Robison v. Gull

• Decision Date: 18 June 1918
• Docket Number: 3114
• Citation: 52 Utah 323,173 P. 905
• Court: Utah Supreme Court
• Parties: ROBISON v. GULL et al

173 P. 905

52 Utah 323

ROBISON v. GULL et al

No. 3114

Supreme Court of Utah

June 18, 1918

Appeal from the District Court of Millard County, Fifth District Hon. D. H. Morris, Judge.

Action by Almon Robison against William H. Gull and A. Ezra Gull, as administrator.

Judgment for plaintiff. Defendants appeal.

REVERSED, and cause remanded for new trial, with instructions.

D. N Straup and W. B. Higgins for appellants.

J. A Melville for respondent.

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

OPINION

THURMAN, J.

This is an action to recover judgment on a promissory note and to foreclose a certificate of stock alleged to have been given as security. The action was originally commenced against William Gull and John Gull, makers of the note, but, it later being made to appear that John Gull died before the action was commenced, an administrator was appointed for his estate and substituted as a party by amendment to the complaint.

The complaint as amended was in the usual form of complaints in foreclosure proceedings, and, among other things, alleged in substance the execution and delivery of the note by both defendants and the assignment and delivery of the certificate of stock, as security, by John Gull. It then alleged that John Gull died in Millard county, Utah leaving estate therein "consisting in part of said certificate of stock subject to the rights of plaintiff in and to the same as a pledge or mortgage of said stock." William Gull, and Ezra Gull, as administrator of said estate, answered the complaint, and, inter alia, denied that John Gull at the time of his death left any estate whatever in Millard county. At the trial of the case plaintiff expressly waived a deficiency judgment against both defendants and stipulated to rely solely upon the sale of the stock for the satisfaction of any judgment he might recover. Judgment was entered for plaintiff against both defendants for the amount due on the note and for a foreclosure of the security, specifying particularly that a deficiency judgment had been waived as to both defendants. Defendant William Gull at the trial admitted the due execution and delivery of the note and that the same had not been paid. The only material issue remaining was as to the assignment and delivery of the stock by John Gull as security for the note. The court found this issue in favor of the plaintiff and rendered judgment for foreclosure.

The hearing on appeal was had at the October term of this court, 1917. It was urged by respondent, both in his brief and in the oral argument, that in view of the pleadings and the proceedings at the trial it appeared that appellants had no interest in the matter in litigation, that there was no actual controversy between the parties, and that therefore this court was without jurisdiction and that the appeal should be dismissed. This contention was made by respondent because of the condition of the pleadings, in which it appeared, as above shown, that the defendants denied that John Gull at the time of his death left any estate in Millard county. In view of this denial it was assumed that appellants disclaimed any interest in the stock in question, and, as the other questions in the case had been settled by stipulation or established by indubitable proof, there was, therefore, no issue remaining between the parties. This assumption of respondent was fortified by a finding of the trial court to the effect that neither of the defendants claimed any interest in the stock. While appellants earnestly resisted the dismissal of the appeal, they did but little to enlighten the court upon the question or to meet the contention made by respondent. In view of the pleadings and the findings of the court above referred to, this court, on the 28th day of January, 1918, entered an order dismissing the appeal. The following authorities were relied upon by the court: 2 Cyc. 533 and 628, and note; 2 R. C. L. 52; Lawrence County's Appeal, 67 Pa. 87; McGregor v. Pearson, 51 Wis. 122, 8 N.W. 101; Burns v. Phinney, 53 Minn. 431, 55 N.W. 540; Glenn v. Reid et al., 74 Md. 238, 24 A. 155; In re Blythe, 108 Cal. 124, 41 P. 33; First Nat. Bank v. Gibson, 60 Neb. 767, 84 N.W. 259; Braswell v. Mortgage Co., 110 Ga. 30, 35 S.E. 322.

Subsequently appellants applied for a rehearing, additional briefs were filed, the question was presented in a new and different light and more fully argued. The court, being in doubt as to the correctness of its former opinion dismissing the appeal, granted the application for a rehearing, and the same was reargued and submitted at the present term. Our former opinion has not been published. This, therefore, is the official opinion of the court, and the only one that will be published as such.

Upon the question as to whether the appeal should be dismissed the court deems it unnecessary to review the numerous authorities presented by the parties litigant. Both appellants and respondent have been diligent in their efforts to afford every possible aid and assistance to the court in arriving at a correct and just conclusion. The authorities cited and heretofore relied on by the court, in a proper case, undoubtedly state the law, and are therefore not discredited in any sense by this opinion. The court, after a careful consideration of the question, is of the opinion that the answer of appellants denying that John Gull, deceased, left any property in Millard county, was not a disclaimer of interest in the stock; that, at most, the denial was a negative pregnant by which defendants only denied that deceased left any property in Millard county, and by implication admitted that he left property somewhere else. Whether deceased left any property in Millard county may be wholly immaterial. It is sufficient to say that under the rules of correct pleading the defendants' denial should not be construed to be an admission that John Gull died without leaving any property. It would therefore, in the opinion of the court, be not only violative of the rules of good pleading, but likewise unjust to appellants, to treat the denial as a disclaimer of interest, as was erroneously done in our former opinion. Besides this, the right of appeal from the final judgment of the district court is a right guaranteed by the Constitution of the state, and we are reluctant to enter an order which would have the effect of depriving the party of such right as long as there is any serious doubt as to the propriety of the order. It follows that the contention of respondent that the appeal should be dismissed for the reasons above stated cannot be sustained.

This brings us to a consideration of the merits of the appeal.

Three complaints (one original and two amended) were filed in the case. A demurrer was entered against each complaint and overruled. In each instance exceptions were taken and error assigned. It is not necessary to consider these exceptions in detail. The objections generally were trivial and untenable from any point of view. Allowance of amendments to the complaint was clearly within the discretion of the court, and defendants were not prejudiced in this regard; hence we are not disposed to encumber these pages with either a statement of the various questions presented or a discussion of their merits.

Appellants' pleading the statute of limitations in answer to the last amended complaint was without merit. The deceased, John Gull, died before the statute ran against the note. Letters of administration were issued, and an administrator appointed for his estate February 16, 1916. Plaintiff's last amended complaint, which made the administrator a party, was filed July 29, 1916, within one year after letters of administration were issued. The action was commenced in time. Comp. Laws Utah 1907, section 2890.

The complaint, as before stated, alleged the execution of the note by both William Gull and John Gull, and the assignment and delivery of the stock as security by John Gull, both of which allegations were denied. During the course of the trial plaintiff proved by defendant William Gull the execution of the note as alleged in the complaint and that the same had not been paid. The only material issue remaining was the delivery of the stock as security by John Gull. To prove this fact, plaintiff himself was sworn as a witness. Calling his attention to the certificate of stock, which had been marked as an exhibit, plaintiff was asked by his attorney if either of the defendants delivered it to him as security for the note. The question was objected to on the grounds that any transaction between plaintiff and John Gull was prohibited by statute. The objection was overruled and exception taken. Witness answered to the effect that John Gull brought him the certificate and delivered it to him at plaintiff's home. Plaintiff then commenced to relate a conversation with John Gull, and defendants objected on the ground that John Gull was deceased, and any conversation with him and plaintiff would be equally within the knowledge of both, and therefore incompetent. The question was withdrawn, and witness was then asked if he knew the signature which was indorsed on the certificate. He answered, "John Gull's." The answer was objected to by the defendants as not responsive and because witness had not shown himself qualified to answer. This objection was sustained. The witness...