Durell v. Abbott

• Decision Date: 03 March 1896
• Citation: 44 P. 647,6 Wyo. 265
• Parties: DURELL v. ABBOTT ET AL
• Court: Wyoming Supreme Court

44 P. 647

6 Wyo. 265

DURELL v. ABBOTT ET AL

Supreme Court of Wyoming

March 3, 1896

Rehearing Denied April 16, 1896, Reported at: 6 Wyo. 265 at 268.

Commenced in the District Court, March 25, 1893.

ACTION to quiet title to land brought by George E. Abbott and Maud E. Ellis against D. J. Durell. The defendant demurred to the petition. The demurrer was overruled and defendant excepted. The case was by consent continued until the next term; but later judgment was rendered for plaintiffs upon default. Defendant brought the case to the supreme court by petition in error.

Judgment affirmed.

W. R. Stoll, for plaintiff in error, maintained that notwithstanding the overruling of the demurrer the defendant was entitled to insist that the plaintiffs prove their rightful possession, and to object to any finding of title on the part of the court. Also that the allegation of "claim" of title in fee was not sufficient to sustain the finding that plaintiffs had the legal estate in the premises. The allegation did not amount to an allegation of title. (McGrath v. Mitchell, 56 Mo. App., 626; Fugate v. Pierce, 49 Mo. 441; Herrick v. Churchill, 35 Minn. 318; Allen v. Mansfield (Mo.), 18 S.W. 901; Blodgett v. McMurtry, 34 Neb. 782; 39 Neb. 210.) Mere possession will not entitle the plaintiff to relief. (Curtis v. Sutter, 15 Cal. 260; Reed v. Calderwood, 32 id., 109; Eaton v. Giles, 5 Kan. 24; Stark v. Starr, 6 Wall., 402; Holland v. Challen, 110 U.S. 15; Wall v. Magnes, 17 Colo. 476; Collins v. Collins, 19 O. St., 468; Westbrook v. Schmaus, 51 Kan. 214; Edgar v. Edgar, 26 Ore., 65; Trittipo v. Morgan, 99 Ind. 269; Coolidge v. Forward, 11 Ore., 118.)

A person who is a trespasser, or in possession by fraud, or in merely constructively, can not bring the action. The possession must be open, actual, and rightful. (Eaton v. Giles, supra; Williams v. Sutton, 43 Cal. 65; Wood v. Ry., 11 Kan. 324; Douglas v. Nuzrum, 16 id., 515; Wakefield v. Sunday, etc., 85 Mich. 605; Reed v. Calderwood, 32 Cal. 109; Cartwright v. McFadden, 24 Kan. 473; Campbell v. Davis, 4 So. 140; Rutherford v. Ullman, 42 Mo. 216; Watson v. Von Derheide, 28 N.W. 726; Grove v. Jennings, 46 Kan. 366; Morril v. Douglas, 14 id., 294; Tichenor v. Knapp, 6 Ore., 205; Murphy v. Hinds, 15 Minn. 182; Wilder v. St. Paul, 12 id., 192; Swaze v. Bride, 34 Mo. App., 414.) There must be not only an allegation of actual possession but also of title. (Leary v. Duff, 147 Mass. 147; King v. French, 2 Saw. , 441; Emery v. Cochran, 82 Ill. 65; Ry. v. Stanley, 49 F. 263; Giltenan v. Lemert, 13 Kan. 476; Frost v. Spitley, 121 U.S. 552; Lawrence v. Zimpleman, 37 Ark. 643; Rhea v. Dick, 34 O. St., 420; Rennie v. Hildreth, 81 Cal. 187; Ely v. Ry., 129 U.S. 291; Joyce v. McAvoy, 31 Cal. 274; San Diego v. Allison, 46 Cal. 163; Goldsmith v. Gilliland, 22 F. 865.)

John C. Baird, for defendants in error.

Plaintiff in error made no effort to have the judgment set aside in the court below. He can not therefore appeal from the judgment. A default can not be reviewed by appeal. The remedy is to move to have the default opened upon reasons. (Elliott's App. Pro., Sec. 334; Pope v. Dinsmore, 8 Abb. Pr., 429; Downing v. Harmon, 13 Iowa 535.)

The petition was sufficient.

(2 Boone Code Pl., 369; 2 Estee Pl. & Pr., 187; 2 Bates Forms, 659; Von Auken v. Monroe, 38 Mich. 731; Rough v. Simmons, 65 Cal. 227; Pier v. Fondulac, 38 Wis. 470; Thomas v. White, 2 O. St., 540; Scott v. Kramer, 31 O. St., 295; Eastman v. Lamprey, 12 Minn. 153; Wolverton v. Nichols, 5 Mont. 89; Ford v. Belmont, 69 N.Y. 567; Yaple's Pr., 773; 8 O., 382; Rhea v. Dick, 34 O. St., 420; Lusby v. Jones, 31 W. L. B., 70; Elithorpe v. Buck, 17 O. St., 72; Pralus v. Pacific, etc., Co., 35 Cal. 30; Pomeroy's Code Rem., 369; Buchanan v. Roy, 2 O. St., 251; Hubbard v. Clark, 8 O., 382; 10 Nev. 370; Stoddart v. Burge, 53 Cal. 394; Steele v. Fish, 2 Minn. 153; 73 N.Y. 430; 94 Ind. 457; 24 Kan. 662; 35 O. St., 597; 54 Ind. 37; 62 id., 441; 60 id., 383.)

CONAWAY, JUSTICE. GROESBECK, C. J., and POTTER, J., concur.

OPINION

CONAWAY, JUSTICE.

This is an action to quiet title brought by defendants in error as plaintiffs below to quiet title to realty of which they allege that they are in possession, and to which they claim title in fee. To this petition there was a demurrer on the ground that the allegation that plaintiff claims title in fee is not sufficient, but that the nature of the title should be set up. The authorities cited by plaintiff in error are generally as to what evidence is necessary to prove title. The evidence need not and should not be pleaded. The petition is in a form which is well approved by the best authorities. The demurrer was properly overruled. Defendant defaulted in failing to plead further in the time given by the court for that purpose, which was twenty days from June 1, 1893. On the 7th day of October the cause was continued by consent of parties until the next term. Afterward, on the 11th day of November, and during the same term, judgment was taken on the default.

Plaintiff in error claims that this was error, and asks this court to reverse the judgment. This question is raised for the first time in this court. Whatever relief the plaintiff in error is entitled to, if any, should be sought in the first instance in that court. The district court had unquestioned jurisdiction of the subject-matter of the suit to try and determine and render judgment in the case, and there was a general appearance by plaintiff in error by filing his demurrer and taking time to answer. It is insisted that this court should reverse the judgment on account of an alleged irregularity which has never been called to the attention of the trial court. We are of the opinion that this would violate well-established rules and precedents. See Bradley v. Syndicate Imp. Co., 6 Wyo. 171, 43 P. 79 (supra).

Judgment affirmed.

GROESBECK, C. J., and POTTER, J., concur.