57 P. 708 | Idaho | 1899
— The amended complaint, on which this action was tried, demanded the foreclosure of two certain mortgages on real estate and a chattel mortgage. The real estate mortgages-are deeds absolute on their face, one given on eertain real estate-known as the “Howdon ranch,” situated in Bannock county, Idaho, and the other on what is known as the “Fish Haven ranch,” situated in Bear Lake county, Idaho. The chattel mortgage is in the form of a bill of sale, and given on four hundred head of homed cattle, thirty-five head of horses, and a lot of farming implements and machinery, wagons, harness, furniture, and other personal property. The plaintiff also asked to be sub-rogated to the rights of certain other mortgagees whose mortgages, he alleges, he had paid, amounting to $15,000. It is also, alleged that the deeds and bill of sale sued on herein were given in consideration of the payment of the mortgages last above referred to as belonging to certain other mortgagees, which payments were made under an agreement with the defendant and respondent, Charles B. Wilson. Plaintiff asks to be subrogated to the rights of G. C. G-ray, whose mortgages he paid off on the-second day of October, 1895, in the event the court finds that, the deed, exhibit “C,” was not acknowledged by Elizabeth H, as required by law. The defendant Charles B. Wilson failed to-answer, and his default was entered. The defendants Mrs. Dryden, George Reay and Mrs. George Reay, answered, disclaiming,
A motion to dismiss the appeal was made by counsel for respondents Elizabeth H. Wilson and Franc S. Brereton, argued by respective counsel, and taken under advisement by the court, which we shall now proceed to decide.
The first ground of said motion is that the notice of appeal was not served upon Charles B. Wilson, the principal defendant. The transcript contains a stipulation in which said Wilson admits that the notice of appeal was served on him on January 12, 1899, the date on which the attorneys for the other respondents admitted service of said notice of appeal, and the date on which said notice was filed by the clerk of the trial court. We think said admission is equivalent to, and is an acceptance of, service of said notice of appeal, and was made within the time provided by law for such service, and gives this court jurisdiction of said respondent. It is a well-settled rule, when a party appears voluntarily in court, he will be subject to the same jurisdiction as if brought in by regular process or notice. (2 Am. & Eng. Ency. of Law, 233.) Admission of due service of notice is a waiver of irregular service, and, in general, any action which is equivalent to acknowledgment of notice waives any defects in such notice.
The second ground of said motion is to the effect that no notice of intention to move for a new trial was ever served on respondent Charles B. Wilson. The transcript contains the admission of said Wilson that he was duly served with the notice of intention to move for a new trial on the sixteenth day of March, 1898.
The third and sixth grounds of said motion, to wit, that no statement on motion for a new trial and no transcript on appeal
The fifth ground of said motion is that no undertaking was ever filed, on either appeal, within five days after the service of the notice of appeal. The clerk of the trial court certifies that a sufficient undertaking on appeal, in due form of law, was filed in said cause on the twelfth day of January, 1899. As counsel for respondents have failed to present a copy of said undertaking to tills court, we think the certificate is sufficient, under the rule of this court governing that matter.
The seventh ground of said motion is that the transcript is not certified as required by the rules of this court and by law. To the transcript is attached the certificate of the attorneys for appellant and respondents, to the effect that the transcript is correct, and contains all of the evidence in the case. Counsel for respondents, having thus certified that the transcript is correct, will not be heard to contradict such certificate, unless it is shown that the certificate was obtained by trick, fraud or deceit, and, as a matter of fact, that such transcript is not a true and correct transcript. No such showing 'has been made or attempted. The disposition of the first seven grounds of said motion disposes of the eighth ground thereof. The motion to dismiss is denied.
It appears from the record that said Charles B. Wilson and Elizabeth H. Wilson were husband and wife at the dates of the mortgages sought to be foreclosed; that in the spring of 1896 they separated, and on the seventh day of May, 1896, the latter brought an action for divorce, and on the seventeenth day of September, 1897, a divorce was granted; that on the twenty-sixth day of August, 1896, she filed her declaration of homestead on said Fish Haven ranch; that $750 of the money paid for said ranch belonged to said Elizabeth H.; that on the thirtieth day of October, 1897, the defendants Elizabeth H. and Franc S. Brereton intermarried; that on the twenty-first day of October, 1895, the plaintiff, who had then but recently arrived from England, paid in full a large amount of - indebtedness, owing by said Charles B. Wilson, secured by mortgages and trust deeds, in
“Fish Haven, Bear Lake Co., Idaho, Snd Oct., 1895. “J. C. Rich, Esq.
“Dear Sir: Just a line to inform you 1 signed the two documents of mj free will and accord. Yours truly,
“E. H. WILSON.”
Upon the receipt of said note, J. C. Rich, certified to the due acknowledgment of the execution of said deeds as having been made by E. H. Wilson. She now attacks said deeds on the ground that her acknowledgments thereto were not taken as required by law, and upon that issue the court sustained her contention.
But it is contended by counsel for plaintiff that her signature was not necessary to the instrument conveying the How-don ranch, and that her defective acknowledgment to that in
As to the other deed which conveyed the Fish Haven ranch, a different state of facts exists. At'the time said deed was made, Charles B. Wilson and Elizabeth H. Wilson occupied and used the same as a residence, and it was a part of the common property. The evidence establishes beyond a doubt that Mrs. Wilson did not appear before the acknowledging officer; that such officer did not make her acquainted with the contents of said instrument, without the hearing of her husband. It shows that none of the requirements of section 2956 of the Revised Statutes of 1887 were complied with in taking said acknowledgment; and for that reason said instrument was not a valid conveyance or instrument.
Counsel for appellant contend that the finding of facts does not cover the material issues made by the pleadings, and for that reason does not settle the rights of the parties. The rule is well settled that the finding of facts must respond to all of the material issues, and, if it does not do so, the rights of the parties are not settled thereby. (Bosquett v. Crane, 51 Cal.
Upon a careful examination of tbe pleadings, we conclude that there are a number of material issues made by the pleadings to which the finding of facts fails to respond. The court found that a partnership existed between the plaintiff and defendant Charles B. Wilson and others. We do not think said finding is sustained by the evidence. The evidence shows that an effort to form a partnership was made by William T. Wilson, and for a time he no doubt believed that the partnership contract contained in the transcript had been properly executed and business was being done under it. But the evidence shows that he was mistaken, and had been deceived by defendant Brereton in that regard, and, as a matter of fact, no business whatever was ever done by said contemplated copartnership. The witness G. C. Gray, who had large money transactions with defendant Charles B. Wilson, covering a considerable period of time, and who was a keen, shrewd banker, took as security mortgages on nearly all, if not all, of the property in controversy as the property of said Charles B. Wilson. Mr. Gray testified that he had done a great deal of business with said Charles B. Wilson, and that in 1894 or 1895 he (C. B. Wilson) was owing him (the witness) $6,500, aud that in all his business transactions with Charles B. Wilson he had no knowledge of the existence of a partnership wherein William T. Wilson was a partner. A trust deed was given to witness Gray, as trustee, in which was included some of the property now claimed by the defendants to have belonged to the alleged partnership, and defendant Brereton testified in regard to what was said by him at the time said deed was given, as follows: “I"might have said to Mr. Senter and Mr. Bunting, when the trust deed was given to Mr. Gray, that Dr. Wilson had helped Charlie before, and I was confident he would help him again; that he had sent Charlie money to put into cattle, and I thought he would advance more money. The money that Dr. Wilson sent was just an investment. I think he expected something in return.” Had said witness known at that
In case the trial court should hold the acknowledgment of Elizabeth H. Wilson to the deed conveying the Fish Haven