Case Summaries
| Jurisdiction | Utah,United States |
| Citation | Vol. 4 No. 4 Pg. 19 |
| Pages | 19 |
| Publication year | 1991 |
Clark R. Nielsen, J.
FINAL JUDGMENT, RULE 54(b); SERVICE OF PROCESS
In an action by plaintiff spouse to enforce portions of her divorce decree against defendant husband and his parents, a judgment against husband only is not final, absent a Rule 54(b) certification, until claims against the parents are also finally adjudicated. Considering husband's contention that service of summons was defective, the Utah Supreme Court also held that because a sheriffs return of service of process is presumptively correct and prima facie evidence of the facts stated therein, a defendant bears the burden of proof that service was improper. Because the defendant here failed to present evidence to support his claim that his place of abode differed from that of his parents, service of summons at his parents' home was valid.
Reed v. Reed, 154 Utah Adv. Rep. 6 (February 14, 1991) (C.J. Hall).
APPEAL BEFORE JUDGMENT
Similarly, under Federal Rules of Appellate Procedure, a notice of appeal filed after a "non-final decision" is an effective notice of appeal from the subsequent final judgment. According to Justice Marshall, a notice of appeal filed after announcement that the district court intended to grant summary judgment but before the entry of judgment was a timely, effective appeal from the final summary judgment. (Note that Fed. Rule 4 (a)(2) operates similarly to Utah R. App. P. 4(a)(2).)
Firstier Mortgage Co. v. Investors Mortgage Insurance Co., U.S. Supreme Ct., 59 U.S.L.W. 4070 (January 15, 1991) (J. Marshall).
HOLOGRAPHIC WILL
A [though Utah's Uniform Probate Code minimizes the formalities of testamentary disposition, those requirements which the law does impose may not be minimized or ignored. The Utah Supreme Court affirmed the Court of Appeals conclusion that the proponent of an alleged holographic will failed to prove the decedent wrote his name with the intent to affix his signature to the instrument. Although three note cards in the decedent's hand-writing contained his name and material provisions of a holographic will, the cards did not contain decedent's "signature . . . with the intent to authenticate" the writing as a will under Utah Code Ann. §68-3-12 (2) (r) (Supp. 1990). The instrument lacked sufficient indicia of completeness to justify an inference that decedent's name was intended to be his "signature." When evidence is not in dispute, resulting issues are...
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