Simmons v. Hoyt
| Decision Date | 15 March 1946 |
| Docket Number | 6901 |
| Citation | 109 Utah 186,167 P.2d 27 |
| Court | Utah Supreme Court |
| Parties | SIMMONS et al. v. HOYT, Judge, et al |
Peremptory writ issued.
J C. Halbersleben, of Provo, for plaintiffs.
Ellis J. Pickett, of St. George, and Gustin & Richards, of Salt Lake City, for defendants.
The issue here is one of venue. In particular the interpretation of Sec. 104-4-4 of the Utah Code Annotated 1943 is in controversy. That section reads:
"When the defendant has contracted in writing to perform an obligation in a particular county of the state and resides in another county, an action on such contract obligation may be commenced and tried in the county where such obligation is to be performed or in which the defendant resides."
At St. George, Washington County, Utah, the following note was executed and delivered by the makers to deceased, of whose estate Clarence E. Miller is the duly appointed, qualified and acting ancillary administrator:
"$ 1,500.00
Four months after date, for value received, I/we promise to pay to the order of J. J. Miller of Cedar City, Utah, Fifteen Hundred and no/100 Dollars lawful money of the United States of America, with interest thereon, in like money from date at the rate of eight per cent, per annum until paid. Interest payable at maturity if the interest is not paid when due, then both principal and interest shall become due at the option of the holder of this note.
The makers, sureties, guarantors and endorsers hereof severally waive presentation for payment, notice of dishonor, protest and notice of protest. In case this note is placed in the hands of an attorney for collection, the undersigned agrees to pay a reasonable attorney's fee with all costs and expenses incurred.
P O. St. George, Utah Phone 184
E. W. Simmons
Florence F. Simmons"
Basing his complaint upon an allegation that the note is part of the assets of the deceased and that it has not been paid, said administrator commenced action thereon in the district court of Washington County. Defendants seek to have the action transferred to the District Court of Utah County upon the ground that the latter county is their residence and was so at the time of the commencement of the action. Defendants' demand for change of venue was denied in the lower court and they petitioned this court for an alternative writ of mandate. The writ was issued, and the question has now been submitted as to whether or not a peremptory writ should issue.
Petitioners maintain that as the note does not in its terms expressly provide for payment in a particular county, it is payable in the county of the residence of its makers. Respondents -- the administrator and the judge of the District Court of Washington County -- maintain that the note presumptively requires payment in the county of its execution unless evidence is introduced indicating an intention to the contrary and as no such evidence was presented here, Washington County is a proper county for the action.
The important words of Sec. 104-4-4 are these:
"* * * has contracted in writing to perform * * * in a particular county * * *."
Are those words limited to an express promise to perform in a particular county, or do they include legal implications of the place of performance?
This court has held:
"Requiring persons sued to defend legal actions at places remote from where they reside exposes them to an expense and disadvantage manifestly unjust, and to avoid such mischief the general modern tendency is to fix the venue of transitory actions at the residence of the defendant. * * * that the actions which may be tried elsewhere are limited and restricted to those which the statute itself excepts from the general rule." Buckle v. Ogden Furniture & Carpet Co., 61 Utah 559, 216 P. 684, 685.
What is more logical, then, than to make, as an exception, an action...
To continue reading
Request your trial
-
Jorgensen v. John Clay and Co.
...we need not discuss it here. Buyer cites several cases to support the applicability of § 78-13-4 to this contract. Simmons v. Hoyt, 109 Utah 186, 167 P.2d 27 (1946); Palfreyman v. Trueman, 105 Utah 463, 142 P.2d 677 (1943); Floor v. Mitchell, 86 Utah 203, 41 P.2d 281 (1935); Atlas Acceptanc......