
    CHIPMAN v. DISTRICT COURT OF FOURTH JUDICIAL DISTRICT et al.
    No. 2562.
    Decided February 7, 1914
    (138 Pac. 1194).
    Criminal Law — Summary Conviction — Appeal—Record—Service op Notice. Where the record sent up on appeal from a conviction before a justice of the peace did not contain proof of service of the notice of appeal on the county-attorney, accused could prove the fact of due service by affidavit in the justice’s court and have the proof transmitted to the district court as an additional record, and was not limited to proof by indorsement of acceptance of service by the county attorney on the original notice.
    Original application for mandamus by Fon Chip-man against the District Court of the Fourth Judicial District of the State of Utah, Hon. A. B. Morgan Judge, to compel the reinstatement of a dismissed appeal from a conviction before a justice of the peace.
    
      Wbit issue».
    
      O. M. Beck and Geo. B. Hancock for plaintiff.
    
      Grant G. Bagley and J. H. McDonald for defendant.
   STRAUP, j:

On plaintiff’s application we granted an alternative writ of mandate directing tbe judge of tbe Fourth judicial district to reinstate a case dismissed by him, or to show cause. Upon service of tbe writ, tbe judge answered and attempted to justify tbe dismissal.

Tbe plaintiff, on tbe 5th of June, 1913, in a justice court, on a criminal charge was convicted in a case wherein be was tbe defendant and tbe State of Utah tbe plaintiff, and on tbe 7th of June was adjudged to pay a fine of $299. From that judgment be prosecuted an appeal to tbe district court. On that day be filed a proper notice of appeal in due form with tbe justice. A copy thereof was delivered to the sheriff of tbe county for service on tbe county attorney; tbe attorney representing tbe state. Tbe sheriff delivered tbe copy to tbe county attorney on tbe 10th of June. On tbe 7th tbe defendant filed with tbe justice an undertaking on appeal, which was approved by tbe justice. Tbe justice, at tbe request of the county attorney, transmitted a transcript of tbe record to tbe district court. Tbe case was docketed in tbe district court and placed on'the calendar, and tbe defendant ordered to appear for arraignment on tbe 2d of July. Before be was arraigned, be, on that day, served on tbe county attorney a new notice of appeal in due form, service of which was accepted by the county attorney, and filed it in tbe district court. Tbe defendant was thereupon arraigned on that day and entered bis plea of not guilty. .The case was set for trial on tbe 9th of July. On the 8th the county attorney moved a dismissal of tbe appeal on tbe grounds that tbe notice of appeal was not served on tbe county attorney “as required by law;” that tbe transcript of tbe record transmitted to tbe district court did not show that tbe first or any notice was served on the county attorney; that the second notice was uncertain and ambiguous; and that no undertaking on appeal was filed when the second notice.was served and filed. No claim is made that a proper undertaking was not filed when the first notice was filed and served. The defendant asked time to make a record in the justice court showing that the first notice was in fact served on the county attorney, and leave to have such additional record transmitted to the district court. That was granted. He thereupon, by affidavits filed in the justice court, showed that the county attorney was served by the sheriff with the first notice on the 10th of June. The justice transmitted such additional record and proof of the district court on the 14th of July. The defendant also made it appear in the justice court that the county attorney was served with a notice of appeal on the 2d of July, and had such record and proof also transmitted to the district court. A hearing on the motion was set for the 15th of July. The motion was partly heard on that day and continued from time to time until the 6th of October, when it was further heard and then granted, and the appeal dismissed, on the grounds stated in the motion.

The statute gave the defendant the right of an appeal from the justice court to the district court “at any time within thirty days from the time of the rendition of the judgment.” The statute further provides that the “notice of appeal shall be filed with the justice and a copy thereof shall be served on the county attorney.” A proper notice of appeal, in due form, was filed with the justice on the same day the judgment was rendered. A copy thereof was served on the county attorney three days thereafter. The record, as first transmitted to the district court, did not show service of the notice on the county attorney. The defendant, however, made proof in the justice court that the notice was in fact served on the county attorney by the sheriff on the 10th of June, three days after the rendition of the judgment, and caused such proof and additional record to be transmitted to the district court. Nowhere is the fact disputed that the county attorney was so served. He but in effect asserted: “Show my indorsement of acceptance of service on tbe original notice.” Tbe district court, looting at tbe notice, finding no sucb indorsement, and wholly disregarding tbe proof of service as made by tbe defendant in tbe justice court and transmitted to tbe district court, dismissed tbe appeal. Tbat is all there is to this matter. Of course tbe court could not legally deprive tbe right of an appeal in any such manner as tbat. Tbe dismissal was wholly unauthorized.

Let a permanent writ issue directing tbe court below forthwith to vacate the order dismissing tbe appeal, to reinstate tbe case, set it for trial, and bear it on tbe merits. Sucb is tbe order. No costs.

McCNRTY, C. J., and FEIGN, L, concur. .  