Page v. Commercial Nat. Bank of Salt Lake City

• Decision Date: 05 January 1911
• Docket Number: 2182
• Citation: 38 Utah 440,112 P. 816
• Court: Utah Supreme Court
• Parties: PAGE v. COMMERCIAL NATIONAL BANK OF SALT LAKE CITY et al

112 P. 816

38 Utah 440

PAGE v. COMMERCIAL NATIONAL BANK OF SALT LAKE CITY et al

No. 2182

Supreme Court of Utah

January 5, 1911

Rehearing denied January 23, 1911.

Certiorari by H. D. Page against the Commercial National Bank of Salt Lake City, and others.

WRIT QUASHED.

M. E Wilson and E. A. Walton for plaintiff.

Henderson Pierce, Critchlow & Barrette for defendants.

FRICK C. J. McCARTY, J., and LEWIS, District Judge, concur.

OPINION

FRICK, C. J.

The plaintiff made an original application to this court for a writ of certiorari directed to the above-named defendants. The writ was issued as prayed for, and the defendants have duly complied with the commands thereof by certifying to this court a transcript of all the proceeding had in a certain action pending in the District Court of Salt Lake County.

The controlling facts, in substance, are: That on the 21st day of July, 1909, the defendants Commercial National Bank and H. P. Clark, as trustee, commenced an action in the District Court of Salt Lake County against a certain copartnership and a corporation. In the language of the complaint in that action the defendants therein are sued as "Page & Brinton, a copartnership, and Utah Savings & Trust Company, a corporation." On the same day the action was commenced the district court, upon application duly made, also issued an order directed to said firm of Page & Brinton requiring it to show cause by a day fixed why a receiver should not be appointed "pending the trial of the cause for all the assets and property of the said Page & Brinton, a partnership with power to take, receive and collect all the moneys due or to become due to said defendant partnership from any and every source whatever." On the same day the complaint was filed and the order to show cause as aforesaid was issued, the sheriff of Salt Lake County made return that he served the summons issued in the action and said order to show cause "upon Page & Brinton, a copartnership, defendant, by delivering to and leaving with David B. Brinton, one of the copartners," a copy of the summons and also a certified copy of the order to show cause. On the 2d day of August, 1909, the record shows that both the plaintiffs and the defendant Page & Brinton appeared in court by their respective attorneys, and the hearing on the order to show cause was continued to the following day. The record shows, further, that on that day the parties aforesaid again appeared in court by their counsel and that after hearing evidence on behalf of plaintiffs the court appointed a receiver as prayed for. Following this, on the 9th day of August, and before the time to answer in the action had expired, the defendant Page & Brinton appeared specially by filing a motion in which it assailed the jurisdiction of the court over the person of said Page & Brinton upon the grounds that there has been no service upon said partnership or any member thereof;" that neither when the action was commenced nor when the pretended service of summons was made was there any "partnership known as Page & Brinton composed of H. D. Page and D. B. Brinton as alleged in plaintiff's complaint;" that the only service of summons that was made in the action was upon D. B. Brinton, who, at the commencement of the action or at the time the pretended service was made was not and is not now a member of the firm of Page & Brinton, and that "at the time of all the matters referred to in said complaint the said D. B. Brinton was not, and is not now, a member of said firm." The foregoing motion was supported by an affidavit, and said Page & Brinton were given until September 9, 1909, within which to file additional affidavits "in support of said motion without prejudice to any right they now have as to their appearance." On the 18th day of August, 1909, Mr. Brinton, one of the alleged partners of the firm of Page & Brinton, filed an affidavit in which he stated that prior to the 22d day of May, 1906, there was a firm by the name of Page & Brinton; that affiant was one member thereof and that H. D. Page was the other member; that on the day aforesaid affiant sold all his interest in said firm to said H. D. Page and that since said time affiant at no time was a member of said firm. On the 1st day of September following H. D. Page of Page & Brinton filed a motion whereby he specially appeared in the action, and asked the court to quash and set aside the pretended service of summons on Page & Brinton as aforesaid upon substantially the same grounds heretofore mentioned, and upon the further ground that the return as made by the sheriff was false and untrue in that at the time the pretended service was made "there did not exist any firm or partnership by the name of Page & Brinton, nor was at said time David B. Brinton a copartner of Page & Brinton or other agent of this mover." This motion was supported by Mr. Page's affidavit wherein he reiterated the facts stated by Mr. Brinton with respect to the existence and dissolution of the copartnership of Page & Brinton, and stated, further, that since the dissolution of said copartnership "affiant has been doing business under the style of Page & Brinton." Affiant further stated that he alone was concerned in and conducted said business and that the return of the sheriff showing service on the firm of Page & Brinton by serving David B. Brinton as one of the members of said firm was false in that there was no such firm or partnership existing at said time, and said Brinton was not a member thereof, nor was he the agent of affiant. The motion of Mr. Page remained pending until October 23, 1909, at which time plaintiff's counsel moved the court for a default as against the firm or copartnership of Page & Brinton. Counsel for Mr. Page insisted that the motion to quash the service of summons had precedence, and upon being asked by the court whether they objected to the entering of a default against the firm of Page & Brinton they said that in the sense that they had a pending motion that they did so object. After considerable argument by counsel for both sides upon the subject of whether the service of summons was sufficient and whether or not Mr. Page had appeared in the action the court overruled the motion to quash the service of summons, and the attorneys appearing for Mr. Page, upon their own request, were given "ten days in which to plead herein." Thereafter, on the 3d day of November, 1909, H. D. Page filed a general and special demurrer in the action, the introductory part of which reads as follows: "Comes now Hubert D. Paige, impleaded herein as Page & Brinton, and specially appearing for the purpose of this demurrer only,... and without waiving his objections to the jurisdiction of the court over him," demurs on substantially the following grounds, namely: (1) That the court "has not jurisdiction over the defendant;" (2) that "the court has no jurisdiction over the subject-matter of this action;" and (3) that the "complaint does not state facts sufficient to constitute a cause of action." This demurrer it seems was still pending when this proceeding was commenced. On the 9th day of January, 1910, counsel for plaintiffs in the pending action served a notice, service of which, using defendant's counsel's own language, was accepted as the "attorneys for Hubert D. Page as Page & Brinton." The notice served as aforesaid notified said last-named attorneys that said plaintiff's counsel would apply to the district court for an order which, among other things, would require "that the defendants Hubert D. Page and David B. Brinton do within days from date of this order assign in writing to the receiver appointed in this case in due and proper form for the benefit of creditors and those entitled thereto all the right, title, and interest of the said copartnership, and of each of said copartners personally in and to all claims for money admitted by the United States...and all claims made or to be made by the copartnership or either of said copartners for further sums of money on account of a contract" entered into by said copartnership with the United States known as contract No. 103, dated May 19, 1906, and all rights arising under the same. After a hearing in which counsel for both sides participated the court granted the application and made an order requiring the assignment as indicated in the foregoing quotation. Immediately after the foregoing order was made by the district court, and for the purpose of preventing its enforcement, the application for a writ of certiorari to review the proceedings had in the district court as before stated was made to this court, and the writ was granted as stated in the opening of this opinion.

We have given a full synopsis of the proceedings had before the district court, not because we deemed it essential for the purpose of this decision, but for the purpose of showing that the proceedings had before the court were regular and in due course. The matter upon the application was submitted to us upon the affidavit of the plaintiff herein and the certified transcript of the proceedings had before the district court in the case referred to. As we understand counsel for plaintiff herein they insist that the district court exceeded its authority or jurisdiction in making the order requiring the assignment before referred to upon the grounds: (1) That the district court in the action pending therein has obtained jurisdiction of neither the copartnership of Page & Brinton nor of Mr. Page, who, it is contended, alone represented or constituted said firm; and (2) because the court in said action at no time obtained possession of any property belonging to said copartnership or in which it has any interest, or which was within the state of Utah, or within...