Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-06-12
APPEAL DISMISSED.
Supreme Court Decision in a BsaVsr
City Case.
DEFENDANT WAS NOR SERVED
With = Notice Of Appeal, Which the
Court Now Holds Was
Fa al.

Inc buprtm court nhpueu uOWn IN
piuion today In tue case OF Nellie Il.
Racine, piaintifi and respondent. vs. w.
Il. Stanley, defendant. and Sarah b.
Thompson ., al, appellants, diminishing
ne appeal.
The parties all reside at Beaver and
the case was appealed from the Second
district.
Stanley, ~ receiver Of the partner.
chip Of Thompson Brothers, Sarah 3.
Thompson a. sdmiaistratrix Of the
estate OF e. w. Thompson Jr. and
Sarah .. Thompson, were made de-
fendants In an action to forsoloss .
mortgage, executed by +. w. Thomp.
son Jr. (siLcs dscesseU) to L. W.
Thompson ST., said mortgage hav-
lug been given to secure the
payment OF $1,000 note due
In six months after date. By
agreement the note was some time
later taken up and cancelled and an.
other given for 81. 1920, secured by the
same mortgage as given on the nrst
ote. The land thus mOrtgAged be.
longed to the partnership Of Thomp-
son Brothers, bought with partnership
iunds, but the title thereto was given
In the individual name OF +. w.
Thompson. The money was used IN
the partnership business ana the debt
was regarded by the nrn as partn or.
ship debt.
Some time later e. w. Thompson
Jr. died and his widow-5srah q.
Thompson--was appointed admins
tratrix oil the estate. Stanley was
appointed receiver OF the effects anu
assets OF tine Thompson partner
ship. The note ana mortgage
was trsnsfsrieu by the ElIer
Thompson TO Nellie T. Rschs
who sued the receiver for the principal
OF the note and interest. A demurrer
was filed ~ the complaint by defend.
ant Sarah 8. Thompson, wno later
withursw 1t, when Judgment was given
plaintiff by default for the principal Of
the note, Interest anu oosts. The de.
cree ordered the sale OF the property.
and that in case there was a deficiency
judgment should be entered for the
amount less against the defendant
Sarah 8. Thompson. From this judg.
ment Mrs. Thompson appealed, boin
in her right ~ the wife OF e. w.
Thompson Jr. and In the capacity of
administratrix Of her husbands estate.
The attorneys for respo ndsnt chal.
lenged the stand OF the appellants
In court, and made motion to dismiss
the appeal, claiming that W. b. Sta n.
ley, the co.dslendant, was not served
with = notice OF appeal, when he was
The necessary party TO the suit, by
| reason OF the partnership interest.
The court holds that this position was
sound and says:
1t is apparent from the facts above
| stated that the receiver was a necessary
and proper party to the suit. By allow
| ing default to be entered, 1t was
admitted, as alleged in The complaint,
that the money was borrowed Tor the
use OF the partnership, and thai the debt
secured by the mortgage, and for which
the mortgage was foreclosed, was in
reality partnership obligation. The
mortgage property belonged to the
partnership. Under these circumstance 8
| 1t may be we'll that the receiver was
satisfied with the Judgment which di-
| rected the sale of the property, aud
| relieved the partnership from any de-
I
tho interest OF the partnership would
not be affected by a reversal OF the
| Judgment. for 1, would be impossible to
know what the result of another trial
wonld be. To reverse the final iudg-
ment would be to overturn all the pro-
ceedings and leave the parties in the
same position in which they were before
| the case was tried.
| The receiver of the partnership oil
Thompson Brothers was clearly an ad
verse party, and the failure to serve him
with notice Is al to the appeal.
The same question was presented and
discussed with some care, in the case OF
Commercial National bank vs. United
8 ates Savings, Loan & Building COM
pany, Al Pacific reporter l043, and on
the authority of that case the appeal
herewith Is dismissed.
The opinion 10 written by Justice
Bartch aud concurred In Dy Chiei
Justice z ,ue and Justics Miner.
Williams, Van Colt and Suther.
land were attorneys for plaintiff an d
respondent ana Jones & 5hroeder and
Booth, Lse and Gray for dele nts
and appellants.