7 Utah 110 | Utah | 1891
The record in this case shows that on March 17, 1890, a money judgment was obtained by the plaintiff and respondent against the defendant and appellant before United States Commissioner Norrell, at Salt Lake City, for $318.75, with costs, and that on the 19th day of March, 1890, an appeal was duly taken from such judgment by defendant to the third district court, and the court files and transcript of the commissioner were lodged in the clerk's office of said district court with thp clerk thereof, but were not filed by such clerk, but simply indorsed thereon the words, “ Received March 19th, 1890,” and put away in the pigeon-hole. That on the 31st day of April, 1890, on an ex parte application of plaintiffs, and without the knowledge of the defendant's attorney, an order was obtained in said court dismissing such appeal for the reason that the sum of eight dollars, clerk and jurors’ fees, had not 'been paid to the-clerk of said court within 30 days after the appeal papers therein had been lodged with the clerk thereof, as provided by the rules of said court. That on the loth day of May, 1890, a motion of defendant and appellant, duly noticed, was heard in said court, based on affidavits of defendant and Theodore Burmester, presenting a state of facts tending to show mistake, inadvertence, or negligence on the part of the defendant in failing to pay the docket fee provided by the rules of the third district court, and asking to have the order of dismissal vacated, and the appeal reinstated, which motion was denied by the court, an appeal was taken to this court from each of said orders, and the errors assigned are: “ (1) That the court erred in making the order dismissing the appeal, there
The record in this case presents substantially the same questions as were presented to this court March 1, 1890, in the case of Salt Lake City v. Redwine, 6 Utah, 335, 23 Pac. Rep. 756, where the learned chief justice ably reviews the same questions presented here, and we see no reason for disturbing that decision. The reasoning in that case is applicable in this. The ground of the order dismissing the appeal in this case, and the refusal of the court to set aside such order of dismissal, and reinstate the case, were matters resting in the sound discretion of the trial court, and the record in the case presents no good reason for reviewing that discretion. The order and decision of the third district court are affirmed, with costs.
