Council Improvement Co. v. Draper

Decision Date21 May 1909
Citation16 Idaho 541,102 P. 7
PartiesCOUNCIL IMPROVEMENT COMPANY, a Corporation, Respondent, v. JOHN W. DRAPER, Appellant
CourtIdaho Supreme Court


1. Where a plaintiff commences his action in ejectment to quiet title to a tract of land, alleging that he has been in possession of the same for a great number of years, and thereafter, when the case is called for trial, enters into a stipulation of facts upon which he claims his title and right of possession rests, and the case is held under advisement for a period of six months, and judgment is entered against him, and more than two months after the entry of judgment he applies to the court for an order vacating the same on the ground that he has discovered other and additional facts on which he could more successfully wage his action, and claims that the newly discovered facts consist chiefly in unrecorded deeds more than twenty years old, which are not produced in evidence, and where no fraud is shown on the part of his adversary: Held, that he has not proceeded with due diligence in the prosecution of his action, in gathering his evidence or in preparing his case, and that he has not been taken by surprise, and that his inadvertence, mistake or negligence is inexcusable, and that the judgment should not be vacated or set aside.

2. A litigant moving for relief under sec. 4229, Rev. Codes, on the grounds of mistake, inadvertence, surprise or excusable neglect, must show that he has acted in good faith, and exercised due diligence in the prosecution and protection of his rights, such as an ordinarily prudent man would exercise under similar conditions.

3. Where a party moves to vacate a judgment entered against him in addition to showing that he has been taken by surprise, or that his inadvertence or neglect is excusable, he must also show that the judgment against him is probably erroneous, and that if he was permitted to properly present his case, he would likely be able to secure a judgment more favorable to his interests.

4. Where the heirs of a deceased homestead entryman make final proof on the lands originally entered by the decedent, and procure title from the government whereby the land is conveyed "unto the heirs of" the decedent, the title vests directly in the parties who are the legal heirs of the deceased, and does not inure to the benefit of the estate of the deceased, and the probate court has no jurisdiction over such property and no power or authority to order a sale of such real estate, and the administrator of the estate of the deceased entryman has no power or authority to convey any title to such property.

5. A relinquishment by an heir of the estate of a deceased person or of his right, interest and claim in and to the estate of the deceased, does not devest such heir of his title or interest in and to a homestead that has been patented to the heirs of the deceased, subsequent to the death of the original entryman.

6. Where a case was originally heard by the trial court on an agreed statement of facts, and no oral evidence was introduced, and judgment was thereupon entered and a motion was subsequently made on affidavits to vacate and set aside the judgment, and no oral evidence was introduced, the appellate court will examine the record as though the matter had never been heard or examined by the trial court, and will exercise its discretion in the matter, the same as a trial court is authorized to do in such matters.

(Syllabus by the court.)

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

Action by plaintiff in ejectment and to quiet its title to certain real estate. Judgment for defendant and plaintiff moved to vacate and set aside the judgment. Motion granted and judgment vacated and set aside, and a new trial granted. Reversed.

Judgment reversed. Costs awarded in favor of appellant.

Ezra R Whitla, for Appellant.

No proceedings by an administrator can pass title to land which has not been proved up on. (Sec. 2296, U. S. Rev. Stat.; Chapman v. Price, 32 Kan. 446, 4 P. 807; Baldwin v. Boyd, 18 Neb. 444, 25 N.W. 580; Jean v. Dee, 5 Wash. 580, 32 P. 460; Towner v. Rodegeb, 33 Wash 153, 99 Am. St. 936, 74 P. 50; Dawson v. Mayall, 45 Minn. 408, 48 N.W. 12; Rogers v. Clemmans, 26 Kan. 522; Wittenbroch v. Wheadon, 128 Cal. 150, 79 Am. St. 32, 60 P. 664; Gjerstadengen v. Van Duzen, 7 N.D. 612, 66 Am. St. 679, 76 N.W. 233; Hall v. Russell, 101 U.S. 503, 25 L.Ed. 829; De Mars v. Hickey, 13 Wyo. 371, 80 P. 521.)

The neglect of an attorney to plead a proper and valid defense, whereby a judgment is erroneously obtained against the client, furnishes no ground for relief against the judgment. (Donovan v. Miller, 12 Idaho 600, 88 P. 82, 9 L. R. A., N. S., 524.)

An agreement of counsel in reference to proceedings in a cause will not be set aside on petition by reason of mistake, when the only evidence adduced in support of the petition is the affidavit of the moving party, based on hearsay, and the facts therein alleged are denied by the affidavit of the adverse party from personal knowledge. (Charles v. Miller, 36 Ala. 141; Johnson v. Wright, 19 Ga. 509; Van Horn v. B. C. & N. Ry. Co., 69 Iowa 239, 28 N.W. 541; Con. Steel & Wire Co. v. Burnham, 8 Okl. 514, 58 P. 654.) If there had been any mistake, neglect or surprise, the plaintiff is now barred by its own laches from any relief in this action. (McMurran v. Meek, 47 Minn. 245, 49 N.W. 983; 23 Cyc. 909; Clark v. Parry, 17 Colo. 56, 28 P. 329; Knauber v. Watson, 50 Kan. 702, 32 P. 349; Coast Land Co. v. Oregon P. Col. Co., 44 Ore. 483, 75 P. 884; Ellis v. Bonner, 7 Tex. Civ. App. 539, 27 S.W. 687; McClymond v. Hoble, 84 Minn. 329, 87 Am. St. 354, 87 N.W. 838.)

The law gives a court a right to vacate a judgment only where it has been entered against a party through his mistake, inadvertence, surprise or excusable neglect, and it is necessary for a party moving to vacate a judgment to show that the same occurred through mistake, inadvertence or excusable neglect. (Beck v. Lavin, 15 Idaho 363, 97 P. 1028; Holzeman & Co. v. Henneberry, 11 Idaho 428, 83 P. 499; Western Loan Co. etc. v. Smith, 12 Idaho 94, 85 P. 1084.)

L. L. Burtenshaw, and Richards & Haga, for Respondent.

The determination of the trial court in the exercise of its discretion will not be disturbed on appeal unless there is an abuse of such discretion. (Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398.) And before it will be disturbed it must affirmatively appear that such court erred. (Hastings v. Cunningham, 35 Cal. 550; Holland Bank v. Lieuallen, supra; Twin Spgs. Placer Co. v. Upper Boise H. Co., 6 Idaho 687, 59 P. 535; Holzeman v. Henneberry, 111 Idaho 428, 83 P. 497; Bailey v. Taaffe, 29 Cal. 422; Western Loan Co. v. Smith, 12 Idaho 94, 85 P. 1084.)

"If the newly discovered evidence brings to light some new fact bearing upon the main question, and it would be likely to change the result, a new trial should be granted." (Flannagan v. Newberg, 1 Idaho 78.) The court has power to relieve a party from the facts of a stipulation which admits a fact which is not true. (Richardson v. Musser, 54 Cal. 196; Ward v. Clay, 82 Cal. 502, 23 Pac: 50, 227; Welsh v. Noyes, 10 Colo. 133, 14 P. 317; Beaumont Pasture Co. v. Preston, 65 Tex. 448; Ish v. Crane, 13 Ohio St. 580; 20 Enc. Pl. & Pr. 662.)

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.



This action was commenced on March 19, 1907, by the respondent Council Improvement Company. By the allegations and prayer of the complaint it was sought to both eject the appellant, John W. Draper, from the premises, and to quiet respondent's title to the lands described in the complaint. The amended answer on which the case was finally tried was filed on June 22, 1907. The case came on for trial on June 25th, and on the same date, and prior to entering upon the trial, the parties filed a stipulation of facts and submitted the case to the court for decision and judgment on the facts stipulated by the parties. This stipulation traces the chain of title under which each party claims the ownership and right of possession of the premises, and the case was submitted to the court for its determination under the law as to which party held the legal title to this property,--the plaintiff claiming and asserting its title through a deed from the administrator of the estate of one Zadock Loveless, deceased, and the defendant claiming the property by reason of being an heir at law of Zadock Loveless, deceased. Under the facts stipulated, the only question that was open for the court to decide was whether or not the administrator's deed passed title to the land, or the heirs at law of Zadock Loveless took title to the land by patent from the United States, freed of any and all rights of the creditors of the estate of Zadock Loveless, deceased. The court decided, and rightfully, we have no doubt, that the plaintiff in the case acquired no title by reason of the administrator's deed, and that the title had vested in the heirs of the deceased. It appears that Zadock Loveless died intestate in Washington county in the year 1884, and that prior to his death he had settled and made homestead entry upon the land in controversy, and that he had not made final proof on the land or received patent therefor prior to this death. Subsequent to the death of Loveless, such proceedings were taken by William Loveless for the heirs, that on January 13, 1888, a patent was issued by the United States, granting and conveying "unto the heirs of Zadock Loveless,...

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