171 P. 147 | Utah | 1918
Plaintiff commenced this action to compel the defendant a mining corporation, to transfer upon its stock books certain shares of the capital stock of said corporation, of which he claimed to be the owner, and to issue to him new stock certificates for the ones which he presented for transfer. The defendant in its answer denied that plaintiff was the owner of said stock, and also interposed affirmative defenses in which it averred that the plaintiff never obtained title to said stock; that he obtained the same unlawfully; and further pleaded that the plaintiff and defendant had fully compromised and settled plaintiff’s claim to said stock and that for that reason he was not entitled thereto. In other words, the defendant pleaded an accord and satisfaction respecting plaintiff’s claim to said stock. Plaintiff filed a reply in which he reiterated his right and title to the stock; admitted the settlement and accord and satisfaction set forth by the defendant, but averred that the same was obtained by fraud and duress and was not binding.
All the assignments of error, except two, assail the findings of fact, and the two referred to assail the correctness of the conclusions of law and judgment. This requires us to examine into the evidence. The defendant challenges our right to do that for the reason that plaintiff’s proposed bill of exceptions was not served, settled, and allowed within the time required by our statute. The defendant has filed a motion to strike the bill for the reason just stated.
The record shows that the motion for a new trial was denied December 30, 1916. The record also shows that the same was denied while plaintiff’s counsel was present in court and that he at that time, and as a part of the order denying the motion for a new trial, obtained the following order:
The record in this case, in and of itself, is strong, if not conclusive, evidence that the rule in the foregoing cases is sound and should not be departed from. ‘The order which it is claimed was made on the 27th day of January, 1917, is not signed by any one nor filed in any case, and is
When the adverse party challenges our right to examine into the evidence because the same has not been properly settled in a bill of exceptions, we are required to examine the whole record to determine whether the bill
The record in this case affirmatively shows that the plaintiff’s bill of exceptions was not settled within the time required by our statute, and, further, the record does not show any proper order extending the time within which the bill of exceptions could be settled and allowed under the
As before stated, the principal assignments challenge the sufficiency of the evidence to sustain the findings of fact. In the absence of a proper bill of exceptions we are bound to presume that the evidence justified the findings, and hence they must be sustained. The other assignments
In view of the foregoing there is but one result permissible, and that is to affirm the judgment with costs to the defendant. Such is the order.