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sions requiring the county court to publish a statement of the indebtedness of the county at the end of each year, as provided in subdivision 22 of section 187, indicates pretty clearly what the intention of the legislature was as to the limit of indebtedness. The language of the first section fixing the limit is "that no indebtedness or liability shall be incurred in any manner, or for any purpose, in any amount exceeding in any year the total amount of its income and revenue for the two fiscal years immediately preceding." The other section (195) is almost in the same language. The language is: “The court must not contract any debts or liabilities except, in pursuance of law, nor shall such indebtedness or liability, in any Nanner or for any purpose, exceed in any fiscal year the income and revenue of such county for the two fiscal years immediately preceding." It will be observed that the provision is not that the amount of indebtedness or liabilities created in any fiscal year shall not exceed the income for the two preceding years, but that the entire liabilities and indebtedness for any purpose contracted in any manner shall not exceed that amount. Taken in connection with the provisions which require the financial condition of the county to be made up at the end of each fiscal year, the statement to be rendered at that time, our conclusion is that the intention of the legislature was to limit the power of the county court to issue warrants at any time, for any purpose, or in any manner, or to contract any debts or liability beyond the revenues of the current fiscal year in excess of the revenue and income for the two years immediately preceding.

We agree with counsel ror the plaintiff that the allowance of claims against the county equal to the revenues for the current year is not a creation or incurring of any indebtedness or liability. While the taxes for the current year are not collected until the end of the year, they are undoubtedly, after they are levied, regarded as a legal certainty, and are to be treated as if already collected, and allowances may be made against such taxes to the extent of such levy. The question may be presented as to the power of the county court to make allowan. ces prior to the time of making the tax levy for the current year even to pay the current expenses of the county. We are not called upon to decide that question in this case, although it was somewhat argued before us upon the hearing. The stipulation of fact shows that, at the time plaintiff presented his claim to the county, the total amount of outstanding warrants of the county was $127,550.88; that the total revenue, including poll tax of the county, for the years 1892 and 1893, was $337,982.56. It is very clear to our mind that the school tax should not be reckoned as any part of the county revenues in fixing the limit of indebtedness. Nor do we think it material that a considerable portion of the warrants outstanding on the 31st day

of December, 1894, or rather of those issued during the year 1894, was for work and labor done and contracted for during the year 1893. If we are right as to the limit of indebtedness, it is wholly immaterial when the indebtedness accrued. When it reaches the limit, the power to contract further indebtedness ceases. In our opinion, all warrants drawn upon the county treasurer during the year 1894 at any time when the amount of warrants outstanding exceeded $337,982.56 were absolutely void, and that, inasmuch as that amount and a great deal more of the warrants were in existence when the plaintiff presented his claim for allowance, we have no authority to direct the county court to issue a warrant for the sum. Section 175, p. 294, of the county government act (Comp. Laws) provides expressly that members of the county court shall be liable in person for any violation of the provisions of the act in regard to allowances.

A great deal of apprehension was expressed in the argument as to the conduct of the county government for the future until the revenues for the year 1895 were available. It is not perhaps necessary to the decision of this case that we should make any suggestion in regard to these future claims. However, we are of the opinion that, as fast as the county courts redeem any outstanding warrants that have been legally issued, they may issue an equivalent amount of warrants; and, if the revenues for the years 1893 and 1894 exceed those of the years 1892 and 1893, the difference might be allowed during the year 1893; but we are clearly of the opinion that by no means of juggling with the figures and the financial statement of the county can the debt limit be increased at any time in any year exceeding the entire revenue for the two years immediately preceding the time such debt is created.

It results from these views that the application of the plaintiff in this case must be denied, and the proceeding dismissed; and it is so ordered.

MERRITT, C. J., and BARTCH and KING, JJ., concur.

(11 Utah, 88) CHALMERS v. TRENT. (Supreme Court of Utah. Feb. 23, 1893.) Suit FOR PARTITION - Cross COMPLAINT-BRING

ING IN NEW PARTIES. 1. Comp. Laws p. 326, 88 3479, 3480, provide that when a tenant in common sues for partition the interests of all persons in the prop erty must be stated in the complaint, so far as known to plaintiff, and, if unknown, that that fact must also be stated. 2 Comp. Laws, $ 3231, provides that, when a defendant seeks affirmative relief with reference to the matter in suit, he may file a cross complaint in addition to his answer, and that such cross complaint "must be served on the parties affected there. by." Held, that in an action for partition, where plaintiff failed to make all interested

persons parties, or to state that there were any plaint further stated that there were no other unknown parties, and defendant filed a cross liens or incumbrances upon said property apcomplaint seeking affirmative relief, and joined as defendants all parties interested, including

pearing of record, and that no persons other those omitted by plaintiff, it was error to strike than plaintiff and defendant Trent were interthe cross complaint from the files, though plain- ested in said premises, as owners or othertiff amended his complaint by inserting the

wise, and prayed for a partition, and, if a necessary parties.

2. New parties may be brought in by de partition could not be had, that they be sold fendant, by a cross complaint, where it is shown and the proceeds divided. The complaint was · that they are necessary to the determination of

verified by William M. Bradley, one of the the cause. 3. It is no objection to allowing a cross

attorneys for the plaintiff. To this the decomplaint adding new parties to stand, after

fendant Lamartine C. Trent made answer, the complaint has been amended by adding and admitted that he and the plaintiff were the same parties, that it would tend to confuse and embarrass the court, since the original and

owners in fee simple as tenants in common, cross complaint are generally considered as one

and that Delome Trent was his wife, and had cause, and a hearing on the cross complaint is an interest in said premises by way of dower. in legal effect a hearing of the original cause.

Defendant further admitted that he claimed Appeal from district court, Salt Lake coun

the right under his attachment upon the plainty; before Chief Justice Samuel A. Merritt. tiff's interest, but denied that plaintiff had Action by William J. Chalmers against

any right, title, claim, or interest in his Lamartine C. Trent for the partition of real (Trent's) one-half interest by virtue of any estate. From an order sustaining a demur

writ of attachment. There was a further de. rer 'to his cross complaint and striking it

nial that any writ of attachment had ever isfrom the files, defendant appeals. Reversed.

sued out of the district court at the suit of

plaintiff. It was further averred in the anBrown & Henderson, for appellant. Ben

swer that the defendant Trent had an internett, Marshall & Bradley, for respondent.

est in the said land by way of a lien thereon

for taxes paid by him; and alleged that the KING, J. This is an appeal from an order plaintiff was a married man, and that his wife entered in the Third judicial district court dis- resided in Chicago, and that she claimed an missing and striking from the files defend- interest in said estate by way of dower; that ant's cross complaint. The facts, as disclosed Frazer & Chalmers, a corporation, were inby the pleadings, are substantially as follows: terested in said premises, and had a lien upon Plaintiff and defendant, Lamartine C. Trent, the defenuant's interest therein by way of an at and before the time of the filing of the attachment, and that the same was of record original complaint, were joint owners of a in the city where the property was situate; part of lot 2, block 72, plat“A," Salt Lake City, and denied positively that there were not and plaintiff was a married man, and resided other claims against the land than those menwith his wife in Chicago. Trent was also tioned in the complaint. A further averment married, and, with his wife, Delome Trent, was in the answer, that plaintiff, at the time resided in Salt Lake City. At the time the of the filing of his complaint, knew of said original complaint was filed, Frazer & Chal- interest and claim of his wife and of said mers, a corporation of the city of Chicago, corporation, and stated that the necessary had a lien upon Trent's undivided one-half parties to the termination of the case and for interest in said premises, resulting from an proper partition were not before the court; attachment; and Trent had a lien upon Chal- and stated that he, defendant, had never obmer's one-half interest by way of an attach-jected to a proper partition, and was perfectment issued in an action brought against ly willing that it should be made, and insisted Chalmers by the former. No other incum- that it might have been done without the exbrances were upon the property, and Trent pense of an action at law; and further, that and Chalmers were the owners of the land the defendant, by reason of the necessary in equal proportions, subject to these claims. parties not being before the court to a comIn July, 1894, plaintiff, William J. Chal- plete determination of the suit, objected, and mers, filed his complaint herein against Trent took advantage of the misjoinder by way of and his wife. Neither the corporation of answer, the same not appearing on the face of Frazer & Chalmers nor the plaintiff's wife the complaint. At the same time defendant were made parties. The plaintiff avers that filed a cross complaint, making William J. Trent and plaintiff are owners in fee simple, Chalmers, his wife, Joan Pinkerton Chalmers, as tenants in common, of the property; that the said corporation of Frazer & Chalmers, Delome Trent was the wife of defendant and Delome Trent, his wife, defendants, in Lamartine C. Trent, and had an interest in which it was alleged that plaintiff had a lawsaid property by way of dower. He further ful wife living, and that she had an interest alleged the interest that Trent claimed under in the premises; that Frazer & Chalmers, his writ of attachment, and averred that the a corporation, had an interest in the premises; plaintiff had an interest in said land by vir- that all of these parties were necessary to tue of the writ of attachment issued out of the partition. And the cross complaint set the Third district court at the suit of the out, in addition, substantially what was conplaintiff against the defendant Lamartine C. tained in the defendant's answer, and also the Trent, upon the latter's interest. The com- interests of the respective parties in full, and

prayed for a partition. At the same time the record, upon which defendant relies for Delome Trent answered plaintiff's complaint, a reversal. It is unnecessary to set them and admitted that she was defendant's wife, out specifically, but, in substance, they deand that she had an interest in the premises clare that the court had no authority to make as his wife. She denied that there were no such an order, for the reason that it was ilother liens of record, other than those set legal and without right, and assumed to deny out in the complaint, and claimed that the defendant the right to file a cross complaint, proper parties were not before the court, upon which he had under the statute of the terwhich a decree of partition could be made. ritory, and because at the time that the cross She alleged that she was ready to join in ask- complaint was filed there was no complaint ing for partition if the proper parties were before the court upon which a proper decree before the court, so that the land, if a sale of partition could be made; and further, were necessary, might be disposed of free that the court erred in dismissing the cross from all incumbrances and claims. She affirm- complaint, and that the judgment and order atively alleged that William J. Chalmers, made therein were not supported by the eviat the time of the filing of the complaint, dence upon the hearing of the motion to disknew of the interest of his wife, and of Frazer miss the same. & Chalmers, and that, as defendant believed, From the foregoing it will be observed that it was an attempt on the part of the plaintiff the question presented for determination is, to have said premises sold freed from defend- under the circumstances as shown by the ant's interest and from defendant Lamartine proceedings in the lower court, was it error C. Trent's interest, and at the same time to to dismiss and strike from the files defendhave the premises sold or partitioned, subject ant's cross complaint? It seems to be conto the rights of plaintiff's wife and of said cor- ceded by the plaintiff, from the efforts subporation, and to make unnecessary costs and sequently made to amend, that in his origi. expenses. On the day these answers and nal complaint all of the parties necessary to cross complaints were filed an order was en- the complete determination of the controvertered by the court that summons be issued on sy and in order to make proper partition were the cross complaint against the defendants not before the court. Sections 3479 and 3480 therein. Later, on plaintiff's motion, he was of the Compiled Laws of Utah (page 326) granted 20 days to answer the cross com. are as follows: “When several cotenants plaint. Before the expiration of this time, he hold and are in possession of real property filed and served a motion for an order of court as parceners or joint tenants in common, granting leave to file an amended complaint, in which one or more of them have an estate and in support thereof filed an affidavit by of inheritance, or for life, or lives, or for William M. Bradley, one of his attorneys, in years, an action may be brought by one or which it was averred that through inadvert- more of such persons for a partition thereof, ence there was a mistake in the allegations according to the respective rights of the perof the original complaint which resulted in sons interested therein, and for a sale of such the failure to set forth the interests of all par- property, or a part thereof if it appear that ties interested in said premises, and the fur- a partition cannot be made without great ther statement that plaintiff's wife and Frazer prejudice to the owners." "The interests of & Chalmers were necessary parties to the all persons in the property, whether such a determination of the matter. The affidavit person be known or unknown, must be set further stated that these omissions in the orig- forth in the complaint, specifically and parinal complaint and the misjoinder of parties ticularly as far as known to the plaintiff, were not intentional, and asked to be allowed and if one or more of the parties, or the to file an amended complaint herein, and that share or quantity of interest of any of the process issue thereon. A few days later the parties, be unknown to the plaintiff or be unplaintiff filed and served notice that at the certain, or contingent or the ownership of time stated he would move for an order dis. the inheritance depend upon an executory missing and striking from the files the cross devise, or the remainder or a contingent recomplaint of defendant Trent, and on the inainder, so that such parties can not be same day demurrer to the cross complaint named, that fact must be set forth in the was filed by plaintiff on the ground that it complaint." All of the necessary parties not did not state facts sufficient to constitute a being before the court, the defendant, Trent, cause of action. Two days thereafter plain. had the right to file his cross complaint, and tiff filed his proposed amended complaint, bring them in, in order that a partition might bringing the same parties in as defendants, be made. Section 3231 of the Compiled Laws who were made defendants in the cross com- of Utah (volume 2) provides that: “Whenplaint. On the 11th of October, 1894, these ever the defendant seeks affirmative relief motions came on to be heard before the against any party relating to or depending court, and the court made an order permit- upon the contract or transaction upon which ting plaintiff to amend his complaint, and the action is brought, or affecting the propgranted the order dismissing the defendant erty to which the action relates, he may, in Trent's cross complaint, and striking it from addition to his answer, file at the same time, the files.

or by permission of the court, subsequently, Nine assignments of error are set forth in a cross-complaint. The cross-complaint must be served upon the parties affected thereby, his cross complaint, would have stated such and such parties may demur or answer there- a cause of action as warranted, if the facts to as to an original complaint." Theright, by were proven, equitable interposition. It is the Code, was unquestionably given to the fundamental that when a case is brought in. defendant to file a cross complaint, and he to a court of equity full justice will be done availed himself of that right. He proceed- to all parties, and the matter completely aded in conformity to law, and by summons judicated, even though the court, by its own brought before the court all necessary par- motion, is compelled to direct the necessary ties in order that partition might be made. parties to be brought in. Defendant's cross He asked for affirmative relief, and to that complaint grew out of matters alleged in the extent became an actor. But it is contended original bill, and was directly and closely that plaintiff's counsel inadvertently omitted connected with the cause of action set up in from the original complaint those parties es- plaintiff's complaint. "The cross complaint sential to the complete determination of the may, however, and usually does, raise new matter, and that his amended complaint cor- issues relating to the subject-matter. It may rected this omission, and therefore no neces- present matters which arise between codesity existed for defendant's cross complaint. fendants, but which are not shown by the In answer to this it could be properly said original bill, and generally may be used to that defendant's cross complaint, having secure such molding and modification of the brought the necessary parties into court, dis- complainant's relief as to secure full relief pensed with the necessity of an amended to all parties.” Davis v. Cook, 65 Ala. 617; complaint. The Code gives no preference to

1 Beach, Mod. Eq. Prac. & 433. plaintiff over defendant. The latter may be- But it is argued by respondent that new come as much an actor, and receive the same parties cannot be brought in by a cross comaffirmative relief, as the former. If any ad- plaint. This doctrine was held in Missisvantage inures to the moving party, the one sippi, but a contrary view has been declared seeking affirmative relief, why should the in Illinois, Colorado, West Virginia, Tennescourt discriminate and deprive the cross com- see, and other states. Allen v. Tritch, 5 plainant of the advantage? It appears from Colo. 222; Hurd v. Case, 32 Ill. 45; Kanthe record that the plaintiff, his wife, and awha Lodge v. Swann (W. Va.) 16 S. E. 462; the defendants Frazer & Chalmers were non- Brandon Manuf'g Co. v. Prime, 14 Blatchf. residents of the territory. By the original | 371, Fed. Cas. No. 1,810. Judge Wheeler, in complaint, plaintiff had submitted himself to the last case cited, says “that the result of the jurisdiction of the court; but without what is thought to be the soundest reason a cross bill seeking relief he could have dis- and best-considered authorities is that, where missed his complaint as a matter of course. the cross bill shows that there is a party to Through the instrumentality of the cross the subject of litigation, as presented by it, complaint, such jurisdiction over his person

who has not before been made a party, nor was acquired as to enable the court to grant appeared to be a necessary one, and then such relief to defendant as the proof war- does appear as such, that party should be ranted. After the cross complaint was dis- brought in by the cross bill.” And it is held missed, there was nothing to prevent the in Illinois that the filing of a cross complaint plaintiff, if he desired, from dismissing his in a proper case is a matter that requires action. Unquestionably, this would have re- no permission. Beauchamp v. Putnam, 34 sulted in a hardship, if not a positive wrong, Ill. 378. And the same ruling was made by to defendant, Trent. Under the former chan- Judge Deady of the United States circuit cery practice the defendant's answer was in court. Neal v. Foster, 34 Fed. 496. It was all cases defensive only. A cross bill is usus argued earnestly that to permit a cross comally brought to obtain full relief for all the plaint and an amended complaint to stand parties, and for some affirmative relief re- would cause great confusion, and embarrass specting the matters of the original bill. the court in rendering a decree. We do not cross bill will be dismissed where it seeks no think this argument sound. For many purdiscovery, and makes no defense which is poses the original and cross complaint are not equally available by way of answer to considered as one cause. Ordinarily, they the original bill, or by way of amendment are heard together, and the rights of all parto the answer. Weed y. Smull, 3 Sandf. ties in respect to the matters litigated are Ch. 273; Hook v. Richeson, 115 Ill. 431, 5 settled in one decree. If the cross complaint N. E. 98. It is a cardinal rule in equity be set for hearing, the legal effect is to set pleading that where the defendant seeks af- the original cause for hearing also. Cocke firmative relief, and relies upon the equities v. Trotter, 10 Yerg, 213; Hergel v. Laitenof his case for anything beyond his defense, berger, 2 Tenn. Ch. 251. Certainly, the court, he must file a cross bill. 1 Beach, Mod. Eq. with the power it possesses to completely Prac. $ 420, and cases cited. And a cross determine the litigated question, will be enbill can be maintained where the equities abled to so conduct the proceedings upon the are such as to have entitled the defendant to trial, and to enter such decree as will protect have brought an original suit. It is clear, the rights of all the parties before it. In a defendant Trent, if he had bronght suit, and recent California case the defendant filed a set forth the same facts as are contained in cross complaint, averring that the necessary parties were not before the court in order ant's cross complaint, and make such further to completely settle the controversy. Sum- order conformable herewith as is necessary mons was issued, and they were brought in- in the premises. to court. It was contended by the plaintiff that this was error. Discussing this ques. BAKTCH and SMITH, JJ., concur. tion, the court said: “But it is claimed that if it be conceded that a cross complaint is a proper pleading in an action of this nature,

(11 Utah, 100) new parties cannot be brought in by it.

PEOPLE v. HUGHES. Whether this could be done under the old

(Supreme Court of Utah. Feb. 23, 1895.) chancery practice is a question upon which

ROBBERY-EVIDENCE ON A TRIAL FOR ROBBERY. authorities are not agreed, but our code sys

1. It was competent for defendant to testem is much broader and more liberal in this

tify that, at the time of the alleged robbery, he regard. The defendant is not, under our thought the money was his own, and that he practice, confined in his cross complaint to

had the right to take it. matters charged in the complaint. Besides

2. Where a man, under a bona fide belief

that the property is his own, obtains it by menthis, our statute provides that when a com- aces, there is a trespass, but no robbery. plete determination of the controversy can

Appeal from district court, First district; not be had without the presence of other par- before Justice H. W. Smith. ties, the court may order them brought in."

George Hughes, convicted of robbery, apWinter v. McMillan, 87 Cal. 256, 25 Pac. 407. Respondent relies upon a number of Califor

peals from the judgment rendered and from

an order denying a new trial. Reversed. nia cases, particularly Harrison v. McCormick, 69 Cal. 621, 11 Pac. 456, and Wilson v.

Samuel A. King, for appellant. The UnitMadison, 53 Cal. 5, to support his contention

ed States Attorney, for the People. that it was the duty of the court to permit plaintiff to amend, and to strike from the MERRITT, C. J. This is an appeal from files the cross complaint. These same cases,

a judgment of the First district court as well as others cited in respondent's brief,

against the appellant, and from an order de were relied upon in the case just cited from

nying his motion for a new trial. Appellant California. Speaking of the case of Wilson

was convicted of the crime of robbery, and V. Madison, the court say: "All that the

sentenced to imprisonment in the penitenticase decides is that, where relief demanded ary for a period of two years. The record by the defendant can be had upon the de- in the case discloses that the trouble occurnials and averments of his answer, the cross red in Uintah county, near Ft. Duchesne, at complaint is unnecessary. But there may be the saloon of one William M. Nichols, who, cases in which the full relief cannot be given it appears, was conducting a gambling game defendant on the answer; and as, in eject

called "Mexican Monte." The appellant, ment, the cross complaint in such cases is while in an intoxicated condition, went to recognized as a proper pleading, so the whole the saloon, and lost a large sum of money at controversy can be settled in one action."

After losing his money, it is Winter v. McMillan, 87 Cal. 256, 25 Pac. 407. claimed that at the point of a revolver he In referring to the case of Harrison v. Mc- robbed the game of $53 by taking this sum Cormick, supra, they state "that in that case from the card table and from the immediate there was no necessity for a cross complaint. presence of Nichols, and that he also immeThe claim was for damages,-purely a coun- diately thereafter robbed Nichols of $105, terclaim,-in which case, of course, the de- taking this amount from his person. The mand must be one existing in favor of the theory of the defense was that, if the appeldefendant and against the plaintiff, between lant took any money from the person or whom a several judgment might be had in presence of Nichols, it was under the claim the action." In the case of Banning v. Ban- of ownership, and an honest belief that apning, 80 Cal. 272, 22 Pac. 210, relied on by pellant had a right to the money which had respondent, the facts are entirely different been won from him at an unlawful card from the case at bar. The complaint asked game. for partition in the most general form, alleg- Counsel for appellant has presented to this ing that the parties owned the lands as ten- court several assignments in his specificaants in common, but the answer denied that tion of errors, the major portion of them beeither of the plaintiffs had any estate in the ing exceptions to the rulings of the court land, and alleged that the defendant was upon the questions asked the various witthe exclusive owner. The cross complaint nesses. Most of these questions, however, was filed with the answer, which was only a are directed to the question of felonious inrepetition of all the facts set up in the an- tent of the defendant at the time of the swer. We are of the opinion that the trial robbery, and for that reason we do not deem court erred in sustaining the demurrer to the it necessary to consider them at all, but will cross complaint and striking it from the files. content ourselves with the consideration of The judgment of the lower court is re- the principal ones. Appellant assigns as versed, and the case remanded, with direc- error the action of the court in refusing to tions to the court below to reinstate defend- allow him, when testifying as a witness in

this game.

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