(dissenting).
I dissent. The difficulty I see with this case is that on the one hand it allows the plaintiff the advantage of liberality in procedure for his actions and on the other, imposes a very strict standard of compliance upon the defendant. Rule 73(h) provides that “An appeal may be taken to the District Court * * * within one month after notice of the entry of such judgment.” It is significant that here there had been no exact fulfillment of the requirement of giving “notice of the entry of such judgment” by the plaintiff. A day before the judgment was entered, plaintiff caused a carbon copy of a proposed judgment, purportedly signed by the judge, but actually signed by himself, to be mailed to the defendant. On his behalf he claims that this is substantial compliance; that it actually informed the defendant; and that no one was hurt or misled. It seems to me that if this liberal view is indulged in his behalf, fairness requires that similar liberality be indulged in behalf of the defendant.
Defendant filed his notice of appeal on time which invoked the jurisdiction of the District Court and which this court has held to be the jurisdictional requirement. See Penman v. Eimco Corp., 114 Utah 16, 196 P.2d 984; also the later case of Buckner v. Main Realty and Insurance Co., 4 Utah 2d 124, 288 P.2d 786, which indicates that Rule 73(h) was not intended to change the procedure governing appeals from city courts as it existed under former statutes. No one will dispute that the failure to pay the proper fee until a few days later was a. defect in procedure. However, just as is-said in regard to the plaintiff’s failure to strictly comply, no one was hurt or misled.. Particularly, the plaintiff was not in anyway adversely affected.
It would be less than candid not to-acknowledge that if we apply the rule in the strictest literalness there is a difficulty with my position. This is pointed up by the language quoted in the. main opinion from the case of Bish’s Sheet Metal Co. v. Luras. However, I think that case is distinguishable and not controlling here. It will be-noted that the actual holding in the case was that the appeal to the District Court was valid, and that it had jurisdiction. This-court affirmed the judgment, and the recital! quoted was but obiter dicta in the decision..
I am both aware of and committed to the-advisability generally of orderliness of procedure by adhering to rules. Nevertheless,, it seems to me that it is often a mistake to-attempt to see all of the law in the strict and literal application of one single statute,, particularly where it results in depriving; *251a party of a legal right or an opportunity to have it adjudicated, whereas, following other provisions of the law would avoid ■such an arbitrary result. While the instant case may not be of great importance in itself, the ruling becomes our established de-cisional law and it may result in serious injustice in some cases where through some inadvertence or happenstance the payment of fees or the posting of a bond may not ■coincide exactly with the filing of a notice ■of appeal.
One of the purposes of the adoption of ■our new Rules of Civil Procedure was to ■eliminate rigidities which had become en-■grafted into procedure and to provide some degree of liberality where that is necessary ■to effectuate justice. See statement in Morris v. Russell, 120 Utah 545, 236 P.2d 451, 26 A.L.R.2d 947. It is also provided in Sec. 68-3-2, U.C.A.1953, that “the statutes •of this state * * * and all proceedings under them are to be liberally construed ■with a view to effect the objects of the ■statutes and to promote justice.” In accordance with this liberal view I would ■prefer to adhere to the doctrine of the case •of Penman v. Eimco, supra, and allow the defendant its appeal. Cf. statement re payment of fees in Foley v. Foley, 147 Cal.App.2d 76, 304 P.2d 719.
McDONOUGH, J., concurs in the dis-. senting opinion of CROCKETT, J.