Honerine Min. & Mill. Co. v. Tallerday Steel Pipe & Tank Co.

• Decision Date: 09 June 1906
• Docket Number: 1716
• Citation: 85 P. 626,30 Utah 449
• Parties: HONERINE MIN. & MILL. CO. et al. v. TALLERDAY STEEL PIPE & TANK CO. et al
• Court: Utah Supreme Court

85 P. 626

30 Utah 449

HONERINE MIN. & MILL. CO. et al. v. TALLERDAY STEEL PIPE & TANK CO. et al

No. 1716

Supreme Court of Utah

June 9, 1906

APPEAL from District Court Salt Lake County; M. L. Ritchie, Judge.

Action by the Honerine Mining & Milling Company and another against the Tallerday Steel Pipe & Tank Company and another.From an order quashing service of summons, plaintiffs appeal.

Appeal dismissed.

Snyder & Snyder for appellants.

Stephens & Smith and Dey & Stevens for respondents.

STRAUPJ. McCARTY, J., concurs.BARTCH, C. J., concurs in the result.

OPINION

STRAUP, J.

This is an appeal from an order made by the district court quashing a service of summons.The plaintiff claimed service on the defendant, a foreign corporation, by serving a person claimed to be its agent and claimed to have property in his possession belonging to it.The defendant appeared specially and moved to quash the service, on the ground that the person served was not its officer or agent, and had no property belonging to it, in his possession, or under his control.Upon the hearing of the motion on affidavits and testimony the court made an order quashing the service.This was the last proceeding had or action taken in the case in the court below.The case was not dismissed, but is still there pending.

At the outset, the defendant urges that the order is not a final judgment, within the meaning of the statute or the Constitution, and is therefore not appealable.The point is well taken.The Constitution(section 9, art. 8) and the statute(section 3300,Revised Statutes 1898) provide "From all final judgments of the district court there shall be a right of appeal to the Supreme Court."Section 3183,Revised Statutes 1898, provides: "A judgment is a final determination of the rights of the parties in an action or proceeding."This order is not a final judgment.The Nebraska statute is broader than the Utah statute, for the former confers jurisdiction upon the Supreme Court to review, by proceeding in error, all judgments rendered or final orders made by the district court.It defines a final order to be "an order affecting a substantial right in action, when such order, in effect, determines an action and prevents a judgment," etc.Thereunder it was held by the Nebraska courts that an order quashing a service of summons was not such a final order as could be reviewed by the Supreme Court on error until a final judgment was rendered.(Persinger v. Tinkle , 34 Neb. 5, 51 N.W. 299;Standard Distilling Co. v. Freyhan, 34 Neb. 434, 51 N.W. 976;Lewis v. Barker, 46 Neb. 662, 65 N.W. 778.)Under a statute like the Nebraska statutethe Supreme Court of Washington held such an order appealable, but based its decision expressly upon the ground that the lower court quashed the service of summons because it "was of the opinion that upon the merits of the action the plaintiff could not prevail," and stated that it was extremely doubtful if an appeal would lie from an order quashing the service, where the action of the court was based upon some imperfection in the summons, a departure from the form prescribed, or for insufficiency of service and the like.(Embree v. McLennan, 18 Wash. 651, 52 P. 241.)

It will be observed that the statutes give the right of an appeal not only from a judgment rendered, but also from a final order while the Utah statutes gives the right of an appeal only from a final judgment.From what has been said by this court in prior cases, where the question as to what is a final judgment within the meaning of the statute was considered, this order cannot be regarded as a final judgment.( North Point Irr. Co.v. Utah Canal Co., 14 Utah 155, 46 P. 824;Eastman v. Gurrey, 14 Utah 169, 46 P. 828;Watson v. Mayberry, 15 Utah 265, 49 P. 479;Laundry Co. v. Dole, 20 Utah 469, 58 P. 1109;Popp v. Min. Co., 22 Utah 457, 63 P. 185.)In this connection plaintiff urges that to constitute a final judgment it is not necessary that there be a final determination on the merits, if the case is otherwise put out of court, and that the order had such effect.It is true that to constitute a final judgment it is not essential that there be a final determination of the rights of the parties with reference to the subject-matter of the litigation, but merely with reference to the particular suit.It is the termination of the particular action which marks the finality of the judgment.A decision which terminates the suit, or puts the case out of court without an adjudication on the merits, is, nevertheless, a final judgment.(1 Black on Judgments, section 21;Mutual Reserve, etc., Ass'n v. Smith, 169 Ill. 264, 48 N.E. 208, 61 Am. St. Rep. 172;Thomas v. Clark County Nat. Bk., 103 Ky. 335, 45 S.W. 73;Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357;6 Pl. &Pr., 997;Watson v. Mayberry, supra.)All that plaintiff claims with respect to what constitutes a final judgment may be and is...