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Show . INTERMOUNTAIN COMMERCIAL RECORD PAGE EIGHT 1974 MONDAY, DECEMBER 16, In The Supreme Court of The State of Utah Furthermore, the firat-degr- murder charge wai dismissed against ee defendant and was not tried. If the defendant's appeal were granted on the grounds he urges, he would subject himself not only to a jury trial, but to a first-degrmurder trial, - an offense greater than that for which he was tried, a gamble with much higher stakes involved. (Emphasis added. ) J. Allan Crockett. Justice ee WE CONCUR: R. L. Tuckett, Justice E. R. Callister, Jr. , 25 Michigan Law Review 695, which recounts some factors which might impel an accused to abandon an "inviolate" which he could but does not choose to assert, - a few of which might be: a revolting charge, unfavorable community Chief Justice reaction it might engender, revelation of past record, race prejudice, better knowledgeability of a judge in certain cases, greater confidence in the judiciary; and dozens of other kindred reasons personal to the accused. 5. A. H. Ellett, Justice Fireman's Insurance Co., Plaintiff, v. No. 13670 Ann Larsen Brown, Zions First National Bank, N.A. FILED , a corporation, and Russell G. Fullmer, December 9, 1974 Defendants, v. Russell G. Fullmer, Cross -- Complainant and Respondent; Allan E. Mecham, Clerk Ann Larsen Brown, nt and Appellant. HARDING, the seller to con$2,439.26 was the correct amount owing and ordered vey title upon payment of that sum. the The seller claims that the parties modified the contract by March and April of interchange of correspondence between counsel in from a payment 1973, to permit the reapplication of the $8,000 payment The on the then contract balance to a prepayment of future payments. the seller that and seller insists that the parties made this reapplication, and as, was entitled to the interest free use of the $8,000 payment until, month. to month from it was applied to meet the monthly installments At the same time the buyer would be charged full interest on the contract balance without any credit for the $8, 000 payment, except as the monthly period the seller would installments were credited. Over the be given the equivalent of the free use of approximately $4, 000 for six thereon at the years and eight months, while charging the buyer interest would have, contract rate. The very first'month after the reapplication cost the buyer $49. 37 ($7, 900 x 7 12 per cent 12), the early months bearing the highest cost. 80-mo- v. Cross-Defenda- 98 Ohio St. 137. 120 N. E. 234 (1918). District Judge This appeal involves only the appellant and the respondent. Appellant, as the seller, and respondent, as the buyer, entered into a Uniform Real Estate Contract on April 1, 1971, for the sale and purchase of a home in Salt Lake City, Utah. The purchase price was $11, 000. The unpaid balance was payable at the rate of $100 per month with interest at the rate of 7 12 per cent per annum on the reducing balance. The contract permitted the buyer to pay amounts in excess of the stipulated monthly payments, but required him to elect at the time of making the excess payment whether it should apply to the unpaid prin- cipal or to prepayment of future installments. On September 21, 1971, the home was partially destroyed by fire. It was covered by fire insurance. The parties failed to agree on the distribution of the proceeds of the insurance policy. The court properly resolved the matter by applying $8,000 of the proceeds as a credit on the unpaid principal of the contract, and determined that, with such applica- tion, the unpaid balance was $3,040.26 plus interest at annum from March , 1972. 7 12 per 1 cent per This appears to us to be unconscionable. We see no reason why, where excess payments are allowed that they cannot be applied to reduce the contract balance and also be prepayments of monthly installments, if the buyer so elects. The seller would sustain no detriment. There is no question but that the buyer was in default in not making the monthly installment payments. Each month's failure to pay was a default. The seller had a remedy if it had been sought. Since the buyer had been in default for 20 months, and the seller refused to convey on proper tender, there was good reason to make no award of attorney fees to either side. The trial court heard the matter and found the facts. We see no reason to disturb the findings. The court correctly applied the law to the facts. The trial court's findings and order are affirmed. WE CONCUR: The buyer failed to make the monthly payments from April 1, Thereupon, the seller attempted to serve a notice to quit on the buyer. Under the circumstances a notice in accordance with Section should have preceded any notice to quit, and to have been uncomplied with for five days after the service before a notice to quit would have been in order. The notice was not properly served, but the attorney who had formerly represented the buyer, without authorization from the buyer, responded by insisting that the contract was not delinquent, and that certain legal liability would be incurred by the seller if the prospective course of action were pursued. On advice of counsel, the seller took no further action. The buyer failed to make the monthly installment payments for eight more month's. On December 1, 1973, the buyer paid $1,000, and then on December 31, 1973, tendered the sum of $2,439. 26 as full payment of the remaining balance and asked for a conveyance of title to the property. E. R. Callister, Jr. , Chief Justice 1972, to March 1, 1973. 78-36-3- . (5) The parties failed to agree as to the amount owing, and another action was taken to the court for resolution. The court determined that F. Henri Henriod, Justice A. H. Ellett, Justice R. L. Tucfcett, Justice Crockett, Justice, having disqualified himself, does not participate herein. Utah C. V. Federal Credit tree, after Union, Plaintiff and Appellant, v. No. 13611 Kay D. Jenkins, Defendant, and William E. Meeks and Jorjanna I. Meeks, his wife, Interveners, Third Party Plaintiffs and Respondents, justice. December 6, 1974 After the default judgment was entered in November 1967, the plaintiff, on December 31, 1969, satisfied the judgment in writing, in the clerk's office, which duly was recorded by the latter that same day. Over five months later, on May 14, 1970, a motion to set aside the satisfaction of judgment, signed by plaintiff's attorney, was filed, accompanied by his affidavit in which the only real basis for the motion was the fact that he, the attorney, had not signed or authorized it. Also on the same day he filed a written claim of lien. Two weeks later, the court vacated such satisfaction of judgment, and although there was a certificate of mailing notice of the motion to the defendant, addressed co purchaser claimants of the property, the vacating order obviously was given without any evidence of a hearing, except the examination of papers filed. Allan E. Mecham, Clerk Utah C. V. Federal Credit Union and Golden W. Robbins, Third -- Party Defendants and Appellants. HENRIOD, supplemental proceedings, innumerable motions, objections, bonds, interventions and other procedurabilia, - a sort of travesty on latter-da- y pleas, for reduction in energy consumption, and or protraction and hence FILED -- v. 365 pages of complaints, counterclaims, an assortment of Justice; Appeal from a judgment quieting title to realty. Affirmed with costs to respondents. Since plaintiff's appeal is based on the quotation above, it is aproout the section of the statute: to set pos , Compensation - Lien. - The compensation of an attorney and counsel for his services is governed by agreement, express or implied, which is nol restrained by law. From the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of 78-51-- This case springs from a 1967 default judgment for $884 plus $270 attorney's fees. The former amount is not involved here, butonly the $270 attorney's fees. The only problem of any moment is Dresented bv aDDellant's a i point on appeal epitomized by the urgence in appellant's brief that 1 attorney is the only one who can give a valid release of the lien." m first "jne Six long years later, in a 1974, this case bore fruit from a jumbo 41: Ti Based on Title Utah Code Annotated 1953; Rule 58B(a), Utah In this case, a lien asserted after a satisfaction Rules of Civil Procedure. of judgment was entered in the judgment docket. 78-51- -4, I |