208 P. 525 | Utah | 1922
None of the defendants appeared in said action except F. J. Jones, who filed an answer denying generally all the allegations of the complaint, and as a special defense thereto in substance pleaded that he indorsed said note without consideration as an accommodation to the plaintiff for the purpose of enabling him to better handle said note as collateral and by reason of a promise made by the plaintiff that he would not be required to pay the same.
Plaintiff interposed a general demurrer to said answer, which was sustained by the district court.
After the defendant F. I. J ones had failed to further plead the court received evidence in support of the allegations of the complaint and rendered judgment according to the prayer thereof for the amount of the note, interest, and costs against each and all of the defendants.
The defendant F. I. Jones, alone appeals, after applying for and being denied a new trial. He assigns as error: .First, the sustaining of the plaintiff’s demurrer; and, secondly, the denial of his motion for a new trial.
The plaintiff has interposed a motion to dismiss the'appeal, for the reason that the appeal was not taken within the time required by law in order to confer jurisdiction upon this court; and, secondly, for failure to comply with our statutes and the rules of this court relating to appellate procedure.
The record shows that the case was tried to the court sitting without a jury. Findings of fact and conclusions of law were made and filed and the judgment was made and entered by the court on April 29, 1921. The appealing defendant filed his notice of appeal February 9, 1922, nearly 10 months after the entry of judgment.
Defendant’s motion for a new trial was filed April 26, 1921,
It is tbe contention of tbe plaintiff tbat tbe defendant’s motion for a new trial was prematurely made, and therefore defendant should have filed bis notice of appeal within six months from tbe date of th¿ entry of tbe judgment in order to confer jurisdiction upon this court. In tbe case of Emerson-Brantingham Implement Co. v. Stringfellow, 57 Utah, 284, 194 Pac. 340, it was held by this court, Mr. Justice Thurman writing tbe opinion, tbat our statute, Comp. Laws Utah 1917, § 6980, “requires motions for new trial to be made within five days after decision of court or referee in a non-jury ease, and there is no decision in such case until tbe findings of fact and conclusions of law are signed by tbe judge and lodged with the clerk for filing, unless tbe same are expressly waived, and notices served on counsel before such filing were premature.” (Syllabus.) Therefore, in conformity with what was decided in tbe case above cited, defendant’s time within which to appeal began to run April 29, 1921, tbe date of tbe entry of judgment. As pointed out, defendant did not file bis notice of appeal until February 9, 1922, more than six months after the filing and entry of judgment, therefore too late to confer jurisdiction upon this court as heretofore decided by this court at this term in tbe case of tbe First National Bank of Ogden v. Nielson, 60 Utah, 227, 208 Pac. 522, but not yet [officially] reported.
It follows tbat the plaintiff’s motion to dismiss tbe appeal is well taken. It is therefore ordered tbat said. appeal be dismissed; plaintiff to recover costs.
