the time, however, since 1876, the language re

contained in section 3301, which requires it to spectiug the time within which an appeal must be done within six months from the entry of be taken is the same as quoted above. The judgment. The reasons for the rule are dislanguage respecting the time within which ap- cussed in the case of Watson v. Mayberry, 15 peals must be taken was thus adopted with- Utah, 265, 49 Pac. 479, and they are well out modification into the revision of 1898, supported by the following authorities: Smeltbut not so with respect to the granting of new ing Company V. Billings, 150 U. S. 31, 14 trials by justices of the peace, as clear- Sup. Ct. 4, 37 L. Ed. 986; Voorhees v. Mfg. ly appears from the foregoing quotations. In Co., 151 U. S. 135, 14 Sup. Ct. 295, 38 L. Ed. this connection it should not be overlooked 101; Railroad Co. v. Holmes, 155 U. S. 137, that justice courts of this state are constitu- 15 Sup. Ct. 28, 39 L. Ed. 99; Kingman v. tional courts, and the right to an appeal Western Mfg. Co., 170 U. S. 675, 18 Sup. Ct. from final judgments of such courts is ex- 786, 42 L. Ed. 1192; 2 Thompson, Trials, 8 pressly provided by the Constitution (article 2730; Hilliard on New Trials, 59; State v. 8, $ 9), "with such limitations and restric- Chapman, 76 Pac. 525, 35 Wash. 64; Louistions as shall be provided by law.” The ville, etc., v. Commonwealth, 71 Ky. 179; Reyright to an appeal, however, is a constitution- nolds v. Horine, 13 B. Mon. (Ky.) 234. In 1 al right. In the same article and section of Spelling on New Trials, $ 28, in speaking of the Constitution the right to an appeal from new trials in justice courts, the author says: all final judgments of the district courts to "In several states are found statutes prothis court is also given, and the time within viding for a new trial in justices' courts. which such appeals must be taken is fixed by These present nothing peculiar or exceptional. section 3301 in the following language: "An The same principles govern the extent and appeal may be taken within six months from exercise of the jurisdiction as govern courts the entry of judgment or order appealed of record." from.” The time limit in which an appeal The right to grant new trials being expressmust thus be taken from the judgment of the ly conferred upon justices of the peace by district court is six months from the entry of section 3742, the legal effect of a motion for judgment, and from a justice's judgment 30 a new trial, if filed within the time allowed days after the rendition of the judgment. by the statute giving the right to file it, must, Since we have no such thing as a judgment in the absence of any express provision to the without a record in this state, all judgments, contrary, be held to be the same in justices' to be of any effect whatever, must be in writ- courts as in the district courts. This, we ing, and hence there can be no essential dif- think, is likewise the evident purpose and ference between the "entry" and "rendition" meaning of section 3771, Rev. St. 1898, where of a judgment. Moreover, by section 3726, it the provisions of the Code in their nature is provided that, when the case is tried by applicable are made applicable to the proa justice, he must enter judgment at the con- ceedings in justices' courts. The power to clusion of the trial or within two days there- vacate judgments and to grant a new trial after. In section 3757 the justice is required is certainly conferred on justices of the peace, to enter all motions and judgments in his and in the exercise of that power, to the exdocket, and by section 3758 he is required to tent it is given, it cannot, in legal contemplaenter all matters that are required to be en- tion, be different from the exercise of a tered as of the time when they occur.

similar power by the district courts. If, then, The foregoing matters have thus been spe- the filing of a motion for a new trial in the cifically set forth for the reason that the re district court has the legal effect of suspendlator contends that the time within which an ing its judgment, and thus preventing it from appeal is required to be taken from a justice's being a final judgment, under the Constitujudgment is within 30 days after the motion tion, for the purposes of an appeal, as held for a new trial has been overruled by him, in Watson v. Mayberry, supra, why is not the for the reason, as we understand the relat- legal effect precisely the same with regard to or, that the Constitution grants appeals only judgments of justices' courts? Certainly the from final judgments, and that a judgment reasons are the same, which are that, the which is subject to a motion for a new trial court having power under the motion to set is suspended, and hence not a final judgment aside the judgment and to grant a new subject to appeal, and becomes final only | trial, therefore the judgment cannot be final upon the overruling of the motion for a new until the overruling of the motion, which trial. In support of his contention he cites settles the contentions of the parties and numerous authorities to the effect that a makes the judgment final; and, as the Coninotion for a new trial, when the right to stitution limits the right to an appeal from make one is given, suspends the judgment, and final judgments only, the right cannot exist, the time within which an appeal must be tak- and therefore cannot be exercised, until the en begins to run from the time the motion is judgment is, in contemplation of law, a final overruled. This, it must be conceded, is the judgment. general rule, and is the one adopted by this The respondent, however, contends that the court with regard to the time within which justice was required to pass on the motion appeals must be taken from judgments of the for a new trial, and to grant or refuse it, district courts, notwithstanding the language | within 10 days after the entry of the judg

question, therefore, arises, which is: Is the made" here clearly

refers, and can only re

ment in this case. By reference to the dates commas which separated the phrase "on moset forth in the statement of facts it will be tion" are omitted, while after said phrase seen that this was not done. The second the word "made" is inserted. The word

"" , time within which the justice must pass upon fer, to the phrase "on motion"; that is, on the motion limited by section 3712? It must motion being made, etc. The word "being." be granted that, as the section was originally or its equivalent. “which is," is implied beworded and punctuated, expressly in view of fore the word “made." Under the present the existing time limit within which to ap- wording of the statute, the phrase "within peal, the contention has great force. The ten days" no longer can be carried back to original phraseology of the section has, how- the phrase "a new trial may be granted," but ever, been changed, and with it the original it now qualifies the phrase "on motion made"; punctuation, to make it conform to the charg- that is, if a motion be made within 10 days ed phraseology. This change, however, Can- after entry of judgment, the justice may not be held to be one where a section is re- grant a new trial. It certainly will not do written by revisers for the sake of brevity to say that the phrase "within ten days," etc., or condensation, with the view of retaining as written in the present section, refers, or and making the original meaning clearer: but under any rule of grammatical construction the change was manifestly made for the pur- can reasonably be made to refer, back to all pose of preventing a misconstruction of the new trial may be granted," so as to make it meaning of the statute, and to so frame it mean that a new trial may be granted within

that only ore meaning was possible in view 10 days after the entry of judgment on motion

tion

. The rhrase "on motion” might just as to absurdity, or to a partial for total repeat

and appeals from justices' courts, is the be contended that the meaning of section one that an appeal must be taken within 30 3744 is the same as the meaning of section days after the rendition of the judgment. 3057, as to say that section 3742 means the

We have already pointed out that this same as did the old section 3055. The phrasecourt has held, as other courts have, that the ology of section 3742 being changed, it must making of a motion for a new trial within be assumed that the meaning was intended the proper time suspends the judgment, and to be changed. The change is too radical, prevents its finality for the purpose of an according to the rules applied to ascertain appeal. If this be so, then the judgment in the ordinary meaning of words, to admit of this case was not a final judgment, within serious doubt. Where such is the case, the the constitutional meaning, while the motion courts have no right to force into the new for a new trial was pending, and hence not phraseology the old meaning. 2 Lewis' Suth. appealable. The right to an appeal, then, Stat. Con, $ 401; Collins v. Millen, 57 Ohio did not exist, and could not be exercised, St. 289–296, 48 N. E. 1097. When the change until the judgment was made final by the was made in 1998, the Constitution had overruling of the motion for a new trial, changed the right to appeal to this court the pendency of which prevented it from be with regard to the great majority of the casing so. It is no answer to say that a party es tried in justices' courts. Nearly all the may appeal, notwithstanding the motion re- cases became final on appeal to the district mains undisposed of. The right to make courts after the adoption of the Constitution the motion is given. The purpose thereof in 1896; but the old provision still stoodmust be to give the justice an opportunity to that a justice must decide a case and render review bis findings respecting the sufficiency judgment within two days after trial. It of the evidence, or, in case of accident or is only fair to assume that the Legislature surprise or newly discovered evidence, to thought that, while that short space of time grant a new trial upon those grounds. The might be sufficient in most cases, there might motion was not intended as a mere idle cere- be some which required more time for conmony, which it would be if an appeal must sideration; hence it made the time within be taken while it is pending or before a rul- which a new trial might be granted without ing thereon. Jurisdiction, being once con- express limitation, leaving it to the parties to ferred, is not to be destroyed, unless by call it up for hearing, and give the justice a some positive provision or by some unavoid- reasonable time, at least, in which to decide, able implication of law. If it be held, there- the same as in the district courts. If this fore, that the time for an appeal dates from was not the intention, then it would have the time the judgment in fact became final been an easy matter for the Legislature to so by the overruling of the motion for a new frame the section as to limit both the time trial, which is in accordance with the gen- of filing the motion and the time in which eral rule, then all the seeming conflicting it should be passed on. The first was proprovisions of the different sections are har- vided for. The latter was omitted, and we monized, and no violence is committed by are not authorized to make it by a forced the construction above adopted to any of construction, for the sole reason that a time them. If, however, we hold that the time limit is fixed in another section with regard for an appeal from judgments of the district to some other matter connected with the courts does not run from the entry of judg- first, but which has been held does not under ment, when such is the language of the stat- similar conditions apply to judgments of othute, but that it does so from justices' judg- er courts. ments, under precisely the same conditions We are cited to cases from other courts and language, so far as its effect is con- which it is asserted are decisive of the quescerned, then we must ignore either one or tion. We will now briefly review these cases. the other provision applicable to the same Scott v. Meyer, 3 S. W. 83, 49 Ark. 17, is a subject-matter, viz., the constitutional pro- case from the state of Arkansas, where it vision of appeals from final judgments. It was held that the time limit for an appeal in is manifest that a judgment cannot be final that state is absolute, and that the pendency so long as it is within the power of the of a motion for a new trial does not extend court to set it aside upon a pending motion. the time in which to appeal. The decision It is equally obvious that the mere grade of is very brief, and gives no reasons for the a court cannot affect this principle. Of conclusion reached. It is contrary, however, course, all this depends on whether the mo- to nearly all, if not all, the authorities, in tion for a new trial must be made and holding that the pendency of a motion for a passed upon within 10 days from the entry new trial, if filed under a statutory right of the judgment. Upon this point we have į and within time, does not suspend, a judgalready pointed out the distinction between ment for the purposes of an appeal. See ausection 3742 as changed in 1898 and as it thorities first above cited. The Montana case was before that time.

(State v. Votaw, 16 Mont. 308, 40 Pac, 597). In 1898 section 3657, Comp. Laws 1885, does not reach the question involved in this was also substituted by section 3744, which case. That case decides that the notice of gives an enlarged right to an appeal in a cer- intention to move is not a motion for a new tain class of cases. It might just as well trial, and that a new trial granted by a jus

ton.

tice of the peace upon a motion filed after modify the judgment heretofore rendered, the time in which the statute required it to so as to include costs in favor of the petibe done was of no force or effect, and that tioner and against the respondent, Mae Houghthe original judgment was not vacated there

While in some cases the courts have by. Were such a case presented here, we awarded costs in certiorari and mandamus should not hesitate to follow that decision. proceedings to the prevailing party, the same Kerner v. Petigo, 25 Kan. 652, is a case where as in all other cases, we think the better it is held that the justice exceeded his pow- rule, in the absence of a special statute, is er in granting a new trial in a case tried be- to award or withhold costs as best comfore him, for the reason that the statutes ports with a sound judicial discretion. Merrill of Kansas permitted him to grant new trials on Mandamus, § 310; High on Extra. Rem. only in cases tried to a jury. Moreover, the (3d Ed.) § 518. This has also been the pretime within which a new trial could be grant- vailing rule in this court. 0. S. L. Ry. Co. ed, in any event, was absolutely limited by v. District Court, 85 Pac. 360, 30 Utah, 371; the Kansas statute, and the justice granted a Hoffman v. Lewis (Utah) 87 Pac. 167; State new trial after the limit had passed. The v. Morse (Utah) 87 Pac. 705. case of Vogel v. Lawrenceburgh Tob. Co., 49 The petitioner, however, insists that in Ind. 218, is like the Kansas case, in that the this case the costs should be taxed against justice acted after the time limit imposed by the real party in interest, and asserts that the Indiana statute had expired. This was the real party in interest was made a party also the precise point decided in the case of to this proceeding, and hence the costs should Derby v. Heath, 59 Ohio St. 54, 51 N. E. 547, be taxed against her. This sometimes is and Burroughs v. Taylor, 90 Va. 55, 17 S. E. done, and properly so, as appears from the 745. The citation found in 24 Cyc. 586, cited case of Whitmore v. Harris, 10 Utab 259, by counsel, contains nothing to the contrary. 37 Pac. 464. In that case, however, the real

The foregoing are all the cases cited, and party in interest resisted the application, we have found no others. In all those cases, while in the case at bar no one appeared therefore, we have an express statutory limi- but the judge. Costs are sometimes taxed tation within which the justice must act, against the real party in interest, although and if he fails to do so within that limit not a nominal party to the proceedings. Peothe power to act is wanting. If this had ple v. Bacon, 18 Mich. 247. More frequentbeen made so by express statute in this state, ly, however, costs are not allowed to either there would be no difficulty; but we are ask- party. State v. Judge, 12 Iowa, 237, Tennant ed to so hold by impħication merely. We v. Crocker, 85 Mich. 328-340, 48 N. W. 577, should have less hesitancy in so bolding, were and the cases first above cited from this it not for the fact that this court has held- court, Applying the general rule to this and which holding is clearly right, both upon case, we do not think it is a proper case in principle and authority—that the time limit which to tax costs against the real party for appeals made in almost the precise lan- in interest, for the following reasons: guage, certainly in the same sense, did not The question presented to the district court apply, where a motion for a new trial was was one of jurisdiction-power to hear the pending, when applied to the district courts. appeal on the merits. If the appeal was not This has become the settled practice in this taken in time, the district court was withstate. Stoll . Daly Mining Company, 19 out power to hear and determine the ques Utah, 280, 57 Pac. 295. If this is good law tions involved. The district court, there when applied to appeals from district courts, fore, might have raised the question on its it should be the same when applied to jus- own motion, and the fact that the respondtices' courts.

ent, Mae Houghton, made the motion to disWe might add, in conclusion, that the ques- miss the appeal, was no more than a sugtion here decided has no longer any practical gestion that the court was without jurisdicvalue or effect, apart from its effect in this tion to proceed to the merits of the case. case, for the reason that the Legislature at The court concurred in this view and entered its last session fixed the time absolute in judgment accordingly. Unfortunately the law which appeals must be taken from justices' did not permit the petitioner to appeal courts. This, however, is no reason why we from that judgment, and hence, in order to should not declare the law as in our judg-settle the legal questions involved, he was ment it should be declared,

compelled to resort to a direct proceeding A peremptory writ of mandate is granted, in this court against the judge. To have requiring the respondent to vacate the judg- commenced the proceeding against the rement dismissing the appeal and to reinstate spondent, Houghton, would have been use the case, and to proceed therewith in accord- less; nor was she a necessary party to the ance with law.

proceeding in this court. True, she might MCCARTY, C. J., and STRAUP, J., concur. application, and possibly have put the peti

have filed an answer and have resisted the On Rehearing.

tioner to some additional trouble and ex

pense. This she did not do, however; but FRICK, J. An application for a rehearing the judge appeared alone, and he did so for Is made in this case, asking this court to the sole purpose of settling the law. If the respondent, Houghton, had come into this the directors should determine. The financial court and confessed the application of the condition of the company was such that, if the petitioner, the result would have been the

stock were sold, no substantial sum would hp

realized for it. I: old, that the directors were same. Her admission could not have con

noi required to sell the treasury stock before ferred jurisdiction on the district court, nor levying an assessment on the outstanding stock could it have relieved this court from deter- to pay the corporate debts. 1 mining that question. Jurisdiction of the Appeal from District Court, Third Dissubject-matter cannot be conferred in that trict; M. L. Ritchie, Judge. way. The dilemma, therefore, applied to the Action by H. A. Nelson against the Keithpetitioner alone. It was his misfortune to O'Brien Company and others. From a judybe placed in the legal attitude of either hav- ment for defendants, plaintiff appeals. Afing to pay a judgment rendered against him firmed. by a competent court in the original action,

M. P. Braffett and King, Burton & King. or come to this court in a direct proceed- for appellant. Dickson, Ellis, Ellis & Schoul

, ing to determine the question whether or

der and Ilowat & Macmillan, for respondents. not he should be given another trial on the merits. While he is innocent, the respond- STRAUP, J. This action was brought by ent, Houghton, is equally without fault; and

plaintiff against the Keith-O'Brien Company, the only obstacle in his way, as the district

a corporation engaged in general mercantile judge viewed it, was the want of jurisdic

business and organized under the laws of the tion on his part to hear the appeal on the

state of Utah, and against its directors and merits.

its secretary, for an alleged conversion of We do not think, therefore, that this is a

certain shares of the capital stock of the corproper case in which to impose the costs of

poration owned by the plaintiff and his asthis proceeding upon the respondent, Hough- signors. Judgment was in favor of the deton. The application, therefore, ought to be,

fendants, and plaintiff appeals. and accordingly is, denied.

The full-paid capital stock of the plaintifr

and his assignors was sold by the defendants MCCARTY, C. J., and STRAUP, J., con- for nonpayment of assessments levied against cur.

it. The only question presented is whether the board of directors had authority to assess

the stock. Section 331, Rev. St. 1398, pro(32 Utah, 396)

vides: "The property of the corporation and NELSON V. KEITH-O'BRIEN CO. et al.

the unpaid stock shall be liable for the debts (Supreme Court of Utah. June 26, 1907.) of the corporation, but the individual prop1. CORPORATIONS-RIGHT TO ASSESS STOCK,

erty of any holder of full-paid capital stock of The power of a corporation to levy an as- any corporation organized since March eightlı, sessment on full-paid capital stock must be de

eighteen hundred and ninety-four. or that rived from the statute, the articles of incorporation, or some other express promise to pay.

hereafter may be organized, under the laws [Ed. Xote.-For cases in point, see Cent, Dig.

of this state, except as otherwise expressly vol. 12, Corporations, $ 654.]

provided in this title, shall not be liable for 2. SAJE-ASSESSMENT OF PAID-UP STOCK. the corporate obligations, nor shall assess

The original articles of incorporation of a ments be levied on such stock for any purpose company granted the directors power for the

whatever, except to such extent and in such purposes of paying expenses, conducting the business, or paying the debts of the corpora

manner as may be expressly provided in the tion to levy assessments upon the outstanding

articles of incorporation." Section 338 procapital stock as provided by law, and declared vides: "The articles of incorporation of any the capital stock for that purpose assessable.

corporation now existing, or that may hereIt was also provided that the articles might be amended in any respect at any stockholders'

after be organized under the laws of this meeting called for that purpose after due no- state, may be amended in any respect contice; a majority of the outstanding stock rep- formable to the provisions of this chapter by resented at the meeting voting for the amend

a vote representing at least two-thirds of the ment. Rev. St. 1898. $ 331, allows the assessment of full-paid capital stock to the extent and

outstanding capital stock thereof at a stockin the manner expressly provided in the articles holders' meeting called for that purpose, as of incorporation. Held, that a majority of the hereinafter prescribed; provided, that the outstanding stock had power to amend the arti

original purpose of the corporation shall not cles, so as to authorize an assessment on the full-paid capital stock when the corporate in

be altered, nor shall the capital stock be didebtedness exceeded 10 per cent, of the outstand- minished to an amount less than fifty per ing stock, notwithstanding Rev. St. 1898, § 338, cent. in excess of the indebtedness of the providing that articles of incorporation might be amended by two-thirds of the outstanding capi

corporation; and provideil further, that the tal stock, but declaring that the liability of the liability of the holder of full-pai:l capital holders of full-paid capital stock for assess- stork for assessments or for the indebtedness ments, etc.. should not be changed without the

of the corporation shall not be changed withconsent of "all" the stockholders.

out the consent of all the stockimilers." Sera 3. SAJE-TREASURY STOCK. The articles of incorporation of a company

tion 3.14 provides: "The full-paid (pital stork provider that .300 shares of its capital stock of any corporation organized since Marchi should remain in the treasury, and should be disposed of at such time and for such price as · Gary v. Mining Co., 9 l'tah, 461, 35 Pac. 494.