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Show MONDAY, SEPTEMBER 30, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE ELEVEN In The Supreme Court of The State of Utah Miriam C. Harward (Deering), Plaintiff and Appellant, No. 13423 FILED v. Darr September 25,. 1974 D. Harward, Defendant and Reipondent. Allan E. Mecham, Clerk The defendant was not satisfied with the decision and moved a regularelected judge to set aside the orders of the judge pro tempore. After a hearly ing the trial judge granted the motion upon the ground and for the reason that ELLETT, Justice: The parties hereto were divorced by a decree of court filed October 2, Thereafter an order to show cause was issued regarding a change in the 1967. custody of minor children. One Allen L. Hodgson at the time was a commissioner under the Family Court Act. 1 However, his power to serve pursuant to this Act is not involved in this matter. He was appointed judge pro tempore by stipulation of counsel for both parties under the provisions of Article VIII, Section 5, Utah Constitution, and Sections U. C.A. 1953.. and The latter, section provides inter alia: 78-3-- 15 78-3-1- 6, r The person . . . appointed shall be vested with the same power and authority and shall be charged with the same duties as to the cause in and as to which he is appointed as if he were the regularly elected and qualified judge of the district court; provided, that parties may, by the terms of their stipu- -. lation, limit the power of the judge pro tempore to the trial and determination of any specified issue or issues, either of law or fact, . . . The stipulation in question provided: , 6, and UCA 1953, . . . hereby appoint Allen L. Hodgson as judge pro tempore for the trial of all of the issues in said cause. 78-3-- 15 78-3-1- It is stipulated and agreed that said judge pro tempore shall be vested with the same power and authority and be charged with the same duties, as to the trial of said issues, as if he were the regularly elected and qualified judge of the above court. Valley Bank and Trust Company, a Utah corporation, Plaintiff and Respondent, No. 13489 FILED Alan Gerber, Barbara Gerber, his wife, Barbara Jensen Interiors, September 20, 1974 et al. , Defendants and Appellant, Allan E. Mecham, Clerk South Davis Security Bank, Defendant and Respondent. CROCKETT. Justice: This is an appeal by defendant Barbara Jensen Interiors, Inc. (hereinafter, Jensen Interiors), from a judgment awarding damages to plaintiff Valley Bank and Trust Company (hereinafter, Valley Bank), based on a finding that Jensen Interiors had breached a warranty against encumbrances in a contract of sale of home furnishings it had assigned to plaintiff Valley Bank. Appellant Jensen Interiors makes two main contentions: First, that in the course of the proceedings set forth below, it had been dismissed out of the case before the final judgment appealed from was entered. Second, that there is no basis in the evidence to sustain the finding that it had breached its warranty to Valley Bank. Mr. and Mrs. Alan Gerber (hereinafter, Gerbers) purchased a home in the Salt Lake area in 1969; shortly thereafter they contacted Jensen Interiors for the purpose of receiving interior decorating counsel and purchasing various furnishings and fixtures. Between February 13, 1969 and March 20, 1969 Jensen Interiors delivered and installed in Gerbers1 home carpeting, draperies, and various items of. furniture, accessories and equipment (for brevity herein, all called home furnishings), valued at about $12, 000. The parties orally agreed that items of furniture and accessories would be placed in Gerbers1 home on a trial or "on approval" basis until the entire decorating plan was completed to Gerbers' satisfaction, then a contract of sale would be executed for those things Gerbers chose to keep. 4 As various of the items were delivered the delivery tickets were stamped "Merchandise Not Returnable After Three Days. " The Gerbers did not sign these tickets. In response to their inquiry about the effect of the statement, Jensen Interiors assured them that the stamp was routine, to encourage customers to decide quickly; and that it was not strictly enforced. The understanding was that Gerbers would obtain financing, pay $7, 000 down, and the remaining $5, 000 in installment payments. Pursuant to that plan, and after various of the home furnishings &A been in Gerbers1 home for up to two-plmonths, on April 23, 1969, South Davis Security to defendant the the furniture the Gerbers pledged Bank for a loan of about $11, 000, of which they remitted $6, 934. 50 to Jensen Interiors on the purchase price. A security agreement (chattel 1 mortgage) was recorded with the Secretary of State. The core of the us ' U.C.A. 1953. weeks later, on May 13, difficulty in this case arises from the fact that three of the sellers, 1969, the Gerbers executed another security agreement in favor two and weeks later, on May Jensen Interiors, on the same home furnishings; 26, 1969, Jensen Interiors assigned its sale contract and security agreement to plaintiff Valley Bank. The assignment was without recourse. But it also contained a covenant warranting ". . . that said Collateral was delivered into the possession of the buyer Gerbers thereunder and is free from any liens or encumbrances other than said contract . . . . " Gerbers made payments on the contra r.c to Valley Bank until May, 1970, at which time they filed petitions 1. See Sec. 70A-9-30- The Court finds that the appointment of Alan L. Hodgson as judge pro tempore in this case violated the provisions of Title 4, UCA, 1953, as amended, and Title UCA, 1953, as amended, and consequently said Alan L. Hodgson had no jurisdiction to hear the matters or enter the orders referred to in the orders of said Judge Pro Tempore dated June 5, 1973 and June 6, 1973, and said orders transferring custody of the minor Kevin Harward 1. Sec. U.C.A. 1953 as amended. . . . 30-3-- 30-3-15- .3, de-crib- 30-3-15- 2, t ed .3, to plaintiff and ordering defendant to deliver said minor to plaintiff's representatives for transportation from the state of Utah to Hawaii are hereby set aside ... The plaintiff appeals from that order. Since the stipulation for appointment of the judge pro tempore was pursuant to the Constitution and another statute as heretofore set forth, it is im3 were followed or not. and material whether Sections30-3-- 4 30-3-- , Pursuant to the provisions of Section - The judge pro tempore proceeded to hear the matter and continued it a couple of times to enable counsel to supply him with psychological evaluations, etc. His final ruling was made and filed on June 6, 1973, based on an evidentiary hearing had on June 4, 1973. He awarded the permanent custody of the children to the plaintiff and made findings of fact and conclusions of law to sustain the order. 15. We take judicial notice of the fact that Allen L. Hodgson is a lawyer admitted to practice in the courts of this state, and when he took his oath as a judge pro tempore, he became the equal in every respect to the regularly elect- ed or appointed judges insofar as his handling of the instant matter is concerned. The orders he made are binding upon the parties unless and until they are reversed upon appeal to this court. A fellow judge cannot set them aside. The judgment and order appealed from is reversed. in bankruptcy and were subsequently discharged. Thereafter in October, 1970, plaintiff Valley Bank brought this action against Jensen Interiors alleging breach of the warranty against encumbrances because of the security agreement (chattel mortgage) to defendant South Davis Bank. A first trial was had, resulting in a finding that, inasmuch as Gerbers had not "approved" the purchase, they had acquired no ownership in the home furnishings at the time of the pledge to the South Davis Bank, hence the latter acquired no interest therein; and that because title was still in Jensen Interiors, the assignment from the latter. to Valley Bank involved in no breach of warranty. The suit was therefore dismissed as to Jensen Interiors. The two banks. South Davis and Valley, each filed timely motions for. a new trial. On August 16, 1972, by memorandum decision, the motions for a new trial were each denied, and by an amended order on that date, the action was again dismissed as to Jensen Interiors, but for the first time dismissed also as to South Davis Bank. As to this new and different judgment. Valley Bank, on August 23, 1972, and thus within the ten days allowed, made a motion for new 'trial against both ,of the other parties, Jensen Interiors and South Davis Bank, and duly served it upon them. The record does not show a disposition of this motion. But on January 15, 1973, the court signed and entered a new set of findings of fact,' conclusions of law and judgment. Four days thereafter, on January 19, 1973, defendant South Davis Bank filed its motion to set aside or amend them. It is important1 to note that this motion was also directed against both Jensen Interiors and Valley Bank. Subsequent to the hearing on this last motion, the trial court on February 26, 1973, entered an order granting a new trial as to all parties. Upon the new trial it was determined that the sale had been completed to Gerbers, and that the security interest (chattel mortgage) to South Davis Bank was valid; and that therefore when Jensen Interiors assigned the contract to plaintiff Valley Bank there was a breach of the warranty against encum- brances. District Court's Jurisdiction to Grant New Trial On the procedural issue, it is the contention of defendant Jensen Interiors that because both of the orders of dismissal, one on March 3, 1972, and one on August 16, 1972, had dismissed it out of the case, the trial court was ' without jurisdiction to grant a new trial as to it on February 26, 1973. ' The significant fact is that in each instance recited above the motions attacking the judgment were timely made and were directed against and served upon the other parties, including Jensen Interiors. The timely filing. of any of the motions allowed by the rules to attack or change the findings and judgment invokes1 the continuing jurisdiction of the court and suspends the running of the time on the judgment until the motion is ruled upon. 3 This applies to the January 19 1973, motion of South Davis Bank "to set aside or amend the findings and judgment. " Consequently, the trial court was within its prerogative hi deciding that the interests of justice required the setting aside of the entire findings and judgment; and that having done so, the appropriate procedure was to grant a -- 2. Rule 52(b), U. R. C. P. , provides for motion to amend the findings. See Barron & Holtzoff, Federal Pr. fc Procedure, Sec. 1130; and also Sec. 1306, at p. 378: "If a motion is made within 10 days under Rule 59(b), it suspends the finality of the judgment and the court may grant the motion after the 10 day period has expired. " See also 6A Moore's Federal Practice, . . once the finality of the judgment has para. 59.09(4); he states at 59. 11: been suspended by a proper motion, the trial court has the power to grant a new trial, on its own initiative, more than 10 days after the entry of judgment for any reason for which it might have granted a new trial on motion of a party. " See also para. 59.09(2). and authorities there cited. 4 The matter of the breadth of discretion new trial as to all parties. new in a court allowed trial trials in order to fulfill its granting responsibility of seeing that justice is done; and that his action will not be disturbed in the absence of a clear abuse of Hs discretion, has been sufficiently set forth in prior cases that it requires no more, than statement of the proposition here. 3. Violation of Warranty of No Encumbrances 'Jensen Interiors argues that at the time, Gerbers executed the : ; |