State v. Barnard

• Decision Date: 20 May 1907
• Citation: 13 Idaho 439,90 P. 1
• Parties: STATE, Respondent, v. J. L. BARNARD, Appellant
• Court: Idaho Supreme Court

90 P. 1

13 Idaho 439

STATE, Respondent, v. J. L. BARNARD, Appellant

Supreme Court of Idaho

May 20, 1907

APPEAL from the District Court of the Fourth Judicial District for the County of Cassia. Hon. Lyttleton Price, Judge. Appeal dismissed.

Appeal dismissed.

Sweeley & Sweeley, for Appellant.

It is not required that the record sent up shall contain any reference to the notice of intention to appeal. The "Notice of Appeal" required to be transmitted is the written notice mentioned in section 8321. Appellant founds his right to a hearing upon section 9, article 5 of the constitution, defining the jurisdiction of the supreme court. He does not concede that section 8042 of the Revised Statutes does not give him the right of appeal. On the contrary, he insists that a broad and fair construction of that statute brings his case within its scope.

The order of the district court dismissing the appeal amounted in effect, to a final judgment of conviction. "A final judgment is one which leaves nothing to be judicially determined between the parties in the trial court." (2 Ency. of Pl. & Pr. 53, 55, 72, 73.)

"In criminal cases the rule requiring that the judgment to be reviewed must be final is applicable, unless a statute provides otherwise, and any judgment on which a person is liable to be and is in fact imprisoned is such a final decision." (7 Ency. of Pl. & Pr. 840, 841; Manke v People, 74 N.Y. 415.)

"When a certain jurisdiction has been conferred on this or any court, it is the duty of the court to exercise it; a duty of which it is not relieved by the failure of the legislature to provide a mode for its exercise." (People v Jordan, 65 Cal. 644, 4 P. 683.)

J. J Guheen, Attorney General, Edwin Snow and J. H. Peterson, for Respondent.

The notice of appeal must be in writing, must be filed with the justice, and served on the prosecuting attorney within ten days after the entering of the judgment, and must set forth the character of the judgment appealed from. If any of these mandatory requirements are neglected, the district court is without jurisdiction. (Spelling on New Trial and Appellate Practice, sec. 539; Mansfield v. O'Keefe, 133 Cal. 362, 65 P. 825; Taylor v. Lapham, 41 Or. 479, 69 P. 439; State v. Butler, 19 Wash. 110, 52 P. 521; Stierlen v. Stierlen, 8 N. Dak. 297, 78 N.W. 990.)

And if the record fails to affirmatively show that each and all of these requirements were complied with, the appeal was properly dismissed. (People v. Lynch, 1 Idaho 358; Caldwell v. Ruddy, 1 Idaho 760; Anderson v. Knott, 1 Idaho 626; Toole v. French, 3 Idaho 1, 25 P. 1091. See, also, long list of authorities, 3 Century Digest, sec. 2317.)

As the mode of taking appeals required by statute is mandatory, and must be strictly complied with, the notice of appeal must be framed, issued and served as the statute requires, or no legal appeal is perfected. No other method of notice is a legal substitute. Actual knowledge of the appellee that the appeal has been taken will not dispense with the statutory requirements. (2 Ency. of Pl. & Pr. 213; Genella v. Relyea, 32 Cal. 159; Gates v. Walker, 35 Cal. 289; Hamilton v. Butler, 33 Or. 370, 54 P. 200.)

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

The defendant was convicted of a misdemeanor in a justice's court of Cassia county, and thereafter and within the time prescribed by statute (Rev. Stats., sec. 8321), filed and served his notice of appeal, which, after giving the title of the court and cause, is as follows: "You will please take notice that the defendant in the above-entitled action hereby appeals to the district court of the fourth judicial district in and for the county of Cassia, from the judgment therein made and entered in the said justice court on the 18th day of January, 1906, in favor of the said plaintiff and against the defendant and from the whole thereof. This appeal is taken on the question of both law and fact." He thereupon gave bond in the sum of $ 500 as provided by section 8324, Revised Statutes, whereupon he was released from custody and secured a stay of further proceedings. When the case was called in the district court it was set for trial, and prior to the case being called for trial the county attorney moved to dismiss the appeal upon the grounds: "1. That the defendant did not give notice of his intention to appeal either at the time of the trial or at the time of the rendition of the judgment; 2. That the notice of appeal does not set forth the character of the judgment appealed from." It appears that the justice of the peace had sent up a copy of his docket and minute entries and all the papers in the case, and that it did not appear from any of the entries that the defendant had ever given notice of his intention to appeal as provided for in section 8321, Revised Statutes. The defendant offered to show that, as a matter of fact, he did give such notice, although the minutes did not show it. The court refused to allow him to make such showing. He then moved to strike from the record and files all papers and files not required by section 8323, Revised Statutes, and that motion was granted. The court, at the same time, sustained the motion made by the county attorney to dismiss the appeal. The only order or judgment that appears to have ever been made in the district court, and the only judgment from which this appeal is taken, is found in the court minutes, and is as follows: "Certified copy of the justice's docket of Twin Falls precinct present in court ordered stricken from the...