3 Utah 258 | Utah | 1883
This action was commenced in a justice’s court. On the trial in that court, the plaintiff recovered a judgment for two hundred and seventy-five dollars damages and seven dollars costs, which was rendered by the justice October 28, 1881, and the defendant appealed to the district court, On the seventh day of November, 1881, the appeal bond having been filed, notice of appeal served and filed, and the cost of the justice, including transcript, paid, the appeal was perfected. The justice deposited, on the twelfth day of November, 1881, the files of the case in his court, with a transcript of the proceedings from his docket, with the clerk of the district court, at his office in Salt Lake City, Utah. On the twenty-fifth day of September, 1882, the plaintiff filed in the district court a notice of a motion, of which the following is a copy:
“ Defendant and Messrs. Sutherland & McBride, his attorneys, will please take notice that plaintiff will, upon the rec- . ords and files of said case, upon the twenty-eighth day of September, 1882, at ten o’clock A. M., or as soon thereafter as counsel can be heard, move this honorable court, at the courtroom thereof, for an order dismissing defendant’s appeal herein, and affirming the judgment of the court below, on the grounds that defendant has not perfected his appeal, and caused his case to be filed and placed upon the docket of the court, as required by law and the rules of the court.”
The following is a standing order of the district court, made by that court in 1880:
“In all cases coming up to this court by appeal from any judgment or order of the justice of the peace rendered thirty days before the commencement of a term of this court, it shall be the duty of the appellant to file the transcript from the justice’s docket and all papers accompanying the appeal with the clerk of this court, and perfect the appeal within the first two days of the term; and it shall be the duty of the appellee to file with the clerk within twenty days thereafter the answer or other pleadings in the case; and if the appeal shall be
On the twenty-seventh day of September, 1882, the defendant filed a certified copy of all the files in this case from the justice’s court, and also annexed thereto a certified transcript of the docket of said justice, and paid the clerk five dollars as fees for filing the same and placing it on the calendar of this court. On the hearing of the plaintiff’s motion in -this court, it was agreed by the parties that there was but one case, and that the only difference between the two cases bearing the same title was that the case filed by the plaintiff contained the original files of the justice’s court, with a certified transcript from the justice’s docket, while the case filed by the defendant contained copies of the original files in the justice’s court and a certified transcript of the proceedings therein as shown by his docket, and that there was but one case pending between the parties.
At the opening of the court, at the September term, 1882, the defendant’s counsel, in open court, in the presence of the plaintiff’s counsel, on the call of the calendar for the setting of cases for trial, announced that defendant was ready to try said case, and desired it to be set for trial. The court set the case for trial, subject to the plaintiff’s motion to dismiss the same.
On the fourth day of December, 1882, the motion of the plaintiff to dismiss the appeal on the ground of a want of diligence on part of defendant in perfecting the appeal, and the court, having heard the argument of counsel, orders: “That the appeal herein be and the same is hereby dismissed; and
While the statement does not disclose the fact, yet it was understood upon the argument, and this court is otherwise aware of the fact, that it is customary with the clerks of the district courts, in appeal cases from justices’ courts, to demand from the appellant the payment of five dollars as a deposit for his costs, before they will indorse the filing on the papers sent up by the justice, and docket the case. It was for the neglect on the part of the appellant to pay this sum that the appeal in this case was dismissed.
There is no law authorizing the clerk to make or insist upon this demand. In civil actions, he is directed to “ require the party commencing the suit to pay in advance, or secure by bond with security the payment of the probable amount of the costs of said suit:” Comp. L., sec. 2378. This provision evidently refers to suits commenced in the district courts, and can not be made to apply to eases brought into these courts by appeal from justices’ courts; and there is a very good reason why it should not. By section 582 of the practice act, before an appeal from a justice’s court can be effectual for any purpose, the appellant must file an undertaking with sureties that he will pay all the costs on the appeal. This must refer to the costs in the district court, for he is required to pay the costs of the justice’s court on taking the appeal. The clerks’ costs in these cases are secured by the undertaking on appeal, and he has no right or authority to demand the payment of them or any portion of them in advance, in addition to this security the statute affords him.
The standing rule or order of the district court, quoted in the statement, does not, in terms nor by any just legal intendment, refer to the payment of this sum demanded by the clerk. It refers to the perfecting of the appeal. All that the law requires of an appellant in order to perfect his appeal
The ground upon which the order of dismissal seems to have been made in the court below was a want of diligence in perfecting the appeal. The record discloses that before the motion was set to be heard, and months before it was finally heard, the appellant complied with the illegal demand made upon‘him, and at the hearing announced himself ready to proceed to a trial. This being the case, even under the construction given to the standing rule or order of the court by the respondent, the motion should have been denied.
The decision of this court, however, is placed upon the ground that the appellant having fulfilled all the requirements of the law in order to perfect his appeal, his right to a trial in the district court, so far at least as concerns this motion, had become absolute — a right given by the statute, of which he could not be deprived by a rule of court, much less by a custom of its clerk, requiring him to do something in relation to his appeal which the law does not enjoin upon him as a condition precedent to his right to a trial. I know of no grounds upon which an appeal from a judgment' in a justice’s court can be dismissed by the district courts, except where there exists such an informality and disregard of the manner and form prescribed by the statute for taking and perfecting it as renders it ineffectual; in other words, no appeal.
