Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1900-03-24
MRS. MACINETTI
LOSES HER SUIT
Judge HiIes Renders a Decision in
Favor Of Defendants,
EMBEzzLEMENT NOT PR0yED
Court, However, Holds That Defend
ants are Legally Owing Plain
tin the sum Of $1,000.

Judge Hiles today rendered a decision
In the case Of Jessie MarginettI W F. d.
Bishop John II, Human aud Harvey
Hardy, formerly real estate agents,
finding the issues In favor Of the de-
PENDANTS.
The plaintiff IN this case brought sui,
against the defendants for the purpose
OF establishing the validity OF a judg-
ment previously entered In the district
court against the three defendants
Human went into bankruptcy and was
duly discharged, but Mrs. Maginetti
claimed that her debt and claim
against Human was excepted from the
provisions OF the bankruptcy act for
the reason that IL was on account Of
moneys held by him In a hduciary ca
paclty for plaintiff and embeszled or
Incorporated by Human or his
partners, Messrs Bishop and Hardy.
The record in the case shows that on
March 18th, 1891, plaintiff took the de-
PENDANTS note for $1,000 Later she
sued to recover the amount and got
judgment, claiming that II was not for
money loaned, but for money which
Human, or the firm, had previously
obtained and Incorporated and EN-
bezzled
The contention Of the defendants was
that by reason OF Mrs. Maginettis ac-
ceptance OF the note and by reason OF
her suit upon it and the obtaining of
judgment, she waived all question Of
fraud aud was therefore estopped from
alleging that the $1,000 was misappro-
priated and embezzed. They also
pleaded the statute OF limitations. but
Judge Hlles holds that neither defense
was good The question for decision,
the court. finds, was whether the 81, 900
was embezzled by the defendants, or
whether as, they claimed, the money
was loaned Judge Hiles finds from
the evidence that Mrs Maginetti
loaned 81 900 and left another sl56250
with the defendants and which they
subsequently loaned out. The 1900,
the court hnds. was entered on the
books Of the partnership In the ordi-
nary course OF business on March u,
1891.
TESTIMONY IMPEACHED.
In arriving at this conclusion says
the court. II have been compelled to
lay the testimony OF Mr.. Bishop en-
tirely out OF the case, because the az
fdavit which he made for the purpose,
as he says Of defeating Mr. Humans
discharge In bankruptcy IL obviously
untrue, and was known by him to be
untrue when he made Il. and was, as
he confessed, made merely for the pur-
.ose OF defeating Mr.. Humans dis
charge Therefore his testimony Is so
clearly and directly imDeached, that II
had no weight or consideration by me.
in arriving at this conclusion: but the
credible witnesses In the case show
that Mrs. Maglnetu was mistaken
when she says that she did not agree
that the defendants should have the
81 200 Of the McGilwray money as a
loan; and ! think the fact Is that Mrs.
Maglnettl did not demand payment OF
the note until year afterwards, or
nearly year afterwards. In Febru-
airy, 1892. when she discovered the part
nershlp had failed and that they were
probably unable to pay her
MONEY STILL OWING.
There is no doubt, OF course, that the
defendants owe this money TO Mrs
Maginetti; that they are legally as
well as morally bound to pay her, but
that there was an embezzlement or a
fraudulent transportation OF II Is not,
according 70 the evidence. the fact In
the case
The court then directs that findings
and judgment be entered for the de-
PENDANTS