Bryant v. Kunkel

• Decision Date: 03 July 1907
• Docket Number: 1819
• Citation: 32 Utah 377,90 P. 1079
• Court: Utah Supreme Court
• Parties: BRYANT v. KUNKEL et al

90 P. 1079

32 Utah 377

BRYANT v. KUNKEL et al

No. 1819

Supreme Court of Utah

July 3, 1907

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

Action by Walter Bryant against Mark Kunkel and others. From a judgment for plaintiff, defendants appeal.

AFFIRMED.

C. S Patterson for appellants.

APPELLANT'S POINTS.

Either the affiant knew, or did not know that the defendants were non-residents. If he did not know, then the affidavit is clearly insufficient. If he did know, then the allegation on information and belief is not sufficient. (Baskin v Godbe, 1 Utah 28; Thompson v. Skeen, 14 Utah 409.)

"A default obtained without proper service, and on an unauthorized appearance, is a nullity." (1 Black on Judgments, sec. 83; Fleming v. Imp. Co., 12 Colo App. 187; Mining Co. v. Mining Co., 12 Colo. 46; Howell v. Campbell, 53 Kan. 742.)

"A judgment following a service of summons purporting to be by publication, but which was made without affidavit and order, is void." (People v. Mullan, 65 Cal. 396.)

"If the affidavit upon which the order of publication issued was substantially defective, there is no jurisdiction of the defendant." (Braly v. Seaman, 30 Cal. 610.)

"In case of notice by publication the court acquires no jurisdiction until proper proof of a compliance with the statute requisitions is made to appear of record." (Tunis v. Withrow, 10 Iowa 305; Byram v. McDowell, 15 Lea [83 Tenn.], 581; Roberts v. Roberts, 3 Colo. App. 6.)

"In the absence of a statute the annexing and filing of papers as exhibits to a pleading, does not make them a part thereof." (8 Encl. Pl. & Pr. 740; Stratton v. Henderson, 26 Ill. 68; Hadwin v. Ins. Co., 13 Mo. 473; Larimore v. Wells, 29 O. St. 16; Aultman v. Siglinger, 2 S. Dak. 444; Williams v. Hallett, 2 Sawy. [U.S.], 261.)

"And they cannot be referred to for the purpose of supplying the omission of a material allegation, or curing a fatal defect." (Burkitt v. Griffith, 90 Cal. 542; Brooks v. Paddock, 6 Colo. 36; Pomeroy v. Fullerton, 113 Mo. 440; Wynne v. Bank, 82 Tex. 378; Insurance Co. v. Kahn, [Wyo.], 34 P. 895.)

While a contract may be set out in haec verba or annexed by proper reference; preliminary or collateral matters of substance must be averred, so that the ultimate facts for which it was incorporated will be clearly presented. (Stevens v. Insurance Co., 14 Utah 265.) "An allegation that defendant 'gave a mortgage' is simply a conclusion of law." (Hussey v. Smith, 1 Utah 241; section 3187, Rev. Stat.)

"The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint."

"A judgment must accord with and be warranted by the pleadings of the party in whose favor it is rendered. A judgment not supported by the pleadings is as fatally defective as one not sustained by the verdict or findings." (Bachman v. Sepulveda, 39 Cal. 688; Sieberling v. Mortensen, 10 S. Dak. 644; Marshman v. Conklin, 21 N.J.Eq. 546; Parsley v. Nicholsen, 65 N.C. 207; Frevert v. Henry, 14 Nev. 191; Lee v. Mfg. Co., 16 Tex. Civ. App. 671; Wheeler v. Foster, 82 Ill.App. 153; Clemons v. Heelan, 52 Neb. 287.)

James Ingebertsen for respondent.

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

OPINION

FRICK, J.

Before we can proceed to a consideration of the merits of this appeal we are required to pass upon a preliminary motion interposed to strike the bill of exceptions. The motion is based on the following proceedings, as disclosed by the record: The judgment appealed from was entered June 26, 1906, and on the same day notice was duly served on appellants' attorney. No motion for a new trial was filed, but on July 16, 1906, appellants' attorney obtained an order from the court giving him "sixty days additional time in which to prepare, serve, and file a bill of exceptions herein." Nothing seems to have been done upon this order until the 22d day of November following, at which time the attorneys for the respective parties entered into a stipulation attaching the same to the proposed bill of exceptions, wherein it was, in part, stipulated "that the same may be settled as the bill of exceptions herein, waiving no rights whatever to object to time of service, and insisting such service is not in time." On the following day this proposed bill was presented to the judge who allowed and signed it in the absence of respondent's attorney, and the same was filed, and now constitutes the only bill of exceptions in this case. The motion asks to have the same stricken from the record upon the ground that the judge allowing the same was without authority to do so.

It seems the motion is well taken. By section 3286, Rev. St 1898, as amended in Laws 1905, p. 7, c. 7, it is in substance provided that a bill of exceptions must be prepared and served within thirty days after notice of judgment as applicable to cases like the one at bar; and by section 3329, as amended by the same laws, at page 9, c. 10, it is provided that the time for the preparation and service of bills of exceptions may, for good cause shown, be extended by the court. From these sections the implication is unavoidable that the bill of exceptions must be served either within the time allowed by section 3286, or within the time as extended under section 3329. This was not done in this case. The notice of judgment was served on June 26th. The order for the "additional sixty days' time within which to prepare, serve, and file" the bill of exceptions was made on July 16th following. Assuming, but not deciding, that the sixty days "additional" time given by the court commenced at the end of the thirty days given by the statute, then the sixty days would begin on July 26, and end on September 25, 1906. Beyond this the extension given by the court could not go. If further time was required it could be obtained under the statute only for good cause shown, and by further order based thereon. Nothing was attempted...