
    STEELE & COMPANY v. THIRD DISTRICT COURT et al.
    No. 2367.
    Decided August 6, 1912
    (126 Pac. 321).
    Justices of the Peace — Appeal—Objections to Jurisdiction— Waiver. While a party may waive irregularities in the taking of an appeal and the service of notice by an express or unequivocal act, he does not waive jurisdictional defects on an appeal from justice court by consenting that the case be set for trial after a motion to dismiss the appeal has been overruled.
    
    Original application by Steele arad Company for a writ of prohibition against the Third District Court and another.
    Peremptory writ issued.
    
      George B. Hancock for plaintiff.
    
      Edwards & Ashton for defendants.
    
      
       State v. Peart, 32 Utah, 418, 91 Pac. 133; State v. District Court, 36 Utah, 267, 103 Pac. 261; State v. District Court, 36 Utah, 602, 106 Pac. 106.
    
   ERICK, C. J.

This is an original application to this court for a writ of prohibition, directed to the district court of Salt Lake County, to restrain said court from taking jurisdiction and from trying an action wherein Steelei & Co. is plaintiff and I. C. Moses is defendant, which action was tried in the justice court and appealed to the district court aforesaid.

Upon a very careful examination of the record certified up by the district court, we are unable to distinguish this case from the cases of State v. Peart, 32 Utah, 418, 91 Pac. 133; Statte v. District Court, 36 Utah, 261, 103 Pac. 261; and State v. District Court, 36 Utah, 502, 105 Pac. 105. Counsel for the defendants seek to distinguish this case from the cases just cited, for the alleged reason that after the district court bad overruled tbe motion to dismiss tbe appeal, wbieb was interposed upon tbe grounds that tbe court was without jurisdiction, tbe case, witb tbe consent of counsel for botb sides, was set for trial. In tbe cases cited above, it is squarely beld that tbe defects here complained of were jurisdictional. In view of that fact, tbe court did not acquire jurisdiction of tbe case at bar, simply because tbe case was set for trial by consent of all of tbe parties. By tbis we do not mean to be understood as bolding that a party may not be held to have waived irregularities in taking an appeal, or in having notices served upon him, when it is clearly made to appear that such party, either expressly or by an unequivocal act, has waived such irregularities. The record in tbis case, however, discloses tbe contrary, in that it appears therefrom that tbe plaintiff here always contended that tbe district court was without jurisdiction. Tbe mere fact, therefore, that tbe case was set for trial with tbe consent of counsel after the motion to dismiss was overruled does not necessarily indicate that tbe plaintiff waived anything. Moreover, the rulings of tbe district court in tbis case were all made before the cases we have cited above were decided by this court. If such bad not been tbe case, we think that tbe court would have sustained the motion to dismiss tbe appeal.

We cannot avoid tbe conclusion that tbis case is controlled by tbe cases we have cited above; and for that reason it is hereby ordered that a peremptory writ of prohibition issue in tbis case, directing the district court to dismiss the appeal as prayed for in tbe application. Plaintiff to recover costs against tbe defendant, J. O'. Moses.

McOABTY and STRAUP, JJ% concur.  