Lundeberg v. Dastrup
| Citation | 497 P.2d 648,28 Utah 2d 28 |
| Decision Date | 16 May 1972 |
| Docket Number | No. 12625,12625 |
| Parties | d 28 Wayne C. LUNDEBERG and Joyce B. Lundeberg, his wife, Plaintiffs and Appellants, v. Walter K. DASTRUP and Mrs. Walter K. Dastrup, his wife, Defendants, Counter-claimants and Cross-Claimants, v. Alyce H. HUSBANDS, Cross-Defendant and Cross-Claimant and Respondent, et al. |
| Court | Utah Supreme Court |
LaMar Duncan, Salt Lake City, for appellants.
Sam Cline of Cline, Jackson & Jackson, Milford, for respondent.
The controversy presented here arises from an attempt to collect an attorney's fee of $500 which had been awarded as part of a judgment rendered seven years earlier, February 28, 1964, in connection with a contract of sale of the Bel Aire Motel and Cafe in Parowan, Utah. From an order recalling an execution issued on the judgment the plaintiffs appeal.
The parties here involved are each successors in interest, several steps down, from the original contract, made in October, 1949, between Albert Mitchell, Jr. and wife, sellers, and A. C. Husbands and wife, Alyce H. Husbands, buyers. The interest of the Mitchells as sellers passed to the Sheldon R. Brewsters, thence to the plaintiffs, Lundebergs. The interest of the buyers had passed from the Husbands to Reeders, to Tidwells, to Stewarts, and thence to Walter K. Dastrup and his wife. During 1962, following a default of five months by the Dastrups, the Lundebergs, then having the sellers' interest, pursuant to appropriate notice to the Dastrups, brought this action against them to have their rights in the contract terminated. The Dastrups defended, and also asserted counterclaims, and a cross-claim against Alyce H. Husbands (and others not material here) and named her as a cross-defendant.
After the trial of the case the issues were determined in favor of the plaintiffs Lundebergs and against the defendants Dastrups, terminating their rights in the property and awarding attorney's fee of $500 against 'the defendants.' The judgment also provided that Alyce Husbands, referring to her as a cross-defendant, was entitled to reinstate herself in the property, and also awarded her a $500 attorney's fee against 'the defendants.' Alyce Husbands proceeded to reinstate her contract and she and her successors have continued to make payments according to its terms ($150 a month) to the plaintiffs, Lundebergs.
In the latter part of 1970, she sold her interest in the property to Nick Caravelli who is now in possession of the property and making the payments. Prior to the issuance of the execution above referred to, plaintiffs made demands on Caravelli for payment of the $500 attorney's fee, and upon refusal of payment, issued the execution. Thereupon Caravelli and Husbands joined in a motion to recall the execution on the grounds that the judgment for the $500 attorney's fee ran only against the defendants Dastrup personally, the ones who had defaulted on the contract, and not against the cross-defendant Alyce Husbands, nor Caravelli, her successor, and that it was not a lien upon the property. It is from the granting of that motion that the plaintiffs appeal.
Plaintiffs' contentions are that the provision for an attorney's fee in the original contract, together with each of the successive assignments thereof, made each of the successors to the buyer's interests responsible for the payment of an attorney's fee for enforcement of the contract; also that the judgment ran against the cross-defendant Alyce Husbands; and that it was a lien upon the property; and that it is a covenant which runs with the lands, and is therefore enforceable against the land and all of said parties, including Nick Caravelli, present occupant and successor purchaser under the contract.
There are several obstacles to plaintiffs' projected bases for recovery. The first is to be found in the language of the findings, judgment and decree. In them the Dastrups are properly and definitely referred to as 'the defendants,' and Alyce Husbands is similarly referred to as a 'cross-defendant.' In the portion of the judgment making the awards with which we are concerned the...
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