Overland Gold Mining Co. v. McMaster, 19 Utah 177

Overland Gold Mining Co. v. McMaster

19 Utah 177 | Utah | 1899

After stating the facts,

Miner, J.,

delivered the opinion of the court.

1. The question for determination herein is, Did the justice of the peace acquire jurisdiction of the appellants and the subject matter by service of the summons in Tooele County?

Sec. 1563, R. S. 1898, provides that “a negotiable instrument which does not specify a place of payment is payable at the residence or place of business of the maker, or wherever he may be found.”

The note in question mentioned no place of payment. *184It was therefore payable at the residence or place of business of the maker in Salt Lake City, where Biddle-come resided at the time the note became due, and continued to reside for one year thereafter. Blodgett v. Durgan, 32 Vt., 361; McCauley v. Leavitt, 10 Utah, 91; Brown v. Bach, 53 Pac. Rep., 991, 17 Utah, 435; Randolph on Commercial Paper, Sec. 33; Tiedeman on Commercial Paper, Sec. 506.

Randolph on Commercial Paper, Sec. 33, lays down the rule that the presumption is, that a note, dated at a certain place, is payable there, if no other place of payment is expressed. This cause of action, therefore, arose in Salt Lake City. The contract was made there, and the note was payable there on the 12th day of May, 1891.

Art. 8, Sec. 5, of the Constitution provides that all civil and criminal business arising in any county must be tried in such county. This action was properly brought in Salt Lake County. This question has often been passed upon by this court. Konold v. Rio Grande Wes. Ry Co., 16 Utah, 151; Campbell v. Rio Grande Wes. Ry Co., 16 Utah, 346; Deseret Irr. Co., v. Leamington Irr. Co., 16 Utah, 398; Brown v. Bach., 53 Pac. Rep., 991, 17 Utah, 435; Condon v. Leipsiger, 53 Pac. Rep., 82, 17 Utah, 498.

The summons issued in this case was served in Mercur, Tooele County.

Sec. 3682, R. S. 1898, among other things, provides:

“The summons can not be served out of the county in which the action was commenced, * * * except when an action is brought against a party who has contracted to perform an obligation at a particular place and resides in a different county, in which case the summons may be served in the county where he resides. ’ ’

As we have seen, the place of payment of the note was Salt Lake City. The cause of action arose there, and the *185action was properly brought in that place. The party who had the contract to perform was required to perform it at Salt Lake City. For its non-performance the cause of action thereon arose in Salt Lake City, that being the place the maker contracted to perform the contract. Therefore, under the statute, the summons was properly served in Tooele County. The plaintiff was required to bring his action in Salt Lake City. If the statute referred to is inoperative, process could not be served out of the County of Salt Lake. The plaintiff would be left with a right, but such right would be absolutely useless to him, because there was no remedy provided for its enforcement. The construction given seems to be reasonable and in conformity with the statute. If a contrary construction should be given, yet Sec. 720, Revised Statutes 1898, might be construed asproviding a means of enforcing a remedy where jurisdiction is given by a statute without providing a remedy. However, it is not deemed necessary to resort to such construction in this case. The section referred to reads as follows: “When jurisdiction is, by statute, conferred on a court or judicial^ officer, all the means necessary to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the statute or of the codes of procedure.”

2. The respondent claims that the appeal should be dismissed because the parties had a plain, speedy, and adequate remedy at law by appeal, and we concur in this view. We have seen that the court had jurisdiction over the parties and the subject matter.

Sec. 3655, R. S. 1898, provides that prohibition “maybe issued * * * in all cases where there is not a plain, speedy, and ad equate remedy in the ordinary course of law,.” * * *

*186The summons was served on appellant Biddlecome on the* 18th day of April, 1898. Default judgment was entered against him June 3, 1898. Execution was not issued upon this judgment until the'22d day of October, 1898, and at the same time garnishment proceedings were served on the appellant mining company, who appeared and answered that it had money in its hands belonging to Biddlecome. On November 22, 1898, an order was made requiring the money to be paid over. On November 23, 1898, appellants asked to have the judgment set aside, and that the garnishment proceedings be quashed. On November 30, the alternative writ of prohibition was issued. Under Sec. 3113, B. S. 1898, the garnishee could appeal. Biddlecome also had the right to appeal. No appeal was ever taken by either of the parties, although the time for the garnishee to appeal had not expired when this writ was applied for. From the facts shown the justice’s court was acting within its jurisdiction, and the appellants had a complete, plain, speedy, and adequate remedy by appeal in the ordinary course of law.

This writ does not lie for grievances which may be redressed in the ordinary course of judicial proceeding by appeal.

Sec. 9, Art. 8, Const., providing that “appeals shall also lie from the final judgments of justices of the peace in civil and criminal cases to the district courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of the district courts on such appeals shall be final, except in cases involving the validity or constitutionality of a statute, ’ ’ would be practically annulled if the theory contended for by the appellants should be allowed to prevail. Sec. 3655, R. S. 1898; Dacheneau v. Ireland, 5 Utah, *187108; Wolcott v. Wilson, 9 L. R. A., 59; Post v. Foote, 54 Pac. Rep., 975, 18 Utah, 235; Ogden City v. Crossman, 53 Pac. Rep., 985; 17 Utah, 66; Belleview Water Co. v. Stockslager, 43 Pac. Rep., 568; State v. Burkhartt, 87 Mo., 553.

The case of the People v. House, 4 Utah, 369, relied upon bj the appellants, was where the title to land was in question, and the justice’s court had no jurisdiction over the subject matter, and is therefore not-applicable to this case. We are of the opinion that the court had jurisdiction of the parties and of the subject-matter' involved in the case, and that the appellants had a plain, speedy, and adequate remedy at law by appeal, and that the writ and proceedings were properly dismissed.

3d. So far we have considered this case on its merits, without reference to the rights of the appellants to bring this case by appeal from a judgment of the district court in dismissing the writ of prohibition directed to a justice of the peace.

Under Sec. 9, Art. 8 of the constitution, above quoted, the decision of the district court on appeal to it from a justice’s court is final, except in cases involving the constitutionality or invalidity of a statute.

This case does not come within the exception named in the constitution.

In the case of Ogden City v. Crossman, 53 Pac. Rep., 985, 17 Utah, 66, and the City of Eureka v. Wilson, 15 Utah, 55 and 67, this court held that under Sec. 9, Art. 8, of the constitution, an appeal may be had to the supreme court in all cases originating in justices’ courts, in which the validity or constitutionality of a statute or ordinance is drawn in question, made an issue and decided by the district court on appeal. In all other cases brought before justices of the peace, and-transferred to the district courts *188by appeal, the final judgments of these courts were conclusive.

It is plain that this case could have been appealed to the district court, and had it been so the judgment of that court would have been final, and no appeal would lie from the judgment of the district court to this court therein. It seems equally clear that where the same questions arising in a justice’s court are raised, tried, and decided in the district court through a medium of a writ of prohibition, that the decision of the district court thereon is final, and that no appeal lies to this court to review such decision, although it be from a judgment dismissing a writ of prohibition. The parties had their remedy by appeal from the judgment of the justice of the peace. They should not now be entitled to evade the plain provisions of the constitution by assuming a new guise or name, and appearing before this court in the character of appellants from a judgment of the district court in dismissing their writ of prohibition. To permit such a rule would be in effect to allow an appeal to this court from a judgment in a case originally tried before a justice of the peace wherein the validity or constitutionality of a statute was not involved. The district court had final jurisdiction over such matters with which this court should not interfere.

The appeal is dismissed, with costs in favor of the respondent.

BajRtch, C. J., and Bashin, J., concur.