73 P. 521 | Utah | 1903
Lead Opinion
On July 28, 1900, Seward H. Fie]ds, as trustee, filed his complaint in the district court of Tooele county, Utah, to foreclose a certain trust deed given by the Daisy Gold Mining Company, a corporation of the State of Nebraska, and in which action numerous lienholders were made parties, and A. T. Moon, as the receiver of said Daisy Company, was also made a party defendant. On August 28, 1900, after the foregoing complaint was filed by Fields, the Salt Lake Hardware Company, a corporation, which wás not made a party in the Fields complaint, commenced an independent action against said Daisy Gold Mining Company to foreclose a mechanic’s lien upon the property of said Daisy Company in Tooele county, Utah. The foregoing actions were consolidated and tried together in Tooele county, Utah. The trust deed conveyed to the' said
1. Plis first contention is that, as the notes secured by the-trust deed were payable in Salt Lake county, the cause of action arose in Salt Lake county, and that under article 8, section 5, of the Constitution, in which it is provided that ‘‘all civil and criminal business arising in any county, must be tried in such county, unless a change of venue be taken, in such cases as may be provided by law,” the court had no jurisdiction of the subject matter of the actions in question, and therefore the decree of foreclosure rendered by the court in Tooele county is void. The question of jurisdiction is raised for the first time in this court. It is evident from the context of the aforesaid section of the Constitution that the word “business” was used in the sense of “causes of action. ’ ’ . White v. Rio Grande Wes. Ry. Co., 25 Utah 346, 71 Pac. 593; Konold v. Rio Grande Wes. Ry. Co., 16 Utah 151, 155, 51 Pac. 286; Deseret Irr. Co. v. McIntyre, 16 Utah 398, 403, 52 Pac. 628; Mosby v. Gis-
2. It is well settled that an absolute deed or a deed of trust given to secure a debt is in effect a mortgage. Azzalia v. St. Clair, 23 Utah 401, 64 Pac. 1106, and cases there cited. Section 3498, Revised Statutes
3. There is another reason why the objection othe receiver to the venue should not prevail. It appears that he answered the complaint of the trustee, and
4. It appears from the record that the deed of trust was executed by the vice-president of the Daisy Mining Company, in the absence of the president, in pursuance of a resolution authorizing the former to execute the same; that the seal of the corporation was attached to the deed, but it was not countersigned by the secretary; that as a consideration for the deed the company was paid $25,000 in cash, and the same was used by the company in the payment of its debts and the completion of its reduction works; and that said company has not offered to pay back to the parties from whom said sum was borrowed, or to the trustee, the amount thereof, or any portion of the same. At the close of the trustee’s evidence in chief, the receiver joined in a motion for a nonsuit on the grounds: ‘ ‘ (1) That the plaintiff has failed to prove the authority in each instance, with respect to the notes offered in evi-, dence, of Mr. Gardner to sign and execute the same; that the corporate seal upon the notes does not import any authority. (2) Upon the ground that the plaintiff has failed to prove that the trust deed or mortgage offered in evidence was executed by the company, by any person having authority; that in that respect the authority of Mr. Gardner to execute the same is spe-
The record does not disclose any reversible error. The decree of the court below is affirmed, with costs.
Concurrence Opinion
I concur in the judgment, as per opinion filed by me in case of Gibbs v. Gibbs, 26 Utah 382, and considered herewith.
Concurrence Opinion
I concur in the judgment Under section 2928, Revised Statutes, 1898, the district court of Tooele county had jurisdiction of the subject-matter of the action; and, the receiver having answered and gone to trial without objection, he waived "jurisdiction on all other grounds, and cannot now raise the question for the first time in this court.