Gambar halaman
PDF
ePub

report in writing the testimony in full, and the court, in all cases in divorce, shall make and file its findings and decrees upon the testimony. [C. L. § 2605.

1212. Disposal of children and property. When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties and children as shall be equitable; provided. that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting to which of the parents they will attach themselves. Subsequent changes may be made by the court in respect to the disposal of children or the distribution of property, as shall be reasonable and proper. [C. L. § 2606*.

The right to alimony follows as a matter of course, if the respondent is entitled to a decree of divorce. Cast v. Cast, 1 U. 112. After a decree of divorce and division of property the court may modify its order in relation to the distribution of

the property. Whitmore v. Hardin, 3 U. 121; 1 P. 465. Allowance for child is not a final judg ment that may be appealed from. Thompson v. Thompson, 5 U. 401; 16 P 400.

1213. Guilty party. When a divorce is decreed, the guilty party forfeits all rights acquired by marriage. [C. L. § 2607.

AVOIDANCE OR AFFIRMANCE OF MARRIAGE.

1214. When validity uncertain. Procedure. When doubt is felt as to the validity of a marriage, either party may, in a court of equity, demand its avoidance or affirmance, but when one of the parties was' within the age of consent at the time of the marriage, the other party, being of proper age, shall have no such proceeding for that cause against the party under age. [C. L. § 2599.

1215. When obtained by force or fraud. Minors. Courts having general equity jurisdiction may declare void a marriage obtained by force, or fraud, or where the male was under sixteen or the female under fourteen years of age at the time of the marriage, and the marriage was without the consent of the father, mother, guardian, or other person having the proper charge of his or her person, and has not been ratified by cohabitation after that age. [C. L. $ 2586.

CHAPTER 4.

SEPARATE MAINTENANCE.

1216. Neglected or deserted wife. Alimony. Whenever a husband being a resident of this state, shall have deserted his wife without good and sufficient cause, or being of sufficient ability to support her, shall have neglected or refused to properly provide for and suitably maintain her, or having property within this state, and the wife being a resident of this state, shall have so deserted or neglected or refused to provide for her, or where a married woman, without her fault, now lives or may hereafter live separate and apart from her husband, the district court shall, on the application of the wife, allot, assign, set apart, and decree to her as alimony, the use of such part of her husband's real and personal estate or earnings as the court may determine in its discretion; and, during the pendency of the proceedings, the court may require the husband to pay such sums for costs, expenses, and attorney's fees, and for the support of the wife as it shall deem necessary and proper, in like manner as in actions for divorce. ['96, p. 111*.

1217. Procedure. In all cases commenced pursuant to the preceding section, the proceedings and practice therein shall be the same, as near as may be. as is now or hereafter may be provided by law in actions for divorce; but suit may be brought either in the county where the wife resides or in any county in which the husband may be found. ['96, p. 111–12.

1218. Disposal of children and property. Subsequent changes. In all actions brought pursuant to this chapter the court may order and decree concerning the care, custody, and maintenance of the minor children of the parties, and may determine with which of the parties the children or any of them shall remain, and may assign and decree to the wife the possession of any of the real or personal estate of the husband, and may decree the payment of a fixed sum of money for the support of the wife and minor children, and provide that the payment of the same be secured upon real estate or otherwise, the payment to be made at such times and in such manner as may be proper, and may enforce the performance of such decree by the sale of the real estate of the husband, or by any proceedings in contempt or otherwise as may be necessary. And the court shall have the power to change the allowance from time to time, according to circumstances, or may revoke such allowance altogether upon satisfactory proof of a voluntary and permanent reconciliation; provided, that such allowance shall be only during the joint lives of such husband and wife. ['96, p. 112.

1219. Restraining disposal of property. At the time of filing the complaint mentioned in section twelve hundred and sixteen, or at any time subsequent thereto, the plaintiff may procure from the court and file with the county recorder of any county in the state in which the defendant may own real estate, an order enjoining and restraining the defendant from disposing of or incumbering the same or any portion thereof, describing such real estate with reasonable certainty, and from the time of filing such order, the property described therein, shall be charged with a lien in favor of the plaintiff to the extent of any judgment which may be rendered in the action. ['96, p. 112.

1220. Dependent husband. Effect of imprisonment. Like rights and remedies shall be extended to a dependent husband in case he shall be deserted by. or, with just cause live apart from, his wife; and, to either husband or wife, on the imprisonment of the other in the state prison under a sentence of one year or more, when suitable provision has not been made for the support of one not so imprisoned.

1221.

TITLE 30.

INQUESTS.

Justice to hold inquests in precincts. It shall be the duty of every justice of the peace to hold inquests on the bodies of such persons as are supposed to have died by unlawful means within the precinct of such justice. [C. L. § 2180*; '96, p. 557*.

1222. Id. When absent. to attend, the duties of his office in justice of the peace of the county.

If a justice of the peace is absent or unable relation to inquests may be discharged by any ['96, p. 558*.

1223. Summoning jury. Qualified jurors. When a justice shall have notice that any such body has been found in his precinct, he must issue his warrant to the sheriff or to any constable, requiring him forthwith to summon any three qualified residents of the city or precinct in which the inquest is held that he can most readily find to appear before him at a time and place named in the warrant. [C. L. § 2180*.

1224. Id. Form of warrant. The warrant may be in substance as follows:

[blocks in formation]

In the name of the state of Utah, you are hereby required to forthwith summon three qualified electorsof precinct to appear before me at [naming

the place] at [naming the day and hour or "forthwith"] then and there to hold an inquest upon the dead body of there lying, and ascertain by what means he died.

[blocks in formation]

A. D. 18-.
.A. B.,

precinct in

county.

Justice of the peace in [C. L. § 2181*. 1225. Id. Service and return. The officer shall execute the warrant and make return thereof at the time and place named. [C. L. § 2182.

1226. Failure of juror to appear. If any juror fails to appear, the justice shall immediately cause the proper number to be summoned or returned from the bystanders and proceed to impanel them and administer an oath in substance as follows:

"You do solemnly swear [or affirm] that you will diligently inquire and true presentment make, when, how, and by what means the person whose body lies here dead came to his death, according to your knowledge and the evidence to be given you; so help you God." [C. L. § 2183.

1227. Witnesses. Contempt. Contempt. The justice may issue subpoenas for witnesses within his county, returnable forthwith, or at such time as he shall direct, and shall have the same authority to enforce the attendance of witnesses and to punish them and jurors for contempt in disobeying his process as he shall have in cases triable before him. [C. L. § 2184*.

1228. Id. Oath. An oath [or affirmation] shall be administered to the witness in substance as follows:

"You do solemnly swear [or affirm] that the testimony which you shall give at this inquest, concerning the death of the person whose body is here lying dead, shall be the truth. the whole truth, and nothing but the truth; so help you God." [C. L. § 2185.

1229. When testimony to be written. The justice may require the testimony to be written, and to be subscribed by the witnesses. [C. L. § 2186.

1230. Experts. Post mortem. Stenographer. The justice, by permission of a majority of the board of county commissioners, may subpoena a physician or surgeon to inspect the body, or a chemist to make an analysis of the contents of the stomach or the tissues of the body, or to hold a post mortem examination of the deceased and to give a professional opinion as to the cause of death, and the justice shall have the testimony given by the witnesses reduced to writing, under his directions, and may employ a stenographer for such purpose at the same relative compensation as is now allowed to stenographers in the district courts of this state; and when such testimony shall have been taken down by the stenographer a transcript thereof, duly certified, shall constitute the deposition of such witness. Any such physician, surgeon, or chemist so subpoenaed shall receive such reasonable compensation from the county as the board of county commissioners shall allow. ['96, p. 557.

1231. Verdict. Form. The jurors, having inspected the body, heard the testimony, and made all needful inquiries, shall return to the justice their inquisition in writing, subscribed by them, and stating the matters, so far as found, in substance according to the following form:

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors]

cinct in said county upon the body of

[or person unknown] there lying dead, by the jurors whose names are hereto subscribed, the said jurors upon their oaths do say, [here stating when, how, by what person, means, weapon, or accident, he came to his death, and whether feloniously].

In testimony whereof the said jurors have hereunto set their hands the day and year aforesaid.

The foregoing inquisition must be attested by the justice of the peace. [C. L. § 2187*.

1232. Id. Making same public. If the inquisition find that a crime has been committed on the deceased, and name the person who the jury believe has committed it, the inquest shall not be made public until after the arrest directed in the next section. [C. L. § 2188.

1233. Person charged arrested if present. If the person charged be present, the justice may order his arrest by an officer or any other person present, and shall there make a warrant, requiring the officer or other person to take him before a justice of the peace. [C. L. § 2189*.

If the person be not present

1234. Warrant for arrest if absent. and the justice believes that he can be taken, the justice may issue a warrant to the sheriff or any constable of the county, requiring him to arrest such person and take him before a justice of the peace, when he shall be dealt with as if held under a complaint in the usual form. [C. L. § 2190*.

1235. Form of warrant. Effect of. The warrant of the justice shall substantially recite the transactions before him and the verdict of the jury of inquest leading to the arrest; and such warrant shall be a sufficient foundation for the proceeding of a justice. [C. L. § 2191*.

1236. Justice's return to district court. The justice of the peace shall return to the clerk of the district court of the county the inquisition, the written evidence, and a list of the witnesses testifying to material matter. [C. L. § 2192*.

1237. Disposition of body. Expense. The justice of the peace shall cause the body of a deceased person, which he shall have been called to view, to be delivered to his friends, if any be present or within convenient distance; if not, he shall cause it to be decently buried, the expense to be paid from any property of the deceased, or, if there be not sufficient property of the deceased to pay the necessary expenses of the burial, the same shall be charged against the county. [C. L. § 2193*; '96, pp. 557-8*.

1238. Register of inquests. It shall be the duty of every justice of the peace of each county to keep an official register, to be labeled, "register of inquests," in which he shall enter the date of holding all inquests, the name of the deceased, when known, and when not, such description of the deceased as may be sufficient for identification; property found on the person of the deceased, if any; what disposition was made of the same: the cause of death, when known; and such other information as may pertain to the identity of the deceased. ['96, p. 558*.

1239. Disposition of property. The justice must within thirty days after an inquest upon a dead body, deliver to the county treasurer or the legal representative of the deceased, any money or other property found upon the body, except such as may have been disposed of for the decedent's burial, and at the same time file an affidavit with the treasurer, showing:

1. The amount of money or other property belonging to the estate of the deceased person, which has come into his possession.

2. The disposition made of such property. ['96, p. 558*. Action to compel justice to pay over, 2567. Disposition of such property, ?? 568–571.

1240. Expense of inquest. The expenses of holding an inquest shall be a charge against the county, but the county shall have a legal claim against the estate of the deceased for the amount, and it shall be the duty of the county

attorney to collect the same, if there be any estate, and to pay it into the county treasury. ['96, p. 571*.

Bills must be certified by county attorney, 979. Fees of jurors and witnesses, ?? 999, 1000.

TITLE 31.

INTEREST.

1241. Agreement governs. Eight per cent in absence of agreement. It shall be lawful to take eight per cent interest per annum, when the amount of interest has not been specified or agreed upon. But parties may agree in writing for the payment of any rate of interest whatever, on money due or to become due on any contract. Any judgment rendered on such contract shall conform thereto, and shall bear the interest agreed upon by the parties, which shall be specified in the judgment.

An agreement to pay interest on a note which provides for "interest at the rate of two per cent per month from date," does not extend beyond the time said note becomes due and payable by its terms. Perry v. Taylor, 1 U. 63. An account stated carries interest from the day of its liquidation. Godbe v. Young, 1 U. 55. Affirmed, Young v. Godbe, 82 U. S. 562. If a debt ought to be paid at a particular time and is not, owing to the default of the debtor, the creditor is entitled to interest from that time, by way of compensation for the delay in payment. Young v. Godbe, 82 U. S., 562. The rule for computing interest when there have been partial payments, is to apply the payment to the discharge of the interest due, and if the payment exceeds the interest, the surplus goes toward discharging the principal; if the payment be less than the interest, the surplus of the interest due must not be taken to augment the principal, but interest continues on the former principal until the period when the payments taken together exceed the interest due, and then the surplus is to be applied toward discharging the principal. Perry v. Taylor, 1 U. 63. Where the evidence in the record is not sufficient to justify the computation of interest upon an account current, by monthly

693.

['90, p. 18.

rests, it is error to allow such computation. Jones v. Galigher, 9 U. 126; 33 P. 417. In an action for damages for a tort where the jury returns a verdict for damages and for interest thereon; held, that there is no authority for the granting of inter est. Nichols v. U. P. Ry. Company, 7 U. 510; 27 P. Where there is a statute providing a specific rate of interest, such rate is the measure of damages, otherwise the damage is to be established by proof. Perry v. Taylor, 1 U. 63; Godbe v. Young, 1 U. 55. Where a purchaser agrees to pay into court the purchase price of a mine concerning which the vendor has litigation, the former will be liable for interest during the time he withholds the money. Wasatch Mining Co. v. Crescent Mining Co., 7 U. 8; 24 P. 586. 151 U. S. 317. In a state where there is a statute making usury penal but not declaring the contract void, a usurious bond and mortgage may be enforced for the amount actually due. Bernheisel v. Firman, 89 U. S. 170. For discussion of the validity of a contract tainted with usury, see last case. Without the authority of a statute it is error for a judgment to direct that the judgment bear interest. Reece v. Knott, 3 U. 451; 24 P. 757.

TITLE 32.

INTOXICATING LIQUORS.

1242. License necessary. No person shall manufacture, sell, barter, deal out, or otherwise dispose of any spirituous, vinous, malt, or other intoxicating liquors, without first obtaining from the board of county commissioners of the county, or city council of the city, or board of trustees of the town in which he intends to do business, a license therefor, as hereinafter provided. [C. L. § 2156*.

Powers granted to city council, 206, sub. 41. Powers granted to town trustees, 302, sub. 6.

Powers granted to board of county commissioners, 2511, sub. 11.

Petition.

Bond. The boards of

1243. Id. Who may grant. county commissioners in their respective counties, and the city councils in their

« SebelumnyaLanjutkan »