Holt v. Pearson

• Decision Date: 31 August 1895
• Docket Number: 580
• Court: Utah Supreme Court
• Parties: JOSEPH HOLT, RESPONDENT, v. CHARLES E. PEARSON, APPELLANT. [1]

41 P. 560

12 Utah 63

JOSEPH HOLT, RESPONDENT, v. CHARLES E. PEARSON, APPELLANT. ^[1]

No. 580

Supreme Court of Utah

August 31, 1895

APPEAL from the District Court of the Third Judicial District. Hon George W. Bartch, Judge.

Action by Joseph Holt against Charles E. Pearson. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Mr. M M. Kaighn, for appellant.

Mr. R D. Winters, for respondent.

MERRITT, C. J. SMITH, J., KING, J., concurring.

OPINION

MERRITT, C. J.:

This is an action brought by respondent against appellant to recover $ 1,218.75, which, it is alleged, was received by appellant from respondent and 21 other persons, who have assigned their claims to him, in excess of the necessary charges and expenses of obtaining deeds for some 40 lots of land situated in a boulevard, 12 rods in width, which surrounded the town of Bountiful, in Davis county, Utah territory. The amended complaint, on which the action was tried, sets forth that on or about the 22d day of May, 1891, defendant represented to plaintiff and others that he was the agent of the probate court of Davis county for the collection of fees and expenses for procuring deeds to certain lots in Bountiful town site, and that the amount required was $ 42 per lot; that plaintiff was the owner, and entitled to deeds for, four of said lots, and paid defendant $ 168 to procure deeds for the same; that defendant paid the probate court $ 20, and returned to plaintiff $ 18, and retains $ 120, which he refuses, after demand, to return to plaintiff. Twenty-one other similar causes of action are stated in the complaint, of persons claiming other lots, who, it is alleged, have assigned to plaintiff. Appellant, in his answer, denies that he represented that he was the agent of the probate court; that plaintiff, or any of his assignors, were owners of, or entitled to deeds of, the lots they claimed; that he withholds any money belonging to said claimants; that the expense of procuring deeds was only $ 5 per lot; or that any of said 21 claimants have assigned to plaintiff,--and alleges that he is a practicing attorney at law; that the land claimed was situated on a public boulevard or highway, and claimants, who owned land abutting on said highway, were illegally claiming part of said roadway; that he was employed by them, in his capacity as attorney, to procure deeds for them at a cost not to exceed $ 42 per lot; that he procured surveys to be made of said portions of land severally claimed by them in said highway; procured a relinquishment by the county court of said land as a highway; secured favorable action by, and procured deeds from, the probate court; paid all costs and expenses, and delivered said deeds to the said parties entitled thereto, and returned to them $ 4.50 per lot, of costs which he had overestimated and saved in fees of the probate court.

On the trial in the court below the judge gave, among other charges, the following: "(9) You are further instructed that there was no law in force, at the time of the giving of the deeds to plaintiff and his assignors, authorizing the probate judge to issue deeds under the town-site act, and if such deeds were given at that time they were given without authority of law. This is in reference to his authority as probate judge. There is a law by which the county court might agree or take steps to vacate a street, and they might appoint him as a committee, and in that way their agent to attend to such matter for them, as a county court; but the probate judge, as such, without such authority being delegated by the county court, could not so act." Appellant, among other things, alleges error in giving such charge, and claims in this court that the complaint does not state facts sufficient to constitute a cause of action, and that the same is not sufficient to support a judgment. The charge of the court quoted above was not responsive to anything in issue in the case. There is no question of title, or sufficiency of the deeds, raised by the pleadings. The charge was therefore calculated to mislead the jury, and cause them improperly to consider, in making up their verdict, an issue not in the case. Instructions of the court should confine the attention of the jury to the issues made by the pleadings. Terry v. Shively, 64 Ind. 106; Conlin v. Railroad Co., 36 Cal. 404; Frederick v. Kinzer, 17 Neb. 366, 22 N.W. 770; Glass v. Gelvin, 80 Mo. 297; Proff. Jury, §§ 313, 314. The charge was erroneous, and giving it was error.

The other objection is to the sufficiency of the complaint. The record is silent as to whether...