Pratt v. Gilbert

Decision Date01 April 1892
CourtUtah Supreme Court
PartiesJAMES PRATT, APPELLANT, v. HENRY C. GILBERT AND OTHERS, RESPONDENTS

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Reversed and remanded.

Messrs Maloney and Perkins, for the appellant.

Messrs Rhodes and Hudson, for the respondents.

BLACKBURN J. ZANE, C. J., and ANDERSON, J., concurred.

OPINION

BLACKBURN, J.:

Plaintiff sued the Jarvis-Conklin Trust Company before a commissioner and obtained judgment. The company gave notice of appeal, and in said appeal defendants gave their bond. It was filed one day too late before the commissioner, but the appeal as a matter of fact, was actually taken. The docket fee was paid by appellant, and the case docketed in the district court. In apt time a motion was made to dismiss the appeal because the bond was not filed in the commissioner's court in time, which motion was sustained. The judgment in the commissioner's court not being paid, this suit was brought to recover on the bond in commissioner's court. Judgment for plaintiff, and an appeal was taken to district court. Motion was made for judgment on the pleadings by the plaintiff. The motion was overruled and denied. Trial was had, and plaintiff offered in evidence the bond and all the proceedings in the suit of plaintiff against the Jarvis-Conklin Mortgage & Trust Company; and the court on motion of the defendants, dismissed the case because the evidence was insufficient to support a judgment.

The contention of appellant is that the court erred in dismissing the case and refusing to give judgment for plaintiff. We think this contention is well taken. The defendants cannot deny the validity of the bond, because they are estopped from denying its recitals. The first bond recites that it is given for costs, and the second that it is given to stay the operations of a judgment and the record shows that judgment was stayed by means of the undertaking. It says: "In consideration thereof, and of such stay of proceedings, and of the premises, jointly and severally undertake and promise," etc. Now, it would be an outrage on justice and fair dealing to allow these defendants to plead that they were not liable on these undertakings, because they were filed one day too late, after they have operated to stay the proceedings, as they were intended. When sued upon an...

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4 cases
  • Braithwaite v. Jordan
    • United States
    • United States State Supreme Court of North Dakota
    • October 28, 1895
    ...that the recital would estop them from showing that the judgment was different in character. George v. Bischoff, 68 Ill. 236; Pratt v. Gilbert, 8 Utah 54, 29 P. 965; Gudtner v. Kilpatrick, 14 Neb. 347, 15 708; Adams v. Thompson, 18 Neb. 541, 26 N.W. 316; 2 Am. & Eng. Enc. Law, 464. But we d......
  • Baldwin v. Anderson, 5653
    • United States
    • United States State Supreme Court of Idaho
    • May 2, 1931
    ...Surety Co., 176 Ill.App. 590; Summit v. Colleta, 81 N.J.L. 153, 78 A. 1047; Richardson v. Penny, 10 Okla. 32, 61 P. 584; Pratt v. Gilbert, 8 Utah 54, 29 P. 965; v. Davis, 33 Cal. 161; Swofford Bros. Dry Goods Co. v. Livingston, 16 Colo. App. 257, 65 P. 413.) H. B. Walker, for Respondent And......
  • State v. Friend
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1931
    ......231, 94 P. 22 (Colo.); Moss v. Summit County, 60 Utah 252, 208 P. 507 (Utah);. Kirschbaum v. Mayn, 76 Mont. 320, 246 P. 953. (Mont.); Pratt v. Gilbert, 8 Utah 54, 29 P. 965. (Utah). The following applicable statement is found in Pratt. v. Gilbert, last named:. . . ......
  • Creswell v. Herr
    • United States
    • Court of Appeals of Colorado
    • February 8, 1897
    ...that for which the bond was given. Meserve v. Clark, 115 Ill. 580, 4 N.E. 770; Adams v. Thompson, 18 Neb. 541, 26 N.W. 316; Pratt v. Gilbert, 8 Utah 54, 29 P. 965; Gudtner Kilpatrick, 14 Neb. 347, 15 N.W. 708; Skidmore v. Hull, 33 Mo.App. 41; Mueller v. Kelly, supra. There are some cases wh......

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