certified by J. J. Whitaker, as presiding judge | returned duly served. On June 12th, the of the city court of Salt Lake City, to the date named in the summons as the day for effect that the city court is a court of rec- trial, the following docket entry was made: ord, and that Moreton is the qualified and "Defendant having been duly served with acting clerk of the city court, and that his summons and having failed to appear and signature to the transcript is genuine, and answer and the time to answer having exthat his certificate is in due form. The cer- pired, upon motion of plaintiff, the default tificate by the judge is in turn certified by of defendant is hereby duly entered by the the clerk to the effect that Whitaker is the court." No further entry appears until Dejudge of the city court, and that his signa- cember 14, 1901, upon which date the followture to the certificate is genuine and his true ing entry appears to have been made: "F. G. signature. Then follows a certificate from Luke was sworn and testified on part of the Margaret Zane Witcher, county clerk of Salt plaintiff. From the evidence I find that the Lake county and ex officio clerk of the dis- defendant is indebted to the plaintiff in the trict court in and for Salt Lake county, who sum of $226.80. It is therefore ordered and certifies that Gustave Kroeger, before whom adjudged that plaintiff have and recover the judgment was rendered, was at the time from defendant the sum of $226.80, and costs duly qualified and acting justice of the peace taxed at $3.40." While the docket does not in and for Salt Lake county, state of Utah, affirmatively show that a request was made and that the city court of Salt Lake City for a continuance, or that a continuance was is the legal successor of said justice's court, granted by the justice, still it does show that and that the seal of the city court appearing no action was taken after the default was on the certificate and the transcript is the entered on June 12th until proofs were made true and genuine seal of the city court, and and judgment entered on December 14th. that J. B. Moreton is the clerk of such court The presumption would arise, however, from and J. J. Whitaker the judge of such court. this record that a continuance was granted. This in turn is followed by a certificate from Charles S. Tingey, Secretary of State of the state of Utah, in which he certifies that Margaret Zane Witcher was at the time of mak-state as follows: Sections 3709, 3710, 3711, ing this certificate the duly elected, qualified, and acting clerk of Salt Lake county, Utah. In connection with this transcript and the several certificates, the plaintiff also introduced chapter 109 of the Utah Session Laws of 1901, creating the city court of Salt Lake City and abolishing the local justice's courts, and declaring the city court the lawful suc-ute under which this judgment was entered. cessor of the justice's court. Without a review of the authorities, we are satisfied to hold that this judgment was duly and regularly certified in conformity with the requirements of sections 5980 and 5981 of the Revised Codes of this state, and section 905 of the Revised Statutes of the United States. It must be remembered that in this case the justice's court in which the judgment sued upon had been rendered had been abolished prior to the commencement of this action. It was therefore impossible to secure a certification of the judgment by the justice of the peace. It was proper, therefore, to have the certification come from the custodian of the docket and records of the justice's court which rendered and entered the judgment. The certification in this case was a substantial compliance with the requirements of the statute. The next question is attended with more difficulty. It is insisted by appellant that the justice of the peace lost jurisdiction to render and enter a judgment, and that the judgment is upon its face void. This contention grows out of the following state of facts. The complaint was filed before the justice of the peace, Gustave Kroeger, on the 31st day of May, 1901, and summons issued The statutes of Utah governing justice's practice in that state have been introduced and correspond with the statutes of this and 3712 of the Compiled Laws of Utah correspond identically with sections 4701, 4702, 4703, and 4704 of the Revised Codes of this state. We shall, therefore, make our further reference to the sections of the Revised Codes of Idaho rather than refer to the corresponding sections of the Utah stat It may also be observed in this connection that section 3726 of the Compiled Laws of Utah is the same as section 4728 of our Code, which in turn is identically the same as section 892 of the Code of Civil Procedure of California. Section 4701 of our Revised Codes provides that the trial in the justice court must commence at the expiration of one hour from the time specified in the summons for the appearance of defendant, unless the case be postponed as provided by statute. In this case it is established by the record that the defendant did not appear at the time designated in the summons for his appearance and thereupon his default was entered by the justice. Section 4702 of our Revised Codes provides that the court may of its own motion postpone the trial of a case, "for not exceeding one day, if, at the time fixed by law or by an order of the court for the trial, the court is engaged in the trial of another action; or, for not exceeding two days, if, by an amendment of the pleadings, or the allowance of time to make such amendment or to plead, a postponement is rendered necessary; or, for not exceeding three days, if the trial is upon issues of fact, and a jury has been demanded." Section 4703 of our by consent of the parties, given in writing | of judgment, he places himself in the legal or in open court, postpone the trial to a time attitude and status of one who admits the agreed upon by the parties." Section 4704 authorizes a justice upon application and proper showing by either party to continue the trial of a case "not exceeding four months." Appellant contends that these provisions of the statute are mandatory, and that a continuance beyond the time specified ousts the justice of jurisdiction to take any further action in the case. The question then presented to us is one of jurisdiction rather than one of error. It may, and indeed must be, conceded that it is error for a justice of the peace to continue the trial of a case for a period exceeding that prescribed by the statute. But the question recurs: Is the commission of such an error one that goes to the jurisdiction of the court, or is it one that the court has jurisdiction to commit? In California, the Supreme Court of that state has had occasion to construe the provisions of section 892 of the Code of Civil Procedure, which is the same as our section 4728, which reads: "When the trial is by the court, judgment must be entered at the close of the trial," and has held that this statute is directory and not mandatory. American T. F. Co. v. Justice Court, 133 Cal. 319, 65 Pac. 742, 978; Heinlen v. Phillips, 88 Cal. 557, 26 Pac. 366. In the American Type Founders' Case, supra, the Supreme Court of California held that section 892 of the Code of Civil Procedure does not prohibit a justice of the peace taking the case under advisement after the close of a trial and afterwards rendering his judgment. In Disque v. Herrington, 139 Cal. 1, 72 Pac. 336, the California court held that errors committed by a justice of the peace in granting or refusing continuances are only errors reviewable on appeal, and do not devest the court of jurisdiction. In Zimmerman v. Bradford-Kennedy Co., 14 Idaho, 686, 95 Pac. 827, a complaint was filed before a justice of the peace. It appeared that a summons was made returnable on the 12th day of June, but that the defendant failed to appear. No action whatever was taken until the 15th of June when proofs were submitted and the judgment was entered. In passing upon that question, this court said: "The objection that is made here is that the case was not postponed from the 12th to the 15th, and that the court therefore lost jurisdiction. This was at most an irregularity which did not go to the jurisdiction of the court. In other words, the fact that proofs are not made or judgment entered on the return day named in the summons does not ipso facto oust the court of jurisdiction. By that act alone the court does not lose jurisdiction of the action." When a defendant fails to appear either at the time fixed in the summons as the hour for the trial, or at any time thereafter prior to the submission of proofs and entry facts charged against him and consents to the plaintiff having the relief sought against him. If errors of law are committed in the manner of securing and entering the judgment against him for that relief, he has an adequate remedy by direct attack upon the judgment; but he should not, on the other hand, be allowed to lapse into silence for an indefinite period of time and until the plaintiff seeks to renew the judgment or collect the same, and then in a collateral way attack the jurisdiction of the court, because of some error at law committed in the rendition of the original judgment. We think the error is not jurisdictional, and therefore would not oust the justice of his jurisdiction to enter the judgment sued upon. It is conceded that the justice originally had jurisdiction of the subject-matter, namely, of a debt of the kind and amounting to the sum that was sued upon in this case. The continuance of the case did not in any way change the subjectmatter. The court, on the other hand, had acquired jurisdiction of the person of the defendant by legal service of process. The defendant defaulted; thereby admitting the charge made against him. The postponement of the case until a future date did not devest the justice of the jurisdiction of the person of the defendant, who had already been served. We are not unmindful of the cases that have been cited by appellant to the contrary. Indeed, many courts have held that an error of this kind committed by a justice of the peace is jurisdictional, and devests the justice of the jurisdiction to proceed further or enter a judgment. Prominent among these cases is that of State ex rel. Collier v. Houston, 36 Mont. 178, 92 Pac. 476, in which the Supreme Court of Montana held that the provisions of section 1623 of the Code of Civil Procedure of that state, which is identical with section 4728 of our Revised Codes to which reference has just been made, are mandatory, and that a justice of the peace who took a case under advisement after the proofs were submitted, and without the consent of both the parties to the action, thereby lost jurisdiction to render a judgment in the case. A large number of cases are cited in the opinion of the court in that case supporting the conclusion reached by that court. Notwithstanding the high standing of that court for legal ability and learning, we think the logic of the opinion is faulty, and we cannot give our assent to the conclusion there reached. For instance, it is there said that "the losing party may desire to pay the judgment and thus prevent accruing costs, or he may wish to appeal and be able at the time to perfect it, whereas, if the decision is delay. ed, he may be put to further trouble and expense." Now, it occurs to us that a defendant can as readily pay the debt before the rendition Findings should be of ultimate facts, and not of probative facts; but a finding of probative facts is sufficient, if the required ultimate fact necessarily results from the probative facts. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 931; Dec. Dig. § 395.*] 4. APPEAL and Error (§ 852*)—PRESENTATION OF QUESTIONS IN TRIAL COURT-THEORY OF CAUSE. Held, that a return of a deed by the grantee to the grantor, under the facts of this case, leaves the legal title to the real estate described in the deed in the grantor. and entry of judgment as he can afterwards. | 3. TRIAL (§ 395*)-TRIAL BY COURT-FINDINGS-SUFFICIENCY. He can either pay it to the creditor or the justice. He can readily ascertain whether judgment has been entered against him, and if the court has committed an error, he has a speedy and adequate remedy. If the court has failed to render his judgment, he likewise has an adequate remedy to compel the justice to act. It is impossible, by any rule of law as to jurisdiction or its exercise, to prevent a justice of the peace from sometimes committing error, and this is true of higher courts. The law, however, provides a method for review and correction of errors. The rights of the plaintiff, on the other hand, should not be overlooked. He is the creditor. He is seeking to collect that which he claims is due him. The fact that the justice of the peace before whom he is proceeding commits an error to which attention is not called, on account of the absence of the defendant, should not defeat the plaintiff's rights of recovery and put him to the trouble and expense of prosecuting a new action, and incurring the risk of being unable to secure another service of process. Other authorities holding to the same effect as the Montana decision have been cited by appellant as follows: Abbott's Trial Brief (Civil 2d Ed.) § 39; Waldron v. Palmer, 104 Mich. 556, 62 N. W. 731; Tomlinson v. Litze, 82 Iowa, 32, 47 N. W. 1015, 31 Am. St. Rep. 458; McKenna v. Murphy, 68 N. J. Law, 522, 53 Atl. 695; Nelson v. Campbell, 1 Wash. St. 261, 24 Pac. 539; May v. Graw- The judgment should be affirmed, and it is so ordered. spondent. SULLIVAN, C. J. concurs. (18 Idaho, 374) FOUCH v. BATES et al. (Supreme Court of Idaho. June 27, 1910.) (Syllabus by the Court.) [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3402; Dec. Dig. § 852.*] 5. FINDINGS-CONFORMITY OF JUDGMENT-AD MISSIONS. Held, that the issues tendered by the allegations of the complaint and not denied by the answer in connection with the findings of fact made by the court are sufficient to sustain the judgment. 6. QUIETING TITLE (§ 52*) — JUDGMENT-DE-. SCRIPTION OF PROPERTY. Held, that the description of the real estate in the judgment or decree, required to be conveyed by the defendant to the plaintiff, is sufficient. [Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 102; Dec. Dig. § 52.*] 7. TRIAL (§ 404*)—TRIAL BY COURT-FINDINGS -CONSTRUCTION. Findings must be liberally construed in support of the judgment. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 957, 961; Dec. Dig. § 404.*] Appeal from District Court, Canyon County; Ed. L. Bryan, Judge. Action by Frank R. Fouch against M. A. Bates and another, for an accounting and to quiet title. Judgment for plaintiff. Defendants appeal. Affirmed. Griffiths & Griffiths and Martin & Martin, for appellants. Rice, Thompson & Buckner and Smith & Scatterday, for respondent. SULLIVAN, C. J. This action was brought for an accounting and to quiet title to certain real estate described in the complaint. After alleging the corporate exist 1. APPEAL AND ERROR (§ 655*)-RECORD-COR-ence of the Parma State Bank, the complaint RECTION-MOTION TO STRIKE. Under the provisions of subdivision 2, § 4456, Rev. Codes, all bills of exceptions settled and filed prior to the rendition of judgment become a part of the judgment roll, and on an appeal from the judgment, under the provisions of section 4818, Rev. Codes, become a part of the transcript. However, where a bill of exceptions is a part of the judgment roll and not relied upon on the appeal, it may be omitted from the transcript by stipulation of counsel, but will not be stricken from the transcript on motion of respondent. alleges that on or about the 31st of August, 1895, the plaintiff conveyed to the defendant Bates, in trust, certain real estate (describing it as per government survey), excepting a tract thereof alleged to have been conveyed to one James B. Mansell, comprising about one acre; also excepting a part of said land conveyed to the Oregon Short Line Railway Company, comprising about one acre; that at the time the said property was so conveyed [Ed. Note.-For other cases, see Appeal and to the defendant Bates, it was incumbered Error, Cent. Dig. § 2823; Dec. Dig. § 655.*] by a mortgage to the state of Idaho as se2. TRIAL (§ 388*) — TRIAL BY COURT-FIND-curity for the payment of the sum of $2,000; INGS-SUFFICIENCY. There is no necessity for findings upon immaterial issues, nor upon facts alleged in the complaint and admitted by the answer. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 908, 911; Dec. Dig. § 388.*] that in the month of October, 1899, the said Bates and his wife executed and delivered to the plaintiff a deed reconveying to him said real estate and thereby terminated said trust; that in the month of February, 1900, the part of it the debt of the plaintiff; that the amount still due the plaintiff from the proceeds of the sale of portions of said real estate by Bates under said agreement cannot be stated by plaintiff without an accounting between Bates and the plaintiff; and the prayer is that an accounting be had, and that the plaintiff have judgment against Bates for the amount found due; that the plaintiff be adjudged to be the owner of the portion of said property now held by said Bates, and that the title of plaintiff to said property be declared and adjudged good and valid as against Bates; that plaintiff be adjudged to be the owner of that portion of said real estate now held by the Parma State Bank and that said deed to the bank is a mortgage only; that Bates be required to reconvey to the plaintiff by warranty deed that portion of the property now held by him, and for costs. plaintiff returned said last-mentioned deed to | said property was transferred to the bank, the defendant Bates under and by virtue is the debt of the defendant Bates and no of an oral agreement to the effect that said defendant Bates should sell portions of the property, and the purchase price obtained therefor should be applied on the mortgage debt above referred to, and after said mortgage should have become liquidated, the purchase price of the remaining portions of said property to be so sold by the said Bates was to be divided, two-fifths to Bates and threefifths to the plaintiff; that on the 20th of February, 1900, the said Bates platted a portion of said land as lots and blocks of the town of Parma, Canyon county; that said Bates filed said plat with the county recorder of said county; that on or about the 26th of January, 1901, said Bates platted another portion of said land as lots and blocks of the said town of Parma and filed said plat with .the county recorder; that numerous lots of said real estate so platted were sold under said agreement by said Bates and the proceeds were applied to the payment of said mortgage debt until the mortgage debt was reduced to the sum of $250; that in the month of June, 1903, said Bates and the plaintiff made an oral agreement in regard to the division of the proceeds of the sale of the then remaining portion of said real estate after said mortgage debt incumbering said property should become liquidated; that after said debt should be liquidated, it was agreed that the remaining portions of said land sold by Bates was to be divided equally, one half received therefor was to be paid to plaintiff, and Bates was to retain the other half; that under said agreement Bates paid said mortgage debt and paid to plaintiff the sum of $1,100 out of the proceeds of the sale of certain portions of said real estate; that since the last-mentioned agree ment the defendant Bates has sold other portions of said real estate, the amount of such sales being unknown to the plaintiff and the proceeds of which have been retained by the said Bates, and no account of same has been made by him to the plaintiff; that there has been sold by said defendant to various and sundry purchasers certain lots (describing them) of the land so platted; that on the 12th day of November, 1904, the said Bates and his wife executed a deed to the Parma State Bank, one of the defendants, to secure the payment of $4,341.30 and conveyed by said deed a considerable portion of said real estate (describing a part of it by legal subdivisions and a part by lots and blocks); that upon the receipt of said deed by said bank, it executed to said Bates a contract to reconvey the said property upon certain conditions set forth in such agreement, which contract was attached to and made a part of the complaint; that since the execution of said contract, said bank has conveyed to divers purchasers portions of said property (describing it by lots and blocks); that the sum of $4,341.30, for the payment of which The bank did not answer. By the answer of defendant Bates, a number of allegations of the complaint are admitted and others denied. The answer admits the return of the deed alleged to have been returned to the defendant by the plaintiff in January, 1900, but denies that said deed was returned to the defendant under the agreement alleged, and avers that the plaintiff returned said deed to the defendant for a valuable consideration and with the full intent and purpose of vesting the title to said real estate described therein in the defendant, and that after the delivery of said deed, the plaintiff had no right, title, or interest in or to said property or to any part thereof; admits that since the delivery of said deed defendant has sold portions of said property and has paid off a part of the mortgage indebtedness against said property, but denies that the indebtedness was reduced to the sum of $250 or to any sum less than $750; denies that in the month of June, 1904, or at any other time or at all, the plaintiff made a new or any oral agreement or any agreement whatever with defendant in regard to the division of the proceeds from the sale of the then remaining portions of said property; denies that defendant agreed that after said mortgage debt was liquidated that the remaining portions of said land should be divided equally between the plaintiff and defendant or in any other manner, or that defendant made any agreement with the plaintiff in regard to the proceeds of said property; denies that he paid said mortgage debt and avers that a large portion thereof was taken up by executing a new mortgage on said property, which new mortgage remains unpaid; admits that defendant had sold portions of said property and had made no accounting to the plaintiff, and avers that he was under no obligation to account to plaintiff for any portion of the proceeds of the sale of such property. And for a further answer, alleges that the referee, and the exceptions were settled in plaintiff on or about the 31st of August, a bill of exceptions by the district judge. 1895, conveyed to the defendant the prop- It appears that shortly after said bill of erty described in paragraph 2 of the com- exceptions was settled, Judge Frank J. plaint; that said property was incumbered Smith, who was then the district judge of by a mortgage of $2,000, and that defendant said court, was succeeded by Hon. Ed. L. reconveyed said property to the plaintiff on Bryan, and instead of passing upon the prothe 1st day of May, 1899, by a good and suffi- ceedings and findings of the referee, Judge cient deed and that said deed was not placed Bryan disregarded them entirely and proon record by the plaintiff; that in January, ceeded to and did retry the case himself. It 1900, plaintiff had not paid and discharged appears that on such trial witnesses were said mortgage to the state of Idaho or any examined and documentary evidence intropart thereof; had failed to pay the taxes as- duced on behalf of the respective parties, sessed against said property and that said and, after hearing all of the evidence so preproperty had been sold to Canyon county for sented, the court made its findings of fact, taxes assessed thereon, and that there was conclusions of law, and entered judgment an outstanding indebtedness which was a whereby it was adjudged that the plaintiff lien on said property, including the said and defendant were each an owner of an mortgage and unpaid taxes, amounting to undivided one-half interest in and to the more than $3,100; that in the month of Jan- real estate described in said judgment; that uary, 1900, defendant purchased from the the conveyance executed by Bates to the plaintiff said property described in para- Parma State Bank in the form of a warrangraph 2 of plaintiff's complaint and the ty deed with an agreement back was a mortwhole thereof for a valuable consideration, gage, and that the $4,341.30 borrowed by a part of which consideration was that the Bates from said bank and secured by said said defendant would pay and discharge all mortgage was used for the benefit of said of the indebtedness which was a lien on said Bates. On the accounting it was also adproperty, and would protect the plaintiff judged that the plaintiff was indebted to from any deficiency judgment which might Bates in the sum of $893.95, and that the be rendered against him on account of said plaintiff could satisfy said indebtedness to indebtedness; that at the time defendant Bates by paying said amount to the Parma purchased said property from the plaintiff, State Bank on said mortgage; and that Bates instead of plaintiff's executing a conveyance should convey to said plaintiff an undivided to the defendant therefor, he returned to the one-half interest in and to the property dedefendant the deed theretofore given him by scribed in the decree. It was also adjudged the plaintiff, and that said deed was re- that in case the Parma State Bank, after turned to the defendant by the plaintiff for the payment of such $893.95 by plaintiff, the purpose and with the full intention of should be obliged to resort to the property vesting the title of said property in the de- of the plaintiff to secure the complete satisfendant and conveying to him all of the faction of said mortgage, then and in that rights of the plaintiff to said real estate; event the plaintiff should have and recover that in the summer of 1904, plaintiff stated from the defendant Bates whatever amount to the defendant that he was poor and in the bank should recover out of plaintiff's inhard circumstances and that the defendant terest in said real estate. had done well with said property and asked the defendant to give him some money, and that on account of the relationship and friendship existing between the plaintiff and the defendant at that time, the defendant agreed to give plaintiff some money, which should be one-half of the profits on certain lots to be sold, and defendant has since said time given plaintiff certain moneys, but alleges that the same was a gift and was not paid to the plaintiff on account of any agreement which the plaintiff had with the defendant, and that there was no consideration whatever for defendant's promise in that regard, and prays that plaintiff take nothing by his action. Upon the issues thus made, the court appointed a referee to take the testimony and make full and complete findings upon the several issues made by the pleadings, which the referee proceeded to do, and made his return to the court. Counsel for appellants The property described in the decree is as follows, to wit: "The southeast quarter of the northwest quarter, the southwest quarter of the northeast quarter, and the north half of the southeast quarter of section 9, in township 5 north, of range 5 west, of the Boise meridian, in Canyon county, Idaho, excepting one lot deeded to James B. Mansell situated in the said southeast quarter of the northwest quarter, containing one acre, more or less, and one tract of land situated in the said northwest quarter of the southeast quarter deeded to the Oregon Short Line Railroad Company, containing one acre, more or less, and excepting also lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 of block 27; and lots 1, 2, 3, 4, 5, 6, and 7 of block 26; lots 1, 2, 3, 4, and 5 of block 28; lots 1, 2, 3, 4, 6, 7, 8, 9, 10, and 11 of block 34; lots 4, 5, 6, 8, 9, 10, 11, and 12 of block 35; lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 of block 37; lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 of block 38; lots 3, 4, 5, 6, 7, 8, |