West v. Shurtliff et al. he be dismissed at plaintiff's cost. The defendant Shurtliff answered, denying the assignment of the six notes and mortgage to West. No denial appears to have been made by Shurtliff as to the ownership of either of the two notes. Upon this state of the pleadings and of the proof offered the court found that the two notes, aggregating $2,738.75, belonged to the defendant Larsen, and judgment was given in his favor and against respondent Shurtliff, for the foreclosure of said mortgage and the docketing of any deficiency judgment returned by the sheriff after sale in favor of said Larsen against respondent. The main question for the court to determine upon this appeal is whether the nisi prius court in the original case had jurisdiction under the pleadings to render judgment in favor of defendant Larsen against his codefendant, Shurtliff, the said defendant Larsen not having filed nor served any cross-complaint, nor filed any pleading in the case asking for affirmative relief, but, on the contrary, only having filed an an answer duly verified, disclaiming any interest in the notes or mortgage in question, and demanding to be dismissed with his costs. Section 2974 of our Revised Statutes of 1898 provides that: "When a defendant has a cause of action affecting the subject matter of the action against a co-defendant, he may, in the same action, file a cross-complaint against the codefendant. The defendant thereto may be served as in other cases, and defense thereto shall be made in the manner prescribed in the original complaint." Under the above provisions, in order to have obtained a judgment in his favor against respondent, defendant, Larsen should have filed a crosscomplaint or demanded affirmative relief, making proper service. A number of authorities have been cited by the learned counsel for the appellant relative to the power of courts to establish and determine the respective interests of each party to the suit; but the authorities almost uniformly hold that a decree between codefendants can only be based upon the pleadings and West v. Shurtliff et al. proof. Black on Judgments, section 184, we think, states the correct rule as follows. "It is not anough that the parties are properly in court. That does not give the tribunal power to adjudicate any and all matters of difference between them. When we speak of jurisdiction of the subject-matter, we do not mean merely cognizance of the general class of actions to which the action in question belongs, but we also mean legal power to pass upon and decide the particular contention which the judgment assumes to settle, and how can a court acquire jurisdiction of the particular contention except it be clearly marked out and precisely defined by the pleadings of the parties? And how can that be done in any mode known to the law save by the formation of a regular issue? There is therefore plausible grounds for holding that, if the record fails to show an issue to be determined, the judgment will be void on its face." Persons by becoming suitors do not place themselves for all purposes under the control of the court. It is only over those particular interests which they choose to bring in issue by proper pleadings that the power of jurisdiction arises. Appellant contends that the findings and decree of foreclosure in the original case made and entered by the trial court in favor of said Larsen are amply supported by the failure of said Shurtliff to deny the ownership of said notes. We think this contention is untenable. The mere fact that said Larsen was a codefendant in the action would not of itself give the court jurisdiction to enter judgment in his favor against the codefendant when he had not sought relief and expressly demanded to be dismissed. It is true that respondent, Shurtliff, did not deny the allegations of the foreclosure complaint as to the defendant Larsen's interest in said notes. We see no reason why he should do so when the fact was expressly denied by the defendant Larsen, he being the party in interest. What had Shurtliff to defend against as to the defendant Larsen? The complaint demanded that the court determine the owner West v. Shurtliff et al. ship as to the two notes in question, and the amount thereof, as between the defendant Larsen and the Utah Loan & Trust Company. No demand was made for judgment on said notes against respondent in favor of any one. Plaintiff was required in the foreclosure proceeding to make all persons parties to the suit who claimed any interest in the mortgaged premises, so that the court might equitably distribute the funds arising on the sale of the mortgaged premises. The court found that the two notes in question belonged to the defendant Larsen. He (Larsen) should have filed a cross-complaint, and demanded affirmative relief as against respondent, Shurtliff. Shurtliff could then have either submitted to a judgment against him in favor of Larsen, or interposed any defense he may have had against Larsen's demand. For aught that appears from the record, respondent, Shurtliff, may have had a good defense to a cross-complaint by Larsen. Shurtliff had no reason to anticipate that a judgment would be rendered against him in favor of Larsen. No issue was joined between them, and Larsen had expressly disclaimed any interest in the subject-matter in controversy. Though Shurtliff may have had no defense to such a claim, he was at least entitled to know from Larsen's pleadings what Larsen would demand, that he might have an opportunity to meet it. Other errors are assigned by appellant, but they are of minor importance, and we deem a discussion of them unnecessary. We are of the opinion that the trial court in the original foreclosure case was without jurisdiction, under the pleadings, to render the judgment in favor of said Larsen and against respondent, Shurtliff. The judgment and order of the court below setting aside said deficiency judgment and directing the clerk to cancel the entry thereof are affirmed, with costs to be taxed against appellant. BASKIN, C. J., and BARTCH, J., concur. Wilkinson v. Anderson-Taylor Co. E. J. WILKINSON, Trustee, Respondent, v. ANDERSON-TAYLOR COMPANY, a Copartnership Composed of JOSEPH ANDERSON, STANLEY TAYLOR and S. F. TAYLOR, Appellant. No. 1567. (79 Pac. 46.) 1. Bankruptcy: Preference: Suit to Recover: Instruct ions. In an action by a trustee in bankruptcy to recover a preference, a charge that plaintiff must establish that the bankrupt was insolvent at the time of the transactions complained of; that the result of the preference was to give defendants a greater percentage of their claim than any other creditor of the same class; that defendants had reasonable cause to believe that such was intended, and that such transactions occurred within four months of the filing of the petition in bankruptcy; and that all such facts must be established by preponderance of the evidence (which phrase was explained); together with a further instruction defining “insolvency" in the language of Bankruptcy Act July 1, 1898, c. 541, section 1, subd. 15, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3419), as insufficiency of the debtor's property to pay his debts-fairly covered the entire case, and properly subImitted it to the jury. 2. Same. When the instructions given are fair and cover the entire case, and properly submit it to the jury, it is not error to refuse to instruct further.1 (Decided December 31, 1904.) Appeal from the Third District Court, Salt Lake County.-Hon. C. W. Morse, Judge. Action by plaintiff as trustee in bankruptcy to recover certain sums paid out by the bankrupt. From a judgment in favor of the plaintiff, the defendant appealed. 1 State v. Morgan, 27 Utah 103, 74 Pac. 526; State v. Haworth, 24 Utah 398, 68 Pac. 155. Wilkinson v. Anderson-Taylor Co. AFFIRMED. H. A. Smith, Esq., for appellant. It is the right of the party to have the jury instructed on the law applicable to the case clearly and pointedly so as to leave no reasonable grounds for misapprehension or mistake. And it is the duty of the judge when requested, to give, in his charge, any requested instruction which he knows is a proposition of the law and which is applicable to the issues. 11 Ency. Pl. and Pr., 213; U. S. v. Cannon, 4 Utah 149; Muldouney v. Railroad, 32 Iowa 176; 32 Con. 75. The province of instructions from the court is to inform the jury what the law is, connected with the case in hand and show them how to apply it to the particular facts involved. State v. Levigne, 17 Nev. 441. In preparing instructions each party may assume any reasonable hypothesis in relation to the facts and ask the court to declare the law as applicable to it. People v. Taylor, 36 Cal. 267; Davis v. Russell, 52 Cal. 611. Technical terms should be defined and when an instruction fails to do so it is error of the court to refuse a request to define such words. 11 Ency. of Pl. and Pr., 203-4; Lagow v. Glover, 77 Tex. 452; Stratton v. Railway, 95 Ill. 32. A creditor dealing with a debtor whom he may suspect to be in failing circumstances, etc., may receive payments, or take security without necessarily violating the bankrupt law. Stucky v. Bank, 108 U. S. 74. W. R. Hutchinson, Esq., for respondent. Respondent contends that all of the material allegations of his complaint are fully sustained by the evidence. That his right to recover from the defendants is based upon the law as fully set forth in the United States Bankruptcy Act of 1898. See 60A and 60B of said act. Brandenburg on Bank., pars. 946-7-8. |