Brittain v. Gorman
| Decision Date | 08 May 1913 |
| Docket Number | 2425 |
| Citation | 133 P. 370,42 Utah 586 |
| Court | Utah Supreme Court |
| Parties | BRITTAIN v. GORMAN |
APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.
Action by J. H. Brittain against P. W. Gorman.
Judgment for plaintiff. Defendant appeals.
AFFIRMED.
Goodwin and Van Pelt for appellant.
James Ingebretson for respondent.
OPINION
This action was brought by plaintiff, respondent here, to recover from the defendant, appellant in this court, a balance of $ 1200 which it was alleged was due from appellant to respondent for the erection of several small houses or cottages by the latter for the former during the year 1907. The respondent in his complaint, in substance, alleged that between the 1st day of January, 1907, and the 1st day of October of that year he had "furnished material and labor and rendered services to the said defendant in the performance and execution of a contract entered into by and between the plaintiff and defendant whereby the plaintiff agreed to and did erect certain cottages for said defendant . . for the agreed contract price of $ 2325.75." It is further alleged that by reason of the premises appellant became indebted to respondent for the sum aforesaid, and that the former had paid to the latter the sum of $ 1125.75 to be and which was, credited on said principal sum, leaving a balance due thereon amounting to $ 1200. It is then alleged "that on or about the 24th day of December, 1907, an account was stated by and between the plaintiff and defendant by which it was ascertained and agreed that said defendant was indebted to the plaintiff as of the said 24th day of December, A. D. 1907, in said sum of $ 1200, which the said defendant then and there agreed to pay the plaintiff upon demand, with interest at the rate of ten per cent. per annum from date until paid." It is further alleged that appellant failed to pay the principal sum, but had paid the interest thereon in monthly installments up to a certain time, and that said sum of $ 1200 is owing from appellant to respondent, for which, with interest from the date named, judgment was demanded.
Appellant interposed a general demurrer to the complaint, which was overruled; and the defendant filed an answer in which he in effect denied all of the allegations of the complaint, except, stating it in the language of the answer, he admitted "that plaintiff has received or retained moneys due defendant, as alleged in plaintiff's complaint, in paragraph two thereof, but alleges that said sums are not correctly stated, and that plaintiff has received or retained a much larger sum of defendant's money." Here, therefore, is a specific admission that respondent has more of appellant's money than he claimed was paid him upon the contract mentioned in the complaint.
Upon the foregoing issues a trial was entered upon before the district court of Salt Lake county without a jury, and, after respondent had rested and appellant had produced all of his evidence, respondent's counsel, as he alleged, was surprised by some of the testimony given by appellant, and, not being prepared to meet it, counsel asked for and was granted a voluntary nonsuit. Within a few days thereafter, upon making a further investigation, counsel discovered that appellant's testimony was not true and that counsel had been misled thereby, and he immediately made an application to the court to set aside the judgment of dismissal which had been entered pursuant to the nonsuit and to reinstate the case. The application was supported by affidavits in which the facts were set forth in detail. Appellant resisted the application by filing counter affidavits, but the court, after considering the evidence for and against the same, granted the application, set aside the judgment of dismissal, and reinstated the case. A second trial of the cause, to another judge of the same court, resulted in findings and judgment in favor of respondent; hence this appeal.
The first error assigned relates to the court's ruling in granting the application to set aside the judgment of dismissal and to reinstate the case. The question of whether respondent had made a sufficient showing to entitle him to the order setting aside the judgment of dismissal was a matter which was within the sound discretion of the trial court. If that court was convinced, from the evidence produced in support of the application to set aside the judgment of dismissal and to reinstate the case, that the respondent was misled by appellant's testimony and that it was in furtherance of justice that the order of dismissal be set aside and the case reinstated, we cannot interfere, unless it clearly appears from the record that the trial court abused the discretion vested in it in matters of that character. We can see no reason for holding that the trial court abused the discretion vested in it. Indeed, if we were passing upon the evidence produced in support of and against the application, we should arrive at the same conclusion that the trial court arrived at.
Moreover under the practice prevailing in this state, the respondent, at any time within a year after the nonsuit was entered, could have commenced a new action upon the same cause of action and prosecuted it to judgment precisely the same as he has this one. In view of this, we cannot see how the appellant was or could...
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... ... that we are bound by the findings of fact of the trial court, ... if there is any substantial evidence to maintain them ( ... Brittain V. Gorman, 42 Utah 586, 133 P ... 370), and that where a finding is based upon sufficient ... evidence we will not reverse it, even if we are ... ...
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...P.2d 986.4 Bennett Leasing Co. v. Ellison, 15 Utah 2d 72, 387 P.2d 246; Whetton v. Turner, 28 Utah 2d 47, 497 P.2d 856.5 Brittain v. Gorman, 42 Utah 586, 133 P. 370; Evans v. Shand, 74 Utah 451, 280 P. 239; Clements v. Clements, 91 Idaho 732, 430 P.2d 98.6 See Lone Star Uranium and Drilling......
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...This is the law as announced in Parrott Bros. Co. v. Ogden City, 50 Utah 512, 167 P. 807. And, again, we find in Brittain v. Gorman, 42 Utah 586, 133 P. 370, that conclusions of law must be based upon facts and must be considered with the facts, and in like fashion the court's decree must r......
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