Wall v. Dodge

3 Utah 168

• Court: Utah Supreme Court
• Decided: June 15, 1881
• Status: Published

Opinion

EMERSON, J.:

The judgment of the supreme court was an actual dismissal of the cause, and was as final and effective before its action was certified to the district court as it was after: Reynolds v. Hosmer, 45 Cal. 628. At the time this motion was made the case was not in court; it had been dismissed and thus terminated. If the judgment had been reversed, and the case remanded with directions to dismiss it, the judgment of this court being upon the ground of a want of jurisdiction in the lower court, that court could not properly render judgment for costs, there being no statute authorizing it: Felt v. Felt, 19 Wis. 193; Blackwood v. Jones, 27 Id. 498.

The court evidently treated the proceeding on this motion as one for restitution, and costs incurred by the defendants in the course of the litigation and not received by the plaintiff would not be within the purview of such relief.

The court below had no jurisdiction to make the order in relation to the payment of the one thousand two hundred and sixteen dollars and eighty-six cents, for, as above stated, there was no action pending in which such a proceeding could be had.

The order could not have properly been made even if this court had remanded the case for further proceedings. If the sale was valid at the time it was made, the plaintiff in the execution having become the purchaser, it was liable to be set aside upon a reversal or modification of the judgment of this court, in accordance with section 337 of the practice act, or by the court below if the case had been remanded and restitution made to the defendants of the thing lost in specie. If the property had come into the hands of a bona fide purchaser, so that it could not be restored in specie, they would be left to this action for damages or compensation: Farmer v. Rogers, 10 Cal. 555; Reynolds v. Harris, 14 Id. 668. But the court can not properly give damages or compensation on a motion, as was done in this case.

It is evident this motion was made in the interest and for the benefit of Lubbock. His affidavit fails to show how the defendants had lost anything or been in the least damnified. They have not paid the plaintiff anything, and he holds nothing received from them. Lubbock is a stranger to the action, and this motion can not be made by him or in his behalf. Whether he may not have relief by some other form or proceeding we are not called upon to determine.

The judgment of the court below is reversed, and the order is set aside and held for naught.

Hotter, C. J., and Twiss, J., concurred.