State ex rel. Snell v. Third Judicial District Court

FEIGN, J. This is an original application to this court for a writ of prohibition. The material facts stated in the affidavit for the writ are: That on the 4th day of October, 1903, the petitioner, hereafter designated “plaintiff,” recovered a judgment in the justice court of Murray City, Salt Lake County, Utah, against one Orson Winter, who, with the Honorable T. D. Lewis, as one of the judges of the district court of Salt Lake County, is made a party to the proceeding; that thereafter said Winter caused an appeal' to he taken from said judgment to the district court of Salt Lake County by filing in said district court ’a transcript of the proceedings had in said justice court; that said transcript contains a notice of appeal, hut does not contain any proof of service of said notice on any person whatever; that plaintiff, in due time, filed a motion in the district court to dismiss said appeal upon the grounds that “no notice of appeal was served upon the plaintiff,” and, further, that the court “had no jurisdiction to determine said cause except to dismiss the appeal.” When the motion to dismiss the appeal came on for hear — 269 — ing, tbe district court permitted sa,id Orson Winter to supply tbe defect of proof of service by filing an. affidavit of bis attorney from wbicb it is made to appear that service of tbe notice of appeal was in fact made within proper time, and that tbe proof of service was not disclosed by tbe record because it was “omitted or eliminated through means unknown to affiant.” After permitting the affidavit to be filed in tbe case, and upon consideration thereof, tbe district court refused to dismiss tbe appeal and directed that tbe case proceed to a bearing on merits. To prohibit tbe court from so proceeding, tbe plaintiff has filed tbe application as aforesaid, in wbicb be prays for a writ of prohibition. An alternative writ was duly granted, directed to Hon. T. D. Lewis, as judge of said district court, and to tbe defendant Orson Winter, requiring them to show cause on a day named why they should not be prohibited from proceeding further with said appeal. Tbe ( defendant Orson Winter duly appeared and filed what is termed an “answer.” No facts are set forth, however, in said answer, wbicb in any way could be construed a defense to-the facts set forth in tbe application for tbe writ. Tbe most that can be said is that tbe so-called “answer” raises an issue in law tbe same as a general demurrer would do, and we have so considered it. When tbe appeal was taken, section 3744, Revised Statutes 1898, was in force. That section, among other things, provides that: “Tbe appeal shall be taken by filing a notice thereof with the justice, and serving a- copy 1 on tbe adverse party.” In another section, in order to perfect an appeal, an undertaking is provided for; but tbe matter is not material in this case. It will be observed that two things are required to be done by tbe foregoing section, namely, tbe filing of a notice of appeal with tbe justice, and tbe serving of a copy thereof upon tbe adverse party. Tbe transcript on appeal in this case discloses that tbe notice of appeal was duly filed with tbe justice; but tbe record is silent with respect to tbe service thereof. This latter fact it seems tbe defendant Orson Winter conceded — 270 — in the district court by attempting to supply the defect by making proof of the act of service by filing an affidavit. In this court be does not attempt to dispute the fact that before the filing of the affidavit there was absolutely no proof of any kind before the district court that the notice of appeal had been served as required by law; but his counsel contends that the defect of proof of service of the notice could be supplied by a showing dehors the transcript or record on appeal that service had in fact been made. Counsel for plaintiff, upon the other hand, contends that the notice of appeal' and the service thereof are jurisdictional, and that, unless these jurisdictional facts affirmatively appear from the record as transmitted to the district court, the district court has no jurisdiction of the “adverse party,w and hence all the district court has power to do is to dismiss the appeal, and further that the defect cannot be supplied by proof aliunde in the district court. The Supreme Court of the territory of Utah, in the case of People v. Gough, 2 Utah 69, has passed upon the precise point in question. It is there said: “In this ease the notice was filed with the clerk; but the record does not show that any copy was served upon the adverse party. This defect in the record is sought to be supplied in this court by affidavits showing the service. We do not think this can be done. This court must be bound by the record as we find it, and cannot allow it to be amended in this court by extraneous proof.” Counsel for Winter seeks to- distinguish People v. Gough from the case at bar upon the sole ground that People v. Gough involved an appeal in a criminal action, while the case at bar is civil. The statute requiring notice of appeal and service thereof was in terms the' same in People v. Gough that it is in the case at bar. The question is not what the nature of the proceedings were, but it is, What are the powers of the district court? It will not be disputed, we think, that the general, if not the universal, rule is that whether an appellate court has jurisdiction over the parties must appear from the record on appeal, and unless jurisdiction is made to appear from the record itself no ju — 271 — risdiction exists, and, further, that a re.cord on appeal cannot, as a general rule, b>e changed or amended in an appellate court. While there are a few1 cases to the contrary, the great weight of authority is clearly to' this effect. Among the many cases that could be cited, we refer to the following: Young v. Conklin, 3 Misc. Rep. 122, 23 N. Y. Supp. 993; Forman v. New York Tr. Co., 48 Misc. Rep. 621, 95 N. Y. Supp. 581; Hildreth v. Gwindon, .10 Cal. 490; Crancer & Curtis Co. v. McKinley Music Co., 69 Neb. 700, 96 N. W. 617; Whisler v. Whisler, 162 Ind. 136, 70 N. E. 152; Godfred v. Godfred, 30 Ohio St. 53; Mouser v. Palmer, 2 S. D. 466, 50 N. W. 967. In 2 Spelling, New Tr. & App. Pro., the author, in section 638, page 1339, says: “Tbe jurisdiction of tlie appellate court must appear by tbe transcript, nor can other evidence of its jurisdiction be considered. This proposition bas reference, of course, to tbe completed transcript, after all bas been done that may be done to cure defects therein. Tbe necessity for tbe filing of a notice of appeal bas been already pointed out. This jurisdictional fact must appear in tbe transcript.” The same doctrine is laid down by Elliott in his work on Appellate Procedure (section 180). We are clearly of the opinion that, inasmuch as the record on appeal did not disclose service of the notice of appeal, the district court did not have jurisdiction of the plaintiff, who was the adverse party on the appeal. 2 We are equally clear that the court cannot . acquire jurisdiction of the plaintiff in the manner it was attempted to be done. The district court was power1 less to cure the defect of proof of service by hearing 3 the evidence by which the fact of service was sought to be established and in that way determine the fact of service in the appellate court. In determining whether jurisdiction existed, the appellate court was compelled to rely upon the record, and not upon evidence aliunde. If the record fails to show service, and the appellant suggests that service was in fact made, but was 4 — 272 — omitted from tb© record for any • reason, the court, no doubt, may permit the appellant to supply the defect by having recourse to the court from which the appeal is taken, and, when the defect is thus supplied and filed in the district court as an authentic record from the court from which the appeal is taken, the appellate court may then proceed to hear the case. The court is not bound to dismiss the appeal in the first instance when a motion is made upon the ground that the record is defective in this regard, but may suspend proceedings for a time reasonably sufficient to permit the appellant to cure the defect, if he suggests that it can be cured by reason of the existence of the fact which the record as it stands fails to disclose. That this may be done in the way suggested is clearly held in a number of the cases before cited. In this state the right of appeal from justices’ courts to the district courts is constitutional, and the judgments of the district courts in such cases, with certain exceptions, are final. The right of appeal is therefore guaranteed by the Constitution itself, and is a valuable 5 right. This right should not be frittered away by matters not of substance. The exercise' of the right, however, depends upon a substantial compliance with the statute. The statute, as we have seen, requires the filing of a notice of appeal in the justice court from whose judgment the appeal is taken and the service of a copy thereof upon the adverse party. Unless this is done the 6 district court acquires no jurisdiction of the adverse party. Where there is no jurisdiction, there can be no legal right to hear and determine. The procedure is simple and is easily complied with, and it is the duty of the courts to insist upon a substantial compliance at least with the statute. So far as the record on appeal in question shows, this was not done, and hence the district court is clearly attempting to proceed without or in excess 7 of jurisdiction; and, as we have pointed out, the judgment in the district court being final, the plaintiff had — 273 — no remedy except to arrest further proceedings by prohibition. We are of the opinion that a peremptory writ of prohibition should issue in this case, but that the same should contain a direction to the defendant Hon. T. D'. Llewis, as judge of the district court of Salt Lake County, to permit Orson Winter to supply the defect of proof of service of the notice of appeal, if he so desires, by filing the same in the justice court from which the appeal is taken, and, if proof of service is duly certified by said justice court to the clerk of the district court of Salt Lake County within the time within which the same is ordered to be so filed by said district court, then said district court may proceed to hear •and determine the appeal; but, if said proof of service is not so filed' as aforesaid, then said district court is hereby ordered and directed to dismiss said appeal." It is further ordered that the defendant Orson Winter is required to pay the costs of this proceeding. STRAUP, C. J., and MeCARTY, L, concur.