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the charge was given in open court, and in the judgment, on account of such allowance, expresence of counsel for both parties. That it

ceeds the amount for which the justice court

could have rendered judgment. is proper to allow written instructions to go to the jury room, see People v. Cummings, 57 Appeal from district court, Salt Lake counCal. 88. In the absence of contrary statutory

ty; before Justice C. S. Zane. direction on the subject, the instructions giv

Action by McCormick Harvesting Machine en by the court to the jury in writing may,

Company against John A. Marchant and othin the discretion of the court, be taken with ers. There was a judgment in a justice them to their room when they retire to de

court for plaintiff for $444.27. Upon a trial liberate.

de novo in the district court, there was a Differences of climate and locality are to be judgment by default for plaintiff for $299, considered in determining the liability of mu

and costs taxed at $21.90, and, from an order nicipalities for their failure to exercise care

denying a new trial, defendants appeal. Rein removing ice and snow from their walks.

versed. Each case must be considered with reference W. I. Snyder and Barlow Ferguson, for to the climate of the place. In Minnesota, appellants. Rawlins & Critchlow, for rewhere snow and ice exist almost constantly spondent. through the winter season, to require municipalities to keep their walks absolutely free BARTCH, J. This action was originally of ice and snow would be highly unreasona- brought before a justice of the peace to reble. But in other localities and in a warmer cover a certain sum of money due on two climate, like Utah, where snow and ice, al. promissory notes. The justice rendered judgthough not unusual, are by no means con. ment for the amount sued for, interest, and tinuous, to require the municipalities to keep costs, in the total sum of $141.27, in favor of their walks free of ice and snow, especially the plaintiff, and from this judgment the dein particular localities, is by no means un- fendants appealed to the district court, where reasonable. Jones, Neg. Mun. Corp. $ 100. judgment was rendered on the verdict of a

Upon a full examination of the case and au- jury against the defendants for the sum of thorities cited, we are of the opinion that $299, and costs taxed at $21.90. The plainthe judgment should be affirmed; and it is tiff alleges that there is due it the sum of so ordered.

$263.32, being the amount of two promissory

notes, besides interest thereon, and $15 attorSMITH and KING, JJ., concur.

ney's fee, and prays for judgment in the sum of $278.66. The defendants admit the

making and delivery of the notes, and aver (11 Utah, 68)

that the same were given as part purchase McCORMICK HARVESTING MACH. CO. price for one McCormick self-binding har. V. MARCHANT et al.

vesting machine furnished them by the plain(Supreme Court of Utah. Feb. 23, 1895.)

tiff; and then plead failure of consideration, New TRIAL-ABSENCE OF DEFENDANT — Suowing and breach of warranty, and claim that they OF DILIGENCE-JUSTICE OF THE PEACE JURIS

were damaged because the drive wheel be. DICTION-JuDOMENT FOR INTEREST - APPEAL TO DISTRICT COURT.

longing to said machine was worthless; that 1. On appeal from a judgment for plaintiff

the plaintiff agreed to replace it with a new in a justice court, judgment was rendered for one, but failed to do so; that there were no plaintiff by default. On motion for a new trial other wheels in the market, so that the deit appeared that the appeal had been pending for seven years; that, a few days before the

fendants were unable to purchase one; that day the case was set for trial, defendants' at- they had offered a rescission of the contract, torney consulted an attorney whose cases were and to return the property, and were still ahead of his on the calendar, and was told that

willing to return it; and that they had paid the case could not be reached until the day after that for which it was set; that the attorney

$100 on the machine, under the promise and then told defendants to appear on that day; and expectation that the bad wheel would be that, as soon as he found that the case would

made good, etc. The record shows that the be called on the day for which it was set, he sent a special messenger to notify defendants,

notes in question were given August 20, 1883; but that, owing to a change in the time card of that the complaint in the justice's court was the trains, and the impassable condition of the filed November 22, 1886; that summons was roads, defendants were unable to appear. Held,

issued on said last-named day; that the justhat it was error to refuse a new trial. 2. Under Comp. Laws 1888, § 3020, limit

tice rendered judgment against the defending the jurisdiction of a justice of the peace to ants for the sum of $144.27; that the case cases in which the sum claimed is less than

was set for trial in the district court on the $300, a justice cannot include in his judgment interest on the sum claimed from the time suit

5th day of December, 1893, and on this lastwas brought, if this makes the total amount of named day the case was called for hearing, the judgment more than $300. King, J., dis- when counsel for the defendants moved for senting. 3. The fact that the justice in such a case

a continuance until the next day, on the allows the interest does not deprive him of orig.

ground that he was not ready for trial, and inal jurisdiction, so as to render the judgment in support of said motion counsel made a void, and therefore unappealable.

sworn statement to the effect that on Satur4. On appeal from a justice court the district court may allow interest on the sum claim

day, December 2, 1893, he telephoned from ed from the time the suit was brought, though his office in Park City to an attorney in Salt

Lake City, who had three cases on the calendar to be tried before the one under consideration could be reached, to ascertain the state of the calendar, and was informed that the three cases would be tried, and would take a day each; that he was afterwards informed that one of those cases was continued on account of the death of an attorney; that he relied on the information so obtained as to the state of the calendar, and directed his clients to proceed to court with their witnesses on the day their case was set for trial, so as to be ready for the next day; that he had a case of his own which he thought would take the greater part of one day, but which was settled and dismissed, so that on the day this case was set for trial the other cases had all been disposed of; that on the afternoon of the day previous, as soon as he had learned of the unexpected disposition of the preceding cases, and that his clients' case would be reached on time, he sent word to them by special messenger, and received reply that they would start early in the morning from Peoa, in Summit county, and since had learned that they were on the way with their witnesses; that he could not proceed to trial without them; that he expected to prove a defense substantially as stated in the answer; that it was a matter of great expense to a poor man residing in said county to be in attendance at said court before trial two or three days, and therefore some leniency ought to be shown.

It appears that upon this statement the court continued the cause until 4 o'clock p. m. of said day, when a further continuance was asked until the next day, which was denied, and thereupon the case was tried, and judgment rendered, without any testimony on the part of the defendants. Thereafter counsel for the defendants made a motion for a new trial, and in support of this motion submitted a number of additional affidavits, showing, in substance, that when counsel telephoned the attorney in Salt Lake City about the condition of the calendar the court was three days behind its settings; that some of the witnesses proceeded to court by train, and some were compelled to go with private conveyance; that the time of running trains had been changed within a few days without the knowledge of the defendants, so that the train which, prior to the change, arrived at Salt Lake City at 11:20 a. m. did not arrive there, on the day of the trial, until 5 o'clock p. m.; that the wagon road on that day was almost impassable, so that it required double the usual time, which usual time was about seven hours, to make the trip; that, as soon as it was known that the case would be reached on the day it was set, the defendants and their witnesses exercised the utmost diligence to be present at the trial. It is also shown by the record that on the day of the trial counsel for the defendants offered to give this case the place of one of his own, set for the next day, which offer was refused.

The additional affidavits having been submitted, and the motion for a new trial having been heard, the court entered an order overruling and denying the motion. From this order the defendants prosecuted their appeal.

We will first consider the question whether the court erred in refusing a continuance. It may be observed that about seven years elapsed from the time this suit was brought in the justice's court until it was finally set for a trial in the district court, and that the cause of this long delay is not disclosed by the record, but it is reasonable to presume that the plaintiff did not use proper diligence to bring the case to trial. The defendants had set up a meritorious defense, and there is nothing in the record which indicates that they caused this long delay, or that on the occasion in question they were seeking unnecessary delay. They were advised by counsel when to appear in court. He was misled by the condition of the court's calendar, and, while it was his duty to consult with the court about the matter instead of an attorney, still it would seem that, by his sworn statement, he made a sufficient showing to grant a continuance until the next day, which was all that was asked. This, however, was within the sound discretion of the trial court, under the cir. cumstances, as they then appeared, and, if nothing further were shown, this court would hesitate to disturb the ruling then made; but the additional affidavits which were submitted after the trial, showing the efforts of the defendants to be present in time to make their defense, present a case which merits careful consideration, and it must be weighed in the light of the cir. cumstances surrounding it, for there is no general rule which governs a case of this character. As we regard the facts presented, it seems clear that the defendants in good faith endeavored to be present at the trial, and were innocently misled and failed to be there without such fault as should preclude them from having their day in court. We are therefore inclined to hold, under the peculiar circumstances of tuis case as presented by the record, and not being advised of the undercurrents which may have surrounded the contentions of the parties, that the defendants made such an af. firmative showing, which is in no way controverted in the record, as fairly entitles them to a new trial.

The next question is whether the judg. ment rendered by the justice of the peace is in excess of his jurisdiction, and, if so, whether the district court acquired jurisdiction over the case on appeal. Under our statute, every justice of the peace has jurisdiction in "an action arising on contract for the recovery of money only, if the sum claimed is less than three hundred dollars." Comp. Laws Utah 1888, $ 3020 The "sum claimed” is the test of the justice's jurisdic

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tion in such cases, and it may be any sum A note is given as evidence of the debt, and less than $300. The amount, therefore, the interest is only an incident to it, and is claimed in the plaintiff's complaint deter- justly provided for as compensation for mines the jurisdiction of the justice, and delay in payment. Of this, therefore, the when jurisdiction has once attached it will payee should not be deprived by an appeal not be ousted by the rendition of an erroneous judgment. As a general, though not an ceived why the contract between the parties invariable, rule, when jurisdiction of a case should be affected by such appeal, and the has been once properly and lawfully ac- interest thereby forfeited. Wells, Jur. $ quired, no subsequent fact in that particular 100; Raymond Strobel, 24 Ill. vnt; case will defeat such jurisdiction; and Trego v. Lewis, 58 Pa. St. 463; Mitcheltree when a justice of the peace has jurisdiction v. Sparks, 1 Scam. 198; Rives v. Kumler, 27 of a cause, and erroneously renders judg- Ill. 290; Solomon v. Reese, 34 Cal. 28. From ment in excess of his jurisdiction, such judg- an examination of the facts and circuni. ment may be corrected by proper proceed. stances shown by the record in this case, ing before such justice, or, on appeal to the we are of the opinion that the judgment rendistrict court, it may render a proper judg- dered by the justice was in excess of his ment. Wells, Jur. $ 79; 12 Am. & Eng. Enc. jurisdiction; that such excess, however, did Law, pp. 283, 284, 426; 1 Black, Judgm. $ 243; not oust him of jurisdiction; that after a Mollan v. Torrance, 9 Wheat. 537. In the district court acquires jurisdiction, by apcase at bar the justice erred in rendering peal, from a justice of the peace, it may judgment in excess of the amount author- render judgment upon trial for any amount ized by statute. This was caused by in- found due within the jurisdiction of the cluding within said judgment the interest justice, and, in addition thereto, for the on the notes which accumulated after suit interest on such amount which has accumuwas brought. Such error did not oust the lated since the commencement of the action justice of jurisdiction, because the jurisdic- before the justice, and at the rate provided tion was determined by the amount claimed in the note or contract; and that the defendin the complaint, and the defendants had an ants are entitled to a new trial. The cause adequate remedy by motion or appeal. The is remanded and reversed, with directions question now is, ought the district court to to the court below to grant a new trial, and have included such interest in its judgment, | proceed in accordance herewith. it having acquired jurisdiction by appeal? In other words, can a district court, in a SMITH, J., concurs. case like the one at bar, render judgment

KING, J. I concur in the opinion, except for a sum in excess of the jurisdiction of the justice of the peace? In the district

as to that portion restricting justices of the court such a cause must be tried de novo,

peace from giving judgment for accumulathe same as any other cause (Comp. Laws

tive interest, when the sum claimed was Utah 1888, § 3658); and, upon principle, it

within their jurisdiction. is difficult to perceive why that court, being a court of general jurisdiction, should not do complete justice between the parties, in

(11 Utah, 78) an action upon contract for money only,

FENTON v. BLAIR et al. where the justice had jurisdiction when the (Supreme Court of Utah. Feb. 23, 1895.) suit was commenced before him, and ren- COUNTY INDEBTEDNESS — LIMITATION-POWERS OF der judgment in excess of the justice's ju

County COURT-WARRANTS. risdiction, when such excess is for interest

1.1 Comp. Laws, p. 298, $ 187, empowers only which has accrued on the notes or con

the county court to lay out and maintain pub

lic roads and perform other acts from which intract subsequent to the rendition of the debtedness must arise, but does not affirmatively judgment by the justice. Upon what prin- confer power to create any indebtedness. Id. ciple of justice should a party who has

p. 293, § 173, provides that no county shall in

cur any indebtedness or liability in any manobligated himself by contract for the pay

ner, or for any purpose, to an amount exceedment of money be allowed, after judgment ing, etc. Id. p. 306, § 195, provides that the has been entered against him in a justice's county court must not contract liabilities except court, to avoid the payment of interest on

in pursuance of law. Id. p. 308, $ 200, pro

vides that warrants drawn by order of such such obligation, for an indefinite period of court must specify the liability for which they time, by an appeal to the district court? If are drawn. Held, that the statutes by implian appeal from a justice's court would pro

cation confer on the county court the power to

create indebtedness against the county, duce such a result, it would defeat the very

2. Under 1 Comp. Laws, p. 293, § 173, proterms of the contract, as expressed between viding that no county shall incur any indebtedthe parties. We do not so understand the ness exceeding in any year the total amount of law. Nor would such an interpretation be

its income for the two fiscal years immediately

preceding the incurring of such indebtedness; in barmony with justice and fair dealing, and Id. p. 306, $ 195, providing that the liabil. because it would encourage appeals and liti. ities contracted by the county court must not gation on the part of dishonest debtors, who

exceed in any fiscal year the income and rev.

enue of such county for the two fiscal years imwould thereby avoid the payment of inter

mediately preceding the incurring of such inest and delay the payment of the principal. debtedness; and Id. p. 296, § 182, requiring the county clerk to make up a statement of the payments of warrants on the date when the financial condition of the county at the end of contract was made amounted to the sum of each fiscal year,-the amount of indebtedness which the county court can in any way create

$24,109.45; that the excess of warrants over cannot at any time exceed the revenues of the the funds in the treasury to meet the same current fiscal year beyond the amount of the

was $329,561.66; that this amount of indebtcounty revenue and income for the two years immediately preceding.

edness, with that which had been incurred 3. Since taxes for the current year are, in as aforesaid, for which warrants had not contemplation of law, collected as soon as the been drawn, made the total indebtedness levy is made, the allowance of claims against

against the county $154,564.66. The defendthe county equal to the tax revenue for the current year is not a creation of indebtedness or

ants further allege that the plaintiff presentliability against the county.

ed his claim on the 31st day of December, 4. Where the limit of indebtedness allow

1894, and that the amount of warrants outed by law to be created by the county court has been reached, such county may issue warrants

standing and unpaid at that time was $427,for future claims as they arise, as soon as an

550.88, and that there were funds in the equal amount of the legally issued outstand- treasury available for paying such warrants ing warrants have been redeemed.

to the amount of $22,715.48. Defendants Application, on the relation of S. F. Fen- further allege that the total revenue and inton, against Jacob B. Blair and others, as come of Salt Lake county for the years 1892 members of the county court of Salt Lake and 1893 amounted to $326,748.0v. county, for a writ of mandamus. Denied. A stipulation of facts was agreed upon by W. H. Dickson and Allen & Pence, for ap

counsel for the respective parties, which plicant. C. 0. Whittemore, Co. Atty., for

shows the following facts, which we deem defendants.

material: On the 31st day of December,

1894, the total outstanding warrants of Salt SMITH, J. This is a proceeding begun

Lake county unpaid were $427,350.88. The originally in this court to obtain a writ of amount of moneys on hand was $22,715.48. mandate against the defendants, requiring The amount of taxes uncollected, but which them, as the county court of Salt Lake coun- were admitted to be collectible for the year ty, to issue to the plaintiff a county warrant 1894, was $18,167.39. The income and reve. for the sum of $161.56, alleged to be due the nue for the county for the years 1892 and plaintiff for certain labor done and material 1893, excluding poll tax paid in labor, and furnished to the county of Salt Lake on and excluding the county school taxes, amounted after the 15th day of November, 1891, and to $326,748.06; but, of this amount, $19,770.99 prior to the 17th day of December, 1894. was for tax levied in 1891, and collected in It is alleged, in substance, that the plaintiff 1892. That poll tax paid in labor to the made a contract with the defendants’ prede- county during 1892 and 1893 was $11,234.50. cessors in office, then constituting the county That the county school tax for 1892 and 1893 court of Salt Lake county, to furnish and amounted to $185,712.68. That 4 per cent. deliver certain electrical appliances and do of the entire taxable property of the county certain labor for the sum of $161.58; that he of Salt Lake in the year 1893 was $1,938,performed this labor prior to the 17th day 674.16. That the total county tax assessed of December, 1894, and on the 19th day of for 1894, excluding poll tax paid in labor, January, 1895, the defendants in the mean- and excluding school tax, was $122,727.74; time having qualified, the plaintiff having and the revenue from other sources was $13,presented his account, duly verified, as re- 355.06. That there was cash in the hands quired by law, and prayed the allowance of of the treasurer January 1, 1894, $7,602.16. the same, it was rejected by the county court. The case presents two questions: First, The defendants admit that the contract was Whether or not the county court of Salt Lake made as alleged, and that the plaintiff per- county has any power, under existing conformed the labor and furnished the material gressional and territorial laws, to create in. for which his claim was presented; admit debtedness against said county. Second. If that the county had not paid the claim, or such power exists, what is the limit of indebtany part of it, and that on the 19th day of edness, or what the amount of indebtedJanuary, 1895, the plaintiff made demand of ness that can be so created ? the defendants that they allow and pay the An examination of the congressional and said amount, and that they refused to allow territorial laws nowhere discloses any express or appropriate for or pay the claim. It is authority to incur indebtedness. The duties then set out that the reason why such allows and powers of the county court are set out ance, appropriation, or payment is not made at large in section 187, p. 298, of the first is that, at the time the contract was made, volume of the Compiled Laws. The county there were warrants outstanding and unpaid court possesses the power to supervise the drawn on the treasury of Salt Lake county conduct of officers; to divide the county into under the direction of the county court, school, road, and other districts; to estabamounting in the aggregate to the sum of lish, abolish, and change election precincts; $353,674.11, and, in addition thereto, other to lay out, maintain, control, and manage liabilities incurred by said county court, public roads, turnpikes, ferries, and bridges; amounting to $125,000; that the funds in to provide for the care and maintenance of the treasury of the county available for the the indigent sick or otherwise dependent poor; to provide a working farm and work- , tered, and thereafter paid in the order of its shops in connection with the county hospital | registration.” These are substantially all of or poorhouse; to employ the inmates there- the statutes bearing upon the subject of the of; to provide suitable rooms for county of- power of the county court to create an inficers; to purchase, lease, or hold real or per- debtedness; and while they nowhere, in exsonal property necessary for the use of the press terms, authorize the county court to county; to cause to be erected or rebuilt and incur such indebtedness, they nowhere exfurnished the courthouse, jail, hospital, and pressly forbid it; and it would seem from such other public buildings as may be neces- the nature of the duties imposed upon the sary; to sell property belonging to the coun- county court, the limit of their power to ty; to examine and audit the accounts of pub- levy taxes, and the language of the sections lic officers; to settle and allow all accounts we have cited above, that the power to create legally chargeable against the county and or- an indebtedness within certain limits is un. der warrants to be drawn on the treasury questionably implied and intended by the thereof; to levy taxes on taxable property of legislature. We think there is authority unthe county; to maintain, regulate, and gov- der these statutes to create an indebtedness. ern public pounds and pound keepers; to So the next question, and the more difficult equalize assessments within their county; to one, is, what is the limit of the indebtedness? control and direct the prosecution and de- Section 182, p. 296, 1 Comp. Laws, in the fense of all suits to which the county is a fifth subdivision, provides, among other duparty; to insure the county buildings in the ties of the county clerk, “that the county name and for the benefit of the county; to fix clerk must keep an accurate account of all the price of advertising; to adopt a seal for receipts and expenditures of his county, also their court, and enforce rules for the govern- of all debts payable to and by said county; ment of their body; to make annual reports at the first session of the court held in each of the financial condition of the county; to year the clerk shall submit to the said court provide for the destruction of wild animals, a statement showing the total amount renoxious weeds, and insects; to establish ceived from each source of revenue during county office for the transaction of the busi- the fiscal year ending on the thirty-first day ness of the county; to fill vacancies by ap- of December last preceding, the balance, if pointment; to provide for the preservation any, in the treasury at the close of the preof the public health; to prevent the bringing vious fiscal year; the expenditures during the of indigent persons into the county; to pro- fiscal year just closed, specifying separately vide for working prisoners under sentence in the total amount paid to each officer and the the county jail; to provide for burying the total amount for each and every disburseindigent dead; and to make the necessary ment, the balance on hand, if any, together local police and sundry other regulations not with a statement of all the debts payable to in conflict with the general laws. Section 173, and by the said county.” The contention of p. 293, provides that “no county shall incur the plaintiff is, in brief, that the county court any indebtedness or liability in any manner,

in each year may expenu its revenue color for any purpose, to an amount exceeding lected in that year, and may incur an indebtin any year the total amount of its income edness in excess of the revenue equal to the and revenue for the two fiscal years imme- revenue for two years immediately preced. diately preceding the incurring of such in- ing, and that this process may be repeated debtedness. Any indebtedness or liability from year to year until the entire indebtedincurred contrary to this provision shall be ness should equal the 4 per cent. limit fixed void." Section 174, p. 294, provides: “All by the act of congress. It is intimated in contracts, authorizations, allowances, pay- the brief of counsel for the plaintiff that the ments, and liabilities to pay, made or at- legislative powers of the territory could not tempted to be made, in violation of this act, be exercised to limit the power of the county shall be absolutely void, and shall never be court within the 4 per cent. fixed by the act the foundation of a claim against such coun- of congress; that otherwise their actions ty." Section 195, p. 306, provides: "The would be in conflict with that act of congress. court must not, for any purpose, contract We think this does not necessarily follow. debts or liabilities, except in pursuance of The act of congress is simply a limitation law, nor shall such indebtedness or liability, upon the legislature of the territory, is not a in any manner or for any purpose, exceed in grant of power to the legislature, much less any fiscal year the income and revenue of to the county court. It forbids the legislature such county for the two fiscal years imme- to authorize a greater indebtedness than 4 diately preceding the incurring of such in- per cent., and, being directly applicable to debtedness.” Section 200, p. 308, provides: the territory, of course forbids the municipal “Warrants drawn by order of the court on corporations in the territory from incurring the county treasury must specify the liabili- for any purpose an indebtedness in excess ties for which they are drawn, and the funds of 4 per cent. The question is, what is the from which they are to be paid. The treas. limit that the territorial legislature has fixed ? urer must pay the warrants in the order of An examination of the statutes we have their presentation. If the fund is insuffi- cited, including that in regard to the duty cient to pay any warrant, it must be regis- of the county clerk, together with the provi

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