180 P. 178 | Utah | 1919
The plaintiffs, Ola W. and Annie M. Larsen, commenced this action against the defendants jointly to recover judgment for the value of certain personal property. The plaintiffs, in their complaint, in substance, alleged that the Summit County Mercantile Company is a corporation; that plaintiffs are the owners and entitled to the possession of one threshing machine or separator, describing the same, of the value of $700, one Woodbury horse power of the value of $475, one Peoria weigher and sacker of the value of $85, and a lot of tools and accessories which are described in the complaint; that on a certain day named the ‘ ‘ defendants wrongfully and unlawfully took said property from the possession of the plaintiffs ’ ’ and have detained, and continue i wrongfully to detain, the same from the plaintiffs; that by reason of taking the said property plaintiffs have been deprived of the use thereof, which use is alleged to be of the value of $600; that by reason of such wrongful detention by the defendants plaintiffs have been damaged in the sum of $200 and have been otherwise damaged. Plaintiffs prayed judgment “for the recovery of said property, or, if recovery cannot be had, for the value thereof,” and for the alleged damages amounting in all to the sum of $900. No attempt was made to obtain possession of the property by the plaintiffs,, and the action was prosecuted and determined as an action for damages only.
The defendants answered separately. The defendant P. F. Eyan filed an answer in which he admitted that the defendant Summit County Mercantile Company is a corporation and denied all other allegations contained in the complaint. lie then set up an affirmative defense by admitting the taking of said property, but averring that he did so as sheriff of Sum-mitt county; that he took the same by virtue of an execution issued upon a judgment obtained in the district court of such county by the defendant Summit County Mercantile Company, hereinafter called “corporation,” against Easmus Larsen, Neis W. Larsen, and Mrs. Neis W. Larsen. Neis W. Larsen does not seem to figure further in the case, and it
The case „was tried to the court without a jury, and, after hearing the evidence, the court, in substance, found the facts as follows: That at the time the property in question was seized by the sheriff, and at the commencement of this action, the plaintiff Ola "W. Larsen “was the owner of an undivided interest * 1 # * subject to a purchase money lien in favor of the Minneapolis Threshing Machine Company”; that the plaintiff Annie M. Larsen “was at no time the owner of any of said property”; that said property was purchased by Ras-mus Larsen; and that before it was seized upon execution he had sold a half interest to the plaintiff Ola "W. Larsen, “which sale was in good faith and for a valuable consideration. ’ ’ The court further found that the defendant corporation had obtained a judgment against Rasmus Larsen in the district court of Summit county; that execution was duly issued thereon; that the same was levied on the property in question by the defendant Ryan, the sheriff of said county; that said property was seized and taken from the possession of the plaintiff Ola "W. Larsen and said' Rasmus Larsen and by said Ryan sold as the property of said Rasmus Larsen to the defendant E. E. Hodson, and the proceeds of said sale were applied in satisfaction of the judgment aforesaid; that said Hodson, ever since said sale, has been in possession of said
One of the principal errors assigned is that the court erred in finding that Annie M. Larsen had no interest in said property. This being a law action, we, under the
What has just been said also disposes of the contention that the court erred in finding that Rasmus Larsen was the sole and original purchaser of the property in question. There is at least some substantial evidence to that effect, and hence that assignment must also fail.
It is next urged by plaintiffs that the court erred in limit
The contention that the court erred in limiting Ola W. Larsen to a judgment against the corporation only is, we think, also well founded. The court found that Ola
It is next contended that the court erred in admitting in evidence a copy of the execution under which the property was taken by the sheriff. Undoubtedly the sheriff
It is next insisted that the district court erred in receiving in evidence the “original findings of fact, conclusions of law, and decree” in the case where judgment was
“A judicial record of this state, or of the United States, may be proved by the production of the original, or by a copy thereof certified by the clerk or other person having the legal custody thereof. That of another state'or of a territory may be proved by the attestation of the clerk and the seal of the court annexed, if there be a clerk and seal, together with a certificate of the chief judge or presiding magistrate that the attestation is in due form.”
That section, however, as every lawyer knows, merely states, the general rule. See 2 Freeman, Judgments, section 407; 1 Elliot, Ev. section 212; 3 Jones, Com. Ev. sections 620, 621. Comp. Laws 1917, section 6865, requires the clerk of the district court to. keep a “judgment book” in which judgments must be entered. There are several other sections to the same effect. This court has repeatedly held that an appeal does not lie from a judgment unless and until the judgment has been duly entered by the clerk of the district court. Lukich v. Utah Construction Co., 46 Utah, 317, 150 Pac. 298. That case has been approved and followed in a number of other cases. We have also held that a judgment is enforceable by execution or by another action only from the time it is entered as aforesaid. Sweetser v. Fox, 43 Utah, 40, 134 Pac. 599, 47 L. R. A. (N. S.) 145, Ann. Cas. 1916C, 620. In order to prove a judicial record of this state, the party desiring to do so must therefore produce the original by producing the judgment docket where it is entered, or produce a copy of the judgment there entered duly certified to be a copy by the clerk of the district court in whose custody the docket is kept. The judgment, within the purview of section 7088, supra, as entered in the docket, constitutes the original and not the
It is also insisted that the facts stated in the sheriff’s answer are insufficient to constitute a plea of justification.
No assignment concerning that matter was filed, however,
While plaintiffs have assigned a number of other errors, yet, all the material assignments are covered by what has been already said.
Respondent’s counsel, however, insist that the court’s findings respecting Ola W. Larsen’s right to a one-half interest in the property in question is not supported by
For the reasons stated, the judgment in favor of E, E. Hod-