*1 Steed, 19 Utah v. Foster permitted, we FINANCE AND THRIFT PIONEER COM interlocutory to he taken an PANY, corporation, Plain tiff and summary judgment was whose motion for v. re erroneously In that case we denied. Ray Powell, POWELL Rae Dahl and Bonnie the trial court’s denial

versed Appellants. Defendants and and remanded defendant Supreme Court of Utah. problem confronting Another July 5, 1968. court claim below was by the defendant would insurance carried insurance, that of primary

be the be driving car

the non-owner

secondary. agree with contention. We Property and Union

See National Farmers Group,

Casualty Co. Farmers Insurance

supra.

We, therefore, remand this case to with directions set aside respondent

summary judgment granted to enter a in favor appellants declaring that defend- auto- policy coverage

ant’s affords that such

mobile driven Christensen coverage

coverage is primary Surety Casualty Company is

Western & appel-

secondary. are awarded to Costs

lants. J., and CALLISTER JJ., concur. J.,. concurs in the result.

scheme of wherein latter in-’ duced to endorse him the check issued to defendants and representing amount, the loan *2 livery furniture, offering of the variety delivering for of excuses not shortly out.bankruptcy same. took thereafter, listing defendants, along with about 500 others whom likewise he had duped operation. kiting sort contract partici- Sole whether Pioneer pated in such fraudulent machination or reasonably should have it. been aware of discovery process, Under the on and mo only judgment, evi dence adduced was affidavit of Pioneer’s manager depositions of the defen dants, follows, substantially was as and none which was counter- refuted responsive pleading:1 affidavit or Stewart, Stewart, Topham & The affidavit asserted that defendants Justin City, appellants. Harding, buy Salt Lake Pioneer seeking a loan to Stanley. They brought furniture from Swan, City, for re- Lake Allen M. Salt financial The statement. to be was spondent. examining secured furniture. After statement, manager affiant the financial summary judgment for an Appeal from a independently rating ran a credit on defen- mortgage unpaid balance due on a note and good dants and concluded risks purchase contract to a incident up signed Defendants a note and $1750. Stanley, buyers, and between mortgage de- and check was plaintiff. Affirmed with costs seller. livered to them in that amount made answered, Stanley, complaint, able to them and the furniture To dealer, particeps in a fraudulent which check cleared the saying Pioneer was bank with Yates, (1960). Dupler See Stanley’s defendants’ and endorsements ments each month. Not received the- thereon; plaintiff furniture, concerned, that relied on defen- representation riding dants’ that had the fur- while day around one to Stan- residence; niture at that defendants ley’s and found a notice store on door personally monthly pay- announcing The defen- ments, that payments would not have dants made no further on the note. made the loan had it been aware it was gone along Defendants had understanding ception the defendants Stanley, largely strength between on the make the the latter would them, of what their friend had told payments, or that the defendants did not al- arrange- no time told Pioneer about their ready possession; have the furniture in their ment with who had told them by any- put notice They conceded that did one that this was other than a conventional know whether or not Pioneer was involved loan, perpetrating Stanley’s operandi. modus frauds sale of his furniture. pleading The proof reflected only the Nothing facts related above. depositions The of defendants were developed any fraud, particeps that reflected effect that had never met *3 fraud, any in or that Pioneer had occasion by they get were told a friend that any to believe there was fraud in the trans Stanley paying from without action. that, We believe under the de it, Stanley pay- because veloped any facts related without ments; advice, that with such defendants way contradiction of counter-affidavit Stanley went to and selected certain items responsive the trial court furniture; them advised grant had to the motion for go any to a list to one of .little summary judgment rules, under the there companies displayed; of loan which genuine present no fact to issue to expressed choice, defendants jury. a suggested Pioneer, they voluntarily whom to

went, any dealings prior had Having court, affirmed the trial which company; with this the first that when in substance and effect concluded that the payment due, "-to defendants' facts exonerated from gave cash, who them which subject any equitable which would it to Pioneer, personally paid defendants to Stan- fenses to its to 'it would ley cautioning them not to tell Pioneer of points seem that all of the defendants’ strange arrangement; appeal al- urged points must fail. These pick up told so had to defendants were that was not a holder in due n any- J., dourse therefore was vulnerable to and CALLISTER-' equitable JJ., in fraud in defenses concur. inducement, failure of a condition' re-, ELLETT, (concurring in the precedent and failure of consideration. suit). Plaintiff in asserts its answer and coun- However, I concur in the result. I wish to terclaim estopped that defendants were point cross-appeal out that the the' involves setting up the defenses mentioned. grant refusal of the trial court to a motion is moot This under decision of this case. declaring that the says guilty obtaining that the actions pretenses. defendants fraudulent and that we in adjudge should all of Whether elements involved should take were established the rec- appropriate anticipate We do not judge deem ord before a matter for might what might Apparently his consideration. he did not future, point, do not decide this feel that This were so established. particularly since it finally determined, has matter do with and so cross-appellants the instant appeal a have no as judge’s

matter of a result of the Finally, plaintiff wants us to assess grant summary judgment. refusal attorney’s appeal fees for this under the We allowed an intermediate provisions mortgage. note and This grant summary a refusal to a evidence, does not receive and this Steed, the case of Foster v. 19 Utah 2d phase contention will have to ; 432 P.2d (1967) in Christensen be determined elsewhere. Exchange, Farmers Ins. we held that it was not lengthy "Counsel for defendant filed improper contrary ruling to be memorandum of the law incident to the mo- entered court on an summary judgment, setting out the terminated a history Stanley’s operations and author- we have not as said liability ities to his to the defen- *4 party that a can as a matter of dants which latter observations are not the denial of his motion for a sum here. The memo- mary judgment. simply pro- randum brief case, weight purpose bative in this so that no given For reasons I concur wóüld be holding served to canvass its opinion. contents. of the main

205 way open guard against the dis- question agree I excepted charge of debts the character of or obtained of whether discharge justify. if the facts pretenses “has false action.” of the instant presume the I lower court will at of, Bankruptcy the Federal make a determination of 17a(2) Section of party pretenses, if either cares false provides Act in substance or bankrupt determination, from that bankruptcy release a final shall it may are except such as liabilities his debts pre-

obtaining money property by false neither defendant has

tenses. While bankruptcy, petition in

filed a it is wise make

a creditor have proper

finding of that in bank-

The reason for is pre- ruptcy the creditor show Utah, except discharge is tenses when claimed STATE by the record rendered upon See an- RENZO, Appellant. which the based. Tony Defendant p. also A.L.R. at 374. See notation Company Provo v. Finance National Supreme of Utah. Court Daley, 14 Utah page Reports, the Utah 266 of July 9, where page is said : P.2d at comports it better

In our justice to orderly processes respon- to bear the claiming proving

sibility

the full benefit whatever character original possesses in the

cause action he thereby, than bound upon the cause another trial same

to allow raising

of action issues which original

been dealt with purposes

This rule also serves

bankruptcy at the time leaves act and same