State v. Third Judicial Dist. Court for Salt Lake County

• Decision Date: 08 April 1908
• Docket Number: 1884
• Citation: 104 P. 750,36 Utah 68
• Court: Utah Supreme Court
• Parties: STATE ex. rel. GALLAGHER v. THIRD JUDICIAL DISTRICT COURT FOR SALT LAKE COUNTY et al

104 P. 750

36 Utah 68

STATE ex. rel. GALLAGHER v. THIRD JUDICIAL DISTRICT COURT FOR SALT LAKE COUNTY et al

No. 1884

Supreme Court of Utah

April 8, 1908

On Application for Rehearing, November 9, 1909.

Original application for mandamus by the state, on the relation of P W. Gallagher, against the Third Judicial District Court for Salt Lake County and the judge thereof and another.

WRIT DENIED.

E. A Walton for petitioner.

F. B Scott and F. C. Loofbourow for respondents.

McCARTY C. J., FRICK, J. FRICK, J., McCARTY, J., concurring. STRAUP J., dissenting.

OPINION

McCARTY, C. J.

On December 23, 1903, relator commenced an action in the justice's court of Murray City, Salt Lake County, Utah; against John Wood, to recover the sum of $ 33.20 with interest thereon from July 15, 1901. Summons was issued the same day the action was commenced, but was not served until January 19, 1907--more than three years after it was issued. On January 26, 1907, the defendant in that action filed his affidavit for a change of venue. The affidavit recited that at the time of the commencement of said action defendant was not a resident of the precinct in which the action was brought, but that he resided and still resides at Lehi City, Utah County, Utah; that he did not contract to perform the obligation in the precinct where the action was commenced; that the particular place, if any, in which he contracted to perform the obligation was Pocatello, Idaho. On February 11, 1907, the justice of the peace made and entered on his docket the following order: "Upon reading affidavit of defendant, and it appearing to me therefrom to be a proper case for change of venue, it is hereby ordered that this cause be transferred to Lehi City, Utah, upon payment of all costs and transcript charges herein." Costs were neither paid nor tendered. On March 12, 1907, the justice of the peace made an order vacating the order of transfer because of the non-payment of costs, and entered the default of defendant and rendered judgment against him and in favor of plaintiff. Thereafter, and within the time allowed by law, respondent appealed to the district court from the judgment entered in the justice's court. After the case was docketed in the district court, respondent moved said court to dismiss the action on the ground that the said justice's court was ousted of jurisdiction by the filing of the affidavit for change of venue. The court sustained the motion and dismissed the action. Appellant made a motion to reinstate the case, which motion the court denied. Thereupon appellant applied to this court for a writ of mandate to compel the district court to reinstate said cause and proceed to try the same on its merits.

It is urged on behalf of relator that, respondent Wood having failed to pay the costs that had accrued in the action, the justice was warranted in setting aside the order theretofore entered transferring the cause to another precinct, and in proceeding to try the case on its merits. It is also contended that the affidavit filed by respondent Wood did not deprive the justice of jurisdiction of the subject-matter of the action, and that, therefore, even if it be conceded that the action of the justice in setting aside the order transferring the cause to another precinct were erroneous, it was mere error only, and it did not render the judgment void. Section 3668, Rev. St. 1898, so far as material here, provides:

"Actions in justices' courts must be commenced, and, subject to the right to change the place of trial as in this chapter provided, must be tried: . . .

(8) When a person has contracted to perform an obligation at a particular place and resides in another county, precinct, or city--in the precinct or city in which such obligation is performed, or in which he resides.

(9) When the parties voluntarily appear and plead without summons--in any precinct or city in the state."

Section 3669 provides that the court must at any time before trial, on motion, change the place of trial in the following cases--specifying five different grounds upon which a change of venue may be allowed. Section 3672 provides that the party applying for a change of venue upon one or more of the five grounds mentioned in section 3669 must pay the costs that have accrued in the action up to the time the order of transfer of the case is made. By an examination of section 3669, Rev. St. 1898, it will be seen that no provision is made therein for the transfer of an action which has been commenced in the wrong county, precinct, or city, to a justice of the peace of the precinct where the defendant resides, or where the obligation sued on was to be performed. In 1905 the legislature amended this section (3669) by adding thereto another subdivision. The amendment, so far as material here, is as follows:

"6. When none of the parties defendant resided in the precinct in which said action is brought at the time it was commenced, and when any party defendant makes and files an affidavit to the effect that at the time of the bringing of the action none of the parties defendant were residents in the precinct wherein said action is brought and that the party making the affidavit did not contract to perform the obligation in said precinct and setting forth the place of his residence at the time of the bringing of the action and the particular place, if any, where he contracted to perform the obligation. Said affidavit shall be conclusive upon the parties to the action and upon the justice as to the particular place, if any, where the defendant contracted to perform the obligation, and also as to the residence of the defendants at the time of the bringing of the action. . . . Where the affidavits filed under this provision show that at the time of the bringing of said action all the defendants resided elsewhere than within the precinct wherein said action was brought, the court must change the place of trial without motion being made therefor, and his jurisdiction over said action shall cease, upon the filing of such affidavit, for all purposes, except that his jurisdiction shall continue for the sole purpose of transferring such case to the justice of the peace to whom such action is transferred." Section 1, c. 92, p. 108, Sess. Laws 1905.

It will thus be seen that section 3669, as amended, provides that the court must "motion" change the place of trial when one or more of the first five grounds therein mentioned are shown to exist, and must "on payment by the party applying of all costs that have accrued" transmit all papers, etc., to the justice's court to which the case is transferred, while subdivision six (the amendment) of said section provides that upon the filing of an affidavit by the defendant as therein provided the court "must change the place of trial without motion being made therefor;" that is, the defendant, without applying for a change of venue, may, by filing the affidavit mentioned, arrest the proceedings of the justice of the peace. In other words, the filing of the affidavit ousts the justice of the peace of all jurisdiction "except that his jurisdiction shall continue for the sole purpose of transferring such case" to some other justice's court. In fact we think it is plain that the statute does not contemplate that when the defendant files an affidavit as provided in the amendment, he shall be considered as applying for a change of venue, because it is expressly provided that in such case "the court must change the place of trial without motion being made therefor." The recital in the affidavit in this case "that he (defendant) desires this action transferred from the justices of the peace McOmie and Durrand" can have no bearing whatever on the question involved. The most that can be claimed for it is that the defendant desired the justice to do that which it was his plain duty under the statute to do. It necessarily follows, from what we have said, that the filing of the affidavit in question deprived the justice of the peace of all jurisdiction to further proceed in the case. The only thing that the justice was authorized to do in the premises after the filing of the affidavit was to transfer the cause to some other justice's court. And he was not warranted in making the change conditional upon the payment of accrued costs by respondent Wood. While the justice might have declined to transmit the papers until the costs were paid, as stated, he had no authority to make the change conditional upon the payment of costs.

A number of cases involving practically this same principle have been before the Supreme Court of California. The statutes of that state provide that "no action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced on its own motion or on motion of any party interested therein, . . . unless summons shall have been issued within one year, and all such actions shall be in like manner dismissed unless summons shall be served and return thereon made within three years after the commencement of said action." (3 Kerr's Cal. Code Civ. Proc., sec. 581a.) In the case of Modoc L. & L. Co. v. Superior Court, 128 Cal. 255, 60 P. 848, the complaint was filed September 5, 1896, and summons was issued September 4, 1897, and served on defendant August 5, 1899, and returned September 16, 1899, three years and eleven days after the action was commenced. Defendant moved the court to dismiss the action on the ground that more than three years had elapsed since the commencement of the action and the summons had not been served and return thereon made. The court denied the motion,...