Burton v. Bayly

• Citation: 50 Idaho 707,300 P. 359
• Decision Date: 25 May 1931
• Docket Number: 5694
• Parties: CHARLES E. BURTON, Appellant, v. VIOLET BAYLY, Formerly VIOLET BURTON, Respondent
• Court: United States State Supreme Court of Idaho

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

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 decreeing the parties to be joint owners, as tenants in common, of the real property described in the complaint, each owning a one-half interest therein, and ordering an accounting by plaintiff of the rents, issues and profits since September 21, 1922. Plaintiff appeals from said decree.

Appellant alleges twelve assignments of error, in effect, that the findings and judgment are contrary to the evidence; the court erred in the following particulars, to wit: in finding for respondent and against appellant; in refusing to find the real property involved was the separate property of appellant; in refusing to find that the homestead filed upon, improved and patented prior to marriage was the separate property of appellant; in refusing to hold that the proceeds from the sale of the homestead of appellant were invested in the property involved here and were appellant's separate property; in refusing to hold that the proceeds of the sale of the homestead were kept separate and apart from the community funds; in enjoining appellant from asserting any claim, etc. , to said property against respondent other than a one-half interest therein; in holding appellant and respondent are joint owners, as tenants in common, of the real property involved; in holding that appellant be required to account to respondent for rents, etc.; in holding respondent is entitled to recover one-half of the rents after September 21, 1922; in overruling appellant's objection to the introduction of any evidence by respondent and the motion to strike respondent's answer and cross-complaint. None of the assignments of error point out in what particulars the court erred and, therefore, do not comply with the requirements of Rule 40 requiring appellant's brief to contain a distinct enumeration of the errors relied upon. General statements specifying that the court erred (McDonald v. North River Ins. Co., 36 Idaho 638, 213 P. 349), or that the evidence is insufficient to sustain the findings, verdict, or judgment (Hill v. Porter, 38 Idaho 574, 223 P. 538; Bell v. Morton, 38 Idaho 758, 225 P. 137; Merrill v. Fremont Abstract Co., 39 Idaho 238, 227 P. 34; Idaho Falls Nat. Bank v. Ford, 46 Idaho 492, 269 P. 100; Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602; Hurt v. Monumental Mercury Min. Co., 35 Idaho 295, 206 P. 184; Morton Realty Co. v. Big Bend Irr. Co., 37 Idaho 311, 218 P. 433; Howell v. Kahn, 42 Idaho 277, 245 P. 86), without pointing out the particulars of the insufficiency, are too indefinite to merit consideration by this court on appeal. However, it is apparent from the argument in the appellant's brief (see Mountain States Imp. Co. v. Arave, 49 Idaho 710, 291 P. 1074, and cases therein cited) that...