Bear River Valley Orchard Co. v. Hanley

• Citation: 50 P. 611,15 Utah 506
• Decision Date: 15 October 1897
• Docket Number: 826
• Court: Supreme Court of Utah
• Parties: THE BEAR RIVER VALLEY ORCHARD COMPANY, RESPONDENT, v. P. M. HANLEY ET AL., APPELLANTS

50 P. 611

15 Utah 506

THE BEAR RIVER VALLEY ORCHARD COMPANY, RESPONDENT, v. P. M. HANLEY ET AL., APPELLANTS

No. 826

Supreme Court of Utah

October 15, 1897

Appeal from the Second district court, Weber county. John A. Street Judge.

Action by the Bear River Valley Orchard Company against Peter M Hanley and others. From a judgment for plaintiff defendants appeal.

Affirmed.

Maloney & Perkins, for appellants.

Evans &amp Rogers, for respondent.

While we recognize the fact that in the case of Watson v. Maybery, 15 Utah 265, this court, by a divided court, and in the absence of one of the justices, held that the sixty day period began to run after the ruling on the motion for a new trial, yet we are not content to accept the majority opinion as the law, in view of the uniform line of decisions to the contrary. Indeed, our own court, in the case of Jones v. Insurance Co., 14 Utah 215, held that no appeal would lie sixty days after the rendition of the judgment. Hanks v. Mallthews, 8 Utah 181; Reever v. White, 8 Utah 189; Voorhees v. Manti, 13 Utah 435; Brough v. Mighell, 6 Utah 317; see Code Civil Proc. Cal. sec. 939 and notes.

We respectfully contend that under the California statute, which was borrowed by us, that we are bound by the construction placed thereon by them at the time we adopted this provision. Their construction is that the time begins to run from the rendition of the judgment and not from the time the motion for a new trial was denied. See 28 Cal. 417; 31 Cal. 208; 32 Cal. 159; 35 Cal. 216; 36 Cal. 252; 38 Cal. 424; 42 Cal. 387; 58 Cal. 578; 60 Cal. 414; 49 Cal. 105.

See also: Machine Co. v. Mining Co., 6 Utah 351; S. C. affirmed in 151 U.S. 447; Mining Co. v. Haws, 7 Utah 515.

ZANE, C. J. BARTCH, J., concurs. MINER, J., concurring in part and dissenting in part.

OPINION

ZANE, C. J.:

On the 21st day of November, 1896, a decree was rendered against the defendants, and a motion for a new trial, duly served and entered, was overruled by the court on the 29th day of the following March. From the judgment and order overruling the motion, the defendants appealed, on the 19th day of the following April. The plaintiff moves the court to dismiss the appeal from the order. This court has repeatedly held that orders granting or denying motions for new trials are not final judgments, within section 9 of article 8 of our constitution. The motion to dismiss the appeal from that order is granted.

The plaintiff also contends that exceptions to the decision of the court below on the ground that it was not supported by the evidence cannot be considered by us in deciding the appeal from the judgment because it was not taken within 60 days after its rendition. In the case of Watson v. Mayberry, 15 Utah 265, 49 P. 479, this court held that the phrase "final judgment," as used in the same section of the constitution, means judgments terminating the litigation between the parties in the court rendering it, and, when a motion for a new trial is duly made within the time prescribed by law, the judgment becomes final for the purposes of an appeal, when it is overruled; and that an appeal may be taken from a judgment within one year after the date of the order overruling the motion; but that an exception to the decision or verdict on the ground that it is not supported by the evidence cannot be reviewed on the appeal from such judgment, unless taken within 60 days after it becomes final. The notice of the motion for a new trial having been duly served and entered within the 10 days allowed by the statute, and the order overruling it having been made within 60 days before the appeal, it is our duty to consider such exceptions. The cases cited by plaintiff's counsel were considered upon the hearing of the case of Watson v. Mayberry, supra, and found to be upon statutes under constitutional provisions differing from our own, or in cases not analogous to that case, which, upon the point under consideration, is entirely analogous to this. The case of Blyth & Fargo Co. v. Swenson, 15 Utah 345, 49 P. 1027, also decided by this court, in effect approved of Watson v. Mayberry.

The conflicting claims of the parties to the original complaint, and the cross complaint of the defendants against the Bear River Irrigation & Ogden Waterworks Company and others, and the cross complaint of the latter company against Peter M. Hanley and others, and the respective answers to those complaints, raise a question as to the respective rights of Hanley and the irrigation and waterworks company to 930 shares of the capital stock of the plaintiff, the orchard company. The former claims both the equitable and legal title to the stock, while the irrigation and waterworks company claims the equitable title, and insists that Hanley holds the legal title in trust simply. In order to determine the question, it is necessary to examine the evidence in the record.

It appears that the Bear River Irrigation & Ogden Waterworks Company was organized under chapter 1, pt. 4, 2 Comp. Laws Utah 1888, on September 1, 1894, with its capital stock divided into 24,000 shares, of the par value of $ 100 each that among its corporators and directors were William H. Rowe and Peter M. Hanley; that it was authorized to appropriate and acquire the waters of Bear River for irrigation and other purposes, to construct a canal and waterworks, to purchase, acquire, hold, cultivate, and convey lands, and to conduct other business. It further appears that the Bear River Valley Orchard Company was organized under the same law on the 25th day of January, 1895; that Rowe and Hanley were also among its corporators and directors; that the former was selected president, and the latter secretary and treasurer; that its capital stock was divided into 1,000 shares, of the par value of $ 100 each; that Rowe and Hanley subscribed for 10 shares each, and the latter subscribed also for 930 shares as trustee. The business of the company, as set forth in its articles, was to acquire real estate and water rights, and to own, cultivate, irrigate, sell, and otherwise dispose of lands with water rights, to set out and cultivate fruit trees, and to sell and otherwise dispose of orchards. It further appears that on and prior to March 5, 1895, William H. Rowe held in trust for the irrigation and waterworks company the legal title to section 3, described in the pleadings, consisting of 640 acres of land; that, as such trustee, with the knowledge of Hanley, he executed a warranty deed purporting to convey the same to the orchard company, and on the same day also conveyed by deed, in the name of the irrigation waterworks company, to the same grantee, a perpetual right to water to be taken from the canal of the grantor, to irrigate the land; and that the entire capital stock of the orchard company was paid in by those conveyances, and no other payment to the capital stock of the company was made, and all funds appropriated to the furtherance of the business of the orchard company, except funds derived from the sale of portions of section 3, were furnished by the irrigation and waterworks company. It further appears that Hanley, as secretary of the orchard company, surrendered the 930 shares of stock in the company that had been issued to him as trustee of the irrigation and waterworks company, and, in lieu thereof, reissued the same in his individual name, without the consent or knowledge of the directors or other officers of the last-named company, except Rowe. It further appears that while Rowe and Hanley were directors of the irrigation and waterworks company, and the former was its president, and the latter its assistant secretary and auditor, and while both were its acting managers, and receiving salaries therefrom, Rowe, in pursuance of an understanding with Hanley, made 10 promissory notes, bearing date December 13, 1895, for the payment of $ 2,460 each, the first to become due April 1, 1897, and one on the same day and month of each year thereafter until all should become due, all bearing interest at seven per cent per annum, except the first, which drew no interest, and all payable to the Bear River Irrigation & Ogden Waterworks Company, and signed, "Bear River Valley Orchard Co., by W. H. Rowe, President." It also appears that a written contract purporting to be between the irrigation and waterworks company, by W. H. Rowe, its president, and P. M. Hanley, was made on December 13, 1895, in which the latter acknowledged himself indebted to the former in the sum of $ 24,600, the aggregate of the above notes of the orchard company,...