91 P. 133 | Utah | 1907
Lead Opinion
This is an application made to this court for a writ of prohibition. The relator obtained a judgment in the justice court against one William Hendrickson which was rendered on the 23d day of September, 1904. On the 28th day of that month the attorney for Hendrickson served on the attorney of the relator a notice of an appeal from the justice court to the district court, and at the same time served a notice “that the defendant is about to file his undertaking on appeal with-,” sureties, naming them. Both notices weré filed in the justice court on the 1st day of October, but the undertaking was not filed until the 4th day of October. The transcript of the record was transmitted by the justice to the district court on the 24th day of October. On the 31st day of December the relator moved the district court to dismis.; the appeal for want of jurisdiction. The motion was denied, and hence the application is here made to prohibit the district court from assuming jurisdiction of the case and trying it on merits.
Section 3748, Pev. St. 1898, relating to appeals from the justice court to the district court, provides:
*420 “When an undertaking on appeal is filed, notice of suck filing skall be given to the respondent. . . . The adverse party may, however, except to the sufficiency of the sureties within two days after notice of the filing of the undertaking, and unless they or other sureties justify before the justice from whose court the appeal is taken, within two days thereafter, upon notice to the adverse party, the appeal shall be regarded as if no undertaking had been given.”
Section 3747 provides that an appeal from a justice court shall not be effectual for any purpose unless an undertaking be filed within five days after íjling the notice of appeal. The contention made by the relator is that the defendant Hendrickson was required to give notice, not of an intention of filing an undertaking, but notice of the filing of the undertaking; that such a notice was not given, and hence the filing of the undertaking must be regarded as no undertaking, and therefore the appeal is ineffectual and the district court is without jurisdiction. We think the position is well taken.
The filing of the undertaking and the serving of notice of such filing is by statute made a prerequisite to effectuating an appeal. To hold that a notice of a mere intention to do -so, which the adverse party is bound to respect and treat as a compliance with the statute, malíes it incumbent upon him to watch the record during the period within which an appeal might be taken, in order that he may not lose his right to except to the sufficiency of the sureties. To so hold, would give a party appealing from a justice court the right to serve his notice of appeal and notice of intention of filing an undertaking the day after the rendition of the judgment, hold both and file them on the thirtieth or last day on which an appeal might be taken, and then within five days thereafter file the undertaking, during all of which time the adverse party' would be under obligation to watch the record in order that he may avail himself of the privilege of excepting to the sufficiency of the sureties. If, on the other hand, it should be said that the exception could be made within two days after the service of the notice of intention, it is apparent that such exception would be of no legal effect, because there would be no undertaking on file, to the sureties of
Let the writ issue. Such is the order.
Rehearing
ON REHEARING.
In our original opinion we reached the conclusion that the district court was without jurisdiction because no notice was given of the filing of the undertaking as required by statute. At the hearing a further point was made, that the notice of appeal was ineffectual because served on the 28th day of September and filed on the 1st day of October. Having held
: The statute provides that “the appeal [from the justice Court to the district court] shall be taken by filing a notice thereof with the justice and serving a copy on the adverse party.” Under this statute the plaintiff contends that the notice must be first filed and then served, or that the filing and service must be contemporaneous, that is, on the same day; and as the notice was served on the 28th day of September and filed on the 1st day of October it, for that reason, was ineffectual, and the court was without jurisdiction. The decisions are not harmonious upon the question. The following cases hold that under such a statute the filing of the notice must either precede or be contemporaneous with the service, else it will be ineffectual: Buffendeau v. Edmondson, 24 Cal. 94; Lynch v. Dunn, 34 Cal. 518; Lyon, County v. Washoe County, 8 Nev. 177; Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657; Courtright v. Berkins, 2 Mont. 404; Slocum v. Slocum, 1 Idaho 589; State v. Superior Court, 17 Wash. 54, 48 Pac. 733. The following cases seem to hold that the order of filing and service of the notice is immaterial, if both are done within the time the statute prescribes an appeal may be taken; Coker v. Supeñor Court, 58 Cal. 177; Hall v. Superior Court, 68 Cal. 24, 8 Pac. 509; Hall v. Superior Court, 71 Cal. 551, 12 Pac. 672; Reynolds v. Corbus, 7 Idaho 481, 63 Pac. 884.
We are unable to harmonize these conflicting views. We are inclined to the view that the filing of the notice must precede the service, or that the filing and service must be done at the same time, that is, on the same day. We think this is so, for the reasons stated by the courts in the cases first cited, which are, that the filing of the notice is made a con
'We are asked to consider the question of-the court’s jurisdiction with respect to the amendment. We cannot do so. The jurisdiction of the court must be determined as the law was when the appeal was taken.
We are of the opinion that the notice of appeal, was ineffectual, and that the court, also, for that reason, was without jurisdiction.
Let the petition for rehearing be denied. It is so ordered.