West Mountain Lime & Stone Co. v. Danley
| Citation | 111 P. 647,38 Utah 218 |
| Decision Date | 31 August 1910 |
| Docket Number | 2132 |
| Parties | WEST MOUNTAIN LIME & STONE COMPANY v. DANLEY et al |
| Court | Supreme Court of Utah |
Rehearing Denied November 22, 1910.
APPEAL from District Court, Third District; Hon. George G Armstrong, Judge.
Judgment dismissing the complaint. Plaintiff appeals.
REVERSED AND REMANDED, WITH DIRECTIONS TO SET ASIDE THE JUDGMENT OF DISMISSAL AND REINSTATE THE ACTION.
Weber & Olson for appellant.
M. E. Wilson for respondent.
This is an appeal from a judgment of the district court of Salt Lake County dismissing plaintiff's action. The bill of exceptions, as certified by the judge of the district court discloses the following facts:
The plaintiff, a corporation, on the 2d day of October, 1909, filed its complaint based upon its adverse claim against the application of the defendants for a patent for certain mining claims. On October 9th, seven days after filing the complaint, plaintiff also filed the summons and return showing service thereof on the defendants. From the face of the return it was made to appear that service was made on some of the defendants on the 5th and on the others on the 8th of September, 1909. On the 25th day of October, 1909, the defendant George W. Danley, both in his individual and in his representative capacity as administrator, served and filed a motion "to dismiss the above-entitled action on the ground that no copy of the complaint was ever served upon him either in his individual or representative capacity, and that no copy of said complaint was ever filed or deposited with the clerk of the said district court for the defendants or any of them in said action." Following this, on the 26th day of October, plaintiff's counsel served notice on the attorney who filed the motion to dismiss the action that the plaintiff would on the 6th day of November, 1909, apply to the court for leave to serve or deposit copies of the complaint for all of the defendants, with leave for all of them to answer within the same time that they would have had if the copies had been originally deposited. This notice was duly filed on the 27th day of October, 1909. The application for leave to deposit copies of the complaint for the use of the defendants was supported by the affidavit of plaintiff's counsel. From the affidavit it, in substance, appears that counsel prepared the original complaint on October 1, 1909, and thereafter caused the same to be filed with the clerk of the district court; that at the time the original complaint was prepared copies thereof were also prepared to be deposited with said clerk for the use of defendants; that said copies required some corrections before depositing, and hence were not deposited when the original complaint was filed; that counsel instructed the stenographer, who was on duty in counsel's office, to correct said copies, and thereupon to immediately deposit them with said clerk for the use of defendants; that said copies were corrected, but that said stenographer misunderstood counsel's orders and direction to deposit said copies, and failed to deposit them with said clerk, but, instead of doing so, placed the same among counsel's office files; that during all of the time since preparing said original complaint and the copies thereof counsel fully believed that his orders had been complied with, and that said copies were deposited or filed with the clerk of said court on the day the original complaint was filed. The stenographer also made an affidavit wherein the facts above stated are substantially corroborated. This affidavit was, however, made and filed on the 29th day of November, 1909, and is claimed by defendants' counsel to have been filed without leave of court. Be that as it may, it is in the record and is certified to as part of the bill of exceptions. On the 27th day of October, 1909, the other two defendants also served and filed a motion to dismiss the action "on the ground that it affirmatively appears from the record in said case that neither the complaint nor the summons, nor proof or service thereof, was filed in the office of the clerk of the court in which the action was brought within ten days after the service of summons, and on the further ground that no copy of the complaint was deposited with the clerk of the said district court for the defendants or any of them in said action at the time of filing the complaint." In the foregoing notices no time was fixed by defendants at which they would ask the court to consider or pass thereon. Upon the other hand, it does appear from the application filed by the plaintiff's counsel that it would call up its motion or application for leave to deposit copies of the complaint on the 6th day of November, 1909. Plaintiff's application therefore apparently had the right of way.
On the 6th day of November, 1909, both of the motions of the defendants and the application of plaintiff came on for hearing in open court. The record recites that defendants' counsel called up the motion to dismiss. Plaintiff's counsel then expressed a desire to have all the pending motions disposed of at the same time, to which defendants' counsel seemingly consented. Plaintiff's counsel then said: Defendants' counsel simply said, "I want to dispose of this motion first," and at once commenced his argument. After this, counsel for plaintiff again asked "permission to amend the return which reads September instead of October," to which counsel remarked that he could not consent and would like to dispose of his motion to dismiss first. The court did not seem to give the request of plaintiff's counsel to amend the return of service any consideration at that time, but simply passed on defendants' motions to dismiss the action and sustained the same and dismissed the action. Afterwards the court, however, entertained another motion interposed by plaintiff's counsel in which plaintiff asked the court to review and reconsider its former ruling dismissing the action, and in connection with that, and in support of that motion, counsel also filed an affidavit of the person who served the summons in the action showing that the summons was actually served on one of the defendants on the 5th and on the other two on the 8th of October, 1909, and that in making the original return of service the word "September" was written by mistake, instead of the word "October," and that the summons was in fact served on said defendants in October, and not in September as stated in the return. After hearing argument on this motion, and upon due consideration thereof, the court denied the same, but upon what ground the court based its action is not disclosed. The court afterwards made findings of fact "that it affirmatively appears from the record in said case that neither the complaint nor the summons, nor the proof of service thereof, was filed in the office of the clerk... within ten days after the service of summons," and that "no copy of the complaint... was served upon any of the defendants at the time of service of summons, and... no copy of the complaint was ever deposited with the clerk of this court for the defendants or any of them," and, further, that "the plaintiff has not made any satisfactory or sufficient showing to excuse the said failures or omissions or any of them." No other or further findings of fact were made. The court, however, made conclusions of law, and upon those based its judgment dismissing the action.
The foregoing findings of cast and conclusions of law were made on the 29th day of January, 1910. We make this observation for the sole purpose of showing that the court did not make the findings of fact until after plaintiff's counsel had interposed their second motion, and not until all of the evidence in support of their application was actually before the court, and apparently was considered by it. From what we can gather from the record we assume that the court based its ruling entirely upon section 2946, Comp. Laws 1907, which, so far as material, reads as follows:
As we have seen, the court, in effect, found that that section had not been complied with in two particulars: (1) In not having filed the original complaint "within ten days after service of the summons;" and (2) in not depositing with the clerk a copy of the complaint at any time. The manner in which the facts are stated both in the findings of the court and in the motion of the defendants is somewhat peculiar. It will be observed that it is not found that the complaint nor the summons, nor the proof of service thereof, was not in truth and in fact filed "within ten days after service of the summons," as provided by the section we have quoted from, but in the motion of the defendants and in the findings of the court the statement is "that it affirmatively appears from the record...
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