226 P. 677 | Utah | 1924
The plaintiff brought this action in the district court of Salt Lake county as the alleged surviving partner of one Charles B. Staats, whu died, leaving surviving him the plaintiff and several other children as his heirs at law; and he also left surviving him Grace Staats, the defendant, as his widow. The deceased left considerable property, consisting of improved real estate, in all of Which the plaintiff claimed an interest either as surviving partner of the deceased or as tenant in common. The deceased died testate, leaving a will, but the defendant, his widow, elected not to take under the will, but insisted on being awarded her statutory interest in her husband’s real estate.
This action was instituted by the plaintiff against the defendant to determine his rights in and to the aforesaid real estate and for an accounting, etc. The defendant had been appointed administratrix with the will annexed of the deceased, and was acting as such when this action was commenced. She filed an answer to the complaint in which she denied that the real estate described in plaintiff’s complaint was partnership property. She also denied that plaintiff held an interest as tenant in common, and averred that the same was the sole property of the deceased. In a counterclaim she also alleged that the real estate and improvements thereon Was the property of the deceased, and that she was entitled to one-third in value thereof as the surviving widow.
Subsequently the other children of the deceased intervened in the action claiming certain rights in and to said property. In view of the conclusion _ reached, however, it is not necessary to set forth the claims of the interveners, and neither they nor their claims will be referred to further herein.
The evidence was submitted to a jury who returned certain answers to specific questions propounded to it as advisory to the court. The court subsequently refused to adopt all of the findings of the jury, but made and filed complete findings of fact and conclusions of law. The court in effect found that a part of the real estate with the improvements thereon con
Two preliminary questions arise which must be determined before proceeding to the merits of the appeal. The plaintiff has filed a motion to- dismiss the appeal; and, in the event that that motion fails, he also has filed a motion to strike the bill of exceptions.
The motion to dismiss the appeal is based upon the alleged ground that the defendant has availed herself of the benefits of the judgment, and hence is estopped from assailing its correctness on appeal. It must suffice to say that we have carefully examined into the record, and, after doing so, are convinced that the contention is untenable. The motion to dismiss is therefore denied.
The motion to strike the bill of exceptions is based upon the ground that the same Was not served by the defendant within the time required by the statute. The case, as before stated, was tried to the court, and its findings of fact, conclusions of law and judgment were filed on the 14th day of March, 1923. The bill of exceptions was not served for several months thereafter, but it is made to appear from the bill of exceptions that on the 14th day of April, 1923, the defendant obtained an extension of time within which to propose and serve a .bill of exceptions.' Plaintiff contends that pursuant to the statute, Comp. Laws Utah 1917, § 6969, a proposed bill of exceptions must be served on the adverse party within 30 days after the entry of judgment, or if that is not done, an extension of time to do so must be obtained within that time, and that, in view that the extension of time was not obtained within 30 days from the entry of judgment,
In leaving this subject the writer feels constrained to add that it seems somewhat incongruous on the part of plaintiff’s counsel that they should attempt to take advantage of an alleged jurisdictional defect which they knew depended upon their own act, and which act they knew was not taken in time to deprive the district court of jurisdiction to settle and allow the bill of exceptions. The motion to strike the bill of exceptions was at most based upon a pure technicality, but in view of the facts as they were known to the parties and to the district court, a technicality which had no , foundation in fact. I cannot refrain from suggesting that such strategy is hardly fair in a court of justice. This brings us to the merits of the appeal.
In her assignments of error the defendant has assigned 126 specific errors. It is needless to say that no court worthy of the name would commit that number of errors in a ease of this character, however careless. A careful examination of the record of the proceedings, the findings of fact, conclusions of law, and the decree entered by the district court compels the statement that the court exercised great, and, in many instances, meticulous, care to preserve and to adjust the rights of all concerned in matters that were, to say the least, left more or less obscure by reason of the length of time during which the transactions occurred and the relationship of the parties during all of that time. The case is of such a nature, and the record is likewise such, that, if we undertook to specifically consider even the errors that have any semblance of merit, we would be required to write an opinion the length of which would be almost without limit. Then again, if we attempted to analyze the evidence or undertake to set forth our reasons in detail why the alleged errors are untenable, we would be required to write an opinion comprising a whole volume. Moreover, no good purpose whatever could be sub-served in doing so. In fact there is but little that we could say in this case that would be of service either to the bench
The court’s findings of fact are assailed. The findings are very long and consist of many paragraphs. In the assignments each finding is assailed in practically the same language ; namely, ‘ ‘ the court erred in the first finding of fact wherein it found. * # The finding is then sent forth, in haec verba, and the assignment continues, “that said finding is contrary to and opposed by the evidence adduced at the trial of said cause, and is. entirely inconsistent.” While not every assignment is couched in the same words, it is precisely to the same effect. It has so often been held by this court that'to assail a finding in that way is in the teeth of rule 26 of this court, and really amounts to no assignment of error, and will not be considered by this court ; that it is no. longer necessary to refer to the many decisions of this court to that effect. We shall therefore not consider the assignments relating to the findings of fact, except such concerning which it is insisted that there is no evidence whatever in their support.
To that class belongs the assignment that there is no- evidence with respect to the finding that the plaintiff and the deceased were partners. This assignment, however, is based upon the fact that it is asserted that the plaintiff and his brothers and sisters, under our statute (Comp. Laws Utah 1917, § 7.123), were incompetent as witnesses to testify respecting the transactions involved in this action. Tn order to answer the foregoing contention correctly vre must first determine the relationship of the several parties to this action, and in what capacity they are here claiming.
This is not an assault upon the estate of the deceased, but is purely a controversy between the children, who, as a matter of course, are the heirs of the deceased, and, in this instance, also his devisees, and the defendant, who is the widow of the deceased, and who refuses to abide by the provisions made for her in her husband’s will. Regardless of the nature of the claims of the plaintiff and his brothers and sisters, the
“The statute in this regard is intended to protect the estates of deceased persons from, assaults, ‘and relates to proceedings wherein the decision sought by. the party so testifying would tend to reduce or impair the estate, and does not relate to the relative rights of the heirs or devisees as to the distribution of' an estate in a proceeding by which the estate itself is in no event to he reduced or impaired.’ ”
A large number of cases supporting the test are there collated.
The evidence is ample to sustain the court’s finding that the plaintiff is the surviving partner of the deceased; that he and his father owned some of the real estate' in question as partners, and, as to the remainder, that they owned it as tenants in common.
The court’s conclusion of law, which is also assailed, that the defendant is entitled to a one-sixth interest in the real estate in question instead of one-third as claimed by her is also correct, and hence this assignment must fail.
Nor is there any merit to the contention that under the law. the real estate in question should not be considered as partnership property. That question is likewise settled in this jurisdiction in the case of Deming v. Moss, 40 Utah, 501, 121 Pac. 971, where the rule is stated in the first headnote, thus:
“All property bought with partnership funds is prima facie the property of the firm, though the title is taken in the individual name of one or more of the partners.”
The law as it is there stated is amply supported by. numerous authorities, among which we refer to the following: Lane v. Tyler, 49 Me. 252; Willet v. Brown, 65 Mo. 138, 27 Am. Rep. 265; Johnson v. Rankin (Tenn. Ch. App.) 59 S. W. 638, and cases cited in support of the foregoing decisions.
The othe'r assignments relating to the admission and exclusion of evidence, as well as those relating to the findings of fact and conclusions of law, are clearly untenable.