Appeal from Sixth District.

pearance in every detail tallied with the one killed and taken by the defendant and H. E. Marshall. It is true that one witness, the manager of the Steele herd on cross-examination answered that for all he knew the missing steer might still be on the range; yet the facts remained that an animal of the precise description, brand, and markings, of the Steele steer, had been killed there by the defendants. If the minute description given of it by the state's witness as well as the defendant, as to its age, size, color, brand, and markings, together with the production of the mutilated hide as an exhibit, was not, under all the circumstances sufficient to take the case to the jury, then the efforts to apprehend and convict of fenders for stealing live stock from the public range had best. be abandoned.

3

The defendant next complains that the trial court erred in the admission of certain testimony. The state offered as an exhibit pieces of the ears of the steer arranged upon a board for the purpose of showing, according to the judgment of a state witness, how they were before being cut into pieces by the defendant for the purpose of obliterating the markings. The witness was then permitted to point out and testify, over the defendant's objection, as to his judgment where and what the markings were. There is nothing in the record to show that the parts of the ears, admitted to have belonged to the steer, might not have been arranged in accordance with the views of the defendant or any other witness who might have differed from the witness who testified as to the arrangement.

It is also contended by defendant that the court erred in admitting the testimony as to the admissions made by the defendant concerning the killing of the steer. It is urged by counsel that the admissions were involuntary for the reason that the sheriff gave the defendant to understand that he was in a position to make the defendant trouble by reason of his failing to comply with the statute before killing an animal upon the range. Counsel cites 1 R. C. L. pages 553 to 558; 1 Greenleaf, Ev. section 219; Amos v. State, 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 682; Ellis v. State, 65 Miss. 44, 3 South.

State v. Church, 54 Utah 533.

188, 7 Am. St. Rep. 634; Bradford v. State, 104 Ala. 68, 16 South. 107, 53 Am. St. Rep. 24; 6 Am. St. Rep. 244, note; 46 Am. Rep. 255, note.

We do not think the rule announced by the authorities cited applies to the case at bar.

4

The sheriff testified that he made no promises nor threats against the defendant whatever, nor did anything more than read, or call his attention to, the statute. As we view the record, the admissions made to the sheriff, and in the letter to the vice president of the Steele Company, by the defendant were wholly without coercion and purely voluntary. We find no prejudicial error in the admission of any of the testimony complained of by defendant.

The defendant next complains of the failure of the trial court to charge the jury according to the following requests: "The undisputed evidence in this case is that there was but one gun, and that Marshall had it and fired and klled the steer; and that Church was not present. Therefore, you are instructed that unless you find from the evidence, beyond a reasonable doubt, that the defendant and said Marshall conspired together to feloniously steal said steer prior to the time it was killed, it will be your duty to acquit the defendant."

"You are instructed that defendant would not be guilty of grand larceny, the offense charged, if he had nothing to do whether directly or indirectly with the steer, prior to its death, and at the immediate time of its killing, even though, after its death, he helped dress the same and appropriated some of the meat for his own use, for merely dressing the animal and appropriating the meat is not grand larceny on the part of the defendant unless he connived, aided, and abetted in its taking and killing."

5

We need not pause to discuss these requests. It is clear that neither of them as a whole correctly states the law applicable, to the facts in the case. In so far as the instructions refused were applicable to the facts, the trial court, in substance, had so charged the jury.

After careful review, we find no prejudicial error in the record. It is therefore ordered that the judgment be affirmed.

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

Appeal from Third District.

J. P. FOWLER MFG. CO. v. CITY COURT OF SALT LAKE CITY et al.

No. 3358. Decided June 19, 1919. (182 Pac. 205.)

COURTS-MUNICIPAL COURT-SETTING ASIDE DEFAULT. Comp. Laws 1917, section 6619, providing that district courts may relieve a party from a judgment taken against him through mistake, inadvertence, etc., within six months after adjournment of the term, being also applicable to city courts within section 1729, a city court cannot relieve a debtor from a default judgment against him for inadvertence or excusable neglect after six months from the date of such judgment, although sections 17001736, dealing with city courts, contain no provisions for any "terms" of court.1

Appeal from District Court, Third District, Salt Lake County; P. C. Evans, Judge.

Application for writ of certiorari by the J. P. Fowler Manufacturing Company against the City Court of Salt Lake City and Thomas R. Cutler, Jr. From a judgment dismissing the writ, applicant appeals.

REVERSED and REMANDED.

Chris Mathison of Salt Lake City, for appellant.

R. W. Young, Jr. of Salt Lake City, for respondents.

GIDEON, J.

This is an appeal from a judgment of the district court of Salt Lake county dismissing a writ of certiorari. The determining question is the jurisdiction of the city court to annul or set aside a default judgment on motion of the default

1 Elliott v. Bastian, 11 Utah, 452, 40 Pac. 713; Lees v. Truman, 19 Utah, 481, 57 Pac. 411; Luke v. Coleman, 38 Utah, 383, 113 Pac. 1023, Ann. Cas. 1913B, 483; McMillan v. Forsythe, 47 Utah, 571, 154 Pac. 959,

J. P. Fowler Mfg. Co. v. City Court, 54 Utah 541.

ing debtor by reason of inadvertence or excusable neglect after six months from the date of entry of such judgment.

It appears from the record that on April 14, 1916, a judg ment by default was entered in the city court in favor of J. P. Fowler Manufacturing Company, appellant herein, against Thomas R. Cutler, Jr., respondent herein. Six months and twenty-four days after the entry of the judgment, the respondent served upon counsel for appellant and filed with the clerk of the city court a motion to set aside the default judgment, which motion was based upon the alleged grounds of inadvertence and excusable neglect. The motion was granted. Thereupon the appellant applied to the district court for a writ of certiorari against the city court, which writ was issued and upon the hearing upon the return of that writ the district court held that the order of the city court vacating said judgment was within the jurisdiction of that court and entered judgment dismissing the writ. From that judgment the appellant brings the case to this court by appeal. It will therefore be seen that the sole question presented on the appeal is: Has the city court of Salt Lake City power to relieve a defaulting debtor from judgment taken. against him by reason of inadvertence or excusable neglect on motion made more than six months from the date of the entry of the judgment?

Comp. Laws Utah 1917, section 6619, relating to the discretionary powers of district courts in civil cases, provides, among other things:

"And may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; and when, for any reason satisfactory to the court, or the judge thereof, the party aggrieved has failed to apply for a new trial or other relief sought during the term at which such judgment, order, or proceeding complained of was taken, the court, or judge thereof in vacation, may grant the relief upon the application made within a reasonable time, not exceeding six months after the adjournment of the term."

Chapter 4, entitled "City Courts," which contains sections 1700 to 1736, inclusive, of the Compiled Laws of Utah 1917,

Appeal from Third District.

provides for the creation of city courts, defines the qualifications and terms of office of the judges of that court, the jurisdiction of such courts, and contains other provisions as to the machinery of the court. No provision is made therein for any "terms" of court. Section 1729 of that chapter, relating to rules of practice, reads as follows:

"The sections of the Code of Civil Procedure, and the amendments thereto, relating to the rules of practice and mode of procedure in the district court, and providing for provisional remedies, and prescribing the practice and procedure in special proceedings, and all the laws of this state, except as in this chapter otherwise provided, are applicable to the city court, the necessary changes and substitutions being made herein. In order that the powers, rules of practice and mode of proceedings of the city court shall conform as nearly as possible to that of the district court, as the same are, or may hereafter be, prescribed by law, all those sections of the Code of Criminal Procedure, and the amendments thereto, relating to the trial of criminal actions in justices' courts, and the procedure and practice of committing magistrates, are likewise made applicable to the city court, the necessary changes and substitutions being made therein."

There are no provisions in that chapter defining the time or power of the city court to relieve a litigant from a judgment entered against him by inadvertence or excusable neglect. The provisions of section 6619 are therefore applicable and controlling and limit the power of the city court to relieve a party from a judgment or from proceedings taken against him through inadvertence or excusable neglect. In our opinion the provisions of such section are controlling and conclusive against the contention of the respondent herein. The following Utah authorities are of interest as bearing upon. the question here determined: Elliott v. Bastian, 11 Utah, 452, 40 Pac. 713; Lees v. Truman, 19 Utah, 481, 57 Pac. 411; Luke v. Coleman, 38 Utah, 383, 113 Pac. 1023, Ann. Cas. 1913B, 483; McMillan v. Forsythe, 47 Utah, 571, 154 Pac. 959.

It follows that the judgment of the district court must be reversed. Such is the order. The cause is remanded to the district court of Salt Lake county, with directions to reinstate the same and to issue the writ as prayed for by the appellant herein. Costs to be taxed against respondent Cutler.