Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-10-04
OPINIONS HANDED DOWN
THE flSaER-ENEssoN CASE REVERSED.


ords to the County "''"ruor' or
Remain in jail
A.,
Ihe supreme court VI Tue Sua'e TO-
Gay handed down an opinion Affirming
the Judgment OF the lower court in the
A.. c,i.,,,,, t,,,,, - -
Co., corporation appellant VS. the
Western Hardware Co. and oscar w.
Nto,,io ros,ordcnt mud Josenb t,eotyba-
~ ,'.,s.,.'..,,, a,,, n,,,-a,,s.,,.
gan ct a. IhteiNchoiS anu "PpeHahts.
The Western Hardware Co. made
mn assignment OF all it's property to
oso,r W. No,ie n, septan,hor q isec
OSeal W. "Ys ~ 'ii ~ - io'V'
Tor the benefit OF lt5 creoltofs. Iced
smoot wns a stakeholder and director
In tba oornoration. The provo Cam
=" - -. -,
'herDiai anu guy ''s' 'oiiN' VI "hhei'
Smoot was director and president, was
made n preferred creditor, by the d.
-, "a .t,,t,hoianrs % ,ho w..
iso'ui9 anu 9'"- s, nc
ern Hardware Co. flhihllt ana inter-
venors claimed that by reason of the
nreferonce Of the Provo Commercial
go, -. H., ,,,,,ta,, -,
ana SAVINGS bhtN' IN Wh'ch reed
Smoot was president. director and
rtockholder he derived n direct ad-
,,,r,ooo fro,,, sucb rrerare,ce ara
.,.ss'i. 80
That the assignment was therefore
void by reason of the preference of
the bank by the Hardware company
over other creditors, for whom he
stood in n position of trustee.
The opinion holds that the double
. .,,s,it,,a ". ntb no,,nora,tans
100 ,,a, ra,dsr Tho oarignr,en,
frenSuIent and void. because the bank
r. ,rhin, no ana lie v,ifo owned one,
,htsa - ~ stoHi, ,,ns r,oda a nra-
Terred creditor nv a vote of all The
etockholders and directors of the
Ssrdware comnnnv. in which vote he
particinated When the same result
woiild have been reached had he re-
trained from voting. and when the
preference and assIgnment was made
~ a bona flde debt In good faith With
out INV fraud or detention whatever.
md without any intention OF pre,
Serrine or beneflttInC MIR. Smoot ner-
eonnlly, Notwithstanding the hardware
comnar,y contaminated n cessation of
Its business. and vas insolvent at the
time.
The opinion adds; HAD the assign
ment been made frnudulently and in
bad faith. with an intent to prefer
officers and stockholders of the hard
ware company. or had n majority of
the directors and stockholders In the
hardware COmDQuy been officers ana
etockholders OF the preferred creditor
and had voted for such preference
with a fraudulent purpose, we should
doubtless arrive at a different con-
rlusion from that reached in this
ease"
LOWER coIrRT REVERSED.
,r,, 49,
Inc supreme Court also henueu
uoWh an oplhion reVersins .ne ueois
ION OF the lower court III 'ne sase y,
Nellie 10. flsher ct a. piaintiiis ana
respondents. vs. Harriet 5. EMERSON
uer r, uhu hppeilant.
rms action was brought TO en1oin
uelehuaht from consuue,ins Iehoc
upon a right ot way, a.esea 10 pc,
,ong 10 pinihtiHs, anu tnat piaintiils
pe uecreeu 10 nave Tree use OIL sucn
rignt Oh way me case came on lot
1 hearing july q 1870, anu on July W
lsyo, the court ieit WIN tne clerk an
Sruereu nieu i.s ueclslon anu rnuihss
IN wrl,ing' IN Que FORM nndins az the
materla, iacts IN favor OF me detend-
certain u consimsI s, ns , Ps''s' WIN
The clerks costs for filing not hav-
Ing been paid. by mistake. the filing
was not made, and a new trial was
had notwithstanding the objections
of the defendant, and the decision and
conclusions OF law made in this trial
and filed September 10. 1896, were con-
trary to the former decision and con-
clusions. and the Injunction prayed
for awarded.
Defendant appealed from this iudg-
ment, alleging that the court erred in
proceeding with the trial anew. and
making It's findings and judgment, he
cause OF the trial before the court OF
July Z. 1895, and the findInes and con-
clusions foiln6 in favor az The defend
amt. and that the same had NOT been
set aside or n new trial Granted nj
any time.
The Judgment appeaIed from ia now
reversed nv the siInrema Court and
the court below Ia dirccted 10 Get side
che fpdinye ~ foot o,d nonc,nsiors ~