Burton v. Bayly, 5694

CourtIdaho Supreme Court
Writing for the CourtVARIAN, J.
Citation50 Idaho 707,300 P. 359
Decision Date25 May 1931
Docket Number5694
PartiesCHARLES E. BURTON, Appellant, v. VIOLET BAYLY, Formerly VIOLET BURTON, Respondent

300 P. 359

50 Idaho 707

CHARLES E. BURTON, Appellant,
v.

VIOLET BAYLY, Formerly VIOLET BURTON, Respondent

No. 5694

Supreme Court of Idaho

May 25, 1931


APPEAL AND ERROR-ASSIGNMENTS OF ERROR, SUFFICIENCY OF-ESTOPPEL BY RECORD, HOW PLEADED.

1. General assignments specifying that court erred, or that evidence was insufficient to sustain findings, verdict, or judgment, without pointing out particulars of insufficiency, are too indefinite to merit consideration on appeal.

2. Trial court's fact finding must stand, where there is competent evidence sustaining it.

3. To render estoppel by record available, it must be specially pleaded where there is opportunity to plead.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to quiet title. Judgment for defendant. Plaintiff appeals. Affirmed.

Judgment affirmed. Costs to respondent.

M. H. Eustace and S. Ben Dunlap, for Appellant.

A divorce and a division of community property are inseparable parts of a single cause of action, and if a decree of divorce makes no division, the decree is nevertheless res judicata and a bar to a suit for division. (Barnett v. Barnett, 9 N.M. 250, 50 P. 337; Beals v. Ares, 25 N.M. 459, 185 P. 780.)

Respondent is estopped from asserting any claim to any of the property of appellant.

T. A. Walters, for Respondent.

Appellant's assignments of errors, one to twelve inclusive, are insufficient in that each of them fails to make a direct enumeration of any error or to point out wherein the evidence is insufficient whereby this court is required to consider the same. (Rule 40 of this court; Hill v. Porter, 38 Idaho 574, 223 P. 538; Bell v. Morton, 38 Idaho 758, 225 P. 137; Continental Jewelry Co. v. Inglestrom, 43 Idaho 337, 252 P. 186; Howell v. Kahn, 42 Idaho 277, 245 P. 86.)

VARIAN, J. Budge, Givens and McNaughton, JJ., and Babcock, D. J., concur.

OPINION

[50 Idaho 708] VARIAN, J.

Plaintiff commenced this action to quiet title to certain lots in the city of Caldwell and village of Wilder, in Canyon county. He alleges ownership of the lots in question; five years actual, visible, notorious, open, peaceable, continuous, undisputed and adverse possession thereof; that he and his predecessors in interest have paid taxes levied against said lands for more than five years; that defendant was formerly the wife of plaintiff and procured a decree of divorce from him in Bannock county, September 21, 1922, "and that said defendant claims or appears to have some claim or estate or interest in said premises adverse to plaintiff and that the exact nature thereof is unknown to plaintiff," and that defendant has no just claim, etc., to said premises, or any part thereof. Defendant answered, admitting the marriage and subsequent divorce, denying ownership, or adverse possession in plaintiff and setting up certain facts by way of affirmative defense, tending to show that the property in question was purchased from savings accumulated from wages earned by each spouse after their marriage. The court found for the defendant, denying plaintiff the relief prayed for and [50 Idaho 709] decreeing the parties to be joint owners, as tenants in common, of the real property described in the complaint, each owning a...

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14 practice notes
  • State v. Hall, No. 9151
    • United States
    • Idaho Supreme Court
    • June 25, 1963
    ...urged in the trial court and was, therefore, waived. Page 612 Gerken v. Davidson Grocery Co., 57 Idaho 670, 69 P.2d 122; Burton v. Bayly, 50 Idaho 707, 300 P. 359; Kralick v. Shuttleworth, 49 Idaho 424, 289 P. 74; People v. DeSisto (Co.Ct.) 27 Misc.2d 217, 214 N.Y.S.2d 858; Williams v. Okla......
  • Reynolds Irr. Dist. v. Sproat, 7384
    • United States
    • United States State Supreme Court of Idaho
    • March 27, 1948
    ...said purported assignments failed to conform to the requirements of Rule 52, in that they are too general. As stated in Burton v. Bayly, 50 Idaho 707, 300 P. 359, 360: "'None of the assignments of error point out in what particulars the court erred and, therefore, do not comply with the req......
  • Louk v. Patten, 6393
    • United States
    • United States State Supreme Court of Idaho
    • October 29, 1937
    ...sufficiency of the evidence to support the finding." (Weber v. Pend d'Oreille Min. etc. Co., 35 Idaho 1, 203 P. 891.) (Burton v. Bayly, 50 Idaho 707, 300 P. 359; McMillan v. Sproat, 51 Idaho 236, 4 P.2d 899; Hill v. Porter, 38 Idaho 574, 223 P. 538; Coeur d'Alenes Lead Co. v. Kingsbury, 56 ......
  • Pearson v. Harper, No. 9327
    • United States
    • Idaho Supreme Court
    • May 20, 1964
    ...this court has dealt with similar assertions in the cases of Andrews v. Grover, 66 Idaho 742, 168 P.2d 821, and in Burton v. Bayly, 50 Idaho 707, 300 P. 359. There is merit in respondent's position. The burden is upon the appellant to set forth affirmatively wherein the trial court erred. C......
  • Request a trial to view additional results
14 cases
  • State v. Hall, No. 9151
    • United States
    • Idaho Supreme Court
    • June 25, 1963
    ...urged in the trial court and was, therefore, waived. Page 612 Gerken v. Davidson Grocery Co., 57 Idaho 670, 69 P.2d 122; Burton v. Bayly, 50 Idaho 707, 300 P. 359; Kralick v. Shuttleworth, 49 Idaho 424, 289 P. 74; People v. DeSisto (Co.Ct.) 27 Misc.2d 217, 214 N.Y.S.2d 858; Williams v. Okla......
  • Reynolds Irr. Dist. v. Sproat, 7384
    • United States
    • United States State Supreme Court of Idaho
    • March 27, 1948
    ...said purported assignments failed to conform to the requirements of Rule 52, in that they are too general. As stated in Burton v. Bayly, 50 Idaho 707, 300 P. 359, 360: "'None of the assignments of error point out in what particulars the court erred and, therefore, do not comply with the req......
  • Louk v. Patten, 6393
    • United States
    • United States State Supreme Court of Idaho
    • October 29, 1937
    ...sufficiency of the evidence to support the finding." (Weber v. Pend d'Oreille Min. etc. Co., 35 Idaho 1, 203 P. 891.) (Burton v. Bayly, 50 Idaho 707, 300 P. 359; McMillan v. Sproat, 51 Idaho 236, 4 P.2d 899; Hill v. Porter, 38 Idaho 574, 223 P. 538; Coeur d'Alenes Lead Co. v. Kingsbury, 56 ......
  • Pearson v. Harper, No. 9327
    • United States
    • Idaho Supreme Court
    • May 20, 1964
    ...this court has dealt with similar assertions in the cases of Andrews v. Grover, 66 Idaho 742, 168 P.2d 821, and in Burton v. Bayly, 50 Idaho 707, 300 P. 359. There is merit in respondent's position. The burden is upon the appellant to set forth affirmatively wherein the trial court erred. C......
  • Request a trial to view additional results

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