The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1880-10-16
SUPREME COURT DECISION.
In the S1lpreHts Court Of Utah Terri
tory, June term. 1880.

In the Suprems Court of Utah Ter
tory, June term. 1850.
Elizabeth L. Kinney, appellant.
Hannah Lewis, respondent.
Appeal from Third District.
Boremsn. j., delivered the opinic
of the Court:
Elizabeth L. Kinney, the appe
liant, brought this suit for the Co
cry of real estate. and the iudgmeI
being for respondent, said Kinney 81
pesled.
The appellant. to support her case
offered the judgment roll of the Thir
District Court in the Case of Kline
W. Lewis. a contest between tn
same parties under toe toSnsi.e sci
wherein both plaiut q aud deiendan
claimed the Mayors deed to the Gel
tain piece of ground contested 70
now In the action at bar. The re
spondent objected to the admission o
the record, because neither the Pro
bate Court nor the District Court, OF
appeal from the Probate Court, hat
Jurisdiction; that this wac q STATUTORY
action and the juristictionsl fact
should appear on the record.
The statute gave the Probate Cour
jurisdiction for six months after publi
notice had been given by the Mayor
as required by sec. 8, p. $50. OF th,
Compiled Laws of Utah, and by the
same section it is further provided
"tha. when good cause is shown why
such statement could not be flee
within the time herein specified, toe
judge may extend the time not ex
ceeding one year from the first pub
LEGATION of said notice." The state
ment of appellant in tne present case
was filed within the year. The ques-
ton then arises, Did the Probate
Court extend the time beyond the
first six months? That court took
coguizance of the application OF the
said Kinney aud OF the application
of said Lewis, for the Mayors deed.
1t heard the evidence of the parties,
pro and con. and afterwards decided
against said Kinney and in favor OF
Lewis. 1t evidently assumed to take
Jurisdiction, notwithstanding the FL
ing was after the first ak months.
This would seem to be conclusive that
The Probate Court did extend the
lime; but it further appear, that the
OF the appellant was en-
iorsed by the words, "By permission
cause considered sufficient. E. Smith,
Probate Judge" This clearly shows
hat the filing of the statement was
~ permission of the Probate Judge.
We do not see that any other con-
truction can be given to the words
By permission. The filing alter
tx months from the Mayors notice
vas all the permission that could be
Isked OF the Probate Judge. There
ore, taking this language and the
action OF the court in hearing and
Icting upon the case, it is clear that
he filing Of the appellants state
nent was by permission OF the Pro-
,ate Judge.
The language OF that Judge further
8 the "Oause considered sufficient"
This can mean nothing else
han that the permission granted to
appellant to file her statement was SO
':anted for "cause considered sufti-
iient." 1t was incumbent upon the
Probate Judge to decide whether the
,ause was sufficient or net, to author
re the filing. The matter was left
o his discretion and based upon the
act whether there was good cause
hoRn. The question oil good Gauss
,eing one to be found by the Probate
Court, and it having passed upon it,
here 10 at least a prinaG facie case ss
o jurisdiction in the Probate Court,
made out by appellant. and one that
{ not contrsdicted in direct proceed
ngs, cannot be questioned collater-
lily. freeman, in his works on
Judgment" and "Void Judicial
iales," says that Wherever the
OF court not of record
depends on fact Which it is required
o ascertain and settle by it's decision,
{ the court had jurisdiction OF the
'arties, is conclusive, and not subject
o. any collative ATTACH" freeman
n Judgments. sec. 523. Freeman's
Ioid Judicial Sales, sec. 4.
But on the appeal OF said matters
o the District Court, the finding
made by the latter court puts the
natter in still clearer light. 1t says
bat "both parties have by applica-
ion duly filed herein, in the Probate
;ourt of Salt Lake County, claimed
o be the legal owners" etc. In this
it would seem that the
acts showing the good cause" were
'roven in the District Court, as that
curt could only make fndings Of
acts proven, and the findings of that
curt ore conclusive OF the facts
'roven therein, when the evidence is
lot brought up.
But it Ia urged that the District
)ourt had no Jurisdiction; that the
losice of appeal from the Probate
COURT to the District Court was not
erved. The findings OF the District
Court chow Hthat the notice OF said
appeal was given and served on the
respondent, and that the appeal was
perfected in all things required by
sw." 1t was not necessary that the
service OF the notice should be en-
iorsed on the notice. 1t may have
been shown by oral testimony, IA
here was no evidence in TIE record
oHered showing the fslsity of the find
Ings, they are conclusive in this court
as to the facts. Findings are a part
Of the judgment roll and import
verify. (Civil Pr. Act, sec. 203;
Comp. L., p. 457. Freeman on
Judgments, sec. IS and sec. 124 l31.
Hahn rs. Kelly, 81 CAL, 1872. Free
man on Void Ssles. sec. 8
The Mayors deed should have been
/. was not necessary that
it should have been witnessed. Comp.
L., I166, sec. l, PIP. 379-3S0.
Whether it was sufficient to carry the
title was a subject of after considers.
ton, and not then before tho court.
But taken IN connection with fact:
found and decision made by the Dis.
triot Court in favor of the appellant
in the contested case for the Mayor
deed, it was certainly competent anC
suficien! to show title ia the eppel
liant herein. TIE deed vas primt
facie evidence itself that everything