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officer in serving the garnishees. The pro- Sawyer & Putnam, for appellant. Suthervision of the statute is undoubtedly for the land & Howatt, for respondent. protection of the officer to prevent his being sued for not levying the writ. This being BARTCH, J. In this cause an appeal was so, it would seem to follow that the benefits taken from an order denying a motion to of the statute only accrue to him who com- dissolve an attachment, which had been isplies with it. The officer is not required to sued on September 6, 1893, at the suit of the do anything except pursuant to the statute, plaintiff, to recover $3,000 on a promissory and the plaintiff who does not give him the note which was secured by mortgage on statutory direction cannot complain if he real estate. The affidavit on which the writ fails to make the levy upon the writ in his of attachment was issued was in proper favor. 2 Freem. Ex'ns, 262. We do not in- form, and stated, among other things, that tend to hold-because it is not necessary to the "mortgage has, without any act of the a decision in this case—that the sheriff would plaintiff, to whom it was given, become valnot, under any circumstances, be liable for a ueless," and that it was not otherwise sefailure to serve the garnishment when he re- cured. This is one of the statutory grounds ceived no instructions in writing; but where, on which an attachment may issue. Comp. upon the same day, he receives two writs of Laws Utah 1888, § 3309, subd. 1. On Ocattachment, one accompanied by the proper tober 10, 1894, the defendant filed a verified instructions and the other not accompanied motion to dissolve the attachment, but othby such instructions, what we do hold is that erwise filed no affidavit in support of said it is his duty to obey the instructions of the motion. His counsel claim that the motion, more vigilant attaching creditor. The court having been verified, answers the double below held that the plaintiffs were entitled to purpose of a motion and affidavit; that the recover nothing upon this cause of action. motion presented an issue, because it travWe think this conclusion is correct.

ersed the essential averments in the affMany other questions are raised upon the davit of attachment; and that it was error appeal, which we do not deem it necessary to exclude parol testimony offered by the to discuss in this action, as the question we defendant in support of his motion. The have decided seems to dispose of it. A mo- motion, which the defendant relied on as an tion was made to dismiss the appeal for the affidavit, was verified on information and bereason that the plaintiffs had accepted sat- lief, in the same manner as pleadings are isfaction of judgment against the defendant, usually verified. While the affidavit of the rendered in the court below upon a so-called plaintiff was positive and certain in its terms, "second cause of action.” It is not neces- was made in the usual form of affidavits, sary to decide, in this case, whether the sec- and stated that the security had become valond claim or item set out in the complaint, ueless without any fault on his part, the and for which the plaintiffs recovered Judg. | alleged affidavit or motion of the defendant ment, is properly stated as a second cause stated that the security was worth not less of action. It may well be doubted whether than $1,000. Both of these allegations are this action is anything more than an action material, and present the issues in the case. against the sheriff for false return, and the The former is a positive declaration under cause of action single. However, as we oath; the latter, it must be assumed, was think the judgment should be affirmed upon made on information and belief; so that, the merits, it is not necessary to dispose of the if it were conceded that the motion had the motion to dismiss the appeal. The judgment force and effect of an affidavit, still an alleis affirmed.

gation made on information and belief, in

a proceeding to discharge an attachment, BARTCH and KING, JJ., concur.

cannot prevail as against one stated as a positive fact. We think the verified mo

tion was insufficient to discharge the attach(11 Utah, 191)

ment, and that the court did not err in exBARNHART v. FOLEY.

cluding parol testimony offered for that pur

pose, because, the defendant failing to sup(Supreme Court of Utah. March 16, 1895.)

port his motion by affidavit, the plaintiff was ATTACHMENT-MOTION TO DISSOLVE AFFIDAVIT. precluded from opposing the same by affi. A motion made on information and be

davit or other evidence. Comp. Laws Utah lief, without any affidavit, to dissolve an attachment, the affidavit for which is a positive 1888, § 3327. The defendant, having prodeclaration under oath of the facts therein al- ceeded under the statute in a manner which leged, is insufficient; and it is not error to ex- prevented the plaintiff from supporting his clude parol testimony offered by the defendant

affidavit in attachment by parol evidence, in support of the motion.

thereby precluded himself from introducing Appeal from district court, Third district; such evidence in support of his motion, for it before Justice C. S. Zane.

would be manifestly unjust, in such a proAction by Warren Barnhart against Cassle ceeding, to grant the right to one party to Foley, accompanied by attachment. From introduce such evidence when such right an order denying a motion to dissolve the was denied to the other. Under the proceedattachment, defendant appeals. Affirmed. ings, there was presented by the issue simply a question of law, whether the verified to the justice of the peace, it was signed by motion of the defendant was sufficient to dis- the principal, the Mountain Ice & Cold-Storsolve the attachment, which we think the age Company; that it was stated and reprecourt decided correctly. The judgment is sented by the said Messick that there was no affirmed.

intention of delivering the undertaking on ap

peal to the justice of the peace, or to any one SMITH and KING, JJ., concur.

else, until it was first signed by such principal; and that, with this distinct understand

ing and agreement, this defendant signed the (11 Utah, 194)

said bond; and that he never knew or had BUTTERFIELD V. MOUNTAIN ICE & any information that the same was not signed COLD-STORAGE CO. et al.

by the principal until after payment was de(Supreme Court of Utah. March 16, 1895.) manded of him as surety upon said appeal ACTION ON APPEAL BOND-LIABILITY OF SURETY. bond. The answer then further reads that,

1. It is no defense to an action on a bond notwithstanding the agreement, Messick, in on an appeal from a justice. that it was deliver

violation of it, did deliver the bond on appeal ed in violation of an understanding between the sureties and the appellant's agent that it was

to the justice of the peace. The defendant not to be delivered until the signature of the ap- moved the court to strike out the answer pellant thereto had been obtained.

from the files as sham and frivolous, and for 2. The surety, having signed the bond, and delivered it to the appellant's agent, without any

judgment on the pleadings. The court grant. knowledge on the part of the obligee of such ed the motion, and rendered judgment against agreement, thereby clothed the agent with ap- the defendants. The defendant Bloch appeals. parent authority to make an unconditional de.

The question before this court is whether or livery of the bond, and he could not set up such agreement as against the obligee.

not the court erred in striking out the an3. The fact that an appeal bond in the usual swer of the defendants, and whether the court form uses the words, “We, the undersigned, as erred in rendering judgment in favor of the principal," followed by the names of the sureties, is not notice to the obligee that the sure

plaintiff, and against Bloch, for the amount ties had a secret agreement with the agent of

of the judgment and costs due from the the principal that he should sign it before they Mountain Ice & Cold-Storage Company. The should be bound.

only real question in the case is whether or Appeal from district court, Third district; not the answer states any defense to the before Justice S. A. Merritt.

plaintiff's action. It is not denied that the Action by E. L. Butterfield against the bond was sufficient, under the statutes of this Mountain Ice & Cold-Storage Company, a cor- territory, as a bond upon appeal. In other poration, and B. K. Bloch and John Heil, Jr. words, the statute does not require that the From an order striking out the answer as principal upon an appeal shall sign the appeal sham, and a judgment for plaintiff, defendant bond. Section 3660 of the Compiled Laws Bloch appeals. Affirmed.

provides that "an appeal from a justice's John W. Judd, for appellant. B. X. Smith

court shall not be effectual, unless an underand Frank B. Stephens, for respondents.

taking be filed with two sureties," etc. In

the case of Murdock v. Brooks, 38 Cal. 604, SMITH, J. The plaintiff recovered judg. the supreme court of that state, construing ment in the justice's court against the Moun- the same statute, said: “An undertaking on tain Ice & Cold-Storage Company. An ap- appeal is an independent contract on the part peal was taken to the district court, and the of the sureties, in which it is not necessary defendants B. K. Bloch and John Heil, Jr., that the appellant should unite. He is bound signed the appeal bond. In the district court by the judgment, and no purpose could be the plaintiff again recovered judgment, which served by his joining with the sureties." We being unsatisfied, he brings this suit against are of the opinion that the answer stated no the sureties on the appeal bond. The bond is defense whatever, for several reasons. First in the usual form. After stating the appeal, of all, the failure of the principal to sign can it reads: “Now, therefore, in consideration of in no possible manner injure the defendant. the premises and of the said appeal, the un- Section 3715, Comp. Laws Utah, provides that dersigned, as principal, and John Heil, Jr., "when any surety upon an undertaking on and B. K. Bloch, as sureties, do undertake," appeal pays the judgment, either with or etc. The defendant B. K. Bloch filed an an- without action, after its affirmation by the swer, and alleged, in substance, that on or appellate court, he is substituted to the rights about the date of the bond, which was on of the judgment creditor, and is entitled to the 12th of August, 1892, one William Mes- control, enforce and satisfy such judgment sick, who was then acting as agent of the in all respects as if he had recovered the Mountain Ice & Cold-Storage Company, re- same.” It will be observed that there is no quested this defendant that he would sign the further litigation necessary. The appellant undertaking on appeal, and that the said here, if he pays the judgment which was renbond had not then been signed by the prin- dered against the Mountain Ice & Cold-Storcipal, the Mountain Ice & Cold-Storage Com- age Company in the district court, is at once pany; that defendant stated to said Messick substituted to the rights of the plaintiff in that he was willing to sign the said under- this action, and is entitled to control, enforce, taking on appeal provided, before its delivery and satisfy the judgment in all respects as if he had recovered it. It would appear that | or swine over a public highway where such his objection made by his answer is an ex- highway is constructed on a hillside, shall tremely frivolous one. But there are other be liable for all damage done by such anireasons why the answer states no defense. mals in destroying the banks or rolling rocks The answer sets out that Messick was the into or upon such highway." The court beagent of the Mountain Ice & Cold-Storage | low decided that this section was invalid and Company. It is not pretended that he was void, and the respondent claims that it is in the agent of the plaintiff. If it is true that violation of that portion of the fourteenth the appellant has suffered any injury by the amendment to the constitution of the United failure of the corporation to sign the bond, States which provides: "No state shall make still, the case is one of those where one or two or enforce any law which shall abridge the innocent persons suffer by the acts of a third. privileges or immunities of citizens of the In such cases it is a familiar rule that he United States; nor shall any state deprive who has enabled such third person to occasion any person of life, liberty or property withthe loss must sustain it. See Herm. Estop. out due process of law; nor deny to any $ 1000. Then, again, we think the defendant person within its jurisdiction, the equal pro(appellant here) has, by his own act, made tection of the laws." It is contended that this Messick his agent, and clothed him with the statute deprives the class of persons deapparent authority to make an unconditional scribed in it of the equal protection of the delivery of the bond, and nothing short of no- laws, and deprives them of property without tice to the plaintiff would avoid or vitiate it. due process of law. An exhaustive argu See Id. $ 1013.

ment is made in behalf of both the appellan It is clear that the bond is a perfect bond and respondent in this case, and we have under the statute. The plaintiff could not examined all the cases cited on either side. have dismissed the appeal in the district “The question whether a law be void for court for the want of a sufficient bond, be- its repugnancy to the constitution is at all cause the bond was, in all respects, regular, times a question of much delicacy, which and the fact that it used the words, “We, ihe should seldom, if ever, be decided in the afundersigned, as principal, and John Heil, Jr., firmative in a doubtful case. The court, and B. K. Bloch, sureties," was no notice to when impelled by duty to render such a the plaintiff that the sureties had a secret judgment, would be unworthy of its staagreement with the agent of the principal tion could it be unmindful of the solemn obthat the principal should sign before they ligations which that station imposes; but in should be named.

is not on slight implication and vague conWe think the order and judgment appealed jecture that the legislature is to be profrom are right, and they are affirmed, with nounced to have transcended its powers, and costs.

its acts to be considered as void. The op

position between the constitution and the BARTCH and KING, JJ., concur.

law should be such that the judge feels a clear and strong conviction of their incom

patibility with each other.” This was the (11 Utah, 200)

language of Marshall, C. J., in Fletcher v. BRIM, Road Supervisor, v. JONES. Peck, 6 Cranch, 87. It is by this rule then (Supreme Court of Utah. March 16, 1895.) that we must determine whether the statute DUE PROCESS OF Law.

in this case violates the constitution. The Comp. Laws Utah 1888, § 2087, provid- claim on behalf of the respondent is that the ing that any person who drives a herd of cer

act is class legislation, and denies to drovers tain animals over a highway constructed on a hillside shall be liable for certain damage done

named in it that protection of the law which by such animals to the highway, does not deny

it extends to other citizens. We cannot the equal protection of the law, or deprive per- agree with the respondent that this law is sons of property without due process of law,

objectionable upon the ground stated. In within the inhibition of Const. U. S. Amend. 14.

the case of Allen v. Press Co. (Minn.) 41 N. Appeal from district court, Third district;

W. 936, Justice Mitchell, of Minnesota, debefore Justice S. A. Merritt.

livering the opinion of the court, says: Action by Alfred G. Brim, as road super

“Laws public in their object may be convisor, against Thomas W. Jones.

From a

fined to a particular class of persons, if they judgment for defendant, plaintiff appeals.

be general in their application to the class Reversed.

to which they apply; provided the distinction Williams, Van Cott & Sutherland, for ap- is not arbitrary, and rests upon some reason pellant. Richards & Richards, for respond- of public policy growing out of the condient.

tions or business of such class.” In Cooley,

Const. Lim. (5th Ed.) p. 483, the author says: SMITH, J. The sole question raised upon If otherwise unobjectionable, all that can the appeal in this case is whether or not sec- be required in these cases is that the laws tion 2087, Comp. Laws Utah 1888, is valid be general in their application to the class and constitutional. The section reads as or locality to which they apply, and they follows: "Any person who drives a herd are then public in their character, and of of horses, mules, asses, cattle, sheep, goats their propriety and policy the legislature

.

must judge." In the case of Barbier v. Con- lature required that those persons so engaged nolly, 113 U. S. 32, 5 Sup. Ct. 357, the su- should be specially liable for all damage preme court of the United States used the that they did to the highways. Whether following language: “Class legislation, dis- teamsters do like injury is not for us to decriminating some and favoring others, is cide. It is in the discretion of the legislature prohibited; but legislation which in carrying to regulate the use of the highways, and, out a public purpose is limited in its appli- if they make no distinction between differcation, if within the sphere of its operation ent persons who use them in the same way, it affects alike all persons similarly situated, we see no reason for complaint. it is not within the amendment." In Gart- Counsel for respondent cites numerous auside v. City of East St. Louis, 43 Ill. 47, the thorities, and among others a decision of supreme court of Illinois, speaking of an this court, to the point that statutes requirordinance requiring certain specified team- ing railroad companies unconditionally to sters who were engaged in hauling stones pay for stock killed by their trains are void, and coal through the city to pay a certain and have been so held under the fourteenth license, say: "From the extent and charac- amendment, above quoted. These cases are ter of his business, these teams must have not in point. Railway companies are charpassed and repassed almost constantly. ged with a public duty to operate their This, then, renders the repair of the streets trains, and are granted a public franchise more expensive and more necessary, from

for this purpose. They cannot escape the the fact that his vehicles seemed to be large duty imposed upon them towards the public, and heavy. For the comfort and conven- to wit, the operation of their trains. If, ience of the citizens of the place, as well as then, while in the performance of this duty, persons not residing therein and traveling on and without fault, they casually destroy its streets, it is necessary that they should stock straying upon their road, it is manibe repaired and kept in good condition”; festly a deprivation of such companies of and the court upheld the ordinance for the their property without due process of law reason stated. In the case of Railway Co. to require them absolutely to pay for it, bev. Beckwith, 129 U. S. 29, 9 Sup. Ct. 207, cause in such case the duty of operating the Mr. Justice Field, speaking for the supreme train and the duty of paying for the stock court, says: "The concluding clause of the killed are directly in conflict. There are first section of the fourteenth amendment loose expressions in some of the cases cited simply requires that such legislation shall which would indicate that the courts made treat alike all persons brought under sub- some other distinction. We think, upon the jection to it. The equal protection of the ground stated, these cases are consistent law is afforded when this is accomplished.” with the view we take of the statute under And again, on pages 30 and 31, 129 U. S., consideration. But there is no public reand page 207, 9 Sup. Ct., of the same opin- quirement that drovers shall drive their ion, the learned judge says: “The discrim- herds over highways situated on hillsides. inations which are open to objection are It is purely a matter of individual choice those where persons engaged in the same whether they do or not. They have a right business are subject to different privileges, to do so, and, if they do no injury, they are under the same conditions. It is only then liable to no one for anything. It is manifest, that the discrimination can be said to impair however, that the legislature considered that that equal right which all can claim in the driving herds of stock of the character de. enforcement of the law.”

scribed over highways situated upon a hillIt is not pretended but that the statute side was calculated to damage such highunder consideration affects all drovers alike; ways. The maxim of the law is, “Sic utere that there is no discrimination made between tuo ut alienum non laedas," the legal meanpersons engaged in the same line of busi- ing of which is, “So use your own property ness. The contention of respondent is that as not to injure the right of another." It is there is a discrimination made between those but an enforcement of this rule that is at, persons engaged in business as drovers and tempted by the statute in this case. The those engaged in other business which re- rule'as was stated by Lord Truro in Egerton quires the use of the highway, as, for in- v. Earl Brownlow, 4 H. L. Cas. 195, is apstance, teamsters and other travelers, in that plicable to the public in at least as full force the latter are not required to pay for any as to individuals. The public own the highdamage that they may do to highways situat- ways, and must bear the expense of keeping ed on a hillside. It is easy to conceive that them in repair. the business of drovers would be exceedingly By this statute they simply say to the injurious to highways situated upon a hill- drover, who is possessed of property which, side if their herds pass over the ground upon if driven in a certain way, is calculated to and near the highway in our mountain coun- destroy the highway, that he must so use try, inasmuch as they would cause rocks and his own property as not to destroy that of other obstructions to be thrown into the the public. There is no absolute liability highway, and would break down banks and for using the public highway, but it is deemotherwise specially injure the highways. It ed probable that a use in a particular way, was no doubt for this reason that the legis- with particular property, will produce a peUtah.)

culiar injury, and, if such injury is produced, \ emption from process of garnishment is a then the person producing it is held liable. | privilege which the respondent may walve We cannot see that this unjustly discrimi. at its option, and cite several cases which nates against such persons. On the con- appear to sustain their view; but we think trary, it seems to be reasonable, fair, and the weight of authority is to the effect that just legislation as between all of the citi- a municipality cannot waive such exempzens, It must be held, if a case can be con- tion, and especially is this true in cases ceived that would justify the legislation, that where the exemption is based on the grounds that case existed when it passed, and it is of public policy, and is not effected by statcertainly not difficult to conceive of the in- ute. This court, in the case of Chamberlin jury and wrong that it was intended to pre V. Watters (Utah) 37 Pac. 566, held that secvent by this statute. We are of the opin- tion 3455, Comp. Laws Utah 1888, authorizion that the statute is valid, and that the ing garnishment of corporations, did not apply court below, in holding it invalid, was wrong. to a municipal corporation, and that such a The judgment should be and is therefore re- corporation could not be subjected to such versed, and the case remanded for a new proceedings upon any principle of public trial.

policy. If, then, as this court has held, the

process of garnishment is without statutory KING, J., concurs. BARTCH, J., dissents. authority, and in violation of public policy,

when it is sought to be enforced against a

municipality, how can such municipality (11 Utah, 209)

waive the exemption? Such exemption is VAN COTT ». PRATT et al.

not a mere privilege, as claimed by counsel (Supreme Court of Utah, March 16, 1895.)

for the appellant. It is a legal right, which

inures to the benefit of the public. It is not GARNISHMENT-EXEMPTION OF MUNICIPALITYWAIVER.

upheld for the benefit of the public officer, A statutory exemption of a municipal but because the public must not be inconcorporation from garnishment cannot be waived venienced or harassed by such proceedings by the municipality by an ordinance consent- in suits in which it has no interest, and have ing that moneys in its hands may be garnished in suits between private parties.

the management of its affairs and the eff

ciency of its officers interfered with for Appeal from district court, Third district;

the benefit of the private individual. The before Justice S. A. Merritt.

question of the liability of municipal corWilliams & Sutherland, for appellant. E.

porations to process of garnishment at the D. Hoge and Goodwin & Van Pelt, for re

suit of a private party has often been bespondent.

fore the American courts, and, while their

decisions are not uniform, still it seems that BARTCH, J. The plaintif procured a

a large majority of the cases hold that no judgment for $402.80 against the defendant,

such liability exists, and the reason of the Pratt, who was police officer in Salt Lake rule declared by those cases appears to rest City. There was due Pratt, as salary from

upon that public principle which exempts said city, the sum of $100, for which sum

members of the legislature, foreign ministhe plaintiff served the respondent with pro- ters, embassadors, and other public funcof garnishment. When the retuin

tionaries, while in the public service, from thereof was made the plaintiff moved for

civil arrest or other legal embarrassment at judgment thereon in his favor, which motion,

the suit of a private person.

The exempfor judgment against the garnishee, was de

tion is granted from public necessity, in nied. Thereupon the plaintiff appealed to order that the business of the municipality this court.

may be transacted by its officers without inSalt Lake City, the respondent herein, is

terference arising from suits in which the a municipal corporation, and, as appears

public is not interested; and a municipal from the record, has enacted an ordinance

corporation cannot waive such a right by whereby it has attempted to waive “its

ordinance or by previous agreement. Courts riglit and legal exemption from garnishment

will disregard all agreements or arrangeprocess," and consented that the wages and ments made in contravention of public polsalaries of its employés “may be attached icy. Wade, in his treatise on Attachment under garnishee process in the same manner & Garnishment (volume 2, § 345), says: and to the same extent as is provided by “The foundation of the doctrine that municthe general laws of the territory," the no

ipal corporations cannot be called upon to tices of such process to be served on the city

answer as garnishees is purely a question of treasurer. By virtue of this ordinance it is

public policy. They are regarded as ininaintained that the legal rights of the re- tegral branches of the government, exercisspondent to exemption from such process ing only public functions, and intended to were waived in the case at bar, and the only

guard public interests. To permit them to question presented in the record material to

be subjected to actions, and possible judgthis decision is whether a municipal cor. ments and expense, in relation to matters in poration in this territory can waive such

which they have no interest, it is claimed rights. Counsel for appellant insist that ex- would be an intolerable burden, in view of

cess

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