162 P. 89 | Utah | 1916
The plaintiff appeals from a final order or judgment discharging a writ of attachment.
The defendant is a nonresident of this state, upon whom, it appears, no service of summons was had, but, as is conceded by plaintiff’s counsel, appeared specially for the sole purpose of moving the discharge of the attachment.
The appeal is upon the judgment roll without a bill of exceptions.
Defendant’s counsel contend that, in view that this appeal is based solely upon the judgment roll, there is nothing before us which authorizes us to review the judgment or order of the district court of Salt Lake County discharging the judgment. Whether such contention is or is not sound depends upon what questions may be considered and reviewed by us in case the appeal is based upon the judgment roll without the aid of a bill of exceptions.
‘ ‘ 5n ease the complaint be not answered by any defendant, the summons, with the affidavit of proof of service, and the complaint, with a memorandum endorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment.
“In all other cases, the pleadings, a copy of the verdict of the jury, or findings of the court or referee, all bills of exceptions taken and filed, all orders, matters and proceedings deemed excepted to without a bill of exceptions, and a copy of any order made on demurrer, or relating to a change of parties, a copy of the judgment and the order overruling the motion for a new trial. If there are two or more defendants in the action, and any one of them has allowed judgment to pass against him by default, the summons, with proof of its service upon such defendant, must also be added to the other papers mentioned in this subdivision.”
It will be observed that the section contains a general statement to the effect that ‘ ‘ all orders, matters and proceedings deemed excepted to” are also a part of the judgment roll. The ‘ ‘ orders, matters and proceedings ’ ’ that are deemed excepted to are all stated in Comp. Laws 1907, Section 3283, as follows:
“The verdict of the jury, the final decision ip. an action or proceeding, an interlocutory order or decision finally determining the rights of the parties, or some of them; an order or decision from which an appeal may be taken; an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a continuance; an order made upon ex parte application; and an order or decision made in the absence of a party — are deemed- to have been excepted to.”
The judgment must therefore be affirmed. Such is the order; costs to respondent.