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Show MONDAY, OCTOBER 14. 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE SIX In The Supreme Court of The State of Utah statute at first blush might .......Iah or ine- owner mi- statute probe thought to be within the class of persons whom the seven-yeor participated in its tected since he himself may have constructed the building and control of realty is under a design, etc. A landowner or one in possession one not the owner or in P"es-sio- n continuing duty to keep the place in repair, and On and control would have no cause of action until damage was sustained. constructhe other hand, an owner does sustain damage as soon as an improper of for breach tion is made, and he can bring an action against the contractor conon any contract or for negligent construction. A failure, to perform work of action cause a owner the struction in a good and workmanlike manner affords until construction immediately. The stranger has no cause of action for faulty he suffers damage to his own interest. limitation The exception in the statute makes inapplicable the seven-yeto sue him for his torts, period against the original owner, and it allows others if any, within the regular statutes of limitations after the cause accrues. It prevents the owner as well as all others from suing the designer, planner, supervisor or contractor after seven years from completion of the project. Jamei E. Good and Mary G. Good, Plaintiffs and Appellants, . No. 13659 v. Don M. Christens en, Don M. FILED Christensen Construction Company, Inc. , Construction Realty, Lewis C. Hansen and Billie J. Hansen, Defendants and Respondents. October 9. 1974 iinHur our periun Allan E. Mecham, Clerk ar ar ELLETT, Justice: The plaintiffs appeal from an order dismissing their complaint because of the running of the statute of limitations. We think that this interpretation makes more sense than to allow the Christensen Construction Company built some carports for the Hansens in 1965. The Hansens sold the realty to the plaintiffs in 1969. In 1973 a heavy snowfall occurred, and the carport fell, causing damages to the plaintiffs. that right. a original owner the right to sue after seven years but to deny stranger This is especially true since the owner or tenant in possession and control is in to discover the defect, if any there be, than is the stranger. a far better-positio- This complaint was filed more than seven years after the carports were constructed. Section 78-12-- 25. n This view is sustained by the case of Salesian Society v. Formigli Corporation. 5, U. C. A. 1953 as amended, was enacted by Chapter 2 ' 3 The plaintiffs further rely upon the Utah case of Christiansen v. Reese, relationship a patient's wherein this court held that in the case of a doctor-patiecause of action for malpractice against his doctor did not accrue when the doctor negligently left a needle in the patient's body, but only when the patient learned or should have learned of the fact. The confidential relationship between doctor and patient is different from that between contractors and home owners; but even if it were the same, a different question would have been posed had the statute provided that "no action can be maintained against a doctor for malpractice after the expiration of seven years from the date of the operation. " 218, Laws of Utah 1967, and so far as material herein reads: nt No action to recover damages for any injury to property, real or personal, 'or for any injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than seven years after the completion of construction. The plaintiffs also attack the constitutionality of the statute, but the claim is without merit. The judgment of the The limitation imposed by this provision shall not apply to any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action. trial court is sustained, Costs are awarded to the respondents. WE CONCUR: E. R. Callister, Jr. This provision shall not be construed as extending or limiting the, periods otherwise prescribed by the laws of this state for the bringing of any action. , Chief Justice F. Henri Henriod, Justice i The plaintiffs argue that the owner at the time of construction is not affect R. L. Tuckett, Justice seven-yelimitation and may sue within the applicable statute of limitation after injury is occasioned and that this right runs with the land. They rely CROCKETT, Justice: (Concurring, with reservation) upon the case of Deschamps v. Camp Dresser 8c McKee, Inc. , which holds that ' the exception in a statute similar to ours excludes the owner or tenant in possesI concur, except as to the comment on the case of sion at the time of construction from the restriction on time to sue. Deschamps v. Camp ed by the 1. ar We do not think the Deschamps 306 A. 2d 771 (N.H. 1973). case was properly decided. State of Utah, Plaintiff and Appellant, v. 3. No. 13451 FILED October 8, 1974 Joseph Morgan, Defendant and Respondent. HENRIOD, Allan E. Mecham, Clerk Justice: Appeal from an order of the trial court, resentencing defendant to a lesser penalty in a possession of narcotics case. Reversed. Morgan was convicted and sentenced by trial Judge S for aiding and abetting in the possession by his wife, the principal, of a controlled subHe appealed to this court. While the appeal still stance for distribution. was pending, his wife was faced with the same offense, was tried and convicted by a jury of mere possession of such a substance, - a lesser offense. Still during the pendency of the appeal, the defendant filed a habeas corpus proceeding in the lower court which the record reflects may not have been treated as such by trial Judge H, - who believed that Morgan, as aider and abetter, should receive no greater penalty than his wife. Judge H transferred the matter for resentencing to Judge S. The latter, considering himself right in the first place, declined to resentence Morgan to a lesser sentence. Counsel for both sides, bag and baggage, briefcases, papers and all, traipsed down the hall to H's courtroom, did a bit of arguing, after which Judge H reversed his neighbor and colleague, Judge S, and resentenced Morgan to a lesser jail term, he already having served such period, and for which he was given credit, and released him outright. The record does not reflect any rumpled feelings or praise by S, but the former well may have been without empathy in the judicial breast. None Tracy Brown, Plaintiff and Appellant, No. 13348 FILED v. October 7, 1974 Dannie Marrelli, Defendant and Respondent. Allan E. Mecham, Clerk TUCKETT, Justice: On Dresser 8t McKee, Inc. (footnote 1, main opinion). 2. 120 N.J. Super. 493, 295 A.Zd 19 (1972). April 13, 1973, the plaintiff commenced these proceedings in the 78, Chapter 45(a), U. C. A. district court pursuant to the provisions of Title " b" 20 Utah 2d 199, 436 P. 2d 435 (1968). theless, the action of Judge H was in error here for three principal reasons: I. Judge H was without jurisdiction to entertain Morgan's petition, whatever it was, - then sentence him to some other penalty, while the sentence, the subject of Morgan's appeal, still was pending in this court, 2 -3 and which, in truth this court affirmed after such abortive resentencing. -- II. Generally, one District Judge cannot overrule another acting District Judge having identical authority and stature.4 We subscribe to such a salutary principle. If a person feels aggrieved by one judge's doings he may attack such conclusion in a proper, but different proceeding than that indulged here, - usually by the extraordinary writ route. III. The writ of habeas corpus cannot be used for the purpose of procuring what in substance and effect is a second appeal, whether it is prosecuted pending the appeal or thereafter. 6 The reason for such rule seems sufficiently obvious as to require no further treatment here. 1. Title 58-3- 7 -- 8(l)(a)(ii), Utah Code Annotated 1953. 2. State v. Morgan, Case No. 13218 (Sept. 1973) this court 3. Id. 4. Peterson v. Ohio Copper. 71 Utah 444. 452, 266 P. 1050 (1928); Nat Am Life v. Baxter, 73 N. M. 94, 385 P. 2d 956 (1963); Coeur D'Alene v.' Cogswell ' 93 Ida. 324, 461 P. 2d 107 (1969); Malott v. Randall, 7 Wash. App 753 502 P. 2d 1249 (1972). 5. Atwood v. Cox, 88 Utah 437, 55 P. 2d 377 (1936). 6. Johnson v. Turner, 24 Utah 2d 439, 473 P. 2d 901 (1970); Sullivan v lurner, 22 Utah 2d 85, 448 P. 2d 907 (1968). The State attempted to interject in this appeal the substantive question of whether an aider and abetter can have imposed upon him a greater penalty than the principal. That matter is not germane to this particular proceeding being moot, since we take the position the lower court's action had no validity having been accomplished during pendency of appeal. Hence we pass that matter without further comment. 1953, as amended, which is known as the "Uniform Act On Paternitv " The plaintiff claims that the defendant is the father of her child born out of wed lock and seeks an order of the court compelling the defendant to and medical expenses necessitated by the birth of the child and pay the Jm a monthly for the support of the child. Prior to these proceedings the plaintiff here was the complainant in bastardy proceedings filed by the prosecuting attorney pursuant to the nro vision, of Chapter 60, Title 77, U. C. A. 1953. In those proceedings the d'e fendant here was held to answer the charge and a trial was had in the court, which concluded on December 11, 1972. and the defendant was di.trirt found not guilty of being the father of the plaintiff, child. The defendant moved the court to charms these proceedings on the grounds that the verdict in th 7 case was res judicata a. to the parties and privies and binding upon the pUin |