West Valley City v. American Bail Bonds

West Valley City,
Plaintiff and Appellant,

v.

American Bail Bonds and Gary Lambson,
Defendants and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981708-CA

F I L E D
(February 19, 1999)
  1999 UT App 047

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Third District, West Valley Department
The Honorable Matthew B. Durrant

Attorneys:
Elliot R. Lawrence, West Valley City, for Appellant
Colin R. Winchester, Kanab, for Appellee

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Before Judges Greenwood, Bench, and Billings.

PER CURIAM:

This matter is before the court on the summary disposition motion of appellee, American Bail Bonds, whereby it asks us to dismiss the appeal for lack of a final appealable order.

We may only consider appeals from final orders and the supreme court has determined that an order setting aside a default judgment is not final. See Utah R. App. P. 3(a); Pearson v. Pearson, 641 P.2d 103 (Utah 1982). In Pearson, Ms. Pearson sought to appeal the trial court's order setting aside certain provisions of the default divorce decree. Id. at 104. The supreme court concluded that "[u]ntil these issues are adjudicated there exists no final judgment warranting an appeal." Id. (citations omitted). In reaching this conclusion, the supreme court quoted from 4 Am. Jur.2d, Appeal and Error § 126, § 127: [T]he weight of authority appears to be that, ordinarily, appeal or writ of error will not lie to an order merely vacating a former judgment, such an order not being final. * * * * *

The courts are agreed that an order setting aside or refusing to set aside a default where judgment has not been entered is not a final order and therefore is not appealable unless it falls within the scope of a statutory provision allowing direct appeal from certain types of interlocutory decision.

Id. The same rationale applies here. The underlying judgment has been set aside and there will be further proceedings to determine whether appellee or appellant is entitled to the bail amount. Thus, there is no final appealable order.

Accordingly, the appeal is dismissed for lack of jurisdiction.
 
 

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Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

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Judith M. Billings, Judge