Lyon v. Mauss

• Decision Date: 12 December 1906
• Docket Number: 1776
• Citation: 87 P. 1014,31 Utah 283
• Court: Utah Supreme Court
• Parties: LYON v. MAUSS et al

87 P. 1014

31 Utah 283

LYON v. MAUSS et al

No. 1776

Supreme Court of Utah

December 12, 1906

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by George E. Lyon against Michael Mauss and Charles Brown. From a judgment for plaintiff, defendants appeal.

APPEAL DISMISSED.

Powers & Marioneaux and Stephen L. Richards for appellant.

Kinney & Wilson for respondent.

FRICK J. McCARTY; C. J., and MORSE, District Judge, concur.

OPINION

FRICK, J.

This action is one for damages, based upon an alleged malicious abuse or misuse of legal process issued by a justice of the peace at the instance of defendants against the plaintiff. A trial was had which resulted in a judgment in favor of plaintiff, and the defendants appeal.

At the very threshold of the case we are met by a motion to dismiss the appeal for certain specific irregularities. Some of these need no extended consideration. The objection to the notice of appeal, for the reason that an attempt is made thereby to appeal from the order overruling the motion for a new trial is not tenable for the reason that the notice otherwise is sufficient. The part referring to the order overruling the motion is therefore mere surplusage. This objection is therefore, overruled.

The objections that the transcript is not prepared in strict conformity with the rules of this court, and that the abstract and brief were served and filed a few days after the time when they should have been filed, are merely technical, and have, so far as appears, in no way affected the plaintiff in his rights, nor in any manner interfered with the regular and orderly proceedings of this court. The right to be heard on appeal in this court is not only a substantial, but a valuable, right. We are not disposed to deprive a party of this right upon mere matters of form or practice, where no matter of substance has been disregarded and no material prejudice results to the opposite party or other litigant in this court. These objections are, therefore, likewise overruled.

There is one objection to the consideration of this appeal, however, which is more serious, and, in view of its importance, we cannot overlook where, as in this case, it is insisted upon by the respondent. Rule 26 of the printed rules of this court provides among other things:

"The appellant shall assign errors in writing, subscribed by himself or his counsel, and shall serve a copy thereof on the respondent or his counsel, and file the original with the clerk of this court within five days from the time of the filing of the transcript of the record on appeal."

The rule provides, in substance, further, that, if the respondent desires to assign cross-errors, he must prepare and sign them in the same manner and serve and file them within five days from the time appellant's assignments were served. This is followed by giving directions in respect to the preparation of the assignment of errors upon certain grounds, and with the provision that so much of the assignment of errors as may be relied on in this court shall be printed in the printed abstract filed in this court as the same is required to be prepared and filed by rule 6 (29 Utah vii, 49 P. xi). Rule 26 became effective November 1, 1905, and by its terms applies to all cases filed in this court after that time. The transcript in this case was filed in this court on the 20th day of July, 1906, more than eight months after the rule went into effect. The rule was carefully considered by this court prior to and at the time of its promulgation, and was adopted for the express purpose of authoritatively settling the question of when, where, and how the assignment of errors upon which the appellant intends to rely in this court should be prepared, filed, and served. The rule is a most salutary one, in that it is intended to and does establish order, where, before its adoption, there existed more or less chaos in respect to the preparation and filing of assignments of error, as is well illustrated by both the majority and minority opinions in the case of Smith Table Co. v. Madsen (30 Utah), 84 P. 885, decided by this court February 21, 1906. The purpose of the rule is there clearly set forth by Mr. Justice Straup. The assignment of errors is the groundwork of the case in this court. Without errors being assigned, there is nothing before this court. The bill of exceptions and the transcript of the record made in the lower court are brought here by the notice of appeal, but without more present nothing for review.

It must not be overlooked that this is a court of review, not one of first instance. In order, therefore, that a review may be made, there must be something to review. The only way that this may be done is that the aggrieved party point out what matters he desires reviewed in this court and the grounds upon which he relies. To attempt to present a case for review in this court without an assignment of errors would, in effect, be analogous to a trial court attempting to try a case without pleadings. While no doubt both fact and law could be determined, to some extent at least, without either pleadings or assignment of...