Evans v. Jones

• Decision Date: 12 June 1894
• Docket Number: 501
• Citation: 37 P. 262,10 Utah 182
• Court: Utah Supreme Court
• Parties: JOHN EVANS, RESPONDENT, v. R. H. JONES, APELLANT

37 P. 262

10 Utah 182

JOHN EVANS, RESPONDENT, v. R. H. JONES, APELLANT

No. 501

Supreme Court of Utah

June 12, 1894

APPEAL from the District Court of the Fourth Judicial District, Hon James A. Miner, Judge. The facts are stated in the opinion.

Action by John Evans against R. H. Jones to recover on a promissory note. From a judgment for plaintiff, defendant appeals.

Affirmed.

Mr. B H. Jones, for appellant.

Mr. T D. Johnson and Mr. Nels Jensen, for respondent.

BARTCH, J. MERRITT, C. J., and SMITH, J., concur.

OPINION

BARTCH, J.:

The abstract in this case is very imperfect, and discloses no merit in the appeal, which rests alone on the judgment roll, and this also appears to be imperfect. It appears therefrom, however, that the action was brought before a justice of the peace on a promissory note. The demand in the complaint was for $ 200 and interest, and reasonable attorney's fee, according to the terms of the note. Judgment was rendered in the district court for $ 236.66, amount of principal and interest on the note, and for $ 30 attorney's fee. The record does not disclose any final proceedings in the justice's court, nor how the action was transferred to the district court; but it does show that the defendant demurred to the complaint, and afterwards filed an answer. The record is silent as to what disposition was made of the demurrer, but shows that, while the cause was pending in the district court, the defendant, having been regularly served with process, and having appeared by answer, afterwards withdrew the answer. Thereafter, his default was entered, and evidence introduced by the plaintiff to ascertain the defendant's indebtedness to him, and also to determine what was a reasonable attorney's fee for its collection. The court then ordered judgment to be entered as above indicated.

Counsel for appellant insists that the court erred in entering judgment before disposing of the demurrer, which raised an issue of law. The rule is that, in a case where both an issue of law and of fact are raised by a demurrer and answer, the issue of law must first be disposed of, and if the cause is tried on the issue of fact raised by the answer, and judgment rendered, it will be presumed on appeal that the demurrer was overruled before trial. Where, as in this case, the defendant demurs, and some time thereafter answers, but, before trial withdraws the answer, and allows judgment to be...