Stevens v. Higgenbotham
| Decision Date | 04 March 1890 |
| Citation | 6 Utah 341,23 P. 757 |
| Court | Utah Supreme Court |
| Parties | DARTHULA C. STEVENS, APPELLANT, v. S. H. HIGGENBOTHAM, RESPONDENT |
MOTION by respondent to dismiss the appeal and motion to strike out part of the record.
Motion sustained.
Mr. Thomas Maloney for the appellant.
Messrs. Kimball & White for the respondent.
A motion was made, argued and submitted to dismiss the appeal in this case, which motion was denied, and thereupon the respondent submitted this motion to dismiss the appeal, assigning a new reason, but one that existed at the time the first motion was made. This last motion cannot be entertained for a cause that existed when the first motion was made. The question of dismissal was heard on the first motion and decided; practice allowing a second motion to be made for the same purpose would lead to interminable delay, and should not be permitted. The motion will be stricken from the files.
This case was formerly in this court. It was tried in the court below by the court. Findings of fact and conclusions of law were made and filed, and judgment entered thereon. An appeal was taken to this court, and the judgment was reversed and the cause remanded, with the direction to enter a decree in accordance with the opinion of this court. A remittitur was filed in the court below, and a decree entered, and this appeal is from that decree. The motion we are called upon to decide now, is to strike from the statement in this case the findings of fact and conclusions of law made on the first trial in the court below. We think the motion ought to be sustained. The questions arising on these findings of fact and conclusions of law were all disposed of in the former decision of this case by this court, and they can have no bearing in determining the rights of the parties on this appeal. The motion is sustained.
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