Lynch v. Coviglio

• Decision Date: 14 June 1898
• Docket Number: 914
• Citation: 17 Utah 106,53 P. 983
• Court: Utah Supreme Court
• Parties: E. P. LYNCH, JOHN J. MEYERS ET AL., APPELLANTS, v. ANTONIO COVIGLIO ET AL., RESPONDENTS

53 P. 983

17 Utah 106

E. P. LYNCH, JOHN J. MEYERS ET AL., APPELLANTS, v. ANTONIO COVIGLIO ET AL., RESPONDENTS

No. 914

Supreme Court of Utah

June 14, 1898

Appeal from district court, Third district; A. N. Cherry, Judge.

Ejectment by E. P. Lynch and others against Antonio Coviglio, G. B Piano, and another. From a judgment for defendant Piano plaintiffs appeal.

Affirmed.

J. M Denny, for appellants.

Wiley L. Brown, for respondents.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This is an action in ejectment to recover possession of a certain portion of the Junebug lode mining claim, Camp Floyd mining district, Tooele county, Utah. The portion claimed is described by metes and bounds in the pleadings, and it is admitted that at the time suit was brought, and trial had, the defendants were in the possession thereof. The court on July 14, 1897, rendered a decree and judgment in favor of the defendant G. B. Piano, and this appeal is from the decree and judgment.

The first question which we will consider is whether the court had jurisdiction to render judgment when it did. It appears from the record that the court failed to file its findings of fact, conclusions of law, and decision within 30 days after the cause was submitted; and counsel for the appellants insists that this was error, and that after the expiration of 30 days from the submission of the case the court had nothing before it which it was authorized, or had jurisdiction to, decide, and relies on section 3379, Comp. Laws Utah 1888, which provides, "Upon a trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision." This section is a verbatim copy of section 632 of the Code of Civil Procedure of California. The supreme court of that state has construed the provision respecting the time of filing the decision as being directory merely. McLennan v. Bank, 87 Cal. 569, 25 P. 760; Broad v. Murray, 44 Cal. 228; Vermule v. Shaw, 4 Cal. 214. We entertain no doubt of the correctness of this construction, and see no reason to depart therefrom, or to announce a new rule respecting the filing of decisions of questions of fact, which would be at variance with the established practice in this state. A court, therefore, trying a case without a jury, has jurisdiction to file its findings of fact, conclusions of law, and decision after the expiration of the time designated in the statute. It is true, however, that there should be no unnecessary delay in so doing.

It is also insisted for the appellants that the court erred in assuming jurisdiction to amend its findings of fact, conclusions of law, and decree. It appears that the amendments were made at the same time the motion for a new trial was overruled. Such practice respecting findings of fact and judgments, as is indicated by the record in this case, has several times been condemned by this court, and ought no longer to be continued. Clawson v. Wallace (Utah) 16 Utah 300, 52 P. 9; Fisher v. Emerson, 15 Utah 517, 50 P. 619. Inasmuch, however, as the questions raised in the cross complaint were of equitable cognizance, and as the amendments were made at the hearing of the motion for a new trial, when the court yet had jurisdiction of the cause, and as none of the amendments were prejudicial to the rights of the appellants, but all were favorable to them, we are not disposed to regard the action of the court as reversible error. Under these circumstances the granting of a new trial by this court would not be warranted. Mining Co. v. Jennings, 14 Utah 221, 46 P. 1106; Pratalongo v. Larco, 47 Cal. 378; Wingate v. Ferris, 50 Cal. 105; Kahn v. Smelting Co., 102 U.S. 641, 26 L.Ed. 266.

It is further insisted for the appellants that the court erred in holding that the respondent Piano acquired title to the premises in question by virtue of an oral agreement between him and A. N. Butts, who, it appears, was the owner of the Junebug mining claim, of which the land in dispute forms a part, at the time of the making of the alleged agreement. The agreement set up in the cross complaint is to the effect that on September 1, 1893, A. N. Butts, then the owner and holder of the Junebug mining claim,--not yet patented,--in consideration of securing the beginning of a camp or mining town on the Junebug claim, agreed to give Piano that portion of the mining claim in dispute herein, on condition that Piano would erect or cause to be erected certain buildings or improvements thereon. Thereupon, as is alleged, Butts gave Piano possession of that portion of the claim; and, in pursuance of the agreement, Piano began, and afterwards, with the continued consent of Butts, completed four residence buildings thereon, of the value of $ 1,400, all of which were constructed between September 1, 1893, and January 1, 1895. Afterwards a patent to the Junebug claim was issued to Butts. At the trial the court, among other things, found from the evidence that the agreement was made and entered into substantially as alleged, except that any mineral which might be found under the surface was reserved together with the right to carry the same away, and that Butts put Piano into possession of the land in dispute; that Piano's possession was actual, open, and notorious, and known to all the parties to this action; and that Piano, under the contract, made lasting and valuable improvements on the property, and continued in the possession thereof until the trial of this suit. In the conclusions of law the court found that there had been such performance by Piano as to take the contract out of the statute of frauds, and that upon the patent issuing to Butts the title passed to and vested in Piano, subject only to the mineral rights, which remained in the patentee; and the court decreed the title to the land in question to be in Piano, subject to the mineral reservation. It is...