Ottenheimer v. Mountain States Supply Co.

• Decision Date: 30 March 1920
• Docket Number: 3419
• Citation: 188 P. 1117,56 Utah 190
• Court: Utah Supreme Court
• Parties: OTTENHEIMER et al v. MOUNTAIN STATES SUPPLY CO

188 P. 1117

56 Utah 190

OTTENHEIMER et al v. MOUNTAIN STATES SUPPLY CO

No. 3419

Supreme Court of Utah

March 30, 1920

Rehearing denied April 24, 1920.

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by Albert Ottenheimer and others against the Mountain States Supply Company.

From a judgment for plaintiffs, defendant appeals. On motion to dismiss appeal.

APPEAL DISMISSED.

C. E Norton, of Salt Lake City, for appellant.

F. C Loofbourow and Dey, Hoppaugh & Mark, all of Salt Lake City, for respondents.

FRICK, J. CORFMAN, C. J., and WEBER, GIDEON and THURMAN, JJ., concur.

OPINION

FRICK, J.

Two causes of action are stated in the complaint. In the first one plaintiffs seek to recover possession of certain real property, describing it, the possession of which, it is alleged, is wrongfully withheld from the plaintiffs by the defendant, and for damages for withholding the same. In the second cause of action plaintiffs seek to quiet title to a certain strip of ground which adjoins the property involved in the first cause of action, and it is asked that the defendant be required to set forth its claim, if any it has. The defendant, in its answer to the complaint, denied the allegations of the complaint, and, as an affirmative defense, alleged that it held the property in question by virtue of a lease which it had obtained from plaintiffs' grantors by the terms of which it was entitled to the possession of the premises in question at a specified rental for a fixed period of time which would not expire for several years. By way of counterclaim it further alleged that pursuant to the terms of the lease it had made improvements and betterments on the devised premises to the value of $ 2,000. It prayed that the plaintiffs' action be dismissed; that it be adjudged that the defendant has a valid lease upon the premises aforesaid under which it is entitled to possession thereof until May 1, 1923, and that it recover the value of said alleged improvements. The plaintiffs, in their reply, denied the material averments of the answer and counterclaim, and more fully explained the reasons why the defendant is not entitled to the possession of the aforesaid property.

A trial to the court resulted in findings of fact and conclusions of law in favor of the plaintiffs upon which a judgment was entered from which the defendant appeals and assigns numerous errors.

We are met at the threshold with a motion by plaintiffs to dismiss the appeal upon the ground that it was not taken within the time required by our statute. The motion is based upon the contention that the action is one of forcible detainer under our statute (Comp. Laws Utah, 1917, sections 1713 to 1727, inclusive, and hence that an appeal must be taken within the time therein specified, which is within ten days after judgment. While it is true that the relief prayed for in the first cause of action might have been had in a proceeding of forcible detainer, yet it is also true that the relief sought and obtained by plaintiffs under the second cause of action is purely equitable, and could not have been had in a forcible detainer action under our statute. Moreover, the case was tried throughout and submitted to the court, and by it determined, as an action in equity. The plaintiffs, therefore, in order to defeat the appeal, may not now be heard to say that the action was other than one in equity. There is no merit to the motion to dismiss the appeal upon the ground stated therein, and hence the motion should be, and it accordingly is, denied.

Some time after the cause was submitted on the appeal plaintiffs' counsel made application to this court for leave to file another motion to dismiss the appeal upon the ground that the defendant had abandoned its appeal, and hence had waived its right to have the judgment reviewed by this court. That motion is grounded upon the following proceedings:

The judgment, or decree as it is designated in the record, awarded plaintiffs the possession of the property mentioned in the first cause of action, and also awarded them the sum of $ 2,400 "damages * * * for withholding the possession of said premises." The court also quieted the title to the strip of property before referred to and described in the complaint of plaintiffs, and awarded them costs. The defendant appealed from the judgment "and from the whole thereof." After the cause had been submitted the defendant served notice upon plaintiffs' counsel as follows:

"To the Plaintiffs and Their Attorneys: Please take notice that pursuant to your notice to vacate and the order of said court requiring said defendant to vacate the premises described in the complaint in the above-entitled action the defendant has vacated said premises and here delivers possession thereof without waiving any of its claims against said plaintiffs, or against the Zion's Savings Bank & Trust Company, or against the City Trust & Investment Company, or against any of them, by reason of being required to vacate said premises contrary to the terms of the said leases named and set forth in its answer and counterclaim herein."

Immediately upon serving that notice plaintiffs' counsel asked and obtained leave to file the additional motion to dismiss the appeal before referred to.

It is elementary that in case a party to an action accepts the benefits of a judgment in his favor or acquiesces in a judgment against him he thereby waives his right to have said judgment reviewed on appeal. 2 Cyc. 644; 3 C. J. p. 665 section 536. In the same volume of Cyc., at...