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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.” Vo 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 The statutes of Utah governing justice's Charles S. Tingey, Secretary of State of the practice in that state have been introduced state of Utah, in which he certifies that Mar- and correspond with the statutes of this garet Zane Witcher was at the time of mak- state as follows: Sections 3709, 3710, 3711, ing this certificate the duly elected, qualified, and 3712 of the Compiled Laws of Utah corand acting clerk of Salt Lake county, Utah. respond identically with sections 4701, 4702, In connection with this transcript and the 4703, and 4704 of the Revised Codes of this several certificates, the plaintiff also intro- state. We shall, therefore, make our fur. duced chapter 109 of the Utah Session Laws ther reference to the sections of the Reof 1901, creating the city court of Salt Lake vised Codes of Idaho rather than refer to City and abolishing the local justice's courts, the corresponding sections of the Utah statand declaring the city court the lawful suc- ute under which this judgment was entered. cessor of the justice's court.

It may also be observed in this connection Without a review of the authorities, we that section 3726 of the Compiled Laws of are satisfied to hold that this judgment was Utah is the same as section 4728 of our duly and regularly certified in conformity Code, which in turn is identically the same with the requirements of sections 5980 and as section 892 of the Code of Civil Proce. 5981 of the Revised Codes of this state, and dure of California. section 905 of the Revised Statutes of the Section 4701 of our Revised Codes provides United States. It must be remembered that that the trial in the justice court must comin this case the justice's court in which the mence at the expiration of one hour from the judgment sued upon had been rendered had time specified in the summons for the appearbeen abolished prior to the commencement of ance of defendant, unless the case be postthis action. It was therefore impossible to poned as provided by statute. In this case secure a certification of the judgment by the it is established by the record that the dejustice of the peace. It was proper, there- fendant did not appear at the time designatfore, to have the certification come from the ed in the summons for his appearance and custodian of the docket and records of the thereupon his default was entered by the justice's court which rendered and entered justice. Section 4702 of our Revised Codes the judgment. The certification in this case provides that the court may of its own mowas a substantial compliance with the re- tion postpone the trial of a case, "for not quirements of the statute.

exceeding one day, if, at the time fixed by The next question is attended with more law or by an order of the court for the difficulty. It is insisted by appellant that trial, the court is engaged in the trial of the justice of the peace lost jurisdiction to another action; or, for not exceeding two render and enter a judgment, and that the days, if, by an amendment of the pleadings, judgment is upon its face void. This conten- or the allowance of time to make such amend. tion grows out of the following state of ment or to plead, a postponement is rendered facts. The complaint was filed before the necessary; or, for not exceeding three days, justice of the peace, Gustave Kroeger, on the if the trial is upon issues of fact, and a jury 31st day of May, 1901, and summons issued 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 facts charged against him and consents to authorizes a justice upon application and the plaintiff having the relief sought against proper showing by either party to continue him. If errors of law are committed in the the trial of a case “not exceeding four manner of securing and entering the judg. months." Appellant contends that these ment against him for that relief, he has an provisions of the statute are mandatory, and adequate remedy by direct attack upon the that a continuance beyond the time specified judgment; but he should not, on the other ousts the justice of jurisdiction to take any hand, be allowed to lapse into silence for an further action in the case.

indefinite period of time and until the plainThe question then presented to us is one tiff seeks to renew the judgment or collect of jurisdiction rather than one of error. It the same, and then in a collateral way attack may, and indeed must be, conceded that it the jurisdiction of the court, because of some is error for a justice of the peace to con- error at law committed in the rendition of tinue the trial of a case for a period ex- the original judgment. We think the error ceeding that prescribed by the statute. But is not jurisdictional, and therefore would not the question recurs: Is the commission of oust the justice of his jurisdiction to enter such an error one that goes to the jurisdic- the judgment sued upon. It is conceded that tion of the court, or is it one that the court the justice originally had jurisdiction of the has jurisdiction to commit?

subject-matter, namely, of a debt of the kind In California, the Supreme Court of that and amounting to the sum that was sued state has had occasion to construe the pro- upon in this case. The continuance of the visions of section 892 of the Code of Civil case did not in any way change the subjectProcedure, which is the same as our section matter. The court, on the other hand, had 4728, which reads: "When the trial is by the acquired jurisdiction of the person of the de court, judgment must be entered at the close fendant by legal service of process. The of the trial," and has held that this statute defendant defaulted; thereby admitting the is directory and not mandatory. American charge made against him. The postponeT. F. Co. v. Justice Court, 133 Cal. 319, 65 ment of the case until a future date did not Pac. 742, 978; Heinlen v. Phillips, 88 Cal. devest the justice of the jurisdiction of the 557, 26 Pac. 366. In the American Type person of the defendant, who had already Founders' Case, supra, the Supreme Court been served. of California held that section 892 of the We are not unmindful of the cases that Code of Civil Procedure does not prohibit have been cited by appellant to the contrary. a justice of the peace taking the case under Indeed, many courts have held that an error advisement after the close of a trial and of this kind committed by a justice of the afterwards rendering his judgment.

peace is jurisdictional, and devests the jusIn Disque v. Herrington, 139 Cal. 1, 72 tice of the jurisdiction to proceed further or Pac. 336, the California court held that er- enter a judgment. Prominent among these rors committed by a justice of the peace in cases is that of State ex rel. Collier v. Housgranting or refusing continuances are only ton, 36 Mont. 178, 92 Pac. 476, in which the errors reviewable on appeal, and do not de Supreme Court of Montana held that the vest the court of jurisdiction.

provisions of section 1623 of the Code of Civ. In Zimmerman v. Bradford-Kennedy Co., | il Procedure of that state, which is identi14 Idaho, 686, 95 Pac. 827, a complaint was cal with section 4728 of our Revised Codes filed before a justice of the peace. It ap- to which reference has just been made, are peared that a summons was made returnable mandatory, and that a justice of the peace on the 12th day of June, but that the defend- who took a case under advisement after the ant failed to appear. No action whatever proofs were submitted, and without the conwas taken until the 15th of June when sent of both the parties to the action, thereproofs were submitted and the judgment was by lost jurisdiction to render a judgment in entered. In passing upon that question, this the case. A large number of cases are cited court said: “The objection that is made here in the opinion of the court in that case supis that the case was not postponed from the porting the conclusion reached by that court. 12th to the 15th, and that the court there- Notwithstanding the high standing of that fore lost jurisdiction. This was at most an court for legal ability and learning, we think irregularity which did not go to the juris- the logic of the opinion is faulty, and we diction of the court. In other words, the cannot give our assent to the conclusion there fact that proofs are not made or judgment reached. For instance, it is there said that entered on the return day named in the sum- "the losing party may desire to pay the judg. mons does not ipso facto oust the court of ment and thus prevent accruing costs, or he jurisdiction. By that act alone the court may wish to appeal and be able at the time does not lose jurisdiction of the action." to perfect it, whereas, if the decision is delay.

When a defendant fails to appear either ed, he may be put to further trouble and at the time fixed in the summons as the expense." hour for the trial, or at any time thereafter Now, it occurs to us that a defendant can prior to the submission of proofs and entry as readily pay the debt before the rendition

MISSIONS.

and entry of judgment as he can afterwards. 1 3. TRIAL (8 395*)—TRIAL BY COURT-FINDHe can either pay it to the creditor or the

INGS-SUFFICIENCY. justice. He can readily ascertain whether not of probative facts; but a finding of proba

Findings should be of ultimate facts, and judgment has been entered against him, and tive facts is sufficient, if the required ultimate if the court has committed an error, he has fact necessarily results from the probative facts. a speedy and adequate remedy. If the court [Ed. Note.-For other cases, see Trial, Cent. has failed to render his judgment, he like- Dig. 8 931; Dec. Dig. $ 395.*] wise has an adequate remedy to compel the 4. APPEAL AND ERROR (8 852*)—PRESENTATION

OF QUESTIONS IN TRIAL COURT-THEORY OF justice to act. It is impossible, by any rule

CAUSE. of law as to jurisdiction or its exercise, to Held, that a return of a deed by the grantee prevent a justice of the peace from some to the grantor, under the facts of this case, times committing error, and this is true of leaves the legal title to the real estate describ

ed in the deed in the grantor. higher courts. The law, however, provides

[Ed. Note. For other cases, see Appeal and a method for review and correction of errors. Error, Cent. Dig. & 3402; Dec. Dig. $ 852.*] The rights of the plaintiff, on the other hand, 5. FINDINGS-CONFORMITY OF JUDGMENT-ADshould not be overlooked. He is the creditor. He is seeking to collect that which he Held, that the issues tendered by the allegaclaims is due him. The fact that the jus- tions of the complaint and not denied by the

answer in connection with the findings of fact tice of the peace before whom he is pro- made by the court are sufficient to sustain the ceeding commits an error to which attention judgment. is not called, on account of the absence of 6. QUIETING TITLE (8 52*) - JUDGMENT - DE-. the defendant, should not defeat the plain

SCRIPTION OF PROPERTY. tiff's rights of recovery and put him to the in the judgment or decree, required to be con

Held, that the description of the real estate trouble and expense of prosecuting a new ac- veyed by the defendant to the plaintiff, is suftion, and incurring the risk of being unable ficient. to secure another service of process.

[Ed. Note. For other cases, see Quieting Ti. Other authorities holding to the same ef- tle, Cent. Dig. $ 102; Dec. Dig. $ 52.* ] fect as the Montana decision have been cited 7. TRIAL ($ 404*)—TRIAL BY COURT-FINDINGS

-CONSTRUCTION. by appellant as follows: Abbott's Trial Brief

Findings must be liberally construed in (Civil 2d Ed.) § 39; Waldron v. Palmer, support of the judgment. 104 Mich. 556, 62 N. W. 731; Tomlinson v. [Ed. Note.--For other cases, see Trial, Cent. Litze, 82 Iowa, 32, 47 N. W. 1015, 31 Am. Dig. $8 957, 961; Dec. Dig. § 404.*] St. Rep. 458; McKenna v. Murphy, 68 N. J. Law, 522, 53 Atl . 695; Nelson v. Campbell, ty; Ed. L. Bryan, Judge.

Appeal from District Court, Canyon Coun1 Wash. St. 261, 24 Pac. 539; May v. Graw

Action by Frank R. Fouch against M. A. ert, 86 Minn. 210, 90 V. W. 383. The judgment should be affirmed, and it is to quiet title. Judgment for plaintiff. De

Bates and another, for an accounting and so ordered. Costs awarded in favor of re

fendants appeal. Affirmed. spondent.

Griffiths & Griffiths and artin & Martin, SULLIVAN, C. J. concurs.

for appellants. Rice, Thompson & Buckner

and Smith & Scatterday, for respondent. (18 Idaho, 374)

SULLIVAN, O. J. This action
FOUCH v. BATES et al.

brought for an accounting and to quiet title (Supreme Court of Idaho. June 27, 1910.)

to certain real estate described in the com(Syllabus by the Court.)

plaint. After alleging the corporate exist1. APPEAL AND ERROR (8 655*)-RECORD-COR-ence of the Parma State Bank, the complaint RECTION-MOTION TO STRIKE.

alleges that on or about the 31st of August, Under the provisions of subdivision 2, 8 1895, the plaintiff conveyed to the defendant 4456, Rev. Codes, all bills of exceptions settled and filed prior to the rendition of judgment Bates, in trust, certain real estate (describbecome a part of the judgment roll, and on an ing it as per government survey), excepting appeal from the judgment, under the provisions a tract thereof alleged to have been conveyed of section 4818, Rev. Codes, become a part of to one James B. Mansell, comprising about the transcript. However, where a bill of exceptions is a part of the judgment roll and not

one acre; also excepting a part of said land relied upon on the appeal, it may be omitted conveyed to the Oregon Short Line Railway from the transcript by stipulation of counsel, Company, comprising about one acre; that at but will not be stricken from the transcript on the time the said property was so conveyed motion of respondent.

(Ed. Note.-For other cases, see Appeal and to the defendant Bates, it was incumbered Error, Cent. Dig. § 2823; Dec. Dig. 8 655.*] by a mortgage to the state of Idaho as se2. TRIAL (8 388*) — TRIAL BY COURT – Find-curity for the payment of the sum of $2,000 : INGS-SUFFICIENCY.

that in the month of October, 1899, the said There is no necessity for findings upon im- Bates and his wife executed and delivered to material issues, nor upon facts alleged in the the plaintiff a deed reconveying to him said complaint and admitted by the answer.

[Ed. Note.--For other cases, see Trial, Cent. real estate and thereby terminated said trust ; Dig. $$ 908, 911; Dec. Dig. $ 388.* ]

that in the month of February, 1900, the

was

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 part of it the debt of the plaintiff; that the defendant Bates should sell portions of the amount still due the plaintiff from the proproperty, and the purchase price obtained ceeds of the sale of portions of said real estherefor should be applied on the mortgage | tate by Bates under said agreement cannot debt above referred to, and after said mort- be stated by plaintiff without an accounting gage should have become liquidated, the pur- between Bates and the plaintiff; and the chase price of the remaining portions of said prayer is that an accounting be had, and that property to be so sold by the said Bates was the plaintiff have judgment against Bates to be divided, two-fifths to Bates and three for the amount found due; that the plaintiff fifths to the plaintiff ; that on the 20th of be adjudged to be the owner of the portion February, 1900, the said Bates platted a por- of said property now held by said Bates, and tion of said land as lots and blocks of the that the title of plaintiff to said property be town of Parma, Canyon county; that said declared and adjudged good and valid as Bates filed said plat with the county recorder against Bates; that plaintiff be adjudged to of said county; that on or about the 26th be the owner of that portion of said real esof January, 1901, said Bates platted another tate now held by the Parma State Bank and portion of said land as lots and blocks of the that said deed to the bank is a mortgage said town of Parma and filed said plat with only; that Bates be required to reconvey to .the county recorder; that numerous lots of the plaintiff by warranty deed that portion said real estate so platted were sold under of the property now held by him, and for said agreement by said Bates and the pro- costs. ceeds were applied to the payment of said The bank did not answer. By the answer mortgage debt until the mortgage debt was of defendant Bates, a number of allegations reduced to the sum of $250; that in the of the complaint are admitted and others de month of June, 1903, said Bates and the nied. The answer admits the return of the plaintiff made an oral agreement in regard to deed alleged to have been returned to the the division of the proceeds of the sale of defendant by the plaintiff in January, 1900, the then remaining portion of said real es- but denies that said deed was returned to tate after said mortgage debt incumbering the defendant under the agreement alleged, said property should become liquidated; that and avers that the plaintiff returned said after said debt should be liquidated, it was deed to the defendant for a valuable con. agreed that the remaining portions of said sideration and with the full intent and purland sold by Bates was to be divided equal- pose of vesting the title to said real estate ly, one half received therefor was to be paid described therein in the defendant, and that to plaintiff, and Bates was to retain the after the delivery of said deed, the plaintiff other half; that under said agreement Bates had no right, title, or interest in or to said paid said mortgage debt and paid to plain-property or to any part thereof; admits that tiff the sum of $1,100 out of the proceeds of since the delivery of said deed defendant has the sale of certain portions of said real es- sold portions of said property and has paid tate; that since the last-mentioned agree off a part of the mortgage indebtedness ment the defendant Bates bas sold other against said property, but denies that the inportions of said real estate, the amount of debtedness was reduced to the sum of $250 or such sales being unknown to the plaintiff to any sum less than $750; denies that in and the proceeds of which have been re- the month of June, 1904, or at any other tained by the said Bates, and no account of time or at all, the plaintiff made a new or same has been made by him to the plaintiff ; any oral agreement or any agreement whatthat there has been sold by said defendant to ever with defendant in regard to the divivarious and sundry purchasers certain lots sion of the proceeds from the sale of the (describing them) of the land so platted ; that then remaining portions of said property; on the 12th day of November, 1904, the said denies that defendant agreed that after said Bates and his wife executed a deed to the mortgage debt was liquidated that the reParma State Bank, one of the defendants, to maining portions of said land should be disecure the payment of $4,341.30 and convey- vided equally between the plaintiff and deed by said deed a considerable portion of said fendant or in any other manner, or that dereal estate (describing a part of it by legal fendant made any agreement with the plainsubdivisions and a part by lots and blocks); tiff in regard to the proceeds of said propthat upon the receipt of said deed by said erty; denies that he paid said mortgage debt bank, it executed to said Bates a contract and avers that a large portion thereof was to reconvey the said property upon certain taken up by executing a new mortgage on conditions set forth in such agreement, which said property, which new mortgage remains contract was attached to and made a part of unpaid ; admits that defendant had sold porthe complaint; that since the execution of tions of said property and had made no acsaid contract, said bank has conveyed to counting to the plaintiff, and avers that he divers purchasers portions of said property was under no obligation to account to plain(describing it by lots and blocks); that the tiff for any portion of the proceeds of the sum of $4,341.30, for the payment of which 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 | Rates. 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 property described in the decree is as the defendant to give him some money, and follows, to wit: “The southeast quarter of that on account of the relationship and the northwest quarter, the southwest quarter friendship existing between the plaintiff and of the northeast quarter, and the north half the defendant at that time, the defendant of the southeast quarter of section 9, in town. agreed to give plaintiff some money, which ship 5 north, of range 5 west, of the Boise should be one-half of the profits on certain meridian, in Canyon county, Idaho, excepting lots to be sold, and defendant has since said one lot deeded to James B. Mansell situated time given plaintiff certain moneys, but al- in the said southeast quarter of the northleges that the same was a gift and was not west quarter, containing one acre, more or paid to the plaintiff on account of any agree-less, and one tract of land situated in the ment which the plaintiff had with the de- said northwest quarter of the southeast quarfendant, and that there was no considera- ter deeded to the Oregon Short Line Railroad tion whatever for defendant's promise in Company, containing one acre, more or less, that regard, and prays that plaintiff take and excepting also lots 1, 2, 3, 4, 5, 6, 7, 8, 9, nothing by his action.

10, 11, and 12 of block 27; and lots 1, 2, 3, 4, Upon the issues thus made, the court ap- 5, 6, and 7 of block 26; lots 1, 2, 3, 4, and 5 pointed a referee to take the testimony and of block 28; lots 1, 2, 3, 4, 6, 7, 8, 9, 10, and 11 make full and complete findings upon the of block 34; lots 4, 6, 8, 9, 10, 11, and 12 of several issues made by the pleadings, which block 35; lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, the referee proceeded to do, and made his re- and 12 of block 37; lots 1, 2, 3, 4, 5, 6, 7, 8, 9, turn to the court. Counsel for appellants 10, 11, and 12 of block 38; lots 3, 4, 5, 6, 7, 8,

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