State v. Hendriksen , 1976 Utah LEXIS 764 ( 1976 )

TUCKETT, Justice:

The defendant appeals from an order of the district court dismissing his appeal to that court of a verdict, sentence and judgment entered in a justice of the peace court on May 15, 1975. The partial record indicates that at the time of the sentence, the defendant filed his notice of appeal and paid into court the sum of $600 as an undertaking on appeal. It does not appear that a copy of the notice of appeal was served on the county attorney of Salt Lake County. The record does show that the county attorney had knowledge of the appeal and that a deputy from the county attorney’s office was present at the time and place fixed for the arraignment of the defendant in the district court. The district court was of the opinion that it had not acquired jurisdiction by reason of the defective service and dismissed the defendant’s appeal and remanded the case to the court of the justice of the peace.

The defendant appeals here from the order of the district court dismissing his appeal. Section 77-57-39 U.C.A.1953, sets out the manner in which an appeal may be taken from a justice of the peace court to the district court and Section 77-57-40 states: “Notice of appeal shall be filed with the justice, and a copy thereof shall be served on the county or prosecuting attorney.” This court in the case of Sullivan v. District Court¹ dealt with the construction of the statute in the following language:

These propositions are elementary. Hence we conclude that when the statute requires that an appeal must be taken within 30 days, it follows as a necessary corollary that it must be served, unless waived, within that time, on the party against whom the jurisdiction is invoked; otherwise it cannot be said that an appeal has been taken. [Emphasis added.]

The appearance in the district court of the deputy county attorney at the time and place for the arraignment of the defendant was a sufficient waiver of the service of a copy of the notice of appeal.

This matter is remanded to the district with instructions to reinstate the defendant’s appeal.

MAUGHAN, J., concurs.

1 . 66 Utah 400, 237 P. 516.