Conklin v. Hinds

• Decision Date: 01 January 1871
• Citation: 16 Minn. 411
• Parties: E. W. CONKLIN v. HENRY HINDS.
• Court: Minnesota Supreme Court

Page 411

16 Minn. 411

E. W. CONKLINv.

HENRY HINDS.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Scott county, denying a new trial.

Henry Hinds, appellant, in person.

John H. Brown, for respondent.

RIPLEY, C. J.

This action is brought under Gen. St. § 1, c. 75, as amended by chapter 72, Laws 1867; plaintiff alleging ownership of the N. W. ¼ section 21, township 105, range 22, and that it is vacant and unoccupied land, (both which allegations were put in issue by the answer;) that defendant claims some adverse estate or interest therein; and praying that the same be declared void.

It was tried at the same term with Murphy v. Hinds, 15 Minn. 182, (Gil 139,) and, as in that case, the plaintiff at the trial, after offering certain records as evidence to prove ownership in himself, stated that he had no further evidence to offer and rested his case.

The defendant thereupon moved that plaintiff be non-suited because he had failed to make out a case. The motion was denied and defendant excepted.

The patent to Wright, his covenant to convey to Hibler, and Hibler's deed to plaintiff, would enable plaintiff to maintain the action as "having or claiming title" to the land within said chapter 72 of the Laws of 1867. Gen. St. c. 43, § 2, p. 340.

If the book of deeds was not the proper book wherein to record said covenant, so that such record would not be notice to a subsequent purchaser, it might nevertheless be read by plaintiff in evidence. Gen. St. c. 73, § 87.

There are two cases in which chapter 75, § 1, as amended, provides that an action of this kind may be maintained:

First, when the plaintiff is in actual possession.

Second, when the land is vacant or unoccupied, and no person is in actual possession. Murphy v. Hinds, 15 Minn. 182, 184, (Gil 139.)

Proof that the land is actually vacant and unoccupied is as necessary to maintain an action brought under the last clause, as proof of actual possession is to sustain one brought under the first; and for the same reason, viz., that this action lies for one who cannot maintain ejectment, either because he is in possession, or because, the land being vacant, there is no one in possession against whom ejectment would lie.

As a complaint would be demurrable, as not stating facts sufficient to constitute a cause of action, which omitted to state, either that plaintiff was in possession, or that the land was vacant, so the plaintiff, at the trial, fails to make a case if he omits to prove whichever state of facts he has alleged to exist.

In Murphy v. Hinds, plaintiff, in his complaint, counted upon his possession, and at the trial offered proof of a paper title and rested. Defendant moved for a nonsuit, which was denied. On appeal this was held to have been error, because such evidence did not support the allegation of possession. And the opinion goes on to say that, "even admitting (for argument's sake merely) that under a complaint counting upon possession the plaintiff might be permitted to prove, either that he is in possession of the premises, or that the same are vacant and unoccupied, the proof that he has made in this instance does not establish either state of facts, and he has failed to make out a cause of action in either of the cases contemplated by the statute."

This covers the point raised in the case at bar, and it follows therefrom that the motion for a non-suit should have been granted.

The case was tried by the court, and judgment was entered for plaintiff January 11, 1869, upon its decision that he was entitled to the relief prayed for. In its finding of fact upon which said conclusion was based, the court found that plaintiff was the owner of said land, but omitted to find whether or not the land was vacant.

The defendant, being dissatisfied with such omission, applied at the April term, 1869, on notice to plaintiff, (the case having been previously settled,) for an amendment of such finding, so as to show whether the premises were vacant or not; whereupon it was ordered that the same be amended by finding, as an additional fact, that the premises were not vacant or unoccupied; and, as a conclusion of law, that such additional fact did not warrant any modification of the conclusion of law already found.

At the general term in November, 1869, defendant moved, on the pleadings, the facts, and conclusions of law found by the court, and the statement of the case as settled, for a new trial, because (1) of errors of law occurring at the trial and excepted to; (2) because the finding of facts by the court is not justified by the evidence; (3) because the decision of the court upon the facts found is contrary to law.

The plaintiff moves to strike out the supplemental finding aforesaid as unauthorized and void.

We think, however, that inasmuch as the court had failed to pass upon a material issue, the defendant adopted a proper mode of procuring the omission to be supplied. Bazille v. Ullman, 2 Minn. 134, (Gil. 110;) Califf v. Hillhouse, 3 Minn. 311, (Gil. 217;) Englebrecht v. Rickert, 14 Minn. 140, (Gil. 108.) That judgment had been entered made no difference, for the conclusion of law upon which it was based was in no way modified; nor is it material that a case has been settled, for the finding was not made upon new evidence.

Moreover, there appears to have been no objection by plaintiff to the making of such amendment, and this motion comes too late after it has been made, and a motion for a new trial, based on it, argued in the court below without objection made thereto on that ground.

The plaintiff further contends that if the supplemental finding of fact is not to be struck out, it must be presumed to have been made upon sufficient evidence, and as the case as settled purports to contain all the evidence that had been taken, and discloses no evidence in support of it, it is to be presumed that it was made upon sufficient evidence subsequently taken, — that is, after the trial, — and if so, leave should have been granted by the court below to amend the complaint in conformity with the facts found, or the variance should now be disregarded.

No such amendment was asked; but the conclusive answer is that no such presumption as he supposes can arise.

It was the duty of the court to pass upon all the material issues, and if no evidence was offered on the part of the plaintiff to support his allegation that the land was vacant, it was the duty of the court not to overlook the issue in its finding, but to find it against him, — 2 Minn. 139, (Gil. 110;) — nor could the court subsequently receive evidence upon such issue.

On the hearing of the motion for a new trial at said November term, 1869, plaintiff objected to the making thereof because it was made too late, for the reason by him assigned that the time for appeal from the judgment had then expired. This was not so in point of fact, under the law regulating an appeal from that judgment. Laws 1868, c. 83, p. 112; Laws 1869, c. 70, p. 84. The objection was overruled, and the motion having been heard, it was ordered that the same be denied. This appeal is taken from that order.

The plaintiff moves to dismiss the appeal, contending that it is too late to move for a new trial upon a case settled after judgment entered; that defendant's proper course was to appeal from the judgment; and he urges in support of this position that inasmuch as no time is limited by statute within which a motion for a new trial must be made, if such motion be made after judgment, it may be made after the time for appeal from the judgment has elapsed; and to allow an appeal from an order denying such motion would...