*1 opinion’s suggestion of the court is affirmed. and the main that this judgment The respondent. ruling awarded to the writer misunderstands the in such Costs are illogical approval case seems and an of re- TUCKETT, con- JJ., CROCKETT granted surprise lief that would counsel cur. case, properly for a loser in such where he successfully had claim defended sole HENRIOD, (dissenting). Chief Justice asserted under one of a stat- section dissent,
Reluctantly not because of ute, only to met and by defeated an un- assigned byit but the reason result by authorized defense manufactured having made a opinion: the main That not adversary court favor of his which he under Rule within 60(b), motion to vacate accepted opportunity had no to meet under de- judgment, three after the months procedure. rules of foreclosed, made fendant is motion reason, action, asserting any
the same support vacating Justice, in the re- legal equitable, in of concurs or expressed sult of judgment.1 the views in the dissent- ing opinion of Mr. Chief HEN- Justice Right wrong, or this court decided to va RIOD. cate judgment Ney Harrison,2 v. overruled, to date has not been based on an supporting a motion affidavit to vacate filed in the (not same in case an
dependent one) eleven months after the entered, was affidavit,
according opinion case, in that major ground
“the for relief3 was that she (defendant) had mistakenly4 believed Guardianship In the Matter of . . (Emphasis .’’etc. added.) Incompetent. Cornia, Fuchsia Fern opinion The case, main in the Ney deter- CORNIA, Appellant, Fuchsia Fern mined it on a basis prayed for Mrs. Ney since (7) “any other reason justify- Respondents al., Cal CORNIA et ing relief operation from the of the stat- Cross-Appellants. Right ute.” wrong, case, or the Ney my No. 14139. opinion, authorizes this court to emasculate Supreme Court of Utah. the first four reasons of Rule 60(b), ener- March 1976. gize three, the last supply reasons, our own ignoring pleaded ones, and magically, may-
be, to impotent render the Rule itself. Ney case either should be made dis- here,
positive or reversed I am forthwith. that the devices of dis- fine
tinction, labored reconcile, efforts to or
even the use of Latin Pidgin-English bring
would no relief to 60(b), Justinian applies only ground, 1. ground The three months limitation 3.The minor considered no at (1), (2), (3) (4) rule, court, to reasons all of the the trial had to do “no with opin- judgment,” ground one of which is the basis for the main notice of one — only, mistake, ion’s conclusion. which is reason No. —that (1), group 60(b) in the in Rule and footnote supra. (1956). 2. 5 Utah 2d P.2d 60(b) (1). 4.Rule
George Handy, Ogden, appellant. B. Harris, Burton H. Harris and M. Preston, Harris, Preston, Logan, Harris & for respondents.
CROCKETT, Justice: Cornia, 81-year Fuchsia Fern who is an widow, appeals finding old she incompetent appointing and an order guardian of her estate. She contends that support finding evidence does not justify nor the order. death,
Prior
her husband’s
31, 1971,
July
on their
Mrs. Cornia lived
County,
ranch in Rich
There are
Utah.
Ross,
children, Cal, Dale, Don,
living
seven
Jerry,
pie,
Grace McKinnon and Bessie
rather than
This
returning to Weston.
appears
Wadsworth.1
to have given offense
her sons.
They assert
they
believe their mother
Sparing
values,
money
exact detail of
influe.,
is being unduly
daugh-
d
family (her
Cornia’s share
ters.
*3
husband’s) estate
of these
consisted
assets:
Before
Arizona,
Mrs. Cornia
$5,000
deposit,
five
certificates of
held
$9,000
withdrew approximately
from her
jointly,
sons,
one with
her
each of
five
and
savings account
in Evanston after
she
$2,500
jointly
two
certificates held
one
learned that Mrs. Don Cornia had been
with
grandsons;
$6,500
each of two
a
also
making withdrawals without her consent.
time
jointly
certificate held
with her son
Upon
Arizona,
her return from
Mrs. Cor-
addition,
Jerry.
In
she owned a lot
requested
nia
give
her sons to
her the cer-
Bountiful
given
by
which had been
to her
tificates
deposit
of
pos-
were in
their
mother;
her
family
home Wood-
session. This was refused and the sons in-
;
savings
checking
ruff
and a
account
and.
stituted these proceedings
guard-
to have a
Evanston,
in the First National Bank of
appointed,
ian
daughters
to which the
indi-
Wyoming.
their opposition.
cate
3, 1972,
On January
five months after
degree
The
incompetence
of
req
death,
her husband’s
Mrs. Cornia executed
appointment
uisite to the
guardian
of a
a warranty deed to her
property
Bountiful
governed by
75-13-20,
Section
U.C.A.1953:
Don,
to her
Jerry
sons
days
and
and five
later,
8,
January
she executed a trust
The
“incompetent,”
words
“mentally
agreement in favor of the same sons to the
incompetent”
“incapable,”
and
as used in
property.
same
day
On that same
she exe-
title,
this
shall be construed to
any
mean
cuted will
a
which left practically all her
person who,
insane,
though
is,
property to her sons. Mrs. Cornia testifed
reason
disease,
old age,
weakness of
of
that she
making
did not recall
the will or
mind, or
any
cause,
other
unable,
executing either
deed
or the trust
unassisted,
properly
manage and take
agreement. She' said this was because at
care of himself or his property,
and
that time
engaged
she was
in the adminis-
reason thereof
likely
would be
to be de-
tration of her husband’s
imposed
estate and had
ceived
upon
or
by artful or de-
“signing papers
been
by the bushel.”
signing persons.
[Emphasis added]
death,
After her husband’s
Mrs. Cornia
provisions,
disjunc-
in the
These
stated
moved from her
“or,”
home
any
grounds
Woodruff to a
tive
so that
one of the
adjacent
trailer
to her
order,
son Jerry’s
general
house
could
are both
justify the
Weston,
lonely
plainly appears
Idaho. She became
and
them it
liberal. From
and went to Arizona
her daughter,
physical
to visit
or
that if because of either
mental
Grace
limitations,
them,
McKinnon. She did not return to
of
a
a combination
Weston, but moved in
daughter
with her
of
person
properly
is unable to
take care
Wadsworth,
Bessie
Ogden, Utah,
likely
saying
property,
herself or her
or would
preferred
that
going
she
upon,
to a rest home
is au-
imposed
deceived or
the court
she
peo-
where
could be with
elderly
appoint guardian.
other
thorized to
findings
(Utah 1975) ;
1. We review the
and
In re Lamont’s
conclusions of
der the circumstances time, 1972,may subsequent at if arise some foregoing From the clear it seems present may be and when those documents justifi that the court was trial not without authentic; and upon a ed and relied as believing cation for guardian that a should if, challenges one or both further someone appointed safeguard the interests of as to also that the test of them. We note Cornia; and that this court would deed, will,2 a a trust capacity to execute justified in reversing ruling. not be that transactions, quite is into other or enter appropri In this connection we think it is requirements different from the of Section point ate to out indeed now if she is ap 75-13-20, 1953, relating to U.C.A. competent mentally both physically and pointment guardian. of a affairs, statutory handle her au thority 75-13-21, under Section U.C.A. is af- appointing guardian The order 1953, proceedings to have her declared will But the declaration that the firmed. competent guardianship and the terminat deed are nullified is reversed. and the trust ed. No costs awarded. P, Estate, Estate, 580, In re Hanson’s ;
2. In re Richards’ See 52 Utah .2d 5 Utah 2d P.2d 542. HENRIOD, ELLETT, J., J., concur. Utah, STATE of Plaintiff Respondent, (concurring and Justice
dissenting) : Lynn JEPPSON, Defendant Appellant. part opinion
With that main No. 14068. ap- which sustains the court in its pointment guardian, From I concur. Supreme of Utah. Court part of the main which re- 25, 1976. Feb. judgment declaring verses the trial court’s the will and trust deed executed in Janu-
ary, void, to be The main dissent.
opinion says issue that the raised and proceeding
tried in incompe- was the
tency particu- “in months and that recent
larly past within the two months reason age physical
of her old infirmities.”
The trial court had before it evidence of
Mrs. Cornia’s activities from the date of *5 death husband’s until the date of trial. evidence,
Part of this advanced
cross-appellant, was the statement
Mrs. Cornia never has taken care
own proof affairs. The sum total of the
produced evidence, upon believable decision; trial court arrived at its petition should the guardian-
ship granted, prior but that convey-
ances testamentary disposition should operative.
not be appears apparent
It that all of these is- implied consent,
sues were tried and a
judgment was rendered thereon. Our
practice provides for, and allows this.1 is,
The rule “When issues not raised
pleading by express implied are tried parties, they
consent of the shall be treated respects
in all they as if had been raised in pleadings . . . failure ...
amend does not affect the result of the these issues.” submit
substantial basis in the evidence for the
findings court, judgment of the trial
thus its should be sustained.
TUCKETT, J., concurs the views ex-
pressed J. 15(b),
1. Rule U.R.C.P.