Wasatch Mining Co. v. Jennings

• Decision Date: 08 December 1896
• Docket Number: 705
• Citation: 46 P. 1106,14 Utah 221
• Court: Utah Supreme Court
• Parties: WASATCH MINING COMPANY, RESPONDENT, v. PRISCILLA JENNINGS ET AL., APPELLANTS

46 P. 1106

14 Utah 221

WASATCH MINING COMPANY, RESPONDENT, v. PRISCILLA JENNINGS ET AL., APPELLANTS

No. 705

Supreme Court of Utah

December 8, 1896

Appeal from the Third district court, Territory of Utah. Hon. S. A Merritt, Judge.

Action by the Wasatch Mining Company against Priscilla P. Jennings and others for an accounting. From a decree for plaintiff defendants appeal. Modified.

This cause came before the supreme court of the territory and is reported in 5 Utah 243, where the briefs are quite fully given.

Rawlins & Cutchlow, for appellants.

The court had no authority to vacate the former judgment except for the purpose of granting a new trial. 2 C. L. U. 1888 sec. 3400.

In this case the plaintiff abandoned and waived its application for a new trial, and the court, at its request, ignored and disregarded the same and made an order without any motion or proceeding authorized by law.

A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referee. 2 Comp. Laws, sec. 3399.

Where by consent of the parties a case has been referred to a referee for trial, upon whose report a judgment has been entered, if the judgment is vacated and a new trial ordered such order does not vacate the order of reference, and the new trial or further proceedings in the case must be before the same referee. Catlin v. Adirondack Co., 81 N.Y 379.

The court after the term cannot of its own motion or otherwise set aside the findings of a referee and a judgment based thereon and make new findings and enter judgment thereon. Walker v. Campbell, 26 P. 123.

Upon an application for a new trial, whether the former trial was had before a referee, the court, or a jury, the court passing upon the application for a new trial has no authority to vacate the former judgment and then proceed without trial to find the facts and enter a judgment thereon. Schroeder v. S. L. C. V. G., 60 Cal. 467 to 471; Ehrichs v. Dennill, 75 N.Y. 370; Walstenholme v. Walstenholme Mg. Co., 64 N.Y. 272; Foote v. Life Ins. Co., 61 N.Y. 571.

J. G. Sutherland, W. H. Dickson, and John M. Zane, for respondent.

Case remanded.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

ZANE, C. J.:

It appears from the record in this case that the plaintiff was the owner of a mine consisting of the Walker & Walker Extension and Bucky mining claims, and a part of the Pinion claim, and that they were sold upon execution against the plaintiff; that William Jennings and John Clark, two of the stockholders and directors of the plaintiff, took an assignment of the certificate of purchase, before the time of redemption had expired, for the consideration of $ 864.05, and that they afterwards obtained a deed to them of the officer, and that the sum so paid, and the assignment and deed, were taken with a verbal understanding between the plaintiff and the assignees that the latter, upon reimbursement within a time named, would convey to the former; that Joseph A. Jennings and Isaac Jennings obtained Clark's interest in the property; and that they, with William Jennings, took possession of it, and personally or by leases operated the same until early in 1883. This case was before the supreme court of the late territory, and the decree from which that appeal was taken was reversed; but we regard all the questions of law, and all the questions of fact, except one, as the case then stood, settled by that decision. Mining Co. v. Jennings, 5 Utah 243, 15 P. 65. In that opinion the court held that the alleged contract, as proven, under which Jennings and Clark obtained the certificate and deed, was not within the statute of frauds, and the deed, though absolute in form, should be regarded in equity as a mortgage, and that, under the circumstances of their possession and its acquisition, the rights and liabilities of the Jenningses should be determined by the equitable rules regulating the rights and duties of trustees in possession in good faith, and that, therefore, they should be held to account to the plaintiff for the ores extracted by them from the property, and the rents and royalties received, and that they should be credited with the amount paid for the certificate, and the reasonable expenditures in extracting the ores and converting them into money, and other expenditures upon the property, to the extent that they enhanced its value. The case was remanded, with directions to the court below to ascertain the amount of the expenditures of this last-mentioned class; but that court made a general reference of the case to a referee, who, upon consideration of the evidence and the report of the former referee (the late E. T. Sprague), found and reported the sum of $ 34,758.61, consisting of expenditures and interest thereon, due the defendants above the receipts from the sale of ores, and of rents and royalties received by and chargeable against them; and the court entered a decree against the plaintiff. But, upon a motion for a new trial by the plaintiff, the court set the decree and findings aside, but did not grant a new trial, and without further hearing, upon consideration of the evidence reported, and of the findings of the referees, Sprague and Marshall, found the sum of $ 13,715.43, principal, and a considerable sum of interest, due the plaintiff, above the expenditures credited to the defendants. While the issues were settled by the court, and a final decree ordered, the record before us does not show that it was signed or entered on the record; but, as no objection is made by either party, we are disposed to regard the order of the court appealed from as a final judgment, and that the case is before us for consideration and decision.

The action of the court in making its findings and granting a decree after setting aside the findings of the referee and the decree thereon, without granting a new trial, was excepted to by the defendants, and has been assigned as error. The referee Marshall made his report of evidence and findings to the district court of the late territory, and that court entered its decree thereon; but, by virtue of section 7 of article 24 of the constitution of the state of Utah, the case was transferred to the district court of the state for such further proceedings as the law authorized. It appears that the motions to set aside the report of the referee and the decree thereon, and for a new trial, were made in due time; and, that being so, we are of the opinion that the district court of the state had jurisdiction of the case, and possessed the power to hear and decide the motion, and to make such further orders and decrees as the law authorized. Though the term at which a case is decided may terminate, the court may act upon a motion, made in due time, to set its decree and findings aside. Spanagel v. Dellinger, 34 Cal. 476.

The defendants objected and excepted to the following order, and assign it as error: "In this cause, it appearing to the court, from the record in this case, that the minutes of the decision of the court herein, made on the 11th day of April, A. D. 1896, is not correct, in the respect that it recites that the court entered an order for a new trial of this cause, it is ordered that the minutes of that day be corrected so as to correspond to the opinion and decision and finding of the court on that day rendered and entered in the cause, to the effect that the report and findings of Referee Thomas Marshall, and the judgment entered thereon, be vacated and set aside, and that a judgment be entered in this cause in accordance with the Sprague findings, so called, and the suppletory findings made and entered by this court on said last-mentioned day. It is further ordered that the decision and finding of the court, which was in writing, and was then rendered, be now filed as of said 11th day of April, 1896, Dated April 28, 1896." After the decision of the court on the 11th, and before the order of the 28th, the defendants appealed; but we are of the opinion that the court had the right to correct the record to make it correspond with the actual ruling of the court, notwithstanding the appeal; the court had the authority to make the record, which is the evidence of the decision and rulings of the court, conform to the decision and rulings as actually made; to make the evidence conform to the facts,-- speak and declare the truth. Elliott, App. Proc. §§ 207-209.

The defendants insist that the court erred in adopting the Sprague findings, and in making the additional finding of $ 4,572, as the amount of the expenditures for work and improvements that enhanced the value of the property, and not necessary to the extraction of the ores, after setting aside the Marshall findings, and the decree thereon, without a new trial. This claim of the defendants presents two questions for decision: First, Was the court authorized to make the finding and enter a decree, without a new trial, after setting aside the Marshall findings and the decree thereon? Second, Were the expenditures made upon the property, that enhanced its value, but not necessary to the extraction of the ore, correctly estimated?

As to the question whether the court was authorized to consider the evidence reported and make its findings and enter a decree thereon, after the findings of the referee had been set aside, without another trial: At law, either party may demand a jury after the verdict or findings are set aside. But in equity the court may, upon motion entered in due time, set aside the decree, for sufficient reason, and treat the verdict or findings of fact as advisory, or it may wholly or in part set them aside, and make such other findings as the evidence may warrant. Wingate v. Ferris, 50 Cal. 105; Basey...