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Show MONDAY, DECEMBER 23, 1974 PAGE NINE INTERMOUNTAIN COMMERCIAL RECORD In The Supreme Court of The State of Utah State of Utah, in the interest violation of motor vehicle laws. 1 When the Juvenile Court adjudicates a violation of a traffic law, its function is analogous to a city court, which has The been held to have concurrent jurisdiction with the Juvenile Court. 17. C. A. 1953, are not of Sections 14, applicable in a provisions a The Juvenile Court proceeding involving traffic violation. judgment of the No. 13542 of Nathan David Morgan, a person under 18 yean of age, FILED December 17, 1974 77-45-- Nathan David Morgan, Appellant. Allan E. Mecham, Clerk 13, Juvenile Court is affirmed. - WE CONCUR: CALLISTER, Chief Justice: Juvenile Morgan was issued a traffic citation for exceeding the speed limit. His parent was notified of a hearing in the Juvenile Court for this traffic violation. Legal counsel representing the minor invoked the statuU. C. A. 1953, to secure the tory procedure provided in Section attendance of an out of state witness, namely, Eugene Begay of Arizona, who allegedly was present in the vehicle and observed the speedometer at the time of the alleged violation. Defense counsel further sought the State to pay the travel expenses of the witness to and from Arizona. The Juvenile Court issued the certificate for the attendance of the witness but denied the authorization of payment of the fees by the State. Juvenile Morgan appeals therefrom and urges that under Section U. C. A. 1953, the State must pay the witness his per' diem and mileage fees. 77-45-- 13, 77-45-- Section 77-45-- 14, 13 v. See Sections (3), (4), (5). U. C. A. 1953, as amended 1965. 2. Dimmitt v. City Court of Salt Lake City, 21 Utah 2d 257, 444 P. 2d 461 1. FILED December 17, 1974 Allan E. Mecham, Clerk By an amended complaint filed on October 4, 1971, Bradshaw commenced a suit for specific performance of an alleged option to purchase real property against Kershaw, and to quiet title to the realty as against Rockefeller Land fc Livestock Company. On March 8, 1972, Rockefeller Land b Livestock Company, hereinafter called Rockefeller, counterclaimed to quiet its title, and cross claimed against Walter Kershaw and Helen G. Kershaw, his wife, for damages for breach of warranty should it not be awarded title to the real pro- After Christensen had exercised the option, Kershaw on December .17, 1970, undertook to assign his rights in the land to Rockefeller. Christensen was in possession of the land, and there was testimony to justify the court's finding that the 'officers of Rockefeller knew of Christensen's option at and prior to the time of the assignment. On this appeal Kershaw claims that the option was not properly exercised. However, that claim is not well taken. Once the option was exercised, a contract for the sale and purchase of the land came into being, and either party could offer to perform, and the other would be obligated to perform or be in breach of contract, since the promises were to be performed contemporaneously. Although no claim of anticipatory bre ach is made by Rockefeller or Kershaw in this appeal, it is of interest to note that Cor bin on Contracts, Section 973, states the law as follows: '.-- .- . The lower court ruled in favor of Bradshaw and ordered Kershaw to execute a general warranty deed to Bradshaw. It denied the claims of Rockefeller. The dispute is principally concerned with realty which was originally She sold the land and some personalty on contract to Kesler, her and the matter was placed in escrow. Keller, for value received, assigned all of his rights in the Escrow Agreement to Kershaw. Kershaw then gave an option to Christensen to purchase the property. The option contemplated that Christensen could obtain a Farmers Home Administration loan, and it was made out by filling in blank spaces on a form supplied by that Federal agency. The court found that Christensen paid $100. as consideration for the option and that the option was valid and owned by Grace Staples. son-in-la- w, enforceable. The Farmers Home Administration refused to make the loan, and Kershaw and Rockefeller now claim that the option failed because Christensen was unable to secure the funds to pay for the land from the source which the parties had contemplated. t There is no merit to this contention since money obtained elsewhere is just as valuable as that which might have been borrowed from the Farmers Home Administration. Christensen timely exercised the option on December 1, 1970, by sending a written notice thereof to Kershaw according to the provisions of the option contract. He then assigned his rights under the contract to Bradshaw, the plaintiff herein. Bradshaw then tendered the proper amount of money in escrow with directions to deliver it to Kershaw as soon as a warranty deed signed by Kershaw and one Dorothy Kershaw was presented. See Holland v. Wilson, 8 Utah, 2d 11, 327 P. 2d 250 (1958). Virginia Naisbitt Nielsen, Plaintiff and Respondent, also, the making of a demand upon the other a party to contract that he shall perform in accordance with an interpretation that is not justified by the law is not in itself a repudiation; . . . So, Defendant and Appellant. .... There the An interesting case is Wheeler v. New Brunswick It Co. of he would wrote 1000 The tons old that seller for rails. contracted parties supply 1000 tons of 2000 pounds each. When the contract was made, each of the parties understood that the pay was per long ton of 2240 pounds. The Supreme Court held that there was no repudiation. . The record in this case does not show whether or not Bradshaw reserved the offer to pay if a deed was signed by Kershaw alone. It thus appears that the request of Bradshaw to have what he thought was the wife of Kershaw join in the deed is of no importance in this matter. The complaint only sought specific performance from Kershaw, and the judgment was that Kershaw alone specifically perform according to the con- tract. As to the claim of Rockefeller against Kershaw for damages because of breach of warranty, no evidence was offered on the matter, and since officers of Rockefeller knew of the option, the court properly found against it. Other matters assigned as error are so related to the matters above set forth that it is not necessary to discuss them herein. The judgment is affirmed, and Bradshaw is awarded his costs on appeal WE CONCUR: E. R. No. 13692 FILED Allan E. Mecham, Clerk CALLISTER. Chief Justice: Plaintiff filed an action, seeking a divorce on October 26, 1973; the on defendant at that time. When decomplaint and summons were served fendant failed to file a responsive pleading, plaintiff's counsel had the clerk enter defendant's default on November 16, 1973, as provided in Rule 55(a)(1), U. R. C. P. On March 14, 1974, defendant filed an answer and counterclaim. Plaintiff filed a motion to strike defendant's pleadings on the ground that defendant's default had been entered and had not been set aside. Plaintiff 1 F. Henri Henriod, Justice Callister, Jr. , Chief Justice R. L. Tuckett, Justice J. Allan Crockett, Justice 2. Bradshaw claims deed. 3. December 17, 1974 Harold L. Nielsen, 96; (1968). The lower court denied a trial by jury in the quiet title matters. There was no error in that matter, since the principal thrust of the case to be decided was equitable, to wit: Specific Performance. 1 1. 55-10-- (3); agreement. ELLETT, Justice: LfcJ1 R. L. Tuckett, Justice The record does not show the marital status of Kershaw when the option was given on August 8, 1970, or when it was exercised on December 1, 1970, and Dorothy Kershaw is a stranger to the record and not a party to the option No. 13502 Walter W. Kershaw and Helen G. Kershaw, his wife; Willard B. Rogers, Edward B. Rogers and Rockefeller Land k Livestock Company, a Utah corporation, Defendants and Appellants. Justice J. Allan Crockett, Justice U C. A. 1953, Ronald Bradshaw, Plaintiff and Respondent, perty. A. H. Ellett, 14, upon which Morgan relies, concerns, by its specific provisions, the tender and payment of fees "to obtain the attendance of a witness for the prosecution. " (Emphasis added. ) Furthermore, Sections and 14, U. C. A. 1953, are confined to criminal prosecutions in a court of record. Although the Juvenile Court is a court of record, the legislature has provided a separate procedural structure for cases involving 77-45-- F. Henri Henriod, Justice that she was Kershaw's wife at the time of demand for , 115 U.S. 29. 29 L.Ed. 341, 5S.Ct. 1061 further sought a stay of all proceedings u State Hospital. (1885). il she was released from the Utah The trial court granted plaintiff's motion to strike defendant's plead- 1 ings on the ground that the previously entered default had not been set aside. The trial court further ordered a stay of all proceedings. Defendant appeals therefrom and contends that the entry of default was void ab initio on the ground that the 20 day period in which a defendant must answer as provided in Rule 12(a), U. R. C. P. is not applicable in a divorce action. . The order of the trial court granting plaintiff's motion to strike defendant's pleadings was not a final order or judgment and was not appealable under Rule 72(a), U. R. CP. The defendant's appeal is dismissed. Rule 55(c), U. R. C. P. provides that an entry of default may be set aside by the court for good cause shown. 1. |