140 P. 666 | Utah | 1914
Lead Opinion
Tbis is an original application for an alternative writ of mandate directed to tbe Hon. M. L. Bitcbie, judge of tbe district court of Salt Lake County, to require bim to sbow cause wby be should not “proceed with tbe trial” of a certain action pending in said court on appeal from a justice court and “render judgment therein upon tbe merits.”
, Tbe petitioner contends that said district court has refused to dispose of' tbe case upon its merits, and has thus deprived it from having a trial on tbe merits. On tbe other band, it is contended both by tbe district court and by tbe defendant in said action, who is a party to tbis proceeding, that said court has disposed of tbe ease upon merits. In view that tbe plaintiff has no remedy by appeal, nor any other adequate remedy at law, tbe question we must determine is whether tbe court, without a sufficient legal reason, has refused to dispose of an appeal upon its merits, and whether tbe application comes within tbe rule laid down by tbis court in Hoffman v. Lewis, 31 Utah, 179, 87 Pac. 167, and State v. District Court, 36 Utah. 223, 102 Pac. 868.
Tbe facts, briefly stated, are: That on tbe 21st day of Pebruary, 1907, tbe Salt Lake Coffee & Spice Company, a corporation, tbe plaintiff here, commenced an action against one George Sturm, one of tbe defendants in tbis proceeding, in tbe justice court of Murray City, Salt Lake County, Utah; that a summons was duly issued by said court in said action, which was served on said Sturm on tbe 21st day of March, 1907, and was duly returned and filed; that
“There is only one question. ... I am disposed to give the plaintiff just as clean-cut a record as it- can get on that, if it wants to test that question.” The court then states the facts regarding the time the action was commenced in the justice court by stating the facts we have hereinbefore stated in that regard. He then refers to Comp. Laws 1907, section 3685s, pursuant to which he ultimately disposes of the case. The statute referred to by the judge, so far as material, reads as follows:
“Every judgment made or given on a complaint not legally verified, or that contains no allegation or an allegation that was untrue of the jurisdictional fact required by this section, . . . shall be void; and shall be so declared, on review, at the instance of the party aggrieved, either on appeal or by means of a writ of prohibition, or certiorariSee Laws Utah 1907, p. 123.
The judge then continues:
“There could not be any provision of the law more explicit than that is. I take it, as a matter of common knowledge to those who were living in this county engaged in the practice of law at the time this act went into effect, that it was intended to meet just such cases as this. It is not for the court to undertake to set aside the legislative intention. It seems to have been devised to meet precisely this state of affairs. Here is a complaint which alleges falsely that this indebtedness arose in Murray City. It is admitted that neither of the parties ever lived there. It is admitted that the debt was not contracted there, and could not have been payable there, and there is no other inference that can be drawn than that the allegation is untrue. It is the sort of an allegation that this statute is intended to meet; not only
Further remarks are then made on the case of State v. District Gourt, supra, and the judge gives his reasons why he thinks the decision in that case does not apply. After doing so, he continues:
“So that the facts appear clear enough in the record that the allegation in the complaint that the debt was contracted in Murray City was untrue, and therefore it follows that the court must, in accordance with this statute, hold that the judgment is void. . . . You may draw findings in accordance with the views of the court as expressed. Judgment in favor of the defendant.”
“(1) Pleadings are not required to be in any particular form, but must be sucb as to enable a person of common understanding to know wbat is intended. (2) Pleadings, except the complaint, may be oral or in writing; if in writing, must be filed with the justice; and, if oral, an entry of the substance must be made in the docket.' (3) The complaint must be in writing, and must be verified, and must fully allege and set forth at least one of the grounds mentioned in section 3668, showing that the action is commenced in the city or precinct as required by said section.”
Section 3685x is merely an addenda to the section just quoted, and became effective in March, 1907, less than a month after the action in question was commenced. It is evident that, by the provisions of section 3685x, certain facts were required to be alleged and proved by the plaintiff in an action commenced in a justice court which were not required of him under section 3685. Two questions therefore arise: (1) Did the provisions of section 3685x, which became effective after the action in question was commenced, have any effect on the pleadings filed in said action? and (2) Did the provisions of that section afford the district court of Salt Lake County any legal ground or excuse for refusing to determine the action on its merits ? Por the purposes of this decision, and not otherwise, we shall assume that the provisions of section 3685x are valid and enforceable with respect to all actions commenced after the section became effective, and also as to all acts or steps in a pending action which were still required to be taken therein by either party after said section went into effect.
In 2 Lewis’ Suth. Stat. Const, section 674, tbe author, after discussing tbe effect of statutes relating to procedure in all pending actions, states tbe rule thus:
“If before final decision a new law as to procedure is enacted and goes into effect, it must from that time govern and regulate the proceedings. But the steps already taken, and the status of the case as to the court in which it was commenced, the pleadings put in, and all things done under the late law, will stand, unless an intention to the contrary is plainly manifested; and pending.cases are only affected by general words as to future proceedings from the point reached when the new law intervened.”
Tbe rule in tbe beadnote to tbe ease of Bedford v. Shilling, 4 Serg. & R. (Pa.) 401, 8 Am. Dec. 718, is stated thus:
“A statute requiring, as a basis of recovery in an action, evidence of facts not previously necessary to be proved will not be construed to apply to actions commenced before its passage, unless expressly so declared.”
In Hanover Nal’l Bank v. Johnson, 90 Ala. 552, 8 South. 43, tbe Supreme Court of Alabama, in passing upon tbe sufficiency of an unverified plea, says:
“The plea was held to be sufficient on the former appeal in this case, and it could not be vitiated by the subsequent enactment of the statute requiring such pleas to be verified. The statute should not be given a retroactive effect, so as to destroy the efficacy of steps already taken in a pending suit, though, as it relates only to the remedy, it would operate upon proceedings taken after its passage in a cause then pending.”
For tbe reasons stated, a peremptory writ of mandate should issue as prayed for in tbe petition. In this case, tbe defendant Sturm having resisted tbe writ, be should pay tbe costs of this proceeding.
Let such an order be entered.
Concurrence Opinion
I fully concur. Tbe court by its ruling, indicated that tbe petitioner on tbe merits was entitled to prevail but held that no adjudication could be made on tbe merits for want of jurisdiction. As shown by Mr. Justice Frick, tbe undisputed facts alleged in tbe petition and tbe return made on tbe alternative writ show that tbe judgment rendered “in favor of tbe defendant” was based alone on tbe ground that tbe plaintiff In tbe action before tbe justice by an insufficient and false complaint bad not conferred jurisdiction on tbe justice to render a judgment in tbe action, and hence no
Eor tbe reasons stated by Mr. Justice Frick, I tbink tbe district court bad jurisdiction to malee an adjudication on tbe merits, and that it ought to do so.