”
In view of the facts as stated above, and the parts of the several sections quoted, the petitioner filed his petition for a writ, reciting therein substantially the foregoing facts, and thereby invokes the aid of this court, which, by the then Chief Justice, issued a writ of certiorari, commanding the respondent to file a certified transcript of the record and proceedings had before him as judge of the district court'of said Salt Lake county, that the same may be reviewed by this court. The respondent complied with the commands of said writ in all respects.
The particular point upon which it is claimed that this court should consider this case upon certiorari is that the respondent, as judge of said district court, exceeded his jurisdiction because the appeal had not yet reached said court; in other words, it is contended that the act of said judge in dismissing said appeal was premature. This claim is based upon the ground that it is made a ground by statute for dismissing an appeal from a justice’s court to the district court in case the papers are not filed in the district court and the advance fee paid within thirty days after the transcript is received by the clerk. As we have shown above-, the transcript in this case was filed with the clerk of the district court on the 14th day of July, and the appeal was dismissed on the 21st The appeal was, however, dismissed upon the ground that an undertaking, as required by law, had not been.
It may be conceded that the court did not have jurisdiction of the case, so as to try it upon its merits and enter a judgment therein, for the reason that, in legal effect, no appeal had been perfected. But the district court had jurisdiction over the subject-matter of appeals from justices’ courts, and hence -had power to- dispose of the same at any stage after the transcript of the justice’s court was filed in the district court. If this be not so, then an imperfect appeal would suspend all actions both in' justices’ courts and in district courts. Neither is it essential that the party objecting to the appeal should wait the full thirty days after the transcript is filed before attacking the same. If he desires to attack it upon the ground alone that the papers are not filed and the advance fee paid within thirty days, then he must, of course, wait the time specified in the statute, because the cause or ground for a dismissal cannot exist until the time has elapsed. This, however, is a case where an appeal has not been taken as the law requires; hence- there is, in legal effect, no- appeal, although one has been attempted in fact. In such a case a party may act whenever the transcript is filed in the. district court, when such action is based upon a ground which strikes at the appeal for want of some act which would make the appeal effective if taken, and where the time to take such act has passed,' and cannot, under the law, be made effective thereafter. The court in this case, however, did not act prematurely, and however erroneous and prejudicial it is or may be as regards- the petitioner, the court, having jurisdiction over the subject-matter of appeals,
As we have already attempted to- show, the mere fact that the court misconceives the law and acts contrary thereto in a matter where it has jurisdiction of the subject-matter does not carry such act beyond the jurisdiction of the court. If this were so, every judicial act contrary to law in some form would carry the tribunal making it beyond its jurisdiction.
We have likewise pointed out that in such cases this court caniiot review such acts in a proceeding upon a writ of cer-tiorari. If this were done, thé provision in the Constitution making the action of the distinct courts final on appeals from justices’ courts would, in effect, be abrogated. We would thus do by indirection what the law forbids us from doing directly. What w-e would thus not be permitted to review on appeal we would, in effect, review on a writ of certiorari.
But we conceive the writ of mandate, as the same is defined
In view of the foregoing, we will now proceed to examine into the petitioner’s rights under the law giving appeals from justices’ courts. Such appeals are purely statutory, and the
“An appeal from a justice’s court shall not be effective for any purpose unless an undertaking be filed within five days after filing the notice of appeal.”
Section 3748 provides that the party filing the undertaking-must serve notice of the filing thereof on the adverse party, and such adverse party may then within two days thereafter object to the sufficiency of the sureties named in the undertaking.
“And unless they, or other sureties, justify before the justice from whose court the appeal is taken within two days thereafter, upon notice to the adverse party the appeal shall be regarded as if no undertaking had been given.”
Fr&n the foregoing provisions it is as clear as language is capable of .expressing it that without an undertaking there is no appeal, and a failure to have the sureties justify within two days after excepting to their sufficiency nullifies the undertaking given, and leaves the whole matter as though no undertaking had ever been made or filed. In this case, however, petitioner seeks to avoid the consequences of the foregoing-provisions upon the ground that the appeal in this case is from a judgment entered in pursuance of chapter 64, Revised Statutes 1898., entitled “Forcible Entry and Detainer.” It is contended that appeals under said chapter 64 are governed by the provisions of section 3586, Revised Statutes 1898. It is there provided, in substance, that an appeal may be taken from a judgment under that chapter within ten days, but that such an appeal shall not stay execution unless the appellant shall within ten days file with the justice, his undertaking, with two or more sureties, in an amount fixed by the justice, but not less than twice the amount of the judgment appealed from‘b including costs, and that such undertaking shall be conditioned that in case the judgment is affirmed or
“The provisions of this Code relative to civil actions, appeals, and new trials, . . . apply to the proceedings mentioned in this chapter.”
It will be observed that section 3586 is silent upon the point respecting the justification of sureties, or the effect in ■case of a failure to do so, but section 3587 makes all other provisions relative to appeals, when not inconsistent with section 3586, applicable, and thus makes the provisions found in sections 3747 and 3748 operative, and unless complied with the appeal is not effective for any purpose. Indeed, as provided in section 3748, if the sureties fail to justify within the two days after exceptions filed and notice given, the appeal shall be regarded as if no appeal had been taken.
The petitioner lays great stress on the concluding portion •of section 3586, where it is said: “Upon taking the appeal and filing the undertaking, all further proceedings in the ■case shall be stayed.” This must, however, be read and construed in connection with the other provisions relative to the perfecting of an appeal. The appeal and undertaking referred to in the foregoing quotation refers to a perfect appeal, and to an undertaking perfected as required by the provisions relative to appeals, and not only ' to those found in section 3586. If this is not done, then we must ignore all that is said in section 3587. It is the duty of courts to give effect to all ' the provisions of statutes relative to one subject-matter, although found in different sections. This is so as a rule of construction, but in this case the legislative power has enforced the rule by an express statute. The district court has no more right to disregard one part of the law governing appeals from justices’ courts than it-has another. It is bound to obey all the provisions, and so are we.
The petitioner, however, contends that the statute providing for the dismissal of appeals from justices’ courts does not make the failure to' give an undertaking a ground for dismissal; that in this case the respondent claims that the failure
The petitioner concedes that, if this case were an ordinary case of appeal from a money judgment, then the contention of respondent might be right. We can see no distinction between appeals in this class of cases and any other. There are numerous authorities that hold that under statutes like ours where sureties fail to- justify when required to- do so renders the appeal ineffectual. Our statute says so in express terms. (Pratt v. Jarvis, 8 Utah 5, 28 Pac. 869; Bennett v. Superior
From tbe foregoing views of tbe law applicable to this case, it is manifest that tbe petitioner is not in a situation to require tbe court to reinstate bis appeal and to proceed with tbe case, and hence a writ of mandate1 must be, and tbe same is, denied, with costs against petitioner