Shurtz v. Thorley

• Decision Date: 10 November 1936
• Docket Number: 5660
• Citation: 90 Utah 381,61 P.2d 1262
• Court: Utah Supreme Court
• Parties: SHURTZ v. THORLEY et al

61 P.2d 1262

90 Utah 381

SHURTZ v. THORLEY et al

No. 5660

Supreme Court of Utah

November 10, 1936

Appeal from District Court, Fifth District, Iron County; Le Roy H Cox, Judge.

Action by Peter Shurtz against William R. Thorley and another. From an order of dismissal as to defendant Thomas A. Thorley plaintiff appeals.

APPEAL DISMISSED.

J. M Foster, of Cedar City, for appellant.

Morris & Matheson, of Cedar City, for respondents.

FOLLAND Justice. ELIAS HANSEN, C.J., and EPHRAIM HANSON and MOFFAT JJ., WOLFE, Justice, concurring.

OPINION

FOLLAND, Justice.

This is an action in damages for alleged breach of lease agreement. The lease was signed by William R. Thorley. Plaintiff sought to hold William R. Thorley and also Thomas A. Thorley as a principal, although Thomas A. Thorley did not sign the lease nor is he mentioned therein. The separate demurrer of Thomas A. Thorley was sustained and an order of dismissal as to him made and entered. The cause as to the other defendant remained undisposed of in the district court. From the order or judgment of dismissal plaintiff appeals. The case was argued and submitted on merits of the demurrer without any question as to whether the order of dismissal is a final judgment from which an appeal will lie. That question is one involving the jurisdiction of this court and is a matter the court will itself notice, though not called to its attention by either party. The court advised counsel for the respective parties it would notice and decide the jurisdictional question, and on its request briefs on that subject were filed.

The Constitution, art. 8, § 9, provides:

"From all final judgments of the district courts, there shall be a right of appeal to the Supreme Court."

This language has been held to except from the appellate jurisdiction of the Supreme Court appeals from the district court other than appeals from final judgments, and to deny the right of appeal from all orders or rulings of the district court except only from final judgments. North Point Consolidated Irr. Co. v. Utah & Salt Lake Canal Co., 14 Utah 155, 46 P. 824, 826; Eastman v. Gurrey, 14 Utah 169, 46 P. 828; State v. Olsen, 39 Utah 177, 115 P. 968.

The question for decision is whether the order of dismissal of one of two defendants jointly charged is a final judgment from which an appeal will lie. In only one case has the precise point been decided in this jurisdiction, and that was by the territorial court in Lowell v. Parkinson, 2 Utah 370. In that case two defendants had been sued. One demurred separately. The demurrer was sustained and the cause dismissed as to her. The court, without discussion or attempting definition, held as follows:

"The order sustaining a demurrer is not an appealable order, and the order dismissing the cause as to Lizzie Hyndman was not, as to the plaintiffs, a final judgment. The cause is still pending against the other defendants. The plaintiffs, therefore, were not entitled to an appeal."

That decision was with reference to a statutory provision allowing appeals to the Supreme Court from "any final order, judgment or decree" of the district court. Comp. Laws Utah 1876, § 1050, p. 349. After the adoption of the Constitution, this court defined the phrase "final judgment" in the case of North Point Consolidated Irr. Co. v. Utah & Salt Lake Canal Co., supra, as follows (holding an order granting temporary injunction not a final judgment):

"The word 'final' or 'final judgment' has a plain meaning. A judgment, to be final, must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case. Champ v. Kendrick 30 N.E. 635. Bouvier defines a final judgment as used in opposition to interlocutory as 'A parties litigant.' 'The general rule recognized by the courts of the United States and by the courts of most, if not all, of the states, is that final judgment is a judgment which ends the controversy between the no judgment or decree will be regarded as final, within the meaning of the statutes in reference to appeals, unless all the issues of law and of fact necessary to be determined were determined, and the case completely disposed of, so far as the court had power to dispose of it.' Freem. Judgm. § 34." (Italics supplied.)

Notwithstanding what was there said about the words "final judgment" having a plain meaning, this court has had some difficulty in fitting the definition given to the varying circumstances shown in the many cases coming before it. The following orders of the district courts have been held not to be final or appealable judgments: Granting injunction pendente lite, North Point Consolidated Irr. Co. v. Utah & Salt Lake Canal Co., supra; granting motion for a new trial, Eastman v. Gurrey, supra; overruling motion for a new trial, White v. Pease, 15 Utah 170, 49 P. 416; Nelson v. Southern Pac. Co., 15 Utah 325, 49 P. 644; appointing receiver pendente lite, Popp v. Daisy Gold-Min. Co., 22 Utah 457, 63 P. 185; United States v. Church of Jesus Christ of Latter-Day Saints, 5 Utah 394, 16 P. 723; Oldroyd v. McCrea, 65 Utah 142, 235 P. 580, 588, 40 A. L. R. 230; for temporary alimony and suit money, In re Kelsey, 12 Utah 393, 43 P. 106; for an accounting, Standard Steam Laundry v. Dole, 20 Utah 469, 58 P. 1109; quashing service of summons, Honerine Min. & Mill. Co. v. Tallerday Steel Pipe & Tank Co., 30 Utah 449, 85 P. 626; granting nonsuit where not followed by judgment of dismissal, Rocky Mountain Stud Farm Co. v. Lunt, 46 Utah 299, 151 P. 521; verdict of jury without proper judgment, Kourbetis v. National Copper Bank of Salt Lake City, 71 Utah 232, 264 P. 724; awarding possession of exhibit after judgment, Omega Inv. Co. v. Woolley, 75 Utah 274, 284 P. 523.

The following orders or judgments have been held final judgments for purposes of appeal: Discharging petitioner of habeas corpus, Winnovich v. Emery , 33 Utah 345, 93 P. 988; quashing garnishment and releasing garnishee, Bristol v. Brent , 35 Utah 213, 99 P. 1000; dismissing action after sustaining motion for nonsuit, Robinson v. Salt Lake City , 37 Utah 520, 109 P. 817; "Interlocutory decree" in divorce cases, Parsons v. Parsons , 40 Utah 602, 122 P. 907; ordering delivery of property and accounting for interest, Wheelwright v. Roman , 50 Utah 10, 165 P. 513; for condemnation of part only of property without assessment of damages, Ketchum Coal Co. v. Pleasant Valley Coal Co. , 50 Utah 395, 168 P. 86, 89; decree of partnership, Benson v. Rozzelle , 85 Utah 582, 39 P.2d 1113; dismissal of petition to set aside probate proceedings after discharge of administrator, In re Phillips' Estate , 86 Utah 358, 44 P.2d 699; decree of water rights as between certain parties in general water adjudication, Plain City Irr. Co. v. Hooper Irr. Co., 87 Utah 545, 51 P.2d 1069, 1076.

The definition of "final judgment" heretofore quoted from North Point Consolidated Irr. Co. v. Utah & Salt Lake Canal Co., supra, has been reaffirmed many times. Eastman v. Gurrey, supra; Watson v. Mayberry, 15 Utah 265, 49 P. 479; Standard Steam Laundry v. Dole, supra; Popp v. Daisy Gold-Min. Co., supra; Oldroyd v. McCrea, supra. In Popp v. Daisy Gold-Min. Co., supra, the court said:

"Similar questions have been passed upon by this court both prior to and since the adoption of our constitution, and the rule has been established that a final judgment is that adjudication that disposes of the case as to all the parties, and which finally disposes of the subject-matter of the litigation on the merits of the case." (Italics supplied.)

In Oldroyd v. McCrea, supra, the cause being before the court on application for writ of prohibition, the court held an order authorizing a receiver to issue and sell receiver's certificates displacing prior existing liens not a final and appealable judgment as to the state which had an existing mortgage lien on property, and said:

"Under our Constitution and statute an appeal lies only from a final judgment. This court in numerous cases has held that a judgment to be final for purposes of an appeal must dispose of the case as to all of the parties and finally dispose of the subject-matter of the litigation on the merits, or be a termination of the particular proceeding or action, or as sometimes expressed, the case put out of court." (Italics supplied.)

The rather definite definition stated in the foregoing cases has been somewhat amplified or qualified in other cases. In Honerine Min. & Mill. Co. v. Tallerday Steel Pipe & Tank Co., supra, the court said:

"It is true that to constitute a final judgment it is not essential that there be a final determination of the rights of the parties with reference to the subject-matter of the litigation, but merely with reference to the particular suit. It is the termination of the particular action which marks the finality of the judgment. A decision which terminates the suit, or puts the case out of court without an adjudication on the merits, is, nevertheless, a final judgment."

This was reiterated in Winnovich v. Emery, supra.

The class of decrees or orders to be recognized as final judgments was enlarged somewhat in the case of Ketchum Coal Co. v. Pleasant Valley Coal Co., supra, wherein it was held that a decree of condemnation without assessment of damages, where only a part of the property sought to be condemned was permitted to be condemned, was final for purpose of appeal. After citing authorities, the court said:

"It is not necessary to pursue the authorities further. We have no desire to depart from the wholesome and salutary rule constantly adhered to by this court that appeals will be permitted only from final judgments; yet neither do we desire to lay down a rule in that...