People's Building, Loan & Saving Ass'n v. Fowble

• Decision Date: 12 December 1898
• Citation: 55 P. 57,18 Utah 206
• Parties: PEOPLE'S BUILDING LOAN AND SAVING ASSOCIATION, A CORPORATION, AND H. L. GROESBECK, APPELLANTS v. OTIS E. FOWBLE, MARY BOREMAN, GILBERT F. BOREMAN, AND JACOB S. BOREMAN, RESPONDENTS
• Court: Utah Supreme Court

55 P. 57

18 Utah 206

PEOPLE'S BUILDING LOAN AND SAVING ASSOCIATION, A CORPORATION, AND H. L. GROESBECK, APPELLANTS v. OTIS E. FOWBLE, MARY BOREMAN, GILBERT F. BOREMAN, AND JACOB S. BOREMAN, RESPONDENTS

Supreme Court of Utah

December 12, 1898

Appeal from the District Court of Weber County, Hon. H. H. Rolapp Judge.

Appeal from a judgment entered in accordance with the mandate of the appellate court.

Appeal dismissed.

Valentine Gideon, Esq., for appellants.

H. H Henderson, Esq., and G. F. Boreman, Esq., for respondents.

The respondents, Mary Boreman and Gilbert F. Boreman object to the right of appellants to be heard on the appeal and move the court to dismiss the appeal upon the following grounds to wit:

1st. For the reason that an appeal does not lie from the order of the District Court made and entered therein on August 5 1898, overruling and denying appellants' motion to set aside the sale of real estate made by the sheriff of Weber County to plaintiff on February 4, 1898, and to cancel the certificate of sale issued by said sheriff.

2d. For the reason that the judgment and decree entered by said district court on August 5, 1898, in said action is in accordance with the remittitur and decision of the Supreme Court filed in said District Court on July 16, 1898.

With respect to the first point it is sufficient to say that the order therein mentioned and from which appellants herein have appealed, is not a final judgment within the meaning of our statute governing appeals, nor within the meaning of the decisions of this Court upon that subject. The final judgment in this action and the only judgment from which an appeal would lie, is the judgment entered by the District Court and which is in accordance with the mandate of the Supreme Court on the former appeal. Eastman v. Gurrey, 14 Utah 169.

With respect to the second point the Court will see that the judgment of the lower court has been entered in accordance with the mandate of the Supreme Court; therefore respondents ask that appellants appeal be dismissed. First National Bank v. Lewis, 13 Utah 508.

APPELLANTS' REPLY.-

Considering the first ground for dismissal respondents insist that the ruling of the Court on that question is not a final judgment within the meaning of our statute.

This Court has said, "In determining whether the order is appealable we must consider its effect upon the right of the parties rather than the stage of the litigation at which it is made." Ogden City v. Waterworks, 52 P. 698.

"The right of appeal is not confined to judgments upon which an execution may issue. It extends to any final determination of an action whether by order of the court or a technical judgment." Enc. of Pleading & Prac., Vol. 2, p. 55; Belt v. Davis, 1 Cal. 137; Zola v. McDonald, 23 Cal. 126.

As to the second ground it will be admitted that if the judgment as entered by the lower court is not in accordance with the mandate of the Supreme Court this appeal should be considered on its merits. Krantz v. Railway Co., 13 Utah 1; First National Bank v. Lewis, 13 Utah 508.

BARTCH, J. ZANE, C. J. and MINER, J., concur.

OPINION

BARTCH, J.

This action was originally brought to foreclose a trust deed on certain property situate in Ogden City, Utah. At the trial foreclosure was decreed and judgment entered against the defendants for $ 1,860, with interest thereon from a certain date, and for certain sums paid by the plaintiff for taxes and insurance, and for counsel fee. In rendering that judgment the court refused to credit the defendants with certain monthly payments of premium amounting to $ 512.50 having regarded them as belonging to the association, and as not received in extinguishment of the debt. Pending an appeal from the judgment to this court, it appears the property, covered by the trust deed, was regularly sold in pursuance of the decree, and purchased by the plaintiff association for the full amount of the...