Appeal from Third District.

papers prepared by the attorneys and signed by the judge. Those papers, if properly certified to as copies, may constitute proper and sufficient evidence; but if uncertified to as copies they are not competent evidence of the original judgment, and unless certified to by the clerk of the district court, as copies, should not be received as evidence at all if objected to. It is a very simple matter to prove a judicial record of this state; and the district courts, if objection is made, in order to avoid error, should require the parties to comply with the provisions of the statute. A judgment speaks for itself, and, as a general rule, in order to prove a judgment, it is not necessary to produce the findings of fact and conclusions of law. While it will not vitiate the proof if they are produced and admitted in evidence in connection with the judgment, yet, unless it becomes necessary to prove what has been litigated and adjudged in an action, it is not necessary, as pointed out by Mr. Jones in the section above cited to produce the pleadings, findings of fact, and conclusions of law in order to prove a judgment. It is manifest that the district court did not follow the law in this case, and hence it erred in admitting the so-called original findings of fact, conclusions of law and decree in the former case as evidence in this

case.

8

It is also insisted that the facts stated in the sheriff's answer are insufficient to constitute a plea of justification. No assignment concerning that matter was filed, however, and, in view that the sheriff's answer in that regard is not entirely deficient in substance respecting his plea of justification, we are not permitted to review that matter. While plaintiffs have assigned a number of other errors, yet all the material assignments are covered by what has been already said.

9

Respondent's counsel, however, insist that the court's findings respecting Ola W. Larsen's right to a one-half interest in the property in question is not supported by the evidence. There is no cross-assignment of error covering that matter, and hence we cannot review it.

For the reasons stated, the judgment in favor of E, E. Hod

Swetin v. Magleby et al., 54 Utah 260.

son and P. F. Ryan, the sheriff, of no cause of action, is reversed. The judgment in favor of Ola W. Larsen against the corporation is also reversed, and the cause is remanded to the district court of Summit county with directions to grant said Ola W. Larsen a new trial. The judgment in favor of the defendants and against Annie M. Larsen is affirmed. Ola W. Larsen will recover costs on appeal against all the defendants.

CORFMAN, C. J., WEBER, GIDEON, and THURMAN, JJ., concur.

SWETIN v. MAGLEBY et al.

No. 3290. Decided April 2, 1919. (180 Pac. 177.) APPEAL AND

ERROR-DISMISSAL-TRANSCRIPT OF RECORD. Under Comp. Laws 1917, sections 6691, 6692, 7008, 7009, relating to procedure upon appeal, and Supreme Court rules 2 and 3 (33 Utah, vi, 97 Pac. vii), requiring a transcript of the record to be filed within thirty days after perfecting of appeal, an appeal will be dismissed where transcript was not filed until nearly six months after perfecting appeal.1

Appeal from the District Court of Sevier County, Sixth District; Hon. H. N. Hayes, Judge.

Action by Joseph Swetin against J. E. Magleby and Joseph F. Peterson.

Judgment for plaintiff. Defendants appeal.

DISMISSED.

Parley Magleby of Richfield, for appellants.

Dilworth Woolley of Manti, for respondent.

1 Butter v. Lamson, 29 Utah, 439, 82 Pac. 473; State v. Grisolio,

49 Utah, 195, 162 Pac, 613.

Appeal from Sixth District.

CORFMAN, C. J.

This is an action brought by the plaintiff against the defendants to recover a specified sum alleged to be due and owing on contract. A trial to the court resulted in a judgment in plaintiff's favor.

The plaintiff here objects to our consideration of the appeal on several grounds specifically set forth in his motion for a dismissal of the appeal, made after due notice. The principal objection made and assigned in plaintiff's motion for dismissal is that no transcript of the record has been filed in the Supreme Court in compliance with law and the rules of the court:

Comp. Laws 1917, section 6991 (3301) Civil Procedure, provides:

"An appeal may be taken within six months from the entry of the judgment or order appealed from."

Section 6992 (3302) provides:

"The judgment roll and bill of exceptions, if there be one, shall constitute the record on appeal to the Supreme Court."

Section 7008 (3316) reads:

"Upon an appeal being perfected, the clerk of the court from which the appeal is taken shall, at the expense of the appellant, forthwith transmit to the Supreme Court the papers constituting the record on appeal."

Section 7009 (3317) provides:

"If the appellant shall fail to cause such papers to be transmitted and filed in the Supreme Court within thirty days after the perfecting of an appeal, the appeal may be dismissed on motion of the respondent."

Rules 2 and 3 (33 Utah, vi, 97 Pac. vii) of the Supreme Court provide that

"In all cases where an appeal shall be perfected, a transcript of the record shall be filed in this court within thirty days after such appeal shall have been perfected, unless further time is given by this court, or a justice thereof on good cause shown by affidavit," and, "if the transcript be not filed within the time prescribed or allowed, the appeal may be dismissed on motion."

In this case the record shows: That judgment was rendered April 3, 1918; entered April 5, 1918; notice of appeal

Sharp et al. v. Sharp et al., 54 Utah 262.

served and filed April 22, 1918; appeal bond filed April 25, 1918, and that the transcript on appeal was not transmitted to nor filed in the Supreme Court until October 19, 1918, nearly six months after the perfecting of the appeal. Clearly, the transcript was not filed within the time required by the statute, nor in accordance with the rules of the Supreme Court. Nor was any extension of time applied for or given by this court or a justice thereof. Butter v. Lamson, 29 Utah, 439, 82 Pac. 473; State v. Grisolio, 49 Utah, 195, 162 Pac. 613. Other irregularities are assigned in plaintiff's motion for dismissal. However, they need not be considered here, in view of the fact that the appeal should be dismissed for the reason that the defendants have neither complied with the statute nor the rules of the court in filing their transcript as heretofore pointed out.

It is therefore ordered that the plaintiff's motion to dismiss the appeal be granted at defendant's costs.

FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.

1.

2.

3.

SHARP et al. v. SHARP et al.

No. 3281. Decided April 2, 1919. (180 Pac. 580.) PARTNERSHIP-DEATH OF PARTNER-ACCOUNTING. In action by executors of deceased partner for partition of partnership's land, where only claims against partnership are claims by executors of the surviving partners for payment by surviving partners of partnership indebtedness, the executors of surviving partners held entitled to accounting. (Page 269.) PARTNERSHIP-DEATH OF PARTNER--DUTY OF SURVIVING PARTNERS -SETTLEMENT OF ESTATE. Under Comp. Laws 1917, section 7724, ordinarily, when a partnership is dissolved by death of one of its members, the settlement of its business affairs belongs to the surviving partners, and it becomes their duty to make settlement without delay, and account to the legal representatives of the deceased partner. (Page 269.)

EXECUTORS AND ADMINISTRATORS-DEATH OF PARTNER-CONTINGENT CLAIMS OF SURVIVING PARTNERS-ACCOUNTING. In view of Comp. Laws 1917, section 7671, 7724, contingent claims by sur

4.

5.

6.

Appeal from Third District.

viving partners against estate of deceased partner cannot be settled without an accounting. (Page 271.)

EXECUTORS AND ADMINISTrators-DisTRIBUTION OF ESTATE-"CONTINGENT CLAIM"-PAYMENT INTO COURT. A "contingent claim," within Comp. Laws 1917, section 7671, providing that contingent claim against an estate must be paid into court and there remain to be paid over to the party when he becomes entitled thereto, or to be distributed, as the circumstances of the case require, does not include a claim of the surviving partner against the estate of a deceased partner. (Page 271.) PARTNERSHIP-Death OF PARTNER-SETTLEMENT OF PARTNERSHIP AFFAIRS. In the settlement of debts due surviving partners for payments of partnership indebtedness after dissolution of partnership by the death of a partner, the partnership may be treated as an entity distinct from its members. (Page 271.) PARTNERSHIP-RELATION TO PARTNERS-FIDUCIARY RELATIONSHIP. The relation of partners, as between themselves, is a fiduciary relationship of trustee and cestui que trust, and this fiduciary relationship exists between the surviving partner and the legal representatives of a deceased partner. (Page 271.)

If the

7. EXECUTORS AND ADMINISTRATORS-DUTIES-PARTNERSHIP. surviving partner dies before the partnership business is settled, the duty of closing up the partnership business and account under Comp. Laws (1917, section 7724, devolves on his legal representative. (Page 272.)

8.

EXECUTORS AND ADMINISTRATORS-PARTNERSHIP-CLAIMS OF SURVIVING PARTNER-LACHES. Where surviving partners paid partnership debts without filing claim against estate of deceased partner, and retained partnership property expecting to sell when they would receive a price adequate to pay partnership debts, such delay did not estop the executors of the surviving partners from interposing claim for partnership debts paid upon action for partition of partnership property, by executor of first deceased partner, where delay did not prejudice the estate of the deceased partner, notwithstanding Comp. Laws 1917, sections 7645, 7648, 7655, and 7671.1 (Page 275.)

Appeal from District Court, Third District, Salt Lake County; Harold M. Stephens, Judge.

Action by William G. Sharp and others, as executors of the will of John Sharp, Sr., deceased, against John N. Sharp and others, executors of the will of John Sharp, Jr., deceased, and

1 Hamilton v. Dooly, 15 Utah, 299, 49 Pac. 769.