I dissent. The petitioner here was convicted in a justice court of a misdemeanor, having intoxicating liquor in his possession. He took an appeal to the *Page 533 district court. The complaint certified up and transmitted to the district court, upon which the petitioner was tried and convicted before the justice, was unsigned, unverified, and not filed in the justice court. It bears a filing mark only of the clerk of the district court, so marked by him when he received the transcript from the justice. When the case was called for trial in the district court the court observed that the complaint was unsigned by any one. Upon counsel for the prosecution stating that there was an original signed complaint before the justice but that the justice evidently had sent up only a copy, and counsel for the defendant stating that there was no other complaint except the unsigned complaint but was willing to go ahead with it, and the justice being present in court, the court suggested that he be called as a witness, which was done. The justice testified in substance that a complaint signed and verified by the sheriff was filed in his court, and that he thought he had transmitted it to the district court, but if he had not done so it was in his office. The court thereupon stated that such showing was sufficient, to which ruling the defendant took an exception. No request was made and no direction given that the original complaint or a copy thereof showing that the complaint was signed, verified, and filed in the justice court be transmitted to the district court. The case proceeded to trial and judgment on the unsigned and unverified complaint so transmitted by the justice to the district court. The verdict was rendered February 2, 1926, finding "the defendant guilty as charged in the complaint," the unsigned complaint.
On February 8, 1926, he filed a motion for a new trial, and for arrest of judgment, upon the ground, among others, "that no complaint required by law was on file or produced at the trial." Thereafter, on February 13, 1926, there was filed with the clerk of the district court a complaint purporting to be signed and verified by the sheriff, but who delivered it to the clerk, or who requested him to file it, or how it came to the clerk's office, is not made to appear. *Page 534 It merely bears the filing mark of the clerk of the district court of date February 13, 1926, eleven days after the petitioner was tried and convicted in the district court, but it does not bear any filing mark in the justice court, and on its face does not appear to have been filed in that court. It is not with nor among the files or records of the justice transmitted by him to the district court, and counsel for both parties assert that they had no knowledge how or by whom it was lodged in the clerk's office, or who requested it to be filed. But it is beyond all doubt that the petitioner was not tried or convicted on that complaint, it having been lodged in the clerk's office eleven days after his conviction, and that he was tried and convicted on the unsigned, unverified, and unfiled complaint transmitted by the justice to the district court.
The testimony of the justice did not help the matter. His record may not be aided in such manner. The district court was required to take the record as transmitted and certified to it, and the record could not be contradicted or supported by evidence dehors the record. Griffiths v. District Court, 35 Utah, 443,100 P. 1064; Higgs v. Burton, 58 Utah, 99, 197 P. 728. These cases but follow the familiar maxim that what ought to be of record must be proved by record and by the right record. If the original complaint or a completed copy thereof was not transmitted by the justice to the district court, he could and ought to have been required to do so before the trial in the district court began and before any proceedings were had therein. To permit the justice or any one by testimony to supply what ought to be of record and piece it out is to break down fundamentals of the law and to establish a practice frought with mischief. The complaint lodged in the clerk's office eleven days after conviction, not certified to or transmitted to the district court by the justice nor identified by any one, and lodged there by some unknown person, is a mere stranger and an intruder. The petitioner, not having been tried and convicted on that complaint but on an unsigned and unverified *Page 535 complaint, was tried and convicted on no complaint, for an unsigned and unverified complaint is nothing. It is said the district court had jurisdiction of the subject-matter. I do not think so. It takes a pleading of some sort to invoke or confer jurisdiction. It is fundamental that pleadings are the juridical means of investing a court with jurisdiction of the subject-matter to adjudicate it. Pleadings must exist and describe a real existing matter of which the court, according to its organization and purposes, may take jurisdiction. They are essential for res adjudicata. Without them there is no res and no adjudication. Without them the court has nothing, tries nothing, and adjudges nothing. In 16 C.J. 176, the author says:
"Jurisdiction to try and punish for a crime cannot be acquired otherwise than in the mode prescribed by law, and if it is not so acquired any judgment is a nullity. A formal accusation is essential for every trial for crime, without it the court acquires no jurisdiction to proceed, even with the consent of the parties, and where the law requires a particular form of accusation, that form of accusation is essential. Jurisdiction to try offenses is ordinarily acquired by an indictment, or in some jurisdictions by an information and where the indictment or information is invalid the court is without jurisdiction. Jurisdiction is in some cases, under statutes, acquired by mere complaint or affidavit, or by appeal from a conviction in a lower court.
"Jurisdiction to take cognizance of an offense or to render a particular judgment cannot be conferred upon a court by the consent of the accused, either express or inferential. * * *"
The same doctrine is stated in 22 Cyc. 171:
"There can be no conviction or punishment for a crime without a formal and sufficient accusation. In the absence thereof a court acquires no jurisdiction whatever, and if it assumes jurisdiction, a trial and conviction are a nullity."
At page 173 it further is stated that jurisdiction cannot be conferred by consent, waiver, or estoppel on the part of the accused, or by stipulation on the part of his counsel. Cases are cited in support of these texts from many different *Page 536 jurisdictions. These authorities and the cases teach that one may by consent or waiver confer jurisdiction of person but not of subject-matter. That is an immutable element. Hence of no importance is it that counsel for petitioner stated that he was willing to go ahead on the unsigned, unverified, and unfiled complaint transmitted by the justice to the district court. To initiate a criminal action before a justice the statute (section 8680, Comp. Laws Utah 1917), requires the filing of a complaint, prescribing what it shall contain, and providing that "the complaint must be subscribed and sworn to by the complainant." With respect thereto this court, in State v. Pay,45 Utah, 411, 146 P. 300, Ann. Cas. 1917E, 173, said that:
"We thus start out with the proposition that under our procedure a criminal prosecution must be initiated by filing a complaint in writing which must be verified by the complainant."
Since the district court could judicially know only the unsigned, unverified, and unfiled complaint transmitted by the justice to the district court, and since such a complaint did not confer jurisdiction on the justice, none was conferred on the district court. I thus think the judgment a nullity and that it should be vacated. *Page 537