HUNTLEY, Justice.
This appeal challenges the constitutionality of that aspect of the Idaho small claims system which requires procurement of a bond to secure payment of judgment, attorney fees and costs before an appeal may be taken from a small claims judgment. Also at issue is the constitutionality of present procedures permitting execution on small claims judgments before an appeal has been taken or the time for taking it has expired. It is argued that, given the small claims [825]*825system as it now exists, the denial of right to counsel to the litigants violates due process.
Appellant’s claim for relief in the present action arose from a separate, earlier small claims action in which her landlord obtained a judgment against her for $199.00. A writ of execution was issued the day following entry of judgment.1 She appealed the small claims judgment to the district court, and at the same time brought a separate action in district court seeking declaratory and injunctive relief from the effects of small claims court procedures which allow execution on judgments before the time for appeal has expired, and from the pre-appeal bond requirements. Appellant contended the execution procedure and the requirements of I.R.C.P. 81(7) and I.C. §§ 1-2311 —2313, which condition a right to appeal on payment of fees and a bond, were an unconstitutional taking of property without due process.
Several months after commencement of the present action, appellant filed motions in the small claims action for a stay of execution of judgment and for return of her appeal bond. Both motions were granted, the district court holding that the bond requirement of I.R.C.P. 81(7) was unconstitutional, and that execution of judgment should be stayed long enough to guarantee the defendant an effective right to appeal. Appellant nevertheless continued in the present action, seeking a declaration that the statutory and rules provisions in question are unconstitutional.
Before we reach the constitutional issues, there are several procedural issues which require brief discussion. Appellant filed her complaint as a class action, on behalf of all persons required to pay appeal bonds for small claims court appeals, and all persons upon whose property execution was made before they had their full opportunity for appeal. Respondents contend that the matter is moot, and such was the basis for the district court dismissal of the action. They point to appellant’s motion in the small claims action whereby she received her bond back and execution was stayed. Since the matter was moot as to appellant, they argue, she had no standing to bring the class action.
Appellant obtained only partial relief, however. Although the bond was returned, she was deprived of the use of that money pending the court’s ruling on her motion. In addition, only the supersedeas bond ($199.00) was returned; the “jurisdictional” bond — the $50.00 costs and $25.00 attorney fees — was not. Finally, the judgment of the district court in the small claims appeal did not address all of the issues, and to the same extent, as they are set out in appellant’s complaint in the declaratory judgment action, and on appeal. There was no mention made of I.C. §§ 1-2311 — 2313 in that judgment. Thus, appellant’s partial relief in the separate action did not render her case moot.2
Named defendants in the declaratory judgment action were the Canyon County magistrate judges, district court clerk, and trial court administrator. The defendants-respondents, each on his own behalf, allege they are not proper parties, and that they are immune from suit. We are concerned only with declaratory or injunctive relief in this matter and the defense of judicial or quasi-judicial immunity is inapposite. What is sought is a declaration on the constitutionality of certain statutes and rules. We note that appellant is an “interested” person under I.C. § 10-[826]*8261202;3 this case presents a justiciable controversy and is a proper declaratory judgment action. In order for .appellant to obtain the relief she seeks, which is a judgment on the constitutional validity of the small claims court procedures, rules and statutes in question, there need be only one proper party defendant. Since we hold that the clerk of the district court is such a party, we do not need to address the issue of requisite involvement on the part of the magistrates or trial court administrator.
Appellant challenges the constitutionality of Idaho’s small claims court scheme, as set out in Ch. 23, Title 1, Idaho Code, and I.R.C.P. 81. A party in a small claims action may appeal a judgment by filing a notice of appeal within thirty days.4 According to I.R.C.P. 81(m), the party appealing may prevent execution on the judgment against him by filing a bond in the amount of the judgment at the time of filing a notice of appeal.5 However, contrary to the implication of I.R.C.P. 81(m), the bond to secure payment of judgment (supersedeas bond) is not optional (to prevent execution pending appeal) but mandatory. I.C. § 1-2312 provides that the appeal “shall be filed with the magistrate and accompanied by bond, with satisfactory surety, to secure payment of such judgment, costs and attorney fees as provided for in section 1-2311.” The party appealing would have to post the supersedeas bond anyway. Thus, the only effect of I.R.C.P. 81(m) is to suggest that prior to the time a party files his appeal, his property may be executed upon.
In addition to the requirements of I.C. § 1-2312, I.R.C.P. 81(7) mandates what might be called a “jurisdictional” bond:
“Notice of appeal and appeal bond. — Any aggrieved party desiring to appeal the judgment in a small claim proceeding to ■ the district court shall do so by filing a Notice of Appeal with the magistrates division wherein the small claim proceeding was held in the manner, within the time, and in the form provided by law, which notice must be accompanied by a cash bond in the sum of fifty dollars ($50) to secure the payment of costs on appeal and a cash bond in the sum of twenty-five dollars ($25) to secure the payment of attorney fees on appeal. Failure to post the cost bond and attorney fees bond at the time of the filing of the Notice of Appeal shall be jurisdictional and grounds for automatic dismissal of the appeal upon the motion of any party or upon the district court’s own motion.” 6
These three elements of the small claims appeal, the supersedeas bond requirement, the jurisdictional bond requirement, and the allowance of execution on judgments before the time to appeal is up, are unconstitutional, appellant contends.
[827]*827Appellant bases her argument on the following rationale: Idaho law recognizes there is no due process “hearing” if a party is denied representation of counsel; a party is denied counsel in a small claims action but that is constitutionally permissible because there is always an opportunity for a de novo proceeding on appeal to the district court, where counsel may participate; however, any taking of a party’s property prior to the de novo proceeding is a taking without a due process hearing and is therefore unconstitutional; requiring payment of a bond or allowing execution on the judgment before the de novo proceeding is such a taking.
I.C. § 1-2308 prohibits representation by counsel in a small claims action.7
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HUNTLEY, Justice.
This appeal challenges the constitutionality of that aspect of the Idaho small claims system which requires procurement of a bond to secure payment of judgment, attorney fees and costs before an appeal may be taken from a small claims judgment. Also at issue is the constitutionality of present procedures permitting execution on small claims judgments before an appeal has been taken or the time for taking it has expired. It is argued that, given the small claims [825]*825system as it now exists, the denial of right to counsel to the litigants violates due process.
Appellant’s claim for relief in the present action arose from a separate, earlier small claims action in which her landlord obtained a judgment against her for $199.00. A writ of execution was issued the day following entry of judgment.1 She appealed the small claims judgment to the district court, and at the same time brought a separate action in district court seeking declaratory and injunctive relief from the effects of small claims court procedures which allow execution on judgments before the time for appeal has expired, and from the pre-appeal bond requirements. Appellant contended the execution procedure and the requirements of I.R.C.P. 81(7) and I.C. §§ 1-2311 —2313, which condition a right to appeal on payment of fees and a bond, were an unconstitutional taking of property without due process.
Several months after commencement of the present action, appellant filed motions in the small claims action for a stay of execution of judgment and for return of her appeal bond. Both motions were granted, the district court holding that the bond requirement of I.R.C.P. 81(7) was unconstitutional, and that execution of judgment should be stayed long enough to guarantee the defendant an effective right to appeal. Appellant nevertheless continued in the present action, seeking a declaration that the statutory and rules provisions in question are unconstitutional.
Before we reach the constitutional issues, there are several procedural issues which require brief discussion. Appellant filed her complaint as a class action, on behalf of all persons required to pay appeal bonds for small claims court appeals, and all persons upon whose property execution was made before they had their full opportunity for appeal. Respondents contend that the matter is moot, and such was the basis for the district court dismissal of the action. They point to appellant’s motion in the small claims action whereby she received her bond back and execution was stayed. Since the matter was moot as to appellant, they argue, she had no standing to bring the class action.
Appellant obtained only partial relief, however. Although the bond was returned, she was deprived of the use of that money pending the court’s ruling on her motion. In addition, only the supersedeas bond ($199.00) was returned; the “jurisdictional” bond — the $50.00 costs and $25.00 attorney fees — was not. Finally, the judgment of the district court in the small claims appeal did not address all of the issues, and to the same extent, as they are set out in appellant’s complaint in the declaratory judgment action, and on appeal. There was no mention made of I.C. §§ 1-2311 — 2313 in that judgment. Thus, appellant’s partial relief in the separate action did not render her case moot.2
Named defendants in the declaratory judgment action were the Canyon County magistrate judges, district court clerk, and trial court administrator. The defendants-respondents, each on his own behalf, allege they are not proper parties, and that they are immune from suit. We are concerned only with declaratory or injunctive relief in this matter and the defense of judicial or quasi-judicial immunity is inapposite. What is sought is a declaration on the constitutionality of certain statutes and rules. We note that appellant is an “interested” person under I.C. § 10-[826]*8261202;3 this case presents a justiciable controversy and is a proper declaratory judgment action. In order for .appellant to obtain the relief she seeks, which is a judgment on the constitutional validity of the small claims court procedures, rules and statutes in question, there need be only one proper party defendant. Since we hold that the clerk of the district court is such a party, we do not need to address the issue of requisite involvement on the part of the magistrates or trial court administrator.
Appellant challenges the constitutionality of Idaho’s small claims court scheme, as set out in Ch. 23, Title 1, Idaho Code, and I.R.C.P. 81. A party in a small claims action may appeal a judgment by filing a notice of appeal within thirty days.4 According to I.R.C.P. 81(m), the party appealing may prevent execution on the judgment against him by filing a bond in the amount of the judgment at the time of filing a notice of appeal.5 However, contrary to the implication of I.R.C.P. 81(m), the bond to secure payment of judgment (supersedeas bond) is not optional (to prevent execution pending appeal) but mandatory. I.C. § 1-2312 provides that the appeal “shall be filed with the magistrate and accompanied by bond, with satisfactory surety, to secure payment of such judgment, costs and attorney fees as provided for in section 1-2311.” The party appealing would have to post the supersedeas bond anyway. Thus, the only effect of I.R.C.P. 81(m) is to suggest that prior to the time a party files his appeal, his property may be executed upon.
In addition to the requirements of I.C. § 1-2312, I.R.C.P. 81(7) mandates what might be called a “jurisdictional” bond:
“Notice of appeal and appeal bond. — Any aggrieved party desiring to appeal the judgment in a small claim proceeding to ■ the district court shall do so by filing a Notice of Appeal with the magistrates division wherein the small claim proceeding was held in the manner, within the time, and in the form provided by law, which notice must be accompanied by a cash bond in the sum of fifty dollars ($50) to secure the payment of costs on appeal and a cash bond in the sum of twenty-five dollars ($25) to secure the payment of attorney fees on appeal. Failure to post the cost bond and attorney fees bond at the time of the filing of the Notice of Appeal shall be jurisdictional and grounds for automatic dismissal of the appeal upon the motion of any party or upon the district court’s own motion.” 6
These three elements of the small claims appeal, the supersedeas bond requirement, the jurisdictional bond requirement, and the allowance of execution on judgments before the time to appeal is up, are unconstitutional, appellant contends.
[827]*827Appellant bases her argument on the following rationale: Idaho law recognizes there is no due process “hearing” if a party is denied representation of counsel; a party is denied counsel in a small claims action but that is constitutionally permissible because there is always an opportunity for a de novo proceeding on appeal to the district court, where counsel may participate; however, any taking of a party’s property prior to the de novo proceeding is a taking without a due process hearing and is therefore unconstitutional; requiring payment of a bond or allowing execution on the judgment before the de novo proceeding is such a taking.
I.C. § 1-2308 prohibits representation by counsel in a small claims action.7 It came under constitutional attack in Foster v. Walus, 81 Idaho 452, 347 P.2d 120 (1959). This court noted, quoting from In re Petrie, 40 Wash.2d 809, 246 P.2d 465, 467 (Wash.1952), that “[t]he elements of the constitutional guaranty of due process in its procedural aspect are notice and an opportunity to be heard or defend before a competent tribunal in an orderly proceeding adapted to the nature of the case”; including, the court stated, “the right of representation by counsel.” 81 Idaho at 456, 347 P.2d at 122. The court went on to hold, however, that the constitutional infirmity created by the statutory prohibition of attorneys in small claims court was overcome by the fact that an opportunity for a trial de novo is always available to the litigants. Counsel can appear in the de novo proceeding, and “this satisfies the due process requirement.” Id. 81 Idaho at 459, 347 P.2d at 124.
This court held in Foster, essentially, that a small claims court trial is constitutionally incomplete; it cannot stand on its own. Without the guaranty of a trial de novo, a proceeding in which the litigants are denied counsel is unconstitutional. Until the small claims defendant has had an opportunity to appeal the judgment, due process is not satisfied, and any taking of property is unconstitutional. In this respect, appellant contends, the bond requirement, and the pre-appeal execution on judgments, are not unlike pre-judgment garnishment, which is unconstitutional. See, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). We agree.
Other courts have reached the same result as this court did in Foster: Prudential Ins. Co. of America v. Small Claims Court, 76 Cal.App.2d 379, 173 P.2d 38 (Cal.App.1946); Windholz v. Willis, 1 Kan.App.2d 683, 573 P.2d 1100 (Kan.App.1977); North Central Service v. Hafdahl, 625 P.2d 56 (Mont.1981). Moreover, the California Supreme Court, relying on Prudential, supra, reached a result similar to that which we here reach in Brooks v. Small Claims Court, 8 Cal.3d 661, 105 Cal.Rptr. 785, 504 P.2d 1249 (Cal.1973). There the court held that the requirement of an undertaking in connection with an appeal from a small claims judgment constituted a taking of property prior to a due process hearing with right to counsel, and was unconstitutional as such. Id. 105 Cal.Rptr. at 789, 504 P.2d at 1253.
Accordingly, we hold that to allow execution on a small claims judgment before either an appeal has been made final or the time for filing such appeal has expired is a taking without due process.
It follows that I.R.C.P. 81(m) is superfluous, since we hold there can be no execution pending determination of the appeal to the district court. Because they require that a person be deprived of his property before he has had a full due process hearing, the bond requirements of I.C. §§ 1-2311 and 1-2312, and I.R.C.P. 81(7) [828]*828are unconstitutional. However, the filing fee ($20.00) is de minimus. It is not in the nature of a bond, which anticipates an outcome unfavorable to the party appealing and secures his property to guarantee payment of costs, attorney fees and judgment. It is a non-recoverable fee, waiveable pursuant to I.C. § 31-3220. We therefore decline to extend our holding to the requirement of the filing fee on appeal.
The judgment of the district court is reversed. Parties to bear their own costs.
DONALDSON, C.J., and BISTLINE, J., concur.