99 P. 450 | Utah | 1908
Lead Opinion
(after stating the facts as above).
The first question for consideration involves the right of respondent to withdraw his admission in writing that the default occurred “through the inadvertence and excusable neglect of defendant’s attorneys,” which admission he in this court for the first time attempts to withdraw. In his brief he says: “Any admissions as to the excusableness of the default, or, in other words, the sufficiency of the facts is an admission of law, which plaintiff may withdrew, and
“One of the roost important results of the rule that questions which are not raised in the court below cannot he reviewed in the appellate court is'that a party cannot, when a cause is brought up for appellate review, assume an attitude inconsistent with that taken by him at the trial, but that such party is restricted to the theory on which the cause was prosecuted or defended in the court below.. Thus, where both parties act upon a particular theory of the cause of action, they will not be permitted to depart therefrom when the case is brought up for appellate review.”
Numerous cases are cited in tbe footnote, which illustrate and support the doctrine. As we have pointed out, respondent conceded in the lower court that appellant’s default occurred through “inadvertence and excusable neglect,” and the questions involved were submitted to the court upon that theory. Therefore under all the authorities he is precluded from taking any other or different position in this court.
The next' question presented is, Did the answer tendered by appellant in connection with his motion contain a good defense to respondent’s demand, or to any substantial part thereof? The general denial contained in the
We are of the opinion that, under all the circumstances, the court should have set aside the default, vacated the judgment, and permitted appellant to answer to the merits. The case is therefore reversed, with directions to the trial court tó set aside the default, vacate the judgment, and permit appellant to answer to the merits on such terms as the court may deem just; appellant to recover costs of this appeal.
Rehearing
ON REHEARING.
Respondent has filed an application for a rehearing in which it is strenuously insisted that we erred in holding that the averments contained in the answer as an affirmative defense are .sufficient to avoid the statute of frauds. In support of the contention counsel cites cases where, under particular facts proved in those cases, there was no surrender, and that a parol executory agreement to surrender demised premises will not be enforced. We have not held anything to the contrary. Counsel seems to misconceive the purport and effect of the decision. In view of this we have deemed it best to add a few words to what is said in -the original opinion.
The question before us was not whether the- facts adduced at the trial of a case involving a surrender by parol was sufficient, or not sufficient, to constitute a surrender. Nor did we hold that a parol executory agreement to surrender may be enforced, but what we held is that an executed agreement to surrender, although by parol, may be sufficient. The only question for determination was whether the aver-ments contained in the answer, which are stated in the
The case of Ogden v. Sanderson, 3 E. D. Smith (N. Y.) 166, which counsel for respondent insists is decisive of the question in his favor is, in our judgment, just to the contrary. While the facts with regard to a parol agreement of surrender in that case are exactly parallel with the facts in this ease, the decision, however, squarely rests upon the fact that the agreement there in question was never executed. The court, at page 169, in speaking of the negotiations, says: “All these negotiations, however; appear to have failed.” Further, in speaking of what constitutes an eviction, it is said:
*60 “An eviction of a tenant is an interference witli Ills possession of tiie premises, or some part thereof, by or with the consent of the 'landlord, by which the tenant is deprived of the use without his consent; but, where the tenant is present at a' negotiation to relet the premises to a third person and does not object, but at the same time is proposing a surrender on his own part, a possession by such third person, under such circumstances . . . could hardly be considered an eviction.”
It is true that the court in that case held that there was no surrender because, as it said, “no surrender is proven. A proposed surrender was talted of, but not executed, and this lease could only be surrendered by writing' or by operation of' law.” If possession 'of leased premises is surrendered by the tenant and accepted by the ■ landlord, it constitutes a surrender by operation of law. This is the effect .of the holding in the original opinion. If, therefore, appellant can establish the "fact that the 'agreement to surrender was fully executed with the consent of both parties, then he has a good defense to the action. This proof, we think, is admissible as the answer now stands. But if the. averments are not deemed sufficiently specific, respondent has a remedy by special demurrer. As against a general demurrer (which the objection in this case, in effect, is), in view of the liberal construction that our statute requires to be given to pleadings, we think the averments are sufficient. The application for a rehearing, therefore, is denied.