Boucofski v. Jacobsen, 1940

• Court: Supreme Court of Utah
• Writing for the Court: FRICK, J.
• Citation: 104 P. 117,36 Utah 165
• Parties: BOUCOFSKI et al. v. JACOBSEN et al
• Decision Date: 12 June 1909
• Docket Number: 1940

104 P. 117

36 Utah 165

BOUCOFSKI et al.
v.
JACOBSEN et al

No. 1940

Supreme Court of Utah

June 12, 1909

[104 P. 118] [Copyrighted Material Omitted] [104 P. 119]

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Selina Nixon Boucofski and others against Esther Cohen Jacobsen and others.

Judgment denying foreclosure and a personal judgment against the defendant named.

Plaintiffs appeal.

REMANDED, with directions to enter judgment against defendant named, and AFFIRMED as modified.

Allan T. Sanford for appellants.

APPELLANTS' POINTS.

The right of appeal is given only from final judgment. (Article 8, section 9, Constitution, Utah, section 3300 Revised Statutes.) "Final judgment means judgment terminating the litigation between the parties in the court rendering it, and when a motion for new trial is duly made within the period presented by law, the judgment becomes final for the purpose of an appeal when it is overruled." (Bear River Orchard Company v. Hanly, 15 Utah 265; Watson v. Newberry, 15 Utah 506, 50 P. 611, 49 P. Rep. 479.) The motion to modify the findings must be considered the same as a motion for new trial, and the time for appeal on a motion for a new trial does not begin to run until decided, and the six months is from that date. (Eastman v. Gurrey, 14 Utah 169, and cases cited, page 63, under annotation of section 9, article 8, Constitution.) Independent of the statute the court has the right to correct the findings to make them conform to the facts. (Hayes v. Witherbee, 60 Cal. 399; Hayne New Trial and Appeal, 745; Hayes v. Laviginino, 17 Utah 185; Lynch v. Coviglio, 17 Utah 106.) Where a judgment is modified as the result of a motion made in the court, the time for appeal begins to run from the entry of the modified judgment. (2 Ency. Pl. & Pr. 255; Billson v. Lardner, 69 N.W. 477; Hages v. Silver & Co., 68 P. Rep. 704, 136 Cal. 238; Mum v. Haley, 45 Cal. 63; Bixby v. Bent, 59 Cal. 532; Spencer v. Tonitt, 65 P. Rep. 1083, 133 Cal. 605; In re Porter's Estate, 74 P. 986; Wake v. Thomas, 78 Conn. 15, 60 A. Rep. 689; Johnson v. Foreman, 56 N.E. 254 [Ind.].) To permit the holder of a lien to bar absolutely the right of another lien holder is a gross injustice and the authorities do not permit it. (De Voe v. Runkle, 74 P. Rep. 836; Brandestine v. Johnson, 73 P. Rep. 744; Frates v. Sears, 77 P. Rep. 905.) It is rather a novel doctrine that one who has a first mortgage must keep on the lookout as to who acquires an interest in the property, and that no duty is imposed on those acquiring the interest to notify the first mortgagor. Such doctrine is opposed by the following authorities: First National Bank v. Woodman, 96 Iowa 668, 62 N.W. 28; Kernat v. Porterfield, 56 Iowa 412, 9 N.W. 322; Rickly v. Sinclair, 167 Ill. 184, 47 N.E. 364; 9 Ency. Law (2 Ed.), 314. It is almost universally held that an extension made while the mortgagor owns the premises, is good as against subsequent purchasers. (Heger v. Pruyn, 7 Paige 465, 34 Am. Dec. 355; Hough v. Bailey, 32 Conn. 288; Carson v. Cochran, 52 Minn. 67, 53 N.W. 1130; 19 Ency. L. [2 Ed.], 315, and authorities cited.)

C. S. Patterson for respondents.

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

OPINION

[36 Utah 170] FRICK, J.

This case was heard and submitted at a former term of this court, and on November 1, 1908, we filed an opinion in the case by which the judgment refusing a foreclosure of appellant's mortgage was affirmed and the judgment in favor of respondent Jacobsen reversed. A petition for a rehearing was filed by the appellants. Upon a consideration thereof we entertained some doubts as to the correctness of our conclusions, and granted a rehearing. The case was again argued by respective counsel at the last term of this court. After reargument we have become convinced that the views expressed by us in the former opinion should be modified in some respects, and for that reason, and to avoid confusion, that opinion will not be published, but this opinion will stand and be published as the decision of the cause.

Before proceeding to the merits we are required to pass upon a motion to dismiss the appeal, upon the alleged ground that it was not taken within six months from the entry of judgment. The facts disclosed by the record upon which the motion to dismiss is based are, in substance, as follows: The action is one to foreclose a mortgage. The court made and filed findings of fact and conclusions of law, and entered judgment thereon on March 16, 1907. Thereafter, on the 8th day of June, 1907, appellants moved the court to make additional findings of fact and conclusions of law in accordance with the facts requested to be found. The court entertained the motion of appellants, but held the matter under advisement until September 21, 1907, when it allowed the additional facts and made them a part of the findings in the case, but refused to allow the additional conclusions of law. No motion for a new trial was made in the court below. The notice of appeal was served and filed on March 8, 1908. It is contended by respondent Salt Lake Investment Company that, in the absence of a motion for a new trial, the judgment became and remained final from the date of its entry, to-wit, March 16, 1907, and, as the appeal was not taken within six months from that date, the appeal is of no effect, and should be dismissed. Upon the other hand, appellants' [36 Utah 171] counsel insists that pending the motion for additional findings and conclusions of law the judgment was not final for the purposes of an appeal, and that it did not become so until the court either allowed or disallowed the additional findings and conclusions of law. It is contended that, while the question whether additional findings and conclusions of law should be made or not was pending, the judgment was subject to be changed by the court, and hence not a final nor an appealable judgment. Respondent's counsel answers his contention by the assertion that the court had no authority to entertain the motion, nor to allow or make additional findings of fact or conclusions of law after the entry of judgment, and therefore the judgment was final, notwithstanding the pendency of the motion of appellants. Section 3168, Rev. St. 1898, was amended by chapter 150, p. 228, Laws 1907, which amendment expressly authorized the trial court to do just what was done in this case. While counsel for respondents does not question the court's authority to make additional findings of fact and conclusions of law as provided by the amendment referred to, he insists that the amendment cannot be applied to this case for the reason that the original judgment was entered on March 16, 1907, while the amendment did not go into effect until March 25th of the same year. Waiving the question as to whether the court had the inherent power to entertain a motion for additional findings of fact and conclusions of law after the entry of the judgment during the term at which it was entered, or while the action remained pending in that court as hereafter stated, we have no doubt the court had the power to entertain the motion in this case in view of the amendment referred to. While it is true that a party's rights in a judgment, as a general rule, may not be affected by legislative acts passed or which become effective after the entry of judgment, the rule does not apply to laws which are merely remedial, and which only affect matters of procedure or practice. The amendment in no way affected respondents' rights in the judgment. The only way that respondents were affected was by extending [36 Utah 172] the right of appeal to appellants while the motion to amend the findings and conclusions was pending. The legislature, within proper limits, might have extended this right directly. In any event, the amendment related to a matter of procedure merely, and this would apply to all pending actions unless limited to future actions. In 1 Lewis' Suth. Stat. Const. section 674, the author says: "Where a new statute deals with procedure only, prima facie, it applies to all actions--those which have accrued or are pending, and to future actions." Further on in the same section it is said: "A remedy may be provided for existing rights, a new remedy added to or substituted for those which exist. Every case must, to a considerable extent, depend on its own circumstances. General words in remedial statutes may be applied to past transactions and pending cases, according to all indications of legislative intent, and this [104 P. 120] may be greatly influenced by considerations of convenience, reasonableness and justice." In section 686 of the same volume it is said: "Statutes enacted to promote and facilitate the administration of justice are prominent in the category of remedial statutes." Section 3490, Comp. Laws 1907, provides: "An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied." This action was therefore pending when the act amending section 3168 went into effect; and, as such amendment pertained merely to a matter of procedure, we are clearly of the opinion that the amendment applied to this as well as to all other pending actions. Moreover, the right to an appeal is a constitutional, as well as a valuable right, and ought not to be denied except where it is clear the right does not exist, or has been lost or abandoned. The motion to dismiss the appeal is therefore denied.

In proceeding to the merits it will be necessary to refer to the pleadings and findings. The action was commenced July 14, 1905, and the appellants, in substance, alleged in their complaint that on September 5, 1894, the defendant [36 Utah 173] Esther Cohen Jacobsen, executed and delivered her promissory note for $ 612 payable in one year to the order of...