169 P. 951 | Utah | 1917
On July 31, 1916, the plaintiffs commenced this action against R. Evans and J. R. Wilson, who were alleged to be partners, to recover damages for an alleged breach of the contract hereinafter referred to. On August 7, 1916, plaintiffs filed their amended complaint in which the St. Joseph Stock Yards Company, a corporation, hereinafter called respondent, is made a party to the action with said Evans and said Wilson. After a trial to the court without a jury, to wit, on the 24th day of February, 1917, the court, on plaintiff’s motion, entered judgment dismissing the action as against the defendants Evans and Wilson, made findings of fact and conclusions of law, and entered judgment upon the merits in favor of respondent, dismissing the action against it. The plaintiffs, hereinafter styled appellants, appeal.
Respondent has interposed a motion to strike the bill of exceptions upon the ground that the same was not settled and allowed within the time prescribed by our statute, and that the district judge had no authority or jurisdiction to settle and allow the same at the time it was signed. The
"When a party desires to have exceptions taken at a trial settled in a bill of exemptions, he may, within thirty days after the entry of judgment if the action were tried with a jury, or after service of notice of the entry of judgment if the action were tried without a jury, or after service of notice of the determination of a motion for a new trial, prepare a draft of a bill and serve the same, ór a copy thereof, upon the adverse party.”
That section also provides that the adverse party may, within ten days after the bill of exception is served upon him, propose amendments thereto; and further provides when and how the bill shall be settled and allowed in ease amendments are proposed and the party proposing the bill refused to agree to them. The section further provides that in case no amendments are proposed the judge may settle and allow the bill without notice, etc. It is also provided that in case the bill is settled and allowed by the judge it must then be filed by the clerk. It is, however, also provided that in case amendments are proposed the party desiring to settle a bill of exceptions may deliver his proposed bill, together with the amendments of the adverse party, to the clerk, who shall present the same to the judge for settlement and allowance, which, whether it is delivered to the clerk by the party aforesaid or is by such party personally presented to the judge, must upon notice to the adverse party, be settled and allowed by the judge within ten days after its receipt from the adverse party. The judge certifies that he received the bill in question from the clerk on the 10th day of May, 1917, which was more than 30 days after the motion for a new trial was denied. In view, however, that no notice of the overruling of the motion for a new trial appears to have been served in this case, respondent’s counsel make no claim that the bill was not served on them
“Now, unless the filing mark of April 24, 1917, above set forth, showing a filing with the clerk before settlement, is the legal equivalent of the ‘delivery to the clerk for the judge’ within the meaning of section 3286 of the Complied Laws of Utah, 1907, then the order of settlement made by the judge, on the 10th day of May was not within time, and is void for that reason. It is clear that the appellants had the proposed bill in their possession on the 24th day of April, 1917, when the filing before settlement was made. If the appellants did have the bill in their possession on the 24th day of April, 1917, then it was incumbent upon'them, if they sought to comply with the statute, to either present that proposed bill to the judge who tried the case, or to ‘ deliver it to the clerk of the court for the judge,’ within ten days or not later than the 5th day of May, 1917. Unless they made the presentment to the judge in person or made a delivery to the clerk for the judge on or before said 5th day of May, then the presentment was not within time, and a presentment of the 10th day of May is without time, and of no force and effect.
“The respondent contends that the mere ‘filing before settlement’ with the clerk of the district court on the 24th day of April, 1917, is not a delivery to the clerk for the judge; and that such filing before settlement on said date can have no force or effect.”
Counsel in their brief further say:
“The question which is presented by the contention of the respondent is, as we believe, a new one in this state. It involves the meaning of what has been called a ‘filing before settlement.’ If that ‘filing before settlement’ is the legal equivalent of a ‘delivery to the clerk of the court for the judge,’ then, of course, the contention of the respondent cannot prevail; but the respondent submits that it cannot be held to be such an equivalent, that the only effect of a mere filing with the clerk before a settlement is to make the clerk or his deputy a depositary of the party seeking to settle the bill.”
In our judgment respondent’s counsel construe and apply
Proceeding now to a consideration of the merits, we remark that this action is based on a written contract which reads as follows:
‘ ‘ This agreement made this-day of September, 1915, Love & Meek agree to sell to J. E. Wilson 151 head of horses for $70.00 per head and one dollar and fifty cents to deliver to Bend. Wilson also to pay $1,500 down as a bond to take the*310 Bal. of horses due Love & Meek under their contract with Bill Brown, approximately 600 head, or all Brown could gather by 31st day of October, 1915. All horses to be merchantable mares and geldings and over 15 hands high and four years olds and up, and to bé paid for at the corrals designated by Wilson. Delivery to be made each week in not less than two car loads. Fifteen hundred dollars to apply on last delivery.
“ [Signed] Love & Meek, by Otto Meek.
“J. R. Wilson.
‘ ‘ Witness: Bill Brown. ’ ’
As stated at the opening of this opinion, appellants brought this action against both Evans and Wilson and also against the respondent. In doing that they proceeded upon the theory that Evans and Wilson were the agents of the respondent, who was their undisclosed principal, and
‘ ‘ That all of the said horses mentioned in said written contract which the said defendant stock yards company refused to receive from the said plaintiffs were, at the time and place when the same should have been delivered by the plaintiffs, and should have been received and paid for by the said defendant under said contract, of the fair market value of more than $70, to wit, of the value of at least $90' each; and that the plaintiffs therefore did not sustain any damage whatsoever by reason of the refusal of said defendants or either of them to receive and pay for the remaining 488 head of said horses or from the breach of said contract.”
"Spokane, Washington, Dec. 28, 1915.
"This is to certify that J. D. Wilson has settled in full all he owed Love & Meek of Miles City on contract regarding horses purchased Sept. 7th, 1915, and will look to St. Joe Horse & Mule Co. for balance. Otto Meek.”
In view of the foregoing, it is unnecessary to further discuss the other assignments of error, nor the other reasons urged by respondent’s counsel why the judgment should be affirmed.
The judgment is therefore affirmed, with costs to respondent.