The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-01-16

Judge Hiies yesterday handed down
decisions IN a number OF cases which
he has had under Amusement The most
important were in the suits Of Daniel
S. Aosby VS.. Matt T. Osborn, the Gey-
ser Mining company and Emmerline
DRESSER; Gustave \. Duncan VS.. Matt
T Osborn, the Geyser Mining company
ct al, and Samuel Mcintyre VS.. the
Ajax Mining company, u. NJ Ryan ct
al, in all three of which his honor
found the issues for the defendants.
In the first-named case the opinion
is couched in strong terms, and al
though it gives the decision in favor of
the plaintiff, is very far from an ap-
proval of the actions of Osborn. In
short, his honor says il is the law. but
"a re0roach TO justice
Daniel ) Mosby. for whom the suit
was brought by ;. w. MoSby, guardian
ad Item, is insane and has been
in that condition since 1889. According
to the testimony il was shown that in
October, 1882. he became owner OF an
undivided half jnterest in the Geyser
patented mining claim, in the Camp
Floyd mining district, TOoeie county,
by purchase from Osborn.
Mosby left Utah about the year 1888
or 1884, giving Osborn the power of at
ltIAGN- ne SOOu aAlGL DGNclilc 4-4Sei-ASs
when GisOorn requested Emmerllne
DRESSER, the mother of Daniel S Mos
by, to apply for letters OF guardianship
of the estate of Daniel, at the same
time promising to pay her $1,000, and
claiming that he could not dispose Of
the property until guardian was ap-
pointed. Osborn further informed Mrs
Dressler that her sons interest in the
property amounted to $4,000
After the letters of SuaTdla nShiD were
issued to Mrs. DRESSER by the probate
judge OF Tooeie county, GisDorn, by
agreement with Mrs. DRESSER, COM
menced suit in the Third district court
alleging that Daniel 5. Mosbys inter-
est in the property was only a mort
gage for $4,000. and that he never was
an owner IL it. At the suggestion Of
Osborn, Mrs. DRESSER allowed default
to be entered against her, and judgment
was accordingly rendered in favor of
Mosby for $1,000 and interest, and quiet
ing Gisborn's title to the property on
satisfaction of the judgment. Osborn
afterwards assigned all his interest in
the property to the Geyser Mining COM
pany.
S. w. Mosby then stepped in and
asked that this judgment be annulled.
First, because the court had no juris-
diction, Tor that Mrs. DRESSER was not
legally appointed the guardian of Dan
lei -. 1lOSUA- St-EOllus that ATlSOoll4 Was
guilty of fraud, which prevented Mrs.
Dressler from making a proper defense.
CAN'T BE COLLATERALLY AT
Tackled.
on the first point. the opinion says:
at seems the Third district court found
and adjudged that Mrs. Dressler was
the duly appointed guardian of the es-
tate of Mosby, and under the law as 1t
70
be proof against collateral attack DO
rot say that it ought TO be the law,
but il is So"
FALSE CLAIM
On the second point, Judge Hiles
says:
I believe. from the evidence, that
there is not the slightest reason TO
doubt that the claim of Osborn that
the contract and deed of 1880 and the
patent were in the nature of mort
gage was a false claim, and that if
Mrs Dressler had done her duty, she
would have answered and defeated
such false claim; but the evidence
shows that she was entirely careless of
what claim Osborn might assert in
that suit against her ward and son, so
long as she got the 5000 which Gis-
bCrn had promised her
Her negligence and passivity in the
matter amounts, in my judgment, al
most to an active participation in the
fraud Of Osborn. She distinctly says
that Osborn told her before the suit
that her son was TO put in s., 200 for
half interest in the Geyser, and also
that Osborn never said to her that her
son was to have the money back again
In view of this direct and explicit
statement on her part, I cannot find
from the evidence that Osborn made
2 false representation to her which
prevented her from doing her duty and
defending against the false claim set
up by Osborn in his complaint in that
suit
"She knew, or had good reason to be-
lieve. that the allegations of Gisborn's
complaint asserting that Mosbys in
terest was but d mortgage, was a false
allegation.
IT seems, therefore, that no decep-
ton was practiced upon her, and under
the decision of the courts of the coun-
try frauds only which are eXtrinsic or
collateral to the matter tried. and
which were not in issue or could not
have been put in issue IN the former
trial. can be shown as foundation for
setting aside q judgment or decree.
For these reasons judgment must
be for the defendant. Considering the
property rights and interests OF the in
sane ward, l have not the slightest
doubt that the decision in this G~se is
a reproach TO justice; it seems. how
ever. to be in entire keeping with our
Jurisprudence on the subject.
Let findings and judgment to enter
81 accordingly
p q ~