Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-11-06
DISMISSAL IS DENIED.
Supreme Court Decision In The Case Of The
BellViIle Co, VS. Samueson ct al.
PURPOSES OF AN APPEAL DEFINED.


The Supreme Court handed down an
opinion today in the case OF the Belle
vile Pump ana skien works. respond
ent. vs. Alma Samuelson and George
NJ Cannon, appellants. denying the
motion to dismiss the appeal.
This case was tried before Judge
Cherry last May and a verdict for the
Belleville company was rendered.
The plaintiff alleged that acting upon
the representation made by John p.
sorenson and others, who had said
they were solvent and owners of prop
erty amounting to s2O,lgO 1t furnished
the Sorenson g. Nelson furniture COM
pany with hardware amounting in
value TO $1,000. Three months later
1t was alleged. the furniture company
executed q chattel mortgage to So
cure the payment OF $500 to the State
bank, $3.50: to zion's bank, $2,l27.2o:
to Mary a. Tonneson and S647 to Alma
Samueslon. IL. NJ. Wells and George
NJ. Cannon were named as trustees.
The plaintiff further alleged that at
the time of the purchase of the hard
ware the Sorenson & Nelson COM
pany were insolvent and that the
goods were fraudulently purchased by
defendants with the intention of in
creasing the assets of the firm and for
the benefit of unlawful preferences
TO creditors. The defendants in an
swerlng denied the ownership of the
property and fraudulent Representa-
tons At the trial Judge Cherry
rendered Judgment in favor of the
plaintiff for the recovery of Its prop
erty and for costs A motion for a
new trial was overruled, when an ap-
peal was taken
When the case was called up in the
supreme court the attorneys for the
| respondent moved to dismiss the an
peal on the ground that all the adj
verse parties had not been served with
notices as required by section SO. Com
piled Laws of Utah for 1888. While
there were a number of defendants in
the case, two them--Messrs Sam
uelson and Cannon-appealed. Notice
was served on the plaintiffs but not on
the co-defendants. Before the case
was called the co-defendants entered
service of notice Of appeal. The at
| torneys for respondent contended that
| as no notice of appeal had been served
| the court was without Jurisdiction,
even though the respondent was served
| and the defendants had put in an ap-
poarance. This raised the question
| whether the failure to serve a written
notice on all parties interested in an
appeal affected the Jurisdiction of the
! Supreme court. Commenting on this
the court says:
THE purpose of an appeal is to bring
every party to the action whose in
terests would be injuriously affected
| by IA reversal or modification OF the
| judgment. under the Jurisdiction OF
| the appellate court This is upon the
| principle that no person can be de-
| prlved of his interests or rights in any
| judicial proceeding in his absence, or
without first having had his day in
| court and having been afforded an
| opportunity to be heard. The same
| purpose, 1t would seem. is subserved
when those who are interested In
| opposing the relief, which the
| appellants seeks. enter their appear
ance in the appellate court and waive
notice of appeal. In order that the
| adverse party may be bound by the
| Judgment of the appellate court, II Is
| necessary that he be brought before
| II, but. whether this be accomplished
| by a hostile notice from the appellant,
| or by voluntary appearance and wav-
| Ing OF notice. is immaterlal. In either
| case the court has jurisdiction, and all
the parties are bound by Its Judgment.
When the respondent is properly be-
| fore the court. and insists that CO.
| defendant has interests, which will he
iniuriously affected by reversal or
modification OF the judbment, he has no
/ right to complain of the manner I'm
which Jurisdiction Of such co-defend-
| ant IL obtained"
The court then orders that the mo-
| ton to dismiss he denied The case
| will now be submitted on Its merits at
| the next torn OF court.
The opinion is written by Justice
Bsrtch and concurred in by Chief Jus
tice Zane and Justice Miner.