Bellion v. Durand

• Decision Date: 14 June 1911
• Docket Number: 2160
• Citation: 39 Utah 532,117 P. 798
• Court: Utah Supreme Court
• Parties: BELLION v. DURAND

117 P. 798

39 Utah 532

BELLION v. DURAND

No. 2160

Supreme Court of Utah

June 14, 1911

Rehearing denied September 27, 1911.

Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.

Application by William Bellion for a writ of prohibition against Charles F. Durand.

Permanent writ granted. Respondent appeals.

REVERSED AND REMANDED WITH DIRECTIONS.

E. A Walton for appellant.

King &amp Burton and Samuel Russell for respondent.

STRAUP, J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

Daniel Densley on the 14th day of February, 1904, commenced an action against William Bellion in the justice court of Murray Precinct, Salt Lake County, before J. B. McOmie, justice of the peace. Upon the issuing and service of a summons, Bellion appeared in the action, and filed a general denial to the complaint. The case was regularly set for trial, and tried to a jury. Both parties were represented by counsel. A verdict was rendered by the jury in favor of Bellion on the 21st day of April, 1904. No complaint is made with respect to the jurisdiction of the justice, or of any irregularity in the proceedings, up to this point. Before the judgment on the verdict was entered by the justice, Densley, on the 23d day of April, 1904, served and filed a written notice of motion for a new trial on the ground of insufficiency of the evidence to justify the verdict, a ground for which the justice, by statute, was authorized to grant a new trial. An affidavit was also served and filed on behalf of Densley in support of the motion. On the 30th day of April, 1904, without any judgment having been entered upon the verdict, the motion for a new trial was argued by the attorneys for the respective parties, and upon a submission of the motion for decision, without any objection having been made that no judgment had been entered upon the verdict, the justice on the day last mentioned vacated and set aside the verdict, and granted a new trial upon the ground stated in the motion. No other proceedings were had in the case until the 13th day of September, 1906, when both parties were notified that the case was set for trial on the 18th day of September, 1906. In the meantime McOmie's term of office had expired, and Charles F. Durand succeeded him. The case was set for retrial by Durand. On the 18th day of September, Densley and his counsel appeared for trial, but the defendant and his counsel, though previously notified of the trial, failed to appear. On that day the justice, Durand, upon the evidence adduced by the plaintiff, rendered and entered a judgment in favor of Densley and against Bellion. Then, on the 17th day of October, 1906, Bellion took an appeal from that judgment to the district court. The appeal was dismissed by the district court on the 8th day of December, 1906, and the case remanded to the justice court on the 19th day of January, 1907. Upon what ground the appeal was dismissed is not made to appear. Thereafter Bellion applied to the district court for a writ of prohibition to restrain the justice from enforcing the judgment. In the petition filed by him for an alternative writ the foregoing facts were substantially set forth, and the additional allegation made that the justice, at the request of Densley's counsel, was about to issue an execution on the judgment. In response to the alternative writ served upon him, the justice filed an answer to the petition and writ. Upon a hearing and a trial of the issues, the district court granted a permanent writ, restraining the justice from issuing an execution or otherwise enforcing or proceeding upon the judgment. From that judgment, the justice has prosecuted this appeal.

In the petition it was alleged, and the court, in its findings found, in the language of the petition, that a new trial in the justice court was granted by Justice McOmie "on or about the 30th day of April, 1906." If the motion for a new trial was not made in the justice court until in April, 1906, the verdict having been rendered in April, 1904, of course, the justice had no jurisdiction to then entertain or to grant a motion for a new trial. However the record of the justice, and all the papers of the case on file in his office, all of which were put in evidence on the hearing and on the trial in the district court, and all the evidence adduced upon such hearing and trial, show, without conflict, that the motion for a new trial in the justice court was served and filed on the 23d day of April, 1904, and was granted by Justice McOmie on the 30th day of April, 1904, not 1906. Nor was it claimed or contended by Bellion, or by any one, in the court below, nor is it here claimed, or contended, that the motion for a new trial was granted on the 30th day of April, 1906, and not in 1904. That the motion for a new trial was made and granted in April, 1904, was not disputed in the court below, nor is it here disputed. And, as already observed, all the...