Darger v. Le Sieur

• Decision Date: 19 June 1893
• Citation: 33 P. 701,9 Utah 192
• Court: Utah Supreme Court
• Parties: B. DARGER AND OTHERS, RESPONDENTS, v. ST. V. LE SIEUR, APPELLANT

33 P. 701

9 Utah 192

B. DARGER AND OTHERS, RESPONDENTS, v. ST. V. LE SIEUR, APPELLANT

Supreme Court of Utah

June 19, 1893

Petition for a rehearing in the supreme court. Opinion found at 8 Utah 160.

Reversed and remanded.

Mr. Arthur Brown, for the appellant.

Mr. M. M. Kellogg and Messrs. Bennett, Marshall and Bradley, for the respondents.

MINER, J. ZANE, C. J., and BARTCH, J., and SMITH, J., concurred.

OPINION

MINER, J.:

The appeal in this case was heard in this court at the January term, 1892, and a decision rendered June 6, 1892, in favor of the appellant and granting him a new trial. The opinion is found reported in 8 Utah 160, 30 P. 363. The respondents afterwards filed their petition for a rehearing, and this court made its order granting a rehearing, as prayed. After a full rehearing upon the questions involved, we are satisfied that our former decision was correct, and should not be disturbed. As an additional reason for reversing the judgment, we think the court erred in overruling the defendant's demurrer to the amended complaint. The demurrer was interposed upon the ground that the description of the respective claims mentioned in the complaint were uncertain and defective, and were not alleged in the complaint with such sufficient certainty as to enable an officer, upon execution, to identify it, under section 3241, Comp. Laws 1888. Upon the facts stated, and for the reasons given in the opinion of the court, the demurrer should have been sustained. College, etc., v. Moss, 92 Ind. 119; Orton v. Noonan, 18 Wis. 447; Raymond v. Longworth, 55 U.S. 76, 14 HOW 76, 14 L.Ed. 333; Whitney v. Buckman, 19 Cal. 300; Lane v. Abbott, (Neb.) 23 Neb. 489, 37 N.W. 82. The judgment of the district court should be reversed, with costs, and a new trial granted, and the case remanded for further proceedings.

ZANE, C. J., and BARTCH, J., and SMITH, J., concurred.