Law v. Smith

Decision Date09 November 1908
Docket Number1941
Citation34 Utah 394,98 P. 300
CourtUtah Supreme Court
PartiesLAW, Co. Atty., v. SMITH

APPEAL from District Court, First District; J. A. Howell, Judge.

Action by Albert A. Law, as county attorney of Cache county, against Thomas H. Smith. From a judgment for defendant, plaintiff appeals.

REVERSED AND NEW TRIAL ORDERED.

Albert A. Law, County Atty., and George Halverson, Dist. Atty., for appellant.

Nebeker Hart & Nebeker for respondent.

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

OPINION

FRICK, J.

On April 25, 1907, appellant, as the county attorney of Cache county, Utah, filed an accusation in writing against respondent, the duly elected, qualified, and acting sheriff of said county, to remove him from said office. The proceedings were commenced and conducted under the provisions of the following sections of the Compiled Laws of Utah, 1907. Section 4565 provides:

"All officers not liable to impeachment shall be subject to removal for high crimes, misdemeanors, or malfeasance in office, as in this chapter provided."

Section 4566 is as follows:

"An accusation in writing against any district, county, precinct, municipal, or school district officer, or officer of any board of education, for any high crime, misdemeanor, or malfeasance in office, may be presented by the grand jury or, by the county attorney in which the officer accused is elected or appointed."

Section 4567 provides: "The accusation must state the offense charged in ordinary and concise language." Section 4568 provides how the accusation shall be served upon the accused, and fixes the time in which he must make answer thereto. The accused may, however, deny the charge orally. Section 4574 provides that; if the accused enters a plea of guilty, the court must render a judgment of conviction against him, and, if he denies the charges, the court must proceed to the trial of the accusation. Section 4575 is as follows:

"The trial must be by jury, and shall be conducted in all respects in the same manner as the trial of an indictment or information for a felony."

If the accused is convicted, section 4577 provides that the court must enter judgment of removal from office; and section 4578 provides for an appeal by the accused in case of conviction and judgment of removal, and that the appeal shall be taken and conducted as appeals in civil cases. The accusation was filed and the proceedings and trial were conducted substantially as provided in the foregoing sections. After the evidence had all been submitted and the parties had rested, the appellant moved the court to direct the jury to find the respondent guilty upon two paragraphs, and the respondent asked that the court direct the jury to find him not guilty upon all the paragraphs of the accusation. The court denied appellant's motion, and directed the jury to return a verdict of not guilty upon all the charges, which the jury did, and the court entered judgment discharging the respondent, from which this appeal is prosecuted.

The appellant excepted both to the refusal of the court to direct a verdict against respondent and to the giving of the instruction in which the jury were directed to find him not guilty, and now assigns the rulings of the court in that regard as error. Appellant did not file a motion for a new trial, but presents the case upon the evidence produced and exceptions taken at the trial, all of which are preserved in a bill of exceptions which was duly settled and allowed by the trial court. Respondent's counsel insist that, in order to determine whether the court erred in directing a verdict, we must examine into and pass upon the evidence, and that we cannot do so unless a motion for a new trial is filed and overruled in the court below. This contention is based upon the decision in Touse v. Consolidated Ry. & Power Co., 29 Utah 95, 80 P. 506. In that case it was held by a divided court that rulings made in admitting or excluding evidence, in charging the jury, and in refusing to charge as requested, including a request to direct a verdict, although duly excepted to and properly preserved in a bill of exceptions and assigned as error, were not before this court, unless a motion for a new trial was made and overruled by the court. If the decision in the Touse Case is to be adhered to, it would lead to an affirmance of the judgment in this case upon the sole ground that there is nothing before us for review.

In view that the decision in the Touse Case involves no property rights, but does affect an important question of practice on appeal, we have felt constrained to re-examine the propositions decided in that case. From such an examination, we have become convinced that the majority of the court misconceived the purpose the Legislature had in view in making the amendment to section 3304 as contained in Laws 1901, p. 25, c. 27. This amendment now constitutes section 3304, Comp. Laws 1907, and as in force when the Touse Case was decided and as now in force reads as follows:

"Sec. 3304. Upon an appeal from a judgment, all orders, rulings and decisions in the action or proceeding to which exceptions have been taken in the court below, or which are deemed excepted to, as provided in this Code, are before the Supreme Court for review, and in equity cases any question of fact shall be reviewable by the Supreme Court without a motion for a new trial, and in all cases at law tried before the court without a jury, all questions of error in findings of fact and conclusions of law legally reviewable by the Supreme Court shall be before the Supreme Court for review without a motion for a new trial, and either party to the appeal may assign errors on findings of fact or conclusions of law, or that any findings of fact by the court are not supported by evidence, on appeal to the Supreme Court, without filing a motion for a new trial in the court below."

For convenience we have given the amendatory part of the section in italics, while the original portion is in plain type. In construing section 3304 in the prevailing opinion in the Touse Case, it is assumed that the amendment to the section constituted a limitation upon the matters declared to be before this court for review, as defined in the original section before it was amended. As we have already pointed out, the Legislature added the word "rulings" to the words "orders and decisions" in making the amendment. The Legislature thus evinced a clear intention of enlarging rather than restricting the matters that should be reviewed in this court without a motion for a new trial. When "all orders, rulings and decisions in the action or proceeding to which exceptions have been taken in the court below, or which are deemed excepted to, as provided by this Code," were declared to be before this court for review without a motion for a new trial, it certainly included every question that was submitted to the trial court requiring an order, a ruling, or a decision during the trial. Is there any act that a trial court can be called upon to make in any action or proceeding during a trial that does not directly come within one or more of those terms? We confess that we cannot conceive of a single act that can be required of a trial court during the trial that is not covered by the terms, orders, rulings, or decisions. The Legislature added the word "rulings" to make assurance doubly sure that every possible question upon which the trial court directly passes during the trial and on which he may err may be presented to this court for review without a motion for a new trial, provided the order, ruling, or decision is duly excepted to, or when a statutory exception is implied. It is true that, in referring to errors occurring in findings of fact in law cases, the language of the statute confines the errors that may be reviewed to cases tried to the court without a jury.

From this, and from this alone, it is argued in the Touse Case that all errors occurring at the trial that can be reviewed without a motion, for a new trial must be limited to cases tried without a jury. If we but apply the ordinary rules of construction to the language used in the section this view seems clearly erroneous. The two added clauses to the section, the first of which refers to the review of questions of fact in equity cases, and the second relating to the review of errors in findings of fact in law cases tried before the court without a jury, are entirely independent of each other, and independent of the phrase, "all orders, rulings, and decisions," referred to in the first clause of the section. To construe the language of the section so as to limit the right to review "orders, rulings and decisions" found in the first part of the section by what is said in the independent clause which refers to errors in findings of fact and conclusions of law to cases tried to the court without a jury, is to offend against the most fundamental canon of construction, namely, that every word or phrase must be given its ordinary meaning, unless the context shows that to do this would defeat the intention of the author. In what way is the manifest intention of the Legislature affected by giving orders, rulings, and decisions their full force and effect, and also giving the clause with regard to the review of errors in findings of fact and conclusions of law in cases tried before the court without a jury its full force and effect? Both may stand and receive full force and effect, and still neither the sense of the language used nor the manifest intention of the Legislature affected in the slightest degree. Not only is this so, but, if the power of this court is restricted in reviewing errors in orders, rulings, and decisions in cases only that are tried without a...

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