McLain v. Conrad

CALLISTER, Justice: This is a probate proceeding instituted on ■the petition of certain legatees named in the last will and testament of Mary E. Ratliff, -deceased. Appellant, Maybelle R. Conrad, ■objected to the admission to probate of a will which was not the original but a certified photographic copy from the clerk of the .District Court in and for Douglas County, •Colorado, where the original instrument was lodged. Appellant does not challenge 'the validity or regularity of the instrument but objects solely on the ground that the ■certified photographic copy is not the best •evidence and that the original is the only proper document to be admitted to probate. After the death of Mrs. Ratliff, her will was lodged with the clerk of the District Court in and for Douglas County, Colorado, on July 13, 1965. A petition for probate was filed in Uintah County, Utah, on November 19, 1965, by several legatees under the will. A petition for probate was filed in Douglas County, Colorado, on November 26, 1965, by appellant. The Utah proceeding was held in abeyance pending admission of the will to probate in Colorado. A will contest developed in the Colorado proceeding, and the will was not admitted to probate; whereupon the Utah court held a hearing on January 4, 1966. At the Utah hearing, the aforementioned photographic copy of the instrument lodged with the clerk of the District Court in Douglas County, Colorado, and certified by the clerk thereof, was introduced in evidence. Ralph Sargent, the sole surviving, attesting witness, testified from the copy, and it was admitted in evidence. Sargent further testified as to the circumstances surrounding the execution of the will and codicil. The court then heard testimony of witnesses concerning the decedent’s residence in Utah. The testimony indicated that the deceased had lived in Vernal, Utah, in a home that she owned. She also owned and operated a Utah license motor vehicle in Vernal, which she had driven to a laundromat on May 3, 1965; at this time she fell and sustained injuries. She was taken to Denver, Colorado, for medical treatment, where she died June 20, 1965. From the evidence, it was further established that deceased was a registered voter of Vernal, Utah, and that she had voted in the 1964 election. The record reveals no evidence indicating that deceased was a resident of Colorado or that she had intended to change her residence thereto. The trial court, based upon the evidence, properly admitted the certified copy of the will to probate in Utah, with an instruction to obtain the original document. Thereafter the respondents filed a petition to dislodge the will in Colorado, and [348] the same was set for hearing on March 16, 1966. At the hearing, the court heard evidence on the original will. When this appeal was filed, the court in Colorado stayed the proceedings pending the ruling of this court on the appeal. Section 78-25-12, U.C.A.1953, provides: A last will and testament, except a nuncupative will, is invalid, unless it is in writing and executed with such formalities as are required by law. When, therefore, such a will is to be shown, the instrument itself must be produced, or secondary evidence of its contents given. Section 78-25-16, U.C.A.1953, provides: There can be no evidence of the contents of a writing, other than the writing itself, except in the following cases: ****** (3) When the original is a record or other document in the custody of a public officer. ****** Provided, however, jf * * * any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing; * * * and in the regular course of business had caused any or all of the same to be recorded, copied or reproduced by any photographic * * * or other process which accurately reproduces or forms a durable medium for so reproducing the original * * *; and such reproduction when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not, * * *„ (Emphasis added.) In the cases mentioned in subdivisions-(3) and (4), a copy of the original, or of the record, must be produced; in those-mentioned in subdivisions (1) and (2),. either a copy or oral evidence of the contents. However, our observation that the documents, in compliance with this act are admissible as originals must be dicta because this court lacks jurisdiction to entertain this appeal, for appellant has failed to comply with Rule 73(a) U.R.C.P. in her filing of the notice of appeal. After the hearing, appellant made a motion for a new trial, which was denied March 1, 1966. Under Rule 73(a), U.R. C.P., appellant had one month from that date or until April 1, 1966, in which to file-her notice of appeal. The evidence indicates that such a notice was received by mail by the clerk of the District Court on April 1, 1966. On April 4, 1966, the clerk received by mail the additional copies of the notice for the attorneys for the respondents. On April 8, 1966, the clerk received the filing fee of $3.50, and it was at this-time that the notice of appeal was filed. [349] Section 21-2-2, U.C.A.19S3, provides: The county clerk shall receive the following fees: For all services performed by him in any action or proceeding * * * to be collected in advance from the party commencing the action or proceeding; * * * * * * * * For filing notice and undertaking and all services, including indexing, on appeal to the Supreme Court, $3.50. The second paragraph of Rule 73 (a) provides : A party may appeal from a judgment by filing with the district court a notice of appeal, together with sufficient copies thereof for mailing to the Supreme Court and all other parties to the judgment, and depositing therewith the fee required for docketing the appeal in the Supreme Court. The clerk of the district court shall forthwith transmit one copy of the notice of appeal, showing the date of filing, together with the required fee, to the Supreme Court where the appeal shall be duly docketed. Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal, * * *. In Jacobsen v. Jeffries,1 the factual situation was substantially similar to the instant case. The notice of appeal was left at the clerk’s office prior to the expiration of the time for filing, but the fee was not paid, and the clerk did not file the notice. Subsequently, when the fee was paid, the notice was filed, but this event occurred after the time for appeal had lapsed. This court stated: Leaving a paper with a filing officer, a fee for the filing of which is by statute required to be paid in advance, is not a filing. It is the duty of the officer to collect and pay into the proper treasury the fee provided by law béfore the paper is filed. * * * In the instant case, the filing fee was received after the time provided by Rule 73(a), U.R.C.P., had run, and the notice was stamped as filed at that late date only. Section 21-2-2, U.C.A.1953 provides for the collection of all fees in advance by the county clerk, and the language is mandatory in nature; therefore, it was not the clerk’s duty to file the notice until he had received the fee, and he could not have been compelled to do so. Since the notice was filed more than one month after the entry of judgment or the order appealed from (Rule 73(a), U.R.C.P.), this court lacks jurisdiction to entertain the appeal, and is therefore compelled to order a dismissal thereof. Appeal dismissed. Costs to respondents. TUCKETT and HENRIOD, JJ., concur. [350] CROCKETT, C. J., concurs, and also concurs with the opinion of ELLETT, J. Footnotes [1] 86 Utah 587, 47 P.2d 892 (1935).