Hume v. Small Claims Court of Murray City
590 P.2d 309
Utah
1979
Check Treatment

*1 the home to misrepresented the Sellers (which includes the connotation “new”

been mis- use) specifically undamaged by previously the home represented misrepresenta- by wind. Such

undamaged history of merchandise the stress

tion as to can constitute inspection

being sold on inducement.

fraudulent attorney for the Sellers could prevailing party

stipulated the amount attorney’s fee in

recover There is no basis by the court.

found fees and no of counsel for an award

record The contract of stipulation. for the

basis for an award provision contained

sale and our law Buyers, to the

counsel fees case, law effect that in a well settled this, only be award fees can counsel where so the contract

ed where provision permitting

there is some judg stipulate for lawyer cannot

it. where it is client unless against his so, to do he is authorized shown therefor.

is no basis fees, attorney’s than the matter

Other upon compe- the court is based ruling The case sustains it. evidence which

tent remanded, to the trial court is, exclude the award

with directions judgment is therefrom. The

attorney’s fees are awarded. No costs affirmed.

otherwise MAUGHAN,

CROCKETT, WILKINS HALL, JJ., concur. HUME, Petitioner Marie

Rose Appellant, OF MURRAY CLAIMS COURT

SMALL Respondent. CITY, Defendant and 15634.

No. of Utah.

Supreme Court

Jan.

of the judgment.1 The Small Claims Court refused to transfer the case to the District petitioner and sent notice her Petitioner, was not filed. asserting that she had not received this judgment, contending time did not begin to run until she had notice, received her petition for writ of mandamus in the District Court for Salt Lake County compel respondent to trans- fer the hearing case. A on petition said was held on September 1977, at which time petitioner testified that she had never received notice. Neither the record nor transcript of that re- reveals that spondent either rebutted this testimony offered evidence that notice had giv- been en.

The District Court denied petition on ground timely, was not petitioner moved to alter or amend Lucy Lake Billings, City, Salt for peti- judgment 59(e) (the under Rule purpose of appellant. tioner and which was to reverse the District Court’s denial of subject petition), citing Craig Hall, ground H. as Murray, for defendant and therefor, insufficiency of the respondent. evidence to support the judgment, and error of law. WILKINS, Justice: This motion was ground denied it was not proper procedure, judgment This is an a en- appeals therefrom. tered District for Salt Lake County denying a petitioner writ of manda- presented first issue is whether mus procedural and involves arising issues petitioner’s motion alter or amend the from an attempt from a judgment judgment 59(e) under Rule was properly entered a small claims court to the Dis- taken. provisions trict Court under of Section 59(e) Rule provides: 78-6-10. All references are to Ann., 1953, Utah Code as amended. Refer- A motion to alter or amend ences to Rules are to Utah Rules of Civil shall be later than ten Procedure. after entry the judgment. 2,May On was entered argues Defendant that this rule cannot be against petitioner, defendant, in an ac- used for the purpose of reversing judg- tion in the Small Claims Court of Murray or rehearing arguments. Defend- City, Utah, respondent herein, State of af- ant’s argument merit, is without however. ter a trial April held on 1977. Petition- Under party Rule 59 a may move for a new er’s counsel of the judgment learned on trial upon any stated there- July and filed notice of appeal in in. Where no jury, however, there is July 7,1977, that Court on within five court granting trial, rather than a full new she, counsel, days of the time first 59(a) learned under Rule 78-6-10, days, 1. See Section Sundays, allows a seven Saturdays defend- intermediate appeal judgment legal ant holidays five in which computa- are excluded in the small claims court Rule 6 tion. prescribed period that where a is less than

3H may has if one An be taken to the open entered, testimony, court from a final judgment take additional rendered in been city justice court within one month findings of fact and conclusions amend entry of such findings and conclusions law or make new ment, or within time as may such shorter new direct provided by law. [Emphasis added.] *3 Court, Sales, in This Larson Ford v. Inc. (e) 59 a time provides of Rule Subdivision Silver, Utah, (1976), 551 P.2d 233 held that motion, is type of limitation for appeal provided the shorter time for in Sec- rehearing of its to the Court directed tion 78-6-10 is not unconstitutional as a be motions must judgment.2 own Such equal protection, of we violation but grounds more of set one or based on considered whether question never no- (a). Here, petitioner forth in subdivision given tice must be of a Small Claims Court the Dis- alleged of those two appeal begins judgment before the time to denying erred in the motion on trict Court to run. procedure improp- ground that the was er, ruling on the merits. rather than Realty In v. Main Buckner Co., 4 Utah 2d 288 P.2d Insurance 786 asserts that the above Defendant (1955), appeal this Court held that an from Court, and only issue is the one before this judgment City a default entered in a of petitioner may argue not the merits that judgment runs notice of of entry from mandamus, or the petition for writ of her 73(h) though 5(a) Rules under Rule even petition. judgment denying 55(a)(2) provide that no notice need be 59 the run Rule terminates motion under case, party on a in default. In that appeal judgment. ning the time of said: this Court again not to run appeal begin does Time for party greater . a has a in default such a granting denying until the order in notice receiving interest formal that a of entered. effect motion is against has judgment been taken him original is to reinstate the such motion party appeared than has a who and who taken there timely appeal and a judgment, may present well have been at the time origi reality from that from is in judgment; the rendition of if of This will therefore judgment.3 nal designed protect rights rule was to arguments by petitioner raised consider the it is where appeal, most effective on this matter. party unlikely is otherwise to receive ac- time for from the Small Does the notice, tual 288 P.2d [at 787.] department City Claims Similarly, only where a has five defendant Court,4 begin to run from the time important, is days appeal, particularly to docket, only ment is entered process requires, and due judgment notice to the debtor? given or his right to defendant provides pertinent in 78-6-10 Section abridged Despite severely. part: provide fact that Section 78-6-10 does dissatisfied, If the defendant given notice must be a defendant in a entry days five from the he within 73(h) Rule Small Claims we hold that him, of said procedure in that Court in applies county court of the district Courts, time for City other and the held said court is that Court commences from notice however, 73(h), provides: judgment. Rule Corp., Cystoscope See Hammond v. Public Finance v. American Co.

2.See Woodham 568 Pelham, N.Y., 5th, 1964); (C.A. (C.A. 1978). F.2d 551 F.2d 1362 5th Codesco, 4th, 1978); (C.A. Dove v. 569 F.2d 807 3rd, Jones, (C.A. 572 F.2d 89 Richerson 78-6-1. 4. Section Ry. Gainey 1978); Steam v. Brotherhood of & Clerks, 3rd, 1962). ship (C.A. 303 F.2d 716 The statute which argues up set Finally, petitioner Small no) to estab (or evidence was insufficient Claims Court that the clerk of the sent lish that notice shall, upon request, draft the affida- petitioner. plaintiff, sign vit for the then an order directing appear nor noted, neither the record an- supra, As certain, reveals that transcript swer the claim at a time not less evidence that notice had respondent offered than five than nor more though petitioner, petitioner, been sent to the date of the order. written No answer is brief, produc- respondent in her states required. court hears evidence giv- that it it had copy ed a of a letter claimed parties en both and renders a giving petitioner mailed according to the present- law and evidence However, gives judgment ed. In the court way thereby, alleges defeat concedes but plaintiff may he paid, order it forth- *4 proof mailing that no of the of there was with, upon terms within the discretion of the letter. the court. If the is defendant dissatisfied As the before us has evidence record court; may appeal he to the district how- concerning point this critical of notice of plaintiff ever a dissatisfied right has no to thereof), judgment (and proof of mailing appeal. petition- denying the District order Court’s Ordinarily parties the are before the is and this er’s writ of mandamus reversed exactly court each knows what the purposes matter is remanded for of judgment is and when is it rendered. If a petitioner’s appeal. No costs awarded. obey defendant refuses to the order ap- to HALL, JJ., MAUGHAN and concur. is pear, he in default and should have no right appeal. However, to even if he be J., CROCKETT, concurs in result. appeal entitled to after default he must ELLETT, (dissenting): Justice Chief obey the statutes court, which created the prevailing opinion The confuses the Small 1953, U.C.A. namely Section 78-6-10 which City Claims with the Court. The Court reads: department is a in the Small Claims Court if dissatisfied, the is defendant City Justice and in the created Court he within five the by statute, up is to specifically set him, of said appeal to justice enable citizens to obtain without the the district county court of the in which requirement the rules applicable court said is held . [Emphasis other courts be used. added.] jurisdiction of the Claims The Small In this Court the $400.00; defendant did not and, persons ap- Court is limited may litigate peal days provided claims within the five corporations by their law person by employees. authorized district properly the court ruled that employee that the requirement There is no timely the was not filed. object be The secure a lawyer. a are cogent There other reasons why the- involving of small speedy disposition cases of the ruling district court cannot be re- money. amounts of VIII, 9, versed. Article Section of our con- procedure appli- The rules of civil are not appeals stitution from city the cable to the cases Claims Small justices’ courts lie to the district court of this are numerous: In Examples Court. only, unless the validity a statute is be City complaint Court a must filed involved. served; and a must summons plaintiff brought The herein a writ of days after complaint answer the within 20 court against mandate summons; appeal may service of the an compel Small Claims Court to court to taken to the district court within up appeal. after notice of the send record on The district appeal, the result would precisely and the grant mandate court refused Since, therefore, same. provision some sort of a of the demanding here plaintiff prohibits trying obtaining fundamental law sneaky way a That is relief. such a ap- by appeal, reversal in prohibition the constitutional bypass provision in Article would not this render that as set out peals to this Court a nullity by permitting thing the same VIII, above mentioned. Section be obtained certiorari? Fourth District of Crooks v. The case clause of constitution under 98, (1899) is of 59 P. 529 21 Utah mandatory prohibito- consideration is in the jus- There defendants interest. ry by provision same in- express of the an peace tice Art. strument. Sec. Const. was dismissed on district court that was timely taken. [*] [*] [*] [*] [*] [*] a writ of cer- sought then The defendants Therefore a review a decision to review the Supreme tiorari to upon jus- district court court, claiming that the district ruling of peace tice writ of certiorari filed. to that court positive would violate the mandate said: the writ this Court In just effectually constitution as would When, contrary by appeal. review the framers of the practice, the former be the when the ruling would same provided the ‘decisionof constitution petition matter was before Court on *5 appeals judg- courts’ on district the writ of mandate. justices peace ‘shall be ments of (Hansen Anderson, Subsequent et cases v. final, involving the except in cases validi- al., 286, (1900) 21 61 P. Utah and O.S. statute,’ their ty constitutionality of 371, L.R. Co. District 30 Utah object and were obvi- evident intention (1906)) P. 360 have held such a writ practice then evil to which the ate the in the would be considered cases where subject, provide a yet was existing jurisdiction or district court exceeded its and constitution- by way jurisdiction order. lacked to make the arise might al questions us the However in the case now before by appellate the could be reviewed cases jurisdiction to make did have court. we consider the the order and so cannot in that case re- was then said What matter to if that merits of the see applies with specting by appeal a review made an error. where the review case equal force sustaining There other reasons for are The framers of sought on certiorari. trial The district court denied the court. po- having, the constitution 14, writ mandate on October reasons, appears, changed the for- tent 1977, signed an order that effect and by a review such practice mer filed in the clerk’s office on that order was it be contended by appeal, how can cases 19, No has ever been October 1977. practically grant intended to they taken from that order. by Or how thing certiorari? the same 31, 1977, On October that this contended successfully it be can court a motion to alter in the district by the use of the thing do a court can 19, 1977. On judgment entered on October doing, prohibited we are writ which 21, 1977, judge the district court December at bar by Evidently appeal? denying the motion alter signed an order to be object sought accom- same mo- that the reason writ of review the use of the plished by pur- proper procedure not a tion “was accomplished under have been as would 20, 1978, January sue.” On appeal. That practice upon the former County in the office of the was filed deci- is to secure a reversal object Clerk, given that the whereby was Whether this the lower court. sion of from the district court’s petitioner appeals accomplished by certiorari or would denying petitioner’s to alter motion order 21, 1978. judgment, dated December (59(e)) pro- Rules of Civil Procedure

Our

vides: motion to alter or amend shall be than ten served not later the motion to amend

While filed until October of counsel states that on October

certificate 1977,

28, respondent she notified the would

her motion amend 15, on November There is

be heard

nothing in the record to show that upon was ever served counsel for

motion respondent. it of the mo- copy be assumed that a

If upon along was served the respondent

tion the notice of would not hearing,

with until December because ser- by requires mail three

vice additional required to that rules or (U.R.C.P. 6(e).) The de-

statute.

nying the writ of mandate was filed on the day of

19th October 1977. The time for

serving the motion to amend would 29,1977. on or before be made October Ritter, Arthur J. Salt City, Lake for de- properly therefore was denied and motion appellant. fendant and appeal therefrom merit. has no *6 must be af- trial court Dam, R. Van Paul County Salt Lake firmed. Atty., Conder, M. Gerald Deputy Salt Lake Atty.,

County Salt Lake City, plaintiff for and respondent.

CROCKETT, Justice: Department (here- of Social Services Boyle WARNER, Barbara Plaintiff Services) joined in Social plaintiff in this Respondent, action, seeking public reimbursement for assistance it had rendered to plaintiff two minor children parties. Pursu- Sterling Jay WARNER, Defendant supplemental ant to various proceedings to Appellant. action, the divorce the recital of the detail No. 15607. can spared here, of which the trial court Supreme Court of Utah. judgment rendered the $1,600 the sum of unpaid support Jan. for money.1 propriety joining Social Services obtaining said action and 1. It significant $1,725, quent to note that the record of this entered Febru proceeding ary shows that also a subse from which no has been