Atlas Realty Co. v. Rowray

• Decision Date: 09 March 1937
• Docket Number: 2003
• Citation: 65 P.2d 1122,51 Wyo. 318
• Parties: ATLAS REALTY COMPANY v. ROWRAY
• Court: Wyoming Supreme Court

65 P.2d 1122

51 Wyo. 318

ATLAS REALTY COMPANY v. ROWRAY

No. 2003

Supreme Court of Wyoming

March 9, 1937

APPEAL from the District Court, Natrona County; H. R. CHRISTMAS Judge.

Action by the Atlas Realty Company against Dickie L. Shipp, revived against Oline Rowray, as executrix, and sole legatee of the estate of first-named defendant. From a judgment for plaintiff, the executrix appeals.

Affirmed.

For the defendant and appellant, the cause was submitted on the briefs of S. E. Phelps of Casper.

Upon the trial, substitute defendant Rowray made objection to jurisdiction of the court to revive or continue case by her special appearance, demurrer, motion to dismiss revivor proceedings, by her objections and motions at the opening and during the trial, upon the following grounds: Insufficiency of applications in matters of substance as to interest or liability of legatee. Sec. 89-1004, R. S., 1 C. J. 231; State v. Dist. Court, 33 Wyo. 281. No allegation of acceptance or performance of conditions precedent in deed under which plaintiff bases its claim to title and possession. Sec. 89-1004; 49 C. J. 145. No allegation of presentation of claim. Secs. 88-3101-3111, R. S. 1931; O'Keefe v. Foster, (Wyo.) 40 P. 525; Delfelder v. Farmers Bank, (Wyo.) 269 P. 418; State v. Dist. Ct. , (Wyo.) 238 P. 545; Smith v Black, (Mo.) 132 S.W. 1129. Must show claim not barred. Sec. 88-3109, R. S. 1931; O'Keefe v. Foster, supra. No showing that defendant Shipp died within year provided for revivor by conditional order. 1 C. J. 241; Bailey Jurisdiction, Sec. 29; Carter v. Jennings, 24 O. St 182; Boyes v. Masters, (Okla.) 114 P. 710; Steinbach v. Murphy, (Kan.) 78 P. 823. No allegation of consent, and applications made eighteen months after death of defendant Shipp. Sec. 89-1238; 15 C. J. 802. Where defendant dies during pendency of action, court is prohibited from rendering judgment unless presentation of claim be pleaded and proven. Sec. 88-3111, R. S. 1931; Delfelder v. Farmers' St. Bank, supra; O'Keefe v. Foster, supra; State v. Dist. Ct., supra; Smith v. Black, supra; 15 C. J. 802, Sec. 101. The order sought would require executrix to litigate a claim not revived and continued as required by law. Sec. 88-3101, 3103, 3109, 3111, R. S. 1931; 15 C. J. 802, Sec. 101; McGrath v. Carroll, (Cal.) 42 P. 466. The deed, Pla. Ex. A. was erroneously admitted in evidence, because its execution was not proven. Boswell v. First Nat. Bank, (Wyo.) 92 P. 624. It was not admissible under the provisions of Sec. 97-112, R. S. 1931, because not witnessed as to the signing by D. L. Shipp, owner of the property involved herein. Secs. 97-112 and 114, R. S. 1931; State v. Cowhick, (Wyo.) 60 P. 265; Carson v. Thompson, (Wash.) 38 P. 1116; Denn v. Reid, 9 L.Ed. 519. Because the original deed was not produced by plaintiff but from the possession of the Clerk of Court as a part of the records of the court and used without the affidavit required by Sec. 97-112, R. S. 1931. Because the witness Deputy County Clerk did not produce or testify from or concerning any record in the County Clerk's office relating to said deed but from the original instrument to which he was not a witness nor was he qualified as to personal knowledge of the execution thereof. 70 C. J. 83, Sec. 111. Because plaintiff did not plead or prove performance of the condition precedent contained in the deed. Sec. 89-1004; 13 C. J. 630, 385; 18 C. J. 364, 369; Kelley v. Board of Com'rs., (Wyo.) 159 P. 1086; Soldberg v. Crockett, (Nev.) 30 P. 626; Tel. & Tel. v. City, (Ind.) 94 N.E. 714. Title not having vested in plaintiff, the deed conferred no right to possession in plaintiff. 18 C. J. 364, 368; Sec. 89-1037, R. S. 1931; Lusk Lumber Co. v. Independent Pro. Con., 35 Wyo. 381; Soldberg v. Crockett, (Nev.) 30 P. 826; Rollins v. Denver Club, (Colo.) 96 P. 188; O'Keefe v. Foster, (Wyo.) 40 P. 525. The trial judge departed from his office of impartial arbiter of rights in the trial of the case and assumed the position of co-counsel to plaintiff, by indicating to plaintiff's counsel the witness plaintiff should call and the nature of the testimony to be elicited from the witness, to prejudice of defendant. 33 C. J. 962; Bartley v. State, (Nebr.) 75 N.W. 832; Omaha Brew. Assn. v. Bullnheimer, (Nebr.) 78 N.W. 728; McGary v. Steele, (Ida.) 119 P. 448. Trial judge's duty to consider and act upon jurisdictional questions. 33 C. J. 692; 15 C. J. 802; Calkins v. Wyoming Coal Mining Co., (Wyo.) 171 P. 267. On defendant's motion for directed verdict it was error for trial court not to grant motion based on jurisdictional questions involved in defendant's demurrer and motion to dismiss proceedings, also because plaintiff failed to prove its asserted title and right to possession, prior possession, and that defendant unlawfully keeps it out of possession. Sec. 89-1239, 88-3111, R. S. 1931; 19 C. J. 1039; First Nat. Bank v. Ford, (Wyo.) 216 P. 691; Calkins v. Coal Mining Company, (Wyo.) 171 P. 265; Secs. 89-3903, 3904, R. S. 1931; Allen v. Houn, (Wyo.) 219 P. 573; Anderson v. Rasmussen, 5 Wyo. 44; Iba v. Central Assn. (Wyo.) 40 P. 527. Where a witness testifies to a part of the details pertaining to a transaction he should be permitted to testify to the remainder. 70 C. J. 632. It was error where defendant laid the foundation for and offered certain evidence showing plaintiff's non-acceptance and non-performance of the conditions precedent contained in plaintiff's Exhibit A, for the trial judge to exclude it when admissible under defendant's general denial. Sec. 89-3904, R. S. 1931; 13 C. J. 736, Sec. 874; Iba v. Central Ass'n., supra; Tel. & Tel. Co. v. City, (Ind.) supra. Defendant had no opportunity until during the trial to know such evidence would be needed or that it would not be admitted under her general denial, thereby depriving defendant of a fair trial. 64 C. J. 123; Jacobs v. Pacific Lumber Co., (Ore.) 297 P. 848; Rock Springs Nat. Bank v. Luman, (Wyo.) 38 P. 678. The court was without jurisdiction and acted in excess of its jurisdiction by the proceedings to revive and continue the action. Sec. 89-1004, 1037, 1238, 1239, Sec. 88-3109, 3111, R. S. 1931; O'Keefe v. Foster, (Wyo.) 40 P. 525; 1 C. J. 231, 241; State v. Dist. Court, (Wyo.) 238 P. 545; Hall Oil Co. v. Barquin, (Wyo.) 237 P. 255. Paper title, and title by possession continued in D. L. Shipp to her death March 21, 1934. 21 C. J. 929; 19 C. J. 1035, 1140; Freeman v. Crout, 1 Wyo. 364; Allen v. Houn, 30 Wyo. 186; Newell on Ejectment, page 433. Plaintiff failed to prove a valid legal title giving it a right to possession acquired prior to starting this action. 19 C. J. 1035, 1075; Pregal v. Stickney, 34 Wyo. 324; McElroy v. Moose, (Okla.) 151 P. 857. The legal title and the title by possession, and each thereof, being in the defendant, D. L. Shipp, upon her death vested in the devisee (not legatee) of said decedent, and substitute defendant Oline Rowray became entitled to the possession thereof as executrix by operation of law. Secs. 88-102, 2309, 2501, W. R. S. 31. By reason of the foregoing the findings and judgment, and each thereof, are contrary to the evidence and the law. The findings and judgment, and each thereof, are outside of the issues made by the pleadings and beyond the scope thereof. 21 C. J. 670; 33 C. J. 1139; Town of Newcastle v. Smith, (Wyo.) 205 P. 302. The court abused its discretion and exceeded its authority in not dismissing the action. The judgment is against the manifest weight of the evidence and not sustained by sufficient evidence. Plaintiff's Exhibit A was not admissible, not being executed in accordance with the statutes, Secs. 97-112, 114, R. S. 1931. State v. Cowhick, (Wyo.) 60 P. 265. Defendant Shipp had not parted with the title when the deed came into possession of plaintiff. 21 C. J. 929; Freeman v. Crout, 1 Wyo. 364; Allen v. Houn, (Wyo.) 219 P. 573; Newell on Ejectment, Sec. 433. The general and special findings and judgment are outside the issues in the case. Town of Newcastle v. Smith, 28 Wyo. 371. Plaintiff did not prove a valid title. 19 C. J. 1035, 1075. Plaintiff did not prove that it had been kept out of possession unlawfully. Pregal v. Stickney, (Wyo.) 243 P. 392. The deed without proof of the performance of the conditions imposed thereby, gave plaintiff no right of possession. McElroy v. Moose, (Okla.) 151 P. 857; Newell on Ejectment, 433; Bentley v. Jenne, (Wyo.) 236 P. 509. The findings, decision and judgment should have been for defendant and against the plaintiff.

For the plaintiff and respondent, the cause was submitted on the brief of Fred W. Layman of Casper.

The appellant's contention is that the revivor of the action was governed by Sec. 89-1232 and succeeding sections, after complying with the probate code. No reference is made by appellant to Section 89-1231, W. R. S. 1931, under which the order of revivor was made. The annotations appearing under all of these sections support the order of the court allowing the revivor. Other pertinent sections are Secs. 89-1238 and 1239. The supplemental petition designated as first amended petition for revivor conforms to Section 89-1231, W. R. S 1931. The petition must be verified. Section 89-1048. A successor in interest is one who succeeds to the estate of a party at death. Smith v. Harrington, 3 Wyo. 503. Appellant's argument about the words "heirs and devisees" does not apply to Section 89-1231. In view of this section and the record, we contend that the court committed no error. It is complained that the court erred in overruling appellant's objections to the introduction of evidence, because the amended petition for revivor was insufficient and the action for revivor was not perfected in time; also that the court should have denied the petition for revivor, because the appellee...