Palmer L. CLARKSON et al., Plaintiffs and Respondents, v. WESTERN HERITAGE, INC., Larry J. Sorensen, Jean Sorensen, Cline G. Campbell and Jane Doe Campbell, his wife; C. Glenn Robertson and Patricia Robertson, Defendants and Appellants.
No. 16917.
Supreme Court of Utah.
March 13, 1981.
The Commission‘s order became effective October 16, 1980 (20 days after September 23rd, plus 3 days for service,
In its use of the permissive “may be taken” and the limiting “by the party making the application,” the last sentence of the statutory language quoted above gives the applicant for rehearing before the Commission an option to pursue review in advance of the Commission‘s action on the application, but it does not require the applicant to do so. Specifically, the statute does not have the effect, after 20 days, of denying the application for rehearing by operation of law, as movant argues.
This interpretation is in harmony with the construction placed on similar language in Fuller-Toponce Truck Co. v. Public Service Comm., 99 Utah 28, 96 P.2d 722 (1939), which involved the meaning of language in a predecessor statute providing that if any application for a rehearing was not determined within 20 days “it may be taken by any party to the rehearing that the order involved is affirmed.” This Court held that the language in question merely gave the parties an option to act as if the order had been affirmed; a delay in excess of 20 days “did not rob the Commission of its jurisdiction and power” to act on the case (99 Utah at 36). Similarly, in the instant case, the passage of more than 20 days from filing of the application for rehearing did not deprive the Commission of its jurisdiction to act on the pending application for rehearing, and when the applicant did not exercise its option to treat the 20-day period as a denial for purposes of going forward to seek review, the time for computing the mandatory period for review did not commence until the Commission acted on the application. The cases cited by movant CP National apparently all involve rules or statutory provisions different from the Utah statute quoted above.
The motion to dismiss is denied.
C. Glenn Robertson, Sandy, for defendants-appellants.
L. Rich Humpherys, Salt Lake City, for plaintiffs-respondents.
GOULD, District Judge:
This appeal is taken from a summary judgment in favor of plaintiffs granted by the district court, The Honorable Bryant H. Croft presiding.
The respondents brought this action to recover on foreign judgments rendered in the State of Arizona against appellants herein. If the Arizona court had jurisdiction to render the judgments, then those judgments of the courts of a sister state are
The appeal is taken asserting that we must inquire into the jurisdictional question.
Appellants are the officers of a corporation, and the corporation itself, none of whom were Arizona residents. Activities were carried on in the state of Arizona which resulted in suits being filed. These suits resulted in the subject judgments being rendered by default, based upon nonresident service of process as authorized by the Arizona Code. There appears to have been a comedy of errors surrounding the entry of the judgments, the efforts to set the same aside, and an abortive effort to perfect an appeal in Arizona, all of which were unsuccessful. Only one of these actions is relevant here, namely, the motion to set aside the judgment by default in Arizona.
Following the rendition of the Arizona judgments, appellants moved to set the judgments aside, which motions were denied. Appellants then attempted to perfect an appeal, which failed because of the failure to file a bond for costs on appeal.
The respondents then filed this action, seeking to enforce the Arizona judgments. Appellants attempted to place in issue the question of the jurisdiction of the Arizona court by their answer. Although the answer is somewhat imprecise in this regard, it is clear that the trial court recognized and dealt with the question of the jurisdiction of the Arizona courts in its ruling on plaintiffs’ motion for summary judgment. Plaintiffs’ motion for summary judgment was supported by affidavit, which recited facts sufficient to found jurisdiction in the State of Arizona. This affidavit was not countered by an opposing affidavit by defendants. Our
There is a separate and independent reason for affirming the trial court. Defendants’ application to the Arizona courts seeking affirmative relief from the entry of the default judgment had the effect of rendering the jurisdictional question moot under our ruling in Fullenwider Company v. Patterson, Utah, 611 P.2d 387 (1980). The issue of jurisdiction in the instant case having been litigated in Arizona cannot now be attacked here.
The judgment of the district court is affirmed, with costs to respondents.
HALL and HOWE, JJ., concur.
STEWART, Justice: (concurring in the judgment).
I concur in the majority opinion‘s conclusion that no error occurred in the trial court‘s determination that the Arizona court had jurisdiction over appellants. Plaintiffs supported their motion for summary judgment with an affidavit containing facts which, according to the lower court, established jurisdiction in Arizona. Defendants submitted no countervailing affidavit to create an issue of material fact. I therefore agree that the trial court properly disposed of the issue on summary judgment. I do, however, disagree with the application of the ruling in Fullenwider Co. v. Patterson, Utah, 611 P.2d 387 (1980).
The distinction between general and special appearances has been abolished by
A defendant may challenge jurisdiction over his person in his answer and also assert defenses going to the merits without losing the jurisdictional claim. Alternatively, a defendant may raise his defenses in a motion prior to his answer. However, if a party makes a
The critical action in the Arizona case was the motion to set aside a default judgment. The record does not reveal whether the jurisdictional issue was raised by the motion or, if so, whether the court ruled on it. Assuming, however, as we must, that the issue was not ruled on, defendants’ motion did not constitute a waiver of the defense of lack of jurisdiction over his person. In Fullenwider the appellant expressly raised the jurisdictional question in his motion to set aside the default judgment and that issue was adjudicated, but the instant record does not reveal as much. I therefore would not extend the Fullenwider rationale to the instant case.
MAUGHAN, C. J., does not participate herein.
GOULD, District Judge, sat.
CROCKETT, J., heard the arguments, but retired before the opinion was filed.