Baldwin v. McDonald

• Citation: 156 P. 27,24 Wyo. 108
• Decision Date: 04 April 1916
• Docket Number: 855
• Parties: BALDWIN, ET AL., v. McDONALD
• Court: Wyoming Supreme Court

156 P. 27

24 Wyo. 108

BALDWIN, ET AL., v. McDONALD

No. 855

Supreme Court of Wyoming

April 4, 1916

ERROR to District Court, Park County; E. C. RAYMOND, Judge.

Action by Angus J. McDonald against John M. Baldwin and Virena Baldwin to foreclose as a mortgage a deed absolute on its face and a contract between the parties for a reconveyance upon payment of a loan made at the time. From a judgment for plaintiff, defendants bring error. Other material facts are stated in the opinion.

Reversed and remanded.

Charles L. Brome, H. W. Rich and Thomas M. Hyde, for plaintiffs in error.

After amendment of petition by leave granted on motion, defendants were entitled to the same time to answer or plead as is allowed for answer to an original petition. (Section 4434 Comp Stats. 1910; Neininger v. State, 50 O. S. 394 34 N.E. 633.) For that reason the court erred in setting the cause for trial on the date of the amendment of the second amended petition. Defendants were entitled to a jury trial under subdivision 4, Section 4514 Comp. Stats. 1910, as amended Laws 1915, Chapter 66, a written demand for a jury with a deposit of the proper fee filed on the same day as the answer is within time. Plaintiff's action while in form one in equity was followed by a judgment in ejectment; under the pleadings there was no authority for the rendition of a judgment in ejectment. (Sache v. Wallace, 101 Minn 169, 11 Ann. Cas. 349.) The court was limited to the issues made by the pleadings. (McFadden v. Ross, 108 Ind. 512, 8 N.E. 161.) Upon the failure of the foreclosure action, the court lost jurisdiction. (Sandoval v. Rosser, 26 S.W. 932; Dunlap v. Southerlin, 63 Tex. 38; Ritchie v. Sayer, 100 F. 520; Waldon v. Harvey, 54 W.Va. 608, 46 S.E. 603, 102 Am. St. Rep. 950; Watkins Land Mortg. Co. v. Mullin, 8 Kan.App. 705, 54 P. 921; 21 Cyc. 684.) Jurisdiction of the subject matter is essential to the validity of the judgment. (Newman v. Bullock, 25 Colo. 217, 47 P. 379; Johnson v. Johnson, 20 Colo. 143, 37 P. 898.) Plaintiff did not pray for possession of the lands, hence the court exceeded its jurisdiction. (94 Minn. 150, 102 N.W. 381; Alexander v. Thompson, 101 Minn. 5, 111 N.W. 385.)

E. E. Lonabaugh, W. L. Walls and W. E. Mullen, for defendant in error.

The amendment of plaintiff's petition was made by leave of court; after the legal time for answer or plea has expired, the fixing of time for filing further pleadings lies in the discretion of the court; Section 4434 Comp. Stats. 1910 does not apply; the application for continuance on the ground of absent witnesses was properly denied as plaintiff admitted that the absent witnesses, if present, would testify to the facts alleged in the affidavit; the application for a jury trial was properly denied, not having been filed at the time of filing of answer. (Chapter 66, Laws 1915.) Defendants were not entitled to a jury trial, the action being in equity; the admission made by defendants in open court that the deed was intended to be absolute rendered a finding that defendants retained any interest in the land unnecessary; the evidence established that no payments whatever had been made under the contract of sale. Conceding that the relief varied from the prayer of the petition is immaterial. (Sections 4591, 4592 and 4593 Comp. Stats. 1910.) Defendants were not misled by the proof; it was their own solemn admission that brought about the decree. Amendments in furtherance of justice are permissible. (Section 4437 Comp. Stats. 1910.) An amendment changing the action of foreclosure to one for the cancellation of the contract could have been allowed. (Gibson v. Morris State Bank, 140 P. 76); the sufficiency of the evidence to support the decree is not questioned; hence, an amendment to conform the pleadings to the decree should be deemed to have been made. Plaintiff was in possession of the lands involved by tenant; the contract provides that after default defendants should hold as tenants; hence, plaintiff might sustain an action to quiet his title. (Section 4964 Comp. Stats. 1910.) The court having acquired jurisdiction had authority to grant complete relief. (Bliss on Code Pleading, 2nd Ed. Sec. 166, 167 and 168.) The admission by defendants that the conveyance was intended to be absolute was apparently made for the purpose of defeating the action and requiring the commencement of a new action in ejectment; it was proper to direct the writ of possession to issue. (Oberien v. Wells, (Ill.) 45 N.E. 294; Harding v. Fuller, 30 N.E. 1055; Pitts Copper Co. v. O'Rourke, (Mont.) 141 P. 849.) Relief will be granted under a general prayer, although the prayer for special relief must be denied. (Gillet v. Clark, 9 P. 823; Davis v. Davis, 23 P. 715; Anaconda Copper Mining Co. v. Thomas, 137 P. 380; Davis v. Gibbs, 48 N.E. 120; Central Inp. Co. v. Cambria Steel Co., 210 F. 696; Maring v. Mecker, 105 N.E. 31; 16 Cyc. 225, 487; 16 Cyc. 488; Mock v. Santa Rosa, 58 P. 826; Calif. Oliver v. Blair, 8 P. 612; U. S. Health and Accident Co. v. Emerick, 103 N.E. 435.) The question of amendment was set at rest in Kuhn v. McKay, 7 Wyo. 42. A defendant will be estopped by his admissions from making a claim contrary thereto and inconsistent therewith. (Boston E. R. Co. v. Paul Boynton, 211 F. 812.)

Charles L. Brome, H. W. Rich and Thomas M. Hyde, in reply.

No notice was given that Judge Raymond would appear at Cody for a disposition of the case on June 18th, 1915. Defendants cannot deprive plaintiff of his right to additional time to answer by amending his petition by leave of court. The application for continuance was predicated upon the absence of defendants, who were misled as to the time the cause could be reached for trial, and not upon the absence of witnesses. Chapter 66 Laws 1915 clearly contemplates that an application for a jury trial made on the day of filing answer shall be any time; that defendants were entitled to a jury trial is made apparent by the order and judgment entered. The sections cited on the subject of variance do not apply where the relief granted is wholly inconsistent with the pleadings. Gibson v. Morris State Bank cited by counsel is not in point, as the question there was the sufficiency of the evidence and not the sufficiency of the pleadings. The suggestion made that the admission with reference to the character of the conveyance was made in bad faith is unwarranted; the record shows that defendants were merely seeking a reasonable opportunity to present their defense. It was error for the trial court to create a new issue and to grant relief not prayed for in the petition; the citation of Section 4964 Comp. Stats. 1910 to show that plaintiff had a right to bring an action to quiet title is immaterial for the reason that plaintiff brought no such action. The citations from Bliss on Code Pleading do not sustain counsels' position, nor do the cases of Oberien v. Wells, (Ill.), 45 N.E. 294; Hardin v. Fuller, 30 N.E. 1055; Pitts Copper Co. v. O'Rourke (Mont.), 141 P. 849, or any of the other authorities presented to sustain this decree. It is true that a general prayer for relief will be granted though there is a special prayer, which must be denied, but the general prayer must be supported by the allegations and proof. (Central Imp. Co. v. Cambria Steel Co., 210 F. 696; 16 Cyc. 225, 487 and 488; Ellis v. Hill, 44 N.E. 858; Oliver v. Blair, 8 P. 612.) McFadden v. Ross sustains our exact contention and we find no authority taking a contrary view.

POTTER, CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., being ill, did not participate in the decision.

OPINION

POTTER, CHIEF JUSTICE.

This action was brought in the District Court in Park county by Angus J. McDonald against John M. Baldwin and Virena Baldwin to foreclose as a mortgage a certain written contract between the parties for the sale to the defendants of 880 acres of land situated in said county, and to recover the amount of the purchase price and interest therein agreed to be paid and evidenced by a promissory note with three annual interest coupon notes thereto attached. Incidentally the petition contained averments in support of and a prayer for the appointment of a receiver to take possession of the lands, cultivate the same and collect and receive the rents and profits thereof, it being alleged that the defendants are in possession. An amended petition was filed alleging that for the purpose of securing the payment of the indebtedness represented by said note the defendants duly made, executed and delivered to the plaintiff their certain deed of general warranty conveying the said lands to the plaintiff, which was duly recorded in the proper office; and that as a part of the transaction and contemporaneous therewith the said parties, plaintiff and defendants, entered into the contract aforesaid, which is set out in full in the original and amended petitions. That defendants had failed and refused to make the payments as required by the contract and the note, and that the whole amount had become due, according to the terms of the contract and note, and remained unpaid, was alleged in each petition; also that certain taxes assessed and levied against the lands had been paid by the plaintiff, the defendants having failed and neglected to pay the same as required by the contract, and judgment was prayed for the amount thereof in addition to the amount due upon the note.

The original petition alleged the contract to be in truth and in fact a mortgage, and the amended petition aforesaid alleges that the deed and contract were made and entered into as security for the payment of the indebtedness represented by the said note. Upon a trial judgment was entered in favor of the plaintiff, foreclosing all the right, title and interest of the defendants in...