Campbell v. Kerns

70 P. 108, 13 Idaho 287, 1907 Ida. LEXIS 48

Opinions

SULLIVAN, J.

This action was brought to foreclose a mortgage given to secure the payment of eight promissory notes for $500 each, on lots 20, 22 and 24, in block 6 of Wallace, Idaho. It is alleged that seven of said promissory notes with interest have not been paid, and prays for a judgment and decree for the foreclosure of the mortgage and the sale of said premises. The defendant answered admitting the execution and nonpayment of said seven notes, but denied any indebtedness to the plaintiff, Mrs. Grace M. Campbell, and alleges that the notes were delivered to A. B. Campbell, the husband of plaintiff, and that the notes and mortgage were made, executed and delivered in the name of Grace M. Campbell at the request and for the use and benefit of said A. B.» Campbell, and that A. B. Campbell is the real party in interest as plaintiff, and denies that Grace M. Campbell is now the owner or holder of said notes and mortgage, or that she has ever been.

As a separate defense, it is alleged that the said notes and mortgage were given by defendant to A. B. Campbell in part payment for said lots, which were sold and delivered to defendant by said A. B. Campbell and wife; that the premises were community property of said A. B. Campbell and Grace M. Campbell, and that the action does not affect the separate property of Grace M. Campbell, and that said A. B. Campbell is a necessary and proper party to the action and the real party in interest; and by way of counterclaim, the defendant alleged that A. B. Campbell and Grace M. Camp-, bell are husband and wife, and the action concerns their community property; that on August 7, 1903, said A. B. Campbell was justly indebted to the defendant in the sum of $1,500 for legal services rendered and performed by the defendant for said Campbell between September 23, 1899, and August 7, 1903, and that no part has ever been paid, and that the action could not be fully and fairly tried without the presence in court of said A. B. Campbell.

The answer prayed that A. B. Campbell be made a party, and for judgment against him for $1,500, and that that amount be set off against the amount found to be due on the said promissory notes.

The complaint was filed April 14, 1904, and the answer on June 19, 1905. The ease was tried by the court without a jury, and judgment and decree of foreclosure were entered against the defendant, from which judgment‘this appeal is taken.

Four errors are assigned as follows: 1. The court erred in denying defendant’s motion for a continuance; 2. In denying defendant’s motion to make A. B. Campbell a party; 3. In rendering judgment for the plaintiff; 4. In striking from defendant’s proposed bill of exceptions the specifications of particulars in which the evidence is insufficient to sustain the decision.

It appears from the record that the appellant made a motion for a continuance of the case to the next term of the court. It is contended by counsel for appellant that the cause was called for trial during the temporary absence of the attorney for the defendant, without having been previously set for trial, and without notice or knowledge to the defendant or his counsel.

There is some controversy as to just what occurred in regard to the setting and trial of this case. It seems that the case was called for trial on Saturday, July 1, 1905, at 2 o’clock P. M., and the court inquired of the attorneys whether they were ready to go to trial. The attorney for the plaintiff signified that he was, and the court thereupon stated that the case had been set for several days. The defendant thereupon inquired whether the record showed that the case had been set, and the clerk replied that the cases were set to follow each other on the calendar. The court thereupon stated as follows: “The court announced on Monday and again on Wednesday that this case would be tried at this term.”

It seems that the attorney for the defendant was not present, and was in Boise City attending the United States district court there, and the defendant thereupon requested time to be given him to find whether his attorney had returned home, which was done. He thereafter reported to the court that his attorney had not returned, and stated that he would file an affidavit for a continuance of the case until he did return. The court thereupon announced that this was the last case on the calendar, and the court expected to adjourn that day. Thereupon the defendant stated that he was willing to try the case at chambers, and the attorney for the plaintiff would not consent. The court thereupon announced that if the defendant and counsel for the plaintiff could not stipulate to try the case at chambers without any reservation, the court would have to act, and stated that he would give the defendant until 3 o’clock that day to make a showing, and the court took a recess. After the convening of the court, the defendant filed his affidavit for a continuance and submitted the same to the court. The court thereupon inquired of the clerk whether there was not some record showing that this case was set for trial. The clerk replied as follows: “None of the equity cases were set; that is, it is not a part of the record. All of the other cases were set to fol low each other as they appear on the calendar.” The court then stated: “The court announced on last Monday and also on Wednesday that these cases would be for trial and mentioned this one in particular,” and the judge stated that he remembered that the defendant was in court. The defendant thereupon replied that he was in court when this case was spoken of, and mentioned at that time that the preliminary motion ought to be disposed of before the case was called for trial; whereupon the attorney for the plaintiff stated that there was nothing to dispose of — that there is a complaint here and an answer and a counterclaim, and that there was no motion to be determined. The court thereupon inquired of the defendant whether he could not secure another attorney. The defendant replied that his attorney was absent and his office locked up, and he could not get at the papers, and after some further colloquy between the court, defendant, and plaintiff’s attorney, the latter refused to try the case at chambers. The court thereupon announced that the case would be set for 10 o’clock the following Monday morning and that if defendant’s counsel was not present, he would have to take the consequences; that it would be tried at that time, and thereupon set the case for Monday at 10 o’clock, July 3d. This occurred on Saturday, July 1st.

On July 3d,'the case was called and the court inquired whether the parties were ready to proceed. Counsel for plaintiff signified that he was, and the defendant replied that his counsel had not returned, and that he had filed a motion for a continuance until the attorney could be present, and the motion and affidavit were read by the defendant. The court thereupon inquired whether there was another action pending to recover this counterclaim of $1,500, and the attorney for the plaintiff responded that there was another action involving the same fees against Campbell, Tlinn and Anderson. The court thereupon denied the motion for a continuance and proceeded with the trial. The defendant thereupon presented a motion to make A. B. Campbell a party plaintiff of this action. Counsel for the plaintiff objected upon the ground that the motion was pre maturely made; that some proof must be offered under their pleadings, showing that Mr. Campbell is a party in interest. The court thereupon denied the motion at that time.

Witnesses were called in behalf of the plaintiff and sworn and testified in regard to the matter. Certain papers and documents were introduced in evidence. After the plaintiff had inti’oduced oral and documentary evidence, she rested, whereupon defendant offered in evidence certain documentary and oral evidence. He introduced in evidence a deed from J. L. Dunn et al., trustees of the town of Wallace, to. A. B. Campbell, for said lots 20, 22 and 24 in block 6, and other property in the town of Wallace, dated July 26, 1892. The recorder of said county was examined orally, and stated that he had examined the records of Shoshone county up to that date to ascertain if A. B. Campbell had sold or conveyed those lots to Mrs. Campbell, and stated that there was no record of any such transfer. On cross-examination, counsel for the plaintiff requested the auditor to send for Deed Becords W, U and X of said county, and stated that he expected to prove that this title was originally taken in Mrs. Campbell; that it was through mistake that it was conveyed to A. B. Campbell by the town trustees; that it was not his property and never was his property. Thereupon the defendant renewed his motion to make A. B. Campbell a party plaintiff in the case, for the reason that he was the real party in interest, and the court thereupon stated that he was not satisfied on that point, and the court further stated that he was pretty well satisfied that Campbell was not a party in interest. After putting in some further evidence, the defendant renewed his motion to make A. B. Campbell a party plaintiff in the suit on the ground that he was the real party in interest, that he was the real plaintiff, and that the property in question was acquired after the marriage and was community property. The court thereupon denied the motion. After some further evidence was introduced, the case was taken under advisement and judgment and decree were entered in favor of the plaintiff and against the de fendant, decreeing the foreclosure of the mortgage and the sale of the property to satisfy the judgment.

The first error assigned is the action of the court in denying defendant’s motion for a continuance. ‘As that question is largely in the legal discretion of the court, we cannot say from the facts as they appear in the record that the court erred in denying said motion.

The next assignment is the action of the court in denying defendant’s motion to make A. B. Campbell a party ,.plaintiff. The averments of the answer are amply sufficient to show the necessity of making A. B. Campbell a party plaintiff. It appears from the testimony of A. B. Campbell and his wife that the lots in question were conveyed to the plaintiff, Mrs. Grace M. Campbell, on the nineteenth day of May, 1890, by the Wallace Townsite Company of Shoshone county, a corporation organized under the laws of Idaho Territory. It is a part of the legal history of the state that said townsite company never had any title to lots it conveyed to Mrs. Campbell; that at the time it conveyed said lots to her the title thereof was in the United States, and was thereafter conveyed by the United States to the trustees of the town of Wallace and by them conveyed to A. B. Campbell. Mr. Campbell testified that he originally bought said lots for his wife and gave them to her. Thereafter said townsite was entered for the benefit of the inhabitants of said town, and a United States patent therefor issued to the trustees on June 11, 1892, and on July 26, 1892, the trustees conveyed said lots to A. B. Campbell, and on April 24, 1902, Mrs. Grace M. Campbell and A. B. Campbell, her husband, conveyed them to the defendant. Thus, it- will be observed that the title to said lots stood in the name of A. .B. Campbell from July 26, 1892, to April 24, 1902, a period of nearly ten years.

Upon that state of facts, the defendant renewed his motion to have A. B. Campbell made a party plaintiff, contending that the property was community property, and that the p.1 aim he had against A. B. Campbell was a setoff against whatever was due on said notes. The court denied the ap plication, and it is contended by counsel for respondent that the evidence clearly shows that the property belonged to Mrs. Grace M. Campbell and was not community property. While the deed of the trustees of the city of Wallace conveying the same to A. B. Campbell would indicate that the property belonged to him, he and his wife both testified that it did not — that it belonged to his wife, and that the taking of the said deed in the name of A. B. Campbell was simply a mistake. But that evidence is wholly immaterial under the ruling of the court. The court refused to have A. B. Campbell brought in as a party plaintiff. That being so, the court shut out of consideration the allegation of the answer that said property was community property, and evidence on that issue was in no wise pertinent to the issues made by the pleadings. The court having declined to make A. B. Campbell a party plaintiff, it was useless, incompetent, irrelevant and immaterial for the defendant to offer any evidence of the fact that said property was community property. It nowhere appears in the record that the defendant introduced all of his evidence on that issue, and it was not necessary or proper for him to do so after the court had refused to make A. B. Campbell a party plaintiff.

It was not the correct practice to require a defendant, who has averred in his answer sufficient to show that the action cannot be fully determined without bringing in other parties plaintiff, to try the case before his motion to make other parties plaintiff is granted by the court; for if that was required, it would necessitate a retrial of the ease after other parties were brought in. When the court denied the motion of the defendant to make A. B. Campbell a party plaintiff,- it did not become incumbent upon the defendant to introduce his evidence upon the issue tendered in his answer or cross-complaint showing that A. B. Campbell was the real party in interest, nor was it necessary that he prove his counterclaim against A. B. Campbell after the court had refused to have him brought in as a plaintiff. The defendant made no counterclaim against Mrs. Campbell, and had he proved one, it would have availed him nothing — it would not have been a proper offset against her, as said counterclaim is against A. B. Campbell.

The court erred in refusing to bring in A. B. Campbell as a party plaintiff. The judgment must be reversed and a new trial granted, and the case remanded with instructions to grant said motion to have A. B. Campbell brought in as a party plaintiff.

Costs are awarded to the appellant.

Ailshie, C. J., concurs.