Browning v. Potter

• Decision Date: 24 May 1954
• Docket Number: No. 17120,17120
• Citation: 271 P.2d 418,129 Colo. 448
• Parties: BROWNING et al. v. POTTER.
• Court: Colorado Supreme Court

Page 418

271 P.2d 418

129 Colo. 448

BROWNING et al. v. POTTER.

No. 17120.

Supreme Court of Colorado, En Banc.

May 24, 1954.

Rehearing Denied June 14, 1954.

George W. Harper, Denver, Harry F. Claussen, Glenwood Springs, Hornbein & Hornbein, Denver, for plaintiffs in error.

Akolt, Campbell, Turnquist & Shepherd, John P. Akolt, John P. Akolt, Jr., Wallis L. Campbell, Denver, for defendant in error.

KNAUSS, Justice.

On March 7, 1952 Delos D. Potter, defendant in error, hereinafter referred to as Potter, filed his complaint under Rule 105, R.C.P.Colo. against fifty-one defendants, in addition to 'unknown parties', seeking a decree to adjudicate the rights and interests of all parties in and to certain unpatented mining locations and to quiet Potter's title thereto. Potter alleged that he was the sole owner of said claims, subject only to the title of the United States.

Among the defendants in said action were Carl C. Browning, Carl C. Browning as executor of the estate of William C. Browning, deceased, Carl C. Browning as executor de bonis non of the estate of William C. Browning, deceased, Carl C. Browning as trustee under the Will of William C. Browning, deceased, John B. Ewing, John B. Ewing as trustee under the Will of William C. Browning, deceased, Violet B. Ewing, Flavel H. Browning, Edna B. Heminger and Doris O. Howe Gamble. Of the defendants just named the following appear as plaintiffs in error: Carl C. Browning, also known as C. C. Browning, Flavel H. Browning, Violet B. Ewing, Edna B. Heminger and Doris O. Howe Gamble. Andrew Wysowatcky, as administrator d. b. n. c. t. a., as successor testamentary trustee of the estate of William C. Browning, deceased, also appears as a plaintiff in error.

On March 28, 1953 said Wysowatcky filed in said cause a motion to substitute him as administrator d. b. n. of the estate of William C. Browning in the place of Carl C. Browning, alleging that on March 3, 1953 by order of the Denver County court he was so appointed to succeed Carl C. Browning who had on that date been removed from his office and trust. He also filed a motion to vacate the default against the representative of the estate, as will more fully appear hereafter. This motion was denied.

Carl C. Browning individually and as executor of the estate of William C. Browning, deceased; Carl C. Browning as executor d. b. n. of the estate and Carl C. Browning as trustee under the Will of Browning, were personally served with process in said action in Denver, Colorado on March 14, 1952. Doris O. Howe Gamble was personally served with summons in Jefferson County, Colorado, on March 19, 1952. Service of summons was had upon non-resident defendants in said action, including John B. Ewing; John B. Ewing as trustee under the Will of William C. Browning, deceased; Violet B. Ewing; Flavel H. Browning and Edna B. Heminger, by publication thereof, the last publication of said summons being on April 24, 1952. Copies of the process in said action were mailed to each of the non-resident defendants, as by law provided.

On April 11, 1952, default was entered by the clerk of the court against (among others) the defendants Carl C. Browning, also known as C. C. Browning, Carl C. Browning as executor of the Estate of William C. Browning, deceased, Carl C Browning as Executor d. b. n. of the estate of William C. Browning, and Carl C. Browning as Trustee under the Will of William C. Browning. On June 5, 1952 default was entered against Doris O. Howe Gamble, and against all other defendants in said action not included in the order of default of April 11, 1952. Among those so declared in default were the remaining plaintiffs in error.

On behalf of 'the heirs of William C. Browning deceased' a motion to vacate and set aside the defaults was filed. The trial court granted the 'Browning heirs' further time within which to make a further showing and tender an answer to be filed in the event said defaults were vacated. On June 25, 1952 a further showing was filed, together with a tendered answer on behalf of Violet B. Ewing, Flavel H. Browning, Edna B. Heminger and John B. Ewing as Trustee under the Will of William C. Browning, deceased. In this tendered answer these parties set forth a deed of trust on substantially all of the land described in the complaint dated June 2, 1935, and allegedly executed by one Joseph Bellis, to secure an indebtedness represented by two writings, claimed by plaintiffs in error to be promissory notes. The answering defendants asserted they were the owners of one of said notes. The prayer of their answer was that the Potter title be held subject to this deed of trust. Submitted with the motion to vacate the defaults were certain affidavits. Counsel for Potter filed counter affidavits.

On October 27, 1952 the trial court overruled the motion to vacate the defaults, finding: 'That said defendant Browning heirs have not presented or established sufficient facts constituting excusable neglect upon their part in failing to appear in this action and plead to the complaint prior to the entry of the defaults against them to justify this Court to set aside and vacate said defaults. That the Answers tendered for filing in behalf of said Browning heirs do not set forth a meritorious defense or claim by or in behalf of said heirs, or any of them, upon which any relief could be granted to said defendants in this action.'

On October 30, 1952 the trial court entered its decree in favor of Potter on his complaint. Among the findings in said decree the trial court determined that Joseph Bellis at the time of the execution of the alleged notes and deed of trust 'had no right, title or interest in fact or in law in the above described mining claims, or any thereof' and that said instruments were 'null and void and vested no right, title, interest in or to said placer mining claims, or lien on same. That said deed of trust constitutes a cloud upon Plaintiff's title * * * which cloud should be removed by decree of this court.' It was so ordered and decreed.

From the ruling denying their motion to vacate the defaults, the plaintiffs in error bring the case here by writ of error.

It appears that on June 29, 1935 Joseph Bellis executed two contracts for $20,000 each, one payable to W. C. Browning and the other to Ella W. Sloan. These contracts were payable on or before July 1, 1940 and secured by a deed of trust recorded October 22, 1935, on some fifty-two mining claims in Garfield County, Colorado. It also appears that the Sloan contract was in the hands of Barney L. Whatley, who, claiming to be the owner thereof, instituted action for foreclosure of the deed of trust through his counsel, Jean S. Breitenstein. In said action, plaintiffs in error, together with others, were named as defendants and served with process. Plaintiffs in error attempted to make an arrangement with counsel for Whatley to represent them in said foreclosure proceeding and present their claim against said property. Mr. Breitenstein prepared a written contract between himself and the Brownings, who claimed under the other note above mentioned, whereby for a stipulated fee he would represent them in said action, and submitted the contract to plaintiffs in error for signature. For reasons not appearing in the record, plaintiffs in error did not execute and deliver the contract and Mr. Breitenstein did not represent them. Later, when the instant action was commenced, Mr. Breitenstein verbally, and in writing, notified the parties that he was not representing them or any of them in either action, and that he was not counsel in the suit of Potter v. Browning, et al. Whatley was not a party to the Potter suit to quiet title. It conclusively appears from the record herein that any conversation between Mr. Breitenstein and plaintiffs in error, or their representatives, only concerned the Whatley suit, and had nothing to do with the Potter action which was later instituted.

William C. Browning died August 4, 1941, leaving a Last Will and Testament which was duly admitted to probate and record on September 2, 1941. Carl C. Browning and John B. Ewing were named therein as Executors and Trustees for Flavel H. Browning, Carl C. Browning, Violet B. Ewing, Edna B. Heminger and Doris O. Howe (now Doris O. Howe Gamble). The Browning estate was closed in April, 1942.

In September, 1948 Carl C. Browning filed in the County Court a petition to reopen the Browning estate, alleging that there were newly discovered assets belonging to the estate, which assets were the so-called note and trust deed set forth in the answers of the Browning heirs. The County Court on the same day this petition was filed reopened the estate and appointed Carl C. Browning as executor d. b. n. of said estate. He continued to serve as such until March 3, 1953 on which date in an ex parte proceeding the Denver County Court, in which the Browning estate was pending, issued its...