involving the constitutionality of the act creating the county of Orange, there is found an exhaustive discussion of the same principle, with the citation of many cases bearing upon the question. Among other things, it is there said: "Not only had the legislature the power to provide upon what condition or contingency the provisions of the act might be carried into effect, but also to provide within what time it must be done, if done at all."

It is also plain that the attempted repeal of the ordinance declaring Orange county within the provisions of the act was of no avail. When Orange county once came within the provisions of the act, it was there for all purposes; as fully and completely there as if it had passed directly under its provisions at the date of the enactment. We do not perceive how it can evade the force and effect of this statute of the state (which, after the passage of ordinance No. 14, applied to it) in any different manner or to any greater extent than it can escape the force and effect of any other statute of the state. If it can do so in this instance, it has the power to disorganize, for it was created under an act involving the same principle.

As to the third contention, from the facts recited we have no hesitancy in saying that the room used as a library room is not sufficient, and not such as is contemplated by the statute. The board should provide a suitable library room. The writ should issue, and it is so ordered.

We concur: MCFARLAND, J.; HARRISON, J.; PATERSON, J.; DE HAVEN, J.; FITZGERALD, J.

(9 Utah, 309)

RUSSELL v. HANK et ux.1 (Supreme Court of Utah. Aug. 31, 1893.) ENTRY OF JUDGMENT-FORECLOSURE OF MORTGAGE -DEFICIENCY-DECREE.

1. Under 2 Comp. Laws, § 3013, providing for an entry of judgments and orders in term time or vacation, the court may enter a judgment in vacation where the submission was made in open court.

2.2 Comp. Laws, § 3460, provides that there shall be but one action for any debt secured by mortgage; and, where it appears by the return of the officer making a sale under the decree that there is a balance still due, a judgment may be entered against defendant personally liable, and an execution may issue therefor. Held, that an execution cannot issue for any deficiency on a mortgage sale until a judgment is entered therefor after the return of the officer.

3. Where, in an action to foreclose a mortgage, the personal liability of one of the defendants was alleged, it was error to strike out the portion of the decree providing for a deficiency judgment if the property mortgaged failed to sell for enough to satisfy the debt, though the complaint contained no express prayer for such relief.

Appeal from district court, Weber county; James A. Miner, Justice.

1 Rehearing denied,

Action by James B. Russell against Caleb R. Hank and his wife. Decree for plaintiff. From an order setting aside a portion of the decree, plaintiff appeals. Reversed.

W. L. Maginnis, for appellant. J. H. Macmillan, for respondents.

ZANE, C. J. In the complaint filed in this cause the plaintiff described a promissory note payable to him made by the defendant Caleb R. Hank for $4,592.25, alleged nonpayment, and prayed judgment for the amount due; and, for a second cause of action, he set out the same note and a mortgage executed by Caleb R. Hank and America L. Hank on real estate to secure it, and alleged a breach, and the usual prayer of foreclosure, "and for other and further relief," without expressly asking for a judgment for any deficiency in case the mortgaged property should not bring enough to satisfy the decree. It appears from the record that no appearance was entered by any of the defendants except Miunie P. Woods, who entered a disclaimer; that a default was duly taken; and that on April 4, 1892, the court found in the decree that all the allegations of the complaint were true; and that there was due on the note described in the complaint $5,057.72, and ordered a sale of the property to satisfy it. The decree also contained the following: "And it is further adjudged and decreed that if the moneys arising from the sale shall be insufficient to pay the amount so found due to the plaintiff as above stated, with the interest, costs, and expenses of sale, the sheriff shall specify the amount of such deficiency and balance due the plaintiff in his return of said sale, and, on the coming in of said return, a judgment of this court shall be docketed for such balance against the defendant Caleb R. Hank, and that said defendant, who is personally liable for the payment of the debt secured by said mortgage, pay to the said plaintiff the amount of such deficiency and judgment, with interest thereon at the rate of 8 per cent. per annum from the date of said return and judgment; and that the plaintiff have execution therefor. It further appears from the record that on the same day the court ordered the sheriff of Weber county to sell the property described in the mortgage and decree, and that he sold the same in pursuance thereof on April 28, 1892, for $2,702.32 less than the amount mentioned in the decree and interest and costs; that the same was shown by the sheriff's return made on the same day; and that on the same day an execution was issued commanding the sheriff to make such deficiency out of any property of the defendant subject to execution; and that tnis execution was levied on such property. This execution recited that a deficiency judgment had been entered on the same day of $2,702.32, with accruing interest and

costs, but no such judgment or any judgment authorizing the excution appears in the record, and we must presume there was none entered, or it would have appeared in the record. It also appears that the portion of the decree above quoted, and the execution purporting to be issued on the deficiency judgment, and its levy, were set aside by an order of the court made on August 15, 1892, on motion of defendant, on the ground that there was no prayer in the complaint for a deficiency judgment. It also appears that this order of the 15th of August was also set aside by the court on the 5th of October following on motion of the plaintiff. It further appears from the record that this order of October 5, 1892, was set aside by the court on January 9, 1893, on motion of the defendant, and that the order of August 15, 1892, was reaffirmed and reinstated, and that the motion was argued and submitted in open court, but that the order was entered in term time when the court was not in session. The plaintiff has appealed from this order of January 9th, and insists that its entry when the court was not in session was erroneous, and that it was also erroneous because it reinstated and reaffirmed the order of August 15, 1892.

2

The legislature has declared that judgments and orders of the district court may be entered in term time or vacation. Comp. Laws Utah 1888, § 3013. In view of this provision, we hold that the district court may enter a judgment, decree, or order when the court is not in session if the submission was made in open court, as in this case. Section 3460, Comp. Laws, did prescribe the mode of procedure in cases of the class under consideration. It is as follows, so far as necessary to quote it: "There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. In such action, the court may by its judgment direct a sale of the incumbered property or so much thereof as may be necessary and the application of the proceeds.

And if it appear from the return of the officer making the sale that the proceeds are insufficient and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt and it becomes a lien on the real estate of such judgment debtor as in other cases on which execution may be issued." This section specifies the remedy for the collection of a debt secured by a mortgage against the person liable to pay it. First, it declares that there shall be but one action for its recovery, and that such action must be in accordance with the section; second, that the judgment must direct the sale of the incumbered property, or so much as necessary; third, when the return of the officer shows a deficiency, that

the clerk must docket a judgment for it against the defendant personally liable, which then becomes a lien on the real estate of such judgment debtor, as in other cases, on which execution may issue. If the complaint contains the ordinary prayer of foreclosure, this is the only method. It is immaterial whether the complaint contains a prayer for a deficiency judgment. Such a judgment cannot be rendered or docketed until the officer makes his report showing such deficiency. Until such report the amount of the deficiency cannot be known. The amount of money due must be found in the decree, and the defendant personally liable to pay it must be ascertained; and the officer or person making the sale must specify in his return the amount of the deficiency, if any; and the clerk must docket the judgment for the amount, and then it has the effect of other judgments. The fact that the decree was upon a default makes no difference. The portion of the decree quoted above and set aside was immaterial, except so much of it as found the personal liability of Caleb R. Hank. The part quoted above could not be treated as a deficiency judgment, and a valid execution could not be issued on it; and the execution issued without a judgment docketed for the deficiency, as shown by the officer's return, was of no effect. Leviston v. Swan, 33 Cal. 480. Some of the cases to which we have been referred, if followed, would incumber this plain and simple method of procedure marked out by the statute with old modes and requisites, that can serve no useful purpose, and which the statute was designed to avoid. But the effect of the order appealed from was to strike out the portion of the decree that found and decreed that the defendant Caleb R. Hank was personally liable to pay the amount found in the decree. His personal liability was alleged in the complaint, and was a material allegation, and the defendant, by his default, admitted it. For the reason that the effect of the order appealed from was to strike out of the decree this material finding of the personal liability or the defendant Caleb R. Hank, it must be held erroneous. The other portion stricken was immaterial, and the striking of it out was not reversible error.

If the deficiency has not been paid or settled, the plaintiff's right to a deficiency judgment still exists, and it will be the duty of the clerk of the district court in that case to docket it, and to issue execution thereon if demanded by the plaintiff. We do not regard the case of Brereton v. Miller, 7 Utah, 426, 27 Pac. Rep. 81, referred to by counsel on both sides, as analogous to the one in hand. It became necessary in that case to adjust equities between the defendants, and, in doing so, to subject the property of the defendant who owed the debt, if any could be found subject to execution, to the payment of the decree, before re

sorting to the property described in the mortgage foreclosed, which belonged to another person. The order of the district court appealed from is reversed, and the cause is remanded to that court.

BARTCH and SMITH, JJ., concur.

(9 Utah, 315)

COFFIN v. MCINTOSH. (Supreme Court of Utah. Aug. 30, 1893.) STATUTE OF FRAUDS-PARTNERSHIP-ASSUMPSIT.

1. Where two persons agree to each furnish one-half the money to purchase real estate, each to have a half interest in the deal, and the title is taken in the name of one, who afterwards sells the land at an increased price, the statute of frauds has no application.

2. A recovery in an action for money had and received against the person holding the title cannot be defeated on the ground that the transaction related to a partnership which is unsettled, and not the subject of an action at law.

Appeal from district court, Weber county; James A. Miner, Justice.

Action by Willard L. Coffin against James T. McIntosh for money had and received. From a judgment for plaintiff, defendant appeals.

Affirmed.

H. P. Henderson and H. H. Henderson, for appellant. Evans & Rogers, for respondent.

BARTCH, J. The plaintiff in this case brought this action to recover a certain sum of money alleged to be due him from the defendant. He set up two causes of action for money had and received. The jury rendered a verdict in his favor for the sum of $750. The defendant then moved for a new trial, which motion having been overruled he appealed to this court. The controversy grew out of a real-estate transaction. The evidence shows that the defendant and one Armstrong had a piece of property, and the defendant made an offer to the plaintiff to the effect that if he would loan him $200 he would let him into the deal at cost. The plaintiff accepted this offer, loaned him the $200, and then put in $250, the defendant having furnished the same amount. By this arrangement the plaintiff was to have onehalf of defendant's interest, and was to have a contract for it. The plaintiff was also to pay one-half of the defendant's share of the indebtedness against the property. The defendant, it appears, represented to the plaintiff that he had a contract for the interest of which the plaintiff was to have the onehalf.

The property was afterwards sold at an advance in price, while the plaintiff was absent from the territory, and the defendant received plaintiff's share of the proceeds, but failed to turn it over to him upon demand. At the trial counsel for the defendant moved to strike out the testimony of the plaintiff on the ground that it was shown thereby that the transaction was in relation

to a piece of real estate, and, not being in writing, was within the statute of frauds; and also, that the transaction related to a partnership which was unsettled, and was not subject to an action at law. The action of the court in overruling this motion raises the only material question in the case. This court, in Knauss v. Cahoon, 7 Utah, 182, 26 Pac. Rep. 295, held, under circumstances similar to those in this case, that the statute of frauds had no application. Especially is this so where, as in this case, the statute is not pleaded. As to the question of partnership, we do not think the position of counsel for the defendant tenable. The land in question had been sold, the plaintiff's share of the proceeds paid to the defendant, and there was nothing remaining to be done but for him to pay it over when demand was made for it. There appears to be no error in the ruling of the trial court. The judgment is affirmed.

ZANE, C. J., and SMITH, J., concur.

(9 Utah, 318)

AMERICAN PUB. CO. v. C. E. MAYNE CO.

(Supreme Court of Utah. Aug. 30, 1893.) DEPOSITION-OBJECTIONS WAIVED.

Where the certificate to a deposition is insufficient, or the deposition is defective in any other respect that can be remedied by retaking it, and no motion to suppress it is made, objection thereto is waived, and cannot be made when the deposition is offered in evidence on the trial.

Appeal from district court, Weber county; James A. Miner, Justice.

Action by the American Publishing Company against the C. E. Mayne Company to recover damages for breach of contract. From a judgment for defendant, plaintiff appeals. Reversed.

Dey & Street, for appellant. Kimball & Allison and A. R. Heywood, for respondent.

ZANE, C. J. This is an action to recover damages in consequence of a breach of the contract described in the complaint. On the trial of the cause the plaintiff offered to read in evidence a deposition taken under a stipulation of counsel, waiving all objections to the form of taking it, but reserving to each party the right to object to all questions and answers on the ground of irrelevancy, immateriality, or incompetency. The notary public who took it stated in the caption that it was taken in pursuance of the stipulation, the time and place of taking it, and that the witness was duly sworn to answer the interrogatories attached. There was also a jurat at its conclusion, showing that the witness was duly sworn. The defendant objected to its being read, on the ground that it was not properly cer tified by the officer taking it, and the court

sustained the objection. This ruling the plaintiff excepted to, and assigned as error.

The deposition had been on file in the case a year and a half before it was called for trial. The objection was not because any question or answer was irrelevant, immaterial, or incompetent. The defect was one that could have been remedied by adding a proper certificate, or by retaking the deposition. An objection to the form of a question, or to the form of an answer, should be made when the question is asked or the answer is given; but if the objection is on the ground of immateriality, irrelevancy, or incompetency, it may be taken when the offer to read the question or answer is made. If the certificate is insufficient or the deposition is defective in any other respect that can be remedied by retaking it, a motion to suppress should be made before the case is called for trial. The defendant could not remain silent until too late to remedy the defect, and then surprise the plaintiff by such an objection. Such a practice would be unfair. The defendant should have entered a motion to suppress the deposition before the case was called for trial. By failing to do so, he waived his right to such an objection. The correct practice is laid down in the case of Doane v. Glenn, 21 Wall. 33, in the following terms: "None of the objections to the reading of the deposition go to the testimony of the witness. All of them relate to defects and irregularities which might have been obviated by retaking the deposition. It does not appear that any notice beforehand was given to the counsel of the plaintiffs that they would be made. In such cases the objection must be noted when the deposition is taken, or be presented by a motion to suppress before the trial is begun. The party taking the deposition is entitled to have the question of its admissibility settled in advance. Good faith and due diligence are required on both sides. When such objections, under the circumstances of this case, are withheld until the trial is in progress, they must be regarded as waived, and the deposition should be admitted in evidence. This is demanded by the interests of justice. It is necessary to prevent surprise and the sacrifice of substantial rights. It subjects the other party to no hardship. All that is exacted of him is proper frankness." To the same effect is Howard v. Manufacturing Co., 139 U. S. 199, 11 Sup. Ct. Rep. 500. This rule is not in conflict with the statutes of this territory. Such legal objections as the defendant relied upon in this case may be waived by a failure to insist on them in due season. It is true that the supreme court of California has held otherwise, under a statute similar to our own. On principle as well as authority, however, we are of the opinion that the rule as above stated is sound.

It is unnecessary to consider the other errors assigned. For the reasons stated, the

judgment of the court below. is reversed, and the cause is remanded.

BARTCH and SMITH, JJ., concur.

(9 Utah, 322)

COOMBS v. SALT LAKE & F. D. RY. CO. et al.

(Supreme Court of Utah. Aug. 30, 1893.) ABUTTING RAILROAD CONSTRUCTED IN STREET OWNER-ESTOPPEL TO ENJOIN OPERATION. A landowner does not, by mere silence and inaction at the time of the construction of a railroad on part of his land, and on a street in front of his premises, lose his right subsequently to obtain an injunction restraining the operation of the road unless damages are paid. Appeal from district court, Salt Lake county; G. W. Bartch, Justice.

Action by Martha Ann Coombs against the Salt Lake & Ft. Douglas Railway Company and others for an injunction restraining the operation of its road by defendant company across land belonging to plaintiff, and on the street abutting on such land. From a judgment for defendants, plaintiff appeals. Reversed.

James A. Williams, for appellant. Le Grand Young, for respondents.

ZANE, C. J. It appears from this record that the plaintiff was at the time of the wrong complained of, and from thence hitherto, the owner of the north half of lots 3 and 4 in block 1, plat G, Salt Lake City; that they are bounded on the west by U street, and on the north by First street; that about the 1st day of June, 1888, the de fendant completed its railway on that part of the streets mentioned, and commenced running trains thereon; that, in constructing its road, it took a few feet off of the corner of one fractional lot, and ran its track diagonally across U street, on the west side of the lots, and along First street, on the north side of them, and in so doing made a deep cut in both streets, so that communication between the lots and streets was very materially interfered with; and that the noise of defendant's trains, and the smoke and cinders from its engines, in operating the road, greatly depreciated the value of plaintiff's ground. It further appears that plaintiff took no steps to prevent the construction of the road, by applying for an injunction or otherwise, nor does it appear that she consented to its construction. It also appears that the road was constructed with the permission of the city council, and that all the property of the defendant is mortgaged to its full value, and that the company is perfectly insolvent. On March 1, 1892, the plaintiff commenced this action, and prayed that the defendant might be enjoined from operating its road on that part of its line described, unless within a definite time, to be named by the court, it should pay the plaintiff such damages as the court might as

sess, upon the delivery or tender of a deed by plaintiff, transferring the land taken and the easement interfered with in the streets appurtenant to the lots. Upon the hearing of the cause the court found for the plaintiff $3,397.50, and entered a decree therefor, and costs against the defendant, but denied the prayer for the injunction. From this decree the plaintiff has appealed to this court, and assigns the refusal to grant the injunction as error.

Salt Lake City held the title to the streets in question for the use of the public, and the owners and occupants of abutting lots. The latter had a common right, with all others, to travel upon them, and also the right to pass to and from her premises from and on to the adjoining streets, and in that way to occupy and use them. While the occupants of lots use the contiguous streets in common with the public, they make a special use of them, and receive special benefits from them. Referring to the doctrine announced by the New York court of appeals, Judge Dillon says: "The result of the author's reflections upon this subject is that the views of the court of appeals are sound and just; sound, because they recognize the paramount nature of the public right to put the street to this new and necessary use; just, because they recognize and declare that the abutter has special proprietary rights or easements in the streets, which, so far as they are special and individual in their nature, he is not called upon, unequally, to sacrifice, without compensation, for the public use. In effect, the court says the just and true doctrine is, "Take, but pay.' 2 Dill. Mun. Corp. (4th Ed.) § 723c. This court also held the same doctrine in the case of Dooly Block v. Salt Lake Rapid Transit Co., 33 Pac. Rep. 229, (decided at the present term.) The defendant had no legal or equitable right to any part of plaintiff's lots, or any right to deprive her of her easement in the streets, or to interfere with her enjoyment of her property, without her consent, or without condemnation and compensation in pursuance of the law of eminent domain. As the owner of lots adjoining the streets she might, by her language or conduct, indicate her consent to the appropriation and use of them, and their appurtenant rights, but she will not be held to have done so, from mere silence and inaction, until barred by the statute of limitations. When compensation was refused, the plaintiff had the right to avail herself of such remedy as the law afforded; and, that being inadequate, she could resort to an equitable remedy, if such remedy remained. The court below assessed plaintiff's damages for the land taken, and for the interruption of the use of the streets in connection with her lots, and their depreciation in consequence of the operation of the road, at $3,397.50. We have seen that these cannot be collected by a seizure and sale of defendant's property,

because of the defendant's insolvency. The plaintiff has not parted with her title to the land taken possession of and used by the defendant, nor has she transferred to it her easement in the streets appurtenant to her land, which the defendant is depriving her of, nor has she released to it any damages she has or will sustain in consequence of the existence and operation of defendant's road. The defendant is using plaintiff's land without her consent, and refusing to pay her for it, and is depriving her of rights appurtenant thereto, and annoying her with cinders, smoke, and noise. For the redress of these wrongs, the law furnishes her no adequate remedy. The foregoing facts present the question, has the court the power, according to equitable principles, to require the defendant to pay plaintiff for her land appropriated and used by it, and for her easement in the streets appurtenant thereto, or to surrender such possession and use?

If a person takes possession of property without the owner's consent, he should return it, or pay for it, or, if he establishes and conducts a business on his premises that prevents his neighbor from enjoying his, he should pay damages, or stop. But it is said that the defendant has been operating its road for nearly four years without objection, and has made large expenditures in the construction, equipment, and operation thereof, and that it would be unjust to stop it now. If defendant has taken possession of plaintiff's property without her consent, and cannot pay for it, justice demands that the property should be returned. It is also claimed that it would be unfair to the mortgagees of the road to stop its operation now. Such creditors should have inquired as to the title of the property before advancing money upon it, and if the property of third parties, without their consent, were in the possession and use of the mortgagor, their equities would be superior to such creditors. It is also insisted that the public have an interest in this road, and rights have been acquired, and expenditures of money made, in anticipation of its continued operation. It may be said, if the benefits of the use of the road to the public do not equal its cost, it had better quit. All of us have no better right to appropriate property without the owner's consent, and without compensation, than one of us has. In the case of Galway v. Railroad Co., 128 N. Y. 132, 28 N. E. Rep. 479, the defendant had completed its elevated railway in the street upon which plaintiff's lots abutted 10 years before suit was instituted, and had been operating it. The judgment of the lower court was affirmed, granting relief by injunction unless the defendant should pay to the plaintiff, within a limited time, the sum of $20,000, as the depreciation of the value of the premises, caused by the railroad, and upon such payment being made, requiring the plaintiff to execute to the defendant a