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Show PAGE THE DAILY RECORD FOUR SUPREME COURT DECISIONS Henriod, J. (Continued from Page 3) The defendant Arta contends that in arriving at the trial court committed error on these propositions: the? above accounting refusing to find that there was an agreement for her to receive which she claimed for a period of $i00 a month salary from the partnership, four years, totaling $14,400. In A. B. In ship account was a partnerfinding that an account in the Manti City Rank and in deposits made therein as contributions to the allowing partnership. In C. ship asset. MONDAY, JULY 20, 1970 to be a partnerfinding property known as the "Sterling Ranch" The Salary Claim As to A above, concerning Arta's claim for $300 per month salary for from four years: It is not to be gainsaid that in order to receive such a salary effect. the partnership there would have had to be an express agreement to that eviArta insists that there was such a written agreement. The only written dence presented on that matter was an unsigned document in her handwriting was by a Mr. containing the notes from which she says the agreement so typed and that it conLund. The latter in fact testified concerning having done tained the $300 per month provision. The opposing evidenre which would tend to the to justify the trial court's refusal to find as Arta claims, in addition a A thus: is entered was notary, into, plaintiff's denial that such agreement she said the agreement, Mrs. Covington, who is supposed to have notarized Two such with Corbet's Mr. two documents signature. had verified only condocuments were presented in evidence and neither was the agreement no indication that the $300 per cerning the $300 per month wage. There is month was ever drawn or paid. The Bank Account it was Concerning the Manti City Bank account, defendant says that to her of money her account: that she used it for deposits and disbursements and that the to do with partnership: children on matters having nothing at insistence his account the was added to only name plaintiff Walter Corbet's it was that facts the are: court and over her objection. Supporting the trial findthe court's trial and a joint account; and that according to the evidence as the sum of $8, 185.48 therein compared ing, plaintiff Walter had deposited the period. Arta partnership during to deposits of $4,001.07 by The Sterling Ranch Arta's contention is that the ranch was part of her deceased husband's estate which came to her; and that the title always thereafter remained in her and her children. To the contrary: Plaintiff says that defendant Arta had to the ranch had been the promised him, and represented to him, that wastitle not necessary to pay the transferred to him and her jointly, and that it children anything for any interest therein. Nonetheless, the children were that plaintiff Walter actually paid $5, 000 out of the joint bank account; further, various of for dollars improvements on the had contributed many thousands it had ranch, including a substantial addition to the home thereon; and that of been considered as a joint asset of the parties in the settlement agreement their 1962 divorce. The defendant has also raised the point that because of the statute of to frauds any agreement by her to convey the Sterling Ranch would have had not be in writing. The effective rejoinder to this is that such a defense is the trial court in a proceeding in equity from considerinvokable to prevent and the proceeds thereof in adjusting the accounting between ranch the ing these parties, and this is particularly so here because the ranch had been sold before the accounting and what the court was really concerned with was the proceeds of the sale. That generally a partner is not entitled to any remuneration for his services in the absence of an agreement by the partners to that effect, see U.C.A. 1953; and Chambers v. Simms, 13 Utah 2d 371, Sec. 1. 6), 374 P. 2d 841 (1962). We recognize the correctness of the defendant's assertion that under Section 9 of Article VIII, Utah Constitution, this court may review the facts in equity cases. Nevertheless, it is well established that we make allowance for the advantaged position of the trial judge in close proximity to the parties and the witnesses; and we do not disturb his findings and judgment merely because we might have viewed the matter differently, but would do so only if it appeared that the evidence clearly preponderates against them, or that he has so abused his discretion, or misapplied the law, that an injustice has resulted. We are not persuaded that any such circumstance exists here. One further matter requires comment. During the pendency of this appeal counsel for the defendant have lodged with this court a purported "Motion For A New Trial" together with an affidavit in support thereof purporting to set forth matters relating to newly discovered evidence. We do not and could not properly take cognizance thereof. On Appeal to this court we review the; judgments and orders appealed from on the basis of th e record upon which the trial court acted, and do not permit the suppleof not the trial court. with our matters record before menting Further, a motion for a r.w trial is not properly addressed to this court hut to the trial acourt; and it must he filed within 10 days after the judgment or order 'rui1 . 1 appeal , does not herein, 2. See Stone v. Stone, 19 Utah 2d 378, 431 P. 2d 802, and numerous cases therein cited; also Wiese v. Wiese, 24 Utah 2d , 469 P. 2d 504 (May 8, 1970). 3. See Tucker Realty, Inc. v. Nunley, 16 Utah 2d 97, 396 P. 2d 410. 4. Ibid. 5. Rules 59(b) and 6(b), U. R. C. P. In The Supreme Court Of The State Of Utah In the Matter of the Estate of Frank J. Spitters, aka Frank Spader, Deceased, No. 12012 FILED July 13, 1970 Frances M. Newbold, L. M. Cummings, Clerk Appellant. ELLETT, Justice: Frank J. Spitters, deceased, during his lifetime purchased a number of Series E bonds, some in joint tenancy or with one of his the to on his death. These some and her daughters, appellant herein, payable bonds are in the possession of the administrator with the will annexed of the estate of hip Frank J. Spitters. The appellant filed a petition in the probate proceedings for delivery to her of the bonds in question. Although no evidence was presented at the argument on the motion, the court denied the petition of the appellant and proceeded to order her to endorse and cash the bonds and deliver the proceeds thereof to the administrator of the estate forthwith. She appeals from the dismissal of her petition and from the order made. The appellant claims that she is entitled to the bonds and the proceeds thereof under Treasury regulations reading: Sec. 315.66. After the death of the registered owner. If the registered owner dies without the bond having been presented and surrendered for payment or authorized reissue and is survived by the beneficiary, upon proof of death of the owner the beneficiary will be recognized as the sole and absolute owner, and payment or reissue will be made as though the bond were registered in his name alone (see Subpart L). This section relates to the payment by the United States Government and has nothing to do with the ultimate rights of parties to the funds. If the law were to the effect that the payee of a bond had absolute title and ownership to the proceeds thereof, then robbers, thieves, and embezzlers could prevent the true owner from recouping any loss by simply investing the wrongfully acquired funds in E bonds with himself or a convenient man of straw as the named payee thereon. While the Treasury Department would pay the proceeds only to the named payee, the money would be held subject to such rights of others thereto as a court in a proper proceeding might determine. Instead of bringing an action in claim and delivery for the recovery of the bonds, the appellant filed a petition in the probate court to compel the administrator to deliver them to her. The court did not err in denying the petition as filed. However, the order requiring appellant to cash the bonds and surrender the proceeds to the administrator is not justified. In a proper proceeding the ultimate rights to the proceeds could be determined under the rule laid down in the recent case of Beehive State Bank v. Rosquist, 21 Utah 2d 17. 22, 439 P. 2d 468, 471 (1968). We there said: If the contract between the parties ostensibly creates a joint tenancy relationship with full right of survivorship, there arises a presumption that suen is the case unless and until some interested party shows under equitable rules that the contract should be reformed to show some other agreement of the parties or that the contract is not enforceable because of fraud, mistake, incapacity, or other infirmity. Since these bonds create a relationship in the nature of joint tenancy, the proceeds therefrom would belong to the appellant unless the respondent could show under equitable rules that there was an agreement between the decedent and the appellant that the contract for the purchase of the bonds was to be different from that which appears on the face thereof or that there was some mistake made or fraud practiced upon the deceased by the appellant or that the deceased did not have the capacity to enter into the joint tenancy relationship at the time the bonds were purchased. The order requiring the appellant to endorse and cash the bonds and deliver the proceeds to the administrator of the estate is set aside. No costs are awarded. WE CONCUR: 1 Affirmed. W !: J. Allan Crockett, Chief Justice Costs to plaintiff (respondent). E. R. Callister, CONCUR; K. It. Cal K. I.. 1 in lister, Jr., Justice kelt, Justice A. II. KJlr;i, Justice Jr., Justice R. L. Tuckett, Justice F. Henri Henriod, Juatice 1. The petition did not set forth facts sufficient to state a cauee of action in the probate court. See In re McLaren'e Estate, 99 Utah 340, 106 P. 2d 766 (1940); In re Rice's Estate, 111 Utah 428, 182 P.2d 111 (1947). I |
