Everett v. Jones

• Decision Date: 16 July 1907
• Docket Number: 1836
• Citation: 32 Utah 489,91 P. 360
• Court: Utah Supreme Court
• Parties: EVERETT v. JONES

91 P. 360

32 Utah 489

EVERETT v. JONES

No. 1836

Supreme Court of Utah

July 16, 1907

APPEAL from District Court, Box Elder County; John E. Booth, Judge.

Action by M. N. Everett against R. H. Jones. From a judgment for plaintiff, defendant appeals.

JUDGMENT VACATED, AND CAUSE REMANDED.

T. D Johnson, O. W. Powers and R. H. Jones for appellant.

J. D Call for respondent.

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

OPINION

STRAUP, J.

This is an action brought by plaintiff against defendant for an accounting. It is alleged in the complaint that the plaintiff delivered to the defendant, an attorney at law, moneys and notes to the amount and value of $ 3,042.80, to be by him loaned and collected for the use and benefit of the plaintiff, and that the defendant had neglected and refused to account to her, but had converted the moneys and proceeds to his own use. Defendant demurred to the complaint for want of facts, and on the further ground that the cause of action was barred by the statute of limitations. The demurrer was overruled. The defendant answered, denying all the material allegations of the complaint, and pleading the statute of limitations and counterclaims--one on a note of $ 55, executed by plaintiff to the defendant, which, it was alleged, remained unpaid, and upon which judgment was demanded for $ 81; one on a note for $ 23.44, executed by plaintiff to the defendant, upon which judgment was demanded for $ 34.79; and one for $ 500 for services rendered and performed by the defendant for the plaintiff as an attorney, and for costs paid out by him on her behalf. The plaintiff replied, denying the allegations of the counterclaims. Upon these issues the case was tried before Hon. Charles H. Hart, judge of the First judicial district court in and for the county of Box Elder, and after the taking of evidence on behalf of both parties for four or five days the court, on the 20th day of November, 1903, made a finding that a trust relation existed between the plaintiff and the defendant, and that in accordance therewith the defendant came into possession of certain funds of the plaintiff, with respect to which she was entitled to an accounting, and thereupon the court ordered that the defendant make an accounting of the funds so received by him before the court on the 8th day of December, 1903. Upon objection made by the defendant to Judge Hart's further proceeding with the case, and upon defendant's request that the case be concluded before another judge, Hon. John E. Booth, judge of the Fourth judicial district, was authorized to further try the case, commencing on the 29th day of December, 1904. On that day the case was regularly called before Judge Booth. The defendant failed and refused to make an accounting, or otherwise to comply with the order of the court made on the 20th day of November, 1903, and objected to any further proceedings being had in the case, claiming that the court had no authority to make the order, and that the court had lost jurisdiction of the case. These objections were all overruled. Plaintiff's counsel then demanded that judgment by default (because of the defendant's failure to comply with the order) be entered against him for the sum of $ 3,202, which sum, it was claimed, the defendant admitted to have been received by him, as evidenced by a statement furnished by him to the plaintiff, which statement was attached to the complaint and made a part thereof. The default was so entered. The defendant having declined and refused to make an accounting or to comply with the order, Judge Booth thereupon made findings reciting the order theretofore made by Judge Hart, the defendant's refusal to comply therewith, and the entering of the default, and without hearing further evidence found that the defendant, on or about the 1st day of January, 1889, received from the plaintiff moneys and notes in the sum of $ 3,042.80, which the defendant had agreed to lend and collect for the use and benefit of the plaintiff, and to pay the principal and interest to her from time to time on her demand; that in June, 1896, the defendant rendered plaintiff a statement showing that the defendant held $ 3,202 belonging to the plaintiff; and that on or about June, 1897, the defendant paid to the plaintiff the sum of $ 100, interest money, but since the date last aforesaid the defendant had not paid anything to the plaintiff, and had failed and refused to account to her, although often requested so to do. As conclusions of law the court found that the plaintiff was entitled to a judgment against the defendant for the sum of $ 3,202, less the payment of $ 100, together with interest at 8 per cent; per annum from 1896. Judgment was entered accordingly, from which the defendant has prosecuted this appeal.

We are asked to dismiss the appeal because not taken in time. The findings were made and filed, and judgment was entered thereon, on the 29th day of December, 1904. On the 16th day of January, 1905, defendant served and filed his motion for a new trial. This motion was overruled on the 20th day of June 1906. We have repeatedly held that in this state an appeal lies only from the judgment, and not from an order denying or granting a new trial; that the judgment is not final while a motion for a new trial, made within the time allowed by law, is pending and undisposed of; and that an appeal may be taken within six months from the overruling of the motion for a new trial. If appellant has filed his motion for a new trial within the time allowed by law, his appeal is within time; otherwise, it is not. The statute provides (section 3294, Rev. St. 1898) that a party intending to move for a new trial must, within five days after the verdict of the jury, or after notice of the decision of the court or referee, if the action were tried without a jury, serve and file a notice of such intention. In this case the motion for the new trial was not served nor filed until nineteen days after the findings were filed and judgment was entered. The material question here is: When did the five-day period begin to run? The statute provides that the party intending to move for a new trial must within five days after notice of the decision of the court or referee, if the action were tried without a jury, file and serve his notice of intention. Section 3330 of the statute provides that all notices must be in writing. It is not made to appear of record that any written notice was served upon the defendant of the decision of the court. The contention made by ...