State v. Hendriksen

I concur since I am of the opinion that Article VIII, Section 9 of the Utah State Constitution applies to or should apply to cases that are heard on the merits by the district court, as inState v. Sheldon,¹ cited in the dissent, that involved a trial de novo, as distinguished from a case that is rejected, before and irrespective of any hearing, strictly on jurisdictional grounds, as was the case in Sullivan v. DistrictCourt,² which enunciated the principle that under then existing statutes,³ two processes were necessary to confer jurisdiction on the District Court, irrespective of its authority to adjudicate the case on its merits. These two processes were: 1) Filing notice of appeal with the Justice or City Court, as the case might be, and 2) serving a copy thereof on the prosecutor (adverse party).⁴ But the Sullivan case is not this case. This case has the element of waiver of service of the notice of appeal on the prosecutor. The waiver that prevents the invocation of jurisdictional absolutism, conclusively seems to have been demonstrated in the instant case, since the prosecutor showed up at the date and time for the arraignment hearing, — and it would be completely unrealistic to believe that there had been no waiver of the service of the notice of appeal. Such waiver relieves No. 2) above from the jurisdictional aspect of this case, reserving only No. 1), — the filing of the notice of appeal within 30 days as the only impediment to assumption of jurisdiction, — which notice of appeal concededly and timely was filed here.

Under such circumstances there appears to have been no legitimate reason to have denied the appellant access to the office of the District Court, — and having denied him that right and as corollary thereto, it was not the appellant who should have been bound and frustrated by the Constitution but the Judiciary that denied him a right he had and which the Judiciary assumed he did not possess. All of which: In my opinion, should require us to concur in the mandate of the majority opinion's remand.

¹ This Court, 545 P.2d 513 (Utah 1976).

² 65 Utah 400, 237 P. 516 (1925).

³ Comp. Laws 1917, Sections 9467 et seq., like the present code provisions.

⁴ Unlike ordinary rules making, for example, the date of filing of the notice of appeal jurisdictional, but that of the designation of record, for instance, discretionarily forgivable.