216 F.2d 816 (9th Cir. 1954), 14192, Sidebotham v. Robison
|Citation:||216 F.2d 816|
|Party Name:||Helene Marceau SIDEBOTHAM, Appellant, v. W. L. ROBISON, Administrator of the Estate of Robert Sidebotham, Deceased, and Robert Sidebotham and James Sidebotham, Appellees.|
|Case Date:||October 18, 1954|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Rehearing Denied Jan. 12, 1955.
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Manuel Ruiz, Jr., Los Angeles, Cal., for appellant.
Delger Trowbridge, San Rafael, Cal., Frank J. Fontes, San Francisco, Cal., for appellee Robison.
Theodore M. Monell, San Francisco, Cal., for appellees Sidebotham.
Before HEALY and POPE, Circuit Judges, and YANKWICH, District Judge.
YANKWICH, District Judge.
On October 10, 1950, the appellant filed an action in the Superior Court of the State of California in and for the City
and County of San Francisco, in which she sued Phil C. Katz, the Administrator of the Estate of Robert Sidebotham, deceased, and Robert Sidebotham and James Sidebotham, who claim to be heirs at law, to quiet title, for an accounting and injunction. Phil C. Katz was the Public Administrator, who has been replaced in office by W. L. Robison.
In the first cause of action, the appellant alleged that she was married to Sidebotham in a ceremonial marriage on May 30, 1928, and was divorced on November 14, 1946, the marriage being 'dissolved by a court of competent jurisdiction', that the matrimonial domicile of the appellant and decedent 'was at all times, the State of California'. This count of the complaint stated that, during the marriage, the deceased accumulated real and personal property within the State of California and elsewhere having a total value in excess of $100, 000.00, that this was community property of the marriage in which she had a present and existing interest and the right to immediate possession by reason of survivorship of the property. By reason of the possession and control of the property and assets by them, appellees are in a position to divert the property to her injury.
In a second cause of action, the appellant alleged generally, as a common count, that she was the owner of and entitled to the possession of the property, both real and personal, acquired by Sidebotham between January 1, 1927 and November 14, 1946, as well as the increase thereof since that date, including the property which the decedent possessed at the time of his death. She asked for a writ or order requiring the defendants to account to her for all the moneys and the property, for the appointment of a receiver and that she be declared to be the outright owner of one-half of the property and entitled to the ownership, possession and control of the other onehalf by survivorship, subject to proceedings of administration. An amendment to this complaint was filed on February 6, 1953, before demurrer or answer, which eliminated the allegation of a common law marriage in New York on January 1, 1927, leaving the date of the ceremonial marriage as May 30, 1928, at Tiajuana, Lower California, Mexico.
The cause was removed to the federal court because of diversity of citizenship. 28 U.S.C. § 1441. On May 27, 1953, a motion of the appellees to dismiss the action was granted upon the ground 'that the action on its face is barred by the statute of limitations', the appellant being given leave to amend.
In her second amended complaint, appellant alleged in the first cause of action that on the death of Robert Sidebotham on December 21, 1951, she and he were tenants in common of certain real and personal property, each being the owner of an undivided one-half of the property, that the administrator has repudiated the co-tenancy and refused to her the right of possession and beneficial enjoyment of her share as well as the right to an accounting as to the rents and profits pertaining to the property. She stated the capacity of Katz as Administrator of the Estate and the defendants Robert Sidebotham and James Sidebotham as claiming the Estate as the heirs at law.
In the second cause of action which incorporated the allegations of the first, she averred that she was, at the times mentioned, the owner and entitled to the possession of an undivided 50% of the assets, property, both real and personal, as well as the fruits and increase thereof, which the decedent possessed at the time of his demise.
Motions made to dismiss this complaint were denied on July 24, 1953.
The plaintiff, on August 6, 1953, voluntarily filed a third amended complaint. She incorporated the two causes of action included in her second amended complaint and, by way of a third cause of action, she alleged in substance the following facts:
Since the death of Robert Sidebotham on December 21, 1951, she discovered facts constituting fraud against her from
which she seeks relief, that she was married to the decedent on January 1, 1927, and divorced him on November 14, 1946, in the State of Nevada by 'substituted service', that in the year 1938, and, at the time that Robert Sidebotham was sentenced to jail for failure to report a real estate subdividing scheme to the State Real Estate Commission, he borrowed the sum of $100.00 from her and told her that as soon as he made some money he would pay her back. She saw him thereafter until the middle of the year 1940, and he always informed her he was broke and would occasionally give her rent and food money; that he never informed her that he made any money, never paid back the amount borrowed and she verily believed that he continued broke.
At the time of the death of Robert Sidebotham, certain assets were found in his possession under various aliases such as Towner, Thompson, Stone, smith, Jackson, Hutton, Fenton, Brown, Anderson, Sideboth, and several combinations of the name Sidebotham. This property is the property which passed into the possession of the Administrator Phil C. Katz and his successor W. L. Robison. One of the reasons and purposes which he had in hiding his assets was to prevent appellant in sharing in acquests and gains during her marriage to him and cheat her of her interest in it.
After 1941, he refused to cohabit with her and remained away from her. She did not know of his whereabouts and, in November, 1946, she secured a divorce from him in the State of Nevada on 'substituted service'.
When questioned by her attorney whether there was any community property, she answered that she did not know. Her attorney unbeknownst to her framed a formal pleading wherein it was stated that there 'was no community property'. She did not read it and at the hearing of the action wherein a divorce was granted, she did not testify concerning the existence or non-existence of property of the marriage.
The complaint contained the following additional allegations, which are reproduced in their entirety:
'That said Court did not dispose of the property rights of the parties, nor did it make an order concerning property, and there was no evidence submitted to the Court concerning the same, but the Court found nevertheless that the allegations of the complaint were true and sustained by the evidence. That the finding aforesaid was arbitrary and capricious, and the Court lacked the power and jurisdiction accordingly, to make the same, since there was no evidence submitted on the subject whatsoever.
'That plaintiff seeks relief from her mistake and the extoppel which would otherwise apply, but for said mistake, in that an adjudication that there was no community property, under the facts hereinabove set forth, would result in great and irreparable damage and be contrary to all principles of justice that the presumption of law to the effect that Robert Sidebotham admitted all the facts which were pleaded in the Nevada Judgment, by reason of lack of personal service upon him, is a fiction which this Court of Equity, ought weigh against the misconduct of said Robert Sidebotham, in having actively concealed assets and property as hereinabove specified, which under the law, plaintiff had an equal and vested interest with him. That plaintiff first discovered that she had signed the formal pleading containing the sentence that there was no community property, referred to in paragraph VI hereinabove, after the institution of this case at bar, when her attorney Manuel Ruiz, Jr., informed her of the same, on July 13, 1953, said attorney having been on the same day so advised by the attorneys for the defendants.'
In this complaint, she sought only half of the property, and same general equitable relief asked in the previous complaints, and, in addition, that she be relieved of any estoppel or mistake proximately
resulting from the fraudulent conduct of concealment of Robert Sidebotham concerning her property rights.
The appellees filed motions to dismiss, in which they attacked the sufficiency of the entire complaint upon the ground that it failed to state facts sufficient to constitute a claim or cause of action, Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C., and that the actions were barred by Sections 337, 338 and 343 of the California Code of Civil Procedure, and that it affirmatively appears that all the causes of actions are also barred by laches. 1
The court granted the motions to dismiss on November 5, 1953, and an order and decree was entered on that day dismissing the action 'without leave to amend.'
The appeal is from the order and decree. The basic contention is that the court erred in dismissing the complaint for failure to state a claim without further leave to amend. The appellant takes the view that the...
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