103 P. 261 | Utah | 1909
This is an original application to this court for a writ of prohibition.
The material facts stated in the affidavit for the writ are: That on the 4th day of October, 1903, the petitioner, hereafter designated “plaintiff,” recovered a judgment in the justice court of Murray City, Salt Lake County, Utah, against one Orson Winter, who, with the Honorable T. D. Lewis, as one of the judges of the district court of Salt Lake County, is made a party to the proceeding; that thereafter said Winter caused an appeal' to he taken from said judgment to the district court of Salt Lake County by filing in said district court ’a transcript of the proceedings had in said justice court; that said transcript contains a notice of appeal, hut does not contain any proof of service of said notice on any person whatever; that plaintiff, in due time, filed a motion in the district court to dismiss said appeal upon the grounds that “no notice of appeal was served upon the plaintiff,” and, further, that the court “had no jurisdiction to determine said cause except to dismiss the appeal.” When the motion to dismiss the appeal came on for hear
When tbe appeal was taken, section 3744, Revised Statutes 1898, was in force. That section, among other things, provides that: “Tbe appeal shall be taken by filing a notice thereof with the justice, and serving a- copy
Counsel for Winter seeks to- distinguish People v. Gough from the case at bar upon the sole ground that People v. Gough involved an appeal in a criminal action, while the case at bar is civil. The statute requiring notice of appeal and service thereof was in terms the' same in People v. Gough that it is in the case at bar. The question is not what the nature of the proceedings were, but it is, What are the powers of the district court? It will not be disputed, we think, that the general, if not the universal, rule is that whether an appellate court has jurisdiction over the parties must appear from the record on appeal, and unless jurisdiction is made to appear from the record itself no ju
“Tbe jurisdiction of tlie appellate court must appear by tbe transcript, nor can other evidence of its jurisdiction be considered. This proposition bas reference, of course, to tbe completed transcript, after all bas been done that may be done to cure defects therein. Tbe necessity for tbe filing of a notice of appeal bas been already pointed out. This jurisdictional fact must appear in tbe transcript.”
The same doctrine is laid down by Elliott in his work on Appellate Procedure (section 180).
We are clearly of the opinion that, inasmuch as the record on appeal did not disclose service of the notice of appeal, the district court did not have jurisdiction of the plaintiff, who was the adverse party on the appeal.
In this state the right of appeal from justices’ courts to the district courts is constitutional, and the judgments of the district courts in such cases, with certain exceptions, are final. The right of appeal is therefore guaranteed by the Constitution itself, and is a valuable
We are of the opinion that a peremptory writ of prohibition should issue in this case, but that the same should contain a direction to the defendant Hon. T. D'. Llewis, as judge of the district court of Salt Lake County, to permit Orson Winter to supply the defect of proof of service of the notice of appeal, if he so desires, by filing the same in the justice court from which the appeal is taken, and, if proof of service is duly certified by said justice court to the clerk of the district court of Salt Lake County within the time within which the same is ordered to be so filed by said district court, then said district court may proceed to hear •and determine the appeal; but, if said proof of service is not so filed' as aforesaid, then said district court is hereby ordered and directed to dismiss said appeal."
It is further ordered that the defendant Orson Winter is required to pay the costs of this proceeding.