State v. Salmon
| Decision Date | 30 November 1936 |
| Docket Number | 5762 |
| Citation | 90 Utah 512,62 P.2d 1315 |
| Court | Utah Supreme Court |
| Parties | STATE v. SALMON |
Appeal from District Court, Second District, Morgan County; L. A Wade, Judge.
Frank Salmon was convicted in justice court of operating an automobile without due circumspection and caution and in excess of speed limit fixed by law. From a judgment of the district court in a proceeding in certiorari annulling sentence, the State appeals.
CAUSE REMANDED to the district court, with directions to vacate order and to dismiss certiorari petition.
David J. Wilson, of Ogden, and W. W. Porter, of Morgan, for the State.
Ira A Huggins, of Ogden, for respondent.
The State prosecutes this appeal from a judgment rendered by the district court of Morgan county, Utah. The judgment so appealed from was rendered in a proceeding in certiorari. The judgment ordered that a sentence imposed upon Frank Salmon by the justice of the peace of Morgan precinct, Morgan county Utah, be annulled and the case remanded to the justice of the peace for further proceedings. There is no dispute as to the facts. They are: A complaint was filed by the justice of the peace of Morgan precinct, Morgan county, Utah, charging Frank Salmon with having committed on April 13, 1933, in Morgan county, Utah, the misdemeanor of operating an automobile without due circumspection and caution and in excess of the speed limit fixed by law. The complaint was subscribed and sworn to before the justice of the peace by Thomas Fry, the sheriff of Morgan county, Utah. After the complaint was filed, the county attorney of Morgan county directed that a warrant issue for the arrest of the defendant. The warrant was issued and the defendant arrested. He entered a plea of not guilty. On the day set for the trial, defendant Salmon appeared with his counsel. The county attorney did not appear. Attorney David J. Wilson appeared for the State and conducted the prosecution. So far as is made to appear, no objection was raised to his representing the State in the trial. When the case was called for trial, Attorney Wilson asked for and was granted leave to file an amended complaint. Defendant through his counsel objected to the filing of the amended complaint. The objection was overruled, and the amended complaint, duly verified before the justice, was filed. Thereupon defendant asked for additional time to prepare for trial. The request was denied and the cause proceeded to trial. A jury was impaneled, witnesses were sworn and testified, and the cause submitted to the jury, which brought in a verdict of guilty. In due time, the justice of the peace imposed sentence upon the defendant that he be imprisoned in the County Jail of Morgan County, Utah, for a period of ninety days and pay a fine of $ 125. The jail sentence was ordered suspended in the event the imposed fine was paid. Notice of appeal to the district court of Morgan county was timely served by the defendant on Attorney David J. Wilson. When the record reached the district court, a motion was made to dismiss the appeal because the notice of appeal was not served upon the county attorney as by law required. Apparently, at the time the notice of appeal was served upon Mr. Wilson, he informed defendant that he was employed merely to conduct the prosecution before the justice of the peace and was not authorized to accept service of the notice of appeal. Be that as it may, the district court dismissed the appeal because notice thereof had not been properly served. After the attempted appeal was dismissed, defendant applied to the district court of Morgan county for a writ of certiorari. The writ was granted. The record in the cause of the proceedings had before the justice of the peace was certified to the district court. Upon a hearing had in the district court, the judgment here brought in question was entered. It was alleged in the petition filed in the district court for the writ of certiorari and there urged by defendant that the justice of the peace acted without and in excess of his jurisdiction in permitting the filing of the amended complaint upon the request of Attorney Wilson and, in the trial of the cause, with Attorney Wilson representing the State. Such is the contention made by the defendant in this court. To the contrary, the State contends that even though Attorney Wilson was not a duly appointed and qualified deputy county attorney of Morgan county when he conducted the prosecution of the defendant before the justice of the peace, such fact did not affect the jurisdiction of the justice of the peace to proceed with the cause and pronounce judgment after the jury had rendered its verdict. No claim is made that the writ should have failed because the defendant attempted to appeal but was derelict in perfecting the same. We shall, therefore, refrain from discussing or passing upon the legal effect of such a state of facts.
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Mann v. Morrison
... ... Marriner M. Morrison, as ... Judge of the District Court of the First Judicial District, ... in and for Box Elder County, State of Utah, and another to ... review a judgment in a suit wherein David Horace Mann was ... plaintiff and May Vasta Randall Mann was defendant, and ... 513, 108 P.2d 514; Ray v. Cox, Judge, et ... al., 83 Utah 499, 30 P.2d 1062; State v ... Salmon, 90 Utah 512, 62 P.2d 1315; Griffin ... Company v. Howell, Judge, 38 Utah 357, 113 P ... 326; Page v. Commercial Nat. Bank of Salt Lake ... City, ... ...
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Olson v. District Court of Salt Lake County
...conferred, and in that regard exceeded its jurisdiction." We have examined all of the cases cited by this court in State v. Salmon, 90 Utah 512, 62 P.2d 1315, invoking the remedy of certiorari, but it would be to formulate from them any statement by which an excess of jurisdiction could be ......