that the writing was in evidence, and should be considered by them as showing that plaintiff had notice and warning of the matters therein set out. The court also instructed. the jury that: "Constructive knowledge, as used in instruction number 18, would mean where he had been given reasonable notice; and, if you find from the evidence that he had been given reasonable notice, so that a reasonably prudent person would have known it, then he is deemed to have constructive notice of it." It will therefore be seen that the instructions given were in harmony with the defendant's theory of the case, and were even more favorable to it than the instruction asked for.

8

While it is a well-recognized principle of law that parties to an action tried to a jury are entitled to have the jury instructed on the law applicable to the case, and it is the duty of the court, when seasonably requested in writing by either party, to instruct the jury upon any issue in the case, yet the rule is equally well established that the court is not bound to follow the exact language of the request. If the court in its general charge to the jury clearly and correctly states the law applicable to the points and issues covered by the requests, it is sufficient. (11 Ency. Pl. and Pr. 247; Spiking v. Con. Ry. & P. Co., 33 Utah 313, 93 Pac. 838; Hickey v. Railroad, 29 Utah 394, 82 Pac. 29; 1 Spelling, New Tr. and App., 305.

This rule is so well established that we deem further citation of authorities unnecessary.

In conclusion we remark that the instructions given in the case, when considered as a whole, were as favorable to the defendant as the facts in the case warrant.

For the reasons stated the petition for a rehearing is de nied.

STRAUP, C. J., and FRICK, J., concur.

STATE ex rel. WALTON v. THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY et al.

N.o 1923. Decided November 11, 1909 (105 Pac. 105).

1. JUSTICES OF THE PEACE-APPEAL PROCEEDINGS FOR TRANSFERAPPELLATE JURISDICTION-CONCLUSIVENESS OF RECORD. Rev. St. 1898, section 3744, provides that a party dissatisfied with a justice's judgment may appeal to the district court by filing a notice thereof with the justice and serving a copy on the adverse party, under which the order of filing of the notice of appeal and the service of a copy is material, and the filing of the notice must precede the service, or both must be done at the same time, or on the same day. Section 3748 provides that, when appellant files his undertaking on appeal, notice of such filing shall be given to respondent, under which both the filing of an undertaking and service of notice of such filing are made a prerequisite to an appeal. The transcript of a justice's record showed that notice of appeal was served on February 4, 1907, and that the notice was filed on the next day, and showed a docket entry that an undertaking on appeal was filed on February 5th. Neither the original undertaking nor a copy thereof was in the record, and it did not show that any notice of the filing of the undertaking was given, or that a copy was served. Held, that the district court should confine itself to the recitals in the transcript in determining whether the statute had been complied with, and could not consider affidavits to contradict the record and show that the notice of appeal was filed on February 4th, instead of February 5th, so that the law would assume, from the contemporaneous filing and service of the notice, that the filing of the proper paper was done first, nor could it consider affidavits to show that the undertaking and notice of the filing thereof were presented to the justice for filing, and, the record not showing a compliance with the statute, the district court acquired no jurisdiction.1 (Page 504.)

2. JUSTICES OF THE PEACE-APPEAL-PROCEEDINGS FOR TRANSFER— COMPLIANCE WITH STATUTE-AFFIDAVITS. The affidavits as to the undertaking, not showing that the notice of its filing was served on respondent, or that a copy of the undertaking was served, or that any kind of a notice as to the undertaking was served on or given to the adverse party, but merely that an

1 State ex rel. Peart v. District Court, 32 Utah 418, 91 Pac. 133; State ex rel. Snell v. District Court, 36 Utah 267, 103 Pac. 261.

undertaking and a notice of the filing thereof were prepared for service and presented to the justice's court for filing, did not show a compliance with the statute, in fact. (Page 507.)

3. JUSTICES OF THE PEACE-APPEAL PROCEEDINGS FOR TRANSFERFILING AND SERVICE OF NOTICE. Evidence held to show that the filing of notice of appeal from a justice's judgment did not in fact precede the service of the notice, as required by Rev. St. 1898, section 3744, providing that a party dissatisfied with a justice's judgment may appeal to the district court by filing a notice of appeal with the justice and serving a copy on the adverse party. (Page 507.)

Prohibition by the state, on relation of E. A. Walton, against the Third Judicial District Court of Salt Lake County and others.

WRIT GRANTED.

E. A. Walton for plaintiff.

H. A. Smith for defendants.

STRAUP, C. J.

The Coalville Co-operative Mercantile Institution ob tained a judgment in the justice court against Edward Mackey and his wife on the 11th day of January, 1907. The transcript of the justice's record, as transmitted to the district court on an attempted appeal, shows that the Mackeys served a notice of appeal on the 4th day of February, 1907, and that the notice was filed on the 5th day of February. The transcript further shows a docket entry that an undertaking on appeal with two sureties was filed on the 5th day of February. Neither the original undertaking nor a copy thereof is contained in the record so transmitted, nor does the record show that any notice of the filing of the undertaking was given, or that a copy of the undertaking was served. After the record was transmitted to the district court, the plaintiff moved that court to dismiss the appeal for want of jurisdiction of the cause. The court denied the motion and assumed jurisdiction. Thereupon the relator,

on behalf of the plaintiff, applied to this court for a writ of prohibition to arrest the further action of the court. The relator contends that the statute in force when the appeal was attempted to be taken (section 3744, Revised Statutes 1898) required a filing of the notice of the appeal and a service of a copy on the adverse party, that the order of filing and service was material, and that the filing of the notice must precede the service. He also contends that the statute then in force (section 3748, Revised Statutes 1898) required the appellants, when they filed an undertaking on appeal, to give notice of such filing to the adverse party, and that notice of such filing of the undertaking is made a prerequisite to effectuate an appeal. In the case of State ex rel. Peart v. District Court, 32 Utah 418, 91 Pac 133, we held, under those provisions of the statute, that the order of filing a notice of appeal and the service of a copy was material, and that the filing of the notice must precede the service, or that both must be done at the same time, or on the same day, for, when both acts are done at the same time, the law, as in all contemporaneous acts, will regard that as first done which was required to be done first. We also there held that in an appeal from a justice court to the district court the filing of an undertaking and the service of notice of such filing is by statute made a prerequisite to effectuate an appeal, and that, if notice of such filing was not given, the filing of the undertaking must be regarded as no undertaking, the appeal ineffectual, and the district court without jurisdiction. Our reasons for so holding are there fully set forth.

1

Now, it is here made to appear that the record of the justice court, as transmitted to the district court, shows that a notice of appeal was served February 4th and was filed February 5th. That record clearly discloses that the filing of the notice did not precede the service, nor does it disclose that the filing and service were had at the same time or on the same day. To the contrary, the record shows that the filing and service were not contemporaneous, but that they were done on different days,

and that the service preceded the filing. Upon such facts so made to appear by the record, if our holding in the Peart case is to be followed, the notice of appeal was ineffectual, and the court for that reason was without jurisdiction. Evidently to avoid the effect of such holding, the appellants in the district court, when the motion to dismiss the appeal was made, offered and were permitted to put in evidence affidavits, over the objections of the relator, tending to show that the notice of appeal was served February 4th, and that Edward Mackey, after the notice was served, took it, the undertaking on appeal, and a notice of the filing of an undertaking, to the justice's office for filing at about 5 o'clock p. m. of that day. As deposed by him, not finding the justice at his office at that time, he called at his office the next morning and presented such papers to the justice for filing. The notice of appeal and the undertaking were thereupon filed as presented on February 5th. From this it is argued that when the notice of appeal was taken to the justice on the 4th day of February, and the justice not being there to receive it, such act constitutes in law the filing of the notice on that day, and hence the notice of appeal must be regarded as having been filed, not on the 5th day of February, as shown by the record transmitted from the justice court, but on the 4th day of February, the same day that it was served. From this it is then further argued that the filing and service of the notice were contemporaneous, and that the law will presume that the filing which was required. to be done first was first done, notwithstanding the record, as transmitted, and the evidence, as shown by the affidavits, indisputably show the contrary.

We are of opinion that evidence dehors the transcript or record on appeal was inadmissible (State ex rel. Snell v. District Court, 36 Utah 267, 103 Pac. 261), in aid of such matters; and we think it may safely be said that under the authorities generally it is not admissible to contradict or dispute such a record, in such instance, by affidavits or other evidence dehors the record. We think it would lead to much mischief if the rule were otherwise.