Christensen v. Johnson

• Decision Date: 23 October 1936
• Docket Number: 5685
• Citation: Christensen v. Johnson, 90 Utah 273, 61 P.2d 597 (Utah 1936)
• Court: Utah Supreme Court
• Parties: CHRISTENSEN et al. v. JOHNSON

61 P.2d 597

90 Utah 273

CHRISTENSEN et al. v. JOHNSON

No. 5685

Supreme Court of Utah

October 23, 1936

Appeal from District Court, Third District, Salt Lake County; Allen G. Thurman, Judge.

Action by C. M. Christensen and S. E. Sudbury, doing business as S E. Sudbury & Company, against M. B. Johnson, wherein defendant filed a counterclaim. From the judgment, defendant appeals.

AFFIRMED.

Paul E Reimann, Clarence F. Williams, Richard S. Johnson, and LeGrande A. Carlston, all of Salt Lake City, for appellant.

Grant H. Bagley, of Salt Lake City, for respondents.

ELIAS HANSEN, Chief Justice. FOLLAND, EPHRAIM HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

ELIAS HANSEN, Chief Justice.

This action was originally commenced in the city court of Salt Lake City, Utah. A trial in that court resulted in a judgment in favor of plaintiffs and against defendant in the sum of $ 290, together with interest thereon and costs. Defendant appealed from the city court judgment to the district court of Salt Lake county, Utah. After a trial was had in the latter court a similar judgment was rendered. Defendant prosecutes this appeal from the district court judgment. The action is for services alleged to have been rendered by plaintiffs to the defendant in examining, auditing, and furnishing reports of the financial condition of the New Quincy Mining Company, and for attending meetings of the stockholders thereof. In his answer defendant denied plaintiffs rendered any service for him at his request, or at all. Defendant also filed a counter-claim in the cause in which he sought to recover a judgment against plaintiffs for the rental of a room in his office for a period of twelve months at $ 10 per month. The district court as well as the city court found that plaintiffs were entitled to recover from the defendant $ 300 for services rendered, and the defendant was entitled to recover $ 10 for the use made by plaintiffs of his office for one month. Judgment was rendered accordingly. In both the city court and the district court the cause was tried to the court sitting without a jury. Defendant has assigned numerous errors on this appeal. He contends that the district court erred in failing to sustain his demurrer to plaintiff's complaint on the ground, "That said plaintiffs have not the legal capacity to sue, in that plaintiffs allege they are a co-partnership doing business under an assumed name, and said plaintiffs fail to allege they are licensed or qualified to engage in business under such name or any other name." In support of that contention, reliance is had upon the provisions of R. S. Utah 1933, 58-2-1 and 58-2-4. The provisions relied upon provide that:

58-2-1.

"No person or persons shall carry on or conduct or transact business in this state under an assumed name, or under any designation, name or style, corporate, partnership or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless such person or persons shall file in the office of the county clerk of the county in which the principal place of business is, or is to be, located, an affidavit setting forth the name under which such business, is or is to be, conducted or transacted, and the true full name or names of the person or persons owning, conducting or transacting the same, the location of the principal place of business, with the postoffice address or addresses of such person or persons. Such affidavit shall be executed by the person or persons so conducting or intending to conduct such business."

58-2-4.

"Any person who fails to comply with the provisions of this chapter is guilty of a misdemeanor."

Plaintiffs allege in their complaint that at all times therein mentioned they "were co-partners engaged in business under the name of S. E. Sudbury & Company." There is no allegation that they had filed the affidavit provided for by 58-2-1, supra. Defendant's demurrer to the complaint upon the ground heretofore indicated in this opinion was filed in the city court and by that court overruled. When the cause was appealed to the district court, nothing whatever was said about the demurrer. So far as is made to appear, the district court was not asked to and it did not pass upon the demurrer. When an appeal is taken to this court from a judgment rendered by a district court, we review only the claimed errors of the district court. The proceedings had before the city court are not before us for review on appeal taken from the judgment rendered by the district court. We may not on an appeal from a district court judgment review rulings made by the city court when the district court was not requested to and did not pass upon such rulings. To hold otherwise would be to review proceedings which are not before us for review. By failing to request the district court to rule upon his demurrer, defendant waived his claim that plaintiffs are without capacity to sue. Another of appellant's assignments of error must fail for the same reason. In the city court, defendant timely demanded that plaintiffs furnish a bill of particulars. A bill of particulars was furnished. Thereupon defendant objected to the bill and demanded that it be made more certain and definite. The record is silent, however, as to what was done by the city court with respect to the demand that the bill of particulars be made more certain and definite. No attack whatever was made upon the sufficiency of the bill of particulars in the district court and no objection was made in the district court to the introduction of evidence upon the ground that the items sought to be proved were not specified in the bill of particulars furnished in pursuance to the demand made in the city court. Under such a state of facts, the sufficiency of the bill of particulars is not before us for review.

It is also urged that defendant was entitled to judgment for the full amount of rental demanded in his counterclaim because while plaintiffs in their reply denied liability for rental, such reply was not verified. No question was raised in the court below touching the failure of the plaintiffs to verify their reply. The case was tried and disposed of on merits as though the reply had been verified. In such case defendant may not in this court take advantage of the fact that the reply was not verified. By this failure to raise that question in the court below he has waived such defect. Had the objection been raised in the trial court that court may well have permitted plaintiffs to verify their reply. 49 C. J. 824, § 1222; 49 C. J. 485. The law announced by this court in the case of West Mountain Lime & Stone Co. v. Danley, 38 Utah 218, 111 P. 647, is in accord with what is said in the foregoing references in Corpus Juris. Appellant claims that there is a material variance between the allegations of the complaint and the proofs adduced in support thereof. It is alleged in the complaint:

"That between the 9th day of April, 1932, and the 14th day of March, 1933, plaintiffs performed professional services for said defendant at his special instance and request, which said services consisted of examining, auditing and furnishing reports of the financial condition of certain companies in which the defendant was interested as a stock-holder and also attending meetings and conferences with various persons to ascertain and determine the condition of the affairs of said companies in which said defendant was interested; that said services were of the fair and reasonable value of $ 300.00, which sum defendant agreed to pay for said services upon completion thereof."

Plaintiff S. E. Sudbury testified in substance that he and plaintiff were copartners engaged in auditing books and accounts; that he was requested by the defendant to make an investigation of the financial affairs of the New Quincy Mining Company, and particularly with respect to assessments levied on the capital stock of the company, and as to whether or not one A. L. Hurley had paid the assessments levied against his stock; that plaintiff was informed by defendant that the latter was a stockholder of the New Quincy Mining Company; that defendant wanted the information for use in some litigation which he contemplated bringing against the company and its officers; that pursuant to such request plaintiff S. E. Sudbury worked on the books and records of the New Quincy Mining...