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Show PAGE SEVEN INTERMOUNTAIN COMMERCIAL RECORD MONDAY, OCTOBER 14, 1974 In The Supreme Court of The I State of Utah tiff. The court granted the defendant's motion and from that ruling the plaintiff appeals. counsel, which really amounts to an attempted collateral attack upon the ment. It is the practice in this jurisdiction to try bastardy cases as civil matters rather than criminal even though the cases are brought in the name of the State and the public prosecutor is charged with handling those matters. 1 In those proceedings the parents of Tracy Brown, the plaintiff herein, employed special counsel to assist the prosecutor. The record indicates that the ' plaintiff was advised that she might proceed under the bastardy statute, or that she could file civil proceedings under the Uniform Act On Paternity. Prior decisions of this court have held that the bastardy act and the paternity act are alternative remedies. 2 The plaintiff having elected to proceed under the bastardy statute which culminated in finding that the defendant was not the father of her child precludes her from seeking in this proceeding to have that issue again determined. We conclude that the ruling of the trial court is correct. But I do not desire to be understood as agreeing, and I trust the main not be so understood, that there may not be some circumstances in will opinion a which public agency, or other person,' who provides or has provided sustenance for a necessitous child, would not be so prevented by res adjudicata from suing a putative father (suppose, for example, the evidence to be ever so strong, including admissions of paternity) because there had been a prior bastardy proceeding. That proceeding, brought by the State, necessarily involved other parties. Whereas, as a general rule, the doctrine of res adjudicata applies only when the parties, and the issues, involving the same cause of action, are the same as in the prior adjudication. Chapter 158, S. L. U. 1965, creates an entirely new and separate cause of action for the support of a child, solely for his benefit, and to be enforced U.C. A. 1953, Pocket Part) on his behalf. Section 1 of that act, provides: The defendant urges this court to dispose of this appeal on procedural grounds in that the plaintiff and appellant here failed to comply with Rules 73 and 75, Utah Rules of Civil Procedure, in that she failed to take the steps necessary to comply with those rules in perfecting this appeal and unnecessarily delayed the perfection of the appeal to this, court. There is merit to the respondent's position,, but the court having disposed of the matter on its merits we do not deal with this assignment. (78-45a- -l, Obligations of the father. - The father of a child which is . . . born out of wedlock is liable to the same extent as the father of a child born in wedlock. . . . for all reasonable expenses, etc. WE CONCUR: E. R. Callister, Jr. , Section 2 of the act provides that it may be enforced by the mother, the child, or by the public authority, or by other persons or agencies to the extent that they bear necessary expenses on his behalf. Neither the child, who was not born at the time, nor the third party, who later furnished his support, would have been involved in the bastardy proceeding; and their rights should not be deemed concluded thereby. (78-45a-- Chief Justice F. Henri Henriod, Justice A. H. Ellett, Justice 1. State v. Reese, 43 Utah 447, 135 P. 270. 2. State v. Judd, 27 Utah 2d 79. 493 P. 2d 604; State v. Abram, 27 Utah 2d 266, 495 P. 2d 313. I concur with the affirmance of the judgment of the trial court on the ground that under the particular facts of this case the prior bastardy proceeding can properly be considered res adjudicata. The plaintiff, who was the prosecutrix and real party in interest there, is here attempting to pursue the . . of the child. I have made these observations because I think this decision should be restricted to its particular facts; and that judgment should be reserved as to other possible circumstances. 1. Jur. 2d 681, Judgments, identity of parties as requisite; Farley Utah 2d 301. 431 P. 2d 133. See 46 Am. v. Farley, 19 Donald Bennett, loan officer of the Zions Bank, to inquire about the 10,000 F Supply Company, a Utah shares of Universal Leasing stock. Bennett 'told Hunter that the Bank held the stock as security; and that for any information about it he should go to the Souvalls. Upon his inquiry, the Souvalls sent Hunter back to the Bank; and authorized it to give him whatever information it had concerning Universal Leasing. corporation, a Delaware corporation, Andrew W. Souvall, Toula P. Burger-In-The-Roun- 2), I appreciate that the possibility of further litigation with other parties may present difficulties for the defendant. But so dp the life and necessities other alternative of her remedy. Also supporting the judgment, and even more important to me, is the fact that this proceeding is grounded upon the contention that the prior one was not properly conducted and that she did not have adequate S it judg- d, Souvall, his wife, Peter W. Souvall, Mary Souvall, his wife, Plaintiffs and Respondents, A Zions First National Bank, a National association, Intervening Plaintiff and Respondent, FILED October 3, 1974 Allan E. Mecham, Clerk Defendant and Appellant. of this case is the sharp divergence in the evidence con- said cerning the information furnished by the Bank about this stock. Hunter toldthat and him on Universal Leasing the Bank gave him only one financial statement that was all the information it had. On the other hand, Mr. Bennett testified that he showed the"defendant two financial statements, both dated 1969; that he pointed out that they were inconsistent; and advised the defendant to ascertain the value of the stock for himself. Of similar import is the testimony of John Langeland, another Bank official. He testified that he told the defendant that the Bank had no reason to have a current and reliable Universal Leasing financial statement; and that he advised the defendant to obtain whatever additional information he desired for himself by audit or otherwise. From the jury's answers to the interrogatories, as commented on below, it is obvious that they believed the Bank's version of this No. 12686 v. S. Craig Hunter, critical aspect CROCKETT, Justice: evidence. i The foundation of this case is an action by the plaintiffs against defendant which he agreed to S. Craig Hunter alleging fraud and breach of a contract, by Corporation. Defendant's purchase 10,000 shares of stock in Universal Leasing he was fraudulently induced defenses and a counterclaim included allegations that and avoidance into entering into the agreement, for which he sought rescission, and the interof the obligation. These he asserted both against the plaintiffs, as security stock the vened plaintiff, Zions First National Bank, who was holding the trial judge subfor a loan to the plaintiffs. The trial was to a jury, to whom of fact. Upon the mitted a total of 25 interrogatories as to the disputed issues basis of the answers, all of which were adverse to the defendant's contentions, the court entered judgment for the plaintiffs. Defendant appeals. evidence is the In accordance with the standard rule of review, where believed the evidence supporting in dispute, we assume that the jury 1 their answers to the interrogatories. of Plaintiffs Souvall brothers were officers and principal shareholders In the summer of 1969 these S fr F Supply Company and BurgerTin-the-RounAdministration (herein called corporations jointly applied for a Small Business was refused. But a second one, The first application S B A ) loan of $200,000. assets, the equity in the Souvalls offering additional security of certain corporate owned in homes, and 10,000 shares of stock in Universal InLeasing Corporation, was approved. August, 1969. S k F Supply equal amounts by the brothers, received $200,000, S.B.A. providing 75 Company and evidence that the Bank gave the and Zions Bank 25 of that amount. There is Souvalls some help in preparing the loan application. on this loan when, in December. 1969. Only one installment had been paid in bankruptcy. The Souvall. both of the borrowing corporations filed petition, with S. B. A. and the Bank, giving them a requested and reached an agreementand and apply the proceed, to repay the loan, chance to sell the other collateral, month save their homes from foreclosure. In that same thus re.u a Universal Leafing Corporation had engaged inof merger the merger, the 10,000 shares Under the term, nany. Universal-Rockweto the Zions Bank could be exchanged of Universal Leasing Corporation pledged Universal-Rockwe- ll Company. for 4, 530. 000 shares of the new . 22 Utah 2d 356. 453 P.Zd 1. See Memmott v. U.S. Fuel Co. a licensed securities broker, On February 12, 1970, defendant Hunter, of Universal Rockwell, attended a meeting at which Mark Eames, president discussed an upcoming and Jerry Timothy, an officer of North Star Marine, told the defendant about the 10. 000 merger of these two companies. Eamesthe Souvalls. which was held by the shares of Universal Leasing, owned by two defendant and for be sale, gave Zions Bank. He suggested that they might 1969. of March and November financial statements of Universal Leasing, dated Star Marine merger was consummated on The Universal Rockwell-Nort- h February 16, 1970. after the February 12th meeting, defendant contacted a few d. Burger-in-the-Rou- nd n" ll. i. . Within days It was the following month, on March 9, 1970, that the defendant signed the contract of concern here, in which he agreed to purchase the 10, 000 shares of Universal Leasing Stock, along with the remaining collateral, for $133,500. It included provisions that trading restrictions on the stock should be removed; and that consent for the sale would be obtained from the bankruptcy court by the sellers, which provisions the latter complied with. Later that month, on March 25, 1970, the defendant represented to Mr. Bennett that he was in the process of liquidating some stocks he held in New York, the proceeds of which would be applied on the contract. On that promise, Bennett turned over the certificates of Universal Leasing stock to Hunter. It seems significant that it was over a month later, in the fore part of April, about during which time defendant Hunter could have made further inquiries rests. action which note this the upon the value of the stock, that he signed His claim is that Bennett requested him to sign only as a bookkeeping convenience for the Bank, and told him it was not to be considered binding upon him. Whereas, Bennett disputed this and testified that there was no other intent expressed than to evidence the debt as shown on its face, since the defendant had not completed payment for the stock as agreed. Immediately after receiving the 10,000 shares of Universal Leasing, Inc. , Mr. Hunter exchanged them for 4, 530, 000 shares of Universal-Rockwel- l, received He which he commenced selling and trading at ten cents per share. about $9! 000 in cash and some property through these sales. Shortly thereafter, on May 27, 1970, the merger between Universal Rockwell and North Star Marine was rescinded, which had a depressing financial impact upon Universal Rockwell. Hunter claims that it was after the foregoing events, in the summer of 1970, that he discovered that the Universal Leasing Stock was worthless; and avers that upon the tender back of the stock or its equivalent, he was entitled to rescission of the contract to purchase it. Also pertinent is the fact that there is evidence that Hunter was engaged in negotiations to sell the stock at three cents per share as late as September, 1970. Though it seems somewhat unrealistic, he testified that he told the prospective buyer that he thought the stock was worthless. Meanwhile Hunter had turned over to the plaintiffs the $9, 000 he received for the stock he sold; and he has also turned over the amount realized from the other collateral received under the contract, $44,252.69, leaving the unpaid balance of $80, 247. 31 sued for herein. After the conclusion of the evidence the trial court dismissed Hunter's counterclaim based on fraud; and later, upon the basis of the jury's answers to the interrogatories, the court ruled that neither the plaintiffs nor the defendant had been guilty of fraud; and entered judgment for the plaintiffs for breach of the contract. The issues of concern here arise from the defendant's argument that, law irrespective of the requirements of proving the elements of common fraud,2 because of false representations made to him, he was. entitled to rescission of the contract by reason of Section 61-- 1 -- 22(l)(b), U. C. A. 1953, |