105 P. 105 | Utah | 1909
The Coalville Co-operative Mercantile Institution obtained a judgment in the justice court against Edward Mackey and his wife on the 11th day of January, 1907. The transcript of the justice’s record, as transmitted to the district court on an attempted appeal, shows that the Maek-eys served a notice of appeal on the 4th day of February, 1907, and that the notice was filed on the 5th day of February. The transcript further shows a docket entry that an undertaking on appeal with two sureties was filed on the 5th day of February. Neither the original undertaking nor a copy thereof is contained in the record, so transmitted, nor does the record show that any notice of the filing of the undertaking was given, or that a copy of the undertaking was served. After the record was transmitted to the district court, the plaintiff moved that court to dismiss the appeal for want of jurisdiction of the cause. The court denied the motion and assumed jurisdiction. Thereupon the relator,
Now, it is here made to appear that the record of the justice court, as transmitted to- the district court-, shows that a notice of appeal was served February 4th and was filed February 5th. That record clearly discloses
We are of opinion that evidence dehors the transcript or record 'on appeal was inadmissible (State ex rel. Snell v. District Court, 36 Utah 267, 103 Pac. 261), in aid of such matters; and we think it may safely be said that under the authorities generally it is not admissible to contradict or dispute such a record, in such instance, by affidavits or other evidence dehors the record. We think it would lead to much mischief if the rule were otherwise.
The record of the justice court, as transmitted to the district court, shows that an undertaking on appeal was filed on the 5th -day of February. The record does not show that any notice of the filing of the undertaking was given, or that any notice with respect to the undertaking was given or served. The statute provides that “when an undertaking on appeal is filed_ notice of such filing shall he given to the respondent.” In the Peart Case, having under consideration this provision of the statute, we said:
“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 an 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 ppsition is well taken. The filing of the undertaking and the serving of a notice of such filing is by statute made a prerequisite to effectuate an appeal.”
Again, the appellants in the district court were permitted to show by affidavits, over the objections of the relator, that the undertaking and a notice of the filing of the undertaking were presented to the justice for filing. 2 They did not offer to show, nor was it shown, that a notice of the filing of the undertaking was served on the respondent, or that even a copy of the undertaking was served, or that any kind of a notice with respect to the undertaking was served on or given to the adverse party. Whá't is shown by the affidavits is that an undertaking and a notice of the filing of an undertaking were prepared for service, and that they were presented to the justice court for filing; but it was not shown'that a notice of the filing of the undertaking or any notice in respect of the undertaking was served or given. Counsel for appellants, the respondents here in their brief "say: “It may also be contended that, in the filing of these;' documents, another notice that the undertaking had been filed should be given. We see no reason for doing this.” It is sufficient reason requiring it to be done when the statute provides that “notice of such filing shall be given” to the adverse party, and our prior holding that the giving of such a notice is
We think the writ ought to issue.
It is so ordered. The costs of this proceeding are ordered taxed against Edward Mackey and Mrs. Mackey.