State ex rel. Lundquist v. District Court of Salt Lake County
| Decision Date | 02 April 1931 |
| Docket Number | 5058 |
| Citation | 297 P. 857,77 Utah 478 |
| Court | Utah Supreme Court |
| Parties | STATE ex rel. LUNDQUIST v. DISTRICT COURT OF SALT LAKE COUNTY et al |
Original proceeding by the State, on the relation of Judith Lundquist, for a writ of prohibition to the District Court of Salt Lake County.
ALTERNATIVE WRIT MADE PERMANENT.
B. L Liberman, of Salt Lake City, for plaintiff.
King & King, of Salt Lake City, for defendants.
Judith Lundquist, on her petition to this court, was granted an alternative writ of prohibition to restrain the district court from punishing her for failure to comply with an order of the district court alleged to have been made without authority. The writ required the court to desist or show cause. It was made returnable June 14, 1930. On the return date the district court and the judge thereof filed a motion to quash the writ, and three days later filed an answer. The matter was regularly set on the calendar for hearing. No briefs were filed, and on the date set no one appeared on behalf of either party. The case was thereupon taken under advisement. Later at his request, counsel for the petitioner was given fifteen days to file a brief, and the defendants ten days to reply thereto. Again no brief was filed by either party. The time has long passed to do so. We thus are required to dispose of the case without aid of counsel.
By the verified petition for the writ it is alleged that the petitioner and Oscar Lundquist intermarried in 1916 and that five children, from five months to twelve years of age, were the result of the marriage and were in the custody and control of the petitioner. That is admitted.
She further alleged that on and prior to April 12, 1930, she had on deposit in a bank at Salt Lake City $ 3,100, but that the fund was a joint and several account standing in her name and in the name of her husband and was subject "to withdrawal in whole or in part at any time," either by herself or by her husband; but that it was agreed and understood by and between her and her husband that the whole of the account belonged to her, and that she could draw it out at any time; that when she complained to him of cruel treatment towards her he told her "that the money in said account was her money and that she could draw it out at any time and get a divorce"; and that in accordance therewith, she, on April 12, 1930, drew $ 2,000 from the account, as she alleged she had the right to do, and that thereafter her husband, without right and in violation of his agreement with her, withdrew the balance of the account amounting to $ 1,100.
With respect to these allegations, it in the answer of the district court is alleged, on information and belief, that there was a joint account standing in the name of the petitioner and her husband, "and that the funds were subject to be drawn in whole or in part at any time by either plaintiff or her husband," but that the district court had "no knowledge that the money on deposit was approximately $ 3,100." It, however, is not by the answer alleged, either on information or belief or otherwise, what the amount was which stood in the name of the petitioner and her husband. On information and belief, it is alleged that whatever amount was so on deposit in the joint name of the petitioner and her husband was earned and deposited by her husband; that the district court had no knowledge as to the manner in which the petitioner was treated by her husband, or as to any agreement made by him with her as to the ownership of the money, and therefore "upon information and belief denied the same." By the answer it is further admitted that the petitioner withdrew $ 2,000 from the account at the bank, but that the judge or court had no information as to whether her husband in withdrawing the balance of the money amounting to $ 1,100, did so "in violation of said agreement," and "on information and belief" denied that the husband did so in violation of "said agreement."
The petitioner further alleged that on April 15, 1930, "on account of persistent cruelties visited upon her by her husband which seriously impaired her health," etc., she in the district court of Salt Lake county filed a complaint by which she sought to obtain a decree of divorce; that summons was served on her husband, and that on May 7, 1930, he filed an answer, and, among others things, alleged that the plaintiff had "wrongfully withdrawn $ 2,000 from said joint deposit account and that the title to said moneys was in" him, and prayed for an order requiring the plaintiff to show cause why "she should not immediately return to the said Oscar Lundquist the said sum of $ 2,000"; that in pursuance thereof the district court issued "an ex parte order without notice served on the plaintiff requiring her to show cause before" the district court "on May 9, 1930, why she should not forthwith return the said amount of $ 2,000 to the said Oscar Lundquist and restraining the plaintiff from disposing of or expending any part or portion of said sum"; that such order to show cause and the restraining order were issued without requiring her husband to furnish any bond, and that such proceedings so had were "in violation of the statutes in such cases made and provided"; that the petitioner filed a reply to the answer of her husband denying his claim and title to the moneys, and averring that she was the owner and entitled to the possession of the $ 2,000 and that she had the right to withdraw it; and also filed a motion to quash the order to show cause, on the ground that the order so made and in such a summary manner requiring the petitioner to return the moneys to her husband was without and in excess of jurisdiction, and that such "matters could and should be determined in a plenary action, or in the trial of the divorce action upon the merits."
All that was either admitted or not denied, except that the order to show cause was without or in excess of jurisdiction or was "in violation of the statute as in such case made and provided."
The petitioner further alleged that the matter with respect to the order to show cause came on for hearing, and that the court, "without taking any evidence or giving the plaintiff an...
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