Buttrey v. Guaranteed Securities Co.

• Citation: 300 P. 1040,78 Utah 39
• Decision Date: 09 July 1931
• Docket Number: 4729
• Court: Utah Supreme Court
• Parties: BUTTREY v. GUARANTEED SECURITIES CO. et al

300 P. 1040

78 Utah 39

BUTTREY v. GUARANTEED SECURITIES CO. et al

No. 4729

Supreme Court of Utah

July 9, 1931

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by Mrs. Alma Buttrey against the Guaranteed Securities Company and others. The action was dismissed by stipulation as to the defendant John Roundy, and during the trial was dismissed as to the defendant L. A. Bailey and others, and the defendant J. W. Cottrell defaulted. From part of the judgment rendered, the plaintiff appeals, and the defendant George H. Blood, receiver, on his own behalf, as receiver and in behalf of the Guaranteed Securities Company undertakes to cross-appeal from part of judgment.

Cross-appeal dismissed, and judgment reversed in part, and cause remanded for a new trial, and judgment otherwise affirmed.

H. v Van Pelt, S. P. Armstrong, and H. J. Robinson, all of Salt Lake City, for appellant.

Clarence Baird, Holmgren, Anderson & Russell, Bagley, Judd & Ray, Stewart, Alexander & Budge, and Leslie Frazer, all of Salt Lake City, and De Vine, Howell & Stine and A. W. Agee, all of Ogden, for respondents.

WOOLLEY, District Judge. CHERRY, C.J., and ELIAS HANSEN, and FOLLAND, JJ., STRAUP, J., concurring. EPHRAIM HANSON, J., being disqualified, did not participate.

OPINION

WOOLLEY, District Judge.

In this action, which is brought under the Blue Sky Law of 1919, plaintiff sued to recover judgment for $ 5,000, being the amount of the purchase price which she paid for fifty shares of the capital stock of the Guaranteed Securities Company, a corporation, at a time when said corporation had no permit to sell its capital stock within this state, as required by the statutes. Plaintiff also seeks damages in a sum equal to the interest on $ 5,000 computed at the legal rate of 8 per cent per annum from the time the money was paid over to the corporation.

The defendants named in the complaint are the Guaranteed Securities Company, a corporation, J. W. Cottrell, the agent of the corporation who made the sale to the plaintiff, and J. J. Morey, L. A. Bailey, Charles E. Hayes, Jas. P. Jensen, L. R. Mallory, J. W. Loofbourow, George E. Stoffers, Hyrum Hokanson, John Roundy, A. L. Cullimore, Jeremiah Stokes, and L. W. Robbins, who, it is alleged, were the directors of the said corporation at the time of the sale, and George H. Blood, receiver of the Guaranteed Securities Company, as such receiver.

The case was dismissed by stipulation as to Roundy before the trial, and during the trial it was dismissed as to Bailey, Loofbourow, Jensen, and Mallory; Cottrell defaulted; the receiver answered for himself as such receiver and for the Guaranteed Securities Company; all other defendants filed answers to the complaint.

The trial was had to the court without a jury. The court made and filed findings of fact and conclusions of law, and entered judgment as follows:

(1) That plaintiff have and recover of and from Guaranteed Securities Company the sum of $ 5,000, with interest on $ 100 thereof from November 17, 1924, and on $ 4,900 thereof from January 13, 1925, at the rate of 8 per cent per annum, and costs.

(2) That out of any funds now in, or hereafter to come into, his hands, which may be under the direction of the court, and be applicable for that purpose, the defendant, George H. Blood, as receiver of the Guaranteed Securities Company, pay to the plaintiff an amount not exceeding the amount of the said judgment against Guaranteed Securities Company, including the costs.

(3) That the complaint be dismissed as to Bailey, Jensen, Loofbourow, Roundy, and Mallory.

(4) That the complaint be dismissed as to Morey, Hayes, Stoffer, Hokanson, Cullimore, Stokes, and Robbins, directors, and Cottrell, agent, and that said defendants have and recover of and from the plaintiff judgment, no cause of action.

The plaintiff has appealed from that part of the judgment in favor of the defendants Morey, Hayes, Stoffer, Hokanson, Cullimore, Stokes, Robbins, and Cottrell; and George H. Blood, receiver, on his own behalf as receiver, and in behalf of Guaranteed Securities Company, undertakes to "cross-appeal" from the judgment and second amended judgment, and particularly from the portion thereof wherein it is decreed that plaintiff recover from defendant, Guaranteed Securities Company, $ 5,000, with interest and costs, and that said sum be paid to plaintiff by said receiver, and from that portion of said judgment wherein it is decreed that Cottrell have judgment against plaintiff, no cause of action.

The plaintiff has moved to dismiss the so-called cross-appeal on two grounds: (1) That it was not taken in time, and (2) that the receiver has failed to comply with the statutes relative to undertakings on appeal. A third ground is also suggested in the brief; namely, that since the corporation is not a respondent in plaintiff's appeal, therefore it has no right to take a cross-appeal.

There seems to be no merit in the first ground stated in the motion, or in the third ground suggested in the brief, and we pass them by without deciding them as the second ground appears to be well taken, and is sufficient to require a dismissal of the receiver's appeal.

The procedure upon appeal in this state is regulated by statute. The statute points the way. It is provided that from all final judgments of the district courts there shall be a right of appeal to the Supreme Court. Comp. Laws Utah 1917, § 6990. An appeal may be taken within six months from the entry of the judgment or order appealed from. Section 6991. Any party to a judgment or decree may appeal therefrom. The party appealing is known as appellant, and the adverse party as respondent. Section 6993.

Section 6996 reads:

"An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial, but within five days after service of the notice of appeal an undertaking shall be filed or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived in writing by the adverse party; provided, that where the appellant makes and files with the clerk of the court from which the appeal is taken an affidavit in the form set out in § 2577, no bond on appeal shall be required; and where such affidavit is filed, the clerk of the court from which the appeal is taken shall certify that the appellant has made and filed an affidavit as provided for in § 2577." (Italics supplied.)

The receiver filed no undertaking on appeal; he deposited no money in lieu thereof; the undertaking was not waived in writing by the adverse party; and he filed no affidavit in the form set out in section 2577, which is the statute providing for affidavits which may be filed by poor persons in lieu of undertakings and cost. He is a party appealing, and he is appealing from a part of the judgment with which the plaintiff is satisfied and from which she took no appeal. It seems clear enough, therefore, that he is required to comply with the provisions of section 6996, with respect to undertakings on appeal. This court has held, in Provo Reservoir Co. v. Tanner, 28 Utah 21, 249 P. 118, that where an appellant fails to comply with the provisions of that section, relative to undertakings on appeal, the appeal will be dismissed on motion of the adverse party. Hence, there seems to be nothing to do but grant the motion.

It is claimed, however, on behalf of the receiver that no undertaking is required of him because his is a cross-appeal, and the statutes do not apply to such appeals. But the statutes make no exceptions in favor of cross-appeals; by the plain import of their terms they apply to all appeals. Indeed, the term "cross-appeal" is not found anywhere in our statutes; though it has been used by this court in several cases to designate an appeal by a respondent against an appellant, or by a respondent against a respondent. Guaranty Mtg. Co. v. Wilcox, 62 Utah 184, 218 P. 133, 138, 30 A. L. R. 1324; Rosenthyne v. Matthews-McCulloch Co., 51 Utah 38, 168 P. 957; Big Cottonwood Tanner Ditch Co. v. Shurtliff, 49 Utah 569, 164 P. 856; McCornick & Co. v. National Copper Bank, 49 Utah 296, 163 P. 1097. It is a convenient term, also, by which to designate an appeal such as is attempted in this case by the receiver, who is a defendant against whom the plaintiff has not appealed, and who is seeking to bring up by way of appeal a part of the judgment which is not brought up by the plaintiff's appeal. But whatever name may be given to them, they are still appeals, and nothing else so far as the statutes are concerned. This one, at least, must be held to be within the provisions of the statute relating to undertakings on appeal.

The attempted appeal by the receiver on behalf of himself, as receiver, and on behalf of the Guaranteed Securities Company, a corporation, is therefore dismissed.

The outcome of plaintiff's appeal depends upon a construction of Special Session Laws Utah 1919, c. 17, § 24, upon which the action is founded, which reads as follows:

"Any contract of sale made in violation of the terms of this chapter or without first applying for and receiving the license as herein required shall be unlawful and void and every person, firm, domestic or foreign corporation participating directly or indirectly in the sale of any security in violation of the terms of this act and every officer, director, and agent of any corporation where acting as an investment company or dealer, or agent, shall be liable to the purchaser in a civil action instituted in any court of...