State ex rel. Peart v. Third Judicial District Court, Salt Lake County

STEAUP, J. This is an application made to this court for a writ of prohibition. The relator obtained a judgment in the justice court against one William Hendrickson which was rendered on the 23d day of September, 1904. On the 28th day of that month the attorney for Hendrickson served on the attorney of the relator a notice of an appeal from the justice court to the district court, and at the same time served a notice “that the defendant is about to file his undertaking on appeal with-,” sureties, naming them. Both notices weré filed in the justice court on the 1st day of October, but the undertaking was not filed until the 4th day of October. The transcript of the record was transmitted by the justice to the district court on the 24th day of October. On the 31st day of December the relator moved the district court to dismis.; the appeal for want of jurisdiction. The motion was denied, and hence the application is here made to prohibit the district court from assuming jurisdiction of the case and trying it on merits. Section 3748, Pev. St. 1898, relating to appeals from the justice court to the district court, provides: [420] “When an undertaking on appeal is filed, notice of suck filing skall be given to the respondent. . . . The adverse party may, however, except to the sufficiency of the sureties within two days after notice of the filing of the undertaking, and unless they or other sureties justify before the justice from whose court the appeal is taken, within two days thereafter, upon notice to the adverse party, the appeal shall be regarded as if no undertaking had been given.” Section 3747 provides that an appeal from a justice court shall not be effectual for any purpose unless an undertaking be filed within five days after íjling the notice of appeal. The contention made by the relator is that the defendant Hendrickson was required to give notice, not of an intention of filing an undertaking, but notice of the filing of the undertaking; that such a notice was not given, and hence the filing of the undertaking must be regarded as no undertaking, and therefore the appeal is ineffectual and the district court is without jurisdiction. We think the position is well taken. The filing of the undertaking and the serving of notice of such filing is by statute made a prerequisite to effectuating an appeal. To hold that a notice of a mere intention to do -so, which the adverse party is bound to respect and treat as a compliance with the statute, malíes it incumbent upon him to watch the record during the period within which an appeal might be taken, in order that he may not lose his right to except to the sufficiency of the sureties. To so hold, would give a party appealing from a justice court the right to serve his notice of appeal and notice of intention of filing an undertaking the day after the rendition of the judgment, hold both and file them on the thirtieth or last day on which an appeal might be taken, and then within five days thereafter file the undertaking, during all of which time the adverse party' would be under obligation to watch the record in order that he may avail himself of the privilege of excepting to the sufficiency of the sureties. If, on the other hand, it should be said that the exception could be made within two days after the service of the notice of intention, it is apparent that such exception would be of no legal effect, because there would be no undertaking on file, to the sureties of [421] which he could properly take exception. In this case six days intervened between the service of the notice of the intention and the filing of the undertaking. The statute provides that the adverse party may except to the sufficiency of the sureties within two days “after notice of thei filing of the undertaking.” Had the relator excepted to the sufficiency within two days after the service made upon him, he would have found that no undertaking was on file. He was not bound to keep watch of the record thereafter, and to take notice of the filing of the undertaking when made, for the statute plainly requires notice of the filing of the undertaking. We, however, do not wish to be understood as saying that notice of filing an undertaking cannot be given at the same time or on the same day that the undertaking is filed, although the service of notice, in point of time, precedes the filing of the undertaking. What we' do say is, that a party appealing cannot serve his notice of appeal and a mere intention of filing an undertaking, hold them at his pleasure, and then file them, together with the undertaking, any time thereafter within the period in which an appeal may be taken, without giving notice- of the filing of the. undertaking, and thus compel the adverse party to watch the record during all that time in order that he may not lose his right to except to the sufficiency of the sureties. The evident purpose of the statute was to obviate just such a difficulty, by requiring th9 giving of notice of the filing of the undertaking. Let the writ issue. Such is the order. McCAHTY, O. J., and ERICK, L, concur.