Tooele Meat & Storage Co. v. Morse

• Decision Date: 17 November 1913
• Docket Number: 2504
• Parties: TOOELE MEAT & STORAGE CO., v. MORSE, DISTRICT JUDGE
• Court: Utah Supreme Court

136 P. 965

43 Utah 515

TOOELE MEAT & STORAGE CO., v. MORSE, DISTRICT JUDGE

No. 2504

Supreme Court of Utah

November 17, 1913

APPLICATION for writ of mandate by the Tooele Meat & Storage Company against C. W. Morse as District Judge.

WRIT DENIED.

Evans and Evans for plaintiff.

W. S Marks for defendant.

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

OPINION

FRICK J.

Upon the application of the plaintiff herein this court issued an alternative writ of mandate directed to the defendant, the Honorable Charles W. Morse, as judge of the district court of Tooele County, Utah, requiring him to show cause why a permanent writ should not issue compelling him to reinstate and hear a certain appeal which had been dismissed by him in a case wherein the Eite Candy Company was plaintiff and the Tooele Meat & Storage Company, the plaintiff herein, was defendant. The appeal aforesaid was taken from a judgment entered on the 8th day of February, 1912, in the justice's court of Tooele City in favor of said plaintiff and against said defendant. The appeal was taken pursuant to Comp. Laws 1907, section 3744, which, so far as material here, is as follows:

"Any person dissatisfied with a judgment in a justice's court, whether the same was rendered on default or after trial, may appeal therefrom to the district court of the county at any time within thirty days after the rendition of any final judgment. Notice of the entry of the judgment must be given to the losing party by the successful party either personally or by publication, and the time of appeal shall date from the service of said notice."

On the 18th day of September, 1912, the attorney for the plaintiff in the action in which judgment as aforesaid was entered wrote the attorneys for the defendant in said action in part as follows:

"Evans & Evans, Attys. Salt Lake City, Utah: In pursuance to the request of your Mr. P. C. Evans at Wendover at a recent meeting we had there, I desire to say the case of Eite Candy Company, a corporation, which I represented as plaintiff against Tooele Meat & Storage Company, a corporation, in which you represented the defendant, before L. E. Kramer, city justice of the peace of Tooele City, Tooele County, Utah, that judgment was entered in said court in favor of the plaintiff and against the defendant on the 8th day of February, 1912, for the sum of $ 170.93, and for $ 5.20 costs. That an abstract of judgment was issued from said court and filed in the district court on the 13th day of May, 1912. Since that date there has been accruing costs in the sum of six dollars. The judgment, with interest to date, would be $ 188.35 and costs due would make a total due of $ 193.55."

In addition to the foregoing the letter also stated that the plaintiff would discount the amount of the judgment twenty per cent, if paid. On the 21st of September, 1912, the attorneys for the defendant, in a letter to the attorney aforesaid, acknowledged receipt of the foregoing letter and informed him that they would consider the subject-matter of his letter later and would advise him further in the matter.

Without further communication between the parties the attorneys for the defendant, on the 28th day of October, 1912, attempted to appeal from the judgment aforesaid by serving the statutory notice of appeal. The transcript was accordingly sent to the district court, where counsel for the plaintiff in said action moved to dismiss the appeal upon the ground that it was not taken within the time required by the statute aforesaid. The district court received the letters aforesaid in evidence and granted said motion and dismissed said appeal, whereupon this proceeding to reinstate the same was commenced, as before stated.

The only question presented for determination by the parties is whether the letter written by plaintiff's attorney and received by defendant's attorneys in the action aforesaid was a substantial compliance with the statutory provision we have quoted above respecting the giving of the notice of entry of judgment in the justice's court. The district court held that the letter constituted sufficient notice of the entry of judgment in the justice's court to set the time in motion within which an appeal must be taken, and in view that the notice of appeal was not served within thirty days after said notice was received and acknowledged by the attorneys for the defendant in said action that the appeal was not taken in time. The plaintiff herein contends that the letter did not constitute the notice contemplated by the statute, and hence was no better than if no notice had been given, and that therefore the appeal was taken in time.

We think the law is well settled that, where a statute requires notice to be given but is silent with respect to the manner of notification, written notice is understood. (29 Cyc. 1117.) The statute to which we have referred being silent with respect to the kind or character of notice that should be given, we shall assume, and so hold, that a notice in writing is contemplated. It must, however, also be kept in mind that the statute does not prescribe any particular form of notice, but all that is required is that "notice of the entry of judgment must be given to the losing party." A substantial compliance with the statute in that regard is, we think, all that is necessary.

The law respecting notice is well stated in 29 Cyc. 1117, in the following words:

"The general rule in respect to notices is that mere informalities do not vitiate them so long as they do not mislead, and give the necessary information to the proper parties."

Of course, where the statute prescribes a particular form of notice, then, as a general rule, the form required must be followed with reasonable strictness, as under such circumstances the form may be regarded as matter of substance. But where the statute does not prescribe a form, the question ordinarily is whether the notice actually given constitutes a substantial compliance with the statute. If the notice required by the statute therefore emanates from an authentic source and is such as to apprise the party to be notified fully of the whole substance of the matters concerning which the statute requires notice to be given, the notice is ordinarily held sufficient. (Fry v. Bennett, 7 Abb. Prac. [N.Y.] 352.) See, also, 5 Words and Phrases, pp. 4842 to 4844.

We think the notice in this case fully measures up to the foregoing requirements. The court wherein the judgment was obtained and the names of the parties to the action were given, and the date of the judgment and the amount thereof with costs, were clearly stated. We cannot see how it can well be said that anything more could have been required in order to fully inform the defendant in that action...