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

• Decision Date: 23 June 1909
• Docket Number: 2006
• Citation: 36 Utah 223,102 P. 868
• Court: Utah Supreme Court
• Parties: STATE ex rel. NEILSON v. THIRD JUDICIAL DISTRICT COURT FOR SALT LAKE COUNTY et al

102 P. 868

36 Utah 223

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

No. 2006

Supreme Court of Utah

June 23, 1909

Mandamus by the state, on the relation of Hyrum Neilson, to compel Morris L. Ritchie, as Judge of the Third Judicial District Court for Salt Lake County, to set aside an order dismissing an action by relator against E. E. Watrous and others.

TEMPORARY WRIT MADE PERMANENT.

E. A Walton for plaintiff.

Willard Hamer for defendant.

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

OPINION

McCARTY, J.

This is an original application for a writ of mandate against Hon. Morris L. Ritchie, one of the district judges of Salt Lake County. The proceedings upon which the application is based are as follows: On October 31, 1908, Hyrum Neilson, the relator herein, who, for convenience, will hereafter be designated and referred to as plaintiff, commenced an action in the justice court of Salt Lake City precinct against E. E. Watrous, H. R. Watrous, and Earl Watrous, defendants, to recover the sum of $ 206 for goods, wares, and merchandise alleged to have been sold and delivered to them by plaintiff. Plaintiff caused to be issued out of said court a writ of attachment, which was duly served by garnishment. No summons was served on defendants or either of them. On November 6, 1908, the defendants appeared specially, and moved the court to dismiss the action on the ground that it was brought in the wrong precinct or city. In support of their motion defendants filed an affidavit in which it was alleged that the cause of action set forth in plaintiff's complaint arose in Holiday Precinct, Salt Lake County, Utah; that the defendants, and each of them, during all the times mentioned in plaintiff's complaint, have been and now are residents of Big Cottonwood Precinct, Salt Lake County; that the alleged cause of action sued on arose upon an account contracted in Holiday Precinct, which is not situated in Salt Lake City Precinct, and that during all of said times there has been, and now is, a regularly elected, qualified, and acting justice of the peace in Holiday Precinct. On November 10, 1908, the justice of the peace sustained the motion, and dismissed the action without prejudice. The plaintiff thereupon appealed the case to the district court of Salt Lake County. On December 17, 1908, the defendants filed an answer to the merits in the district court in which they denied "each and every allegation contained in said complaint," and prayed that "the plaintiff take nothing by his said complaint." The same day on which the answer was filed the defendants filed a motion to dismiss the attachment on the ground that the justice court had no right to issue the writ because it had no jurisdiction of the defendants, or either of them. Two of the defendants, H. R. Watrous and Earl Watrous, filed an affidavit in support of the motion to dismiss, in which they denied each and every averment contained in plaintiff's affidavit for attachment. The motion to dismiss the attachment was argued and submitted and by the court taken under advisement. The court did not rule upon this motion, but, on December 31, 1908, on its own motion, dismissed the case "without prejudice to a new action" for want of jurisdiction, and refused to further entertain jurisdiction of the case and try the same upon merits. Plaintiff thereupon began these proceedings for a writ of mandate requiring the Third District Court, Hon. Morris L. Ritchie judge thereof, to vacate and set aside the order of dismissal, and to assume jurisdiction of the cause and to try upon merits, and for costs against the other defendants.

It is contended on behalf of the defendants that the judgment of the justice of the peace dismissing the action without prejudice is not a judgment from which an appeal will lie. Counsel, in their brief, say: "The judgment of the justice in this case was that the same be dismissed without prejudice, and therefore it did not dispose of the action as to all the parties, and dispose of the subject-matter of the litigation upon the merits."

It is settled law in this jurisdiction that a judgment is final for the purpose of taking an appeal when it terminates the action or proceeding in which it is rendered, and that, too regardless of whether or not the rights of the parties with reference to the subject-matter of the action have been adjudicated. In the case of Honerine M. & M. Co. v. Tallerday S. P. & T. Co., 30 Utah 449, 85 P. 626, the question as to what constitutes a final judgment, within the meaning of the Constitution and statutes of this state, was discussed, and in the course of the opinion Mr. Justice Straup, speaking for the court, said: "It is the termination of the particular...