Gibbs v. Fuller

• Decision Date: 14 January 1948
• Docket Number: 8774.
• Parties: GIBBS v. FULLER et al.
• Court: Montana Supreme Court

188 P.2d 426

120 Mont. 516

GIBBS v. FULLER et al.

No. 8774.

Supreme Court of Montana

January 14, 1948

Appeal from District Court, Ninth District, Pondera County; George W. Padbury, Presiding Judge.

Action by Daisy V. Gibbs, sometimes known as Daisy C. Gibbs, against C. P. Fuller, and C. R. Monson, Sheriff of Pondera County Mont., to restrain defendants from interfering with plaintiff's possession of certain realty. From a judgment for defendants, plaintiff appeals.

Affirmed.

S. J Rigney, of Cut Bank, for appellant.

D. W Doyle, of Conrad, for respondent.

ANGSTMAN Justice.

Plaintiff brought this action to restrain the defendants from interfering with her possession of certain described land.

The complaint which was filed August 25, 1943, alleges that plaintiff is the owner of the land and that the defendant Fuller and defendant Monson, as sheriff of Pondera county have taken possession of the property and threaten to remove the crops growing thereon. It alleges that defendants have taken possession pursuant to a judgment in an action by Fuller as plaintiff against C. L. Moser as defendant (this being the judgment under attack in Moser v. Fuller, 107 Mont. 424, 86 P.2d 1), but that the judgment is not binding upon this plaintiff who was not a party to the action. It alleges that if the defendants are permitted to continue on the property and are not restrained plaintiff will suffer irreparable injury and there will be cause for a multiplicity of actions.

The complaint alleges that an action was commenced by Fuller against this plaintiff on July 25, 1941, to quiet title to the lands, which action is still pending; that in that action this plaintiff claims to be the owner thereof and that C. L. Moser resides on and occupies the property with the consent of this plaintiff who is his mother.

It is alleged that defendants herein threaten to dispossess the said Moser as plaintiff's agent and unless they are enjoined from so doing there will result a multiplicity of lawsuits.

The answer was a general denial except that it admits defendants are proceeding under the judgment in the action of Fuller v. Moser and admits that they are about to dispossess Mr. Moser from the property in question.

The court found for defendants and plaintiff has appealed from the judgment.

Before discussing the several questions urged upon us by plaintiff, we point out that since this action was commenced, and before it was tried, the suit to quiet title brought by Fuller against this plaintiff and C. L. Moser, which was referred to in the complaint, resulted in a judgment in favor of Mr. Fuller which was affirmed by this court ( Fuller v. Gibbs, Mont., 177 P.2d 858); and that, in that action, it was determined that Fuller is the owner of the property and that Daisy v. Gibbs and C. L. Moser have no interest therein. Hence the question attempted to be raised herein has already been litigated and determined against the plaintiff.

If the points raised by the plaintiff had any merit and if we felt obliged to remand the case for another trial because of the questions raised by plaintiff, we fail to see wherein plaintiff could now question the ownership of the land described in the complaint. We take notice too that it is now too late to enjoin the removal of crops growing on the land in 1943. However, we shall consider the points raised by plaintiff on appeal.

Plaintiff contends that the court had no jurisdiction to render judgment in this action for the following reason. It appears from the record that Judge Hattersley called in Judge Dean King to hear this case. He was disqualified by plaintiff for imputed bias. Judge Padbury of Helena was thereupon called in to hear the case. He was disqualified by plaintiff for imputed bias; whereupon Judge Hurly of Glasgow was called in. In the order calling Judge Hurly, Judge Hattersley also set the case for trial on April 24, 1947. (Mr. Moser was personally served with a copy of that order on April 7th.) On April 21st Judge Hurly accepted jurisdiction and the clerk of court notified plaintiff by registered letter addressed to her agent, C. L. Moser, at Valier of that fact. Moser admits receiving the letter but contends that the notice received by him was a notice that Judge Hurly had accepted jurisdiction of the case but that it did not constitute any notice that the trial was to take place on April 24th. The trial however did proceed on April 24th. C. L. Moser was present but he appeared without counsel. He protested against Judge Hurly hearing the matter because Judge Hurly had heard some criminal matter against C. L. Moser pr...