Marsh v. Utah Homes, Inc.

408 P.2d 906, 17 Utah 2d 248, 1965 Utah LEXIS 497

• Court: Utah Supreme Court
• Decided: December 13, 1965
• Docket: 10370
• Status: Published

Opinions

CALLISTER, Justice.

Plaintiff was granted a judgment against defendant by the Ogden City Court. The defendant sought an appeal to the District Court. The latter court, upon proper motion of plaintiff, dismissed the appeal for failure of defendant to deposit the required fees. Defendant appeals from this order of dismissal.

The judgment of the city court was signed by the judge on December 9, 1964, .and a copy thereof mailed to defendant’s .attorney the same day. However, the clerk of the court did not enter the judgment until the following day. On January 7, 1965, defendant filed its notice of appeal, but did not deposit the required fees at the same time. The fees, together with an undertaking for costs, were deposited later, but after ■more than one month from the entry of judgment had elapsed.

The main question presented is whether the payment of the fees for docketing the appeal in the District Court is jurisdictional. This was answered in the affirmative by this court in Bish’s Sheet Metal Co. v. Luras¹ wherein it was stated:

It [was] apparent that Rule 73(h), U.R.C.P. provides that an appeal must be taken within one month after notice of entry of judgment and the appellant must serve and file a notice of appeal upon the adverse party. It is equally clear by the provisions of Rule 73(l), U.R.C.P., that the filing of the notice of the appeal and the payment of the fees therefor within the time allowed are the only requirements necessary for the court to have jurisdiction. * * * (Emphasis added.)

Defendant argues, however, that the fees were timely paid because the time for appeal had not commenced running for the reason that it never received notice of the entry of the judgment. Its position is that the copy of the signed judgment which plaintiff mailed to defendant the day before it was entered did not constitute a “notice of entry of judgment” as provided in Rule 73(h). Under the circumstances of this case, we hold otherwise.

First of all, the receipt of a copy of a judgment signed by the court should alert the recipient that it had either been entered or that its entry was imminent. Proper inquiry could have disclosed the actual fact. Certainly, defendant was not misled, for .it filed its notice of appeal within one month after entry of judgment.

Affirmed. Costs to plaintiff.

HENRIOD, C. J., and WADE, J., concur.

1 . 11 Utah 2d 357, 359 P.2d 21 (1961).