205 P. 582 | Utah | 1922
Lead Opinion
The plaintiff below, one of the appellants here, as executor of the last will of Ann H. Burt, seeks a decree quieting title to certain real property described in the complaint. The defendant claims title through deeds alleged to have been executed by the deceased some years prior to her death. The real property in question is located in Box Elder county, this state. T.he deceased resided in that county at the date of her death, and had for many years prior thereto. The defendant below, respondent here, is a son of the deceased. The other parties except the executor appearing as plaintiffs and appellants are also children of the deceased. The judge of the district court for Box Elder county being disqualified, Judge Agee, from the Second district, was called to try the cause. A trial was had in the year 1918, and a decree entered
It appears that when the matter was first called for trial in April, 1918, the court was of the opinion that it was necessary for a complete determination of the matters in controversy that William H. Jones, Esdras H. Jones, B. Howell Jones, Alice H. Rosenbaum, and John-H. Burt, should be made parties to the action. An order was accordingly made directing that summons be served upon said parties, if they failed to voluntarily appear, and that they be required to set up, either as plaintiffs or defendants, any title or interest they, or either of them, claimed to the property in question. Subsequently Esdras H. Jones, B. Howell Jones, and Alice II. Rosenbaum, for themselves and as assignees or transferees of William H. Jones and John H. Burt, appeared and filed a pleading and joined in the prayer of the complaint— in other words, became plaintiffs in the action. It should be said in passing that B. Howell Jones and Ricy H. Jones are attorneys at law, and members of the bar of this state. B. Howell Jones and William J. Lowe signed the paper or pleading designated “family appearance” by Esdras H. Jones and others, in conformity with the order requiring these individuals to be made parties to the proceeding.
Before proceeding to a discussion of the errors it is necessary to determine a motion to strike the bill of exceptions.
It appears that, after entering judgment quieting title in respondent a motion for new trial was made. That motion was denied July 14, 1920. The trial judge granted appellants 30 days’ additional time to prepare and serve a bill of exceptions. It also appears that on or about September 11, 1920, appellants did prepare and serve upon counsel for respondent a proposed bill of exceptions consisting as stated in the brief, “of about 44 pages of closely written typewritten matter. ’ ’ So far as the record now before this court shows, that proposed bill of exceptions was never returned
“In fact, B. H. Jones repeatedly called and applied for the return of the original hill of exceptions, and I requested Ricy H. Jones to return it to me so that I could deliver it, hut it was never returned to me by the defendant heréin or hy any other person.”
At a later date such proceedings were had that the present bill of exceptions was settled by the present judge in that district.
It will be seen from the foregoing that the proposed draft' of the bill was prepared and served within the time allowed
When thé case was caEed for trial at the second hearing counsel for appellants requested a jury to try the issues of fact. The request was denied. Thereupon 'the following colloquy was had between counsel and court respecting the appearance of B. H. Jones as counsel for the heirs:
“The Court: You may proceed.
“Mr. B. H. Joues: We have here, if your honor please, an application for a continuance.
“The Court: On file?
“Mr. Allen: No; we haven’t been served with any application or with any affidavits.
“Mr. B. H. Jones: The affidavit is as you hold it in your hand.
“Mr. Allen: This affidavit shows no motion for any continuance.
“The Court: May I get the name of the counsel? Mr. Jones, in this case I would prefer that you proceed through your counsel inasmuch as you are a party to the action, and likewise the other gentleman; I prefer that he should also proceed through his counsel. I think that is the proper way to proceed, and I understand that that has been the order of this court heretofore, and that will he the order of this court.
“Mr. B. H. Jones: To the ruling of the court we respectfully reserve an exception, and X will say to your honor I represent plaintiffs in this case that my associate counsel do not represent.
“The Court: You appear personally for some of these plaintiffs?
*563 “Mr. B. H. Jones: Yes; Alice H. Rosenbaum. •
“Tbe Court: You are not appearing, Mr. Lowe?'
“Mr. Lowe: Not for Mrs. Rosenbaum.
“Mr. Allen: I think the pleadings are signed with all the names.
“Mr. Lowe: I was attorney for Mr. Blackburn, and any appearance I have heretofore made or at the present time is not in any way for the heirs.
“Mr. Allen: There is no separation of counsel in the pleadings.
“The Court: If it should appear during the trial of this case that the interests of this party are not involved in the general issues here, and that special representation other than Mr. Lowe is needed in this case, the court, perhaps, will make a different order, but until that time appears the order of this court will stand as heretofore made.
“Mr. B. H. Jones: I should like to make this showing to your honor before I am disbarred in this case. I represent all of the children, and have represented them (all of the children) throughout the entire proceedings, and Brother Lowe and Brother Foxley at one time represented the executor. Alice and William were impecunious and it was necessary that I represent them because they were unable to obtain counsel. I am a member of the bar of the Supreme Court of this state and of the United States, and there has never been any order entered in this court disbarring me, and I ask the privilege of representing them (the children) in this case.
“The Court: Mr. Jones, would you mind allowing the counsel on the other side to proceed this morning, and the court will look up the record in this matter.”
So far as tbe record shows, no further order was made respecting counsel for the heirs. The heirs had appeared in the action in response to an order of the court. The case proceeded to judgment against the executor and these heirs without any counsel being present in court representing them with the exception of B. H. Jones. The ruling of the court is assigned as error.
The record in this case presents a most unusual, if not to say extraordinary, state of facts. The deceased made a will in 1910. It is stated therein that at that time she was 70 years of age. She died in the latter part of 1916. . The will, after making certain bequests to different children, directs that all the other property shall go to her children, share and share alike. After the death of Mrs. Burt her will was admitted to probate and Thomas H. Blackburn was con
It is a mere truism to say that under such a state of facts a court of equity will scrutinize with jealous care any claim made by respondent, and the burden will be upon him to satisfactorily explain that the conveyance was made either as a gift or for a valuable consideration. The decree quieting the title to the premises in the respondent to all intents and purposes would give the respondent the entire estate left by his mother. It can readily be seen, therefore,
¥e are therefore of the opinion that the order of the court refusing to permit B. Howell Jones to represent these heirs as an attorney was prejudicial error unless at the same time an opportunity was given these claimants to employ
This record is burdened with many motions, affidavits, counter affidavits and objections. Upon a retrial the court can ignore these motions, take the issues as made by the pleadings, and proceed to hear the testimony and determine the matter in an orderly and regular way.
The judgment of the district court is reversed, and a new trial granted. Neither party will be allowed costs on this appeal.
Dissenting Opinion
I dissent. This is an action to quiet title to
It will be observed that the judgment is reversed upon the sole ground that the district court erred in not permitting B. Howell Jones, who claims that he represented himself and the other heirs at law of the deceased, to take an active part in the trial. As before stated, the action is one to quiet title to certain real estate in an estate, and is therefore purely equitable. The judgment is, however, reversed for a mere technical error, -and upon the theory that it is an action at law. In actions in equity it is the duty of this court to dispose of the case upon the merits, and upon the record presented, and if, upon .a full consideration of the whole record, this court is satisfied that the trial court erred in its findings or has erred in granting relief, this court is then required to make or to direct findings in accordance with the evidence, and to enter or direct a judgment or decree to be entered accordingly. This court is not permitted to merely reverse judgments in equity cases, and to remand the cases for new trials, but is required to finally dispose of such cases upon the record, unless for want of evidence which should have been admitted and certified up such cannot be done, and
This case should therefore be disposed of upon the merits. It it should be found, however, that the findings are not sustained by the evidence, or that the conclusions of law and judgment are contrary to law, this court should nevertheless make or direct proper findings to be made, and should either enter or require judgment to be entered accordingly.
I have carefully read all of the evidence as the same is preserved and certified in the bill of- exceptions. No good whatever could be subserved by attempting to set it out either in detail or in substance to demonstrate the correctness of the court’s findings of fact. If it were held, however, that the testimony does not support the findings, this judgment should, nevertheless, not be reversed for the reasons stated in the prevailing opinion. Under our statute (Comp. Laws Utah 1917, §§ 6495 and 7220) the heirs are not necessary parties to an action to quiet title unless they claim some interest in the subject-matter of the action adverse to the estate. In Farnsworth v. Hatch, 47 Utah, 62, 151 Pac. 537, we held that the heirs were represented by the administrator or executor, as the case may be, and that they were bound by any judgment entered in such action either in favor of or ag’ainst the executor. .In the case at bar, however, the heirs, including B. Howell Jones, were not only not necessary parties to this action, but after they were made parties they at once appeared and disclaimed all interest adverse to the estate. The record discloses that the heirs of Ann H. Burt, deceased, other than the defendant, appeared by B. Howell Jones as their attorney, and that—
“They and each of them disclaimed any right or title to the rents or profits or to its possession adverse to said Thomas H. Blackburn as executor aforesaid. * * * They and each of them disclaim and set up no right, claim or title whatsoever.”
It is further made to appear in said disclaimer that each of the heirs aforesaid claim only as heirs of the deceased, and that they claim nothing against said executor, and that their claims and the claims of each of them are merely as heirs
There is, however, another reason why this court should not reverse the findings and judgment of the district court
If, however, this court desires to interfere in this case, it should take the responsibility of doing so upon the whole record as it is presented and should dispose of the ease upon its merits. The testimony of several disinterested witnesses shows that the deceased, many years before her death, made two deeds in which she conveyed the premises in question. In one of the deeds the defendant, Ricy H. Jones, is the grantee, and in the other his brother Esdras was the grantee. Esdras afterwards conveyed to Ricy H. Jones, and the latter paid the purchase price to the mother. The deceased, after making the two deeds, took a life lease from each one of the brothers, which life lease, the testimony shows, was by her duly recorded and the recorded instruments returned to her several years before her death. The evidence from- disinterested witnesses also shows that the defendant, Ricy H. Jones, paid to the deceased the full consideration mentioned in the deeds for the premises, but did not record the deeds until after the death of his mother, the deceased. In view of this evidence, coming from disinterested witnesses who testified that they were present when the mother made the deeds and the life leases, and that she had the life leases in which she was the lessee recorded several yars before her
Nor can I see how the court committed reversible error in insisting upon the orderly conduct of the trial by compelling the two brothers, who were constantly in conflict, to be heard through their attorneys. If that ruling was prejudicial it should at least be made to appear to have been so. I am utterly unáble to understand how, under our statute, an heir can come into this court and have a judgment reversed merely because he was not permitted to personally take part in trying a case to which he was not a necessary party, and where he was represented by the attorneys of the executor through whom he claims, without at least showing that he suffered some prejudice. This is especially true where, as here, the attorney who is complaining was the principal witness in the case on behalf of the estate, and where he always knew he would be a witness. The usual rule is that, where an attorney knows he will be called as a witness on the principal issues in a case, he should cease from acting as such attorney in the case. 1 Thornton on Attorneys at Law, § 331. Indeed, it is one of the canons of ethics of the American Bar Association. Archer, Ethical Obligations of the Lawyer. § 123. Here, however, an equity case is reversed which, in my judgment, is clearly decided right upon the evidence upon the sole ground that an attorney who was one of the principal witnesses in the case on his own behalf and on behalf of his coclaimants was not permitted to take an active part as an attorney in trying the case, and this, too, without any showing of prejudice, I most respectfully submit that such a result is not in accord with either principle or reason.
Again, as appears from the colloquy between the court and Mr. Jones who now complains, the' court did not make a positive order denying Mm the right to be personally heard. What the court said indicates this. It said, “Mr. Jones would you mind allowing the counsel on the other side to proceed this morning and the court will look up this mat
Moreover, the district judge saw and heard all that transpired, heard and saw the witnesses, and was thus in a better position to judge of the weight that should be given to their statements than we are, and, unless it is made to appear from the record that his findings are clearly against the evidence, under the repeated rulings of this court they should prevail. Nor should the judgment be reversed upon a mere technicality.
As before stated, upon the record the findings are not only amply justified, but, in my judgment, are clearly in accordance with the weight of the evidence. The judgment should therefore be affirmed.