Eggart v. Dunning

• Decision Date: 07 May 1907
• Citation: 89 P. 1022,15 Wyo. 487
• Parties: EGGART v. DUNNING
• Court: Wyoming Supreme Court

89 P. 1022

15 Wyo. 487

EGGART v. DUNNING

Supreme Court of Wyoming

May 7, 1907

ERROR to the District Court, Sheridan County, HON. CHARLES E CARPENTER, Judge.

H. C Dunning sued W. M. Eggart in justice court in Sheridan County to recover a money judgment. After rendition of judgment for plaintiff the defendant sought to appeal to the District Court. The appeal was dismissed by the latter court for the failure of the appellant to file with the justice a written notice of his desire to appeal. The appellant thereupon prosecuted proceedings in error. The material facts are stated in the opinion.

Affirmed.

Robert P. Parker, for plaintiff in error.

The appeal from the justice was perfected on filing the bond provided for in Section 4403, Revised Statutes of 1899. (Ex parte Clarke, 3 Cow., 379; Robertson v. O'Riley, 24 P. 560.) The purpose of the notice required by Section 4398 is to obtain an allowance of the appeal, and the allowance, without the notice, waives the defect. The absence of the notice does not affect the court's jurisdiction. (20 Ency. L. (2d Ed.), 1106; Webster v. Hopkins, 11 How. Pr., 140; Ex parte Parker, 120 U.S.) The law favors the right of appeal, and it was not intended by the statute to render the filing of notice of appeal mandatory. The oral notice was sufficient. (Richardson v. Debnam, 75 N C., 390; Hills v. Miles, 13 Wis. 625.) The recitation of the fact of appeal in the bond operated as sufficient notice.

Stotts & Blume, for defendant in error, argued that the appeal had not been perfected because the oral notice of appeal was not a compliance with the statute, and cited Italian-Swiss Agr. Colony v. Bartagnolli, 9 Wyo. 204.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

This was an action on account, originally tried in a justice court of Sheridan County. Judgment was rendered for the defendant in error, who was the plaintiff, against the plaintiff in error, who was the defendant below. From such judgment the plaintiff in error appealed to the District Court of Sheridan County. Defendant in error appeared specially and moved to dismiss the appeal, which motion was granted and the court directed the case to be certified back to the justice court for enforcement of its judgment in accordance with the statute in such case made and provided. From the order dismissing the appeal the plaintiff brings the case here on error.

The motion to dismiss the appeal was on the ground of non-compliance with the provisions of Section 4398, Revised Statutes of 1899, in that no notice of a desire to appeal was ever filed with the justice of the peace who rendered the judgment. That section provides that: "Any person desiring to appeal shall, within fifteen days after rendition of the judgment from which his appeal is to be taken, file with the justice of the peace by whom such judgment shall have been rendered, a notice of such desire, and shall, within said fifteen days, either pay all the costs of the cause appealed up to the time of the transmission of the papers to the District Court, as hereinafter provided, including one dollar and fifty cents, which shall be allowed to the justice for making a transcript and allowing the appeal, or shall give bond in double the amount of all such costs to the effect that he will pay the same in case judgment be rendered against him therefor in the District Court, and such undertaking may be included in the undertaking in stay of execution hereinafter provided for in case such undertaking in stay shall be given."

The transcript of the justice docket shows that trial was had and judgment rendered on February 12, 1906. Following the entry of the judgment are the following entries: "Feb. 12, 1906, defendant gives oral notice of appeal. Feb. 24, 1906, defendant files appeal bond in the sum of $ 175, signed by W. M. Eggart and P. Cusick, which is approved by the court and appeal allowed." It does not appear that any written notice of intention or desire to appeal was ever filed with the justice.

The right of appeal from the judgment of a justice of the peace is given by the constitution in such cases and pursuant to such regulations as may be prescribed by law. (Const., Art. 5, Sec. 23.) Statutes regulating such appeals are strictly construed and so held by this court in Italian-Swiss Agricultural Colony v. Bartagnolli, 9 Wyo. 204; 61 P. 1020; 24 Cyc., 660. Applying such rule to the case before us, it is apparent that the notation on the justice docket was not a compliance with the statutory provision as to filing the notice of a desire to appeal. The oral notice could not be filed and it was evidently the intention of the Legislature that the jurisdiction upon appeal should not rest in parol or be subject to the uncertainties of memory, but that the evidence thereof should be in writing and show upon its face and by its filing, the step taken to perfect the appeal. It will be observed that the statute does not merely provide that notice shall be given, in which case any kind of a notice might be sufficient, but it goes further and provides that such notice shall be filed with the justice. The distinction is very clearly shown in Willis, Jr., Admr., v. Willis, 20 Ohio C.C. 664, affirmed in 57 Ohio St. 668, 50 N.E. 1135. The statute provided that an administrator could appeal from an order of the Probate Court and one of the necessary steps to do so was to file a written notice of his intention to appeal. Instead of doing so the administrator gave oral notice of his intention to appeal, which was noted upon the journal. The court held that no appeal was perfected and that the appeal was properly dismissed. In Brown v Wallace, 21 Ohio C.C. 417, the court comments upon the statute which required a "giving of notice" and one which required a particular kind of giving--a filing--in order to perfect an appeal. It was there held that there was a wide distinction in the meaning of such statutory provisions; --in the one which simply required notice to be given the manner of giving was not essential so long as the notice was actually given; in the other, where the manner and method of giving and the kind of notice is provided, it excludes any other or substitute therefor. While those...