Obradovich v. Walker Bros. Bankers

• Decision Date: 16 November 1932
• Docket Number: 5007
• Citation: 80 Utah 587,16 P.2d 212
• Court: Utah Supreme Court
• Parties: OBRADOVICH v. WALKER BROS. BANKERS

16 P.2d 212

80 Utah 587

OBRADOVICH v. WALKER BROS. BANKERS

No. 5007

Supreme Court of Utah

November 16, 1932

Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.

Action by Dan Obradovich against Walker Brothers Bankers, wherein defendant interpleaded Millie Evancovich, as executrix of the estate of Perka Obradovich, deceased, and wherein interpleaded defendant filed a counterclaim. From the decree in favor of interpleaded defendant, plaintiff appeals.

AFFIRMED.

King &amp King, of Salt Lake City, for appellant.

Ingebretsen Ray & Rawlins and H. L. Mulliner, all of Salt Lake City, for respondent.

EPHRAIM HANSON, J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and FOLLAND, JJ., concur.

OPINION

EPHRAIM HANSON, J.

This action involves the title and ownership of two savings accounts, Nos. X6944 and X0638, carried in Walker Brothers Bankers in the names of the plaintiff, Dan Obradovich, and his wife, Perka (now deceased). Upon the filing of the complaint, the defendant, Walker Brothers Bankers, entered its appearance, disclaiming any interest in said funds except as a depositary thereof, admitting its obligation to pay the same with interest to the parties entitled thereto. It alleged that the plaintiff and one Millie Evancovich, as the executrix of the estate of Perka Obradovich, asserted conflicting claims to the ownership of such funds and prayed that Millie Evancovich as such executrix be brought in as a party defendant. An order was accordingly entered interpleading said executrix and relieving the defendant bank from further pleading in the cause and exonerating it from all liability in respect to such fund except to pay it out in accordance with the final order and judgment of the court pertaining thereto. Millie Evancovich as such executrix thereupon filed her answer and counterclaim alleging that the money in such savings accounts had been earned by Perka Obradovich during her lifetime in conducting boarding houses and in furnishing meals and refreshments, thereby earning large sums of money which were deposited in such savings accounts in the joint names of plaintiff and the decedent, that at the time of decedent's death she had not parted with the title or ownership to the said funds and never consented or agreed that the plaintiff might have more than one-half thereof, and prayed for judgment that one-half of the funds in question be adjudged and decreed to be the property of the decedent's estate. Plaintiff in his reply denied the material allegations of the counterclaim. The case was tried to the court without a jury, and on July 2, 1929, the court made its findings, conclusions of law, and decree in favor of the interpleaded defendant, and among other things found as follows:

"That both Dan and Perka Obradovich earned said moneys in said savings accounts; that from the time of his marriage to Perka up to the time of her death said Dan Obradovich worked industriously, and said Perka Obradovich also worked in keeping roomers and boarders and also did much business in supplying her roomers and boarders and others with liquid refreshments, and in this manner and by the work of both Dan and Perka the moneys in said accounts were accumulated, and the court has no evidence before it upon which it can find exactly or approximately how much of said moneys were earned by Dan or how much by Perka, save as indicated by the form of said deposits.

"That all the business of depositing said moneys in said bank was attended to by said Dan. Said Perka who could neither read nor write any more than her own name 'Perka' had nothing further to do with said depositing than merely to sign her name 'Perka' on the deposit card and put her finger print thereon."

Later, at the instance of the interpleaded defendant, on August 31, 1929, the court made and filed amended findings, conclusions, and decree. The amended findings set forth in detail the manner of opening the accounts; set forth that the withdrawals therefrom were by plaintiff after the death of the decedent; and also set forth the amounts of such accounts. The amended judgment decreed to the interpleaded defendant one-half of the total amount on deposit at the time of the death of decedent.

From this judgment the plaintiff appeals. He contends that the finding that one-half of the funds in question was earned by or belonged to Perka Obradovich, the decedent, during her life, is not supported by, but is contrary to, the evidence; that, if any part of such funds was earned by her, the evidence shows that the same was acquired by the sale of intoxicating liquors, an illegal and unlawful trade, and, therefore, the executrix is not entitled to an accounting; that the court erred in the admission of certain evidence; and that, if Perka ever owned any part of the money deposited, it became the property of her husband, the survivor, upon her death.

We are met at the outset by a motion to dismiss the appeal upon the ground that no undertaking on appeal, cash deposit, or stipulation waiving bond on appeal was filed within five days after the service of notice of appeal as provided by Comp. Laws Utah 1917, § 6996; that the transcript on appeal was not filed within thirty days after the appeal was perfected, if any appeal was in fact perfected; and that notice of appeal was not filed within six months after entry of the judgment.

The notice of appeal was served December 28, 1929, and filed on January 29, 1930. The certificate of the clerk recites that a stipulation signed by the attorneys for both plaintiff and defendant, waiving bond on appeal, was filed January 29, 1930. In the transcript we find a written stipulation signed by the attorneys for the respective parties, but it is not properly before us. The statute prescribes what shall constitute the judgment roll, and, unless included in or by apt reference made a part of a bill of exceptions, neither the undertaking on appeal, the cash deposit, the waiver, nor the oath of poverty in lieu thereof, constitutes any part of the judgment roll and cannot be considered by us. Dayton v. Free, 46 Utah 277, 148 P. 408; Taylor v. Paloma G. & S. Mining Co., 51 Utah 500, 171 P. 147; Fisher v. Bonneville Hotel Co., 55 Utah 588, 188 P. 856, 12 A. L. R. 255. We thus have before us merely the certificate of the clerk that the stipulation waiving bond on appeal was filed January 29, 1930.

Comp. Laws Utah 1917, § 6996, provides:

"An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial, but within five days after service of the notice of appeal an undertaking shall be filed or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived in writing. * * *"

This section does not require the waiver to be filed within five days or any other specified time after service of notice of appeal, and the fact that the waiver was not filed within such period would not justify the dismissal of the appeal. Newman v. Maldonado, 3 Cal. Unrep. 540, 30 P. 833. This is in harmony with the holding of this court that an order extending time, signed before but not filed until after the expiration of the original time limit, is valid. Elliot v. Whitmore, 10 Utah 253, 37 P. 463. Nor does the clerk's certificate that the waiver was filed January 29th raise any presumption that it was not entered into at an earlier date.

Assuming it were properly made to appear that the giving of an undertaking on appeal was not waived within five days after service of notice of appeal, yet the appeal could not, for that reason, be dismissed. Under the provision of the statute just quoted, the filing of the undertaking within the time limited is not jurisdictional. Hoagland v. Hoagland, 18 Utah 304, 54 P. 978. In the Hoagland Case appellant filed an affidavit of poverty but gave no undertaking for costs on appeal. On motion to dismiss the appeal this court held that, while the filing of such affidavit relieved the appellant of the payment of costs or fees otherwise required to be paid on taking the appeal, it did not relieve the appellant from the necessity of filing an undertaking for costs which respondent might incur, but the motion to dismiss was denied upon condition that such undertaking be filed in this court. At the next session of the Legislature an amendment was adopted dispensing with an undertaking for costs where such affidavit is filed. The undertaking for costs on appeal is for the benefit of respondent and may be waived by the respondent. The respondent having waived it, under the present wording of our statute it is immaterial at what date she did so.

Under the former wording of the statute a different result might follow. The quoted section was copied from California, and, as originally adopted, after the words "the order of service is immaterial" it provided that "the appeal is ineffectual for any purpose unless within five days," etc. Laws of Utah 1884, p. 304, Comp. Laws Utah 1888, § 3636. Under such provision the filing of the undertaking, or the other alternatives in lieu thereof, within the time limited was just as essential as the filing of the notice of appeal, and a waiver after the expiration of that time would be of no avail. Perkins v. Cooper, 87 Cal. 241, 25 P. 411; Crowley Launch & Tugboat Co. v. Superior Court, 10 Cal.App. 342, 101 P. 935; Mathis v. Superior Court, 50 Cal.App. 652, 195 P. 711; Pratt v. Jarvis, 8 Utah 5, 28 P. 869. Such provision was eliminated in the revision of 1898, § 3305.

The next ground urged for the dismissal of the...