San Pedro, L.A. & S.L.R. Co. v. Board of Education of Salt Lake City

• Decision Date: 14 January 1909
• Docket Number: 1951
• Citation: 35 Utah 13,99 P. 263
• Parties: SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY, Respondent, v. THE BOARD OF EDUCATION OF SALT LAKE CITY, Appellant
• Court: Utah Supreme Court

99 P. 263

35 Utah 13

SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY, Respondent, v. THE BOARD OF EDUCATION OF SALT LAKE CITY, Appellant

No. 1951

Supreme Court of Utah

January 14, 1909

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

Action by the San Pedro, Los Angeles & Salt Lake Railroad Company against the Board of Education of Salt Lake City. From the judgment, defendant appeals, and plaintiff presents cross-errors.

AFFIRMED.

Ray Van Cott and E. B. Critchlow for appellant.

Pennel Cherrington for respondent.

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

OPINION

FRICK, J.

This appeal was regularly filed, the case docketed, and thereafter set for hearing at the October term of this court. On the 14th day of that month, in the absence of respondent's counsel, and without notice to him, counsel for appellant appeared in open court, and asked that the appeal be dismissed. An order dismissing the appeal was duly made and entered pursuant to request. A few days after the order had been entered, counsel for respondent in open court advised the court that he had served and filed an assignment of cross-error, that the appeal had been dismissed without his knowledge or consent, and that he desired to be heard upon the cross-error assigned, notwithstanding the dismissal of the appeal. Appellant's counsel questioned the right of respondent to be heard upon the cross-error assigned, in view that the appeal had been dismissed. The application of respondent, with the consent of opposing counsel, was then set for hearing on a day named by the court. On that day counsel for both parties appeared, and submitted the matter on briefs, in which the contentions of both sides are set forth both as to the right to be heard on the assignment of cross-error and with respect to the merits involved upon it. The question with regard to respondent's right to be heard on the assignment of cross-error, notwithstanding the dismissal of the appeal, therefore, is first in order. The contentions and argument of counsel for appellant, when stated in condensed form, are: (1) That appellant had an unconditional right to dismiss its appeal; (2) that upon the dismissal of the appeal the case is no longer pending in this court for any purpose; and (3) that in any event respondent cannot obtain affirmative relief by an assignment of cross-error, but in order to entitle it to such a cross-appeal is necessary.

From the research made by the diligent counsel representing both parties, and upon an independent search on our part, the fact is disclosed that the authorities are not very numerous upon the question involved. In some jurisdictions, notably in Alabama, Illinois, and Kentucky, the question with regard to the assignment of cross-errors and their scope is regulated by statute. In other jurisdictions the matter is to some extent regulated by rules of court, and in still others the practice is made to conform, as nearly as possible, to that prevailing at common law when applied to the reformed procedure established by the Codes. Before referring to the authorities we will consider the question in the light afforded by our own statutes and rules of court relative to the taking of appeals, and the practice relating thereto. In our appellate procedure all cases are brought to this court by appeal from a final judgment only. Section 3302, Comp Laws 1907, provides what shall constitute the record on appeal in every case. Other sections provide just how this record shall be prepared and certified, and when and how it is to be filed so as to bring the case to this court. All appeals are initiated by filing and serving a notice of appeal by the appellant upon all the adverse parties affected by the judgment appealed from. The statute also provides that an appeal may be taken from the whole or any part of the judgment, and in the notice of appeal the scope thereof must be designated. It is also provided that in case of an appeal the original papers filed in the court below shall be sent to this court, unless the trial court, for good cause shown, directs copies thereof to be transmitted. The procedure with regard to making up a record on appeal is so arranged by our statutes that every party in interest may suggest amendments or additions to be made, so that the whole proceedings as they took place in the court below may be brought up to this court for review on an appeal and upon one record. After the case has reached this court, and the record is abstracted and printed by the appellant, any adverse party having an interest in the judgment appealed from may, under the rules of this court, present an additional abstract, so as to bring all matters involved in the appeal to the attention of this court. This court is also given full power to reverse, affirm, or modify any judgment appealed from.

From the foregoing there is little, if any, room for doubt that there is but one record on appeal contemplated, and that all questions involved in an appeal may be determined and disposed of upon the appeal taken from the judgment. No doubt, if the moving party appeals only from a specific part of the judgment, and the respondent desires matters reviewed that do not come within the appeal as taken by the appellant, then, in order to bring such matters to the attention of this court, the respondent is required to take a cross-appeal; but, where the whole judgment is appealed from, we can conceive of no good reason why a cross-appeal is necessary. This, also, seems to be the theory upon which rule 26 of this court (97 P. x) is based. By that rule the appellant is required to file and serve an assignment of the errors upon which he relies, within a specified time after he has filed the transcript on appeal. By the same rule the respondent, within a certain time, is required to serve and file his assignment of cross-errors, and upon the assignment of errors by appellant, and the assignment of cross-errors by respondent, the case is prepared for hearing and is heard and finally determined by this court. By rule 8 of this court (97 P. viii) it is also provided that, if the appellant fails or neglects to file the printed abstract required by rule 6, the respondent may prepare the case for hearing, and have it heard upon his abstract; or, if he does not desire to do so, the appeal may be dismissed. It would seem, therefore, that after an appeal is taken the case is not entirely within the control of either party, except in so far as pertains to the questions presented by the respective parties; that is, the appellant may, as a matter of course, dismiss his appeal, and such dismissal deprives this court of the power to reverse or modify the judgment on his assignment of errors, but it does not deprive the respondent of the right to be heard upon his assignment of cross-errors, nor does it affect the power of this court to pass on and correct any error disclosed by the record which falls within respondent's assignment, nor, if necessary, to affirm, reverse, or modify the judgment.

We have repeatedly held that no error can be reviewed by this court unless it is assigned and argued. If no error is assigned, nothing is presented for review, and if assigned, but not mentioned in the brief or argued, it is abandoned. Therefore to merely appeal to this court presents nothing. In order to have this court pass upon the merits an assignment of error is imperative. In view of our statutes and rules of procedure, we can see no good reason for holding that a respondent is deprived of a hearing upon his assignment of cross-errors simply because the appellant refuses to proceed with or to submit the case upon the errors assigned by him. The record is here, and, as we have seen, is not here in the interest of one party only, but is here for all purposes, and in the interest of all who are parties to the action and have an interest in the result. Nothing whatever could be gained by a cross-appeal, except in the instance we have indicated, where an appellant appeals only from a part of the judgment, but even in such a case the respondent may be heard upon all questions that are involved in the appeal as taken. By a reference to the cases which, in our judgment, are in point upon the question, we think it will be found that they fully sustain our conclusions.

In the case of Feder v. Field, 117 Ind. 386, 20 N.E. 129, Mr. Chief Justice Elliott bases his conclusions upon reasons that seem to us, not only convincing, but unanswerable. He there lays down the rule that an assignment of cross-error, regardless of statute, is a matter of right, and that an appellant cannot deprive the appellee of the right to be heard upon his cross-errors by dismissing the appeal. The rule is also invoked in that case that by the appeal the appellate court has acquired jurisdiction of the case, and, having once acquired jurisdiction for one purpose, it will be retained for all purposes. In speaking of the rule which permits an appellee to be heard upon his cross-errors, Mr. Chief Justice Elliott says:

"The rule has much to commend it. Under its operation one appeal brings to the appellate court the entire controversy. By the one appeal as much can be accomplished as by two distinct appeals. If separate appeals were taken, then the only method of avoiding confusion would be to consolidate the cases, and this, while it would accomplish no more than a single appeal, would greatly increase the record and augment the costs. The rule is in harmony with the spirit of our Code, since it tends to bring the merits of a controversy before the court in a short and simple method. It is consistent with the leading purpose everywhere manifested in our system of procedure to bring all the parties...