Omega Inv. Co. v. Woolley
| Decision Date | 20 January 1930 |
| Docket Number | 4886 |
| Court | Utah Supreme Court |
| Parties | OMEGA INV. CO. v. WOOLLEY et al. (COWLEY et al., Interveners) |
Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.
Action by the Omega Investment Company against Ernest R. Woolley and others, in which M. F. Cowley and another intervened, and John T. Clark and others were impleaded as defendants. From an adverse order made after final judgment and decree defendants Ernest R. Wooley and another appeal.
APPEAL DISMISSED.
J Louis Brown and E. D. Hatch, both of Salt Lake City, for appellants.
E. A Walton, M. E. Wilson, and A. R. Barnes, all of Salt Lake City, for respondents.
STRAUP, J. being disqualified, did not participate.
This is an appeal from an order of the lower court made after final judgment and decree. The details of the case and the interests of the parties may be found in 271 P. 797.
The judgment and decree became final November 21, 1928. On November 26, 1928, counsel for the plaintiff, upon an ex parte application, obtained an order from the lower court permitting him to withdraw from the files certain exhibits, among which was Plaintiff's Exhibit 1; and withdrew them accordingly. It is admitted in this record that said exhibit, after its release, was delivered to one of the defendants in this action, to wit, Nathaniel Baldwin, Inc. During the progress of the case originally the secretary of the company, as such secretary, produced the exhibit in the lower court for introduction in evidence and it was admitted as Plaintiff's Exhibit 1.
On December 29, 1928, attorneys for Ernest R. Woolley and the Nathaniel Baldwin Sales Company (not Nathaniel Baldwin, Inc.) served notice upon counsel for plaintiff to the effect that on January 5, 1929, they would move the lower court for an order vacating the order of November 26, 1928, and requiring that such of said exhibits as should have been released to "Defendants and Impleaded Defendants" be returned to them, specifically mentioning, among others, Plaintiff's Exhibit 1. It is admitted, however, by these attorneys that they were not appearing for Nathaniel Baldwin, Inc. which company appears as one of "Defendants and Impleaded Defendants." The substantial ground for such motion was stated as follows: "* * * That such of Plaintiff's Exhibits as were produced by Defendants and Impleaded Defendants should have been returned to them. * * *" (Italics ours.)
On January 5, 1929, the motion was argued in the lower court, counsel for plaintiff appearing, for the purpose of the motion, as counsel for the Nathaniel Baldwin, Inc. The lower court in deciding the matter, in so far as it pertains to Exhibit 1, made the following order:
"* * * It is ordered that Exhibit 1, be retained by Nathaniel Baldwin, Inc. * * *"
This appeal is from this particular part of the order only and is taken by Ernest R. Woolley and the Nathaniel Baldwin Sales Company (not Nathaniel Baldwin, Inc.). For the sake of brevity, we shall speak of Ernest R. Woolley and associate company as appellant, and Nathaniel Baldwin, Inc. as respondent.
Both in the lower court and in this court appellant has very strenuously maintained that in all justice and equity he is entitled to the papers that go to make up Plaintiff's Exhibit 1. He relies upon the merits of the original case; the record of that case and a certain expressed opinion of the judge of the lower court who heard the trial of that case, which opinion was not carried out in its final decision.
We do not decide where the equities lie. No such issue is before us. Assuming without deciding that such a motion as was noticed for and heard January 5, 1929, is a proper method of seeking such equitable relief, it did not raise such equitable issues. It raised merely the question of who produced the exhibit in court--incidently, who did? Admittedly not appellant.
Another point, which we believe is the real issue before us is raised: Is the order of the lower court of January 5, 1929, appealable? We think not. Under the law of this state, to be appealable the order must come within the following language of Comp. Laws Utah 1917, § 6990:
"From all final judgments of the district courts, there shall be a right of appeal to the supreme court."
There must be a final judgment entered....
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