14 Utah 215 | Utah | 1896
The plaintiff brought this action upon an insurance policy executed by the defendant on the life of the late Lewis H. Jones, to recover $1,500 and interest, and he alleged that the policy had been assigned to him by the insured shortly before his death. The defendant filed a pleading designated an answer and interpleader duly verified. The answer admitted the material allegations of the complaint, except that it denied the assignment, and defendant’s liability for interest and costs. It alleged by way of interpleader that one B. H. Jones claimed to be administrator of the estate of Lewis H. Jones, and that he claimed as such administrator the money due on the policy; that plaintiff also claimed the money; and that defendant was ignorant of the rights of the respective claimants, and denied collusion with either of them, and offered to bring the money into court, and deliver it to such person as the court might desig
Whatever may be said as to whether the other parts -of the order were final or not appealable, that part dismissing the defendant from the action, and discharging it from further liability, was final as to the defendant, and the rights of the plaintiff against it, and therefore appealable. But this appeal was taken more than 11 months after that judgment was rendered and notice to plaintiff. That being so, we cannot examine the bill of exceptions, and determine therefrom the facts mentioned in the order or essential to it. Subdivision 1, § 3635, ■Comp. Laws Utah 1888, giving the right of appeal from final judgments or district courts in actions or special proceedings, declares that “an exception to the decision ■or verdict on the ground that it is not supported by the evidence cannot be reviewed on an- appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment.” The judgment having been rendered by a court of record and of general jurisdiction, it will be presumed that those facts, without proof of which the judgment could not have been rendered, were proven.
The plaintiff also appealed from the order of the court overruling his motion to vacate the judgment dismissing the defendant from the action, and discharging him from further liability to either party. It also appears that this motion to vacate was made after the term at which judgment was rendered, and after two other terms had intervened. The motion could not be regarded as an application for a new trial, because it came too late. The order sought to be vacated was not void, and it was rendered upon a hearing. It was not a judgment upon default. It was a judgment the court intended to enter
On tbe bearing tbe court received tbe answer and interpleader as an affidavit, as appears from tbe order. This was not error, as tbe answer and interpleader were duly verified, and they contained tbe facts required to be stated in tbe affidavit required by section 3188, Id. The answer that accompanied the interpleader admitted tbe liability of tbe defendant, but denied the assignment to plaintiff; and tbe interpleader stated that plaintiff and B. H. Jones, as administrators of tbe estate of L. H. Jones, respectively claimed tbe money sued for. There being mo denial of defendant’s liability, we are disposed to bold that it was not error to file it with tbe affidavit, or as a part of it.
Other exceptions were taken, and appear in tbe record, and are assigned as error; but upon consideration of them we are of opinion that they should not be sustained. We find no reversible error in tbe record. Orders appealed from are affirmed.
