T.J. Moore v. Koubly

Decision Date01 August 1866
Citation1 Idaho 55
PartiesT. J. Moore v. Henry Koubly.
CourtIdaho Supreme Court

CLERK'S CERTIFICATE.-The certificate of the clerk of the district court that the "judgment has been duly appealed" will not cure any defects in the record. It is for the court to determine that question from the record.

APPEARANCE-WAIVER.-A party appearing generally, in a suit or proceeding, thereby cures whatever defects may exist in the original process to bring him into court.

IDEM.-A voluntary appearance in an action is as effectual for any purpose as due service of process.

IDEM-NOTICE OF APPEAL.-A party appearing generally in a case on appeal in this court thereby waives all informalities in the notice of such appeal, or want of service of the same.

JURISDICTION-PROBATE COURTS.-The act of the legislature conferring appellate jurisdiction upon the probate courts in civil cases, is in conflict with the organic act.

APPEAL from the First District, Nez Perce County.

A. Heed, for the Appellant.

Appellant seeks to have the court review all intermediate orders and judgments, and to have the order and judgment of

the district court reversed, and to have the judgment of the justice of the peace affirmed with costs. (Stats., p. 141 secs. 292 and 293.) Curtis & George, for the Respondent.

There is no evidence of the service upon respondent of any notice whatever of this appeal. The record shows no judgment or order of the court below in the case. The appeal from the probate court to the district court was without authority of law, and conferred no jurisdiction upon that court in the case, either original or appellate. And the district court very properly decided nothing. The most that court could have done was to have dismissed the appeal.

This court cannot go behind the district court to review any order or judgment made by any inferior court. This court can only act upon the proceedings, judgment, or orders of the district court from which the appeal was brought here, whether the same be intermediate or not. Nor can this court affirm the judgment of the justice of the peace, as no appeal lies from that court to this. And no remittitur or mandate could be sent there. If the inferior court erred, the district court was open to correct them; and this court to correct the errors of the district court. In this case the district court committed no error by having done nothing.

All the proceedings in all the courts below have been and are coram non judice and void, and this appeal is the same. The justice had no jurisdiction over the subject matter; the probate court, under the organic act, had no appellate civil jurisdiction; the district court had no jurisdiction on appeal from a justice's court through a probate court; this court has no jurisdiction whatever to determine any of the rights of the parties, because no such rights were submitted for the determination of the district court, and it determined none-not even awarding costs.

CUMMINS J.,

delivered the opinion of the court,

McBRIDE C. J., and KELLY, J., concurring.

This was an action in replevin, originally commenced and tried in the justice's court for the recovery of specific personal

property, or its value, which was determined in favor of the plaintiff. From that court the defendant appealed to the probate court of Nez Perce county. When the cause was called up for hearing in the probate court, on the 5th of February, 1864, plaintiff, by his counsel, moved the court to dismiss the cause, upon the ground that the probate court did not possess, nor could it exercise, appellate jurisdiction. This motion was allowed by the court, and the cause accordingly dismissed. From this judgment, or order of dismissal, the defendant appealed to to the district court of the first judicial district. On the first day of April, 1864, the cause being called up for hearing in the district court, that court reversed the judgment of the probate court in sustaining the motion, holding that the probate court was properly invested with and could exercise appellate jurisdiction, and hence erred in dismissing the cause. But whether the case was remanded to the probate court, as would have been proper under this ruling, for further or for any proceedings, does not clearly appear from the record before us.

From the judgment of the district court disallowing the motion filed in the probate court, and declaring that that court could legally exercise appellate jurisdiction, the plaintiff appeals to this court. Upon this state of facts, the respondent files a motion to dismiss the appeal upon the grounds:

1. That there is no evidence in the record or transcript from the court below of service of the notice of appeal on the respondent.

2. There is no judgment of the court below (meaning the justice's court) from which an appeal will lie.

As to the first point raised by this motion, it is true the record does not show or contain those facts necessary to constitute legal service of a notice. A certified copy of the notice of appeal is set out in the transcript, together with a certificate of the clerk that the appeal was "duly taken to the supreme court by the filing and service of the proper notice," etc. The rule is well understood that it is for the court and not for the clerk to determine whether an appeal has been properly taken. It is the duty only of the clerk to certify to the facts as they

exist, in relation to the notice and its service; and it is the province of the court to determine whether these facts constitute legal service-such service as will give this court jurisdiction of the respondent. If they do not, the certificate of the clerk that a "judgment has been duly appealed," will not obviate the defect in the record.

Though it does not affirmatively appear on the papers in this court that due service of the notice of appeal was had upon respondent, yet we do not deem the objection here well taken. The object to be attained by a notice of appeal and service of the same, is to notify the respondent that an appeal has been taken, and of the court in which he is to appear to oppose the reversal or modification of the judgment or order by which the appellant alleges he has been aggrieved.

It is a well-established rule of law, upon principle as well as authority,...

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7 cases
  • First Nat. Bank of Weiser v. Washington County
    • United States
    • United States State Supreme Court of Idaho
    • 27 Noviembre 1909
    ...of notice, and served all the purposes that were intended to be accomplished by the issuance and service of the notice itself. (Moore v. Koubly, 1 Idaho 55 (58); Godfrey v. Douglas County, 28 Ore. 446, 43 P. O'Dell v. Rogers, 44 Wis. 136; Hayes v. Shattuck, 21 Cal. 51.) At the hearing befor......
  • In re Application for a Writ of Habeas Corpus for Sharp
    • United States
    • United States State Supreme Court of Idaho
    • 20 Junio 1908
    ...is limited to the jurisdiction expressly granted by the constitution, and cannot be enlarged by implication. (11 Cyc. 656, 771; Moore v. Koubly, 1 Idaho 55; Dewey v. Imp. Co., 12 Idaho 280, 85 P. 921.) In guardianship matters, probate courts are courts of record (Const., art. 5, sec. 21; De......
  • Dewey v. Schreiber Implement Co.
    • United States
    • United States State Supreme Court of Idaho
    • 16 Abril 1906
    ...... secs. 20, 21; Idaho Rev. Stats. 1887, sec. 3841, subd. 9;. People v. Durrell, 1 Idaho 44; Moore v. Koubly, 1 Idaho 55; Ferris v. Higley, 20 Wall. 375, 22 L.Ed. 383; Clayton v. Utah 132 U.S. ......
  • Athey v. Oregon Short Line R. Co.
    • United States
    • United States State Supreme Court of Idaho
    • 3 Abril 1917
    ...... a notice of appeal upon him." (Bell v. San Francisco. Sav. Union, 153 Cal. 64, 94 P. 225; Moore v. Koubly, 1 Idaho 55; Planters' Trading Co. v. Moore,. 7 Ala. App. 393, 62 So. 302.). . . ......
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