104 P. 750 | Utah | 1908
Lead Opinion
On December 23, 1903, relator commenced an action in the justice’s court of Murray City, Salt Lake County, Utah, against John Wood, to recover tbe sum of $33.20 with interest thereon from July. 15, 1901. Summons was issued the same day the action was commenced, but was not served until January 19, 1907 — more than three years after it was issued. On January 26, 1907, the defendant in that action filed his affidavit for a change of venue. The affidavit recited that at the time of the commencement of said action defendant was not a resident of the precinct in which the action was brought, but that he resided and still resides at Lehi City, Utah County, Utah; that he did not contract to perform the obligation in the precinct where the action was commenced; that the particular place, if any, in which he contracted to perform the obligation was Pocatello, Idaho. On February 11, 1907, the justice of the peace made and entered on his docket the following order: “Upon reading affidavit of defendant, and it appearing to me therefrom to be a proper case for change of venue, it is hereby ordered that this cause be transferred to' Lehi City, Utah, upon payment of all costs and transcript charges herein.?’ Costs were neither paid nor tendered. On March 12, 1907, the justice of the peace made an order vacating the order of transfer because of the non-payment of costs, and entered the default of defendant and rendered judgment against him and in favor of plaintiff. Thereafter, and within the time allowed by law, respondent appealed to the' district court from the judgment entered in the justice’s court. After the case was docketed in the district court, respondent moved said court to dismiss the action on the ground that the said justice’s court was ousted of jurisdiction by the filing of the affidavit
It is urged on behalf of relator that, respondent Wood having failed to pay the costs that had accrued in the action, the justice was warranted in setting aside the order theretofore entered transferring the cause to another precinct, and in proceeding to try the case on its merits. It is also contended that the affidavit filed by respondent Wood did not deprive the justice of jurisdiction of the subject-matter of the action, and that, therefore, even if it be conceded that the action of the justice in setting aside the order transferring the cause to another precinct were erroneous,- it was mere error only, and it did not render the judgment void. Section 3668, Eev. St. 1898, so far as material here, provides : _
“Actions in justices’ courts must be commenced., and, subject to tbe right to change the place of trial as in this chapter provided, must be tried: . . .
(8) When a person has contracted to perform an obligation at a particular place and resides in another county, precinct, or city — in the precinct or city in which such obligation is performed, or in which he resides.
(9) When the parties voluntarily appear and plead without summons — in any precinct or city in the state.”
Section 3669 provides that the court must at any time before trial, on motion, change the place of trial in the following cases — specifying five different grounds upon which a change of venue may be allowed. Section 3612 provides that the party applying for a change of venue upon one or more of the five grounds mentioned in section 3669 must pay the costs that have accrued in the action up to the time the order of transfer of the case is made. By an examination of sec-' tion 3669, Eev. St. 1898, it will be seen that no provision is made therein for the transfer of an action which has been
“6. When none of the parties defendant resided in the precinct in which said action is brought at the time it was commenced, and when any party defendant makes and files an afiidavit to the effect that at the time of _the bringing pf the action none of the parties defendant were residents in the precinct wherein said action is brought and that the party making the affidavit did not contract to perform the obligation in said precinct and setting forth the place of his residence at the ■ time of the bringing of the action and the particular place, if any, where he contracted to perform the obligation. Said affidavit shall be conclusive upon the parties to the action and upon the justice as to the particular place, if any, where the defendant contracted to perform the obligation, and also as to the residence of the defendants at the time of the bringing of the action. . . . Where the affidavits filed under this provision show that at the time of the bringing of said action all the defendants resided elsewhere than within the precinct wherein said action was brought, the court must change the place of trial without motion being made therefor, and his jurisdiction over said action shall cease, upon the filing of such affidavit, for all purposes, except that his jurisdiction shall continue for the sole purpose of transferring such case to the justice of the peace to whom such action is transferred.” Section 1, c. 92, p. 108, Sess. Laws 1905.
It will thus be seen that section 3669, as amended, provides that the court must “motion” change the place of trial when one or more of the first five grounds therein mentioned are,shown to exist, and must “on payment by the party applying of all costs that have accrued” transmit all papers, etc., to the justice’s court to which the case is transferred, while subdivision six (the amendment) of said section provides that upon the filing of an affidavit by the defendant as therein provided the court “must change the place of trial without motion being made thereforthat is, the defendant, without applying for a change of venue, may, by filing the affidavit mentioned, arrest the proceedings of the justice of
A number of cases involving practically this same principle have been before the Supreme Court of California. The statutes of that state provide that .“no action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be bad therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced on its own motion or on motion of any party interested therein, . . . unless summons shall have been issued within one year, and all such actions shall be in like manner dismissed unless summons shall be served and return thereon made within three years after the commencement of said action.”'
“The court is deprived of jurisdiction to take any other action than to dismiss the cause, whether one day or many days elapse before its attention is called to the subject. The declaration that ‘no further proceedings shall be had therein’ is a statutory prohibition against any further proceedings; and, if the court should assume to act in disregard of this prohibition of the statute, it would be acting without any jurisdiction.”
Likewise, in the case of Swortfiguer v. White, 141 Cal. 576, 75 Pac. 172, there was no service and return made of the summons within three years after the case was commenced, and, on motion of the defendant, the action was dismissed. In an opinion affirming the judgment of dismissal the Supreme Court says:
“There having been no service and return made of the summons within three years from the commencement of the action, or appearance within that time by any of the defendants, that action was practically put an end to, and it was the imperative duty of the court to have dismissed it at the expiration of three years from its commencement. . . . The order and judgment entered March 23, 1900, dismissing the action from which this appeal is taken, was in accordance with the imperative command of the law.”
In each of the following cases the same question was presented, either on appeal or by application for writ of prohibition, and the same ultimate conclusion arrived at by the
Therefore tbe action of tbe justice in setting aside tbe order granting a change of venue, and then proceeding to try tbe case, was something more than mere error. It was an unauthorized attempt on bis part to regain control over an action of which be bad been completely divested of all jurisdiction, except to transmit tbe files and papers to tbe justice’s court to which tbe change of venue bad in effect been granted. Hence it necessarily follows that tbe justice of tbe peace, in proceeding to try tbe case, acted without
Tbe writ applied for is therefore denied. Costs to respondents.
Concurrence Opinion
(concurring).
I concur with tbe Chief Justice in tbe conclusion reached by him. In view, however, that tbe decision in this case establishes a rule of practice to be followed hereafter with respect to the jurisdiction of justices’ courts in a certain class of cases, I feel constrained to enlarge somewhat on the discussion he has made.
In this case it is made to appear that the defendant in tbe original action did not pay any costs, either when be filed tbe affidavit or at any time. It is now insisted that tbe justice bad authority to proceed with tbe case and enter judgment, notwithstanding tbe affidavit ousting him of jurisdio tion, because a change of tbe place of trial could' only be bad upon payment of accrued costs. With this contention I cannot agree. It will be observed that tbe right of tbe justice to proceed further in tbe action is arrested upon tbe filing, of
When must the change be made? Upon the filing, of the affidavit. When is the justice divested of jurisdiction ? The answer again is: At the moment the affidavit is filed. The cases which hold, therefore, that where costs are imposed upon the party applying for a change, the justice does not lose jurisdiction until the costs are paid have no application to this case. In the amendment the legislature imposed one condition, and one only, upon which depended the right to a change of the place of trial, and which, at the same time, ousted the justice of jurisdiction, or to proceed further in the action upon its merits. As I view it, to now impose an additional condition amounts to judicial legislation, pure and simple. In construing any statute or amendment thereto the real purpose the framers had in view must be kept in mind. As I have attempted to show, under a fair construction of section 3668 the original action was not rightfully nor'properly brought in Murray City. The defendant could not have been sued there without his consent. If he was properly served and made no appearance, his consent would have been conclusively presumed; and, in case he appeared and participated in the trial, he would have expressly consented. But where one files the affidavit provided for in the amendment
Nor can the argument prevail that the defendant waives the right to a change of the place of trial by not paying the costs. The justice is divested of all power to proceed upon the filing of the affidavit, and the right to proceed does not con
Tbe legislature bas full and complete control over justices’ courts. With regard to these it may confer or withhold special jurisdiction of particular matters within constitutional limitations at pleasure. It may therefore provide that a justice’s court in a certain class of cases may be ousted of jurisdiction upon making certain 'facts to appear by affidavit or otherwise. It may do this conditionally or unconditionally. If it bas provided a condition upon which this may be done, and tbe condition is complied with, it does not follow that another condition applicable to another state of facts must also be applied to' tbe particular case in band. Tbe legislature having in plain terms stated tbe condition to be performed, and in equally plain terms fixed tbe consequences that follow, tbe courts have no right to either impose other conditions or to avoid tbe consequences upon the ground that tbe particular statute does not provide for all emergencies. If tbe legislature prescribes tbe particular thing to be done, and determines what tbe result shall be, tbe courts are powerless, although the result, to some extent, may be incongruous. Where in adopting a statute or in amending one tbe legislative intent is clear, tbe courts must give it effect, al
The contention that the district court erred in dismissing the action is, in my judgment, wholly immaterial. This is not a proceeding to review errors. The proceeding is one to compel the district court to assume jurisdiction of the case and to proceed to try it. If my conclusion is correct that the justice’s court had no authority to try the ease and enter judgment, then the district court is equally without authority to do so. By any possible construction of all the provisions of the statute pertaining to the proceedings in justices’ courts, the respondent Wood was at least entitled to have his case tried in the justice’s court before it could be tried in the district court. This right was denied him, and the petitioner now demands that the district court be compelled, by the writ of mandate from this court, to proceed to the trial of a case which the law clearly requires to be tried first in the justice’s court.
The writ, in my judgment, should therefore be denied.
Dissenting Opinion
I dissent. It is conceded that the action in the justice’s court was commenced before a court of competent jurisdiction, and that the court had also acquired jurisdiction of the person of the defendant. The defendant appeared in the action, and made and filed a proper affidavit, and moved for .a change of venue on the ground that the obligation sued on was not contracted, and that the defendant did not reside in
The question to be decided involves the construction of section 3669 of the Revised Statutes of 1898 as amended in 1905, and section 3672, which was not amended. The sections relate to a change of venue and when allowed, and are a part of chapter seventy-three, prescribing the place of trial in justices’ courts. They pertain alone to venue and not to jurisdiction. Before section 3669 was amended, it provided that the court must, at any time before trial, on motion, change the place of trial: (1) When the justice is a material witness; (2) when an impartial trial cannot be had because of the prejudice and bias of the justice, or (3) of the cititzens of the precinct when a jury is demanded; (4) when the justice is disqualified from acting; and (5) when he is sick or unable to act. Section 3672 provides: “After an order has been made transferring the action for trial to' another court, the following proceedings must be had: (1) The justice ordering the transfer must immediately transmit to the justice of the court to which it is transferred, on payment by the
The section requiring the party applying for a change of venue to pay the costs was not in any particular repealed, amended, or modified. Before section 3669 was amended', section 3672 was an essential part of the procedure on change of venue. It still remained so after section 3669 was amended. Amending the statute by adding another ground for a change of venue in no particular affected the statute requiring the party applying for a change to pay the costs. I do not think it was contemplated by the legislature, when the amendment was made, that a party applying for a change of venue on one or more of the first five grounds specified in the statute must pay the costs in order to have the change perfected, but when applying on the sixth ground- — the one added by the amendment — he is not required to pay the costs. Such an intention of the legislature could only have been manifested by a modification of section 3672. Giving section 3669 as amended such a meaning renders it in direct conflict with section 3672. The statute requiring the payment of costs does not provide “that the party applying for a change of venue upon one or more of the five grounds men
The contention made that the jurisdiction of the justice was ousted by the filing of the affidavit because of the language contained in section 3669, as amended, that the justice’s “jurisdiction over such action shall cease upon the filing of such affidavit for all purposes,” except to transfer the cause, might be tenable if the defendant had complied with the other provisions of the venue statute, which are of equally binding effect. In order to effectuate a change of venue he was required to pay the costs just as much as he was required to make and file an affidavit. He was required to comply, not only with a part, but with all of the statute. And because of his failure to pay or tender the costs, he waived his right to have the .cause transferred, and the jurisdiction of the justice’s court remained where it was. The effect of the holding of the majority of the court is that, by reason of the filing of the affidavit by the defendant, and without the payment or tender of costs, the jurisdiction of the justice was ousted; that by the defendant’s refusal to pay the costs the justice cannot be required to transfer the cause, and thus the defendant has not only suspended all further proceedings in the action and prevented a trial, but he has also put himself in the position that, if the justice attempts to further proceed in the case, the defendant is also entitled to have the action itself dismissed. I do not believe the legislature intended any such results. The plaintiff, having commenced his action before a court having jurisdiction of the subject-matter, and who also had acquired jurisdiction of the person of the
Tbougb all that is claimed by the majority of the court be conceded, I nevertheless question the correctness of the district court’s ruling in refusing to take jurisdiction and in dismissing the action. If the inferior court did not have jurisdiction of the subject-matter, then of course the district court acquired no jurisdiction by reason of the appeal, in which case the action was properly dismissed. That the lower court did have jurisdiction of the subject-matter, and that it also had jurisdiction of the person of the defendant, is not disputed. The claim made is that by reason of the filing of the affidavit the court was thereafter unauthorized to further proceed with the cause. Justices’ courts, having jurisdiction of the, subject-matter and of the person, may do many things which are unauthorized, and which are in excess of jurisdiction, and which will void the judgment, but which do not void the action; and, by the taking of a general appeal to the district court, jurisdiction is conferred upon the latter court, with power to either try the case de novo or to vacate the judgment of the court below and to remand the case. Assuming, therefore, that the justice did not have authority, after the affidavit Avas filed, to further proceed Avith the cause, and that the subsequent proceedings were of no force or effect, still his attempt to proceed could not also render void the lawful proceedings had in the action before the filing of the affidavit, and thus void the suit itself. It is said, however, that when the justice’s court has once been divested of jurisdiction it cannot be restored. The texts and cases using such expressions refer to subject-matter jurisdiction. The question here does not involve such jurisdiction. We are applying and construing venue statutes, statutes which confer a mere personal-privilege which may be waived. Had the defendant proceeded to trial without applying for a change of venue, it of course is undoubted that he could not thereafter be heard to complain that the court was without jurisdiction. Nor could the defendant successfully make such contention, though before trial he had done all that was
It, therefore, seems to me that tbe right wbicb tbe defendant bad to a change of venue was a mere personal privilege, and in order to avail himself of it and effectuate a change be was required to pay costs, and, having failed to do SO', be waived tbe privilege, and tbe jurisdiction remained where it was, and tbe justice was authorized to’ proceed with tbe case. And, secondly, if this be not true, and it should be considered that tbe justice was unauthorized, after tbe filing of tbe affidavit, to further proceed, tbe attempt of tbe justice in so doing only voided such subsequent proceedings, but did not, ipso facto, void tbe action. And, as tbe district court, itself a court of original jurisdiction, had by virtue of tbe appeal acquired jurisdiction, both of subject-matter and of tbe person of tbe defendant, and was expressly authorized by statute to try tbe case anew, I see no reason why that court was
Rehearing
ON APPLICATION POR REHEARING.
Counsel for petitioner has filed an application for a rehearing, in which he most strenuously insists that the majority opinion is wrong, in that it offends against the provisions of both the Federal and state Constitutions, and that the conclusions reached are contrary to the general rules of construction. We shall not at this time enter into details, but shall limit the further discussion to a few general observations.
It is urged with much earnestness that we erred in holding that the facts stated in the affidavit for a change of place of trial are conclusive upon the parties and the justice; and it is further contended that it is not within the power of the legislature to declare that certain evidence shall be conclusive and binding upon the courts. We are not disposed at this time to enter upon a discussion with respect to when and for what purpose the legislature may or may not declare certain evidence conclusive and binding upon the courts, for the reason that the question is not now involved. The question with regard to conferring or withholding jurisdiction
Counsel quotes from the books to show that we have ignored the rules of construction in holding that the general provision with regard to the payment of costs does not apply to the amendment in question. In holding as we did we aimed to follow that which is universally conceded to be the duty of all courts, namely, to declare the intention of the legislature, as the same is manifested by what
It seems that in the state of Missouri the courts had to deal with a similar question, and it was there held under the •old statute that if the justice refused to make the order for a change of place of trial, his error in- so refusing was unavailing, except by a direct attack upon the judgment, for the reason that he had jurisdiction of the subject-matter, and his acts were erroneous merely. To remedy this matter the legislature of that state adopted an amendment, which provided ■“that when such affidavit for a change of venue shall be filed, the justice shall have no further jurisdiction in the case, except to grant such change of venue.” In passing upon this language, in the case of O’Reilly v. Henson, 91 Mo. App. 493, 71 S. W. 109, the court said: “It is plain that the mere application, in due form, ousts the justice of jurisdiction of the case.” In that case, however, it was claimed that the justice had retained jurisdiction because the defendant, after filing his affidavit, and the denial of the justice to grant the change, had participated in the trial. But the Court of Appeals held otherwise. It held that under the amendment above quoted, upon the filing of the application for a change, the justice was ousted of jurisdiction, and that unless the application was withdrawn, he could not legally do anything in the action, and that the judgment was void for want of jurisdiction. The question has been before that court many times and in various ways, but it has uniformly held that the mere filing of the affidavit ousted the justice of all power to proceed, and that any judgment rendered by him after the application is filed is void, and subject to collateral attack. (Jones v. Pharis, 59 Mo. App. 254; State v. Mc-Cracken, 60 Mo. App. 650; Endicott v. Hall, 61 Mo. App. 185; Baskowitz v. Guthrie, 99 Mo. App. 304, 73 S. W. 227.) In State v. McCracken, supra, the justice refused to transfer the ease unless the costs were paid, but the court compelled him to do so, notwithstanding the costs were not paid.
Counsel also vigorously assails the majority opinion because, as he says, we have given no reasons in support of the conclusions reached. In this regard we remark that the courts are not called upon to advance reasons why legislatures pass certain'laws. We have neither the time nor the disposition to give reasons why the legislature may think proper to either pass a new law or to amend an old one. While to do this may be proper enough, still we must content ourselves, as a general rule, where the law is attacked, with a mere statement of the grounds upon which we hold the law either good or bad. Moreover, if we should attempt to argue and reason out all the questions that are presented by counsel, our opinions would grow to impracticable lengths. Some things admit of being reasoned out. Others do not. But what counsel want is not reasons, but a decision in their favor. This is what counsel wants in this case, and this we are unable to give him without doing violence to our own judgment and convictions. In all such instances we, not counsel, must assume the responsibility.
After giving the matter further consideration upon counsel’s application, we are firmly of the opinion that the conclusions reached in the former opinion are sound, and that counsel has advanced no valid argument why the judgment there announced should not be adhered to. The application
Concurrence Opinion
concurs.
Note. At time case was decided (in 1908) W. M. McCarty was Chief Justice, and D. N. Straup, Associate Justice. Justice McCarty’s term expired January 1, 1909, at which time Justice Stbatjp became Chief Justice. Justice McGarty was re-elected, making him now, at the time of this denial of the petition for rehearing, Associate Justice.
