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The foregoing is the substance of the statement upon which error is assigned. The appeal to this court is from the order of dismissal. Sutherland & McBride, for the appellant.

M. M. Kaighn, for the respondent.

EMERSON, J. While the statement does not disclose the fact, yet it was understood upon the argument, and the court is otherwise aware of the fact, that it is customary with the clerks of the district court, in appeal cases from justices' courts, to demand from the appellant the payment of $5 as a deposit for his costs before they will indorse the filing on the papers sent up by the justice and docket the case. It was for the neglect, on the part of the appellant, to pay this sum, that the appeal in this case was dismissed.

There is no law authorizing the clerk to make or insist upon this demand. In civil actions he is directed to "require the party commencing the suit to pay in advance or secure by bond with security the payment of the probable amounts of the costs of said suit: C. L., sec. 2378. This provision evidently refers to suits commenced in the district court and cannot be made to apply to cases brought into this court by appeal from the justices' courts. And there is a very good reason why it should not. By sec. 582 of the practice act, before an appeal from a justice's court can be effectual for any purpose, the appellant must file an undertaking, with sureties, that he will pay all the costs on the appeal. This must refer to the costs in the district court, for he is required to pay the costs of the justice's court on taking the appeal. The clerk's costs in these cases are secured by the undertaking on appeal, and he has no right or authority to demand the payment of them, or any portion of them, in advance, in addition to the security the statute affords him.

The standing rule or order of the district court, quoted in the statement, does not, in terms, nor by any just legal intendment, refer to the payment of this sum demanded by the clerk. It refers to the perfecting of the appeal. All that the law requires of an appellant in order to perfect his appeal is to file and serve his notice of appeal, file the undertaking required, and make payment of the costs in the justice's court, and the costs of the transcript. He has nothing more to do, and having done this, under our statute, his right to a trial in the district court is as absolute as though he had commenced the case in that court. When the appellant has complied with the statutory requirements, it then becomes the duty of the justice to transmit the papers to the clerk of the district court, and when they are received by him, they are filed, whether he ever indorse the filing of them or not. "A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file:" Bouv. Law Dict., title File.

We do not propose to discuss the power of the district court to make rules for its government. It is not necessary for the decision of this case. It is proper, however, to state that no court can by a rule deprive a party of a right which is given to him by a statute.

The ground upon which the order of dismissal seems to have been made in the court below was a want of diligence in perfecting the appeal. The record discloses that before the motion was set to be heard, and months before it was finally heard, the appellant complied with the illegal demand made upon him, and at the hearing announced himself ready to proceed to a trial. This being the case even under the construction given to the standing rule, or order of the court, by the respondent, the motion should have been denied. The decision of this court, however, is placed upon the ground, that the appellant having fulfilled all the requirements of the law, in order to perfect his appeal, his right to a trial in the district court, so far at least as concerns this motion, had become absolute, a right given by the statute of which he could not be deprived by a rule of court, much less by a custom of its clerk, requiring him to do something in relation to his appeal which the law does not enjoin upon him, as a condition precedent to his right to a trial. I know of no grounds upon which an appeal from a judgment in a justice's court can be dismissed by the district courts, except where there exists such an informality and disregard of the manner and form prescribed by the statute for taking and perfecting it, as render it ineffectual; in other words, no appeal.

The judgment of dismissal of the lower court is reversed and the cause remanded.

HUNTER, C. J., and TwIss, J., concurred..

CRISMON, Collector, Etc., v. TUFTS ET AL.

Filed February 24, 1883.

ACTION IN JUSTICE'S COURT INVOLVING VALIDITY OF TAX, CERTIFICATION OF TO DISTRICT COURT. A justice's court has no jurisdiction of an action involving a question as to the validity of a tax. Sec. 537 of the practice act, so far as it provides that such action shall be certified to the probate court for trial, is void, for the reason that the legislature could not confer such jurisdiction on the probate covrt. The justice's court having no jurisdiction to try such action, and there being no law authorizing its transfer to another court, the justice should dismiss the same. He cannot certify it to the district court for trial.

APPEAL from a judgment of the third district court, entered in favor of the defendants. The opinion states the facts.

Zerubbabel Snow, for the appellant.

J. E. Rawlins, for the respondents.

EMERSON, J. The appellant is collector of taxes for Salt Lake county, and brought suit in a justice court against the defendants to recover the taxes assessed against them for the year 1875, 1876 and 1877. The defendant demurred and answered. The demurrer was overruled by the justice and is in no way involved in this appeal. The answer puts in issue the validity of the tax for each year named.

Upon the filing of the answer, the justice, at the request of the appellant's attorney, certified the case to the district court for trial. In the district court the respondents, appearing for that purpose only, moved to dismiss the case on the ground: First, that the court had no jurisdiction over the subject-matter of this action or of the parties hereto; second, that the justice had no power to certify the case to this court. This motion was sustained and the case dismissed, which is the only matter assigned as error here.

Sec. 537 of the practice act, relating to proceedings in justices' courts, provides that "the parties shall not be at liberty to give evidence upon any question ** involving the legality of any tax; * * nor shall any issue presenting such question be tried by the justice; and if it appear from the plaintiff's own showing, on the trial, or from the answer of the defendant verified by his oath, that the determination of the action will necessarily involve either of such questions, the justice shall suspend all further proceedings in the action, and certify the pleadings, or if the pleadings be oral, a transcript of the same from his docket to the probate court for the county, and from the time of filing such proceedings or transcript with the clerk of the probate court, such probate court shall have over the action the same jurisdiction as if it were originally commenced therein.” The legislature could not confer this jurisdiction upon the probate courts. This question has been set at rest by repeated decisions. That portion of the above section which provides that the justice shall certify certain causes to the probate court, and giving that court jurisdiction over them, is null and void. This, however, does not affect that portion of the section which, in express terms and unqualifiedly, forbids the justice from trying any such issues as are raised by the pleadings in this case: Lyman v. Martin, 2 Utah, 136.

The authority of a justice of the peace to certify any case to a higher court, or any other court, must be found in some provision of the law, or it does not exist. The only authority of this kind ever attempted to be given in this territory is found in the void provision above referred to. Sec. 3 of an act of congress, in relation to courts and judicial officers in this territory, simply changed the forum from which an appeal from a final judgment in a justice's court might be taken. Certifying a case to another court is not a final judgment from which an appeal can be taken. No attempt was made to appeal from the order of the justice in this case. The order certifying the case was not equivalent to or in the nature of an appeal. There being no law in this territory authorizing such a proceeding, a justice of the peace, finding himself without jurisdiction, cannot transfer the cause and the parties to it into the district court, as that is not a method which the law recognizes, by which the latter court may acquire jurisdiction.

When the sworn answer was filed in the justice's court, raising issues which that court was, by express provision of the statute, forbidden to try, or receive any evidence upon, he should have dis

missed the case, as he would in any other case when he finds he has no jurisdiction.

If inconvenience and delay will result from this holding, as is argued by counsel, relief must be sought from the legislature, and not from the courts.

The judgment of the court below is affirmed.
HUNTER, C. J., and Twiss, J., concurred.

REICH V. REBELLION SILVER MINING Co. ET AL.

Filed February 24, 1883.

A PLAINTIFF IS NOT ENTITLED TO JUDGMENT UPON THE PLEADINGS, when any of the material allegations of the complaint are denied by the answer.

ACTION TO ENFORCE A TRUST, NECESSARY PARTIES TO.-Where the owners of several mining claims enter into an agreement for the consolidation of their respective claims and the formation of a corporation to which such claims are to be deeded, the stock of which is to be divided among them in certain proportions, in an action by one owner to enforce the delivery of the stock to which he is entitled, or for an accounting of the same, the corporation formed in pursuance of such agreement is properly joined as a defendant.

FINDING OF FACT, WHEN ESSENTIAL.-Under sec. 180 of the practice act in trials of issues of fact by the court, written findings of fact and conclusions of law, separately stated, must be made and filed before any judgment can be entered. Such findings are the foundation for the judgment, and are as necessary to precede it as a verdict in case of trial by a jury. In the absence of findings there is no presumption that the judgment is sustained by the evidence, when the issues are tried by the court.

APPEAL from a judgment of the district court, entered in favor of the defendants. The opinion states the facts.

Arthur Brown, for the appellant.

Woods & Hoffman, for the respondents.

EMERSON, J. In this complaint the plaintiff alleges in substance, that he was the owner of undivided feet in one of a number of mining claims, which the owners were desirous of consolidating in a corporation, and which were deeded to and formed the capital stock of the defendant corporation; that before, and in order to facilitate the organization of the company, he joined with others and deeded his interest to defendant Shields, in trust that he should deed the same to the corporation when formed, and should take the number of shares to which each was entitled in the name of each individual owner, according to their respective interests; that said Shields did. deed to the defendant corporation, after its organization; that at the time of the incorporation of the defendant company, the terms of the trust deed to Shields were known to the incorporators; and then sets out the number of shares the owners of each set of mining claims, there being two groups of them, were to have, and which is not material to mention here; and then alleges that in the articles. of incorporation no shares were allotted to him; that since the incorporation he has received seven hundred and fifty shares; that after taking out ten per cent. of the number of shares for working capital, according to agreement, he is yet entitled to a large number of shares; that he has demanded of the president of the corporation

to be informed as to the division of the shares of said corporation; that the information has been denied him; that a great proportion of the shares of the corporation have not yet been issued, but remain in the office of the defendant corporation unissued; and prays that defendant may disclose and discover what consideration certain persons named, who were the other owners in the group of claims in which the plaintiff was interested, paid for the shares of stock assigned them, and how many feet were owned by each in any of the mines so incorporated; that defendant may be compelled to issue to him 1,950 shares of its stock; or, in case of their inability, in consequence of sale or disposal, that plaintiff be allowed compensation for the same; and that defendant may be enjoined from selling, disposing or issuing any further shares of stock until the further order of the court.

The defendant corporation demurrred and answered at the same time. The demurrer was general, that as to that defendant it did not state facts sufficient to constitute a cause of action. The defendant

Shields filed a separate answer. It is unnecessary to set out the answer. It is sufficient to say that in our judgment, each contained denials of at least some of the material allegations of the complaint. The demurrer of the defendant corporation was sustained, yet the record discloses that the parties proceeded to a trial upon the complaint and answer as though there had been no demurrer. The issues were tried by the court, and without making or filing any findings of fact and conclusions of law; judgment was rendered for the defendant; and the plaintiff brings this appeal, alleging as error the sustaining of the demurrer, rendering judgment without findings, and claims that he should have judgment upon the pleadings. As to the latter, it is sufficient to say that material issues were raised by the answer, and hence he is not entitled to judgment on the pleadings.

The demurrer was improperly sustained. The complaint, especially in view of the relief asked, sets out a case with a sufficient degree of certainty to enable the defendants to know the precise grounds upon which it is asked, and states a case in which the corporation is a necessary party defendant. The shares of stock which the plaintiff claims he is entitled to are alleged to be in its possession, and he asks it to account to him for them and to be enjoined from issuing and disposing of them. The court by any order it might make could not reach the unissued shares of stock, except by making the corporation a party. If the appellant sustained by sufficient proof the allegations of his complaint, he is entitled to the relief asked. In the case made by the complaint the corporation and Shields are properly joined as defendants. Under the 180th section of the practice act, in trials of issues of fact by the court, written findings of fact and conclusions of law, separately stated, must be made and filed before any judgment can be entered. They are the foundations for the judgments, and are as necessary to precede any judgment as a verdict in case of trial by jury. Under our statute

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