D. W. Standrod & Co. v. Utah Implement-Vehicle Co.

(after stating the facts as above). [1] A motion is made to dismiss the appeal on the ground that the appellant, Standrod & Co., waived its right of appeal by accepting and retaining $4,616.58, a portion of the proceeds of the sale, and upon the ground that, while a severance was granted by the lower court, the severance was not permissible, and that no citation on appeal was issued to Bowman, the trustee in bankruptcy of the estate of Mickelson.

We find no merit in the motion. The right of Standrod & Co., as trustee, to appeal on behalf of the lien claimants, is not affected by its having accepted the sum found due on the Rodgers mortgage. The beneficiaries of the trust as to that mortgage were fully satisfied by-the decree, and had no interest in appealing. It was proper, therefore, for the trustee, as it did, to take the appeal in his capacity as trustee of the mechanic’s lien claimants. Their right to- an appeal was unquestionable, and they were not in privity with the beneficiaries of the Rodgers mortgage. Bowman, the trustee in bankruptcy, had been notified in writing to joint in the appeal, and he refused to do so. Upon a petition for an order allowing the appeal, that…