Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1907-06-26
SUPREME COURTS
IDEA DIFFERENT
Bricks Bought From Proceeds OF
Sale Of Appellants Home
stead Exempt.
APPEAL LAW INTERPRETED.
Don Porter May Have New Trial ON
old Judgment Rendered Early
Last Year.

Two opinions were handed down by
the supreme court today both of which
are reversals OF the action Of the
lower court In the case Of Lars Chris
Jensen. appellant, VS. oscar Beebe'
sheriff Of Emery county the judg-
meut Of the lower court is reversed and
the opinion holds that 10000 brick puT-
chased from the proceeds Of the sale OF
the homestead Of appellant are exempt
from execution. ON June %, 1905, the
sheriff levied upon the brick at Castle
Dale under an execution against Chris
Jensen. The latter claimed that they
were exempt for the reason that they
had been purchased from the proceeds
OF the sale of his homestead which
was told in 1908, the brick being re-
celved IN the fall of 1904 as part Of the
purchase price
The sheriff demurred 10 the complaint
on the ground that II did not state
facts sufficient to constitute cause OF
action. This demurrer was sustained
and the case was dismissed. Chrsten-
sen appealed but the ruling Of the court
on the demurrer was waived so as TO
decide the question as to whether or
not the brick were exempt from exc
cution. The law provides that the pro-
ceeds OF the sale of a homestead snail
be exempt for one year after the sale
In this case 1t is held that the sale was
not completed until the fall OF l9Vf'
when 1t was agreed AT the time Of the
sale the brick should be delivered.
hence when the brick We're levied upon
In June, 1906, they were exempt, The
lower court is therefore ordered TO
overrule the demurrer and permit the
sheriff to answer II he chooses 10 DO
so ana TO proceed with the trial Of the
issues.
ORDERED TO REINsTATE.
The other opinion is IN the case of
the State ex rel Don Porter against
Judge NJ. l.. Richie of the Third dis
trict court In this case a writ of
mandamus Is granted by the supreme
court directing the lower court to va
cate his order Diminishing the appeal
from the Justices court and TO rein
state the case and proceed 10 trial,
A Judgment was rendered in the JUS
tice court against MIR. Porter In favor
of Mae Houghton for s4I.66 and costs
on Jan 3. 1906. and ON Jan. II motion
for a new trial was filed by Porter
No action was taken on the motion I'M
Il, Oct. ], wnen It was denied by the
justice. on Oct. 10 a notice of appeal
was filed by Porter and was followed
in legal time by the filing of an under
7
called before Judge Richie in the dis
| trict court motion TO dismiss the APP
pea- vwtrs- mad Sby IN e attorney for
| plaintiff on the ground that the Justice
| did not rule on the motion for new
trial within 10 days as provided by law
and hence the appeal was not taken
| within the statutory time. The appeal
| was dismissed and Porter then moved
| TO reinstate the case but his motion
| was denied, whereupou he applied to
| the supreme court for writ of mandate.
Under the law an appeal may be taxi
| EN- from a Justice court within 30 days
| from the entry OF final Judgment, but
| the time does not run when a motion
| for a new trial has been made In due
time and is still pending as In this
| case. The principal point raised In the
| appeal is as to the time n Justice court
I may have In which to rule on a motion
| for n new trial Under the laws OF
| 1855 IT appeared by the punctuation ~
/ the section under dispute that the couri
| may grant new trial within ten lays
upon motion being filed. When the laws
were revised IN 1898 the punctuation
was changed So as to leave no doubt ms
| to the intent OF the legislature, namely
| that the motion for a new trial must
be made within 10 days from the rendi-
| ton of the judgment and not that tn;
court must rule on the motion within
that time.
The law 5 construed in the opinion tC
mean that the motion may be fllec
| within that time and the court may de-
eide 1t at his pleasure. That beinf
| the case the Justice was not compelled
10 rule on the motion within 10 dayi
and as the appeal was taken within .
days after the motion for new tria
was denied 1t was taken In time ant
should not have been dismissed. Judg'
Richie is, therefore. instructed TO re
Instate the case and vacate his ordel
dismisslng the appeal and proceed viii
the trial. Justice Frick wrote boil
opinions, which are cOncurred IN b!
chief Justice McCarty and Justtc
Straup.