5 Utah 428 | Utah | 1888
The plaintiffs (appellants) brought their action against the defendants for the possession of certain real estate, claiming ownership. The defendants filed their answer, cross-complaint, and amended cross-complaint, claiming to hold the property as the sole heirs of Brigham Shupe, deceased. Upon the case being heard, judgment was rendered for the plaintiffs. Thereafter the defendants made their motion for a new trial, which motion the plaintiffs moved the court to dismiss. The motion to dismiss was overruled, and the motion for a new trial was granted, and thereupon the plaintiffs appealed to this court from such orders.
The plaintiffs maintain that the court below had no authority to consider the defendants’ motion for a new trial, alleging that it was not filed in time, and no notice or statement was filed in time. The statute says that “the party intending to move for a new trial, must, within ten days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk, and serve upon the adverse party, a notice of his intention, designating,” etc. Laws Utah 1884, p. 246, sec. 536. The case was tried 'by the court without a jury, and the findings and decision and judgment were made and filed on the same day, the 25th of February, 1886. No notice of the decision was given to the defendants, as contemplated by the section of the statute referred to, but the defendants’ attorney, on the same day that the decision was rendered, wrote a note to the judge who tried the case, asking a stay of proceedings for 30 days, to prepare and file the motion and statement for a new trial, and the extension of time was granted. On the 26th of March, 1886, another order, dated 24th of March, 1886, was filed, giving 20 additional days from the date of the order within which to prepare, file, and serve notices, motions, and statements for a new' trial and appeal. The plaintiffs contend that these applications 'and orders for' the stay of proceedings were a waiver of the
It was claimed by tbe defendants in their application for a new trial that tbe court, on tbe trial of tbe case, bad rejected evidence tending to show fraud as set up in tbe cross-complaint. Tbe appellants contend that such rejections were not grounds for granting a new trial, but were correct rulings; that the cross-complaint made no statement of facts that would constitute fraud. The cross-complaint, as amended, alleges in substance that tbe property belongs to tbe defendants as the sole heirs of Brigham Shupe, deceased — one defendant being tbe wife, and tbe other tbe child, of said Brigham Shupe, deceased; that tbe defendant Elizabeth Shupe, as administratrix, obtained an order for the sale of tbe real estate in question, and at tbe sale S. H. Higginbotham became tbe purchaser at $950 cash, subject to approval by tbe probate court; that tbe probate court delayed confirming tbe sale; that in tbe mean time Higginbotham became insolvent, and notified tbe administratrix and tbe ¡srobate court that he could not pay for tbe land, and that be repudiated tbe sale; that after this time tbe plaintiffs sued and obtained judgment against Higginbotham, and sold on execution such interest as Higginbotham bad in tbe property; that be falsely and fraudently represented to tbe probate court that Higgin-botham had an equitable interest which they bad bought at tbe sheriff’s sale, and were entitled to have tbe sale made by tbe administratrix to Higginbotham confirmed to them; that they intended to mislead tbe probate court by
We see no error in the action of the court below in granting the motion. The order granting it is therefore affirmed. •