230 P. 793 | Colo. | 1924
LEMUEL THOMAS had judgment against W. V. Thomas, P. H. Murray et al. in a suit brought by him for partition. They bring the case here for review.
One Alice Collins and her daughter, Rose Blue, were equal tenants in common of the realty in question — a lot and two houses thereon in Trinidad. May 31, 1914, Mrs. Collins died and Rose Blue remained in possession. She afterwards married the defendant W. V. Thomas (no relation of Lemuel) and July 8, 1917, died, leaving her husband her only heir. July 24, 1917, W. V. Thomas was appointed administrator of her estate. He remained in possession, and, February 25, 1921, conveyed his interest to P. H. Murray. June 6, 1921, Lemuel Thomas brought this suit, claiming to be the son of Alice Collins and brother of Rose Blue Thomas and so entitled to an undivided one-fourth of the property.
There have been many changes in the parties plaintiff and defendant and many motions with reference to the pleadings which we do not find it necessary to notice.
September 23, 1921, an amended petition was filed. December 14, 1921, the defendants Thomas and P. H. Murray filed a motion to separate the causes of action and *202 December 14th this motion was overruled. December 20th they separately demurred; January 16, 1922, the court overruled these demurrers except as to certain paragraphs thereof which attacked the complaint for seeking relief as to personal property alleged to belong to Alice Collins at her death, and to have been converted by the defendants. The court seems consistently to have kept out of the case consideration of this personal property until the supplemental complaint was filed March 8, 1922. The defendants were then ruled to answer in ten days; they did not do so, and February 11th the plaintiff filed a praecipe for default. No entry of default appears except as recited in the decree. The decree, it is claimed by defendant in error, was rendered on February 20, 1922, but it was not filed until April 13th, and does not on its face show when it was rendered. The record does not tell us whether it is recorded among the proceedings of that day, February 20th. We think, however, there is enough in the record to show us that it must be regarded as having been then rendered, as plaintiff claims it was. It is referred to later in the records as having been rendered on that day. We cannot disregard such evidence.
March 8, 1922, leave was granted to file a supplemental petition, and pursuant to that leave, a petition was filed in which additional defendants were named. This so-called supplemental petition is partly an amendment to the original because it is not confined to facts which occurred after the action was commenced. Code 1911, § 80.
April 13th the decree was filed. It appointed commissioners and on that day they reported that the property could not be partitioned and would have to be sold. April 14th the report was approved, the commissioners ordered to sell and convey and the cause was continued for their further report.
May 11th P. H. Murray answered the supplemental petition and filed a motion to set aside the judgment order filed on April 13th, and to set aside what had been done in pursuance thereof. There were supplemental affidavits *203 pursuant to this motion. The issues under that answer have never been tried.
December 11, 1922, there was another judgment rendered in which the exceptions to the report of sale by the commissioners which had been theretofore filed were overruled, the sale approved and a deed ordered.
December 20th, P. H. Murray filed a motion for a new trial. This motion was afterwards granted and the judgment of February 20th was set aside as to certain parts, viz.: The finding (a) that said amended petition and each and every allegation thereof are true and that the prayer of said petition should be granted; (b) that there are no unpaid debts against the estate of Alice Collins and a certain outstanding trust deed made by Collins and Blue had been paid in full; and (c) that the rents collected and held by W. V. Thomas and P. H. Murray amounted to $2,313, rightfully belonging to the plaintiff; and it was ordered that the parties might introduce evidence as to the questions involved in those parts of the decree that were set aside, and that thereupon further orders would be made. The motion, except as above, was overruled and either party was permitted to file pleadings to the questions for rehearing.
January 20, 1923, P. H. Murray answered the amended petition and, assuming that the setting aside of the general finding for plaintiff was a re-opening of the whole case, he denied that Lemuel Thomas had any interest in the premises. Upon a trial which came up October 1, 1923, the court refused to hear any testimony upon that point or upon anything else except in relation to the matters mentioned in the parts of the judgment which were set aside. That refusal is assigned for error.
At one stage of the proceedings the defendants moved to dismiss the suit because it was commenced without authority. Plaintiffs in error filed affidavits reciting the facts with reference thereto and upon trial the defendants offered to show (and were refused permission to do so) that Mahin, once the attorney for Lemuel Thomas, and now his *204 assignee and substituted for him, filed the suit in Lemuel Thomas's name after he was discharged as his attorney; that Thomas had a written agreement with Mahin for his services at 20 per cent of the recovery; that after doing some work Mahin demanded fees and repudiated the agreement; that Thomas's attorney in another state then wrote Mahin that if he would not carry out the agreement he was discharged; that Mahin then began this present suit and also sued Thomas in Trinidad for fees and attached his interest in the property in question and that Thomas then came to Trinidad and made a settlement of some sort with Mahin whereby he conveyed his interest to one Cox and Cox afterwards conveyed it to Mahin. Upon this record we are compelled to take these facts as true because undisputed.
October 1st, the day of trial, Mahin filed a replication claiming to have been substituted for Lemuel Thomas by order of September 20, 1923. To what answer that replication referred we do not know. The replication is intolerably long, full of irrelevant and improper matter and should have been stricken out on motion; but we cannot say that the denial of such motion is prejudicial error. October 20, 1922, judgment was rendered ordering the distribution of the rents collected and adjusting accounts.
1. One of the important points made by the plaintiff in error is that the whole suit is void ab initio, because begun without authority from the plaintiff. We must assume that the action was so begun. The plaintiff, however, appears to have subsequently conveyed his interests to one Cox and to have made some settlement without any step to dismiss the case. This is a ratification of the act of the attorney. The case of Bennie v. Triangle Ranch Co.,
This is not the place to characterize the action of the attorney as revealed by this record, but, lest we should be thought to treat it lightly, we are constrained to say that it meets our strong condemnation.
2. The filing of the supplemental petition, so-called, by leave of court March 8, 1922, opened and set aside the judgment of February 20th. We have been furnished with no citation exactly in point, nor, with some labor, have we been able to find one, but we do find that judgments are sometimes set aside on motion of the parties in whose favor they were rendered, so as to permit amendments and supplemental bills, and that has been impliedly approved by this court. Monti v. Bishop,
There are cases which hold that even after judgment the record and even the judgment itself may be amended so as to show proper parties and the judgment allowed to stand; but we find no case permitting an amendment to the substance of the bill or permitting a supplemental bill unless the judgment is set aside, and this should be true of judgments taken by default, whether of other judgments or not.
For this reason the judgment must be reversed and plaintiff must be given opportunity to meet the main case set up in the amended petition.
3. The plaintiff in error claims that the petition does not state facts which constitute a cause of action, because it does not show that the plaintiff had seizin, but, on the contrary, shows that the defendants held adversely to him. It seems to us, however, that it states good ground for some kind of relief under the code. It perhaps might be treated as an action in ejectment, McDowell v. Kent,
We are not now concerned with a case of vacant land, presumed to be in the possession of the rightful owner. The case must be reversed. The record is so confused as to be inextricable and almost incomprehensible; the pleadings and motions thereon should be stricken out and a new pleading begun with a complaint stating a cause of action in ejectment, which the present complaint does if it states anything, and if and when that is determined in plaintiff's favor, an action for partition can be brought which will be a matter of course. If this course had been taken in the first place the affair would have been ended long ago.
We might end this opinion at this point, but there are two matters of which we feel bound to speak; one is that the attorneys on both sides have so far forgotten themselves as to use intemperate and almost abusive language *207
toward each other. We have several times commented on this manner of argument and deprecated it. It does not aid the clients and does not help the court to reach a just conclusion. Chamberlin v. People,
The judgment is reversed, with directions to strike out all pleadings and motions thereon and order new pleadings.
MR. JUSTICE ALLEN, sitting for MR. CHIEF JUSTICE TELLER, and MR. JUSTICE WHITFORD concur. *208
