Vogel v. Walker

• Decision Date: 02 March 1883
• Citation: 2 P. 210,3 Utah 227
• Court: Utah Supreme Court
• Parties: VOGEL v. WALKER ET AL

2 P. 210

3 Utah 227

VOGEL v. WALKER ET AL

Supreme Court of Utah

March 2, 1883

APPEAL by the plaintiff from a judgment of the third district court entered for the defendants on demurrer.

The complaint alleged that the plaintiff was mortgagee of certain premises; that a decree of foreclosure had been entered and a sale made thereunder, at which the plaintiff became the purchaser; that the proceeds of sale had failed to satisfy the mortgage, and upon a proper return of the officer a deficiency judgment was docketed for plaintiff, and against James Crossley, the mortgagor, for seven hundred and fifty-four dollars and forty-one cents; that the mortgage was executed and recorded October 18, 1876, and the foreclosure sale made November 29, 1880. The date of the docketing of the deficiency judgment was not alleged.

The complaint also contained the following allegations:

"That afterward, on the day of December, 1880, an execution was duly issued upon said judgment, and has been duly returned wholly unsatisfied, and the said James Crossley is now insolvent. That a part of the foregoing real property consisted of a brewery. In it, and as a part thereof, and a part of the said real estate at the time of the execution of the said mortgage conveyance, was a boiler, engine, and appurtenances used with and attached to said realty. That on the day of October, 1879, the defendants, by their agents and servants, entered upon the said real property, and took therefrom the said boiler, engine, and appurtenances, without the knowledge or consent of plaintiff, and converted the same to their own use. That by the acts of the defendants the said mortgage security was greatly depreciated, and plaintiff has been damaged in an amount equal to her said judgment of deficiency against the said James Crossley. That on the tenth day of August, 1877, plaintiff intermarried with one Herman Vogel, whose wife she now is. That the money alleged to have been loaned to the said James Crossley was property acquired by her before the said marriage, and the mortgage given to secure the same, and avails of said money and mortgage including said judgment of deficiency, are her separate estate. Wherefore, plaintiff asks judgment for seven hundred and fifty-four and forty hundredths dollars, with interest and costs of suit."

The defendants demurred, assigning as causes of demurrer--

1. That the several causes of action therein have been improperly united, to wit: 1. Damages to the realty; 2. Lessening mortgage security; 3. Conversion of personal property.

2. That the said complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiffs and against the defendants.

3. That the said complaint is ambiguous, unintelligible, and uncertain, in this, to wit: 1. The value of the property alleged to be converted is not stated; 2. The amount of the alleged injury to the realty is not stated; 3. No mention whatsoever, is made of the financial standing or otherwise of Mary Crossley, or of her solvency or insolvency.

4. That the several causes of action therein are not separately stated.

In the district court the demurrer was sustained, and final judgment was entered for the defendants, dismissing the action with costs. The order sustaining the demurrer and the final judgment were made at the same time and appear in the same entry. No leave to amend was given the plaintiff, and the record does not disclose that she asked leave to amend.

Affirmed.

R. B. Tripp, for the appellant.

C. K. Gilchrist, for the respondents.

The briefs of counsel are not directed to the question decided by the court, and therefore are not inserted.

TWISS, J. HUNTER, C. J., concurred. EMERSON, J., dissented.

OPINION

TWISS,...