The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-11-08
In Post VS.. Madsen and Jennings,
Appellants.
SUPREME COURT OPINION
INVOLVED $3.50 SHARES OF Ola
MoND COKE & COAL co.
The Jennings Investment Company
Wants Action of County Board of
Equalization In Raising Valua-
ton Reviewed By Supreme Court
and Declared Void-Notes.

The supreme court yesterday handed
down an o0inion in the case OF w. ).
Post VS.. Georgia Foote ct al, respond
ents, p. w. Madsen and Thomas w.
Jennings, appellants, in which the ap-
peal is dismissed.
The action was begun in a Justices
court against the defendants FOote and
Cummings, to recover $254.30, and judg-
ment was entered against both defend
ants for $235 and costs. Cummings ap-
pealed but Foote did not, and Madsen
and Jennings were surerieS on the APP
peal bond. In the district court judg
ment was given for the Dlaintin for
$216.60 and costs against the defendant.
Post assigned the judgment to Jennings
and Maosen, who procured an eXecu-
ton to be issued against both Foote and
Cummings, ana $3.50 shares of the cap
ital stock of the Diamond Coal & Coke
company as the property of defendant
Foote. No demand for judgment was
made upon Foote. nor was the notice
of sale or the issuing or levying of the
execution or sale ever brought to
Foote's attention. The stock was sold
under execution, and bought by the ap
pellants, Madsen and Jennings, for $40,
which sum was credited on the judg-
ment.
Foote and Cummings heard of the
sale and filed q petition in the district
court to have it set aside, on the ground
of inadequacy of consideration paid for
the stock, collision and conspiracy to
obtain the stock. which was worth
$4,000 to $4,000, for practically moth
ing. The district court made an order
setting aside the sale, and from that
order Madsen and Jennings appealed.
The opinion, which was written by
Justice Miner and concurred in by
Chief Justice Zane and Justice Bartch,
held against the appellants, and says:
Upon the theory cOntended for by the
appellants, while there is no appeal
from a judgment rendered in the dis
trict court on appeal from a judgment
rendered by a justice of the peace, yet,
if an order is made therein after judg-
ment setting aside fraudulent sale on
execution issued upon the judgment, an
appellate jurisdiction is created, not by
operation of the constitution, but by
the acts of the parties, or by the court.
1t seems to US that such a construction
of the constitution would, in many
cases, annul it's provisions, and give in
terested parties right of appeal when
their rights could be preserved or their
remedy made complete without such
action. Whether the order setting aside
a sale involves the rights of the par
ties to the action or third persons who
purchased an interest in the judgment
aller IL was rendered VIII not chdnPe
the rule. The district court had power
to control its process and to set aside
the execution sale.
THE purchaser at an execution sale
being the owner OF the judgment by
assignment, subjects himself to the jur-
isdiction of the court in respect to the
sale and purchase. When the appel
lants purchased it subject to the power
and authority of the court to set aside
the sale in it's discretion upon proper
grounds. That the sale was set aside
presents no grounds for appeal The
execution may be again levied and the
appellants may bid again at the eXecu-
ton sale. There is no vested right to
an appeal.
''The purchasers at the execution
sale, assignees of the judgment, are the
real parties in interest. They We're
sureties on this appeal bond and
manipulated and controlled the sale of
the stock. Without giving notice to the
parties they sold the property shown
to be worth $4,000 and upwards for $40
and themselves became the purchasers.
I'VE are of the opinion that no appeal
lies from the order appealed from to
the supreme court. Under the circun-
stances shown the appeal is dismissed
with COSTS"