Raiser v. Buirley

ORME, Judge

(concurring):

T 11 I concur in the main opinion, but wish to point out that this problem should never have arisen. Very simply, the clerk's office should not have returned the notice of appeal and filing fee to Appellant. Had it not done so, the appeal would clearly have been timely.

112 It is undisputed that Appellant tendered with his notice of appeal a money order in the full amount of the required filing fee. It is also undisputed that the notice and money order were returned several days later because of some "need" to correct the way the payee was named on the money order. The record does not reveal what the perceived problem was, but one assumes the payee was shown as "Courts" or "State of Utah" or the like instead of "Clerk, Fourth District Court." As a practical matter, had the clerk simply stamped the back of the money order with the office's deposit endorsement stamp and deposited the money order with the rest of the day's receipts, it would have been credited to the appropriate account and paid in due course. And as a matter of law, such problems in designating the payee are inconsequential. "The instrument is payable to the person intended by the signer even if that person is identified in the instrument by a name or other identification that is not that of the intended person." Utah Code Ann. § 70A-8-110(1) (1997). There would be no question that in tendering a money order in the amount of the filing fee with a notice of appeal that was delivered or sent to the office of the court clerk, Appellant necessarily intended the money order to be payable to the court.

(13 From all that appears, the filing fee was legally sufficient and should have been accepted when first tendered. The jurisdictional problem in this case was unnecessarily created by the court clerk who improperly rejected Appellant's filing fee.