Isaacson v. Dorius

669 P.2d 849, 1983 Utah LEXIS 1131

• Court: Utah Supreme Court
• Decided: August 17, 1983
• Docket: 18166
• Status: Published

Opinions

HALL, Chief Justice:

From a judgment holding the defendant Clair Dorius solely responsible for damages resulting from an automobile collision near Fayette, Utah, he appeals to this Court, contending it was error to take the case from the jury as a matter of law.

We need not discuss in any detail the facts that form the basis for the appeal, since the appeal in this case was untimely, as evidenced by the following. The judgment was filed in the Register of Actions on September 8, 1981, followed by a timely motion for a new trial filed by defendant on September 16, 1981. The hearing on the motion was set on November 12, 1981, evidenced by a minute entry that noted a denial of the motion. The following day, November 13, 1981, the denial was formalized by the trial court and filed that same day in the Register of Actions.

Under Rule 73(a), Utah Rules of Civil Procedure, the notice of appeal should have been filed within one month of November 13, 1981, the date of the denial of the motion for new trial as reflected in the Register of Actions. The last day to file such notice of appeal would have been December 13,1981, but for the fact that such date fell on a Sunday, which extended the time for filing the notice of appeal to Monday, December 14,1981. The notice of appeal actually was filed on December 16, 1981, which was two days beyond the time within which the appeal must have been perfected to invest this Court with jurisdiction to review and determine the matter on appeal.

Respondents filed a motion to dismiss the appeal in this Court for the above reasons, which motion was denied by this Court on January 18,1982. The denial of the motion was without prejudice to the right to raise the issue again in briefs and on appeal, as will appear in an entry of said date in the Minute Book of this Court. Consonant with the permission to raise the issue on the main appeal, the respondents have done so.

Appellant claims that the notice of appeal was filed timely, basing his contention on a certificate of mailing attached to the notice of appeal, dated December 10, 1981. The certificate shows that a copy of the notice of appeal was mailed to counsel for respondents — not to the Clerk of the Court. There is nothing whatsoever in the record that shows there was any mailing of a notice of appeal to the Clerk.¹ The record does reflect, as evidenced by the official stamp of the Clerk, that a copy of the notice of appeal was filed with the Clerk on December 16, 1981. That date was two days beyond the one-month limitation for filing interdicted by Rule 73(a), which deprives this Court of appellate jurisdiction.

The permission granted by the Court to present written and oral argument on the jurisdictional issue was prompted by the novelty of appellant’s claim of timely filing of appeal, i.e., that “mailing” of the notice of appeal was in itself a “filing” of the notice of appeal under the provisions of U.C.A., 1953, § 63-37-1, which reads in part as follows:

Any report, claim, tax return, statement or other document or any payment required or authorized to be filed or made to the state of Utah, or to any political subdivision thereof which is:

(1) Transmitted through the United States mail, shall be deemed filed or made and received by the state or political subdivisions on the date shown by the post-office cancellation mark stamped upon the envelope or other appropriate wrapper containing it. [Emphasis added.]

Appellant concedes the novelty of his contention, and cites no case law in support thereof from this state or any other. His only reliance is upon a group of decisions from four inferior federal courts, which upon examination, appear to be inappropriate to the issue presented, that of mailing being a substitute for a physical filing with the Court.

Appellant’s contention is rejected, not only because of the absence of authority to support it, but also because the language of the legislation relied upon, arguendo its applicability, does not respond to the facts and circumstances of this case.

Rule 73(a) itself provides the only exception to the strict jurisdictional requirement of filing a notice of appeal within one month after judgment:

The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the date of the entry in the Register of Actions of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50(b), or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59.

Had those exercising the broad rule-making powers of this Court² seen fit to do so, they could have added the further exception endowing the “mailing” of a notice of appeal with the same stature as the “filing” of a notice of appeal as required under Rule 73(a).

Appellant’s contention is further answered by the language employed in the legislation upon which he relies. Under the accepted principle of ejusdem generis,³ the legislation is without application where the words used, such as “reports” and “tax returns,” have little or no affinity with “notice of appeal.” The latter is a term for a judicial procedure, that when effective, controls the very functioning of the judiciary, and also the crucial question of determining the jurisdiction necessary to guarantee one’s constitutional right to appeal. Section 63-37-1 has no such connotation.

To decide that “mailing” constitutes the “filing” of a notice of appeal does not but suggest the chaos of judicial appellate procedure where the notice becomes “lost in the mail” or is inordinately detained, as is not infrequently the case.

The appeal is dismissed for lack of jurisdiction. Costs to respondents.

OAKS and DURHAM, JJ., concur.

1 . The dissents assume facts not in the record in reaching a contrary conclusion.

2 . U.C.A., 1953, § 78-2 — 4.

3 . For this Court’s most recent discussion of that principle, see In the Matter of the Disconnection of Certain Territory From Highland City, Utah, 668 P.2d 544 (1983).