Wood v. Turner, 10471
| Decision Date | 10 August 1966 |
| Docket Number | No. 10471,10471 |
| Citation | 18 Utah 2d 229,419 P.2d 634 |
| Parties | d 229 Virgil L. WOOD, Plaintiff, v. John W. TURNER, Warden, Utah State Prison, Defendant. |
| Court | Utah Supreme Court |
Jimi Mitsunaga, John D. O'Connell, Salt Lake City, for appellant.
Phil L. Hansen, Atty. Gen., Ronald N. Boyce, Asst. Atty. Gen., Salt Lake City, for respondent.
Defendant, Warden of the Utah State Prison, moved to dismiss plaintiff's appeal from a denial of a petition for writ of habeas corpus.
The plaintiff, Virgil L. Wood, having been found guilty of the crimes of robbery and grand larceny by a jury on April 30, 1963, was sentenced to indeterminate terms in the Utah State Prison as provided by law for those crimes; sentences to run consecutive to one the plaintiff was then serving. A motion for a new trial was made and denied. On September 9, 1965 plaintiff filed a petition for a writ of habeas corpus in the District Court of the Third Judicial District of Salt Lake County, State of Utah. The matter was heard on September 30, 1965, at the conclusion of which the court stated that the petition was denied. This is indicated in the record. Within the one month allowed for appeal under Rule 73(a), U.R.C.P., to wit, on October 1, 1965 the plaintiff duly served and filed a notice of appeal. Four days thereafter, on October 5, 1965, there was signed and filed a formal judgment denying the petition. Defendant contends that the plaintiff's notice of appeal having thus been filed prematurely, this court is without jurisdiction to entertain the appeal.
It is true that this court has previously held that the filing of a notice of appeal after the expiration of the one month allowed by the rule is a jurisdictional defect. 1 Our conclusion in this case represents no departure from that holding. But counsel has not cited, nor has our research discovered any case which has ruled that the premature filing of a notice of appeal deprives this court of jurisdiction.
Our Constitution assures the right of appeal in all cases to the end that claimed errors or abuses may be reviewed by another tribunal. 2 It is usually held that statutes implementing the right of appeal are liberally construed and applied in the furtherance of justice; and that an interpretation which will prevent that right from being exercised is not favored. 3 The purpose of a notice of appeal is to advise the opposite party that the appeal has been taken and of the essentials requisite thereto. If it does so in substance, it should be given effect and mere technical defects should not defeat the right of appeal. 4 This is in accord with the generally desirable objective of not placing undue stress on technicalities where others are not adversely affected. Rule 61, U.R.C.P. provides that, '* * * no error or defect in * * * anything done or omitted by the court or by any of the parties, is ground for * * * disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.' 5
The premature filing of the notice of appeal such as was done in this case should not be regarded as a defect which will ipso facto entirely deprive the appellate court of jurisdiction. It is an irregularity which would be grounds for dismissal of the appeal within the discretion of the court. Such remedy would undoubtedly be well advised in the case where the judgment had not become definite, or had not become final, or where remedies before the trial court had not been exhausted. No such circumstance exists here. The final written judgment which was filed is exactly in accord with the ruling appealed from. We cannot see that the defendant was put to any disadvantage or that his rights were adversely affected by the irregularity of procedure here. It is our opinion that the ends of justice will best be served by hearing the case on its merits.
The motion to dismiss the appeal is denied.
WADE, J., heard the arguments but died before the opinion was filed.
HENRIOD, Chief Justice (commenting).
The main opinion in this case, presumably presented and designed for publication in the national reports system, is premature.
The matter is before us on motion to dismiss the appeal,--not on a regular appeal, under the Rules, from a final judgment. It would be a dangerous precedent if we presumed to pen a definitive and conclusive decision on any or all motions to dismiss an appeal.
The danger of the main opinion, if published as our official decision, laying down a rule of law under the facts of this case, is that it would reverse many decisions of this court to the effect that there can be no appeal except from a final judgment of the lower court. 1 At the time of filling notice of appeal in this case, clearly, obviously and chronologically there was no final judgment in the record, as the main opinion concedes. The reasoning seems to be that, 'Well, no one was hurt, so let's ignore the rules and our cases.'
The same reasoning could have been entertained in the cases cited in footnote one hereof, but wasn't. The same reasoning could have been indulged in Anderson v. Anderson, 2 where notice of appeal was...
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Utah Down Syndrome Found., Inc. v. Utah Down Syndrome Ass'n
...have some discretion to consider premature notices of appeal as “relating forward” to a subsequent judgment, see Wood v. Turner, 18 Utah 2d 229, 419 P.2d 634, 634–35 (1966), our discretion is circumscribed by rule. SeeUtah R.App. P. 4(c) (notice of appeal filed “after the announcement of a ......
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Hoyer v. State
...did not automatically deprive this court of jurisdiction. Id. at 392. ¶ 14 In Stoker, we reaffirmed our holding in Wood v. Turner, 18 Utah 2d 229, 419 P.2d 634, 635 (1966), where we Our Constitution assures the right of appeal in all cases to the end that claimed errors or abuses may be rev......
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Garver v. Rosenberg
...premature remittitur could not have the effect of transferring jurisdiction from the court of appeals to the district court). 18. 419 P.2d 634, 635 (Utah 1966). 19. UTAH R. APP. P. 4(c). In its memorandum before us, the Garvers cite Wood, which states that a "premature filing of the notice ......
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Garver v. Rosenberg
...remittitur could not have the effect of transferring jurisdiction from the court of appeals to the district court).18 18 Utah 2d 229, 419 P.2d 634, 635 (1966).19 Utah R.App. P.4(c). In its memorandum before us, the Garvers cite Wood, which states that a “premature filing of the notice of ap......
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