*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).
costs as
C.P. and Jeanne
Robert S. FREDERIKSEN *4 Frederiksen,
G.
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