Zion's Sav. Bank & Trust Co. v. Mountain-Lakes Poultry Farms, Inc.
| Decision Date | 12 March 1940 |
| Docket Number | 6085 |
| Citation | 98 Utah 410,100 P.2d 212 |
| Parties | ZION'S SAV. BANK & TRUST CO. v. MOUNTAIN-LAKES POULTRY FARMS, Inc., et al |
| Court | Utah Supreme Court |
Appeal from District Court, Fourth District, Utah County; Abe W Turner, Judge.
Suit by the Zion's Savings Bank & Trust Company against the Mountain-Lakes Poultry Farms, Incorporated, D. E. Jenkins and others, upon notes and to foreclose mortgage and pledge wherein the named defendants counterclaimed. Counterclaim dismissed without prejudice, and, from judgment for plaintiff, the named defendants appeal. Motion by named defendants to amend record so as to show proper service of notice of appeal, granted and motion by plaintiff to dismiss the appeal, denied.
Judgment affirmed.
Wootton & Elsmore, of American Fork, for appellants.
Thomas & Thomas, of Salt Lake City, for respondent.
At the outset of this case we are confronted with a motion by respondent, Zion's Savings Bank & Trust Company, to dismiss the appeal on the ground that all the adverse parties have not been properly served (if at all) with notice of appeal. The record, if not corrected would fail to show proper notice of appeal upon alleged necessary parties thereto. Appellants have filed a motion in this court for permission to correct the errors, if any exist. Their motion is directed merely to so amend the record as to show proper service of such notice on the parties in question. Under Sec. 104-41-21, R. S. U. 1933, this court may permit "an amendment, or the proper act to be done" where a party has in good faith given notice of appeal but has failed "through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual, or to stay proceedings." Without deciding whether appellants had, absent these corrections, failed to perfect their appeal, we feel that they have shown sufficient reason under the quoted statute to be permitted to make the corrections necessary to meet respondent's objection. Their motion so to do should be and is granted. Consequently, respondent's motion to dismiss is denied.
In July 1930, the Mountain-Lakes Poultry Farms, Inc., executed and delivered to respondent its promissory note in the sum of $ 7,000, together with a mortgage to certain realty to secure the same. Before the note was delivered, it was endorsed by John H. Wootton, J. Tracey Wootton, and D. E. Jenkins. Some time later, to further secure the payment of the note, D. E. Jenkins and J. Tracey Wootton pledged to the bank certain stocks and bonds. Subsequently, another note for $ 300 was executed and delivered to the bank by Mountain-Lakes Poultry Farms, and the collateral pledged for the payment of the first note was repledged to secure payment of the second note.
The notes not having been paid, the bank filed suit to recover the amount due thereon, with interest, and to foreclose the mortgage and pledge given to secure payment thereof. Appellants answered jointly and set up as an affirmative defense that there had been a material alteration in the notes. As a further defense, and by way of counterclaim, appellants alleged that the bank had, prior to commencement of the action, "appropriated and converted to its own use, the securities, stocks and bonds mentioned and described in said pledge agreement by then and there asserting ownership and claiming to be the owners" thereof; that said securities were the property of D. E. Jenkins and were converted without his consent and against his will; that the actual value of the securities was $ 60,000, and that "defendant D. E. Jenkins has been damaged in the amount of $ 60,000.00 in the premises and by reason of said unlawful conversion by the plaintiff above mentioned." Then followed a prayer that the complaint be dismissed with prejudice and that "the defendant D. E. Jenkins have judgment against the plaintiff in the sum of $ 60,000.00."
The bank filed a motion to strike the counterclaim on the ground that "the same is not a proper counterclaim to the action, nor pleadable as such." Subsequently, it interposed a demurrer to the counterclaim on the ground that the cause of action stated therein was not pleadable "as a counterclaim to the action." The trial court sustained the demurrer and granted the motion to strike.
An amended answer and counterclaim were thereupon filed. To the amended counterclaim respondent demurred upon several grounds, among them that it did not state facts sufficient to constitute a cause of action. The bank also demurred to the amended answer on the ground that it did not state facts sufficient to constitute a defense.
The court sustained the demurrer to the counterclaim as amended, whereupon the appellants filed a second amended answer and counterclaim. The allegations of the answer were not changed, but the counterclaim was substantially modified. It starts out by stating that "by way of counterclaim the said defendant, D. E. Jenkins, alleges;" and while at one place in the counterclaim it is alleged that the "defendants are informed and believe," etc., nevertheless the property allegedly converted is asserted to be the property of D. E. Jenkins and judgment in his behalf only is prayed for on the counterclaim. Both sides have treated this counterclaim as a separate one, brought by the defendant D. E. Jenkins individually. Hence, this court will so construe it.
Respondent demurred to the second amended answer and counterclaim on the same grounds as interposed to the first amended answer and counterclaim. The court sustained the demurrer to the counterclaim without leave to amend, and the same was dismissed without prejudice.
After the court dismissed the second amended counterclaim, the bank filed its reply to appellants' answer. The reply denies the allegations of the affirmative defense and pleads matters in confession and avoidance and denies each allegation of the answer to the second cause of action. At the trial the appellants failed to appear. After the introduction of evidence by respondent the court made findings of fact and conclusions of law in favor of the bank. Judgment was entered for foreclosure of the mortgage and pledge and for a deficiency judgment, pursuant to the statutes of this state.
The Mountain-Lakes Poultry Farms and D. E. Jenkins appeal jointly, and jointly assign numerous errors. The assignments may be grouped under two general heads: (1) Alleged errors committed by the trial court with respect to appellants' answers to the complaints of respondent; and (2) alleged errors having reference to the counterclaims filed by appellants. We shall consider them in that order.
In Assignment No. 8 appellants allege that "the court committed error in sustaining plaintiff's general demurrer to defendants' and appellants' amended answer to the plaintiff's first and second causes of action." An examination of the record reveals that the court, in a minute entry entitled "Court's Ruling" stated (in addition to reciting the court's ruling on the demurrer to the second amended counterclaim): "Having been taken under advisement, March 18, 1938, Court now rules as follows: Plaintiff's general demurrer to defendant's Amended Answer in first and second Causes of Action, sustained." On the day on which the minute entry was made the court signed a written order sustaining the demurrer to the counterclaim, without leave to amend and dismissing the same.
No mention of the ruling on the demurrer to the answer was made in the written order of the Court. Respondent bank proceeded as though the demurrer to the answer had been overruled. It filed a reply thereto and served a copy on appellants, and the case came on for trial several days later. The court made findings of fact and entered conclusions of law and a decree in which it was stated that the case came on for trial "upon the complaint of the plaintiff, the second amended answer of the defendants, Mountain-Lake Poultry Farms, Inc., and D. E. Jenkins, and the plaintiff's reply thereto." The findings, conclusions and decree were served on appellants. No steps were thereafter taken by the latter to set aside the judgment and reopen the case to permit them to introduce any evidence.
Appellants' contention is that the trial court sustained the demurrer to the second amended answer, as evidenced by the minute entry; that such ruling was error--as were the subsequent proceedings in which the case was heard on its merits. Respondent urges that the minutes of the court do not constitute a part of the judgment roll and since this appeal is only on the judgment roll the minutes should be disregarded and the order itself, together with the judgment of the court, should be conclusive as to the court's ruling on demurrer.
Sec 104-30-14, R. S. U. 1933, which states what shall constitute the judgment roll, makes no mention of the court's minutes. In other jurisdictions, with statutes similar to ours, it has been held that the court's minutes as such do not form a part of the judgment roll. De Pedrorena v. Hotchkiss, 95 Cal. 636, 30 P. 787; Kritzer v. Tracy Engineering Co., 16 Cal.App. 287, 116 P. 700; Woods v. Hyde, 64 Cal.App. 433, 222 P. 168; Perkins v. Loux, 14 Idaho 607, 95 P. 694. However, even though the minutes may not be expressly included in the judgment roll by statute, still those minutes may contain an order or ruling of the court which is included in the judgment roll. Where such an order or ruling of the court is contained in a minute entry, that entry may properly be a part of the judgment roll. And the appellate court, where an appeal is taken on the judgment roll, will consider such entry for the purpose...
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