Goodrich v. Peterson

• Decision Date: 14 December 1903
• Citation: 74 P. 497,12 Wyo. 214
• Parties: GOODRICH v. PETERSON
• Court: Wyoming Supreme Court

74 P. 497

12 Wyo. 214

GOODRICH v. PETERSON

Supreme Court of Wyoming

December 14, 1903

ERROR to the District Court, Fremont County, HON. CHARLES W BRAMEL, Judge.

Dell Goodrich appealed to the District Court from a judgment rendered against him in favor of Anna Peterson by a Justice of the Peace. The District Court dismissed the appeal, on motion, for the failure of the justice to transmit a transcript of his docket entries and the papers in the case to the Clerk of the District Court within five days after notice of the appeal and the filing of the bond. The appellant prosecuted error.

Judgment reversed and cause remanded.

E. H Fourt, for plaintiff in error.

The statute requires the Justice of the Peace to make a certified copy of or transcript of all his docket entries and the costs, and within five days transmit them, with the papers to the Clerk of the District Court. That provision is the only one which was not literally complied with. (R. S., 1899, Sec. 4399.)

Whether this error occurred in the District Court or whether the Justice of the Peace neglected to send up the transcript and papers, the record does not disclose. Certain it is that the irregularity complained of and upon which the defendant in error relied for her motion to dismiss the appeal, is not the fault of the plaintiff in error. It is well settled that an appeal should not be dismissed for any delay or irregularity which is not the fault of the appellant. (Benn v. Challis, 38 P. 1039; Swenson v. Ins. Co., 4 Colo., 475; Geddes v. Rice, 24 O. St., 60; Long v. Hitchcock, 3 O., 274.)

The record shows that the parties appeared in open court and that the case was set for trial without objection, before the motion to dismiss the appeal was filed. The motion to dismiss was, therefore, too late. (Gustin v. Jose, 38 P. 1008; R. R. Co. v. Quinn, 24 Kan. 370.)

It is fair to presume that the Clerk filed and docketed the case when it was received, and had he not done so the court would have compelled him to do so upon motion. It hardly seems possible that, under any construction of our statute, a case can be dismissed for failure of the justice to perform a ministerial duty in sending up the transcript. Indeed, the Legislature has made provision for just such a case and has given the District Court power to compel him to do so, by rule and attachment. (Sec. 4410, R. S. Wyo.)

Had the Justice of the Peace failed or refused to transmit the appeal, this statute would have applied, and had the District Court failed to compel him, there being no other reason for not doing so than that the language of the statute is in form permissive or directory, it would have been unavailing, the rights of innocent parties being involved. (Suth. Stat. Const., Secs. 459-462.)

No appearance for defendant in error.

CORN, CHIEF JUSTICE. KNIGHT, J., and POTTER, J., concur.

OPINION

CORN, CHIEF JUSTICE.

Plaintiff in error took an appeal in this case from a judgment of a Justice of the Peace to the District Court. The appellee moved the District Court to dismiss the appeal upon the two grounds that the justice did not allow the appeal within five days after the notice and filing of the appeal bond, and that he did not transmit his transcript and the papers in the case within five days to the Clerk of the District Court. The motion was sustained and the appeal dismissed.

The statute provides that any person desiring to appeal from a judgment of a Justice of the Peace shall, within fifteen days after the rendition of the judgment, file with the justice a notice of such desire and either pay the accrued costs or give bond for their payment in case judgment shall be rendered against him in the District Court. The justice is then required within five days after the filing of such bond and notice to allow the appeal, and also within such five days to transmit a transcript of his docket entries, together with all the papers in the case, to the Clerk of the District Court.

It appears from the transcript that, on the same day the judgment was rendered, the appellant filed his notice of appeal and also his bond, which was approved by the justice, and that the justice thereupon allowed the appeal. There was, therefore, no merit whatever in the first ground stated in the motion.

But it appears by the file mark of the Clerk of the District Court that the transcript and other papers were filed with him on May 31st, more than five days after appellant filed his bond and notice of appeal. On May 20th, which was within the limited five days, appellant had paid to the Clerk his fees for docketing the appeal and for the issuance and service of a...