McCord & Nave Mercantile Co. v. Glen

• Decision Date: 19 February 1889
• Citation: 6 Utah 139,21 P. 500
• Court: Utah Supreme Court
• Parties: McCORD AND NAVE MERCANTILE COMPANY, RESPONDENT, v. JOHN GLENN, APPELLANT

21 P. 500

6 Utah 139

McCORD AND NAVE MERCANTILE COMPANY, RESPONDENT, v. JOHN GLENN, APPELLANT

Supreme Court of Utah

February 19, 1889

APPEAL from an order overruling a demurrer to a complaint, a judgment by default, and an order denying motion to set aside default and judgment of the district court of the first district. The following facts do not appear in the opinion of the court, but are part of the record.

When the demurrer was overruled defendant's attorney applied for leave to answer and the leave was granted upon his motion.

The affidavit for attachment stated as cause for the attachment "that the said defendant has disposed of and concealed his property with intent to defraud his creditors."

The original undertaking for attachment had the following condition, "that if defendant recovered judgment in said action, said plaintiff will pay all the costs that may be awarded to said defendant, and all damages which he may sustain by reason of the said attachment." The amendment allowed inserted after the words said action, the words "or if the attachment be wrongfully issued." The body of the original undertaking stated that the sureties were residents of the city of Ogden, county of Weber, and Territory of Utah, but the justification did not state that they were either freeholders or householders in the Territory of Utah. The original undertaking was not signed by the plaintiff. The amended undertaking remedied both of these two latter defects.

Writ dismissed.

Mr. L R. Rogers, (Mr. A. R. Heywood, of counsel) for the appellant.

As to the affidavit cited Dunnebaum v. Schram, 59 Tex 281. Smith v. Richardson, 1 Utah, 196. As to the undertaking argued that unless a proper undertaking for attachment was filed, the writ was void. Hisler v Carr, 34 Cal. 641; Hoffman v. Buckerhoff, 1 Denio, 184; Davis v. Marshall, 14 Barb., 96; Waples on Attachment, 126; Drake on Attachment, 124, 130. As to the amendment to the undertaking, cited Drake on Attachment, sections 146, 84, 85; Waples on Attachment, 126. Amendments are permitted only to pleadings, Code of Civil Procedure, section 344, section 280, and contended that Pierce v. Miles, 6 P. 347, was erroneous, citing Winter v. Pearson, 72 Cal. 553. As to the waving of notice of decision cited Burlock v. Shupe, 5 Utah 428, 17 P. 19.

Kimball and White, for the respondent.

As to the waiving of notice of decision by application for time to answer in court, cited Barron v. Deleval, 58 Cal. 95. As to the affidavit cited Smith v. Baker, 80 Alabama, 318.

As to amendment to undertaking argued that affidavit was foundation for attachment but bond was merely to protect officer, citing Lowrey v. Stowe, 7 Porter 438; Bank v. Andrews, 8 Porter 404; Lour v. Derrick, 9 Porter, 415; Tilton v. Cofield, 93 U.S. 163; Ernstein v. Rothchild, 22 F. 61; Pierce v. Miles, 6 Pac. Rep., 347; Swearinger v. Howser, (Kan.) 14 P. 436; notes: 61 Am. Dec., 125; 53 Am. Dec., 779; 79 Am. Dec., 179.

SANDFORD, C. J. BOREMAN, J., and JUDD, J., concurred.

OPINION

SANDFORD, C. J.:

The complaint alleges the sale by the plaintiff at different times of goods and merchandise, and that others, who had assigned to him their claims, had also sold goods to defendant, the whole indebtedness amounting to $ 1,976. To this complaint the defendant demurred. The demurrer was overruled, and the defendant allowed six days in which to file his answer. In our opinion, the complaint was not obnoxious on the grounds set forth in the demurrer. After having dealt with the corporation as such, it is too late to demur to its non-existence. The items of the amount sued for were sufficiently stated. They all arose out of contract, and were not so mingled as to render it impossible to determine the precise nature and amount of each. The Court, in giving further time to answer, did not prescribe the day on which the time to answer should begin to run, and on the sixth day after its decision, without service of notice on the defendant, judgment was entered against him by default. A motion to open the default was refused, and from the order denying that motion an appeal has been taken. It is contended that because the defendant was in Court at the time when the decision giving six days to answer was announced, and knew of it, he lost his statutory right to have the six begin to run after service of the notice. The Code (Section 347) provides that when a demurrer is overruled, and time to answer is given, the time so given runs from the service of notice of the decision. It is obvious that the defendant did not intend to waive the service of notice, inasmuch as he immediately moved to open the default, when notified of the same. His application to set aside the default was opposed by the plaintiff, and was denied apparently on the ground that he had waived his right to a service of notice. We are of the opinion that the default should be set aside, and the defendant allowed to file his answer, for the reason that the plaintiffs did not comply with the statute directing that the time given, when...