9 Utah 23 | Utah | 1893
This was an action of forcible entry and detainer tried in the first district court on an appeal from a commissioner’s court. The action was brought to recover possession of certain real property situate in this Territory, the plaintiff and her guardian being residents of the state of Montana. It is alleged in the complaint that for more than five years previous thereto the plaintiff was entitled to and was in the peaceable and actual possession of a part of the S. E. i of section 16, township 6 N., range 1 W., Salt Lake meridian; that on or about the 20th day of March, 1891, during -the absence of the plaintiff, the defendant unlawfully entered upon said lands, premises, and tenements, and took forcible possession thereof, and ever since has forcibly retained the same; and that on the 2d day of April, 1891, the plaintiff, by her guardian, made a demand in writing upon the defendant to deliver up possession, etc: The defendant admitted that she was in possession of the premises, but claimed that she was there of right, and with lawful authority. After the trial tlie jury returned a verdict in favor of the plaintiff. The defendant then moved for a new trial, which motion was overruled, and thereupon she appealed to this court.
Counsel for defendant claim that this was an action affecting the possession of real estate, and that the United States commissioner, before whom the action was brought, had no jurisdiction, and therefore the district court erred in not dismissing the appeal on application. While commissioners, who have the same power in such cases as justices of the peace,' cannot try the title to real property,
Counsel further insist that the papers in the appeal from the commissioner’s court were not filed in the district court within the time required by law, and hence the appeal should have been dismissed. From the record it appears that the verdict in the commissioner’s court was rendered on the 12th day of May, 1891, and the appeal perfected on the 11th day of June, 1891. The appeal was thus perfected within 30 days from the rendition of the verdict, which is the time allowed under section 3657, Comp. Laws Utah 1888, within which to appeal from a justice’s or commissioner’s court to a district court. So far the appeal is regular, and it does not appear from the record when the papers were transmitted to the clerk of the district court, nor does it appear therefrom how much time is allowed, by the rules of the first district court, within which to pay the docket and jury fees, and have the papers filed in the clerk’s office. The burden is upon the appellant to show that the rules of the court were not complied with, and, the record being silent as to that, this court will presume that the proceeding in this respect was regular. District courts have power to make proper rules, and, when made, .they apply to appeals from United States commissioners. Legg v. Larson, 7 Utah, 110, 25 Pac. Rep. 731.
The most material question which has been raised in this case is as to whether or not a non-resident guardian can maintain a possessory right for his ward, who is also-, a non-resident, through an agent, on land situate within
It is clear that under this statute the defendant cannot avail herself of the possession of the premises during the time that she and her husband lived there, and held the same under the lease, nor does it appear that at that time they intended so to do, for at the expiration of their lease they seem to have surrendered them again to the agent. Nor does it appear that the possession of the plaintiff or of her predecessors was at all disturbed until the defendant took the possession of which the plaintiff complains. The above statute does not seem to be limited to parties actually residing within this Territory, and to establish a rule that it is so limited would be to hold that, where a party settled on the public domain, inclosed a parcel of land for a farm, and made valuable improvements thereon, with the bona fide intention of purchasing the same whenever a title could be procured from the government, he must be constantly present on such land. This would mean that if at any time he should quit actual occupancy, and lease the land, even for causes beyond his control, he would forfeit all his improvements to the next occupant; and it would be difficult to confine such a rule to non-residents, for the law of agency applies equally to residents and nonresi
“ The whole theory of a possessio pedis rests upon the assumption that the acts of dominion which establish it are such open, notorious acts of ownership as usually accompany the possession of real property, and naturally spring from a claim of exclusive dominion.” Plume v.*30 Seward, 4 Cal. 95; Coryell v. Cain, 16 Cal. 573; Feirbaugh v. Masterson, 1 Idaho, 135. Under the facts and circumstances, as disclosed by the record, we are of the opinion that the parties through whom plaintiff claims were in the actual occupation and possession of the land in question, and having a right of property therein, they could lease it, and maintain their possession through their tenant or agent; that, after the same was bequeathed to the plaintiff by last will, her guardian, though a non-resident, could maintain such possession through his agent; and that the plaintiff had the right to bring her action in the courts of this Territory to recover possession. A father, who is a legal and natural guardian, ordinarily has the right to remove his infant ward to another state, and in such event, the child being powerless, it would seem unreasonable to hold that such property rights would thereby become forfeited. Wood v. Wood, 5 Paige, 595; Holyoke v. Haskins, 5 Pick. 20.
■ Counsel for appellant also contend that the court erred in appointing a guardian ad litem, since the general guardian prosecuted the case before the commissioner. Section 4317, being section 13 of chapter 13, relating to guardian and ward (Comp. Laws Utah 1888), provides: “Nothing contained in this chapter affects or impairs the power of any court to appoint a guardian to defend the interests of any minor interested in any suit or matter pending therein.” It is plain from this section that the law in relation to the appointment of a general guardian does not interfere with the power of the court to appoint a guardian ad litem, and' the power in this case seems to have been correctly exercised.
There are numerous other errors assigned, but, in view of what has already been said, they are not deemed material. The judgment of the court below is affirmed.