Zuniga v. Schiller

• Decision Date: 06 May 1937
• Docket Number: 5841
• Citation: 92 Utah 294,67 P.2d 645
• Court: Utah Supreme Court
• Parties: ZUNIGA et al. v. SCHILLER, Judge et al

67 P.2d 645

92 Utah 294

ZUNIGA et al. v. SCHILLER, Judge et al

No. 5841

Supreme Court of Utah

May 6, 1937

Original proceeding for application for writ of mandate by Joseph Zuniga and Juanna Zuniga to require the Honorable Herbert M. Schiller, Judge of the District Court of Salt Lake County, Utah, to try issues made by counterclaim and reply thereto in action by Antonio S. Leone, in which the petitioners were defendants.

WRIT TO ISSUE.

C. E Norton, of Salt Lake City, for plaintiffs.

L. B Wight, of Salt Lake City, for defendants.

FOLLAND Chief Justice. HANSON, MOFFAT, WOLFE, and LARSON, JJ., concur.

OPINION

FOLLAND, Chief Justice.

This is an application for a writ of mandate to require the judge of the district court, named as a defendant, to try the issues made by a counterclaim and reply thereto in a cause where a demurrer to the complaint was sustained and the complaint dismissed after a reversal of a judgment for plaintiffs on appeal. The parties hereto, the Zunigas and Leone, have been in the courts for the last seven or eight years attempting to settle the matters in controversy between them. Zuniga v. Leone, 77 Utah 494, 297 P. 1010, and Leone v. Zuniga, 84 Utah 417, 34 P.2d 699, 94 A. L. R. 1232. In the last-mentioned case it may be gathered from the decision of the court that the plaintiff sought a forfeiture of defendants' rights under a real estate contract for alleged failure to perform and for other relief; that the defendants filed an answer admitting and denying certain of the allegations of the complaint and a counterclaim in which they sought rescission of the contract for alleged fraud and misrepresentation and because the negotiations for the contract were conducted by a certain real estate agent who, unknown to the defendants, acted as agent for both parties. The cause was fully tried and, after a judgment for plaintiff and against the defendants, the cause was appealed to this court. The judgment was reversed because of the failure of the complaint to state a cause of action, and the case remanded to the trial court for further proceedings. 84 Utah 417, 34 P.2d 699, 94 A. L. R. 1232, supra.

In the petition for a writ of mandamus, it is alleged that upon filing the remittitur from this court in the district court, the cause was placed on the trial calendar and assigned to the defendant Hon. Herbert M. Schiller, one of the judges of the district court, for trial; that after filing the remittitur, the plaintiff therein filed an amended reply to the counterclaim; that the cause came on regularly for trial on the pleadings as amended, but the trial judge refused to "allow defendants to make any proof whatever and took the case under advisement" and thereafter made the following order:

"The Court having heretofore on October 23, 1935, taken under advisement defendants' motion for permission to proceed to introduce evidence on their answer and counterclaims after the Court had sustained the defendants' demurrer and the plaintiffs had refused to plead over, and now being sufficiently advised in the matter, orders the said motion to introduce evidence denied. Dated and entered March 14, 1936. Herbert M. Schiller, Judge."

It is further made to appear by the filing of a certified copy of the order that a written order was signed and entered by the trial judge "that the within complaint be and the same is hereby dismissed at plaintiffs' costs and without prejudice." The record discloses that counsel presented a written order for dismissal of the action, but the court struck the word "action" and wrote in the word "complaint." It is contended by petitioners that the whole action should have been disposed of by the trial court either by trial of the issues made by the counterclaim and reply or by a dismissal of the action and not...