15 Utah 188 | Utah | 1897
Lead Opinion
(after stating the facts):
Appellants urge as one of their objections to the decision that a fatal variance and contradiction exist between the first and sixth findings and between the second and part of the seventh findings of fact. The first finding is, substantially, that the plaintiffs were not at any time or at all the owners or entitled to the possession of the property mentioned and described in plaintiff’s complaint, consisting of 1 two year old bull, 7 two year old steers, 11 cows, 4 calves, 1 yearling heifer, 76 three and four year old steers, 2 cows, and 2 three year old steers, all branded round-top A on right and left ribs and left hips. The part of the sixth finding material to be stated is that the defendant B.. R. Tanner, under an execution on the McCornick judgment against W. A. and E. S. Sawyer, levied upon and took into his possession the following described property, to wit: 46 three year old steers, 39 two year old steers, 1 black bull, 12 cows, 4 calves, branded with round-top A on left ribs and same on left hip. It will be noticed that there is a difference both in the numbers and kinds of the animals enumerated and described in these findings. The last description corresponds with the cattle admitted by the answers to have been levied upon, except there
Appellants seek to raise upon appeal tbe question of priorities between partnership creditors and individual creditors to partnership property. Of course, tbe well-established rule is that partnership creditors are entitled to payment out of partnership property in preference to creditors of tbe individuals composing tbe firm; in other words, that partnership assets are a trust fund for tbe payment of partnership debts, and that tbe rights of tbe partners and their personal creditors are subject to tbe rights of firm creditors. But tbis question is not raised by plaintiffs in their pleadings. They sue in
The plaintiffs object that there is no evidence to support the fifth finding, to the effect that the defendant R. R. Tanner was during the times mentioned a duly appointed, qualified, and acting deputy United States marshal for the territory of Utah. Plaintiffs by their questions during the trial treated the defendant as such deputy marshal, and the evidence contains the return of summons, and also certificate of sale of the property upon execution, in which he signed as said deputy marshal. The question was not raised by counsel in the trial of the case.
Exception is taken to nearly all the facts found, on the ground of the insufficiency of the evidence to support the same. This exception is taken to the finding that the claim of the plaintiffs to the stock described in their complaint “is based upon an attempted transfer of said stock by W. A. and E. S. Sawyer to said plaintiffs, but no delivery of said stock was made to said plaintiffs,
Appellants insist that there are no conclusions of law found by the court, and that, therefore, the judgment should be reversed. The closing paragraph of the findings, after setting forth the facts under seven subdivisions, is as follows: “Upon the conclusions of law and the foregoing facts, the court finds that the plaintiffs have no cause of action herein against the defendants, and the defendants are entitled to a judgment against the plaintiffs for the costs of this action, taxed at-dollars.” Besides this, a formal decree was rendered in which it is recited that “the court having found and filed its findings of fact and conclusions of law, from which it appears,” etc. The paragraph first above quoted was no doubt intended as conclusions of law, and whether we disregard, and consider as stricken .out, the words, “the conclusions of law and,” or read the paragraph as intended to read, “as conclusions of law from the foregoing facts, the court finds,” etc., we think the same should be treated as a conclusion of law. Jones v. Clark, 42 Cal. 180; Butler v. Beech, 55 Cal. 28.
Numerous errors of law in the admission and rejection of testimony are assigned by appellants, but we fail to discover any error in the record. Some objections are made by respondents to the consideration of this appeal,, but, as we hold that the judgment should be affirmed, it is not necessary to discuss other questions. The judgment of the trial court is affirmed.
Concurrence Opinion
I concur in the judgment.