(39 Utah, 291) JONES ▼. EVANS. (Supreme Court of Utah. June 15, 1911.) 1. APPEAL ANd Error (§ 345*)-PROCEEDINGS FOR TRANSFER OF CAUSE-TIME FOR TAKING PROCEEDINGS. Under Comp. Laws 1907, § 3301, providing that an appeal may be taken within six months from the entry of judgment or order appealed from, and section 3329, providing that the time for taking an appeal may not be extended, a judgment becomes final for the purpose of an appeal on the overruling of a motion for a new trial.1 [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1895, 1896; Dec. Dig. § 345.*] 2. APPEAL AND ERROR (§ 345*)-PROCEEDINGS FOR TRANSFER OF CAUSE-TIME FOR TAKING PROCEEDINGS. The rule prescribed by Comp. Laws 1907, §§ 3286, 3294, that, where a case is tried to the court without a jury, the time for preparing and serving a bill of exceptions and for service and filing a notice of motion for new trial begins to run only from the time of the service of notice of the decision does not apply by analogy to the six-month period prescribed by section 3301, within which to take an appeal, even where a notice of the overruling of a motion for a new trial, not required by statute, was actually served subsequent to the date of the overruling of the motion. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1895-1896; Dec. Dig. § 345.*] Appeal from District Court, Salt Lake County; C. W. Morse, Judge. Action by Daniel Jones against Ellen Joice Evans. From a judgment for plaintiff, defendant appeals. Dismissed. 1092; Everett v. Jones, 32 Utah, 489, 91 Pac. 360; Warnock, etc., v. Peterson, etc., 35 Utah, 542, 101 Pac. 699. Appellant, therefore, could have appealed immediately after the motion for a new trial was overruled on June 2d, and, by excluding that day, could have done so up to and including December 3, 1910, but not later. [2] Appellant, however, contends that the six months within which she was required to appeal did not commence to run until she was served with a notice that the motion for a new trial had been overruled. It is not claimed that there is any express statutory provision to this effect, but it is contended that, because section 3286 provides that where a case is tried to the court without a jury the time for preparing and serving a bill of exceptions begins to run only from the time of the service of notice of the decision, and that, under section 3294, the time for serving and filing a notice of motion for a new trial runs only from the time of service of such notice on the attorney of the adverse party, by analogy, therefore, notice of the decision is also necessary for the purpose of fixing the time when the six months under section 3301, supra, begins to run. We cannot agree with this contention. Where the time within which a certain act must be done is by statute required to be done from the entry of judgment, or from the overruling of a motion, the time begins to run when the ruling occurred or the entry is made, and unless notice of such rul Hurd & Hurd, for appellant. Rawlins, Ray ing or entry is required by statute the courts & Rawlins, for respondent. ordinarily cannot require it. The parties to an action, in the absence of a statute to the contrary, must at least take notice that the court has finally disposed of the case and govern themselves accordingly. In view that the Legislature has provided for the service of notice of the decision of the court to set the time running for the purpose of filing a motion for a new trial, and also for the purpose of preparing and serving a bill of exceptions, but did not require the service of such notice for the purpose of setting in motion the time within which an appeal must be taken, is a circumstance from which it is FRICK, C. J. [1] Respondent has filed a motion to dismiss the appeal upon the ground that this court is without jurisdiction to hear and determine it, for the reason that the appeal was not taken in time. Comp. Laws Utah 1907, § 3301, provides as follows: "An appeal may be taken within six months from the entry of the judgment or order appealed from." Section 3329 provides that the time for taking an appeal may not be extended. The judgment appealed from was entered on the 8th day of June, 1909. A motion for a new trial was over-legitimate to infer that, while the Legislaruled on June 2, 1910, and the notice of appeal was served and filed December 7, 1910, or more than six months after the motion for a new trial was overruled. This court has repeatedly held that a judgment becomes final for the purpose of an appeal on the overruling of a motion for a new trial. Watson v. Mayberry, 15 Utah, 265, 49 Pac. 479; Stoll v. Daly M. Co., 19 Utah, 271, 57 Pac. 295; Felt v. Cook, 31 Utah, 299, 87 Pac. 1 Watson v. Mayberry, 15 Utah, 265, 49 Pac. 479; Stoll v. Daly M. Co., 19 Utah, 271, 57 Pac. 295; Felt v. Cook, 31 Utah, 299, 87 Pac. 1092; Everett v. Jones, 32 Utah, 489, 91 Pac. 360; Warnock, etc., 1. Peterson, etc., 35 Utah, 542, 101 Pac. 699. ture required such notice for the former purposes, it did not intend to require it for the latter purpose. Such a distinction, to our minds, is quite reasonable. In the first two instances, the time in which the act is required to be done is quite short; while in the latter such is not the case. Moreover, in the latter case the losing party should at least be presumed to have sufficient interest in his own case to keep informed of what the final action of the court was, and if he is dissatisfied with such action be prepared to take an appeal within the time fixed by statute. If the final disposition of the case is For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes of so small importance to the losing party that he is not concerned with what the court has done until he is specially notified, then it would seem that the case is of too small importance for him to take it to the appellate court for review. But be that as it may, it is clear that in this case the appeal was not taken within six months after the judgment became final and hence appealable, and for that reason this court cannot acquire jurisdiction. Nor does it make any difference that in this case a notice of the overruling of the motion for a new trial was actually served on the 8th day of June, 1910. Such a notice, not being authorized by statute, cannot serve as a means for extending the time within which an appeal may be taken. The motion to dismiss the appeal, therefore, should be sustained, and the appeal dismissed. It is so ordered. MCCARTY and STRAUP, JJ., concur. (59 Or. 77) COLLINS et al. v. GRANT et al. (Supreme Court of Oregon. June 6, 1911.) 1. MANDAMUS (§ 12*)-COMPELLING PERFORMANCE OF JUDICIAL ACT. Mandamus does not lie to compel a municipal judge to institute proceedings for the violation of a city ordinance, where he is not called on to institute prosecutions in his own court, but where the city attorney is alone authorized to institute such proceedings, and he has not presented to the police judge any complaint. [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 41; Dec. Dig. § 12.*] This is a proceeding by writ of mandamus issued upon the petition of Collins and Kellaher against Grant, city attorney, Tazwell, municipal judge, and Beutgen, municipal clerk of the city of Portland, to compel them to commence and prosecute proceedings against John Doe and Richard Roe for obstracting a street in violation of a city ordinance. It appears that the Oregon Railroad & Navigation Company is constructing a bridge across the Willamette river in Portland; that upon its petition the city council duly passed an ordinance vacating a portion of Oregon and Adams streets to be occupied by the approach to the bridge; that thereupon John Doe and Richard Roe, employés of the railroad company, by its direction proceeded with the construction of the approach to the bridge over and upon such streets, being the obstruction complained of. Plaintiffs and others have filed, with the city auditor, a sufficient referendum petition ordering that the ordinance vacating such streets be referred to the people at the next city election for their approval or rejection. Plaintiffs requested the city attorney to prosecute the above-named employés of the railroad company for so obstructing the streets named, contending that the ordinance vacating the same did not take effect pending the referendum proceedings, and that the acts of the railroad employés constitute an unlawful obstruction to the streets. The city attorney contends that the ordinance vacating the street took effect at once, upon its adoption by the council, and was not subject to the referendum, being an 2. MUNICIPAL CORPORATIONS ($ 700)* OB- administrative or judicial and not a legislaSTRUCTIONS IN STREETS-REMEDY. Where an obstruction in a street is occa sioned by the authority of the city, granting the right to a railroad company to possess the street, individuals, complaining of the obstruction, must bring a civil action, and they may not insist on a prosecution for a violation of an ordinance, prohibiting obstructions in streets, and thereby throw the cost of the litigation on the city. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 700.*] 3. MANDAMUS (§ 11*) - REMEDY CASE. DOUBTFUL Where the city attorney of a city and the council were of the opinion that an ordinance vacating a street took effect at once on its adoption and was not subject to a referendum, mandamus does not lie to compel the city attorney to institute a prosecution for a violation of an ordinance prohibiting obstructions in streets, to determine whether the vacation ordinance is suspended by a referendum petition. [Ed. Note-For other cases, see Mandamus, Cent. Dig. § 38; Dec. Dig. § 11.*] Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge. Mandamus by M. O. Collins and another against F. S. Grant and others. From a judgment dismissing the writ rendered on sustaining a demurrer to the petition, plaintiffs appeal. Affirmed. tive act, and the plaintiffs, as citizens and taxpayers, bring this action to compel the city attorney and police judge to prosecute the employés for obstructing the street. Defendants demurred to the writ on the ground that plaintiffs have not the capacity to sue, and that the writ does not state facts sufficient to constitute a cause of action or to entitle them to the relief demanded. The circuit court sustained the demurrer and dismissed the writ; plaintiffs having refused to plead further. Plaintiffs appeal. John A. Jeffrey (Chas. E. Lenon and Clinton A. Ambrose, on the brief), for appellants. H. M. Tomlinson (L. E. Latourette, on the brief), for respondents. EAKIN, C. J. (after stating the facts as above). [1] It is conceded by plaintiffs that no one except the city attorney is authorized to institute proceedings for the violation of city ordinances, and he has presented to the police judge no complaint or charge against John Doe and Richard Roe for obstructing the street; hence the writ contains no allegations of dereliction of duty on part of the municipal judge or his clerk. He is not a prosecuting officer and is not called upon to | 2. MASTER AND SERVANT (§ 185*)—FELLOW institute prosecutions in his own court, and SERVANTS. therefore there is no cause stated against him. McLeod v. Scott, 21 Or. 94, 26 Pac. 1061, 29 Pac. 1. The only question is: Should the city attorney be required to file a complaint against the employés of the railroad company and prosecute them for obstructing the street? of loading lumber on a vessel from a dock, with The one in immediate charge of the work power to hire and discharge the hands, is not a fellow servant of a laborer placing the lumber in a sling to be hoisted, but a vice principal. Servant, Cent. Dig. §§ 385-421; Dec. Dig. § [Ed. Note. For other cases, see Master and 185.*] 3. TRIAL ( 191*)-INSTRUCTIONS-ASSUMING FACTS. An instruction assuming as a fact a certain relation, when there is evidence that such relation did not exist, is properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 420-431; Dec. Dig. § 191.*] Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge. [2] Without determining whether his discretion in such a matter should be controlled by mandamus in any case, we conclude that mandamus cannot be resorted to upon the facts here disclosed. It is doubtful whether a quasi criminal proceeding can be maintained against the laborers for obstructing a street which the city has attempted to vacate and of which it now concedes the possession to the railroad company. The obstruction is occasioned by the authority of the city. The only purpose of plaintiffs in urging the prosecution is to have determined injuries sustained by plaintiff on March 23, in a quasi criminal case the railroad's right to the possession of the street, purely a disputed civil right, at the cost of the city in stead of at the expense of the parties interested, which should not be permitted. [3] The scope of the ordinance and the regularity of its adoption are not questioned. The only question involved upon the writ is whether the ordinance vacating the street is suspended by the referendum petition. Mandamus will not issue in a doubtful case. Spelling, on Extra. Rem. § 1370. If the city attorney or the council is of the opinion that the vacation ordinance took effect at once upon its adoption, and that there was no The demurrer was properly sustained. (59 Or. 81) SCHROEDER v. BROWN & McCABE. (Supreme Court of Oregon. June 6, 1911.) 1. MASTER AND SERVANT (§ 235*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE. A longshoreman, working on the dock in loading lumber on a ship, injured by the offshore guy rope breaking, letting the boom with the attached lumber back on him, was under no duty to inspect such rope, so that, not having observed or had occasion to observe it, he was not guilty of contributory negligence in that respect. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 235.*] Action by R. P. Schroeder against Brown & McCabe, a corporation. Judgment for plaintiff. Defendant appeals. Affirmed. This is an action to recover damages for 1909, while in defendant's employ. Plaintiff, a longshoreman, was engaged ing the steamship Corydon with lumber from with other coemployés of defendant in load A boom was attached to the mast of the the dock, alongside of which it was moored. steamer, and a wire cable, running parallel with the boom, passed through a block or pulley at the end of the boom. A detachable sling was used to place around a certain amount of lumber, and, when the lumber was in shape to be moved, the engineer operating Plaintiff's a winch hoisted it from the dock. The boom The evidence tends to show that Anderson was in immediate charge of the work with authority to hire and discharge workmen, and that he hired plaintiff and his coemployé •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes on the dock the day before the accident. | sponsible for any negligence on the part of Plaintiff had judgment in the court below, Anderson." and defendant appeals. W. E. Farrell (Wilbur & Spencer and A. M. Dibble, on the brief), for appellant. R. R. Giltner (Giltner & Sewall, on the brief), for respondent. MCBRIDE, J. (after stating the facts as above). [1] The evidence shows that plaintiff was at work on the dock, and that the offshore guy rope broke at a place which must have been at least 30 feet distant from where he was at work. When the boom was swung over the dock, for the purpose of having attached to it the load which it was plaintiff's duty to make up and prepare for hoisting aboard the vessel, that portion of the offshore guy rope, which was attached to the boom, would necessarily be within a few feet of plaintiff, but not in a position to attract his attention. It was no part of his duty to inspect this rope, as it was not a thing which he was required to handle or have anything to do with in the course of his work. It was one of the appliances which it was the business and duty of the master to furnish to enable the boom to be properly handled in the course of swinging the lumber from the dock to the hatch, and it was the duty of defendant to furnish one that was reasonably safe for that purpose, and plaintiff, a laborer on the dock, was not obliged to make an inspection of the rigging of the boom to determine its soundness. He had a right to rely on the assumption that the guy rope was reasonably safe and adequate for the purpose for which it was used. There is no, evidence that plaintiff observed or had occasion to observe the defective condition of the rope, and therefore no evidence upon which an instruction as to contributory negligence on his part could be predicated. In this view of the case the instruction of the court as to contributory negli gence becomes purely academic; but sc far as it went it seems to be the law. Defendant also assigns as error the refusal of the court to give the following instructions: "I instruct you that if the guy line in question was made single by Anderson, or any of the employés of the defendant, and that by reason of being made single, instead of double, it could not stand the strain and broke, and plaintiff was thereby injured, that your verdict must be for the defendant, as the act of Anderson or any other of defendant's employés in lengthening the rope was a detail of the work that defendant, as a matter of law, could leave to the servants to carry out. "I instruct you that, so far as this case is concerned, Anderson was a fellow servant of plaintiff, and defendant cannot be held re [2, 3] Both of these requested instructions assume as a matter of law that Anderson was a fellow servant with plaintiff; whereas, there is testimony standing to show that he had charge of the work with power to hire and discharge the hands and was a vice principal, and for that reason they were properly refused. The judgment is affirmed. (50 Colo. 262) BOWES v. CANNON et al. (Supreme Court of Colorado. Jan. 3, 1911. Rehearing Denied June 5, 1911.) 1. TRUSTS (§ 1*)-DEFINITION. While, in its technical sense, a "trust" is the right, enforceable solely in equity, to the of which is vested in another, and implies sepabeneficial enjoyment of property, the legal title rate coexistence of the legal and the equitable titles, vested in different persons at the same time; in its more comprehensive sense the term embraces every bailment, every transaction by an agent or factor, every deposit, and every matter in which the slightest trust or confidence exists. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 1; Dec. Dig. § 1. vol. 8, pp. 7116–7124, 7822.] For other definitions, see Words and Phrases. 2. EQUITY (§ 87*)-TRUSTS. Under Mills' Ann. St., §§ 2900, 2909, 2910, causes of action, though under the comprehensive rule they be trusts, and in a sense equitable, limitations; only those causes of action of are subject to the operation of the statute of which equity has peculiar and exclusive jurisdietion, and which are not cognizable in courts. of common law, being excluded from its operation. That is, if the nature of the cause of action, whether or not it have the characteristics of a trust, is such that there is a concurrent remedy at law and in equity, the statute is ap plicable, though the relief be sought in equity. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 242-244; Dec. Dig. § 87.*f 3. EQUITY (§ 87*)—Trusts-RIGHT TO SUe at LAW. Though, where U. executes mortgage bonds, and secures them by a deed of trust to I., pro viding that I., after certifying them, shall deliver them to U., or its order, and then instructs I. to hold for S., and deliver to him or his order, certain of them, the trust and confidence reposed by S. in I. are sufficient to give equity jurisdiction, I. having, without authority, delivered them to another, yet S. could have sued at law, so that, the jurisdiction of equity not being exclusive, the statute of limitations may be interposed. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 242-244; Dec. Dig. § 87.*] 4. EVIDENCE (§§ 43, 208, 265*)-ADMISSIONS IN PLEADINGS. Admissions in a verified pleading, after wards omitted from the pleading as amended, though not conclusive against the party making them, are admissible as evidence, and may be considered by the court without being formally tendered as such. Cent. Dig. §§ 61, 713-725, 1029; Dec. Dig. §§ [Ed. Note.-For other cases, see Evidence, 43, 208, 265.*] 5. LIMITATION OF ACTIONS (§ 103*)-ACCRUAL | executor as plaintiff. He made no appearOF CAUSE OF ACTION-CONTRACT OF TRUSTEE ance in the cause, and no reference will hereUNDER DEED of Trust. inafter be made to him. The language of a deed of trust given to I. by U. to secure mortgage bonds executed by U., that I. should deliver the bonds, certified by it as required by the deed, to U. or to its order, coupled with the language of an order given by U. to, and accepted by I., "to hold for S. and deliver to him, or to his order, 44 of said bonds." constituted a continuing and executory contract. indefinite as to its term, and not complete or ended till a redelivery was made or demanded, or, at least, a tortious act was committed by I. inconsistent with the ownership of S., and severing I.'s right in the property, which was not the case where I. delivered the bonds to one unlawfully assuming to be the agent of S., this not being a denial of S.'s ownership, or an assertion of it in I., and I. still having the right of possession in the property, and the right to repossess itself thereof, and S. having done nothing to terminate the contract, as he might have. because of such delivery; so that the cause of action for breach of the contract accrued, and consequently the statute commenced to run against it, only when S. thereafter made demand on J. for the bonds, which was refused. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 506-510; Dec. Dig. § 103.*] 6. ACTION (§ 32*)—NATURE AND FORM. The complaint by S. against I., alleging the giving of a deed of trust by U. to I. as trustee, to secure mortgage bonds executed by U., said deed providing that I. should deliver the bonds, certified by it as required by said deed, to U. or to its order; that 44 of said bonds belonged to S.; that U. ordered I. to hold for S., and deliver to him or to his order, 44 of said bonds; that S. made demand on I. for said 44 bonds, which demand was refused, and I. converted said bonds to its own use, "and neglected and refused to comply with and perform the duties and obligations imposed on it, which it promised to do at the time it received said bonds," by which means the bonds and their value of $44.000 were wholly lost, and "plaintiff has been damaged thereby" in such sumstates a cause of action for breach of contract, as well as for conversion, there being but one form of action under the Code, and a statement of the facts being all that is necessary. [Ed. Note.-For other cases, see Action, Cent. Dig. $ 257-261; Dec. Dig. § 32.*] Error to District Court, Boulder County; Christian A. Bennett, Judge. Suit by John Bowes, executor of James Simpson, deceased, against James Cannon, Jr., and others. There was a judgment of nonsuit, and plaintiff brings error. Revers ed and remanded for trial. Miller, Barnd & Affolter and H. M. Minor (Ernest L. Williams, of counsel), for plaintiff in error. Goudy & Twitchell, for defendant in error International Trust Company. From the complaint as amended, and the replication to the answer, it appears, inter alia, that on July 1, 1892, the United Coal Company, a corporation, executed its 500 first mortgage, 7 per cent., coupon bonds, or the par value of $1,000 each, payable on July 1, 1912, or, at its option, on or after July 1, 1897. At the same time the coal company, to secure, the payment of said bonds, executed and delivered a trust deed conveying all of its property to defendant in error the International Trust Company, as trustee. Each bond was conditioned therein, and in the trust deed, that it should "not become valid or obligatory for any purpose until it shall be authenticated by the certificate of the International Trust Company hereon indorsed." The deed of trust provided, inter alia, that the bonds should be delivered to the trustee, who should certify the same to an amount not exceeding 500 bonds and "shall deliver the same, so certified, to the coal company or to its order,. and the trustee shall be in no re spect liable or answerable for the use of said bonds, or either of them, after the certification of said bonds and the delivery or as aforesaid." The return of the same bonds were delivered to, and certified by. the International Trust Company in 1892. Forty-four of said bonds belonged to, and were owned by, James Simpson. August 26. · 1892, the United Coal Company, in writing. instructed the International Trust Company as follows: "Upon the delivery to you of the bonds of the United Coal Company, and after indorsement by you, you will please hold for James Simpson and deliver to him or to his order, forty-four (44) of said bonds -i. e. (bonds amounting to forty-four thousand dollars)." James Simpson died January 23, 1896. leaving a will executed the previous day, by which he gave and bequeathed to his wife "my bonds of the president, directors and company of the United Coal Company of Denver." Plaintiff in error, as the duly qualified executor of said will, on the 16th day of July, A. D. 1900, made demand on the International Trust Company for the 44 bonds covered by the hereinbefore designated order, which demand, it is alleged, was refused, and the International Trust Company converted the bonds to its own use, "and neglected and refused to comply with and perform the duties and obligations imposed upon it, which it promised to do at the time it received said bonds," by which means the bonds and the value thereof in the sum of $44,000 were wholly lost, "and the plaintiff has been damaged thereby" in such sum, together with the interest accrued WHITE, J. This suit was commenced October 28, 1902. As to certain defendants, the case was discontinued, and the only ones now remaining are the International Trust Company and John Carruthers in his capacity as one of the executors of the last will of James Simpson, deceased. Carruthers is only a nominal defendant, made so by reason of his refusal to join with his coFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 116 P.-22 |