Gilpatrick v. Perry

• Decision Date: 02 April 1920
• Docket Number: 948
• Citation: 26 Wyo. 538,188 P. 442
• Parties: GILPATRICK v. PERRY
• Court: Wyoming Supreme Court

188 P. 442

26 Wyo. 538

GILPATRICK v. PERRY

No. 948

Supreme Court of Wyoming

April 2, 1920

ERROR to the District Court, Sheridan County; HON. C. H. PARMELEE Judge.

Action by George W. Perry, as guardian of Dott Case, a minor against Samuel I. and Bertha K. Gilpatrick and others. There was a judgment for plaintiff and defendants first named bring error. There was a motion filed to strike the bill of exceptions which was heard in connection with the hearing on the merits.

Affirmed.

Camplin & O'Marr, for plaintiffs in error.

The bill of exceptions was filed within the time allowed by court order; time for filing could be extended (Laws 1917, c. 70) the motion comes too late (4 Cor. Jur. 327; Yates v. Kinney, 23 Neb. 648). The filing of briefs was a waiver of a motion to strike (Thompson v. Missouri, 15 Neb. 329). On the merits the action was to recover funds of a ward alleged to have been used by her guardian in paying off a mortgage, and to subrogate the interests of the ward to those of the mortgagee that received payment; the evidence is insufficient to sustain the judgment; rules of evidence relating to constructive trusts apply (3 Pom. Eq. Jur. 2028; Scadden v. Scadden, 53 P. 442, 39 Cyc. 26). A constructive trust cannot be established by a mere preponderance of the evidence (De Galindo v. De Galindo, 81 P. 279, 39 Cyc. 193; Barger v. Barger, 47 P. 702; Pom. Eq. Jur. 1040; Cushing v. Hueston, 102 P. 29); the rule applies to all implied trusts whether resulting or constructive (Pom. Eq. Jur. 1058; Guignon v. Bank, 55 P. 1051). The delay in asserting trust is unexplained, which is a circumstance against its establishment (39 Cyc. 637).

C. A. Kutcher, for defendant in error.

The bill of exceptions should be stricken from the files, not having been presented in time (4595 C. S., Laws 1917, c. 70); the order allowing time until the first day of the succeeding term was not in accordance with the act of 1917, fixing a 60 day period for presentation of the bill of exceptions; the 60 day period was exceeded in the present case.

As to the merits, the controversy is narrowed down to the question of the sufficiency of the evidence to sustain the decree; the record shows the decree of the court to be amply sustained by the evidence; the rule requiring clear and cogent evidence to establish a constructive trust does not aply to transactions between relatives, who, when a prima facie case is made against them, are required to show the good faith of the transaction (Schwartz v. Gerhardt, 75 P. 689). The funds of the ward were used to pay the Barr mortgage; the estate of the ward should be subrogated to the rights of the mortgagee.

Camplin & O'Marr, in reply.

An examination of the case of Schwartz v. Gerhardt, 75 P. 689, cited by defendant in error, has no application here, the controversy being between the guardian and persons between whom no confidential relationship exists; the Gilpatricks are purchasers of the property sought to be charged with the trust; the rule does not therefore apply.

POTTER, JUSTICE. BEARD, C. J. and BLYDENBURGH, J., concur.

OPINION

POTTER, JUSTICE.

This case is here on error, and has been submitted upon a motion to strike the bill of exceptions and also upon the merits. The motion will first be considered. It is moved thereby, first, to strike the entire bill, and, second, to strike that part of the bill showing a motion for new trial filed December 30, 1916, and the order of March 22, 1918, overruling the same, on the ground that the bill was not presented for allowance within sixty days after the overruling of said motion for new trial, but was presented sixty-two days thereafter without an extension of time having been applied for or granted. The facts upon which the motion must be determined are as follows:

The cause was tried without a jury in the District Court in Sheridan county, one of the counties of the Fourth Judicial District, with Judge Parmelee, the regular Judge of said District, presiding, on December 21, 1916, and judgment for the plaintiff was rendered on that day. On December 30, 1916, a motion for new trial was filed by the defendants, the plaintiffs in error here, alleging errors occurring upon the trial and in the findings and judgment. Subsequently another motion for new trial was filed by said defendants on the ground of newly discovered evidence. After the filing of the first motion for new trial, Judge Parmelee was succeeded in the office of Judge of said District by Judge Burgess, who had represented one of the parties as counsel on the trial of the cause, and on March 14, 1918, neither of said motions having been disposed of, the cause was assigned and transferred to Judge Raymond of the Seventh District "for trial, hearing and determination". Thereafter, on March 22, 1918, the first motion for new trial was presented to said court, Judge Raymond presiding, and it was on that day overruled, the defendants excepting, and by the order overruling the motion time was granted the defendants until and including the first day of the next regular term of the court in which "to prepare, settle and file their bill of exceptions herein". On May 13, 1918, Judge Raymond presiding, the court's attention was called to the second motion for new trial, and an order was entered overruling the same, to which said defendants excepted, and that order also granted to the defendants time until and including the first day of the next regular term of the court in which "to prepare, settle and file their bill of exceptions herein".

The bill, which includes the evidence and exceptions taken upon the trial, the findings and judgment and exceptions thereto, and also said motions for new trial, and shows the overruling of each motion with the exception thereto, was presented for allowance to Judge Parmelee on May 20, 1918, and the fact that such presentation was endorsed on the bill by Judge Parmelee over his signature as the "Judge presiding at the trial of said cause". On the same day the bill was allowed and signed by him, as such Judge, his certificate of allowance reciting that the bill was presented to him on said May 20, 1918, "within the time fixed by law"; that it "contains all the evidence offered by the parties to said action on the trial thereof and all the exceptions and objections of the parties to the rulings of the court during said trial and that all the matters and things therein set forth are true and correct". On May 23, 1918, the bill was presented for allowance to Judge Raymond, and on that day the same was signed and allowed by him, "in so far as it relates to said two motions for a new trial, the orders overruling the same, the exceptions of counsel thereto, and orders fixing date for preparing, settling and filing the bill of exceptions herein."

The statutory provisions applicable to this case upon the question of whether the bill was presented in time are found in section 4595, Compiled Statutes, 1910, as amended by section 1 of chapter 70 of the Laws of 1917. Before the section was amended, it provided that time may be given for reducing an exception to writing, but not beyond the first day of the next succeeding term. As amended, the section reads as follows:

"Section 4595. The party objecting to the decision must except at the time the decision is made, and shall have sixty days from and after the date of the judgment, decree, or final order in the case within which to reduce the exception to writing and present the same to the court or judge for allowance. If within said sixty days the party excepting shall make it satisfactorily to appear to the court or judge authorized to allow the bill of exceptions that the party will be unavoidably prevented from presenting the bill within said time, the court or judge by written order may extend said time, but not to exceed sixty additional days."

As to the matters occurring upon the trial, including the findings and exceptions thereto, the bill was properly presented to Judge Parmelee, who presided at the trial, notwithstanding that his term of office had expired (Stirling v. Wagner, 4 Wyo. 5, 31 P. 1032). And having been presented to him on May 20, 1918, within the period of sixty days after the date of the order overruling the first motion for a new trial, which had been filed on December 30, 1916, and was based upon errors alleged to have occurred upon the trial and in the findings and judgment, the bill, as to the exceptions included therein taken upon the trial and to the findings and judgment, was presented strictly within the time granted by the statute in the absence of an order extending the time.

And we think the entire bill assailed by the motion to strike was presented in time, for the reason that it was presented to both Judge Raymond and Judge Parmelee within the time granted by the order of the court of March 22, 1918, made at the time of overruling said first motion for a new trial, which, in our opinion, is to be understood and construed as an order extending the time to and including the first day of the next term of said court. We know judicially that the first day of the next term, as prescribed by statute, was June 10, 1918, a period of 80 days from the date of said order, and only 20 days additional to the sixty days granted by the statute, and therefore within the power of the court or judge, by acting within the sixty days granted by the statute, to extend the time not to exceed sixty additional days.

It is declared by the motion to strike the bill and contended in support of it, that no extension of time for presenting the bill was applied for or granted; and the order aforesaid granting time is referred to by counsel in support of the motion as an attempt of the court to follow...