*1 plaintiff on date that nor claim that the failing was in

latter default for to make Leah D. MASSEY and the State payment. through Services, Appel- Social I would hold that under these circum- lants, buyer stances where the had the funds ready available and to pay- was make his convey good ment and if the seller could not HAUPT, Defendant

and marketable acres Respondent. released, were then to be it would have been indeed a the buyer useless act for to formally have tendered the funds. Hack v. Supreme Court Utah. Hayes, supra. significant It closing unsuccessful held February buyer tried on at least two subse-

quent occasions to a closing re-schedule

in each instance notified the seller that he ready perform. Buyer

was still wrote to

seller on March asking closing 13th for a

March 17th. buyer The counsel for the

wrote seller on February and in- it buyer ready

formed was to close 10 days.

within

I would the judgment reverse and re-

mand the case with instructions to the Dis-

trict Findings Court Fact on the

following questions: ready Was the seller to transfer Hills,

water shares to the town of Cedar prepared to dedicate to Cedar Hills the

easement for access the 16 acres?

2. Was the prepared seller to deliver

good and buyer marketable title to the

the 16 acres? above,

In both of the the seller should be $215,000

allowed the use payment

assist it to obligations. meet those Based findings, additional

should be accordingly. entered

STEWART, J., concurs in the dissenting

opinion HOWE, J. *2 proceedings coopera-

These were initiated tively by (here- Massey, and Leah D.

Social Services collectively “plain- inafter referred to as tiffs”) recoup expended monies for medi- expenses relating to birth of Miss cal child, Kip Massey’s minor Lane plaintiffs sought recovery The of mo- paid support of nies for the the child requiring pro- entry of a court order spective support payments by the defend- ant, Haupt. The Kip contend the defendant is the father of and, therefore, Lane should be held financially responsible support for relating expenses child and the medical its birth. allegations

The defendant contested paternity delays several finally and continuations the matter was adjudicated on Febru- in the District Court the mer- ary Following a trial on its, for the jury returned a verdict found that he was not defendant and en- father of the minor child. The court with the ver- judgment tered in accordance appeal. plaintiffs brought this dict and the argument plaintiffs’ The main failure to instruct concerns the trial court’s that: defendant, law, “As matter of Ches- Haupt, to have had ter Dean is deemed plaintiff, Leah D. intercourse with the one occasion in the Massey, on at least August, and in the month July, month of Conder, Cannon, M. Ted L. Gerald September, 1973.” City, request for the instruction plaintiffs’ The Collard, Downes, Jr., Kathryn alleged upon William W. the defendant’s was based respon- respond for defendant for admis- pursuant to plaintiff, dent. sions tendered Proce- of the Utah Rules Civil Rule 36 judge refused to dure. The district MAUGHAN, Justice: Chief because the defend- instruction plaintiff appeals from the District The to the were not called ant’s admissions Court’s which found the defend- ob- prior attention court’s plaintiff’s ant was not the father of the instruc- jection refusal to tender the minor the cause with child and dismissed tion. prejudice. We affirm. All refer- 36(b), Annotated, 1953, U.R. as The sanctions of ences are to Utah Code C.P., self-executing1 and admissions are not amended. Motors 1. See Gilbert v. General U.S. (2nd explained: Gilbert the court “The rule is not of Rule rule must be offered obtained under the into evidence at trial of action removing expedite is to the trial essen on the admiss who wishes undisputed tially issues from consideration Thus, although recognized we have ions.2 time, thereby avoiding trouble and pursuant that matters admitted Rule 36 expense required which otherwise would be *3 conclusively are deemed established3 that prove those Effectuation of issues.6 this party who fact does not relieve the wishes party demands the who wishes to rely from the neces admissions operation gained by on admissions the introducing sity of them into evidence. rule, of the make the court of those aware When admissions are offered the possible at the time. admissions earliest subject they become into evidence to all pertinent objections admissibility which We believe addition, pursuant be may interposed.4 present introduce the admissions in the may per to Rule the court case, from on relying foreclosed them those mit withdrawal or amendment of the ad requested in admissions instruction to presentation missions when mer jury. Court’s refusal District thereby its of the action will be subserved plaintiffs requested Instruction No. and the who obtained admissions was, therefore, judg 21 not error and the satisfy fails to the court that withdrawal or The only ment is affirmed. other issue preju amendment of the admissions would presented by appeal on in maintaining dice him action or his de without merit. fense on the merits.5 case, present relying In the rather than in question, the admissions OAKS, JJ., concur. HOWE attempted, during presentation of their

case, to establish the fact of intercourse at STEWART, J., in the result. concurs testimony the times in through the HALL, fact, (concurring): of D. Justice during Leah this testimony, Miss refuted admis- concur, I but observa- part by explaining sions in she had not regarding plaintiffs’ point tion second sexually been involved with the defendant challenges propriety of an July in months or September. While fee $50 award of as costs. testify she did the couple had sexual not We do address the costs issue since it August, intercourse in strong- this fact was ly appeal, contested the defendant. was raised for the first time on this evidence.”) be

self-executing introduced into See also advantage 8 and if one would take Miller, provisions Wright supra necessary of its 739. all facts to in- at consequences voke the way must be made some 1003; appear.” Wright Id. at see 8 Miller, Procedure, Gardner, Federal Practice Park Sec. v. W. W. & W. B. Inc. See 2264, p. (1970). Inc., (1977). 739 Village, 734 West 568 P.2d Incorporated Corporation, 2. Avant v. Polaroid affirmed, F.Supp. (D.Mass.1977), 441 898 572 Broy Company, v. Inland Mutual Insurance (1st F.2d 889 439 U.S. Cir. W.Va., (1977). 233 S.E.2d 131 (1978). S. Realty Ap Kemble Fischer Board Trust v. - Concord, -, peals Mass.App. 402 5. See Warren v. International Brotherhood of (1980); Georgia 100 N.E.2d National Bank v. Teamsters, Chauffeurs, Warehousemen Hill, Ga.App. 148 252 S.E.2d 193-194 Helpers America, (8th (1979). (“As to answer the defendant failed 1976); Triumph Motorcycle Westmoreland admissions, requests for the matters contained (D.Conn.1976). 71 F.R.D. 192 admitted; C.P.A., in the were Sec. However, (Code Ann., 36(a) 81A-136(a)). Sec. resulting these matters admissions constitute Phillips, (N.D. 6. See Burns v. 187 F.R.D. proof they and of evidence and before can be Georgia 1970); Courts, ed., Wright, Federal 3d facts, they considered the trier of the must 89, p. Sec. to tax having been made below no motion 54(d)(2),U.R. provided

costs as

C.P. and Jeanne

Robert S. FREDERIKSEN *4 Frederiksen,

Respondents, Parsons, LaFLEUR, Mary Helen

Hal A. Moore, Eliason, Alan T.

Verne Charles

Parsons, Vanlangewald, A. David K. Jill Tweedie,

Smith, Margene K. and Edith

Walker, Appellants. Defendants

Supreme Court of Utah. Irvine, City, for de- Lake

David R. Salt fendants and Lake Philip Pugsley, Salt C. respondents. OAKS, Justice: plot to a quiet This is an action owners, and are the record land. Plaintiffs under a tax purchasers are the defendants quieting title deed. From appeal. The issue defendants plaintiffs, the short stat- applicability protect tax designed to ute of limitations titles, relationship to the and its possession. All for adverse requirements Anno- Code statutory citations are to Utah tated, 1953. vacant lot. property is a disputed improve- any party has constructed

Neither any it at any work on performed ments or 1966, the to this lawsuit. time material County for property was sold pay taxes. failure the then-owner’s property at County sold the (hereafter re- defendants a tax sale to the received purchasers”), who “tax ferred to as