143 P. 232 | Utah | 1914
On July 30, 1914, the plaintiffs herein made application to this court for an alternative writ of mandate against the defendants, and especially against Hon. C. "W. Morse, Judge of the District Court of Salt Lake County, requiring said
On the hearing it was made to appear that a judgment had been duly entered against the plaintiffs in favor of the defendant Nick Kyrimes in the City Court of Salt Lake City; that in due time the plaintiffs appealed from said judgment to the District Court of Salt Lake County; that in taking said appeal plaintiffs executed an undertaking on appeal, with sureties in form as required by law; that within the time fixed by our statute the defendant Kyrimes filed his exceptions to the sufficiency of said sureties, and asked that they justify under the statute'; that thereupon said plaintiffs served notice upon said defendant Kyrimes that the sureties would appear1 and justify as required by law on a day named in said notice; that on said day the sureties did appear for the purpose aforesaid, but did not appear in the department of the District Court of Salt Lake County in which the proceeding was pending; that on said day the defendant Kyrimes, by his counsel, also appeared in said court and in the department' wherein the proceeding was pending, and, said sureties not appearing there, counsel for said defendant then moved the court to dismiss the appeal upon the ground, among others, that an undertaking on appeal as required by law had not been given in the case. The court, before acting on the motion, required defendant’s counsel to serve notice of his motion to dismiss the appeal on opposing counsel. Such a notice was left at the office of the opposing counsel, but, for the reason that counsel
We have a statute (Comp. Laws 1907, section 3750) which, under certain conditions, authorizes the District Court to dismiss an appeal. That section, so far as material here, reads as follows:
“No failure to comply with any provision of the law' relating to appeals from justice’s court to the District Court, except a failure to serve and file notice of appeal, shall defeat the jurisdiction of the District Court over the case attempted to be appealed.
“On notice, an appeal shall be dismissed for the following cause: That notice of appeal was not served and filed within thirty days after notice of rendition of judgment; provided, that the pendency of the motion, for a new trial shall not enlarge the time for appeal.
“An appeal may be dismissed, on notice, in the discretion of the court, for either of the following causes:
“1. That the papers were not filed in the District Court, and the advance fee required therefor was not paid.
“2. That the undertaking was not filed within five days after the filing of the notice of appeal.
“3. That appellant failed to file a new and sufficient undertaking when so ordered by the court.”
Now, it is quite probable that the District Court acted upon the assumption that, inasmuch as the plaintiffs herein failed to have the sureties on the undertaking for an appeal justify as required by our statute, such failure, in law, had the same effect, so far as the defendant Kyrimes was concerned, as though the plaintiffs had filed no undertaking on appeal within the time required by law. Upon the other hand, after the motion was made to vacate the order dismissing the appeal and to reinstate the same, the court may
“From tlie origin, nature, and purpose of tlie writ, as tlius far discussed, it lias been shown to be an extraordinary remedy, applicable only in cases where the usual and accustomed modes of procedure and forms of remedy aré powerless to afford relief. It follows, therefore, from the principles already established, as well as from the*172 very nature and purpose of tile remedy itself, that the writ never lies when the party aggrieved has another adequate remedy at law, by action or otherwise, through which he may attain the same result which he seeks by mandamus. This principle is of the highest importance in all cases where it is necessary to determine upon the propriety of interference by mandamus, and the rule will be found to be firmly established as one of the fundamental principles underlying the entire jurisdiction, that the existence of another specific, legal remedy, fully adequate to afford redress to the party aggrieved, presents a complete bar to relief by the extraordinary aid of mandamus. The rule has been recognized from the earliest times, and it has been applied throughout the entire growth and development of the law of mandamus. * * * The existence or nonexistence of an adequate and specific remedy at law in the ordinary forms of legal procedure is therefore one of the first questions to be determined in all applications for the writ of mandamus, and whenever it is found that such a remedy exists, and that it is open to the party aggrieved, the courts uniformly refuse to interfere by the exercise of their extraordinary jurisdiction.” '
The foregoing text is supported by practically all the authorities. See, also, section 10, same work, and Merrill on Mandamus, sections 10, 209.
By what we have said, or omitted to say, we do not wish to be understood as holding that a writ of mandate will be
We have gone into the subject again, for the sole reason that there still seems to be some confusion in the minds of some attorneys who appear in this court with respect to when mandamus is the proper remedy.
For the reasons stated, the alternative writ is quashed, and the application is dismissed, at plaintiff’s costs.