Young v. Martin

• Decision Date: 10 October 1867
• Citation: 24 P. 909,3 Utah 484
• Court: Utah Supreme Court
• Parties: YOUNG ET AL. v. MARTIN

24 P. 909

3 Utah 484

YOUNG ET AL. v. MARTIN

Supreme Court of Utah

October 10, 1867

APPEAL from the third district court. The opinion states the case.

Motion to dismiss prevail, and the order of the court made in conformity.

Baskin & Hempstead, for the appellants.

Marshal & Carter, for the respondent.

DRAKE J. TITUS, C. J., concurred. McCURDY, J., dissented.

OPINION

DRAKE J.:

This case is brought into this court by an appeal taken by the plaintiffs to the judgment and rulings of the district court for the third judicial district.

The appellants have assigned the following as errors: 1. The court erred in overruling the demurrer filed by the plaintiffs to the defendant's answer; 2. The court erred in ruling thereon that the defendant's had a lien on the goods of E. R. Young & Sons, now in his possession for freight, both by McWhirt and Irvin trains; 3. The court erred in ordering the plaintiffs to reply as though the demurrer had not been filed; 4. The court erred in overruling the verbal motion of plaintiffs for judgment and damages on the pleadings.

The defendant has filed a motion to dismiss the appeal, and the following are assigned as reasons in support of the motion 1. The plaintiffs in the lower court waived their exceptions to the ruling on the demurrer when they pleaded over, and said demurrer was thereby withdrawn; 2. That the verbal motion for judgment was but a repetition of the demurrer, made under a different name, and embracing the same points as those embraced in the demurrer. And the appeal is taken and the assignment of errors is based on those two alleged errors, which exceptions the plaintiffs waived by pleading and going to trials on the merits in the court below, and therefore have no standing in this court,

The counsel for and against the motion to dismiss the appeal having been heard, it is now for the consideration of the court.

The second and third errors assigned are incidental to the first; they arise out of it or are evolved by it, and by no fair construction can they be considered as separate and distinct, and they will be governed by the same rules and abide the same determination which awaits the first.

The fourth assignment of errors relates to a motion made by the plaintiffs for judgment on the pleadings, as they were perfected after the demurrer had been overruled. To give to this motion any proper and beneficial effect, we must consider it in the nature of a demurrer--a second demurrer, not a repetition of the first. After the first demurrer was overruled, the pleadings were perfected and the condition thereof was changed, and the party had a right to file another demurrer, and to have all the advantages, taking therewith all the hazards, attending the first.

It is a rule of law not to be controverted, that when a party demurs to the pleading of his adversary, and the demurrer is overruled, he must not proceed any further by pleading or going to trial if he would avail himself of any error in the ruling of the court upon the demurrer.

The latest decision upon this point which has come under my observation is that in the case of Bell v. O. & M. Railroad, 71 U.S. 598, 4 Wall. 598, 18 L.Ed. 338.

The same doctrine was held in the case of Pierce v. Minturn, 1 Cal. 470, it is said that this decision was made at an early day in the history of that state, and that subsequent decisions are otherwise. They have enacted a code of practice, and whatever may be the rule there now, it can not be doubted but that decision reflected the law of the land and throughout the United States at the time it was made, when it was not controlled by statutory enactments.

In the case of United States v. Boyd et al., 46 U.S. 29, 5 HOW 29, 12 L.Ed. 36, the doctrine is most clearly and emphatically laid down. It is useless to seek for other authorities upon this subject. I know of no case where the party seeking relief in a court of review, either upon appeal or writ of error, where this doctrine has not been maintained, if the...