Cullen v. Harris

73 P. 1048 | Utah | 1903

MORSE, District Judge-

The plaintiff, Matthew Cullen, commenced this action in the district court of Beaver county, in the Fifth Judicial District, to recover from the defendants a certain mining claim. Issue was duly joined, and, when the case came on for trial, the Honorable T. Marioneaux, judge of said district, being disqualified to hear the same, the Honorable J. E. Booth, judge of the Fourth Judicial District, was requested to try said cause. The case was tried and submitted to the court on the 14th of February, 1901, and thereafter, on the 3d day of May, 1901, findings of fact and conclusions of law were duly signed and filed, and judgment entered in favor of the plaintiff. On July 1, 1901, the plaintiff filed his motion to correct certain alleged errors in the findings and judgment. This motion was argued and submitted on March 5, 1902, and by the court taken under advisement, and thereafter the following order was made and entered: ‘ ‘ The motion of the plaintiff herein to amend the findings and decree heretofore rendered in this case came on for hearing, and, having fully considered the same, it is hereby ordered and adjudged that the said motion be denied for the reason that the court has no jurisdiction in the premises. Dated Provo, Utah, May 6, 1902. J. E. Booth, Acting Judge.” From this order denying plaintiff’s motion to correct the findings and judgment, this appeal is taken.

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The respondents contend that this appeal should be dismissed for the reason that the order appealed from is not a final judgment. We are of the opinion that this contention is correct. Mr. Justice MINER, in delivering the opinion of this court in White v. Pease, 15 Utah 170, 172, 49 Pac. 416, 417, said: /“The judgment is this case was final. The proceeding on motion for a new trial had reference to the regularity of the judgment. The order refusing a new trial was an order confirming its finality. We are of the opinion that any errors committed by the trial court in granting or refusing to grant a new trial, and any affidavits used on said motion, if properly identified and embodied in a bill of exceptions, or otherwise properly preserved in the record, may be reviewed on appeal from the judgment. ” So in this case the judgment was final. The proceeding to correct had reference to the regularity of the judgment. The order denying the motion was an order confirming its finality. Any errors committed by the trial court in denying such motion, or want of power, if any, in making the order appealed from, could only be reviewed upon an appeal from the judgment. Watson v. Mayberry, 15 Utah 265, 49 Pac. 479; Nelson v. Southern Pacific Co., 15 Utah 325, 49 Pac. 644.

This appeal is therefore dismissed, with costs.

BASKIN, C. J., and BARTCH, J., concur.