28 P. 396 | Idaho | 1891
Lead Opinion
The facts as stated in the complaint, and shown by the record, are, in substance, as follows: On the seventeenth day of February, 1874, one Noah S. Kellogg was duly and legally married to one Mary A. Byrd, and the said par- . ties continued in the relation of husband and' wife until the death of the said Mary A., which occurred on the eighth day of July, 1886. That during said time the said Noah S. Kel
As to the first and third assignments of error, while the correctness of the ruling of the district court is, at least, very doubtful, we think it can hardly be claimed to have been prejudicial to plaintiff, as the court seems to have given but little consideration to the testimony objected to, the admission of which is assigned as error, in passing upon defendant’s motion for nonsuit, and we are unable to see wherein the amendment of the complaint at the time it was asked would have benefited plaintiff, or the refusal injured her case.
The second assignment of error raises all the questions we deem material in the case, and we will now proceed to consider them. Counsel for defendant raises the objection for the first time in this court that the complaint does not state facts sufficient to constitute a cause of action. Conceding that such objection may be raised for the first time in the appellate court, still we think the contention of counsel cannot obtain. It is claimed by defendant’s counsel that the complaint is insufficient, in that it does not contain the exceptional words of the statute in defining what is community property, i. e., that it was not obtained by “gift, bequest, devise, or descent.” We are of the opinion that this objection cannot be raised by general demurrer, but only by special demurrer, for ambiguity and uncertainty; but we think the allegation in this ease sufficient. (Gimmy v. Gimmy, 22 Cal. 633; Gimmy v. Doane, 22 Cal. 635; Treadway v. Wilder, 8 Nev. 91; Souter v. Maguire, 78 Cal. 543, 21 Pac. 183.)
The second position of defendant, that the complaint does not state that the community property was not chargeable with debts, is not tenable. The complaint does not state that there
The third ground upon which defendant asked a nonsuit is that mining property, being held under a grant from the United States, is not community property. This proposition is novel, and we have examined all of the authorities cited by counsel in support of it with much care; but we find ourselves unable to agree with counsel for defendant in this contention. All the cases cited by counsel in support of this proposition arose upon Spanish, French, or Mexican grants, and there is, in our view, a manifest difference between the grants referred to in the authorities cited by counsel and the general grant under the mining laws of the United States. In the former cases it is always a special grant to the individual named, based upon grounds or considerations personal to the grantee, while in the latter it is a general grant to all the citizens, as well as those who have declared their intention to become citizens, of the republic. It is suggestive that while nearly all the mining properties in this country have been acquired under this general grant, this is the first time this question has ever come before our courts. A further answer to this contention of defendant is found in the fact that the evidence in the case shows that Kellogg acquired his interest in the properties described in the complaint by purchase, to wit, an undivided one-half interest in the Bunker Hill lode, and a three-eighths undivided interest in the Richmond lode, from Phillip O'Rourke, an undivided one-fourth interest in the Sullivan lode from Con Sullivan, and an interest in the Fraction mining claim from Joseph Klever.
The next contention of the defendant in support of the non-suit is that the statute of Idaho, under which, and the amendments thereto, plaintiff claims, is by its terms limited to a community created in the territory, or to persons who, having been married elsewhere, come within the state and become
The fifth ground upon which nonsuit was asked was that there was not sufficient proof of abandonment by Kellogg of the plaintiff’s ancestor to support the allegation thereof. The statute under which plaintiff claims is an amendment to the law of the eighth session of the territorial legislative assembly of Idaho, passed at the tenth session of- said legislative assembly, and is as follows: “Section 11 be amended to read as follows:
Does the evidence in this ease, as it appears in the record, support or establish such a case of abandonment as made it obligatory upon the court below to send the case to the jury, or was there such a failure of proof in this behalf as justified that court in granting a nonsuit? Much of the evidence which appears in the transcript, it seems to us, is dehors the issue. ,We
As another evidence of the uncertain and unsatisfactory character of the plaintiff’s testimony, we quote the following, from her cross-examination, as it appears: “Q. I will ask the question now whether she contributed during the time she was there to the support of the family as well as after the time that Mr. Kellogg left. A. I contributed to the support of my mother after Mr. Kellogg left. Q. Did you contribute anything before? A. No, sir. Q. So that the only expense that you were to was on your own account during the time he remained there ? A. He did not remain very long. Q. Well, we know about the length of time. During that time he supported the family himself? A. He did not during all the time before he left.' Q. If he didn’t, who did? A. I think that I took complete charge not over a month after I went there, and after that I supported the family. Mr. Kellogg was there several months afterward.”
I have quoted somewhat extensively from the testimony of this witness, because hers is the only testimony in the record which bears directly upon the question of abandonment. Mrs. Josephine Ward, a sister of the plaintiff, who, although she refused to be joined as a plaintiff in the action, appears as a witness on behalf of the plaintiff, when interrogated by the counsel for plaintiff (by deposition) as to the circumstances under which Kellogg left his wife in February, 1879, also emulates the mollusk before referred to, and replies: “I refuse to, answer further, or give circumstances.” Why counsel did not press her further upon this point, we do not know. Perhaps his experience had taught him the verity of the old distich:
“When a woman will, she will,
You may depend on’t;
And when she won’t, she won’t,
And there’s an end on’t.”
As before stated, the only evidence in the record bearing -directly upon the question of abandonment (for we do not consider proof of mere absence evidence of abandonment) is that of the plaintiff. She testifies in her own behalf. She is playing for a large stake. She has everything to gain, and nothing to lose. She is even unsupported by that sister, who was a coworker in the support of their invalid mother, and under whose roof the poor old invalid spent the last years of her afflicted life, •after having been hawked about the territory of Washington from poor-house to poor-house for years; and this the plaintiff calls supporting her — such support, we should say, as Lear received from his pelican daughters; and it is upon such testimony that the court is asked to wrest from innocent purchasers, for value, property which the plaintiff estimates at millions of •dollars in value. Fvery witness, including the plaintiff, who testified upon the subject, states that up to the time of his departure in February, 1879, Kellogg and his wife had always lived happily together. It may be that a man possessed of the ordinary instincts of humanity, not brutalized by debasing habits, or the indulgence of a vicious appetite, would, after having lived for years happily with a woman, borne with her the vicissitudes incident to a life in this country, it may be
Rehearing
ON REHEARING.
We have carefully examined the petition for a rehearing filed in this ease, as well as the authorities cited therein. Moreover, we have again gone carefully through the record, and the result of our labors has been to confirm us in the opinion heretofore filed in this case. We note the reference of counsel to the provisions of the constitution of the Hnited States and of this state in regard to trial by jury; but counsel must be aware that the nonapplicability of those provisions to the question here under consideration is no longer a mooted question in this country. The right of the legislature to confer upon the courts the power to grant nonsuits in certain cases has been too long and too generally conceded to now be questioned. Section 4354, subdivision 5 of the Revised Statutes of Idaho provides that the court may grant a nonsuit, “upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury.” In the federal courts of the Hnited States a compulsory nonsuit cannot be granted, but the same result is reached through a peremptory instruction to the jury. In the case of Schuchardt v. Allens, 1 Wall. 359, cited in petition, the court says: “Whenever the evidence is not legally sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly.” It has been repeatedly held by the supreme courts of California and other states whose statutes are similar to those of Idaho that the granting of a nonsuit is a question of law. The doctrine that, if there