Kyrimes v. Kyrimes

• Decision Date: 17 September 1914
• Docket Number: 2672
• Citation: 45 Utah 168,143 P. 232
• Court: Utah Supreme Court
• Parties: KYRIMES et al. v. KYRIMES et al

143 P. 232

45 Utah 168

KYRIMES et al. v. KYRIMES et al

No. 2672

Supreme Court of Utah

September 17, 1914

Original application for writ of mandamus by John Kyrimes and another against Nick Kyrimes and another.

Alternative writ quashed and application dismissed.

S. D Huffaker for plaintiffs.

Geo. F Wasson for defendants.

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

OPINION

FRICK, J.

On July 30, 1914, the plaintiffs herein made application to this court for an alternative writ of mandate against the defendants, and especially against Hon. C. W. Morse, Judge of the District Court of Salt Lake County, requiring said court either to reinstate a certain appeal or show cause why it did not do so. Such a writ was issued in which said Judge was required to act in the premises as aforesaid or show cause why he refuses to do so. In their application for the writ plaintiffs, in substance, alleged that said Morse, as Judge of the District Court of Salt Lake County, without legal or any cause therefor, had dismissed a certain appeal taken by them from a judgment rendered against them by default in the City Court of Salt Lake City, and that he had refused to reinstate such appeal. The defendants appeared and filed an answer to the application, in which they have fully set forth the facts upon which the action of the District Court aforesaid was based.

On the hearing it was made to appear that a judgment had been duly entered against the plaintiffs in favor of the defendant Nick Kyrimes in the City Court of Salt Lake City; that in due time the plaintiffs appealed from said judgment to the District Court of Salt Lake County; that in taking said appeal plaintiffs executed an undertaking on appeal, with sureties in form as required by law; that within the time fixed by our statute the defendant Kyrimes filed his exceptions to the sufficiency of said sureties, and asked that they justify under the statute; that thereupon said plaintiffs served notice upon said defendant Kyrimes that the sureties would appear and justify as required by law on a day named in said notice; that on said day the sureties did appear for the purpose aforesaid, but did not appear in the department of the District Court of Salt Lake County in which the proceeding was pending; that on said day the defendant Kyrimes, by his counsel, also appeared in said court and in the department wherein the proceeding was pending, and, said sureties not appearing there, counsel for said defendant then moved the court to dismiss the appeal upon the ground, among others, that an undertaking on appeal as required by law had not been given in the case. The court, before acting on the motion, required defendant's counsel to serve notice of his motion to dismiss the appeal on opposing counsel. Such a notice was left at the office of the opposing counsel, but, for the reason that counsel was absent from the city at the time, he did not actually receive the notice aforesaid until after the court had granted the motion to dismiss the appeal. Plaintiff's counsel then moved to vacate the order or judgment dismissing the appeal and to reinstate the same. The District Court refused to grant the motion; hence this application for a writ of mandate requiring it to reinstate the appeal.

We have a statute (Comp. Laws 1907, section 3750) which, under certain conditions, authorizes the District Court to dismiss an appeal. That section, so far as material here, reads as follows:

"No failure to comply with any provision of the law relating to appeals from justice's court to the District Court, except a failure to serve and file notice of appeal, shall defeat the jurisdiction of the District Court over the case attempted to be appealed.

"On notice, an appeal shall be dismissed for the following cause: That notice of appeal was not served and filed within thirty days after notice of rendition of judgment; provided, that the pendency of the motion for a new trial shall not enlarge the time for appeal.

"An appeal may be dismissed, on notice, in the discretion of the court, for either of the following causes:

"1. That the papers were not filed in the District Court, and the advance fee required therefor was not paid.

"2. That the undertaking was not filed within five days after the filing of the notice of appeal.

"3. That appellant failed to file a new and sufficient undertaking when so ordered by the court."

Now, it is quite probable that the District Court acted upon the assumption that, inasmuch as the plaintiffs herein failed to have the sureties on the undertaking for an appeal justify as required by our statute, such failure, in law, had the same effect, so far as the defendant Kyrimes was concerned, as though the plaintiffs had filed no undertaking on appeal within the time required by law. Upon the other hand, after the motion was made to vacate the order dismissing the appeal and to reinstate the same, the court may have concluded that there was no sufficient showing made to authorize it to act in that behalf.

Under the statute we are also of the opinion that in passing upon the motion to dismiss the appeal, as well as in determining the motion to vacate the order or judgment dismissing the same, the District Court was authorized to exercise at...