*1 еt al. v. CORNIA al. et CORNIA (15 631.) P. [2d] October Decided No. 5227. Joseph Ogden, appellants. Chez, of for Young City, respondents. Moyle, of Lake Salt Judge. WOOLLEY, District In сase it there had been a existing great many years brothers, between Or- Cornia, son Cornia plaintiffs and M. both of whom are dead. The Cоrnia, are Elizabeth who sues as the adminis- Cornia, tratrix of the deceased, estate of Orson and his Cornia, children. The defendants arе Edward sued as the administrator of the estate deceased, and *2 M. persons are at law of J. Cor- other who the heirs eleven 160- fact in is whether not a certain nia. The main issue land, the legal in name the title to stands acre tract of which plaintiff Cornia, belongеd partnership. to M. the The alleges allegation did. that it This denied the is allege dants, belonged to tract who of land partnership hаd no own his the Cornia purpose interest whatsoever in the of the suit same. The declaring to obtain the land property, requiring the the to account to defendants period occupation the use and thereof for years prior two From of to the commencement of the suit. a decree entered favor the Edward aforesaid, administrator as de- as of the other seven appealed. appeal judgment fendants have The exceptions. roll without a bill of respondents
The
appeal.
havе moved to dismiss the
There
grounds
motion,
four
are
stated in the
but
con
we need
ground
sider
them. The
will
first
that we
con
assignments
is that
sider
of error
not
served
required
or filed
this court within the time
rule
transcript
appeal
of the record on
was filed
September 22,
in this
assignments
court
1931. The
were served
14, 1931,
error
and filed on
November
twenty-one days
after the
was filed. Rule
assignments
requires
this court
error
to be served
days
filed within fifteen
after the
trans
cript.
complied
As
rule was
with,
should
ground.
be dismissed on
Company
American Trust
County Drainage
Louis
St.
v. Millard
Dist. No.
309,
The second that we will ap- consider is pellants to estopped are appealing by reason of from ap- facts which pear upon record: court, among
The trial found as follows: hereto have finds that the further partition property of all division upon оbligations rights under the of all partnership said ship follows, to wit: agreement, awarded, parti- distributed and property be “That of cer- plaintiffs: tioned tract in acre property, real tain parti- awarded, distributed “That the (Here follows a tioned to defendants: real certain appurtenant each and all of said tracts with forthwith are “In addition to Hundred the sum of Five *3 improvements any expense the defen- and all cover quarter Section and of said dants on the Northwest Fifty Dol- pay sum of One Hundred dants are ($150.00) 160 acres for the rental value of said to cover the lars years taxes said 160 acres for and one-half of the on less years.” said upon findings, which is basеd out, appropriate finding conclusions 15 above set and among law, provides, follows: division, partition a and settlement of That the and liabilities said be- all plaintiffs, representing interest of Orson half defendants, representing the interest of said J. M. on behalf Cornia, dеcedents, to wit: hereby awarded, distributed, partitioned apart set “There rights, plaintiffs, title, in full of all of their to partnership interest in the partnership, property: (Here of said assets property, including of certain real 160 acre tract hereby awarded, distributed, рartitioned apart “There is and set defendants, full all their title and interest in the ship partnership, property: assets fol- lows of certain tract of real rights apurtenant to each and all of said tracts respective with the plain- addition to the it is ordered and decreed pay to tiffs the defendants forthwith the sum of Five Hundred any improvements cash Dollars to cover all predecessоrs proper- in interest on the defendants ty, in full of the rental that the defendants exclusively by part partnership property them value of of the used years Fifty the sum of One Hundred ($150.00), years less one-half of the taxes for said on said Northwest Quarter of Section 27 referred to.” through parties suit, It also that the to the writing attorneys, in the filed case, agreed findings signed that the and decree be court. agree- furthermore contains the
ment and order:
“Stipulation signed “It is that the and decree have been and filed signing in this action and that notice of the thereоf is hereto. “It is further admitted that the $500.00 directed the decree in paid by plaintiffs the action to defendants has been that the defendants have to the the rental premises year involved in the action for the 1928 and $75.00 year for the 1929. “March “Young Moyle, “Attorneys for Plaintiffs. “Josеph Chez, “Attorney for Defendants. *4 “Order foregoing stipulation, hereby ordered, accordance with the it is adjudged by and decreed that the $500.00 ordered the decree in this by plaintiffs action to be to the defendants and the paid by has been in accordance with thе decree of the court heretofore made. “By day April, order made this 18th Harris, Judge.”
“Melvin C. affirmatively appears by It thus record, the decree was made and entered with the consent and agreement appellants, attorney case, they record but also that voluntarily have ac decree, validity recognized quiesced in their the same accepted the benefits they havе waived reasons For these favor. claiming right to estopped from and are cases court. The decree reviewed
have the foregoing con will be found to sustain authorities 536; Mountain 665, Ottenheimer v. States 3 C. J. clusions : § 1117; Aetna Ins. Co. v. Supply, 188 P. Life 139; Commission, Utah 274 P. C. Industrial A.) (C. Albright Oyster follоwing pages; v. C. 671 and F. 644. appellants, at the counsel for we state that In fairness to explanation argument made an of how it cаme about oral he he entered into the might they be made as the trial receipted court, and that he on behalf of all of his money paid by plaintiffs to clients for the the de fendants, appellant which exonerates him and his clients regard from blame in to these matters. It would seem that argument at if the matters which he related had been presented properly proceeding to the triаl court in some relieving appellants directed toward these from the setting them, the decree aside as to toward the trial сourt justified affording relief; would have been them some so, if that court failed to do and the matter prop had been erly here, рresented then its action could have been reviewed stands, this court. as the But record we cannot notice record, they such matters. We are bound appear do not therein. dismissed, appellants’ is therefore at costs.
STRAUP, J.
I concur in the result. HANSEN, FOLLAND, ELIAS EPHRAIM HAN- SON, JJ., concur.
CHERRY, participate J.,C. did not herein.