Fisher v. Emerson

• Decision Date: 04 October 1897
• Docket Number: 827
• Citation: 15 Utah 517,50 P. 619
• Court: Utah Supreme Court
• Parties: NELLIE E. FISHER ET AL., RESPONDENTS, v. HARRIET S. EMERSON, APPELLANT

50 P. 619

15 Utah 517

NELLIE E. FISHER ET AL., RESPONDENTS, v. HARRIET S. EMERSON, APPELLANT

No. 827

Supreme Court of Utah

October 4, 1897

Appeal from the Second district court, Weber county. H. H. Rolapp Judge.

Suit by Nellie E. Fisher and others against Harriet S. Emerson. Judgment for plaintiffs. Defendant appeals.

Reversed.

Kimball & Kimball, for appellant.

After the court made and filed its findings, it had no power or authority to hear other testimony or make other findings without a motion for new trial by the plaintiff, nor without setting aside its findings of fact and granting such new trial. Hayne on New Trial and Appeal, sec. 246; Hidden v Jordan, 28 Cal. 305; Price v. Lynch, 38 Cal 528; Cowning v. Rogers, 34 Cal. 652; Crim v. Kessing, 89 Cal. 478.

Whipple & Johnson, for respondents.

Cited: Broder v. Conklin, 98 Cal. 360; Hastings v. Hastings, 31 Cal. 95; Hayne on New Trial and Appeal, sec. 246; Candee v. Bartow, 62 Cal. 1; Wells v. Kreyenhagen, 49 P. 128; McLaughlin v. Doherty, 54 Cal. 519; Potter v. Talkington, 49 P. 14; Pinder v. Yager, 29 Ia. 468.

OPINION

PER CURIAM.

This action was brought to enjoin defendant from constructing a fence upon a right of way alleged to belong to the plaintiffs, and that plaintiffs be decreed to have free use of such right of way. An order to show cause why an injunction should not issue, restraining the defendant from the acts complained of, was issued, and made returnable July 7, 1896. The cause came on regularly for hearing upon the order to show cause on the day set for said hearing, and upon the complaint and answer in the case. A trial was had, witnesses sworn and examined on behalf of both parties, documentary evidence was introduced by plaintiffs and defendant, and the cause, on complaint, answer, and evidence, was duly submitted to the court for its decision, and was by the court taken under advisement. The plaintiff at the commencement of the hearing objected to have the hearing stand as a final hearing of the cause, but the court made no order on that objection. On the 16th day of July, 1896, the court, being duly advised, made and left with the clerk, and ordered filed, its decision and findings in writing, in due form, finding all the material facts in favor of the defendant and against the plaintiffs, and also filed the following conclusions of law: "(1) As conclusions of law from the foregoing facts, the court now hereby finds and decides that the plaintiffs are not entitled to an injunction against the defendant, enjoining and restraining her from erecting the fence described in finding of fact No. 4. (2) That the defendant is entitled to have a restraining order issued in this cause on the 26th day of June, 1896, dissolved. (3) That the plaintiffs are not entitled to have said restraining order. (4) That the plaintiffs are not entitled to have an injunction in this action, and the defendant is entitled to recover of the plaintiffs her costs incurred in this action." The findings and conclusions were left by the court with the clerk for filing, but were not filed until October 10, 1896, when a nunc pro tunc order was made to file them as of July 16, 1896; the clerk's costs for filing the same not having been paid, through mistake. On July 21, 1896, the cause was again called for final hearing on the merits. The defendant objected to proceeding with the said trial on the ground that the court had no authority or jurisdiction to retry said cause, because of the trial on July 7, and the findings of fact of July 16, 1896; the same not having been set aside, or a new trial granted. The objection was overruled, and the trial was proceeded with, under objection and exception by defendant. Upon this trial, findings, conclusions, and judgment were rendered in favor of the plaintiffs and the injunction prayed for awarded. Defendant appeals from this judgment, and alleges that the court erred in proceeding with the trial anew on July 21, and making its findings and judgment, because of the trial before the court of July 7, 1896, and the findings and conclusions found in favor of the defendant, and that the same had not been set aside or a new trial granted at any time.

The findings and conclusions of law upon each hearing were entirely antagonistic and contradictory. Upon the first hearing the injunction was denied, and costs awarded to defendant. Without setting aside the findings, and without any motion or order for a new trial, the court, under objection, proceeded to a rehearing of the cause, and came to an opposite conclusion from that reached at the first hearing. When the court left the findings of fact and conclusions of law with the clerk, on July 16th, and ordered them filed, they were just as effectually filed as though the clerk had placed his filing mark upon them. ...