Taylor v. Paloma Gold & Silver Mining Co.

• Decision Date: 14 February 1918
• Docket Number: 3075
• Citation: 171 P. 147,51 Utah 500
• Parties: TAYLOR v. PALOMA GOLD & SILVER MINING CO
• Court: Utah Supreme Court

171 P. 147

51 Utah 500

TAYLOR v. PALOMA GOLD & SILVER MINING CO

No. 3075

Supreme Court of Utah

February 14, 1918

Appeal from the District Court of Salt Lake County, Third District Hon. F. C. Loofbourow, Judge.

Suit by S. H. Taylor against the Paloma Gold and Silver Mining Company.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

W. R Hutchinson for appellant.

Walton & Walton for respondent.

FRICK C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

Plaintiff commenced this action to compel the defendant a mining corporation, to transfer upon its stock books certain shares of the capital stock of said corporation, of which he claimed to be the owner, and to issue to him new stock certificates for the ones which he presented for transfer. The defendant in its answer denied that plaintiff was the owner of said stock, and also interposed affirmative defenses in which it averred that the plaintiff never obtained title to said stock; that he obtained the same unlawfully; and further pleaded that the plaintiff and defendant had fully compromised and settled plaintiff's claim to said stock and that for that reason he was not entitled thereto. In other words, the defendant pleaded an accord and satisfaction respecting plaintiff's claim to said stock. Plaintiff filed a reply in which he reiterated his right and title to the stock; admitted the settlement and accord and satisfaction set forth by the defendant, but averred that the same was obtained by fraud and duress and was not binding.

Upon substantially the foregoing issues a trial to the court resulted in findings of fact in favor of the defendant upon all the issues, including the alleged accord and satisfaction and the fraud and duress pleaded by the plaintiff. Judgment was accordingly entered in favor of the defendant, and the plaintiff appeals.

All the assignments of error, except two, assail the findings of fact, and the two referred to assail the correctness of the conclusions of law and judgment. This requires us to examine into the evidence. The defendant challenges our right to do that for the reason that plaintiff's proposed bill of exceptions was not served, settled, and allowed within the time required by our statute. The defendant has filed a motion to strike the bill for the reason just stated.

The record shows that the motion for a new trial was denied December 30, 1916. The record also shows that the same was denied while plaintiff's counsel was present in court and that he at that time, and as a part of the order denying the motion for a new trial, obtained the following order: "Plaintiff is given thirty days in which to prepare, serve, settle, and file his bill of exceptions herein." That order gave the plaintiff until the 30th day of January, 1917, in which to do the things specified therein. The bill of exceptions was, however, not served until the 3d day of April, 1917, and was not settled and allowed by the court until the 18th day of April, 1917. We take notice of the order overruling the motion for a new trial merely because by Comp. Laws 1907, section 3197, as amended by chapter 94, Laws Utah 1911, p. 136, such an order is made a part of the judgment roll. Counsel for plaintiff, in his printed abstract, states: "Orders extending time to prepare, serve, and file bill of exceptions entered January 27 and March 24, 1917." Such a statement in the printed abstract, unless challenged by the adverse party, would ordinarily be considered as sufficient. Where, however, the adverse party challenges the correctness of such a statement, we are required to examine into the record to determine whether the bill of exceptions was in fact settled and allowed within the time required by our statute. As counsel states in the abstract, there is inserted in what purports to be the judgment roll a pretended order extending the time to prepare and file plaintiff's bill of exceptions. That order is, however, not a part of the judgment roll and we cannot consider it for any purpose. Dayton v. Free, 46 Utah 277, 148 P. 408; Hutchison v. Smart, 51 Utah 172, 169 P. 166; Swanson v. Sims, 51 Utah 485, 170 P. 774.

The record in this case, in and of itself, is...