Hume v. Small Claims Court of Murray City

590 P.2d 309, 1979 Utah LEXIS 793

• Court: Utah Supreme Court
• Decided: January 10, 1979
• Docket: 15634
• Status: Published

Opinions

WILKINS, Justice:

This is an appeal from a judgment entered by the District Court for Salt Lake County denying petitioner a writ of mandamus and involves procedural issues arising from an attempt to appeal from a judgment entered by a small claims court to the District Court under the provisions of Section 78-6-10. All statutory references are to Utah Code Ann., 1953, as amended. References to Rules are to Utah Rules of Civil Procedure.

On May 2, 1977 judgment was entered against petitioner, as defendant, in an action in the Small Claims Court of Murray City, State of Utah, respondent herein, after a trial held on April 21, 1977. Petitioner’s counsel learned of the judgment on July 1, 1977, and filed notice of appeal in that Court on July 7,1977, within five court days of the time she, counsel, first learned of the judgment.¹ The Small Claims Court refused to transfer the case to the District Court, and sent petitioner notice that her appeal was not timely filed. Petitioner, asserting that she had not received notice of this judgment, and contending that the time did not begin to run until she had received notice, filed her petition for writ of mandamus in the District Court for Salt Lake County to compel respondent to transfer the case. A hearing on said petition was held on September 12, 1977, at which time petitioner testified that she had never received notice. Neither the record nor the transcript of that hearing reveals that respondent either rebutted this testimony or offered evidence that notice had been given.

The District Court denied the petition on the ground that the appeal was not timely, and petitioner moved to alter or amend this judgment under Rule 59(e) (the purpose of which was to reverse the District Court’s denial of subject petition), citing as ground therefor, insufficiency of the evidence to support the judgment, and error of law. This motion was denied on the ground that it was not proper procedure, and petitioner appeals therefrom.

The first issue presented is whether petitioner’s motion to alter or amend the judgment under Rule 59(e) was properly taken.

Rule 59(e) provides:

A motion to alter or amend the judgment shall be served not later than ten days after the entry of the judgment.

Defendant argues that this rule cannot be used for the purpose of reversing a judgment or rehearing the arguments. Defendant’s argument is without merit, however. Under Rule 59 a party may move for a new trial upon any of the grounds stated therein. Where there is no jury, however, the Court, rather than granting a full new trial, may, under Rule 59(a)

. open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions and direct the entry of a new judgment . [Emphasis added.]

Subdivision (e) of Rule 59 provides a time limitation for this type of motion, which is directed to the Court for rehearing of its own judgment.² Such motions must be based on one or more of the grounds set forth in subdivision (a). Here, petitioner alleged two of those grounds and the District Court erred in denying the motion on the ground that the procedure was improper, rather than ruling on the merits.

Defendant asserts that the above issue is the only one before this Court, and that petitioner may not argue the merits of her petition for writ of mandamus, or the judgment denying the petition. A timely motion under Rule 59 terminates the running of the time for appeal of a judgment. Time for appeal does not begin to run again until the order granting or denying such a motion is entered. The effect of denying such a motion is to reinstate the original judgment, and a timely appeal taken therefrom is in reality an appeal from that original judgment.³ This court will therefore consider the arguments raised by petitioner on this matter.

Does the time for appeal from the Small Claims Court, a department of a City Court,⁴ begin to run from the time judgment is entered in the docket, or only after notice to the judgment debtor?

Section 78-6-10 provides in pertinent part:

. If the defendant is dissatisfied, he may, within five days from the entry of said judgment against him, appeal to the district court of the county in which said court is held .

Rule 73(h), however, provides:

An appeal may be taken to the district court from a final judgment rendered in a city or justice court within one month after notice of the entry of such judgment, or within such shorter time as may be provided by law.

This Court, in Larson Ford Sales, Inc. v. Silver, Utah, 551 P.2d 233 (1976), held that the shorter time for appeal provided in Section 78-6-10 is not unconstitutional as a violation of equal protection, but we have never considered the question whether notice must be given of a Small Claims Court judgment before the time to appeal begins to run.

In Buckner v. Main Realty and Insurance Co., 4 Utah 2d 124, 288 P.2d 786 (1955), this Court held that an appeal from a default judgment entered in a City Court runs from notice of the entry of judgment under Rule 73(h) even though Rules 5(a) and 55(a)(2) provide that no notice need be served on a party in default. In that case, this Court said:

. a party in default has a greater interest in receiving formal notice that a judgment has been taken against him than has a party who appeared and who may well have been present at the time of the rendition of such judgment; and if the rule was designed to protect rights on appeal, it is most effective where the party is otherwise unlikely to receive actual notice, [at 288 P.2d 787.]

Similarly, where a defendant has only five days to appeal, it is particularly important, and due process requires, that notice of the judgment be given to defendant or his right to appeal is abridged severely. Despite the fact that Section 78-6-10 does not provide that notice must be given a defendant in a Small Claims Court, we hold that Rule 73(h) applies to procedure in that Court as in other City Courts, and the time for appeal from that Court commences from notice of judgment.

Finally, petitioner argues that there was insufficient (or no) evidence to establish that notice of the judgment was sent to petitioner.

As noted, supra, neither the record nor the transcript of the hearing reveals that respondent offered evidence that notice had been sent to petitioner, though petitioner, in her brief, states that respondent produced a copy of a letter that it claimed it had mailed to petitioner giving notice of the entry of judgment. However, petitioner in no way concedes defeat thereby, but alleges that there was no proof of the mailing of the letter.

As the record before us has no evidence concerning this critical point of notice of judgment (and proof of mailing thereof), the District Court’s order denying petitioner’s writ of mandamus is reversed and this matter is remanded for purposes of hearing petitioner’s appeal. No costs awarded.

MAUGHAN and HALL, JJ., concur. CROCKETT, J., concurs in result.

1 . See Section 78-6-10, which allows a defendant five days in which to appeal judgment of a small claims court and Rule 6 which provides that where a prescribed period is less than seven days, intermediate Sundays, Saturdays and legal holidays are excluded in the computation.

2 .See Woodham v. American Cystoscope Co. of Pelham, N.Y., 335 F.2d 551 (C.A. 5th, 1964); Dove v. Codesco, 569 F.2d 807 (C.A. 4th, 1978); Richerson v. Jones, 572 F.2d 89 (C.A. 3rd, 1978); Gainey v. Brotherhood of Ry. & Steamship Clerks, 303 F.2d 716 (C.A. 3rd, 1962).

4 . Section 78-6-1.