Fenton v. Salt Lake County

• Decision Date: 01 July 1886
• Citation: 4 Utah 466,11 P. 611
• Court: Utah Supreme Court
• Parties: THOMAS FENTON, APPELLANT, v. SALT LAKE COUNTY, RESPONDENT

11 P. 611

4 Utah 466

THOMAS FENTON, APPELLANT, v. SALT LAKE COUNTY, RESPONDENT

Supreme Court of Utah

July 1, 1886

APPEAL from a judgment of the third district court. The opinion states the facts.

Judgment affirmed, with costs.

Mr. J D. Lomax, for the appellant.

Mr. Z Snow, for the respondent.

POWERS J. ZANE, C. J., and BOREMAN, J., concurred.

OPINION

POWERS, J.:

This case was first before this court in June, 1884, and is reported in 3 Utah 423, 4 P. 241. At that time this court held that the demurrer overruled in the court below should have been sustained, and the judgment was reversed, with instructions to the lower court to sustain the demurrer. This court said: "The demurrer raises the point that the complaint does not state facts sufficient to constitute a cause of action against the defendant county, inasmuch as there is no averment that the claim was presented to, and disallowed by, the county court, in accordance with the provisions of section 6 of an act of the territorial legislature approved February 18, 1885. The section referred to provides that 'no action shall be commenced or maintained against any county until the person or party having a claim, demand, or right of action shall present the same to the county court thereof, with proof of the correctness of such claim, demand, or right, and until the same shall have been disallowed by said court.' The next section provides that if a claim or demand is not audited in four months after presentation it shall be deemed to be disallowed. See Laws 1878, p. 4. This provision is founded in wisdom, and in furtherance of a judicious public policy to prevent needless litigation, and to save unnecessary expense and costs, by affording an opportunity amicably to adjust all claims of every nature against a county before suit brought. The right to commence or maintain any action against a county is, by the statute, made to depend upon the fact that the claim, demand, or right of action has first been presented to the county court, and has been disallowed either expressly or by non-action. This fact must be stated in the complaint. It is a substantial allegation, upon which the plaintiff's right of recovery depends, and without it the complaint fails to state a cause of action against the county."

The cause being remanded to the lower court, and the defendant electing to stand upon his complaint, on the eleventh day of December, 1884,...