Kourbetis v. National Copper Bank of Salt Lake City

• Decision Date: 08 February 1928
• Docket Number: 4589
• Citation: 71 Utah 232,264 P. 724
• Court: Utah Supreme Court
• Parties: KOURBETIS v. NATIONAL COPPER BANK OF SALT LAKE CITY (UNITED STATES, Intervener)

264 P. 724

71 Utah 232

KOURBETIS v. NATIONAL COPPER BANK OF SALT LAKE CITY (UNITED STATES, Intervener)

No. 4589

Supreme Court of Utah

February 8, 1928

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

Action by George Kourbetis against the National Copper Bank of Salt Lake City, in which the United States of America intervened. From the judgment, plaintiff appeals.

APPEAL DISMISSED.

S. P Armstrong and J. E. Darmer, both of Salt Lake City, for appellant.

Dickson Ellis, Parsons & Adamson, of Salt Lake City, for respondent.

C. M Morris, of Salt Lake City, for the United States.

HANSEN, J. THURMAN, C. J., and CHERRY, STRAUP, and GIDEON, JJ., concur.

OPINION

HANSEN, J.

The plaintiff brought this action to recover $ 1,491.63 from the defendant National Copper Bank. In his complaint plaintiff alleges that he deposited in his checking account with the defendant bank, and subject to his order, the sum of $ 594.90, and also deposited in a savings account with defendant bank the sum of $ 896.73; that demand had been made upon the defendant bank for the repayment of the money so deposited and repayment refused. The National Copper Bank, in its answer to plaintiff's complaint, alleges that the money deposited by plaintiff with defendant bank was paid to T. A. Callister as deputy collector of internal revenue upon demand under a warrant of distraint which was regular and fair on its face. The bank's answer alleges also that under the laws of the United States of America the plaintiff is authorized to recover any tax or assessment illegally or erroneously levied or collected, and that the United States of America and the collector of internal revenue for the United States in and for the district of Utah are proper parties to this action, in that the plaintiff and the United States of America are conflicting claimants for the moneys so deposited with defendant bank. The United States of America petitioned for an order permitting it to intervene in this action upon the ground that it "is interested in the subject-matter of this action for the reason that if said action is successfully prosecuted to judgment by the plaintiff herein your petitioner will be subjected to an accounting for the acts of the collector of internal revenue taken and above referred to." The trial court ordered "that the United States of America, petitioner, is allowed to intervene * * * as a party defendant." The United States of America, in its answer in intervention to plaintiff's complaint, sets out the same matter of defense as does the National Copper Bank. In addition thereto, the United States sets out as an additional defense that the plaintiff in this action brought an action against the United States of America for the recovery of the same money which he is in this action seeking to collect from the defendant National Copper Bank; that in the action by the plaintiff herein against the United States of America, upon a stipulation entered into by the plaintiff and his attorney and the attorney for the United States of America, a judgment was rendered in favor of the plaintiff herein for the sum of $ 929.09 as and for a full settlement and discharge of the claim or claim or claims accruing out of money received by the collector of internal revenue of the United States from the defendant National Copper Bank; that the United States of America paid to the plaintiff herein the amount of said judgment in full. No other pleading than the complaint was filed by or on behalf of the plaintiff.

After the parties offered their evidence, the trial court instructed the jury, and in due time the jury brought in their verdict. The judgment roll contains a document designated, "Judgment on Verdict," which reads as follows:

"This action came on regularly for trial. The said parties appeared by their attorneys. A jury of eight persons was regularly impaneled and sworn to try said action. Witnesses on the part of plaintiff and defendant were sworn and examined. After hearing evidence, the arguments of counsel, and instructions of the court, the jury retired to consider their verdict, and subsequently returned into court, and being called, answered to their names, and say they find a verdict for the defendant National Copper Bank as follows to wit: 'We, the jurors impaneled in the above case, find the issues in favor of the National Copper Bank and against the plaintiff. I. B. Jones, Foreman, Dated May 22, 1926.'

"Wherefore, by virtue of the law and by reason of the premises aforesaid, it is ordered, adjudged and decreed that the said have and recover from the sum of dollars, with interest thereon at the rate of per cent per from the date hereof till paid, together with said costs and disbursements incurred in this action, amounting to the sum of dollars.

"Judgment entered May 24th, A. D. 1926.

County of Salt Lake.--ss.:

"I, Clarence Cowan, clerk of the Third judicial district court of the state of Utah, in and for the county of Salt Lake, do hereby certify that the foregoing is a full, true, and correct copy of the judgment entered in the above entitled action.

"Witness my hand and seal of said court at Salt Lake City, this 24th day of May, A. D. 1926.

Clarence Cowan, Clerk,

By Fred J. Bassett, Deputy Clerk."

Plaintiff in due time moved for and was denied a new trial.

Neither the judgment nor the bill of exceptions contains anything purporting to be a judgment except the one designated "Judgment on Verdict" hereinbefore set out.

Defendant National Copper Bank has filed in this court a motion to dismiss this appeal because no judgment has been rendered in this case. "Unless allowed by express statutory provision a writ of error or appeal will not lie from the verdict of the jury without an entry of judgment, or from the mere findings of fact or conclusions of law by the court not followed by the judgment or decree." 3. C. J. 600, and cases collected in the footnote. To the same effect are 2 R. C. L. § 21, p. 39; Warren v. Wilson, 47 Nev. 259, 220 P. 242; Scammon v. Pearson, 80 N.H. 122, 113 A. 771; Diebold v. Diebold v. Diebold, 74 Colo. 557, 223 P. 46; Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398; Ouzoonian v. Vaughan, 64 Cal.App. 369, 221 P. 958. The law is well settled in this jurisdiction that an appeal lies from a final judgment only. Const. art. 8, § 9; Comp. Laws Utah 1917, § 6990; Lowell v. Parkinson, 2 Utah 370; North Point Con. Irr. Co. v. Utah & S. L. Canal Co., 14 Utah 155, 46 P. 824; Eastman v. Gurrey, 14 Utah 169, 46 P. 828; Standard Steam Laundry v. Dole, 20 Utah 469, 58 P. 1109; Robinson v. Salt Lake City, 37 Utah 520, 109 P. 817; Lukich v. Utah Const. Co., 46 Utah 317, 150 P. 298; Oldroyd 1. McCrea, 65 Utah 142, 235 P. 580, 40 A.L.R. 230.

The Supreme Court of the United States has defined a final judgment for the purposes of an appeal to be one that "terminates the...