Haag v. Burns

• Decision Date: 05 February 1908
• Citation: 115 N.W. 104,22 S.D. 51
• Parties: HAAG v. BURNS.
• Court: South Dakota Supreme Court

115 N.W. 104

22 S.D. 51

HAAG v. BURNS.

Supreme Court of South Dakota

February 5, 1908

Appeal from Circuit Court, Brookings County.

Action by Lewis Haag against J. C. Burns. Judgment for plaintiff and defendant appeals. Affirmed.

Hall Lawrence & Roddle, for appellant.

Horner & Stewart and Robert A. Storm, for respondent.

FULLER J.

That the circuit court in which this action to recover $14.25 was tried de novo on appeal from a justice of the peace was without jurisdiction, for the reason that plaintiff's notice of appeal was fatally defective, is the first proposition presented and relied upon as ground for reversing a judgment in favor of plaintiff and the order denying defendant's motion for a new trial. The justice court judgment recites that, "after hearing the argument and considering the testimony, I hereby order and decree judgment in favor of the defendant and against the plaintiff for a dismissal of the action, and hereby render judgment against the plaintiff for costs of this action; the same being in the sum of $14.60." Omitting the name of the court, parties and venue, the notice of appeal made the basis of an unsuccessful motion in circuit court to dismiss the appeal reads as follows: "Please take notice that the plaintiff in the above-entitled action appealed from the whole of the judgment entered therein on the 6th day of December, 1905, in favor of the defendant and against the plaintiff, for fourteen dollars and sixty cents ($14.60) costs, to the circuit court in and for Brookings county, South Dakota, upon questions of both law and fact therein, and demanded a new trial in said court."

Without giving a form for the guidance of a party to an action desiring to appeal, section 99 of the Revised Justices' Code provides that the appeal is taken by serving and filing, in the manner designated, a notice of appeal "which must state whether the appeal is taken from the whole or a part of the judgment; and if from a part, what part, and whether the appeal is taken on questions of law or fact, or both." Section 101 of the act is to the effect that, when the appeal is taken on both questions of law and fact and a new trial in the appellate court is demanded in the notice, the action must be tried anew in that court. In support of the motion to dismiss for the reason that the circuit court was without jurisdiction, it is urged the use of the word "appealed," instead of "appeals," in the notice of appeal, suggests that plaintiff had previously exercised that right; but he is not charged with bad faith, and no prejudice to the defendant is claimed on account of such inadvertent error in grammatical tense. While the notice of appeal is made the jurisdictional instrument by which the case is transmitted from a lower court to a higher court for review, and present action should be denoted therein by the use of apt words, it is very plain that the service of the notice under consideration conveyed actual knowledge to the defendant that plaintiff, being dissatisfied with the judgment rendered in justice court, appeals therefrom on questions of law and fact to the circuit court wherein a new trial is demanded. It being universally recognized doctrine that a remedial statute should be liberally construed to effect its object, something more than a clerical mistake by a person pursuing the prescribed method of removal is necessary to defeat the right of trial by jury on appeal from a justice of the peace. We are directed by counsel for appellant to the case of Chinnock v. Stevens, 23 Wis. 396, where it is reluctantly held that a provision of the Wisconsin statute with reference to notice must be pursued with rigid exactness in order to confer jurisdiction on the appellate court, and from the opinion written by Dixon, C. J., we quote as follows: "The early decisions of this court cited in the brief, and the nicety required in order to give jurisdiction in cases of appeal from justices of the peace, are familiar to those gentlemen of the bar who have had occasion to investigate the subject. The same rigid doctrine was reiterated and applied by the majority of the court in the recent case of Widner v. Wood, 19 Wis. 190; so that it is undoubtedly as true now as it ever was that the requirements of the statute must be pursued with the uttermost exactness, or the appeal will be a failure. I could not concur in the last decision. I doubted then, and doubt now, the correctness of the rule. It is technical in the extreme, and has been enforced with a degree of illiberality which does not characterize the practice in civil actions in any other particular. It is in clear opposition to the maxim, universally observed, that appeals from inferior tribunals are favored in the law."

Counsel for appellant also insist that the docket of the justice quoted in this opinion, shows that two judgments were rendered in that court, one for the dismissal of the action and the other for costs, and that the appeal was taken from the latter alone; but the view is neither justified by the record nor by the notice of appeal. As the recitals of the notice are applicable to but one judgment, which is sufficiently described therein to prevent any person of ordinary understanding from being misled, it would require an unwarranted observance of something more exacting by far than the letter of the law to reverse the ruling of the circuit court on the motion to dismiss for the want of jurisdiction. Lancaster v. McDonald, 14 Or. 264, 12 P. 374; In re Dugan, 129 Iowa, 241, 105 N.W. 514; Horrell v. Homebuilders' Ass'n, 40 Wash. 531, 82 P. 889. But one judgment can be rendered in an action tried in justice court, and sections 79 and 93 of the Revised Justices' Code expressly require the justice to specify, tax, and include in such judgment the costs allowed by law to the prevailing party, and that is exactly what was done, although some superfluous words were used. "Much less degree of technicality and formality is required in the judgments of justices of the peace and other inferior courts than is exacted in respect to the judgments of courts of record." Black on Judgments, 115. The phraseology of the justice distinctly shows the final adjudication and determination of the rights of the parties to the action by a judgment of dismissal, and for costs against plaintiff in favor of defendant, and from the whole of such judgment plaintiff appealed on questions of both law and fact, and demanded a...