Taylor v. Barker

• Decision Date: 06 October 1927
• Docket Number: 4554
• Citation: 262 P. 266,70 Utah 534
• Court: Utah Supreme Court
• Parties: TAYLOR v. BARKER, District Judge

262 P. 266

70 Utah 534

TAYLOR v. BARKER, District Judge

No. 4554

Supreme Court of Utah

October 6, 1927

Proceeding by H. L. Taylor for a writ of mandate, directing Hon. George S. Barker, as Judge of the District Court of Weber County, to try an action pending therein.

ALTERNATIVE WRIT MADE PERMANENT, and defendant directed to try the case.

Pratt &amp Pratt, of Ogden, for Plaintiff.

Clark Richards & Bowen, of Salt Lake City, for defendant.

HANSEN, J. THURMAN, C. J., and CHERRY, STRAUP, and GIDEON, JJ., concur.

OPINION

HANSEN, J.

In this proceeding, H. L. Taylor seeks a writ of mandate directing the district court of Weber county, Utah, and Hon. George S. Barker, one of the judges thereof, to try an action pending in said court wherein H. L. Taylor is plaintiff and Ezra Waddoups is defendant. Upon the application of H. L. Taylor this court issued an alternative writ of mandate, directing Hon. George S. Barker, as district judge of Weber county, Utah, and said district court, to try the case above mentioned or show cause before this court why the same has not been tried. Hon. George S. Barker made return to the alternative writ of mandate so issued and served upon him. The allegations contained in the application of H. L. Taylor and the return of Hon. George S. Barker aforesaid are agreed upon the facts necessary to the determination of this proceeding.

On or about April 19, 1925, H. L. Taylor and Ezra Waddoups were each driving an automobile in Ogden City, Utah, and while being so driven the automobiles collided. Grace A. Moss was riding in the automobile driven by Waddoups. On August 5, 1925, she brought an action against Taylor in the district court of Weber county. Her complaint sets out two causes of action, both growing out of the collision between the Taylor and Waddoups automobiles. The first cause of action is for damage done to the automobile owned and operated by Waddoups. It is alleged in the complaint that Waddoups, prior to the commencement of the action, assigned to plaintiff his claim for damages done to his automobile. The second cause of action is for alleged personal injuries to plaintiff received in the collision. In each cause of action is is alleged that the injury was caused by the negligent manner in which Taylor was operating his automobile at the time of the collision. On September 17, 1925, the defendant Taylor filed his answer to the complaint of Grace A. Moss, in which answer he denied that he was negligent in the operation of his automobile, and alleged that the injury, if any, to the Waddoups automobile and to Grace A. Moss, the plaintiff, was caused by the negligent manner in which Waddoups was driving his automobile at the time of the collision.

On July 14, 1926, H. L. Taylor brought an action against Ezra Waddoups in the city court of Ogden City, Utah. This action grows out of the same collision as that forming the basis for the action of Grace A. Moss against H. L. Taylor above mentioned. The complaint in the city court action alleges that the plaintiff was the owner of the automobile driven by him and that it was damaged by the careless and negligent manner in which the defendant Ezra Waddoups drove his automobile at the time of the collision. Ezra Waddoups filed his answer in the city court, denying negligence on his part, and alleged that the injury, if any, to the Taylor automobile, was caused by the careless and negligent manner in which Taylor operated his automobile at the time of the collision. The case of Taylor v. Waddoups, pending in the city court, was tried on September 29, 1926, and on November 9, 1926, judgment was rendered in favor of Taylor and against Waddoups for the injury done to the Taylor car in the collision. On November 23, 1926, Waddoups appealed from the judgment rendered against him in the city court to the district court of Weber county. After Taylor secured his judgment in the city court, and after the appeal had been taken, Taylor asked leave to file a supplemental answer in the case of Moss v. Taylor, pending in the district court of Weber county. The request was granted, and a supplemental answer was filed, in which the judgment secured in the city court of Ogden City in favor of Taylor and against Waddoups is set out. It is also alleged that the same issues were involved in the action in the city court as are involved in the action of Moss v. Taylor pending in the district court; that in the city court it was adjudged and determined that the negligence of Ezra Waddoups was the sole proximate cause of the collision; that Ezra Waddoups did not set up any counterclaim in the city court action, and therefore Grace A. Moss cannot maintain her first cause of action; that is, the claim alleged to have been assigned to her by Waddoups for the alleged injury to the Waddoups automobile. The case of Moss v. Taylor was tried before Hon. George S. Barker as judge, with a jury, resulting in a verdict in favor of Grace A. Moss against H. L. Taylor on both causes of action.

The record before us shows that H. L. Taylor requested the court to instruct the jury that the plaintiff could not recover for any injury to the Waddoups automobile, but the court refused to give the requested instruction. Soon after judgment was entered on the verdict in Moss v. Taylor, Waddoups asked leave to file a supplemental answer in the case appealed from the city court, in which H. L. Taylor was plaintiff and Ezra Waddoups was defendant. Leave was granted to file a supplemental answer, and the same was duly filed. The supplemental answer alleges that in the action of Moss v. Taylor a judgment was rendered in favor of Grace A. Moss and against H. L. Taylor; that said judgment has not been reversed or set aside; that the time for appeal therefrom has not yet expired; that the facts forming the basis of the first cause of action in the case of Moss v. Taylor are the same as the facts forming the basis of the action of Taylor v. Waddoups; that in the case of Moss v. Taylor the jury necessarily found that Ezra Waddoups, assignor of Grace A. Moss, was not guilty of negligence in causing the collision between the Waddoups and Taylor cars on the occasion in question, and that such collision was proximately and solely caused by the negligence of Taylor. Ezra Waddoups prayed judgment in his supplemental answer that all further proceedings in the case of Taylor v. Waddoups be stayed and abated during the pendency of the action in which Grace A. Moss was plaintiff and H. L. Taylor was defendant.

After notice to counsel for H. L. Taylor, and after hearing arguments of counsel for Waddoups and Taylor, an order was entered by Hon. George S. Barker, vacating the setting theretofore made of the case of Taylor v Waddoups, and directed that all further proceedings be stayed and abated in the case of Taylor v. Waddoups during the pendency of the action in which Grace A. Moss was plaintiff and H. L. Taylor was defendant. It is because of this order that H. L. Taylor is here seeking a writ of mandate directing Hon. George S. Barker, as judge of the district court of Weber county,...