8 Utah 284 | Utah | 1892
Tbe defendant, F. K. Morris, as trustee of the Gladstone Mining Company, made application in tbe United States land' office, at Salt Lake City, for a patent for a mining claim called tbe “Michigan Lode,” situated in Juab county, in this Territory. Tbe plaintiffs, as tbe alleged owners of a mining claim, called the “Almo Lode,” which conflicted with a part of tbe Michigan Lode, filed an adverse claim in the land office, and on the 2d day of April, 1888, began this action for tbe purpose of determining tbe right of possession of the ground in controversy, under tbe provisions of § 2326, Eev. St. U. S. The defendant filed bis answer to tbe complaint on the 7th day of April, 1888, Bennett, Kirkpatrick & Bradley being bis attorneys. Tbe cause was continued from term to term, until the September term, 1891, when, in the absence of tbe defendant and bis attorneys, it was set for trial on tbe 14th day of December, 1891, on which day it was tried in the absence of the defendant and his counsel, M. M. Kellogg appearing for plaintiffs, and a verdict and judgment were rendered in favor of the plaintiffs. On the 81st day of December, 1891, Marshall & Royle and Dickson & Stone entered their appearance for defendant, and procured a stay of proceedings in the case for a period
Counsel for plaintiffs contend that the court erred in ordering a new trial, because the notice and motion did not ask the court to set aside the verdict of the jury, nor for a new trial; and that in order to authorize the court to grant a new trial, notice of intention to move for a new trial must be given within ten days after the verdict is rendered, as provided in § 3402, Comp. Laws 1888; and that no such notice was given or filed. Section 3256, Comp. Laws 1888, provides that: “The court may, * * * upon such terms as may be just, relieve a party, or legal representative, from a judgment, order,
We do not think that § 3402 applies to a case of this kind, for, by that section, notice of intention to move for a new trial must be made within ten days after verdict, and contemplates a case where the party is present at the trial, either in person or by counsel, and is aggrieved by reason of something which occurred in the course of the trial, or by the verdict or judgment rendered in the case, or has discovered material evidence after the trial which he could not, with reasonable diligence, have discovered and produced at the trial; while § 2356 contemplates a case where relief is applied for on grounds differing materially from those mentioned in § 3402.
It is true the application did not ask that the verdict be set aside, nor that a new trial be granted, but only that the judgment and decree be set aside, but the effect of setting aside the judgment and decree would be to require a new trial before another judgment and decree could be made in the case. In Freem. Judgm. § 105, it is said: “But if they were not at the trial, or were not represented there, on account of some mistake or excusa
It is contended that, inasmuch as neither the defendant of record, nor the original attorneys of record, have asked that the judgment and decree be set aside, nor have complained that they are unjust, the court had no authority to set them aside upon the application of strangers to the record. Section 3187, Comp. Laws 1888, provides that an action or proceeding does not abate by the transfer of any interest therein; but the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding. No substitution of the real defendant in interest —the Bullion-Beck and Champion Mining Company — was made after the transfer to it of the property in controversy, in May, 1889, and the case was allowed to proceed in the name of the original defendant. But from the time of this transfer, the original defendant became only a nominal party, and had no interest in the result of the case, and Bennett, Kirkpatrick & Bradley, who were his attorneys of record, but who are not shown to be, nor to have been at any time, attorneys for the Bullion-Beck and Champion Mining Company, had no further interest in the defense of the action; so that an application to set aside the judgment and decree by Morris, as trustee, or by his attorney, was not necessary. But the grantee of Morris had the right to move to set aside the judgment and decree, as they affected it, and not Morris. Plummer v. Brown, 64 Cal. 429, 1 Pac. Rep. 703; Insurance Co. v. Aldrich, 38 Wis. 107; 1 Black, Judgm. §§ 316, 343; Ladd v. Stevenson, 112 N. Y. 325, 19 N. E. Rep. 842.