102 P. 868 | Utah | 1909
This is an original application for a writ of mandate against Hon. Morris L. Ritchie^ one of the district judges of Salt Lake County. The proceedings upon which the application is based are as follows: On October 31, 1908, Hyrum Neilson, the relator herein, who, for convenience, will hereafter be designated and referred to as plaintiff, commenced an action in the justice court of Salt Lake City precinct against E'. E. Watrous, H. R. Watrous, and Earl Watrous, defendants, to recover the sum óf $206 for goods, wares, and merchandise alleged to have been sold and delivered to them by plaintiff. Plaintiff caused to be issued
It is contended on behalf of the defendants that the judgment of the justice of the peace dismissing the action without prejudice is not a judgment from which an appeal will lie. Counsel, in their brief, say: “The judgment of the justice in this case was that the same be dismissed without prejudice, and therefore it did not dispose of the action as to all the parties, and dispose of the subject-matter of the litigation upon the merits.”
It is settled law in this jurisdiction that a judgment is final for the purpose of taking an appeal when it terminates the action or proceeding in which it is rendered, and that, too, regardless of whether or not the rights of
Both tbe justice of tbe peace before whom tbe action was commenced and tbe district court to which tbe appeal was taken bad original and concurrent jurisdiction of tbe subject-matter of tbe action. In fact, tbe question of jurisdiction of tbe subject-matter is not involved. Section 3745, Comp. Laws 1907, provides that all causes appealed from the justice of tbe peace courts to tbe district court shall be beard anew in such court. It therefore necessarily follows that whatever right a party to an action may waive in tbe justice court be may also waive when tbe case is appealed to tbe district court; or be may insist upon such rights in tbe justice court and waive them in tbe district court. Therefore, whatever rights the defendants may have bad to object to tbe justice court proceeding to try
It follows from what we have said that defendants, by answering to tbe merits in tbe district court, submitted themselves to tbe jurisdiction of tbe court. In fact they did not challenge the jurisdiction of that court
We think the temporary writ heretofore issued ought to be made permanent. It is so- ordered. Costs of these proceedings to be taxed against defendants E. E. Watrous, H. R. Watrous, and Earl Watrous.