Cram v. Whitehead

• Decision Date: 10 July 1922
• Docket Number: 3789
• Citation: 208 P. 534,60 Utah 377
• Court: Utah Supreme Court
• Parties: CRAM v. WHITEHEAD

208 P. 534

60 Utah 377

CRAM v. WHITEHEAD

No. 3789

Supreme Court of Utah

July 10, 1922

Appeal from District Court Fifth District, Washington County; J. H Erikson, Judge.

Action by John S. Cram against George F. Whitehead. From judgment for plaintiff, defendant appeals.

AFFIRMED.

George R. Lund, of St. George, O. A. Murdock, of Beaver, and Hancock & Barnes, of Salt Lake City, for appellant.

Higgins & Higgins, of Fillmore, for respondent.

CORFMAN C. J. WEBER, GIDEON, and THURMAN, JJ., FRICK, J., concurring.

OPINION

CORFMAN, C. J.

Plaintiff commenced this action against the defendant in the district court of Washington county to recover the value of a certain buffalo alleged to have been wrongfully taken from the possession of plaintiff and converted by the defendant to his own use. In substance it is alleged in the complaint that plaintiff and one Gideon Findlay purchased said animal for, and that it was of the value of $ 1,000; that "the principal value of said animal was as a show feature in his determination and ability to throw his rider when ridden; that since the purchase of said animal by the plaintiff and his associate, it had never been successfully ridden, but had thrown every person who had attempted to ride him, and by so doing had become quite notorious over the state of Utah and had engendered fear in the hearts of many of the 'broncho busters,' who were noted for their daring and ability in riding wild animals"; that since the purchase of said buffalo as aforesaid plaintiff and his associate had "studied him carefully, kept him in fine fettle and condition, and never allowed him to be ridden more than once in any one day"; that on or about December 28, 1919, the defendant "without the knowledge or consent of the plaintiff or his partner, and contrary to their will, willfully and wrongfully assumed possession and control over said animal and took him * * *" from Cedar City to St. George and exhibited him at a midwinter carnival lasting three days; that at said exhibition defendant allowed said buffalo to be ridden three times in one day and until he became completely conquered and broke to ride, "so that he could be ridden like an old cow without any resistance before a large concourse of people from many parts of this state and from various other states, and thus ruined for the purposes for which he was kept by plaintiff," and rendered practically worthless. Plaintiff further alleged that he is now the sole owner of said animal, and by reason of the premises has been damaged in the sum of $ 1,000, for which he prayed judgment, "and for any or additional relief that to the court may seem just."

The defendant by his answer denied generally the allegations of the complaint, and, as a further defense, affirmatively alleged that the buffalo had been taken from Cedar City to St. George under a verbal agreement entered into by and between the plaintiff and a committee of the Dixie Carnival Company, represented by defendant, whereby said buffalo was to exhibited at said carnival at St. George for the agreed price of $ 200; that in the taking and exhibiting of said animal it had been well cared for, not overridden nor overworked, and that after said carnival it could give as good an exhibition as it ever did; that in pursuance of said verbal agreement the Dixie Carnival Company paid a feed bill on said buffalo of $ 78.50 and $ 50 for transportation charges from Cedar City to St. George, and at the conclusion of the carnival notified the plaintiff that they held said animal at his disposal and tendered, and offered to pay him the balance due and owing on the contract; that afterwards said carnival company paid out the balance owing to the plaintiff on said contract for the care and keep of the buffalo.

Plaintiff, by a reply, denied the affirmative matters alleged in the answer.

The case was tried to the court without a jury. The court after hearing the evidence made and entered its findings of fact and conclusions of law and entered judgment in plaintiff's favor and against the defendant for $ 1,000, interest and costs. From that judgment defendant appeals.

At the outset plaintiff has moved to dismiss the appeal and also to strike the defendant's bill of exceptions.

1. It is alleged in the motion to dismiss that the appeal was not taken and perfected in the time allowed by law. The record before us shows: Judgment was served upon the defendant and filed with the clerk of the court April 11, 1921; notice of intention and motion for new trial served and filed April 14, 1921; order made overruling motion for new trial on September 8, 1921; order made and entered extending time to and including November 6, 1921, within which to prepare, serve, and file bill of exceptions on October 3, and on November 4, 1921, a similar order was made extending time to and including November 20, 1921; November 5, 1921, defendant's proposed bill of exceptions was served on plaintiff as per affidavit of counsel for defendant; November 19, 1921, order made by the court settling and allowing bill of exceptions; February 28, 1922, notice of appeal served and filed; February 28, 1922, undertaking on appeal filed.

From the foregoing it appears that the appeal was taken and perfected in time, and therefore the plaintiff's motion to dismiss the appeal must be, and is, denied.

2. Plaintiff has moved to strike the defendant's bill of exceptions upon the following grounds:

"(1) That no bill of exceptions was ever settled or allowed, or filed, or served, as required by law and within the time allowed by law for serving, filing, and having settled and allowed a bill of exceptions upon appeal; (2) that no notice was ever served upon the plaintiff of any time or designating any place at which the defendant would ask the court to settle and allow his proposed bill of exceptions, as required by Comp. Laws Utah 1917, § 6969; (3) that the judge of the trial court never notified respondent of any time designated by the court for the settlement and approval of appellant's proposed bill of exceptions, and no notice was given by the clerk of the court of the designation of any time set for the hearing, or otherwise, of the appellant's proposed bill of exceptions, as required by said section 6969 aforesaid."

There is no merit in the contention made by the plaintiff that the defendant's proposed bill of exceptions was not served upon him. The record shows that defendant's counsel, on November 5, 1921, took the proposed bill of exceptions to the office of the plaintiff's attorneys of record and requested them to accept service of the bill of exceptions, which they refused to do according to their own affidavit in support of plaintiff's motion to strike. We think the statute, section 6969, upon which plaintiff relies, fully contemplates that, when the party desiring to take an appeal presents within time a proposed bill of exceptions to the opposing party for the express purpose of serving it upon him, it becomes his duty to accept service, and that upon his refusal to do so the appealing party may, and the courts will of necessity have to, treat the bill of exceptions as having been legally served.

Treating the bill of exceptions as having been served upon plaintiff, as we must do under the circumstances, the next question that confronts us is whether said statute, section 6969, was thereafter complied with. Said section provides:

"* * * Within ten days after such service, the adverse party may propose amendments thereto, and serve the same, or a copy thereof, upon the other party. The proposed bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who tried or heard the case, upon five days' notice to the adverse party, or be delivered to the clerk of the court for the judge. When received by the clerk, he must immediately deliver them to the judge, if he be in the county; if he be absent from the county, and either party desires the papers to be forwarded to the judge, the clerk must, upon notice in writing from such party, immediately forward them by mail or other safe channel; if not thus forwarded the clerk must deliver them to the judge immediately after his return to the county. When received from the clerk, the judge must designate the time at which he will settle the bill, and the clerk must immediately notify the parties of the designation. At the time designated, the judge must settle the bill. If no amendments are served, or if served are allowed, the proposed bill may be presented, with the amendments, if...