Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1907-06-11
TWO REvERsALs,
Supreme Court Passes on the Filing OF
Legal Documents.

supreme court IaoStS Oli ttf 'hbs- va
Legal Documents.
The supreme court today handed
down an opinion reversing the judg-
ment of the lower court IN the case
OF Margaret II. Cutler against Thomas
Haycock, appellant. and instructed
the lower court 10 set aside the dfault
and Judgment and permit the defend
ant to answer, The action was
brought TO replevin certain goods held
BY Sheriff Hancock and the time for
him to enter an appearance i'm the case
expired on Dec. 1, 1905. ION that date
his attorney served a demurrer on
plaintiffs attorney by leaving copy
of the same with the attorneys wife,
the attorney being from his place OF
business. The demurrer was then
mailed TO the clerk of the court some
90 miles distant for filing 1t reached
its destination on Dee 4.
PLAINTIFFS attorney objected to its
being filed as of date of service, so 1t
was filed as of date Dec. 4, which was
three days after the time for apear-
ance had expired, The attorney then
had the default OF defendant entered
and proceeded TO take default judg-
ment against him. Haycocks attor-
ney objected to default being entered
and rendered an answer TO the COM
plaint which the court refused to al
low filed. After the judgment was
entered the attorney for defendant
moved to set aside the default and
vacate the Judgment and offered am
davitS I'm support OF his motion set
ting forth that he had good defense
TO the action, The court denied the
motion and this ruling is set forth IN
the appeal as error,
Justice Frick i'm delivering the
opinion of the supreme court. holds
that as the law requires papers to be
filed with the clerk of the court with
in a certain time attorneys cannot
rely ON the mails tn reach the Office
in time but must see that they are
Med within The proper time Hence
as Ia the action Of the court In IN
tering the default of defendant the
court holds that no error was COM
mitted, However, In the interest Of
equity where a default Is entered be-
cause of eXCusable delay or neglect
the statutes give tho court the right
10 use it's discretion In regard to set
ting aside the default and permitting
trial OF the issues. In this case
the lower court followed the ruling
of the supreme court in the Grosier
case. The supreme court holds that
the lower court miscDnstrued the Tul-
ing in that case and further that it
did not use lts discretion hut followed
that case which was not applicable In
whole 20 the facts in the case at bar.
hence 1t erred in not using fun and
free discretion and In not setting
aside the default The judgment is
therefore reversed. the default set
aside and The appellant is permitted
to hlc his answer 40 that the case
| may proceed TO trial
| The case OF r. q. Jolly. administrat-
/ or Of the estate of W. j. Jolly ST., de-
ceased against Thomas Haycock, APP
| pellant. rs based on The same facts
! AIS u the preceding case, hence the
! supreme court reverses the judgment
! IN that action also and permits an
answer TO be fed and a trial OF the
case 10 be had. Both opinions are
concuTrcd in by chief Justice Nc
! Carty and Justice Straup.