Perego v. Dodge

• Decision Date: 15 April 1893
• Court: Utah Supreme Court
• Parties: WILLIAM PEREGO, APPELLANT, v. WILLIAM H. DODGE AND OTHERS, RESPONDENTS

33 P. 221

9 Utah 3

WILLIAM PEREGO, APPELLANT, v. WILLIAM H. DODGE AND OTHERS, RESPONDENTS

Supreme Court of Utah

April 15, 1893

APPEAL from a judgment and from an order refusing a new trial of the district court of the third district. Hon. Charles S. Zane judge. The opinion states the facts, except the following:

The sections of the Code of Civil Procedure which are applicable are as follows: Sec. 3227, 2 Comp. Laws, 1888. The counter-claim must be one in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.

Section 3231, Id., as follows: Whenever the defendant seeks affirmative relief against any party relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may in addition to his answer, file at the same time, or by permission of the court, subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to an original complaint.

Affirmed.

Mr Gerald G. P. Jackson and Mr. J. Y. Marshall, for the appellant.

Messrs Bennett, Marshall and Bradley, Mr. Arthur Brown and Mr. William H. Dickson, for the respondents.

MINER, J. BARTCH, J., concurred. BLACKBURN, J., dissented.

OPINION

MINER, J.

This action to quiet title is brought upon an adverse claim filed by the plaintiff against the defendants, who had applied for a United States patent to mineral lands in Summit county, Utah to which the plaintiff claims to have his possession and right of possession. The defendants deny the material allegations in the complaint, and claim to have the possession, ownership, and right of possession thereto, and pray that defendants be adjudged to be the owners thereof, and entitled to the possession of the same, and for all general and proper relief, etc.

It appears from the abstract, as it is presented, that this cause came on for trial on May 6, 1891, before the court without a jury. The attorneys of the respective parties were present, and conducted the trial, which lasted several days. At the close of the trial, arguments of the respective counsel were made, and the case was finally submitted to the court without a jury, for its determination. The attorneys of both parties were present during the entire proceeding, and it does not appear that any demand for a jury trial was made or that any objection or exception was made, at any time during the trial, against the right of the court to try the case without a jury. This objection is raised for the first time in this court. After the case was submitted, the court entered a decree in favor of the defendants, and against the plaintiff, quieting and confirming the title of the defendants to the land and claims in controversy, and adjudging the defendants to be the owners thereof, and entitled to the possession of the same. The plaintiff served his notice to set aside the findings, decision, and decree, and for a new trial, because of irregularity in the proceedings of the court by which plaintiff was prevented from having a jury trial, and because the court tried said cause without plaintiff having waived his right to a trial by jury. The motion was based upon the minutes of the court, and upon an affidavit filed, wherein affiant states that plaintiff did not, orally or in writing, waive his right to a trial by jury. Upon an examination of this record we find there is no statement or bill of exceptions in this case. Yet the abstract contains plaintiff's notice of intention to move for a new trial, an affidavit upon which it was based, and minutes of the trial court. These papers do not form any part of the judgment roll, and are improperly in the record. So far as the motion for new trial was made on the minutes of the court, the order denying it could only be reviewed by embodying such minutes in the statement of the case. The affidavit upon which the motion seems to have been based was not identified by the court as having been used on the hearing, and it is not embodied in any statement or bill of exceptions. A notice of intention to move for a new trial is no part of the record on appeal, except when shown by a bill of exceptions or statement of the case, Herrlich v. McDonald, 80 Cal. 472, 22 P. 299; People v. Smith, 3 Utah 425, 4 P. 242; Lowell v. Parkinson, 4 Utah 64, 6 P. 58; Bowring v. Bowring, 4 Utah 185, 7 P. 716; Reever v. White, 8 Utah 188, 30 P. 685; Walsh v. Hutchings, 60 Cal. 228; Pico v. Cohn, 78 Cal. 384, 20 P. 706; Girdner v. Beswick, 69 Cal. 112, 10 P. 278; section 3404, 2 Comp. Laws 1888; Dominguez v. Mascotti, 74 Cal. 269, 15 P. 773. These papers, being improperly in the record on appeal, should be disregarded by the court. Hayne, New Trials & App. § 265...