Dooley v. Foster

By the Court, Valentine, J. These two cases are brought in this court for the purpose of reversing two judgments rendered in the same case in the district court. As the facts in the- two cases are nearly all the same, and as the questions of law involved are similar, and as both cases are brought into this court at the same time, we shall for convenience consider both cases at the same time. On the 26th day of December, A. D. 1868, Foster and Small-obtained a judgment in a justices’ court against Dooley. On the 28th day of December, A. D. 1868, Dooley — 274 — filed'his appeal bond with the justice for an appeal to the district court. On the 17th day of February, A. D. 1869, the justice left the transcript and other papers in the case with the clerk of the district court; and the clerk filed them in his office on the same day, and entered the case on the appearance docket. On the 1st day of March, A. D. 1869, it being the first day of the term of the district court next following the appeal, Dooley moved the court for leave to withdraw the transcript and papers in the case, and for leave to refile the same of that date, and to redocket the case, which motion the court overruled. Afterwards, but on the same day, Foster and Small moved the court to dismiss the appeal for want of notice of such appeal to them, which motion the court sustained, and rendered judgment for Foster and Small, and against Dooley. On the 2d day of March, A. D. 1869, Dooley filed another transcript of the case, and gave Foster and Small notice thereof on the same day. On the 3d day of March, A. D. 1869, Foster and Small moved the court to gtrike this second transcript from the files, which motion the court sustained, and rendered another judgment in favor of Foster and Small, and against Dooley. Dpon Dooley’s motion for leave to withdraw and refile the transcript, and to redocket the cause, he filed an affidavit in evidence, stating in substance, that while he authorized the justice of the peace to take the transcript and other papers to the .clerk of the district court, and leave them there for the convenience of his counsel, yet that he did not authorize said justice to file them; that the transcript was filed' without his consent or — 275 — knowledge, and that he did not know that it had been filed until the 27th day of February, A. D. 1869. Appeal: Dishissai of. It will readily be seen that this case differs so widely from the case of Robitaille v. Ferguson, [4 Kas., 556,] that that case can have but little if any application to this. The court, in deciding this case, do not question the correctness of the decision in that case; and yet in that case the dismissal of the appeal and the judgment of the district court were sustained, while in this case such dismissal, and both the judgments of the district court, must be reversed. In the decision of this case all the members of the court concur, but we differ so -much upon the reasons for such decision, that I shall not attempt to give the reasons of the court, but will give some of my own reasons only. Whether it was proper or improper for the court below to allow Dooley’s affidavit to be read in evidence, I shall not discuss; and what should have been the decision of the district court thereon, I shall not attempt to decide. Whether, after admitting said affidavit in evidence, the court considered the same, I think is very doubtful; for if the court did consider the same, I am at a loss to know upon what grounds the court based its decision. If the affidavit was proper evidence and true, (and there was no evidence to controvert it,) the court certainly erred in its decision — the court attempted to dismiss an appeal when there was no appeal in the district court to be dismissed. The filing of the first transcript, not having been done by Dooley, or by his authority, — and refused to allow Dooley to file his own transcript, for the reason, I suppose, that it had previously been marked filed, although without authority The court struck from the files the second transcript, which was the only transcript that Dooley filed in the — 276 — case, and which, was filed within the time prescribed by law, and rendered two judgments against Dooley, although he was guilty of no laches, nor of any wrong. Without deciding the point, I must say that I think the affidavit was properly admitted in evidence, and if the plaintiffs below had desired to file counter-affidavits, it would have been proper for the court to have given them time to do so. But, aside from the affidavit, was the decision of the court below correct ? What had Dooley done, or omitted to do, that he should forfeit his right to an appeal ? that he should forfeit his right to be heard in the district court? That he complied with every requirement of law, and fulfilled to the very letter every provision of the statute, in taking his appeal, no one has or will venture to controvert; or that the court had any authority, under the law, to dismiss the appeal, no one will contend. Id: Supreme Ct., Rule is. But there is a rule of the Supreme Court, [No. . adopted at the January, term, 1865; 3 Kas. Rep.; 4 Kas., 557,] with which it is claimed Dooley did not comply, and under which the district court dismissed the appeal and refused to allow the appellant to file another transcript. This rule requires that “ the appellant shall, within five days after the filing of the transcript of appeal in the district court, serve upon the appellee or appellees, his or their agent or attorney, notice in writing of the filing thereof.” This rule is undoubtedly broad enough in its language to bear the construction placed upon it in the court below; and such possibly would be the natural construction if it did not violate the law and lead to absurdity, injustice and wrong; but as I think it will bear another construe — 277 — tion, more reasonable and just, I think it is our duty to adopt the latter. Id •, Waiver of Notice. The notice required by this rule cannot be required for the purpose of giving the court jurisdiction, for the court already has as complete jurisdiction over both the parties and the subject matter of the suit, and as ample authority to hear and determine the case, without the notice as with. [ Tarleston v. Brily, 3 Kas., 436.] It can be required only for the purpose of giving actual notice to the appellee of a fact of which the law conclusively presumes that he already has constructive notice. Failures to comply with the rule in this respect should therefore, in my opinion, not be governed by the rigid and*infiexible rules relating to summonses, and to notices which are required for the purpose of giving the court jurisdiction. It therefore seems to me that whenever the appellee appears in the case (if within a reasonable time after the appeal is taken, as in this case,) so that the court can see that he not only has constructive notice of the appeal, but also has actual notice thereof, so that the court can see that he has all that this precautionary rule requires that he should have, it would be an abuse of justice to dismiss the appeal for want of notice. The rule itself does not require that the court should dismiss the appeal. It at most only permits the court to do so. § 7, R. I., 581; 6 Howard, U. S., 605, 608, and other cases cited in plaintiff in error’s brief with reference to this point and waiver of notice. According to the construction put upon this rule in the court below, if a party appeal from a justice of the peace and file his transcript six months before the next term of the district court (and in nearly all the counties the terms of the district court are held six months apart) and gives notice to the adverse party six days thereafter, — 278 — instead of within five days thereafter, as the rule directs, his appeal is worthless and must be dismissed, and he sent remediless from the courts of justice. But if said party is tardy, — if he waits six months, — if he does not file his transcript until the second day of the next term of court (which is the last day he has under the law for filing it) and does not give notice to the other party until five days thereafter, his appeal is all right, and he may rightfully demand a hearing. Vigilantibus et non dormientibus leges subserviunt! What a strange application of this maxim. The dismissal of an appeal, in a case like the one at bar, is substantially a punishment to the appellant for being prompt in filing his transcript, for the appellee actually received the proper notice of the appeal five days before he would have been entitled to receive it under the rule, had the appellant stood upon his legal lights, and not filed the transcript until the second day of the next term of the court. It scarcely seems reasonable that the man who complies with the law promptly should be placed in a worse condition than the man who complies with the law tardily; and it scarcely seems reasonable that the appellee, who receives notice from the prompt man on the second day of court, should have a right to dismiss his adversary’s appeal, while the appellee, who receives notice from the tardy man on the fifth day after said second day of court, should l}.ave no such right. Who can presume the Supreme Court ever intended such a foolish thing? If courts should construe the acts of the legislature with such rigidity and harshness, — if courts should always construe such acts according to their literal import, — they would often make the legislature say very foolish things. In the haste of legislation laws frequently come from the legislature crude, imperfect, and unfortunately worded. It then becomes — 279 — the duty of the courts to ascertain the intention of the legislature, and by a liberal construction try to carry out that intention; and when the Supreme Court takes the place of the legislature, — when the Supreme Court becomes the law-giver, — why should we not extend some of that leniency and liberality to them, in construing their acts, that we do to the legislature under the same circumstances ? It would be a more liberal, if not a more reasonable construction, to say that whenever a party files his transcript at any time before the second day of the next term of court, the filing shall be considered a continuing filing, from that day up to the said second day of the next term, so that the said party may give the other party the required notice at any time within five days after said second day of the next term; and it would certainly be a more liberal, as well as more reasonable construction, to say that the appellant may file as many transcripts, up to the said second day of the next term, and give to the other party as many notices thereof, up to the fifth day thereafter, as he chooses, until his appeal is perfected in every respect, he of course paying all extra costs. Martineey v. Galvedo, 5 Cal., 155; Kelsey v. Campbell, 38 Barb., 238; 14 Abb. Pr., 368; Langley v. Warner, 1 N. Y., 607; 15 Cal, 324; 19 Cal., 81. Rules for District courts. In justice to myself, I must say that I have neYer believed that any of the Supreme Court rules made for the district court alone have ever had any valid existence. They were void in their inception, and are void still. Some of them, it is true, are open to fewer objections than others, but every one of them is open to a sufficient number of objections to invalidate the same. The question of their validity, however, would open so wide a field of investigation, that I have — 280 — purposely avoided discussing it. I shall continue to avoid such discussion as long as I can agree with the court upon my own theory, as well as upon theirs, as long as it makes no difference iu the decision of the case, whether we consider the rules as valid or invalid. Therefore, in this case, and in the case of Thonqison v. The 'State, [Ante, p. 159,] I have not questioned the validity of said rules. Judgment reversed and cause remanded for further proceedings. All the justices concurring.