Myers v. East Bench Irr. Co.

• Decision Date: 12 April 1907
• Docket Number: 1818
• Citation: 32 Utah 215,89 P. 1005
• Court: Utah Supreme Court
• Parties: MYERS v. EAST BENCH IRR. CO

89 P. 1005

32 Utah 215

MYERS v. EAST BENCH IRR. CO

No. 1818

Supreme Court of Utah

April 12, 1907

APPEAL from District Court, Garfield County; Joshua B. Greenwood Judge.

Action by John E. Myers against the East Bench Irrigation Company. From a judgment for plaintiff, defendant appeals.

VACATED, AND NEW TRIAL GRANTED.

Knox &amp Fennemore for appellant.

APPELLANT'S POINTS.

When a time is fixed by law for holding a term of court, it is essential to the validity of its proceedings that jurisdiction be exercised at such times. If business is transacted at a different time, such acts are null and void. (Irwin v. Irwin, 37 P. 548; In Re Terrill, 34 P. 457; In Re McCloskey, 34 P. 459; People v Monighan, I Parker Cr. R. 570; Garlick v. Dunn, 42 Ala. 404; Brumley v. State, 20 Ark. 77; McCool v. State, 7 Ind. 378; Cain v. Goda. 84 Ind. 209; Insurance Co. v. Poppe, 43 P. 1085; Ex Parte Deffery, 3 S.C. (3 Rich) 564; Hodges v. Ward, I Tex. 244; Wilson v. State, S.W. 390; People v. Goodall, 123 Ill. 389, 2 Scam. 385; White v. Riggs, 27 Maine 114; State v. Chamber, 45 La. Ann. 36, 11 S. R. 944; Ex Parte Williams, 69 Ark. 457.) And the appearance of parties does not render proceedings legal which are held on a day subsequent to the day on which the term lapsed. (Cullum v. Casey, 1 Ala. 351.) "An adjournment is either without day or to a day certain. The distinction is vital. An adjournment without day ends the power of the court over the business and record of the term. The adjournment of a term to a day certain leaves it intact." (1 Ency. Plead. and Prac., p. 243. Stovall v. Emerson, 20 Mo.App. 322.) The complaint in this case only alleges that he is not getting his share of water, and that he has been informed by his attorney, W. P. Sargent, that he has not an adequate or speedy remedy at law. Certainly those two allegations are not sufficient to entitle plaintiff to an injunction. (10 Ency. Plead. & Prac., p. 953; Leitham v. Cusick, 1 Utah 242; Myers v. Ives, 65 P. 227; Smith et al. v. Schlink, 62 P. 1044; 16 Am. & Eng. Ency. Law, page 360; McGregor v. Mining Co., 14 Utah 47; 10 Ency. Plead & Prac., p. 953; Gardner v. Strover, 22 P. 483; Mechanics' Foundry Co. v. Ryall, 17 P. 703.)

A district judge may only do at Chambers those things which he is expressly authorized to do by statute. (Conkling v. Ridley, 112 Ill. 36; Newman v. Hammond, 46 Ind. 119; Nevitt v. Woodburn, 45 Ill.App. 417; Ellis v. Karl, 7 Neb. 381.) We, contend that Judge Greenwood had no authority or power to render final judgment in this case at Fillmore, Millard county, Utah, in the Fifth Judicial District, when the action was pending at Panguitch, in Garfield county, Utah. (Turner v. McIlhaney, 6 Cal. 287; Sanchez v. Sanchez, 21 Fla. 346; Sherman v. Town Council of Thomaston, 67 Ga. 246; Welch v. People, 38 Ill. 20; People v. O'Neil, 47 Cal. 109; Filley v. Cody, 4 Col. 109; Backer v. Eble, 144 Ind. 287; Monroe v. Bartlett, 6 W.Va. 441; Bruce v. Doolittle, 81 Ill. 103; McClue v. Owens, 21 Iowa 133; Spear v. Fitchpatrick, 38 Iowa 127.) In support of our contention that the findings are insufficient, to justify the granting of an injunction we cite, however, the following authorities: (Mitchell v. Jensen et al., 29 Utah 346; Kahn v. Central Smelting Co., 2 Utah 371; Reich v. Rebellion S. M. Co., 3 Utah 254; Blumenthal v. Asay, 3 Utah 507; Walley v. Bank, 14 Utah 305; Maynard v. Insurance Co., 14 Utah 458; sec. 3169, Rev. Stat. Utah 1898.)

W. P. Sargent for respondent.

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This action was commenced and tried in Garfield county, in the Sixth judicial district, and was brought to restrain the defendant from amending its articles and increasing its capital stock. Judgment was for plaintiff, and the defendant appeals.

Numerous errors are assigned; among them, that the court was not lawfully in session when the case was tried, and that the judgment is therefore void. This assignment must be sustained.

Section 672, Revised Statutes 1898, provides: "There shall be held at the county seat of each county at least three terms of the district court in each year."

Section 673: "A district court may adjourn a term of court in one county to a future day certain, and, in the mean time, hold court in another county."

Section 675: "The judges of the district court shall, in December of every year, fix the times of holding terms of court in each of the counties composing their respective districts during the ensuing calendar year. The judge or judges of the several districts shall cause a copy of such order to be transmitted to the secretary of state and also entered upon the journal of the court in each county of the district. County clerks shall cause a copy of such order to be conspicuously posted in their respective offices."

Section 676: "Court shall be held at the time fixed as provided in the previous section, and the time shall not be changed, except for sickness of the judge of said district, or, when said judge shall be called into another district at the time appointed for any term, by request of the governor, or when the business in any other county shall necessarily extend the sitting beyond the time appointed for the term.

Section 677: "Whenever, for any of the reasons enumerated above, the regular term of court appointed for any county shall be adjourned, the clerk of that county shall so notify the clerk of each county in the district, and it shall be the duty of said clerk, upon receipt of said notification, to post publicly in his office a notice of said change."

Section 703: "If no judge attend on the day appointed for the holding or sitting of a court, or on the day to which it may have been adjourned, before noon, the clerk shall make an entry thereof in his record, and the sheriff or clerk must adjourn the court until the next day at 10 o'clock a. m.; and if no judge attend on that day before noon, the sheriff or clerk must adjourn the court until the following day at the same hour, and so on from day to day for one week, unless the judge, by written order or telegram, directs it to be adjourned to some day certain, fixed in said order or telegram, in which case it shall be so adjourned."

The Sixth judicial district is composed of Sevier, Wayne, Piute, Garfield, and Kane counties. On December 2, 1904, the judge of that district fixed the time and terms of court in each of the counties of the district for the year 1905, fixing the first term of court in Garfield county on the 19th day of April, 1905. A session of court was held in Garfield county on the 10th day of December, 1904, which was an adjourned session of the November term of that year. On the day last named, that session was adjourned; the judge of said court making and signing the following order: "Nothing further appearing, court adjourned subject to call." After holding a session of court in Sevier county on the 5th day of January, in Piute county on the 14th day of February, and in Wayne county on the 16th day of March, 1905, the judge of said court attempted to hold a session of court at Garfield county on the 22d day of March, 1905, and adjourned from day to day until the 30th day of March, 1905, when, among the transaction of other business, this case was set for trial on the 5th day of May, 1905. The court then adjourned, making the following order: "Court adjourned subject to call or order of the count." No session of court was held; nor was court opened in Garfield county on the 19th day of April, 1905; nor was there any attempt made to do so; nor was that term adjourned; nor any attempt made to adjourn it. It is made to appear that the judge of said district was not sick, nor called into another district, nor had business in any other county which extended the sitting beyond the time appointed for the term. It is also made to appear that the district judge was not at the county seat of Garfield county on the 19th day of April, and not until the 1st day of May, 1905, when a session of court was attempted to be held; nor was the April term in any manner adjourned, or extended, or kept intact. This case was tried on the 5th and 6th days of May and was submitted to the court, who, on the 21st day of June, made and filed findings and entered judgment.

From the foregoing it appears that this case was not tried at a time when the court was legally in session. For want of a session being held on April 19th, or of an adjournment as by law provided, that term failed and ended. Nor can the setting of the trial of this case be held to have been made or conducted at a time to which the...