7 Utah 319 | Utah | 1891
-This suit is brought to quiet title, and, before proceeding to decide the case, we wish to say that the abstract is so imperfect that the work of the court was vastly increased, because it was compelled to read the whole record to understand the case. Attorneys ought to take more pains in preparing their abstract. A preliminary question is, when was this suit commenced ? The complaint was filed November 13, 1888; amended complaint, January 16, 1889; answer of defendants, December, 1889. No summons was issued in the case; the defendants answered voluntarily. The statute of the territory expressly provides that the filing of. the complaint is the commencement of the action (2 Oomp. Laws Utah, § 3155); that a summons may issue within a year, and the defendants may within that time appear without summons, and defend the action (section 3203). The defendants did appear, and defended the action without making any point by their answer, or any other way, that a summons was not issued within a year. The suit was continued on the docket as commenced. We think, therefore, the date of the commencement of this action is November 13, 1888, 2 Oomp. Laws Utah, p. 237.
Another preliminary question is, what can the appellate court review in this case ? The contention of the respondents is that the question as to whether the evidence
The defendants contend that the appeal from the order overruling the motion for a new trial cannot be considered, because there is no such motion in the record. There is a notice of such motion and such an order, and it is too late to take advantage of the want of the formal motion for the first time in this court, and the practice in this territory is to allow the notice of the motion for a new trial to take the place of the formal motion.
This suit is brought to quiet title to the quarter section of land described in the complaint, by the heirs of Jonathan Needham, deceased. The defendants filed an answer denying the allegations of the complaint, and a. cross-complaint alleging they are the owners of a portion of the land of said quarter section, and deraign their title through a deed from the administrators of the estate of said decedent to the city of Salt Lake. They also set up adverse possession for more than seven years. The
In this case application was made to the probate court, by only one of the administrators (there being two), on August 23, 1875; the order of sale, August 27, 1875; sale, August 28, 1875; and confirmation of sale, September 3, 1875. No notice of the application or of the sale or of the confirmation was given. The statute does not provide that any notice of these proceedings shall be gáven, but is silent on the subject. The contention of the appellants is that these probate proceedings are coram non judice, and void for want of notice. In the view we take of . this case, it is not necessary to pass upon that question. But it seems to us, when a special proceeding is provided for by statute, and the manner of performing it is not specified, it ought to be according to the course of the common law, and the rule at common law is that every person interested in any adjudication shall have an opportunity to be heard, and to have
The petition in this case does not allege that there exist debts or charges against the state unpaid; nor does it allege that there is no personal property to pay such debts or charges, if any existed. The logical conclusion, therefore, is, and from which there is no escape, that the court had nothing before it to give it jurisdiction. We think this view is supported by all the authorities. Gregory v. McPherson, 13 Cal. 577; In re Spriggs’ Estate, 20 Cal. 125. In the case of Grignon v. Astor, 2. How. 319, cited by respondents, the court, through Baldwin-, J., says: “No other requisites are necessary to the jurisdiction of the county court than the death of Grignon, the insufficiency of his personal estate to pay his debts, and a representation thereof to the county court where he dwelt or his real estate was situated, and making
• In the petition to the probate court under discussion there is no allegation, nor any pretense of an allegation, that the personal property of Needham, deceased, was insufficient to pay the debts due from said estate, and legal charges against it; nor is there any allegation of any debts or charges against the estate. There is a recital as follows: “This petition respectfully represents that in order to settle up the business of the estate of said deceased, to pay certain debts and demands due and owing by said estate,” etc. It requires quite a stretch of the imagination to say that that statement is an allegation that legal debts and legal chai-ges exist unpaid against the estate. Again, the order of sale shows affirmatively that the real estate was not sold to pa/ debts and charges against the estate; but only that “it will be for the best interests of the said estate and the heirs of the said deceased to sell the land described in said petition.” This shows clearly that the question of indebtedness and charges against the estate, and that the personal property was insufficient to discharge the same, — the only fact he
Another contention of respondents is that they and their grantors have had adverse possession of the said lots 4, 5, and 6, — the portion of said quarter they claim to own, — for more than seven years prior to the commencement of the suit. The court below found that fact for the respondents, but surely on the ground that this suit was not commenced November 13, 1888, for we do not think the evidence supports that view if the ease was commenced at that time, We have already said in this opinion that the filing of the complaint in this case —November 13, 1888 — was the commencement of this suit; the effect of which is that adverse possession, in order to avail the defendants, must be for more than seven years prior to that date. The evidence on that subject is that the city, the grantee of the administrators, took no possession, only to lay off a portion of the land into lots and blocks, and it does not appear when they did that. The son of Henry Arnold, the grantee of the city, testifies his father bought these lots in the spring of 1881; that his father took possession of these lots about six months after he bought them; but specifies the possession he took as follows: “ Some time in the fall of 1881. he plowed lot 4, and in the spring of 1882 he again plowed lot 4, and fenced in the lots, and sowed them in grass seed; and that he continued in actual occupancy of these lots until he sold them to the respondents in 1888.”