Provo Reservoir Co. v. Tanner
| Decision Date | 05 June 1926 |
| Docket Number | 4358 |
| Citation | 249 P. 118,28 Utah 21 |
| Court | Utah Supreme Court |
| Parties | PROVO RESERVOIR CO. v. TANNER et al |
Rehearing Denied September 15, 1926.
Appeal from District Court, Fourth District, Utah County; Elias Hansen, Judge.
Action by the Provo Reservoir Company against Caleb Tanner and another. From an adverse judgment, the named defendant appeals.
APPEAL DISMISSED.
C. W Morse, of Salt Lake City, and M. R. Straw, of Provo, for appellant.
A. C Hatch, of Heber City, and Chase Hatch, of Provo, for respondent Provo Reservoir Co.
J. W Robinson, of Provo, for respondent Dixon.
FRICK, J. GIDEON, C. J., and CHERRY, J., concur. THURMAN, J., being disqualified, did not participate. STRAUP, J., dissenting.
The respondents have interposed a motion to dismiss the appeal upon various grounds, among which is the following:
"That the appeal attempted to be taken by the above-named defendant, Caleb Tanner, was not perfected within six months after the notice of overruling motion for a new trial, in that no undertaking on appeal was filed within said six months, and no undertaking on appeal was filed within five days after the service of notice of appeal in said court, and the order entered by the above-entitled court on the 27th day of August, 1925, permitting said defendant to then file his undertaking on appeal, was made on the ex parte application of the defendant, Caleb Tanner, and without notice to the plaintiff, and was made without authority of law, and is therefore null and void."
They earnestly insist that the appeal is abortive, and therefore should be dismissed. In view of the conceded facts, the question is of more than ordinary importance, and hence we feel impelled to go into the matter at some length. The record shows that the judgment appealed from became final on the 1st day of December, 1924, and that the notice of appeal was served and filed on the 1st day of June, 1925, or on the very last day on which it was permissible to serve and file the notice. See Comp. Laws Utah 1917, § 6991, as construed in Fuller v. Ferrin, 51 Utah 105, 168 P. 1179. Section 6996, among other things, provides:
"* * * Within five days after service of the notice of appeal an undertaking shall be filed or a deposit of money be made with the clerk. * * *"
Section 6997, among other things, provides:
"The undertaking on appeal must be in writing, and must be executed on the part of the appellant, by at least two sureties. * * *"
Section 7003, so far as material here, reads:
"The adverse party may except to the sufficiency of the sureties to the undertakings mentioned in this chapter at any time within ten days after the filing of such undertakings. * * *"
Section 7011 reads as follows:
"When a party shall in good faith give notice of appeal, and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual, or to stay proceedings, the court from which the appeal is taken or the judge thereof, or the Supreme Court, or one of the justices thereof, may permit an amendment or the proper act to be done, on such terms as may be just."
Although the notice of appeal was served and filed on June 1, 1925, no undertaking on appeal was filed until nearly 90 days thereafter. The appellant, in order to comply with and obtain the benefits of the provisions of section 7011, supra, made and filed his personal affidavit under oath, in which, after stating that he had served the notice aforesaid and had in good faith taken the appeal, as an excuse for not filing the undertaking on appeal within the time required by our statute aforesaid, deposed as follows:
Pursuant to the foregoing affidavit the court made the following order:
"It appearing to the court that Caleb Tanner, a defendant in the above-entitled action, in good faith filed a notice of appeal herein, and through inadvertence and excusable neglect failed to file an undertaking on said appeal, and it further appearing to the court that said defendant Caleb Tanner is in good faith prosecuting said appeal, it is now by the court hereby ordered that said defendant be and he is hereby permitted to file an undertaking on appeal herein forthwith, with like force and effect as though filed within the time prescribed by statute."
The application and order of the court were made ex parte; that is, without notice to the respondents. We remark that we are here not dealing with a supersedeas bond--one which is intended to stay the enforcement of a judgment--but we are here dealing with a bond which, unless expressly waived, must be filed in order to perfect the appeal. True, section 7011, supra, provides that, in case the appellant "through mistake or accident" fails to comply with statutory provisions, he may nevertheless be permitted to perfect the appeal. The question that we must determine here, however, is: Has the appellant complied with the provisions of this section?
This court in the past has been very liberal in permitting amendments, and otherwise permitting defects and omissions to be cured, in order to prevent appeals from becoming abortive. The court, like all others, is, however, bound to have some regard for the statutory provisions which regulate the taking and perfecting of appeals to this court. Moreover, the interests and rights of the adverse parties to appeals must be considered, as well as the interests and rights of the appellants. The statute is most liberal in permitting appeals to be perfected. The provisions of the statute should, however, at least be substantially followed. Has there been a substantial compliance, or even an attempt to substantially comply, with the statutory provisions in this case? Section 7011, supra, permits only those omissions which occur "through mistake or accident" to be cured as there pointed out. Do the facts deposed to in the affidavit of the appellant (and no one else testifies) show or attempt to show that the failure to comply with the provisions of section 6996, supra, was occasioned "through mistake or accident?"
The most liberal construction forbids us to hold that the omission was accidental. Can it be held to have been a mistake? Appellant testifies "that for the purpose of taking his appeal herein" he employed an attorney residing at Provo, where the case was tried. Then he further deposes that the attorney so employed failed to do what he was specifically employed to do. The only excuse that is offered on behalf of the attorney is that he "supposed" that the attorney who tried the case, and who lived in Salt Lake City, would do what the Provo attorney was specially employed to do. Upon what possible hypothesis can this be held to be an excuse for the Provo attorney? He did not even attempt to begin what he was specially employed to complete. Assuming, without deciding, that such a supposition on the part of the Salt Lake attorney would constitute a mistake within the purview of the statute, how is it possible to hold that such would also be so as applied to the failure to act on the part of the Provo attorney?
The latter's omission to act constituted negligence pure and simple. I think the authorities agree that no one can predicate a mistake on his own negligent omission to perform a legal duty. A mistake "is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake * * *" See 3 Words and Phrases, Second Series p. 417. It would seem, however, that a proposition so palpably clear should not require the citation of authorities. When one is charged with a duty, and forgets to do it, it may under certain...
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