Eggart v. Dunning ( 1907 )

Scott, Justice.

This was an action on account, originally tried in a justice court of Sheridan County. Judgment was rendered for the defendant in error, who was the plaintiff, against the plaintiff in error, who was the defendant below. From such judgment the plaintiff in error appealed to the District Court of Sheridan County. Defendant in error appeared specially and moved to dismiss the appeal, which motion was granted and the court directed the case to be certified back to the justice court for enforcement of its judgment in accordance with the statute in such case made and provided. From the order dismissing the appeal the plaintiff brings the case here on error.

The motion to dismiss the appeal was on the ground of non-compliance with the provisions of Section 4398, Revised Statutes of 1899, in that no notice of a desire to appeal was ever filed with the justice of the peace who rendered the judgment. That section provides that: “Any person desiring to appeal shall, within fifteen days after rendition of the judgment from which his appeal is to be taken, file with the justice of the peace by whom such judgment shall have been rendered, a notice of such desire, and shall, within said fifteen days, either .pay all the costs of the cause appealed up to the time of the transmission of the papers to the District Court, as hereinafter provided, including one dollar and fifty cents, which shall be allowed to the justice for making a transcript and allowing the appeal, or shall give bond in double the amount of all such costs to the effect that he will pay the same in case judgment be rendered against him therefor in the District Court, and such undertaking may be included in the undertaking in stay of execution hereinafter provided for in case such undertaking in stay shall be given.”

The transcript of the justice docket shows that trial was had and judgment rendered on February 12, 1906. Following the entry of the judgment are the following entries: “Feb. 12, 1906, defendant gives oral notice of appeal. Feb. 24, 1906, defendant files appeal bond in the sum of $175, signed by W. M. Eggart and P. Cusick, which is approved by the court and appeal allowed.” It does not appear that any written notice of intention or desire to appeal was ever filed with the justice.

The right of appeal from the judgment of a justice of the peace is given by the constitution in such cases and pursuant to such regulations as may be prescribed by law. (Const, Art. 5, Sec. 23.) Statutes regulating such appeals are strictly construed and so held by this court in Italian-Swiss Agricultural Colony v. Bartagnolli, 9 Wyo., 204; 61 Pac., 1020; 24 Cyc., 660. Applying such rule to the case before us, it is apparent that the notation on the justice docket was not a compliance with the statutory provision as to filing the notice of a desire to appeal. The oral notice could not be filed and it was evidently the intention of the Legislature that the jurisdiction upon appeal should not rest in paról or be subject to the uncertainties of memory, but that the evidence thereof should be in writing and show upon its face and by its filing, the step taken to perfect the appeal. It will be observed that the statute does not merely provide that notice shall be given, in which case any kind of a notice might be sufficient, but it goes further and provides that such .notice shall be filed with the justice. The distinction is very clearly shown in Willis, Jr., Admr., v. Willis, 20 O. C. C., 664, affirmed in 57 O. St., 668. The statute provided that an administrator could appeal from an order of the Probate Court and one of the necessary steps to do so was to file a written notice of his intention to appeal. Instead of doing so the administrator gave oral notice of his intention to appeal, which was noted upon the journal. The court held that no appeal was perfected and that the appeal was properly dismissed. In Brown v. Wallace, 21 O. C. C., 417, the court comments upon the statute which required a “giving of notice” and one which required a particular kind of giving — a filing — in order to perfect an appeal. It was there held that there was a wide distinction in the meaning of such statutory provisions; — in the one which simply required notice to be given the manner of giving was not essential so long as the notice was actually given; in the other, where the manner and method of giving and the kind of notice is provided, it excludes any other or substitute therefor. While those cases did not arise on appeal from justice court, yet they did arise on appeal from courts of limited jurisdiction and in principle the question there raised is the same as the one here presented. It is contended that the allowance of the appeal by the justice was sufficient to confer jurisdiction of the appeal, notwithstanding the failure to file the notice of intention or desire to appeal. The appellate jurisdiction in such cases attaches upon filing the transcript and return of the justice showing that the necessary steps to perfect such appeal have been- taken. The allowance of the appeal is mandatory upon the required steps having been taken, but cannot be a substitute for nor cure any omission of statutory requirement by the party seeking to appeal. (24 Cyc., pp. 661, 696, 700.)

It is urged that the defect was supplied by the undertaking given for costs which was filed and approved within fifteen days after the rendition of the judgment. It will be noticed that Section 4398, supra, treats the filing of the notice and giving the undertaking as separate and distinct steps in perfecting the appeal. The undertaking recites: “The condition of above obligation is such, that whereas the said H. C. Dunning did, on the 12th day of February, 1906, before J. J. Blackburn, a justice of the peace of Sheridan County, Wyoming, recover a judgment against the above bounden W. M. Eggart for the sum of seventy-three and 20/100 dollars and costs of suit, from which judgment the said W. M. Eggart has taken an appeal to the District Court, Fourth Judicial District, within and for the County of Sheridan; now if the said W. M. Eggart shall prosecute his appeal with effect and without unnecessary delay and shall abide by the decision of the District Court in such case, and will satisfy any judgment that may be rendered against him on account of such appeal, or in case the appeal is dismissed, will pay the judgment rendered against him by the said justice and all costs occasioned by said appeal, then the above obligation to be void, otherwise to remain in full force and effect.” At the time of giving the undertaking no appeal'had' been taken nor had any notice of intention or 'desire to appeal as required by law been filed with the justice, nor had anything required by statute been done to perfect the appeal. -There was then no- appeal pending nor had any app'eal been taken from the judgment. The recitals in the undertaking are, therefore, based upon and assume the performance of conditions precedent which had not been and which were required to be performed in .order to perfect the appeal. A strict construction of the statütes as applied in Italian-Swiss Agricultural Colony v. Bartagnolli, supra, does not admit of an appeal in the absence of a written, notice of a desire to do so, nor does the undertaking for costs on appeal filed in this case amount to a substitute therefor. (24 Cyc., 690.)

The record presents no question of a waiver of jurisdiction. The parties having had one trial and their rights fixed and determined in the judgment of the justice, such judgment is valid and binding upon the parties until it is reversed by proceedings in error or vacated on appeal. The filing of the notice of intention or desire to appeal is necessary to bring the subject matter into the District Court and without it no jurisdiction is conferred in the absence of a waiver of jurisdiction. The jurisdiction over the appellee is acquired by service of process issued out of the District Court (Sec. 4400, R. S. 1899) ; or by voluntary appearance of such appellee. The necessity for filing the notice with the justice is analogous to the statutory requirement in some jurisdictions of an affidavit for appeal, and where it is uniformly held that the failure to file such affidavit is fatal to the appeal. That seems to be the view of this court as expressed in Italian-Swiss Colony v. Bartagnolli, supra, where it is said: “As has already been said, there does not appear to have been any attempt to comply with the provisions of our statute as -to notice of appeal * * It was there held, for that and other reasons, that the appeal was properly dismissed. For the foregoing reasons it follows that the order of the District Court of Sheridan County in dismissing the appeal must and will be affirmed.

We feel that it is due this court to refer to another matter before closing this opinion. Counsel for plaintiff in error has strayed far from the well beaten path of good ethics. He takes occasion in his brief to criticise this court in disrespectful language for its recent decision in Burns v. C. B. & Q. Ry. Co., 14 Wyo., 498 (85 Pac., 379), and in which case he was counsel for the unsuccessful party. That decision has no bearing upon the questions in this case and the reference to it with the language used excludes any idea of his act in so doing as being other than gratuitous. This court is not over-sensitive to criticism couched in respectful language, but when a brief is filed which carries with it language that is disrespectful, whether intentionally so or not, such act is inexcusable. It is due to the attorneys practicing at the bar of this court to say that it has never had occasion to refer to such conduct before. We have refrained from striking the brief from the files, but take this occasion to say that a repetition of such conduct will subject a party to the penalty at least of having his brief stricken from the files. Affirmed.

Potter, C. J., and Beard, J., concur.