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involving the constitutionality of the act cre Action by James B. Russell against Caleb ating the county of Orange, there is found R. Hank and his wife. Decree for plaintiff. an exhaustive discussion of the same prin From an order setting aside a portion of the ciple, with the citation of many cases bear decree, plaintiff appeals. Reversed. ing upon the question. Among other things, it is there said: "Not only had the legis

W. L. Maginnis, for appellant. J. H. Maclature the power to provide upon what con

millan, for respondents. dition or contingency the provisions of the act might be carried into effect, but also to ZANE, C. J. In the complaint filed in provide within what time it must be done, this cause the plaintiff described a promisif done at all."

sory note payable to him made by the de It is also plain that the attempted repeal fendant Caleb R. Hank for $4,592.25, alof the ordinance declaring Orange County leged nonpayment, and prayed judgment for within the provisions of the act was of no the amount due; and, for a second cause avail. When Orange county once came of action, he set out the same note and a within the provisions of the act, it was there mortgage executed by Caleb R. Hank and for all purposes; as fully and completely . America L. Hank on real estate to secure there as if it had passed directly under its it, and alleged a breach, and the usual prayprovisions at the date of the enactment. er of foreclosure, "and for other and further We do not perceive how it can evade the relief," without expressly asking for a judgforce and effect of this statute of the state ment for any deficiency in case the mort(which, after the passage of ordinance No. gaged property should not bring enough to 14, applied to it) in any different manner or satisfy the decree. It appears from the recto any greater extent than it can escape the ord that no appearance was entered by any force and effect of any other statute of the of the defendants except Minnie P. Woods, state. If it can do so in this instance, it has who entered a disclaimer; that a default the power to disorganize, for it was created was duly taken; and that on April 4, 1892, under an act involving the same principle. the court found in the decree that all the

As to the third contention, from the facts allegations of the complaint were true; and recited we have no hesitancy in saying that that there was lue on the note described the room used as a library room is not suffi in the complaint $5,057.72, and ordered a cient, and not such as is contemplated by sale of the property to satisfy it. The de the statute. The board should provide a cree also contained the following: “And it suitable library room. The writ should is

is further adjudged and decreed that if the sue, and it is so ordered.

moneys arising from the sale shall be in

suficient to pay the amount so found due to We concur: MCFARLAND, J.; HARRI

the plaintiff as above stated, with the inSON, J.; PATERSON, J.; DE HAVEN, J.; terest, costs, and expenses of sale, the sherFITZGERALD, J.

iff shall specify the amount of such deficiency and balance due the plaintiff in his

return of said sale, and, on the coming in RUSSELL V. HANK et ux.'

of said return, a judgment of this court

shall be docketed for such balance against (Supreme Court of Utah. Aug. 31, 1893.)


defendant, who is personally liable for the 1. Under 2 Comp. Laws, & 3013, providing

payment of the debt secured by said mortfor an entry of judgments and orders in term gage, pay to the said plaintiff the amount of time or vacation, the court may enter a judg such deficiency and judgment, with interest ment in vacation where the submission was made in open court.

thereon at the rate of 8 per cent. per annum 2.2 Comp. Laws, $ 3460, provides that

from the date of said return and judgment; there shall be but one action for any debt se and that the plaintiff have execution there cured by mortgage; and, where it appears by the return of the officer making a sale under

for. It further appears from the record the decree that there is a balance still due, a

that on the same day the court ordered the judgment may be entered against defendant sheriff of Weber county to sell the property personally liable, and an execution may issue

described in the mortgage and decree, and therefor. Held, that an execution cannot issue for any deficiency on a mortgage sale until a

that he sold the same in pursuance thereof judgment is entered therefor after the return on April 28, 1892, for $2,702.32 less than of the officer.

the amount mentioned in the decree and 3. Where, in an action to foreclose a mortgage, the personal liability of one of the de

interest and costs; that the same was shown fendants was alleged, it was error to strike

by the sheriff's return made on the same out the portion of the decree providing for a day; and that on the same day an execution deficiency judgment if the property mortgaged

was issued commanding the sheriff to make failed to sell for enough to satisfy the debt, though the complaint contained no express

such deficiency out of any property of the prayer for such relief.

defendant subject to execution; and that Appeal from district court, Weber county;

this execution was levied on such property. James A. Miner, Justice.

This execution recited that a deficiency

judgment had been entered on the same 'Rebearing denied.

day of $2,702.32. with accruing interest and

costs, but no such judgment or any judg- , the clerk must docket a judgment for it ment authorizing the excution appears in against the defendant personally liable, which the record, and we must presume there was then becomes a lien on the real estate of none entered, or it would uave appeared in such judgment debtor, as in other cases, the record. It also appears that the portion on which execution may issue. If the comof the decree above quoted, and the execu plaint contains the ordinary prayer of fore tion purporting to be issued on the defi- closure, this is the only method. It is imciency judgment, and its levy, were set aside material whether the complaint contains a by an order of the court made on August 15, prayer for a deficiency judgment. Such a 1892, on motion of defendant, on the ground judgment cannot be rendered or docketed that there was no prayer in the complaint until the officer makes his report showing for a deficiency judgment. It also appears such deficiency. Until such report the that this order of the 15th of August was amount of the deficiency cannot be known. also set aside by the court on the 5th of Oc- The amount of money due must be found tober following on motion of the plaintiff. in the decree, and the defendant personally It further appears from the record that this liable to pay it must be ascertained; and order of October 5, 1892. was set aside by the officer or person making the sale must the court on January 9, 1893, on motion of specify in his return the amount of the de the defendant, and that the order of August ficiency, if any; and the clerk must docket 15, 1892, was reafirmed and reinstated, and the judgment for the amount, and then it that the motion was argued and submitted has the effect of other judgments. The fact in open court, but that the order was en that the decree was upon a default makes tered in term time when the court was not no difference. The portion of the decree in session. The plaintiff has appealed from quoted above and set aside was immaterial, this order of January 9th, and insists that except so much of it as found the personal its entry when the court was not in session liability of Caleb R. Hank. The part quoted was erroneous, and that it was also errone above could not be treated as a deficiency ous because it reinstated and reaffirmed the judgment, and a valid execution could not be order of August 15, 1892.

issued on it; and the execution issued without The legislature has declared that judg a judgment docketed for the deficiency, as ments and orders of the district court may shown by the officer's return, was of no be entered in term time or vacation. 2 effect. Leviston V. Swan, 33 Cal. 480. Comp. Laws Utah 1888, 8 3013. In view of Some of the cases to which we have been this provision, we hold that the district court referred, if followed, would incumber this may enter a judgment, decree, or order when plain and simple method of procedure markthe court is not in session if the submission ed out by the statute with old modes and was made in open court, as in this case. requisites, that can serve no useful purpose, Section 3460, Comp. Laws, did prescribe the and which the statute was designed to avoid. mode of procedure in cases of the class un But the effect of the order appealed from der consideration. It is as follows, so far was to strike out the portion of the decree as necessary to quoto it: “There can be that found and decreed that the defendant but one action for the recovery of any debt, Caleb R. Hank was personally liable to pay or the enforcement of any right secured by the amount found in the decree. His permortgage upon real estate or personal prop sonal liability was alleged in the complaint, erty, which action must be in accordance and was a material allegation, and the defendwith the provisions of this chapter. In such ant, by his default, admitted it. For the action, the court may by its judgment di reason that the effect of the order appealed rect a sale of the incumbered property or from was to strike out of the decree this so much thereof as may be necessary and material finding of the personal liability of the application of the proceeds.

the defendant Caleb R. Hank, it must be And if it appear from the return of the held erroneous. The other portion stricken officer making the sale that the proceeds are was immaterial, and the striking of it out insufficient and a balance still remains due, was not reversible error. judgment can then be docketed for such bal If the deficiency has not been paid or ance against the defendant or defendants settled, the plaintiff's right to a deficiency personally liable for the debt and it be judgment still exists, and it will be the duty comes a lien on the real estate of such judg of the clerk of the district court in that ment debtor as in other cases on which ex case to docket it, and to issue execution ecution may be issued.” This section speci thereon if demanded by the plaintiff. We do fies the remedy for the collection of a debt not regard the case of Brereton v. Miller, secured by a mortgage against the person 7 Utah, 426, 27 Pac. Rep. 81, referred to by llable to pay it. First, it declares that there counsel on both sides, as analogous to the shall be but one action for its recovery, and one in hand. It became necessary in that that such action must be in accordance with case to adjust equities between the defend. the section; second, that the judgment must ants, and, in doing so, to subject the proper. direct the sale of the incumbered property, ty of the defendant who owed the debt, or so much as necessary; third, when the if any could be found subject to execution. return of the officer shows a deficiency, that to the payment of the decree, before re

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sorting to the property described in the to a piece of real estate, and, not being in mortgage foreclosed, which belonged to an. writing, was within the statute of frauds; other person. The order of the district court and also, that the transaction related to a appealed from is reversed, and the cause is partnership which was unsettled, and was remanded to that court.

not subject to an action at law. The action

of the court in overruling this motion raises BARTCH and SMITH, JJ., concur.

the only material question in the case. This
court, in Knauss v. Cahoon, 7 Utah, 182, 26
Pac. Rep. 295, held, under circumstances

similar to those in this case, that the stat

ute of frauds had no application. Especial(Supreme Court of Utah. Aug. 30, 1893.) ly is this so where, as in this case, the statSTATUTE OF FRAUDS-PARTNERSHIP-ASSUMPSIT. ute is not pleaded. As to the question of

1. Where two persons agree to each fur partnership, we do not think the position of nish one-half the money to purchase real es

counsel for the defendant tenable. The tate, each to have a half interest in the deal, and the title is taken in the name of one, who

land in question had been sold, the plaintiff's afterwards sells the land at an increased price, share of the proceeds paid to the defendant, the statute of frauds has no application.

and there was nothing remaining to be done 2. A recovery in an action for money had and received against the person holding the

but for him to pay it over when demand title cannot be defeated on the ground that the was made for it. There appears to be no transaction related to a partnership which is error in the ruling of the trial court. The unsettled, and not the subject of an action at law.

judgment is affirmed. Appeal from district court, Weber county; ZANE, C. J., and SMITH, J., concur. James A. Miner, Justice.

Action by Willard L. Coffin against James T. McIntosh for money had and received. From a judgment for plaintiff, defendant

AMERICAN PUB. CO. v. C. E. MAYNE appeals. Affirmed.

CO. H. P. Henderson and H. H. Henderson, (Supreme Court of Utah. Aug. 30, 1893.) for appellant. Evans & Rogers, for respond


Where the certificate to a deposition is

insufficient, or the deposition is defective in BARTCH, J. The plaintiff in this case any other respect that can be remedied by rebrought this action to recover a certain sum

taking it, and no motion to suppress it is made,

objection thereto is waived, and cannot be of money alleged to be due him from the

made when the deposition is offered in evidefendant. He set up two causes of action dence on the trial. for money had and received.

The jury

Appeal from district court, Weber county; rendered a verdict in his favor for the sum

James A. Miner, Justice. of $750. The defendant then moved for a

Action by the American Publish Comnew trial, which motion having been over

pany against the C. E. Mayne Company to ruled he appealed to this court. The contro

recover damages for breach of contract. versy grew out of a real-estate transaction.

From a judgment for defendant, plaintifr The evidence shows that the defendant and

appeals. Reversed. one Armstrong had a piece of property, and the defendant made an offer to the plaintiff Dey & Street, for appellant. Kimball & to the effect that if he would loan him $200 Allison and A. R. Heywood, for respondent. he would let him into the deal at cost. The plaintiff accepted this offer, loaned him the ZANE, C. J. This is an action to recover $200, and then put in $250, the defendant damages in consequence of a breach of the having furnished the same amount. By this contract described in the complaint. On arrangement the plaintiff was to have one the trial of the cause the plaintiff offered to half of defendant's interest, and was to have read in evidence a deposition taken under a contract for it. The plaintiff was also to a stipulation of counsel, waiving all objecpay one-half of the defendant's share of the tions to the form of taking it, but reseryindebtedness against the property. The de ing to each party the right to object to all fendant, it appears, represented to the plain- questions and answers on the ground of irtiff that he had a contract for the interest of relevancy, immateriality, or incompetency. which the plaintiff was to have the one The notary public who took it stated in the half. The property was afterwards sold at caption that it was taken in pursuance of an advance in price, while the plaintiff was the stipulation, the time and place of taking absent from the territory, and the defendant it, and that the witness was duly sworn received plaintiff's share of the proceeds, to answer the interrogatories attached. but failed to turn it over to him upon de There was also a jurat at its conclusion, mand. At the trial counsel for the defend- showing that the witness was duly sworn. ant moved to strike out the testimony of the | The defendant objected to its being read, plaintiff on the ground that it was shown on the ground that it was not properly certhereby that the transaction was in relation tified by the officer taking it, and the court

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sustained the objection. This ruling the Judgment of the court below is reversed, plaintiff excepted to, and assigned as error. and the cause is remanded.

The deposition had been on file in the case a year and a half before it was called for BARTCH and SMITH, JJ., concur. trial. The objection was not because any question or answer was irrelevant, imma. terial, or incompetent. The defect was one that could have been remedied by adding COOMBS v. SALT LAKE & F. D. RY. CO. a proper certificate, or by retaking the depo

et al. sition. An objection to the form of a ques. (Supreme Court of Utah. Aug. 30, 1893.) tion, or to the form of an answer, should RAILROAD CONSTRUCTED IN STREET ABUTTING be made when the question is asked or the

OWNER-ESTOPPEL TO ENJOIN OPERATION. answer is given; but if the objection is on

A landowner does not, by mere silence

and inaction at the time of the construction of the ground of immateriality, irrelevancy, or a railroad on part of his land, and on a street incompetency, it may be taken when the in front of his premises, lose his right subse offer to read the question or answer is

quently to obtain an injunction restraining the made. If the certificate is insufficient or the

operation of the road unless damages are paid. deposition is defective in any other respect

Appeal from district court, Salt Lake counthat can be remedied by retaking it, a mo ty; G. W. Bartch, Justice. tion to suppress should be made before the Action by Martha Ann Coombs against case is called for trial. The defendant could the Salt Lake & Ft. Douglas Railway Comnot remain silent until too late to remedy pany and others for an injunction restrainthe defect, and then surprise the plaintiff ing the operation of its road by defendant by such an objection. Such a practice would company across land belonging to plaintiff, be unfair. The defendant should have enter and on the street abutting on such land. ed a motion to suppress the deposition be From a judgment for defendants, plaintiff fore the case was called for trial. By fail. | appeals. Reversed. ing to do so, he waived his right to such an James A. Williams, for appellant. Le objection. The correct practice is laid down

Grand Young, for respondents. in the case of Doane v. Glenn, 21 Wall. 33, in the following terms: “None of the objec ZANE, C. J. It appears from this record tions to the reading of the deposition go to that the plaintiff was at the time of the the testimony of the witness. All of them

wrong complained of, and from tbence relate to defects and irregularities which hitberto, the owner of the north half of might have been obviated by retaking the lots 3 and 4 in block 1, plat G, Salt Lake deposition. It does not appear that any no City; that they are bounded on the west by tice beforehand was given to the counsel of U street, and on the north by First street; the plaintiffs that they would be made. In that about the 1st day of June, 1888, the desuch cases the objection must be noted fendant completed its railway on that part when the deposition is taken, or be pre of the streets mentioned, and commenced sented by a motion to suppress before the running trains thereon; that, in constructing trial is begun. The party taking the depo its road, it took a few feet off of the corner sition is entitled to have the question of its of one fractional lot, and ran its track admissibility settled in advance. Good faith diagonally across U street, on the west side and due diligence are required on both of the lots, and along First street, on the sides. When such objections, under the cir north side of them, and in so doing made a cumstances of this case, are withheld until deep cut in both streets, so that communicathe trial is in progress, they must be re tion between the lots and streets was very garded as waived, and the deposition should materially interfered with; and that the noise be admitted in evidence. This is demanded of defendant's trains, and the smoke and cinby the interests of justice. It is necessary ders from its engines, in operating the road), to prevent surprise and the sacrifice of sub greatly depreciated the value of plaintiff's stantial rights. It subjects the other party ground. It further appears that plaintiff to no hardship. All that is exacted of him took no steps to prevent the construction of is proper frankness." To the same effect is the road, by applying for an injunction or Howard v. Manufacturing Co., 139 U. S. 199, otherwise, nor does it appear that she con11 Sup. Ct. Rep. 500. This rule is not in sented to its construction. It also appears conflict with the statutes of this territory. that the road was constructed with the Such legal objections as the defendant re permission of the city council, and that all lied upon in this case may be waived by a the property of the defendant is mortgaged failure to insist on them in due season. It to its full value, and that the company is is true that the supreme court of California perfectly insolvent. On March 1, 1892, the has held 'otherwise, under a statute similar plaintiff commenced this action, and prayed to our own. On principle as well as author that the defendant might be enjoined from ity, however, we are of the opinion that the operating its road on that part of its line rule as above stated is sound.

described, unless within a definite time, to be It is unnecessary to consider the other er named by the court, it should pay the rors assigned. For the reasons stated, the l plaintiff such damages as the court might as

sess, upon the delivery or tender of a deed because of the defendant's insolvency. The by plaintiff, transferring the land taken plaintiff has not parted with her title to the and the easement interfered with in the land taken possession of and used by the streets appurtenant to the lots. Upon the defendant, nor has she transferred to it her hearing of the cause the court found for easement in the streets appurtenant to her the plaintiff $3,397.50, and entered a decree land, which the defendant is depriving her therefor, and costs against the defendant, of, nor has she released to it any damages but denied the prayer for the injunction. she has or will sustain in consequence of the From this decree the plaintiff has appealed existence and operation of defendant's road. to this court, and assigns the refusal to The defendant is using plaintiff's land withgrant the injunction as error.

out her consent, and refusing to pay her for Salt Lake City held the title to the streets it, and is depriving her of rights appurtenant in question for the use of the public, and thereto, and annoying her with cinders, the owners and occupants of abutting lots. smoke, and noise. For the redress of these The latter had a common right, with all wrongs, the law furnishes her no adequate others, to travel upon them, and also the remedy. The foregoing facts present the right to pass to and from her premises from question, has the court the power, according and on to the adjoining streets, and in that to equitable principles, to require the de way to occupy and use them. While the fendant to pay plaintiff for her land apoccupants of lots use the contiguous streets propriated and used by it, and for her ease in common with the public, they make a ment in the streets appurtenant thereto, or special use of them, and receive special to surrender such possession and use? benefits from them. Referring to the doctrine If a person takes possession of properannounced by the New York court of ap- ty without the owner's consent, he should peals, Judge Dillon says: “The result of the return it, or pay for it, or, if he establishes author's reflections upon this subject is that and conducts a business on his premises the views of the court of appeals are sound that prevents his neighbor from enjoying his, and just; sound, because they recognize the he should pay damages, or stop. But it is paramount nature of the public right to put said that the defendant has been operating the street to this new and necessary use; its road for nearly four years without objust, because they recognize and declare that jection, and has made large expenditures in the abutter has special proprietary rights the construction, equipment, and operation or easements in the streets, which, so far as thereof, and that it would be unjust to stop they are special and individual in their it now. If defendant has taken possession nature, he is not called upon, unequally, to of plaintiff's property without her consent, sacrifice, without compensation, for the and cannot pay for it, justice demands that public use. In effect, the court says the just the property should be returned. It is also and true doctrine is, "Take, but pay.'" 2 claimed that it would be unfair to the mortDill. Mun. Corp. (4th Ed.) § 723c. This gagees of the road to stop its operation now. court also held the same doctrine in the case Such creditors should have inquired as to of Dooly Block v. Salt Lake Rapid Transit the title of the property before advancing Co., 33 Pac. Rep. 229, (decided at the present money upon it, and if the property of third term.) The defendant had no legal or equi- | parties, without their consent, were in the table right to any part of plaintiff's lots, or possession and use of the mortgagor, their any right to deprive her of her easement in equities would be superior to such creditors. the streets, or to interfere with her enjoy. It is also insisted that the public have an ment of her property, without her consent, interest in this road, and rights have been or without condemnation and compensation acquired, and expenditures of money made, in pursuance of the law of eminent domain. in anticipation of its continued operation. As the owner of lots adjoining the streets It may be said, if the benefits of the use she might, by her language or conduct, in of the road to the public do not equal its dicate her consent to the appropriation and cost, it had better quit. All of us have no use of them, and their appurtenant rights, better right to appropriate property without but she will not be held to have done so, the owner's consent, and without compensafrom mere silence and inaction, until barred tion, than one of us has. In the case of by the statute of limitations. When com Galway V. Railroad Co., 128 N. Y. 132, 28 pensation was refused, the plaintiff had the N. E. Rep. 479, the defendant had comright to avail herself of such remedy as the pleted its elevated railway in the street uplaw afforded; and, that being inadequate, on which plaintiff's lots abutted 10 years she could resort to an equitable remedy, if before suit was instituted, and had been such remedy remained. The court below as operating it. The judgment of the lower sessed plaintiff's damages for the land taken, court was affirmed, granting relief by injuncand for the interruption of the use of the tion unless the defendant should pay to the streets in connection with her lots, and their plaintiff, within a limited time, the sum of depreciation in consequence of the opera- $20,000, as the depreciation of the value of tion of the road, at $3,397.50. We have the premises, caused by the railroad, and, seen that these cannot be collected by a upon such payment being made, requiring seizure and sale of defendant's property, the plaintiff to execute to the defendant a

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