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it was not intended to limit either the medi- | promissory note, secured or unsecured, the um that could be accepted, or the time in note and security might constitute the prowhich it must be received; but the time for ceeds, but in such a concession is embodwhich the "proceeds" are exempt only was ied the fact that the note and security would limited to one year "after the receipt there be recognized as property as easily con

The owner may thus take sheep, cattle, vertible into money or as readily exchangehorses, or any other species of property in ex able for other property as would sheep, catchange for his homestead, and whatever he tle, horses, or other personalty. Moreover, it receives retains its exempt character for the might then be argued that the owner had period of one year after he has received it. actually received something tangible. Does It is conter:ded, however, that if plaintif a mere oral promise take the place of the had received sheep, cattle, horses, or a prom- proceeds, and the receipt thereof, as menissory note, or any other tangible property tioned in section 1158? We think not. If for his homestead, and had not converted such had been the intention of the Legiswhat he received into another homestead lature, the statute would have been worded within one year thereafter, the property re differently, as we have already pointed out. ceived would, after that time, have been sub Quite true, if a person exchanges his home ject to levy and sale on execution. This, no stead for nonexempt property, which he candoubt, is true, but does the mere promise of not convert into a homestead within one Peterson to deliver 10,000 brick not then in year, such property loses its exempt charexistence, and at no time, not even construc acter after that time, and is subject to forced tively, delivered to plaintiff, constitute the sale. The Legislature, however, it seems to receipt of the proceeds for the homestead, as us, clearly indicated that the property agreed contemplated in section 1158?

to be taken in exchange for the homestead, It is urged that the promise and obliga or in case the property itself is not received, tion of Peterson to deliver the brick con then, at least, that which represents it is a stituted the thing of value, that it could substitute therefor, must be received. In have been reached by the process of gar other words, it was intended that the seller nishment, that the plaintiff could have made should receive something tangible, and not the promise available by giving an order merely an intangible promise or obligation on Peterson, or by the assignment of the from the purchaser. If, for instance, the claim. That plaintiff could have given the owner of a homestead should sell it to his order on Peterson for the claim, if he had neighbor for $1,000, and the neighbor took found some one willing to take it, and that possession under a conveyance, but did not it was a subject of assignment, cannot be expressly promise to pay the amount, and doubted. Whether it was subject to suc no time for payment being fixed, the law cessful garnishment, without the consent of would supply both the promise to pay and a plaintiff, is, however, another question. Sup reasonable time within which the payment pose plaintiff had sold his homestead for must be made. In such a case would the cash, or had exchanged it for other property implied promise constitute the proceeds, and upon an oral promise that the money would if not why should any express promise to be paid, or the property taken in exchange pay do so? Of course, it might be contended delivered within 10, 30, or any other number that a promissory note, even if secured, is of days; would the time limit of one year only the evidence of the promise. But this begin to run from the date of the sale or may be so with regard to bank notes, or exchange, when the promise to pay or de some other such evidences that pass as a liver was made, or from the time plaintiff medium of exchange. They all are matreceived the cash or other property as the ters of substance, however capable of manconsideration for his homestead? If it was ual delivery and receipt. But the question intended to limit it from the former, why of whether the receipt of a promissory note did not the Legislature fix the time from the would or would not be deemed a receipt of sale or exchange rather than from the date the proceeds under section 1158 is not before of the receipt of either cash or other prop us now, and we do not decide that question. erty agreed to be received? Is it not mani . We have alluded to it merely to make clearfest that the Legislature intended that the er, if possible, our conclusions. We think, owner of a homestead who parts with it therefore, that the proceeds mentioned in should be in actual possession of the means section 1158 has reference to some tangible with which to acquire another for the full thing which is the subject of manual deperiod of one year after its receipt, and that livery and receipt. Further, that "the rewithin that time that which is received for ceipt thereof" likewise means more than a the homestead shall be just as immune mere right to have or acquire possession of against forced seizure or sale under any pro such proceeds. It evidently was not intended cess as the homestead would be? Why fix that the person who has disposed of his homethe limit of time one year after the receipt stead should lose the benefit of the exempof the proceeds, if it was intended to give tion by being compelled to go into court to only one year from the sale or exchange of obtain actual possession of the proceeds. the homestead? For argument's sake it may If this were so, the year given him to ac be conceded that if plaintiff had taken a quire another homestead might have gone

by, and thus he would be deprived of the ten, constituted the proceeds of sale. The means to acquire another homestead. To case was submitted by both parties upon hold that a mere right to the proceeds, which this theory, and hence decided accordingly. another may dispute or withhold, constitutes As to the third ground, we need do no more “the receipt thereof,” would simply present than to refer to the statement of counsel for another case of keeping the word of promise | respondent with regard to how he underto the ear while breaking it to the hope. It stood the complaint. In his brief he says: follows, therefore, that the district court "From the whole complaint it seems that at erred in sustaining the demurrer.

the time of the levy by the defendant [re The judgment is reversed, the cause re

spondent] the plaintiff [appellant] did not manded, with directions to the district court have the brick upon the new homestead when to overrule the demurrer, grant the defend [where] he said he intended to use them in ant leave to answer, if he desires to do so, building a house.

* The inference is and to proceed with the case in accordance that Peterson had the brick in his possession,

with the views herein expressed ; appellant to the plaintife (appellant) regarding himself

recover costs.

as the actual owner.

Admitting

that all the allegations of the complaint are MCCARTY, O. J., and STRAUP, J., con

true, as we were bound to do, the defendant eur.

[respondent] claimed in the lower court that On Rehearing.

the brick taken as alleged were not exempt FRICK, J. An application for rehearing is

as the proceeds of the sale of the homestead made in this case in which it is strenuously

of the plaintiff [appellant), which point was insisted that this court erred in the conclusion

raised by the demurrer and sustained."

From counsel's own statement, therefore, he reached. Four reasons are assigned why a rebearing should be granted, namely: (1)

presented, and desired to present, but the one That the court erred in holding that the

question, namely, whether the brick were or appellant had "sold his homestead for brieks

were not exempt. We tbus deemed it best and adobes and not for money"; (2) that the

the to avoid all purely technical questions, and

did so. court erred in holding "that the agreement for sale was oral"; (3) that the court erred

Upon the last ground it is urged that we in holding that appellant "had not received

erred in holding that the complaint was sutthe bricks more than a year before they

ficient to withstand a general deinurrer. Upwere taken by appellant (respondent)”; (4) on this point we remark that the complaint that the court erred in holding that the com

was framed upon the theory of trover. Some plaint states a cause of action.

evidentiary facts were alleged which were As to the first ground, we remark that

not necessary to a complete statement of a counsel for respondent has manifestly over

cause of action. All of the allegations taken looked or forgotten the construction he together, however, amounted only to an inplaced upon the complaint in his original

artificial statement of a complete cause of ac brief and upon the oral argument in this tion, and the complaint was clearly sufficient court. In his brief he says: “The com within the rule announced by Mr. Justice plaint alleges

• that before the said Straup in Casady v. Casady (Utah) 88 Pac. 32. month of May, 1903, he [appellant] sold said

The essential allegations were ownership, unreal estate to James E. Peterson for $100, lawful taking, conversion of the brick, and which sum was to be paid by the delivery their value. This was alleged, and was adto plaintiff [appellant] of some brick in the mitted by the demurrer; but, as appellant summer or fall of 1904." Then the state had alleged the judgment, execution, and levy ment follows in the brief that the brick by the respondent, counsel attempted to raise were levied on by the sheriff (respondent) all the legal questions by demurrer to the by virtue of an execution issued upon a judg. complaint. He, however, overlooked, and ment in favor of a third person named.

still seems to disregard, the fact that appelThe foregoing statement of counsel is a lant did not allege a sale of the brick on the complete answer to his first objection, in that execution, but simply alleged the levy, and it concedes that the $100 was merely a state then alleged that on a certain day thereafter ment of the amount due which was to be respondent wrongfully and unlawfully conFaid or satisfied by the delivery of the brick. verted the brick to his own use. In the face

With respect to the second ground, it is of these allegations, admitted as they were by true that the complaint did not in terms the demurrer, respondent could not have pre allege whether Peterson's promise was evi vailed, although the brick had not been exdenced by a writing or not. It was argued empt. Respondent could, by virtue of the by appellant's counsel in their brief, and stat execution, lawfully seize the brick ; but if ed in open court on the oral argument, how thereafter, as alleged, he wrongfully and unever, that the promise was oral, all of which lawfully converted the same to his own use, was not denied by respondent's counsel. In he was liable whether the brick were exempt fact cúunsel stated in open court that he had or not. . This technicality we overlooked in ac knowledge upon the subject, but contend favor of respondent, because both parties ed that this promise, whether oral or writ- | urged at the hearing that they desired the

arises where it appears that the homestead claimant is evading the statute, it will then be proper for the court to pass upon the question whether the homestead. claimant is entitled to the exemption or not in view of the facts involved. This case is free from such complications, and hence should not be hampered with them, although a possibility may exist that they may arise in some assumed

In this case we held that the acceptance of a mere promise to deliver brick did not constitute the receipt of the "proceeds of sale," although the brick may constitute such proceeds; that an agreement to pay the proceeds at some future time was not tantamount to the receipt thereof; and that the acceptance of a promise to pay may be one thing, and the fulfillment thereof quite another thing.

No valid reason having been advanced why a rehearing should be granted, the application therefor should be, and accordingly is, denied.

MCCARTY, C. J., and STRAUP, J., concur.

question of exemption determined, and for that purpose the allegations in the complaint were to be deemed sufficient. In deference to the wishes of counsel, we did so. In view of the allegations of the complaint, respondent at least cannot complain.

In conuection with the last ground it is finally urged that the final conclusion is inconsistent with the following statement contained in the opinion, namely: “The mere fact that the terms proceeds' and 'the receipt thereof' are used is conclusive that it was not intended to limit either the medium that could be accepted, or the time in which it must be received, but the time for which the 'proceeds' are exempt only was limited to one year 'after the receipt thereof.'In reference to this statement counsel says: "How the two holdings can be reconciled we do not see, and perhaps it is not necessary that we should.” We confess that we did not think the confusion was quite so serious. It is certainly our aim to bring the logic of our statements within the comprehension of counsel. It is quite possible that sometimes we fail in this, but it is equally possible that the fault sometimes is with counsel. Taking the foregoing statement as an illustration, counsel's misconception arises out of the fact that he simply assumes that the "proceeds of sale" are received at the time the promise to pay them is made. He overlooks the distinction between the agreement to pay money or to deliver some other article, and the actual payment or delivery of the article. If counsel's contention that the acceptance of the promise or agreement to pay money, or in lieu thereof, to deliver other articles of value, constitutes receipt of the proceeds of sale, is correct, what is it that the homestead claimant receives when payment or delivery Is actually made? In such event does the claimant receive the proceeds of the sale twice, once when he enters into the agreement to receive, and again when he actually receives the money or thing for which he sold or exchanged his homestead? Is not the conclusion palpable that it is the substance received in exchange for the homestead and not the promise to pay or deliver it that is intended in the statute as constituting the proceeds of sale? A promise to pay cannot, by argument, however ingenious, be made the equivalent of actual payment, and hence the entering into an agreement to receive proceeds is not tantamount to the actual receipt thereof. This would be so whether the promise was oral or in writing.

Counsel's suggestion that, if it be held that the acceptance of the promise or agreement to receive does not constitute the receipt of the proceeds, the seller of the homestead may sell on time and thus hold the proceeds as an investment free from execution vloes not necessarily follow. The statute was enacted for his protection and to insure for himself and family a home. When a case

(32 Utah, 418) STATE ex rel. PEART et al. v. THIRD JUDICIAL DISTRICT COURT, SALT

LAKE COUNTY, et al. (Supreme Court of Utah, May 9, 1907. On

Rehearing, Aug. 1, 1907.) 1. JUSTICES OF THE PEACE-APPEAL-NOTICE OF FILING OF UNDERTAKING.

Under Rev. St. 1898, 8 3748, relating to appeals from a justice's court to a district court, and providing that on the filing, of an undertaking on appeal notice thereof shall be given the adverse party, who may, within two days, except to the sufficiency of the sureties, notice merely of an intention to file an undertaking will not support an appeal, but under that section notice that the undertaking has been filed must be given.

On Petition for Rehearing. 2. SAME-NOTICE OF APPEAL-TIME OF FILING.

Under Rev. St. 1898, § 3744, requiring an appeal from a justice's court to a district court to be taken by filing notice thereof with the justice and serving a copy on the adverse party, the filing of a notice must either precede its service, or the filing and service must be contemporaneous, that is, on the same day. 3. SAME-APPELLATE JURISDICTION-CHANGE OF LAW.

The jurisdiction of a district court of an appeal from a justice's court must be determined with regard to the law at the time of that appeal.

Application by the state, on relation of Jacob Peart and others, for a writ of prohibition against the Third judicial district court, Salt Lake county, and T. D. Lewis, judge. Writ issued.

E. A. Walton, for petitioner. James Ingebritzen, for respondent.

STRAUP, J. This is an application made to this court for a writ of prohibition. The relator obtained a judgment in the justice

court against one William Hendrickson which of which time the adverse party would be was rendered on the 230 day of September, under obligation to watch the record in or1.90-1. On the 28th day of that month the dler that he may avail himself of the privilege attorney for llendrickson served on the at of excepting to the sufficiency of the sureties. torney of the relator a notice of an appeal If, on the other hand, it should be said that from the justice court to the district court, the exception could be made within two days and at the same time serveil a notice that after the service of the notice of intention, the defendant is about to file his undertak it is apparent that such exception would be ing on appeal with ;" sureties, naming of no legal effect, because there would be them. Both notices were filed in the justice no undertaking on file, to the sureties of court on the 1st day of October, but the which he could properly take exception. In undertaking was not filed until the 4th day this case six days intervened between the of October. The transcript of the record service of the notice of the intention and the was transmitted by the justice to the district filing of the undertaking. The statute procourt on the 24th day of October. On the vides that the adverse party may except to 31st day of December the relator moved the the sufliciency of the sureties within two days district court to dismiss the appeal for want "after notice of the filing of the undertakof jurisdiction. The motion was denied, and ing." IIad the relator excepted to the suffihence the application is here made to pro ciency within two days after the service hibit the district court from assuming juris made upon him, he would have found that no diction of the case and trying it on merits. undertaking was on file. Ile was not bound

Section 3748, Rev. St. 1898, relating to ap to keep watch of the record thereafter, and peals from the justice court to the district to take notice of the filing of the undertaking court, provides: “When an undertaking on when made, for the statute plainly requires appeal is filed, notice of such filing shall be notice of the filing of the undertaking. We, given to the respondent. * * * The ad however, do not wish to be understood as verse party may, however, except to the saying that notice of filing an undertaking sufficiency of the sureties within two days cannot be given at the same time or on the after notice of the filing of the undertaking, same day that the undertaking is filed, aland unless they or other sureties justify be though the service of notice, in point of time, fore the justice from whose court the ap precedes the filing of the undertaking. What peal is taken, within two days thereafter, we do say is, that a party appealing cannot upon notice to the adverse party, the appeal serve his notice of appeal and a mere intenshall be regarded as if no undertaking bad tion of filing an undertaking, hold them at been given." Section 3747 provides that an his pleasure, and then file them, together appeal from a justice court shall not be ef with the undertaking, any time thereafter fectual for any purpose unless an undertak within the period in which an appeal may ing be filed within five days after filing the be taken. without giving notice of the filing. notice of appeal. The contention made by of the undertaking, and thus compel the adthe relator is that the defendant Hendrick verse party to watch the record during all son was required to give notice, not of an that time in order that he may not lose his intention of filing an undertaking, but notice right to except to the sufficiency of the sureof the filing of the undertaking; that such ties. The evident purpose of the statute was a notice was not given, and hence the filing to obviate just such a difficulty, by requiring of the undertaking must be regarded as no the giving of notice of the filing of the unundertaking, and therefore the appeal is

the appeal is dertaking. ineffectual and the district court is without Let the writ issue. Such is the order. jurisdiction. We think the position is well

MCCARTY, C. J., and FRICK, J., concur. taken,

The filing of the undertaking and the serving of notice of such filing is by statute made

On Reliearing. a prerequisite to effectuating an appeal. To STRAUP, J. In our original opinion we hold that a notice of a mere intention to do reached the conclusion that the district court So, which the adverse party is bound to re was without jurisdiction because no notice spect and treat as a compliance with the was given of the filing of the undertaking statute, makes it incumbent upon him to as required by statute. At the hearing a watch the record during the period within further point was made, that the notice of which an appeal might be taken, in order appeal was ineffectual because served on that he may not lose his right to except to the 28th day of September and filed on the the sufficiency of the sureties. To so hold, 1st day of October. Having held that the would give a party appealing from a justice district court was without jurisdiction becourt the right to serve his notice of appeal cause of the first point, we deemed it unand notice of intention of filing an under necessary to determine whether it also was taking the day after the rendition of the Without jurisdiction because of the second judgment, hold both and file them on the point. On petition for relearing the re thirtieth or last day on which an appeal spondent complains because the second point might be taken, and then within five days was not decideul, principally for the reason, thereafter file the undertaking, during all as is stated, that there are other cases pend

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contemporaneous with the service, else it se

ing in the district court awaiting a decision | diction of the court must be determined as
of this question. We have concluded to de- | the law was when the appeal was taken.
cide it without granting a rehearing.

We are of the opinion that the notice of ap-
The statute provides that “the appeal | peal was ineffectual, and that the court, also,
[from the justice court to the district court) for that reason, was without jurisdiction.
shall be taken by filing a notice thereof with Let the petition for rehearing be denied.
the justice and serving a copy on the ad It is so ordered.
verse party." Under this statute the plain-
tiff contends that the notice must be first

MCCARTY, C. J., and FRICK, J., concur. filed and then served, or that the filing and service must be contemporaneous, that is,

(29 Nev. 375) on the same day; and as the notice was

PORTEOUS DECORATIVE CO., Incorporatserved on the 28th day of September and

ed, v. FED. (No. 1,713.) filed on the 1st day of October it, for that (Supreme Court of Nevada. July 30, 1907.) · reason, was ineffectual, and the court was | MECHANICS' LIENS

MECHANICS' LIENS - STATEMENT OF LIEN – without jurisdiction. The decisions are not

SUFFICIENCY. harmonious upon the question. The follow- for "outside work on house and painting of in

A mechanic's lien claim, stating that it is ing cases hold that under such a statute the side blinds, $190,” does not substantially comfiling of the notice must either precede or be ply, with Comp. Laws. $ 3885, requiring the

claimant of a mechanic's lien to file a statement

setting forth the terms, time given, and condiwill be ineffectual: State v. Dist. Court, 34 tions of the contract, and is insufficient to supMont. 112, 85 Pac. 872; McCauley v. Jones port a lien. (Mont.) 88 Pac. 572; Buffendeau v. Edmond [Ed. Note.-For cases in point, see Cent. Dig. son, 24 Cal. 94; Lynch v. Dunn, 34 Cal. 518; vol. 34, Mechanics' Liens, $ 239.] Lyon County v. Washoe County, 8 Nev. 177;

Appeal from District Court, Washoe Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657;

County. Courtright v. Berkins, 2 Mont. 401; Slocum

Action by the Porteous Decorative ComV. Slocum, 1 Idaho, 589; State v. Superior

pany, Incorporated, against Dr. George Fee. Court, 17 Wash. 54, 48 Pac. 733. The fol

From a judgment for defendant, and from lowing cases seem to hold that the order of

an order denying its motion for a new trial, filing and service of the notice is immaterial, plaintiff appeals. Affirmed. ir both are done within the time the statute prescribes an appeal may be taken: Coker

Mack & Shoup, for appellant. Boyd & v. Superior Court, 58 Cal. 177; Hall v. Su- Salisbury, for respondent. perior Court, 68 Cal. 24, 8 Pac. 509; Hall v. Superior Court, 71 Cal. 551, 12 Pac. 672;

SWEENEY, J. An action was instituted Reynolds v. Corbus, 7 Idaho, 481, 63 Pac. 884.

in the district court of the Second judicial We are unable to harmonize these conflict

district in Washve county to foreclose a lien ing views We are inclined to the view that filed by the Porteous Decorative Company the filing of the notice must precede the

against Dr. George Fee. During the opening service, or that the filing and service must of plaintiff's case, which was tried before be done at the same time, that is, on the

the court without a jury, plaintiff's attorney same day. We think this is so, for the rea

offered in evidence the lien in question, to sons stated by the courts in the cases first which defendant's attorney objected upon cited, which are, that the filing of the notice the ground that the "lien is void and inis made a constituent element of its charac

valid, in that it does not conform to the reter as a notice, and if the filing does not pre

quirements of the statutes of our state upon cede the service, nor is contemporaneous

the ground that the claim of lien fails to therewith, that which may purport to be

state the terms, the time given, or the cona copy of a notice fails to be such for the

ditions of the contract upon which the same want of an original or counterpart, and that is based as required by the statute.". The It compels the respondent to continually

court sustained said objection upon the watch the clerk's or the justice's office to

ground "that the lien is defective

in to this conc:usion because of the amending

which was entered into," and rendered judgof section 3744, Rev. St. 1898, making the

the ment against plaintiff in favor of defendant order of service immaterial. Sess. Laws for his costs. From this judgment and or1907, p. 257, c. 160, § 3744. Before making der denying plaintiff's motion for new trial, the amendment the Legislature evidently con- plaintiff appeals. sidered the order of service material. If The part of the objection sustained by the not, the amnendment was useless. This lower court being fatal to appellant's conamendment was made more than two years tention, it will be unnecessary to consider after the appeal from the justice to the any other objections urged by counsel. The district court was taken and the ruling on testimony adduced at the hearing of this ac the motion to dismiss the appeal was made. tion discloses that an express oral contract

We are asked to consider the question of was entered into between appellant and rethe court's jurisdiction with respect to the spondent, and plaintiff's complaint is based amendment. We cannot do so. The juris on an express contract. An averment in the

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