Hoffman v. Lewis

• Decision Date: 31 October 1906
• Docket Number: 1779
• Court: Utah Supreme Court
• Parties: HOFFMAN v. LEWIS, Judge

87 P. 167

31 Utah 179

HOFFMAN v. LEWIS, Judge

No. 1779

Supreme Court of Utah

October 31, 1906

CERTIORARI by Frank Hoffman against T. D. Lewis, judge of the Third Judicial District, to review the action of the judge in respect to the dismissal of an appeal from a justice's court.

DENIED.

M. M Kaighn and A. G. Sutherland for petitioner.

E. A Walton for respondent.

RESPONDENT'S POINTS.

The authorities under such statutes all hold as we have contended, and that a failure to justify when required, renders the appeal ineffectual. (Pratt v. Jarvis, 8 Utah 5; Rausch v. Hogan, 17 Cal. 122; Lower v. Knox, 10 Cal. 480; McCracken v. Superior Court, 86 Cal. 74; Wood v. Superior Court, 67 Cal. 115; Bennett v. Superior Court, 113 Cal. 440; Clark v. Bowers, 2 Wis. 123; Donovan v. Woodcock [S. D. ], 99 N.W. 82; Barber v. Johnson, [S. D.], 57 N.W. 225; Chamberlain v. Dempey, 13 Abb. Prac. 421; Kelsey v. Campbell, 14 Abb. Prac. 368.)

It may be claimed that the district court could allow an undertaking to be filed. Such claim would not be tenable for reason that were the defect such that the appellate court does not acquire jurisdiction it cannot make an order conferring jurisdiction upon itself. (Cook v. Railway, 7 Utah 416; Home & Loan Association v. Wilkins, 71 Cal. 626.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

The petitioner herein applied to this court for a writ of certiorari for the purpose of reviewing the action of one of the judges of the district court in respect to the dismissal of an appeal to that court from a judgment entered in the justice's court of Salt Lake City, the writ being directed to Hon. T. D. Lewis, one of the judges of the Third Judicial District of the state of Utah and before whom the proceedings were had. For convenience the applicant for the writ will be designated petitioner, and the judge will be styled respondent.

The facts upon which the petition is based may be briefly yet comprehensively stated as follows: On the 9th day of June, 1906, one James Earl commenced an action of forcible detainer against the petitioner herein in the justice's court of Salt Lake City, which action, in due time, and on the 20th of said month, eventuated in a judgment for $ 125 and for restitution of certain premises in favor of said Earl and against the petitioner. On the 3d day of July following, the petitioner filed a notice of appeal in said court, and on the 9th day of said month he filed an undertaking on appeal. On the 11th said Earl duly filed exceptions to the sufficiency of the sureties on said undertaking, and demanded that said sureties justify, as provided by the statutes of this state. Due notice of said exceptions was duly served on the attorney for the petitioner. Up to this time the petitioner had not served any notice on said Earl or his attorney of the filing of an undertaking on appeal, but served such a notice on the 12th day of July, and after said exceptions were filed. The sureties on said undertaking failed to justify within two days after the exceptions aforesaid were filed and served, nor did they, nor any others, justify at any time. On the 14th day of July, 1906, the justice transferred a transcript of the proceedings had before him in said action duly certified to the district court of Salt Lake county, which was filed in the clerk's office on that day. On the 16th of said month, and after the transcript was filed, said Earl served a notice and motion on the attorney for petitioner, notifying him that on the 21st day of said month said Earl would make a motion to dismiss said appeal before respondent herein as one of the judges of said district court upon substantially the following grounds, viz.: That said district court has no jurisdiction to try said cause on the merits, or to do other than to dismiss the appeal, and that the sureties on the undertaking on appeal had not justified as required by law, although exceptions to their sufficiency had been duly made. The attorney for the petitioner attacked the foregoing motion to dismiss by a counter motion "to dismiss the motion and notice," made by said Earl upon the ground that the court had no jurisdiction to entertain such motion to dismiss said appeal, and that there was no action pending in said district court between the parties, to wit, said Earl and said petitioner, and further that the notice accompanying said motion to dismiss was insufficient. To this motion was attached the affidavit of the petitioner setting forth, in substance, the proceedings had in the justice's court, as hereinbefore stated. On the 21st day of July, 1906, and on the day set in said motion to dismiss, the respondent, sitting as judge in one of the departments of said district court, after a hearing upon the motion aforesaid, sustained the motion to dismiss said appeal, and accordingly entered an order dismissing the same.

We remark here that it will be observed that the case originated in the justice's court, and therefore in view of section 9 of article 8 of the Constitution of this state no appeal from the action of the district court to this court was permissible in this case. The petitioner therefore availed himself of what he conceived to be his only remedy, namely, a writ of certiorari to review the action of the district court in dismissing said appeal.

The writ of certiorari may be granted by this court, as provided in section 3630, Revised Statutes 1898,

"When an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer and there is no appeal, nor in the judgment of the court or judge, any plain, speedy and adequate remedy."

By section 3636, Revised Statutes 1898, it is provided:

"The review upon this writ [certiorari] cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer."

In view of the facts as stated above, and the parts of the several sections quoted, the petitioner filed his petition for a writ, reciting therein substantially the foregoing facts, and thereby invokes the aid of this court, which, by the then Chief Justice, issued a writ of certiorari, commanding the respondent to file a certified transcript of the record and proceedings had before him as judge of the district court of said Salt Lake county, that the same may be reviewed by this court. The respondent complied with the commands of said writ in all respects.

The particular point upon which it is claimed that this court should consider this case upon certiorari is that the respondent, as judge of said district court, exceeded his jurisdiction because the appeal had not yet reached said court; in other words, it is contended that the act of said judge in dismissing said appeal was premature. This claim is based upon the ground that it is made a ground by statute for dismissing an appeal from a justice's court to the district court in case the papers are not filed in the district court and the advance fee paid within thirty days after the transcript is received by the clerk. As we have shown above, the transcript in this case was filed with the clerk of the district court on the 14th day of July, and the appeal was dismissed on the 21st. The appeal was, however, dismissed upon the ground that an undertaking, as required by law, had not been filed in the justice's court, and that, in view of the law, none such could in any event be filed. If, however, the district court exceeded its jurisdiction or power in dismissing the appeal, then this court, upon proceedings on certiorari, could review and correct the action of said court. If the court merely erred, however gross such error may appear to us, this court cannot, in such a proceeding, review the error. We think it is manifest from what has been said above that the district court did not exceed its jurisdiction or power in acting upon the motion of Earl in dismissing the appeal.

It may be conceded that the court did not have jurisdiction of the case, so as to try it upon its merits and enter a judgment therein, for the reason that, in legal effect, no appeal had been perfected. But the district court had jurisdiction over the subject-matter of appeals from justices' courts, and hence had power to dispose of the same at any stage after the transcript of the justice's court was filed in the district court. If this be not so, then an imperfect appeal would suspend all actions both in justices' courts and in district courts. Neither is it essential that the party objecting to the appeal should wait the full thirty days after the transcript is filed before attacking the same. If he desires to attack it upon the ground alone that the papers are not filed and the advance fee paid within thirty days then he must, of course, wait the time specified in the statute, because the cause or ground for a dismissal cannot exist until the time has elapsed. This, however, is a case where an appeal has not been taken as the law requires; hence there is, in legal effect, no appeal, although one has been attempted in fact. In such a case a party may act whenever the transcript is filed in the district court, when such action is based upon a ground which strikes at the appeal for want of some act which would make the appeal effective if taken, and where the time to take such act has passed, and cannot, under the law, be made effective thereafter. The court in this case, however, did not act prematurely, and however erroneous and prejudicial it is or may be as regards the petitioner, the court, having jurisdiction over the subject-matter of appeals, then had the power or authority to act, and hence we cannot, in a...