Continental Life Ins. & Inv. Co. v. Jones

• Decision Date: 17 December 1906
• Docket Number: 1744
• Citation: 88 P. 229,31 Utah 403
• Parties: CONTINENTAL LIFE INS. & INV. CO. v. JONES et al
• Court: Utah Supreme Court

88 P. 229

31 Utah 403

CONTINENTAL LIFE INS. & INV. CO. v. JONES et al

No. 1744

Supreme Court of Utah

December 17, 1906

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by the Continental Life Insurance & Investment Company against Thomas B. Jones and another. From a judgment of dismissal, plaintiff appeals.

REVERSED AND CAUSE REINSTATED.

Henderson Pierce, Critchlow & Barrette for appellant.

APPELLANT'S POINTS.

This is a transitory action and may be brought wherever the defendant can be found. The defendant was found and served in Salt Lake County. (22 Pleadings and Practice, 784, 790; Snyder v Pike, 83 P. 692; Sherman v. Droubay, 27 Utah 47; Fields v. Mining Co., 26 Utah 373; Gibbs v Gibbs, 26 Utah 382.) This case is maintainable here under section 2931, Rev. Stat. 1898. It is alleged that Castleberry agreed in writing to pay all premiums and all moneys due to said plaintiff at its office in Salt Lake City, Utah as soon as the same were collected. Here is a written agreement, fixing the place of settlement. The undertaking bound the defendants to see that Castleberry faithfully complied with his contract. A faithful compliance with the contract required Castleberry to settle in Salt Lake City, Utah. The bond, and the contract which it guarantees, should be construed together as one obligation.

G. N. Sullivan and A. R. Barnes for respondents.

RESPONDENT'S POINTS.

"A decision sustaining or overruling a demurrer is not a judgment under the code." (11 Ency. of Pleading and Practice, p. 830.) We submit, then, that defendant Jones having been once served, the case was not dismissed as to him by the sustaining of his special demurrer. He had been brought within the jurisdiction of the court by having been served with summons. It is true he had appeared and made objection to this jurisdiction, and his objection had been sustained, but that was not a dismissal of the action. "Jurisdiction over the person of the defendant, once acquired, will continue, and can be lost only by an actual dismissal of the action." (Healey v. Altman & Company, 6 Neb. 349; St. Louis v. Gleason, 15 Mo.App. 25.) "When a demurrer is filed by one defendant and sustained, the decision operates only as to the defendant demurring." (6 Ency. of Pleading and Practice, p. 355.) The order of dismissal is not a final judgment, as it is not a dismissal as to defendant Jones. The action is still pending as to defendant Jones. A judgment, to be final, must dispose of the case as to all of the parties. (1 Black on Judgments [2nd Ed.], sec. 23; Lowell v. Parkinson, 2 Utah 370; Irrigation Co. v. Mining Co., 14 Utah 155, 46 P. 824; Hagerman v. Moore [Colo.], 29 P. 1014; Champ v. Kendrick [Ind.], 30 N.E. 635.) The contract of the sureties, then, was a separate and distinct contract from that of the principal, and as they had not contracted to perform the obligation of the bond at any particular place, they were to perform the obligation at their respective places of residence, as recited in the bond. The cause of action, then, did not arise in Salt Lake county, but arose as to each defendant in his respective county. (Konold v. Railroad Co., 16 Utah 151.) The defendants, by their special demurrers, have claimed their right to have the action brought where the cause of action arose. (White v. Railroad, 25 Utah 346, 71 P. 593.)

If it is now held by this court, however, that the question as to where transitory actions may be commenced, is to be determined by the rules of common law, in the absence of statutory regulations, then, we submit, that the cause of action in the case at bar arose either in Utah county or Juab county, under section 2931 of the Revised Statutes of Utah 1898.

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

OPINION

STRAUP, J.

This is a case brought in the district court of Salt Lake county to recover for an alleged breach of covenants of a bond executed by the defendants to plaintiff. It is alleged in the complaint that the plaintiff was engaged in the business of life insurance, and that it had entered into a contract with one Castleberry to write insurance, and that he was to pay all moneys collected by him to plaintiff at Salt Lake City that the defendants, one of whom resided in Juab county, and the other in Utah county, executed, at Salt Lake City, a bond, binding themselves for the faithful performance of the duties of Castleberry, and for the payment of moneys by him to plaintiff; and that Castleberry, in breach of his duties, failed to pay to plaintiff the sum of $ 800. Summons was served on the defendant Whitmore at Juab county, and on Jones in Utah county. Both appeared and demurred to the complaint on the ground of want of jurisdiction of the person, which demurrers were sustained. The plaintiff filed an amended complaint, which, in substance, was like the original, and issued and served on the defendant Whitmore at Salt Lake county, an alias summons. Whitmore again demurred for want of jurisdiction of the person, which demurrer was also sustained, and the court thereupon made the following order: "The special demurrer of George C. Whitmore, the defendant...