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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 which it must be received; but the time for which the "proceeds" are exempt only was limited to one year "after the receipt thereof." The owner may thus take sheep, cattle, horses, or any other species of property in exchange for his homestead, and whatever he receives retains its exempt character for the period of one year after he has received it. It is contended, however, that if plaintiff had received sheep, cattle, horses, or a promissory note, or any other tangible property for his homestead, and had not converted what he received into another homestead within one year thereafter, the property received would, after that time, have been subject to levy and sale on execution. This, no doubt, is true, but does the mere promise of Peterson to deliver 10,000 brick not then in existence, and at no time, not even constructively, delivered to plaintiff, constitute the receipt of the proceeds for the homestead, as contemplated in section 1158?

It is urged that the promise and obligation of Peterson to deliver the brick constituted the thing of value, that it could have been reached by the process of garnishment, that the plaintiff could have made the promise available by giving an order on Peterson, or by the assignment of the claim. That plaintiff could have given the order on Peterson for the claim, if he had found some one willing to take it, and that it was a subject of assignment, cannot be doubted. Whether it was subject to successful garnishment, without the consent of plaintiff, is, however, another question. Suppose plaintiff had sold his homestead for cash, or had exchanged it for other property upon an oral promise that the money would be paid, or the property taken in exchange delivered within 10, 30, or any other number of days; would the time limit of one year begin to run from the date of the sale or exchange, when the promise to pay or deliver was made, or from the time plaintiff received the cash or other property as the consideration for his homestead? If it was intended to limit it from the former, why did not the Legislature fix the time from the sale or exchange rather than from the date of the receipt of either cash or other property agreed to be received? Is it not manifest that the Legislature intended that the owner of a homestead who parts with it should be in actual possession of the means with which to acquire another for the full period of one year after its receipt. and that within that time that which is received for the homestead shall be just as immune against forced seizure or sale under any process as the homestead would be? Why fix the limit of time one year after the receipt of the proceeds, if it was intended to give only one year from the sale or exchange of the homestead? For argument's sake it may be conceded that if plaintiff had taken a

note and security might constitute the proceeds, but in such a concession is embodied the fact that the note and security would be recognized as property as easily convertible into money or as readily exchangeable for other property as would sheep, cattle, horses, or other personalty. Moreover, it might then be argued that the owner had actually received something tangible. Does a mere oral promise take the place of the proceeds, and the receipt thereof, as mentioned in section 1158? We think not. If such had been the intention of the Legislature, the statute would have been worded differently, as we have already pointed out. Quite true, if a person exchanges his homestead for nonexempt property, which he cannot convert into a homestead within one year, such property loses its exempt character after that time, and is subject to forced sale. The Legislature, however, it seems to us, clearly indicated that the property agreed to be taken in exchange for the homestead, or in case the property itself is not received, then, at least, that which represents it is a substitute therefor, must be received. In other words, it was intended that the seller should receive something tangible, and not merely an intangible promise or obligation from the purchaser. If, for instance, the owner of a homestead should sell it to his neighbor for $1,000, and the neighbor took possession under a conveyance, but did not expressly promise to pay the amount, and no time for payment being fixed, the law would supply both the promise to pay and a reasonable time within which the payment must be made. In such a case would the implied promise constitute the proceeds, and if not why should any express promise to pay do so? Of course, it might be contended that a promissory note, even if secured, is only the evidence of the promise. But this may be so with regard to bank notes, or some other such evidences that pass as a medium of exchange. They all are matters of substance, however capable of manual delivery and receipt. But the question of whether the receipt of a promissory note would or would not be deemed a receipt of the proceeds under section 1158 is not before us now, and we do not decide that question. We have alluded to it merely to make clearer, if possible, our conclusions. We think, therefore, that the proceeds mentioned in section 1158 has reference to some tangible thing which is the subject of manual delivery and receipt. livery and receipt. Further, that "the receipt thereof" likewise means more than a mere right to have or acquire possession of such proceeds. It evidently was not intended that the person who has disposed of his homestead should lose the benefit of the exemption by being compelled to go into court to obtain actual possession of the proceeds. If this were so, the year given him to ac quire another homestead might have gone

by, and thus he would be deprived of the means to acquire another homestead. To hold that a mere right to the proceeds, which another may dispute or withhold, constitutes "the receipt thereof," would simply present another case of keeping the word of promise to the ear while breaking it to the hope. It follows, therefore, that the district court erred in sustaining the demurrer.

The judgment is reversed, the cause remanded, with directions to the district court to overrule the demurrer, grant the defendant leave to answer, if he desires to do so, and to proceed with the case in accordance with the views herein expressed; appellant to recover costs.

MCCARTY, C. J., and STRAUP, J., con

eur.

On Rehearing.

FRICK, J. An application for rehearing is made in this case in which it is strenuously insisted that this court erred in the conclusion reached. Four reasons are assigned why a rebearing should be granted, namely: (1) That the court erred in holding that the appellant had "sold his homestead for brieks and adobes and not for money"; (2) that the court erred in holding "that the agreement for sale was oral"; (3) that the court erred in holding that appellant "had not received the bricks more than a year before they were taken by appellant (respondent)"; (4) that the court erred in holding that the complaint states a cause of action.

As to the first ground, we remark that counsel for respondent has manifestly overlooked or forgotten the construction he placed upon the complaint in his original brief and upon the oral argument in this court. In his brief he says: "The complaint alleges * that before the said month of May, 1903, he [appellant] sold said real estate to James E. Peterson for $100, which sum was to be paid by the delivery to plaintiff [appellant] of some brick in the summer or fall of 1904." Then the statement follows in the brief that the brick were levied on by the sheriff (respondent) by virtue of an execution issued upon a judgment in favor of a third person named. The foregoing statement of counsel is a complete answer to his first objection, in that it concedes that the $100 was merely a statement of the amount due which was to be paid or satisfied by the delivery of the brick.

With respect to the second ground, it is true that the complaint did not in terms allege whether Peterson's promise was evidenced by a writing or not. It was argued by appellant's counsel in their brief, and stated in open court on the oral argument, however, that the promise was oral, all of which was not denied by respondent's counsel. In fact counsel stated in open court that he had no knowledge upon the subject, but contended that this promise, whether oral or writ

ten, constituted the proceeds of sale. The case was submitted by both parties upon this theory, and hence decided accordingly.

As to the third ground, we need do no more than to refer to the statement of counsel for respondent with regard to how he understood the complaint. In his brief he says: "From the whole complaint it seems that at the time of the levy by the defendant [re spondent] the plaintiff [appellant] did not have the brick upon the new homestead when [where] he said he intended to use them in building a house. * The inference is that Peterson had the brick in his possession, the plaintiff [appellant] regarding himself as the actual owner. * Admitting that all the allegations of the complaint are true, as we were bound to do, the defendant [respondent] claimed in the lower court that the brick taken as alleged were not exempt as the proceeds of the sale of the homestead of the plaintiff [appellant], which point was raised by the demurrer and sustained." From counsel's own statement, therefore, he presented, and desired to present, but the one question, namely, whether the brick were or were not exempt. We thus deemed it best to avoid all purely technical questions, and did so.

Upon the last ground it is urged that we erred in holding that the complaint was suf ficient to withstand a general demurrer. Upon this point we remark that the complaint was framed upon the theory of trover. Some evidentiary facts were alleged which were not necessary to a complete statement of a cause of action. All of the allegations taken together, however, amounted only to an inartificial statement of a complete cause of ac tion, and the complaint was clearly sufficient within the rule announced by Mr. Justice Straup in Casady v. Casady (Utah) 88 Pac. 32. The essential allegations were ownership, unlawful taking, conversion of the brick, and their value. This was alleged, and was admitted by the demurrer; but, as appellant had alleged the judgment, execution, and levy by the respondent, counsel attempted to raise all the legal questions by demurrer to the complaint. He, however, overlooked, and still seems to disregard, the fact that appellant did not allege a sale of the brick on the execution, but simply alleged the levy, and then alleged that on a certain day thereafter respondent wrongfully and unlawfully converted the brick to his own use. In the face of these allegations, admitted as they were by the demurrer, respondent could not have prevailed, although the brick had not been exempt. Respondent could, by virtue of the execution, lawfully seize the brick; but if thereafter, as alleged, he wrongfully and unlawfully converted the same to his own use, he was liable whether the brick were exempt or not. This technicality we overlooked in favor of respondent, because both parties urged at the hearing that they desired the

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 connection 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 agree ment 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 agree ment 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 does not necessarily follow. The statute was enacted for his protection and to insure for himself and family a home. When a case

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.

(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, § 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 FIL

ING.

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 was rendered on the 23d day of September. 1904. On the 28th day of that month the attorney for Hendrickson served on the attorney of the relator a notice of an appeal from the justice court to the district court. and at the same time served a notice "that the defendant is about to file his undertaking on appeal with -," sureties, naming them. Both notices were filed in the justice court on the 1st day of October, but the undertaking was not filed until the 4th day of October. The transcript of the record was transmitted by the justice to the district court on the 24th day of October. On the 31st day of December the relator moved the district court to dismiss the appeal for want of jurisdiction. The motion was denied, and hence the application is here made to prohibit the district court from assuming jurisdiction of the case and trying it on merits.

Section 3748, Rev. St. 1898, relating to appeals from the justice court to the district court, provides: "When an undertaking on appeal is filed, notice of such filing shall be given to the respondent.

The adverse party may, however, except to the sufficiency of the sureties within two days after notice of the filing of the undertaking, and unless they or other sureties justify before the justice from whose court the appeal is taken, within two days thereafter, upon notice to the adverse party, the appeal shall be regarded as if no undertaking had been given." Section 3747 provides that an appeal from a justice court shall not be effectual for any purpose unless an undertaking be filed within five days after filing the notice of appeal. The contention made by the relator is that the defendant Hendrickson was required to give notice, not of an intention of filing an undertaking, but notice of the filing of the undertaking; that such a notice was not given, and hence the filing of the undertaking must be regarded as no undertaking, and therefore the appeal is the appeal is ineffectual and the district court is without jurisdiction. We think the position is well taken.

The filing of the undertaking and the serving of notice of such filing is by statute made a prerequisite to effectuating an appeal. To hold that a notice of a mere intention to do so, which the adverse party is bound to respect and treat as a compliance with the statute, makes it incumbent upon him to watch the record during the period within which an appeal might be taken, in order that he may not lose his right to except to the sufficiency of the sureties. To so hold, would give a party appealing from a justice court the right to serve his notice of appeal and notice of intention of filing an undertaking the day after the rendition of the judgment, hold both and file them on the thirtieth or last day on which an appeal might be taken, and then within five days thereafter file the undertaking, during all

of which time the adverse party would be under obligation to watch the record in order that he may avail himself of the privilege of excepting to the sufficiency of the sureties. If, on the other hand, it should be said that the exception could be made within two days after the service of the notice of intention, it is apparent that such exception would be of no legal effect, because there would be no undertaking on file, to the sureties of which he could properly take exception. In this case six days intervened between the service of the notice of the intention and the filing of the undertaking. The statute provides that the adverse party may except to the sufliciency of the sureties within two days "after notice of the filing of the undertaking." IIad the relator excepted to the sufficiency within two days after the service made upon him, he would have found that no undertaking was on file. He was not bound to keep watch of the record thereafter, and to take notice of the filing of the undertaking when made, for the statute plainly requires notice of the filing of the undertaking. however, do not wish to be understood as saying that notice of filing an undertaking cannot be given at the same time or on the same day that the undertaking is filed, although the service of notice, in point of time, precedes the filing of the undertaking. What we do say is, that a party appealing cannot serve his notice of appeal and a mere intention of filing an undertaking, hold them at his pleasure. and then file them, together with the undertaking, any time thereafter within the period in which an appeal may be taken. without giving notice of the filing. of the undertaking, and thus compel the adverse party to watch the record during all that time in order that he may not lose his right to except to the sufficiency of the sureties. The evident purpose of the statute was to obviate just such a difficulty, by requiring the giving of notice of the filing of the undertaking.

We,

Let the writ issue. Such is the order. MCCARTY, C. J., and FRICK, J., concur.

On Rehearing.

STRAUP, J. In our original opinion we reached the conclusion that the district court was without jurisdiction because no notice was given of the filing of the undertaking as required by statute. At the hearing a further point was made, that the notice of appeal was ineffectual because served on the 28th day of September and filed on the 1st day of October. Having held that the district court was without jurisdiction because of the first point, we deemed it unnecessary to determine whether it also was without jurisdiction because of the second point. On petition for rehearing the re spondent complains because the second point. was not decided, principally for the reason, as is stated, that there are other cases pend

ing in the district court awaiting a decision of this question. We have concluded to decide it without granting a rehearing.

The statute provides that "the appeal [from the justice court to the district court] shall be taken by filing a notice thereof with the justice and serving a copy on the adverse party." Under this statute the plaintiff contends that the notice must be first filed and then served, or that the filing and service must be contemporaneous, that is, on the same day; and as the notice was served on the 28th day of September and filed on the 1st day of October it, for that · reason, was ineffectual, and the court was without jurisdiction. The decisions are not harmonious upon the question. The following cases hold that under such a statute the filing of the notice must either precede or be contemporaneous with the service, else it will be ineffectual: State v. Dist. Court, 34 Mont. 112, 85 Pac. 872; McCauley v. Jones (Mont.) 88 Pac. 572; Buffendeau v. Edmondson, 24 Cal. 94; Lynch v. Dunn, 34 Cal. 518; Lyon County v. Washoe County, 8 Nev. 177; Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657; Courtright v. Berkins, 2 Mont. 404; Slocum v. Slocum, 1 Idaho, 589; State v. Superior Court, 17 Wash. 54, 48 Pac. 733. The following cases seem to hold that the order of filing and service of the notice is immaterial,

if both are done within the time the statute prescribes an appeal may be taken: Coker v. Superior Court, 58 Cal. 177; Hall v. Superior Court, 68 Cal. 24, 8 Pac. 509; Hall v. Superior Court, 71 Cal. 551, 12 Pac. 672; Reynolds v. Corbus, 7 Idaho, 481, 63 Pac. 884.

We are unable to harmonize these conflict

ing views. We are inclined to the view that the filing of the notice must precede the service, or that the filing and service must be done at the same time, that is, on the same day. We think this is so, for the reasons stated by the courts in the cases first cited, which are, that the filing of the notice is made a constituent element of its character as a notice, and if the filing does not precede the service, nor is contemporaneous therewith, that which may purport to be a copy of a notice fails to be such for the want of an original or counterpart, and that It compels the respondent to continually watch the clerk's or the justice's office to see when it is done. We are somewhat led to this conclusion because of the amending of section 3744, Rev. St. 1898, making the order of service immaterial. Sess. Laws 1907, p. 257, c. 160, § 3744. Before making the amendment the Legislature evidently considered the order of service material. If not, the amendment was useless. This amendment was made more than two years after the appeal from the justice to the district court was taken and the ruling on the motion to dismiss the appeal was made.

We are asked to consider the question of the court's jurisdiction with respect to the amendment. We cannot do so. The juris

diction of the court must be determined as the law was when the appeal was taken.

We are of the opinion that the notice of appeal was ineffectual, and that the court, also, for that reason, was without jurisdiction.

Let the petition for rehearing be denied. It is so ordered.

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

(29 Nev. 375) PORTEOUS DECORATIVE CO., Incorporated, v. FEE. (No. 1,713.) (Supreme Court of Nevada. July 30, 1907.) MECHANICS' LIENS-STATEMENT OF LIENSUFFICIENCY.

A mechanic's lien claim, stating that it is for "outside work on house and painting of inside blinds, $190," does not substantially comply with Comp. Laws, $ 3885, requiring the claimant of a mechanic's lien to file a statement setting forth the terms, time given, and conditions of the contract, and is insufficient to support a lien.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 239.]

Appeal from District Court, Washoe County.

Action by the Porteous Decorative Company, Incorporated, against Dr. George Fee. From a judgment for defendant, and from an order denying its motion for a new trial, plaintiff appeals. Affirmed.

Mack & Shoup, for appellant. Boyd & Salisbury, for respondent.

SWEENEY, J. An action was instituted in the district court of the Second judicial district in Washoe county to foreclose a lien filed by the Porteous Decorative Company against Dr. George Fee. During the opening of plaintiff's case, which was tried before the court without a jury, plaintiff's attorney offered in evidence the lien in question, to which defendant's attorney objected upon the ground that the "lien is void and invalid, in that it does not conform to the requirements of the statutes of our state upon the ground that the claim of lien fails to state the terms, the time given, or the conditions of the contract upon which the same is based as required by the statute." The court sustained said objection upon the ground "that the lien is defective * in not stating the terms of the contract which was entered into," and rendered judgment against plaintiff in favor of defendant for his costs. From this judgment and order denying plaintiff's motion for new trial, plaintiff appeals.

The part of the objection sustained by the lower court being fatal to appellant's contention, it will be unnecessary to consider any other objections urged by counsel. The testimony adduced at the hearing of this action discloses that an express oral contract was entered into between appellant and respondent, and plaintiff's complaint is based on an express contract. An averment in the

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