Bryant v. Kunnel
Utah Supreme Court
Appeal from District Court, Third District; C. W. Morse, Judge. Action by Walter Bryant against Mart Kunkel and others. From a judgment for plaintiff, defendants appeal. APPELLANT'S POINTS. Either the affiant knew, or did not know that the defendants were non-residents. If he did not know, then the affidavit is clearly insufficient. If he did know, then the allegation on information and belief is not sufficient.
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Appeal from District Court, Third District; C. W. Morse, Judge. Action by Walter Bryant against Mart Kunkel and others. From a judgment for plaintiff, defendants appeal. APPELLANT'S POINTS. Either the affiant knew, or did not know that the defendants were non-residents. If he did not know, then the affidavit is clearly insufficient. If he did know, then the allegation on information and belief is not sufficient. (Baslcin v. Godbe, 1 Utah 28; Thompson v. Sheen, 14 Utah 409.) “A default obtained without proper service, and on an unauthorized appearance, is a nullity.” (1 Black on Judgments,…
1Opinion of the CourtErice, J.
Before we can proceed to a consideration of the merits of this appeal we are required to pass upon a preliminary motion interposed to.strike the bill of exceptions. The motion is based on the following proceedings, as disclosed by the record: The judgment appealed from was entered June 26, 1906, and on the same day notice was duly served on appellants’ attorney. No motion for a new trial was filed, but on July 16, 1906, appellants’ attorney obtained an order from the court giving him “sixty days additional time in which to prepare, serve, and file a bill of exceptions herein.” Nothing seems…
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