LARSON, Justice.
This is an appeal from the District Court of Cache County. Plaintiff’s complaint sets forth two causes of action. The first is for the sum of $187.50 paid by plaintiff as funeral expenses of defendant’s intestate; and the second, in claim and delivery for possession of a Dodge coupe. Defendant joined issue. A jury found for defendant on the first cause of action, and for plaintiff on the second cause. Both appeal. T. F. Jackson, hereinafter referred to as decedent, on June 27, 1936, obtained an interlocutory decree of divorce, and on December 7,1936, some 20 days before the decree became final, entered into a marriage contract at Preston, Idaho, with plaintiff. In January, 1937, decedent bought a new Dodge coupe which was registered in his name as legal owner. For some years decedent had been a member of the Carpenters’ Union, and upon his death his wife was entitled to receive from the Union the sum of $300 known as a funeral donation. After the marriage contract with plaintiff decedent had the Union make this donation payable to plaintiff. He died in December, 1937. The Union paid the $300 to plaintiff and from it she paid the funeral expenses of decedent in the sum of $187.50. Decedent’s children by the former marriage then raised the question that the marriage to plaintiff was illegal and defendant, James, was appointed administrator. This action followed. Plaintiff contends that since she was not the wife of decedent she was under no obligation to pay the funeral expenses, and having paid the same for the benefit of the estate she is entitled to recover back the amount so paid. As to the other cause of action she claims that immediately after the purchase of the coupe decedent gave it to her as a wedding present. The pertinent question as to each cause of action is: Does the evidence sustain plaintiff’s contentions ?
We shall first consider the record as to defendant’s appeal on the second cause of action. Two points are argued: (a) That the evidence does not sustain the verdict of the jury; (b) that regardless of the evidence since the transfer
of title had not been made in the manner provided in Sections 62 and 71 of Chapter 46, Laws of Utah 1935, the gift if made was void in law. We note them in order.
No useful purpose could be served by entering into a dissertation on the law governing gifts inter vivos since no such question is directly presented on this appeal. Discussion of all questions which could arise in this cause can be found in the following cases:
Holman
v.
Deseret Savings Bank,
41 Utah 340, 124 P. 765;
Wood
v.
Wood,
87 Utah 394, 49 P. 2d 416;
Christensen
v.
Ogden State Bank,
75 Utah 478, 286 P. 638;
Robinson
v.
Mut. Sav. Bank,
7 Cal. App. 642, 95 P. 533;
Harmon et al.
v.
Kerns,
169 Okl. 290, 36 P. 2d 898;
Waite
v.
Grubbe,
43 Or. 406, 73 P. 206, 99 Am. St. Rep. 764;
Thomas
v.
Thomas,
70 Colo. 29, 197 P. 243;
Wooley
v.
Taylor,
45 Utah 227, 144 P. 1094;
Chambers
v.
MeCreery et al.,
4 Cir., 106 F. 364;
In re Calen’s Estate,
142 Misc. 363, 255 N. Y. S. 383;
Lynch
v.
Lynch,
124 Cal. App. 454, 12 P. 2d 741;
Gannon
v.
McGuire,
160 N. Y. 476, 55 N. E. 7, 73 Am. St. Rep. 694;
Wiley Allen Co.
v.
Edwards,
29 Cal. App. 184, 154 P. 1066;
Peirce
v.
Giles,
93 Ill. App. 524;
Robinson
v.
Hoalton,
213 Cal. 370, 2 P. 2d 344. This being an action at law and the jury having found the facts, we can not disturb the verdict if there is evidence from which the jury as reasonable men could so have found. We have carefully read the record and must conclude that there is competent evidence to sustain the verdict of the jury for the delivery of the car to the plaintiff, and this point is resolved against appellant.
But, argues appellant, even though the evidence shows a gift of the car to plaintiff yet the gift is void in law because the ownership registration was not transferred in the office of the State Tax Commission. In support of this position they cite Section 71 of Chapter 46, Laws of Utah 1935, and the case of
Swartz
v.
White,
80 Utah 150, 13 P. 2d 643. Appellant however misconceives both the effect of the statute and the import of the decision. The statute cited reads:
Section 71:
“Until the department shall have issued such new certificate of registration and certificate of ownership, delivery of any vehicle required to be registered shall be deemed not to have been made and title thereto shall he deemed not to have passed, and said intended transfer shall be deemed to be incomplete and not to be valid or effective for any purpose except as provided in section 76 of this act.”
Be it noted that the section does not apply to all vehicles but only to those
required to be registered.
By Section 19, before a motor vehicle can be driven on a public highway it must be registered. By Section 61, the transfer or assignment of title to a car automatically terminates the registration. Section 63 provides that the transferee of title to a car,
before operating sueh vehicle on a, highway
shall secure a new registration of title, thus recognizing that he gets the title without transfer of registration. Section 66 further supports this view and Section 67 contains this significant provision:
Section 67:
“Upon any such transfer a new owner may either secure a new registration and certificate of title on proper application,
upon presentation of such instruments or documents of authority or certified copies thereof as may he sufficient or required by law to evidence or effect a transfer of title or interest in or to chattels
in sueh case, or sueh new owner, upon transferring his title or interest to another person shall execute and acknowledge an assignment and warranty of title and deliver the same, also the documents of authority or certified copies thereof as may be sufficient or required by law to evidence the right of such person, to the person to whom such transfer is made.” (Italics added.)
Section 69 provides for transfer of registration in certain cases by affidavit. It seems therefore that Section 71 is not to be construed, as contended by appellant, as absolute and mandatory to pass a title. In the light of the whole chapter it is evident that its provisions were written to protect innocent purchasers and third parties from fraud but was not intended to be controlling as between the parties to the transaction. It may well be
doubted that the legislature could make mandatory any such formalities as a prerequisite to transfer of title as between the parties.
Free access — add to your briefcase to read the full text and ask questions with AI
LARSON, Justice.
This is an appeal from the District Court of Cache County. Plaintiff’s complaint sets forth two causes of action. The first is for the sum of $187.50 paid by plaintiff as funeral expenses of defendant’s intestate; and the second, in claim and delivery for possession of a Dodge coupe. Defendant joined issue. A jury found for defendant on the first cause of action, and for plaintiff on the second cause. Both appeal. T. F. Jackson, hereinafter referred to as decedent, on June 27, 1936, obtained an interlocutory decree of divorce, and on December 7,1936, some 20 days before the decree became final, entered into a marriage contract at Preston, Idaho, with plaintiff. In January, 1937, decedent bought a new Dodge coupe which was registered in his name as legal owner. For some years decedent had been a member of the Carpenters’ Union, and upon his death his wife was entitled to receive from the Union the sum of $300 known as a funeral donation. After the marriage contract with plaintiff decedent had the Union make this donation payable to plaintiff. He died in December, 1937. The Union paid the $300 to plaintiff and from it she paid the funeral expenses of decedent in the sum of $187.50. Decedent’s children by the former marriage then raised the question that the marriage to plaintiff was illegal and defendant, James, was appointed administrator. This action followed. Plaintiff contends that since she was not the wife of decedent she was under no obligation to pay the funeral expenses, and having paid the same for the benefit of the estate she is entitled to recover back the amount so paid. As to the other cause of action she claims that immediately after the purchase of the coupe decedent gave it to her as a wedding present. The pertinent question as to each cause of action is: Does the evidence sustain plaintiff’s contentions ?
We shall first consider the record as to defendant’s appeal on the second cause of action. Two points are argued: (a) That the evidence does not sustain the verdict of the jury; (b) that regardless of the evidence since the transfer
of title had not been made in the manner provided in Sections 62 and 71 of Chapter 46, Laws of Utah 1935, the gift if made was void in law. We note them in order.
No useful purpose could be served by entering into a dissertation on the law governing gifts inter vivos since no such question is directly presented on this appeal. Discussion of all questions which could arise in this cause can be found in the following cases:
Holman
v.
Deseret Savings Bank,
41 Utah 340, 124 P. 765;
Wood
v.
Wood,
87 Utah 394, 49 P. 2d 416;
Christensen
v.
Ogden State Bank,
75 Utah 478, 286 P. 638;
Robinson
v.
Mut. Sav. Bank,
7 Cal. App. 642, 95 P. 533;
Harmon et al.
v.
Kerns,
169 Okl. 290, 36 P. 2d 898;
Waite
v.
Grubbe,
43 Or. 406, 73 P. 206, 99 Am. St. Rep. 764;
Thomas
v.
Thomas,
70 Colo. 29, 197 P. 243;
Wooley
v.
Taylor,
45 Utah 227, 144 P. 1094;
Chambers
v.
MeCreery et al.,
4 Cir., 106 F. 364;
In re Calen’s Estate,
142 Misc. 363, 255 N. Y. S. 383;
Lynch
v.
Lynch,
124 Cal. App. 454, 12 P. 2d 741;
Gannon
v.
McGuire,
160 N. Y. 476, 55 N. E. 7, 73 Am. St. Rep. 694;
Wiley Allen Co.
v.
Edwards,
29 Cal. App. 184, 154 P. 1066;
Peirce
v.
Giles,
93 Ill. App. 524;
Robinson
v.
Hoalton,
213 Cal. 370, 2 P. 2d 344. This being an action at law and the jury having found the facts, we can not disturb the verdict if there is evidence from which the jury as reasonable men could so have found. We have carefully read the record and must conclude that there is competent evidence to sustain the verdict of the jury for the delivery of the car to the plaintiff, and this point is resolved against appellant.
But, argues appellant, even though the evidence shows a gift of the car to plaintiff yet the gift is void in law because the ownership registration was not transferred in the office of the State Tax Commission. In support of this position they cite Section 71 of Chapter 46, Laws of Utah 1935, and the case of
Swartz
v.
White,
80 Utah 150, 13 P. 2d 643. Appellant however misconceives both the effect of the statute and the import of the decision. The statute cited reads:
Section 71:
“Until the department shall have issued such new certificate of registration and certificate of ownership, delivery of any vehicle required to be registered shall be deemed not to have been made and title thereto shall he deemed not to have passed, and said intended transfer shall be deemed to be incomplete and not to be valid or effective for any purpose except as provided in section 76 of this act.”
Be it noted that the section does not apply to all vehicles but only to those
required to be registered.
By Section 19, before a motor vehicle can be driven on a public highway it must be registered. By Section 61, the transfer or assignment of title to a car automatically terminates the registration. Section 63 provides that the transferee of title to a car,
before operating sueh vehicle on a, highway
shall secure a new registration of title, thus recognizing that he gets the title without transfer of registration. Section 66 further supports this view and Section 67 contains this significant provision:
Section 67:
“Upon any such transfer a new owner may either secure a new registration and certificate of title on proper application,
upon presentation of such instruments or documents of authority or certified copies thereof as may he sufficient or required by law to evidence or effect a transfer of title or interest in or to chattels
in sueh case, or sueh new owner, upon transferring his title or interest to another person shall execute and acknowledge an assignment and warranty of title and deliver the same, also the documents of authority or certified copies thereof as may be sufficient or required by law to evidence the right of such person, to the person to whom such transfer is made.” (Italics added.)
Section 69 provides for transfer of registration in certain cases by affidavit. It seems therefore that Section 71 is not to be construed, as contended by appellant, as absolute and mandatory to pass a title. In the light of the whole chapter it is evident that its provisions were written to protect innocent purchasers and third parties from fraud but was not intended to be controlling as between the parties to the transaction. It may well be
doubted that the legislature could make mandatory any such formalities as a prerequisite to transfer of title as between the parties. It can of course prescribe such rules to be effective as to third parties and it may perhaps provide that the registered title shall be an element in determining liability for damages resulting from the operation of the car, as indicated by Section 76.
Let us now devote a few minutes to a more particular analysis of Section 71, the section upon which appellant relies. It will be noted from the italicized portions of the section, quoted supra, that the title
shall he deemed not to have -passed
and the transfer
shall be deemed
to be incomplete. These provisions are not absolute, mandatory, or controlling in their application. They do not confer or deny substantive rights. They are procedural or evidentiary in nature. They provide a flag of warning to prospective transferees or encumbrancers, much as do the registry acts relative to real estate or chattel mortgages. Such was the effect given the statute in
Swartz
v.
White,
80 Utah 150, 13 P. 2d 643.
A consideration of the statute shows it is not to be construed as attempted by appellant, and this point is likewise resolved in favor of the verdict and judgment. In this connection appellant argues that the court erred in permitting plaintiff to testify, contending she was barred by the provisions of Section 104-49-2, Revised Statutes of Utah 1933. Plaintiff did not testify as to any transactions had with decedent or as to any conversations with him, and there was consequently no error in permitting her to testify as a witness.
We come now to a consideration of the plaintiff’s cross-appeal as to the first cause of action. A number of technical objections are raised by appellant as to whether there are any assignments of error for consideration on this phase of the appeal. But it is unnecessary to consider those questions. The case was tried to a jury which returned its verdict May 16,1938, and judgment on the
verdict was entered May 17, 1938. On August 23, 1939, notice of cross-appeal was filed. The record discloses that no motion for a new trial as to this cause of action was ever made in the court below. Under the provisions of Section 104-41-5, Revised Statutes of Utah 1933, in all cases tried by a jury a motion for a new trial must precede an appeal to this court in an effort to review the sufficiency or effect of the evidence. No such motion having been made in the court below, and the only attempted assignments of error going to such questions, the matter is not properly before us for review, and the verdict and judgment on the first cause of action should be affirmed.
Finding no prejudicial error in the record, the judgment appealed from is affirmed as to both causes of action. Costs to respondent as to the appeal by appellant on the second cause of action. Appellant is however awarded his costs incurred in defending against respondent’s cross-appeal on the first cause of action, being his costs for eight pages of the appellant’s reply brief.
MOFFAT, C. J., and McDONOUGH and PRATT, JJ„ concur.