Mackey v. Enzensperger

39 P. 541, 11 Utah 154, 39 P.R. 541, 1895 Utah LEXIS 47

Opinions

Bartoh, J.:

The plaintiff brought this action to recover upon a judgment for $1,763.77, obtained against the defendant in the state of Colorado, which judgment the plaintiff claims has never been paid. The defendant, in his answer, has set up full payment and satisfaction. The jury, by a verdict, concurred in by nine of their number, found the issues for the defendant, and the court entered judgment thereon, dismissing the plaintiff’s complaint, and for costs in favor of the defendant. From this action of the court the plaintiff appealed, and the sole question raised is whether a verdict, being concurred in by less than 12 jurors, as provided by the act of the territorial legislature, approved March 10, 1892, will support a judgment.

This question was decided in the affirmative by this court in the case of Hess v. White, 9 Utah, 61, 33 Pac. 243, and the ruling in that ease has been followed in several other cases; but counsel for the appellant have cited us to several decisions of other appellate courts, made since the decision of Hess v. White, wherein the contrary view was adopted. We have examined the recent cases cited, but the reasoning of those decisions is not such as to warrant a departure from the doctrine enunciated in Hess v. White. The judgment is affirmed.

Smith, J., concurs.