37 P.2d 404 | Idaho | 1934
Lead Opinion
Defendant, Mrs. Elmer Stokes, was charged in the probate court of Franklin county of the offense of possession of intoxicating liquors. On September 18, 1933, defendant entered a plea of guilty to the charge, and thereafter, September 26, 1933, was sentenced to pay a fine of $300. A stay of execution was granted until October 3, 1933, and then failing to pay the fine imposed, defendant commenced service of her sentence October 4, 1933.
On October 6, 1933, defendant filed with the probate court a notice of appeal. Three days later, October 9, *54 1933, defendant filed with the court a motion to withdraw her plea of guilty. It appears that neither the notice of appeal nor the motion to withdraw the plea of guilty were personally served upon the prosecuting attorney, prior to October 9, 1933. However, on October 6, 1933, copies of the notice of appeal and motion to withdraw the plea of guilty were sent by registered mail to the prosecuting attorney. As to when such copies were actually received by the prosecuting attorney, the record is in doubt. It does appear quite certain, however, that they were not received on October 6, 1933, but at a later date, and appellant does not contend otherwise.
November 29, 1933, the prosecuting attorney filed a motion to dismiss the appeal on three grounds: 1. That the appeal was not taken within the time allowed by law, for the reason that sentence was passed September 26, 1933, and the prosecuting attorney was not served with notice until October 9, 1933. 2. That no notice of appeal was given when the sentence was passed on said defendant. 3. That the plea of guilty entered by defendant had never been withdrawn.
The district court granted the motion to dismiss the appeal, and the case is now before us on appeal from the order of dismissal.
Respondent appears specially for the express purpose of dismissing this appeal, contending that the district court did not have jurisdiction except for the purpose of dismissing the appeal from the probate court to the district court, and, further, that this court is without jurisdiction except for the purpose of dismissing this appeal, advancing two propositions of law, which are decisive. First, may a notice of appeal from a judgment of conviction in the probate court be served by mail by depositing the same in a postoffice on the last day of the statutory period for appeal? Second, is an order of the district court dismissing an appeal for jurisdictional defects prior to trial subject to review in this court? *55
Any defendant who desires to appeal to the district court from a judgment of conviction in a criminal action by a probate or justice court must give notice of appeal as provided by section 19-4038, I. C. A., which reads as follows:
"A defendant intending to appeal must give notice of his intention to do so at the time of the trial or rendition of the judgment, and must within ten days after the rendition and entry of the judgment, file with the judge or justice of the court wherein the conviction was had, and serve on the prosecuting attorney of the county, a notice of appeal, entitled in the action, setting forth the character of the judgment, and the intention of the defendant to appeal therefrom to the district court."
This court has heretofore held, in State v. Barnard,
The primary question then arises, it not being contended that personal service of notice of appeal was made on the prosecuting attorney within the ten-day period required by statute, section 19-4038, I. C. A., as to whether a letter, addressed to the prosecuting attorney, containing the notice of appeal, deposited in the United States postoffice on the last day during which the notice of appeal could be served on the prosecuting attorney, is sufficient service. It is the contention of appellant that the service was sufficient and complete at the time when the letter with the notice was deposited in the postoffice, relying upon sections
The question then arises, do sections
Nowhere in the statutes providing the procedure to be followed on appeals in criminal actions from justice or probate courts to the district court is there any provision for services of notice of appeal by mailing, or publication, commonly known as substituted service. It is the law that "unless statutes expressly allow substituted service of notice of appeal by mailing, publication, or otherwise, an appellee can only be brought into an appellate tribunal by personal service, and in all cases not within the statute of substituted service, personal service must be made." (Town of Casey *57 v. Hogge,
And it seems to be well settled that a statute requiring that notice be "served," without further specific directions, implies written notice served personally on the party designated. (Town v. Hogge, supra; Clinton v. Elder.
The right to appeal is statutory, unknown to the common law. (General Custer Min. Co. v. Van Camp,
We realize and appreciate that under such a state of the law a grave injustice may be done to a defendant who has just legal grounds for an appeal, if a prosecuting attorney absents himself, either intentionally or otherwise, so that personal service cannot be made upon him. The enactment of laws to forestall such a possibility is purely legislative, and not within the province of this court. We must administer the law as we find it.
In view of what has been said, we conclude that the service of notice of appeal, as attempted in this case, was insufficient and did not comply with section 19-4038, I. C. A. Consequently, the appeal to the district court was not perfected, and the district court did not err in dismissing the appeal.
Respondent further contends that this appeal should be dismissed for the reason that the order made by the district court dismissing the appeal from the probate court is not appealable under section
A similar order was under consideration in State v. Barnard,
In State v. Leeper,
In. State v. Dawn,
If this question was before this court for the first time, we would be impelled to hold that such an order of the district court is not an appealable order under section
In order to avoid uncertainty or ambiguity in the future with reference to such appeals, it is not amiss to state that if a defendant has been convicted in a justice or probate court and he appeals to the district court in substantial conformity with the provisions of the statute, he is entitled to have the case either tried or dismissed on the merits in the district court. If the state moves in the district court to dismiss the appeal for failure to perfect the same according to the statute and such motion is granted, the order granting the motion is not appealable, as no appeal is provided for from such an order in section
"A writ of review may be granted by any court except a probate or justice court, when an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy."
Under this statute, a writ of review would lie to determine the sufficiency of the appeal from the justice or probate court to the district court, for if the appeal, as a matter of fact, has been properly perfected, the district *60 court has no jurisdiction, except to try the case de novo, or dismiss the same on its merits, and a dismissal of the appeal in such case would be an act in excess of its jurisdiction.
The order of the district court is affirmed, on the ground that the appeal from the probate to the district court was not properly perfected.
Givens and Holden, JJ., concur.
Petition for rehearing denied.
Concurrence Opinion
We concur in that portion of the opinion wherein it is held that the service of notice of appeal was insufficient and ineffectual in that the service thereof was not in compliance with section 19-4038, I. C. A., and that the district court did not err in dismissing said appeal.
