Goodrich v. Union Oil Co. of California

• Decision Date: 31 December 1928
• Docket Number: 11996.
• Citation: 274 P. 935,85 Colo. 218
• Parties: GOODRICH et al. v. UNION OIL CO. OF CALIFORNIA et al.
• Court: Colorado Supreme Court

274 P. 935

85 Colo. 218

GOODRICH et al. v. UNION OIL CO. OF CALIFORNIA et al.

No. 11996.

Supreme Court of Colorado, En Banc.

December 31, 1928

Rehearing Denied Feb. 25, 1929.

Error to District Court, Larimer County; Robert G. Smith, Judge.

Suit by Clement Z. Goodrich and another against the Union Oil Company of California and others. Decree for defendants, and plaintiffs bring error.

Affirmed.

On Petition for Rehearing.

John T. Bottom and M. W. Spaulding, both of Denver, and James H. Brown, of Denver, on petition for rehearing, for plaintiffs in error.

Robert D. Hawley, of Denver, W. M. Ault, H. S. Sherman, Lee, Shaw &amp Bryans, T. J. Warren, and Herbert A. Alpert, all of Ft Collins, and Jerry H. Powell, of Los Angeles, Cal., for defendants in error.

ADAMS J.

Suit to quiet title, brought by Goodrich and Shipp, against Union Oil Company et al. Decree quieting title in defendants. Plaintiffs bring error. We refer to them as designated at the trial. After the cause was docketed in this court, certain defendants have moved to dismiss for want of jurisdiction on the ground that other defendants at the trial, whose interests are not severable, were not made parties to the cause on error, and not named in nor served with the scire facias.

Clement Z. Goodrich, one of the plaintiffs, homesteaded the land, and United States patent was issued to him under date of June 2 1891. It was recorded in the office of Larimer county on August 27, 1910. He went to Wyoming in 1894, where he has since resided. Before going away, he had executed a trust deed, which was afterwards foreclosed, and through which defendants claim title. Defendants also claim by virtue of a treasurer's deed issued for nonpayment of taxes. Plaintiff Goodrich claims to have retained ownership and possession under a parol lease to an alleged tenant, one James D. Jameson. Plaintiffs say that Jameson was to have had the use of the land if he would pay the taxes on it, some of which he failed to pay, which resulted in its sale. Jameson died in the year 1912 or 1913. He was Goodrich's sister's father-in-law. In 1910, a lawyer, who was then examining the title for other parties, discovered the omission of the recording of patent, and wrote to Goodrich. The latter did not reply, but went from Wyoming to Ft. Collins, employed another attorney, bought an abstract of title, had it examined, found the property had been sold, went to the land, saw alfalfa on it, also cultivation and improvements by the then owners, but Goodrich did nothing about it. He did not disclose his alleged ownership or possession to any one from 1893 to 1923, except perhaps to a few close friends. About 1922 or 1923, an oil excitement broke out in Larimer county, and it became evident that the property in controversy was valuable for oil and gas purposes. It is said to be worth not less than $300,000. Shipp, Goodrich's coplaintiff, is a lawyer practicing in the state of Wyoming. In 1923, Goodrich conferred with Shipp, and as a result the latter procured from Goodrich a so-called power of attorney coupled with an interest, and had it recorded in Larimer county on December 19, 1923. Shipp made an unsuccessful effort to get a settlement with Union Oil Company, one of the defendants. Later, according to Goodrich, some other lawyer not connected with this case told him to get possession. On February 18, 1926, after dark, Goodrich attempted to comply with the advice by carting out a small structure to the place on a truck, and putting some dirt around the sides. He said also that, 'I tacked up a little fence down there, on the side around there by Fritz's, down by the lake there.' The lake appears to be a reservoir used for irrigating purposes by one of the owners of the land. Goodrich took with him an assistant by the name of Lunblau. Lunblau was armed. Goodrich said: 'I didn't leave no orders. I just told him to stay there and see that nobody moved us off.' In answer to the question, 'Why did you want somebody with you?' Goodrich answered, 'Well, I thought probably some of them Union Oil Company fellows might come around, and fire me off.' He stayed on the place about six nights and left Lunblau in charge. Their presence was discovered, and it was reported to the oil company that when Lunblau was requested to get off the property, he said he would not, that he was there guarding the place, and that he did not want any trouble, or he did not want to kill anybody, but that he would shoot enough to keep the boys busy, if he was interfered with. Lunblau's statements were admitted to be hearsay, but he was removed and put in jail under a writ issued by a justice of the peace on a criminal complaint. Plaintiffs claim to have had some further possession initiated under the same acts, also constructive possession through Jameson. Plaintiffs filed suit in the district court on March 2, 1926.

Some of the instruments of record in the county clerk's office showing how the title passed out of Goodrich and subsequently became vested in defendants are as follows: August 28, 1893, trust deed from Goodrich to Fred E. Smith, trustee, to secure payment of notes; November 28, 1898, tax deed from county treasurer to James D. Jameson; August 29, 1901, trustee's deed, from Smith, trustee, to Jameson; January 27, 1902, warranty deed from Jameson to Wm. T. Seamans; July 3, 1909, sheriff's certificate of purchase, followed by sheriff's deed, under an execution against Seamans; July 14, 1910, quitclaim deed from Seamans to one of defendants' remote grantors. From thence on to June 1, 1925, defendants' chain of title is shown by numerous warranty and quitclaim deeds; a decree of foreclosure in the year 1915 in the district court of Larimer county; a deed from a trustee in bankruptcy, executed in 1914 pursuant to order of the United States court, involving the bankrupt estate of a former owner; four administrator's deeds, from L. C. Moore, as administrator of the estate of Russell W. Fleming, deceased, pursuant to orders of the probate court; also an oil and gas lease, and several assignments thereof, and also royalty interests in some of the defendants.

1. In the consideration of this case, we have before us the transcript of record, consisting of three large volumes, and two volumes of the abstract with 1983 folios on 806 printed pages, followed by 109 assignments of error which cover 46 additional pages. There are 578 pages of plaintiffs' briefs, besides defendants'. The case was orally argued.

We have come upon expressive language of United States Circuit Judge Adams of the Eighth Circuit, quoting from the Supreme Court of the United States, which is appropriate to this case. The learned jurist said this:

'There are 78 assignments of error in this case, but, in our opinion, very few questions presented on the record for consideration. The practice of filing such a large number of assignments cannot be approved. It thwarts the purpose sought to be subserved by the rule requiring any assignments. It points to nothing. It leaves opposing counsel and the court as much in the dark concerning what is relied on for error as if no assignments were filed.

'Mr. Justice Miller, in Phillips, etc., Const. Co. v. Seymour, 91 U.S. 646, 648, 23 L.Ed. 341, says:

"The object of the rule requiring an assignment of errors is to enable the court and opposing counsel to see on what points the plaintiff's counsel intend to ask a reversal of the judgment, and to limit the discussion to those points. This practice of unlimited assignments is a perversion of the rule, defeating all its purposes, bewildering the counsel of the other side, and leaving the court to gather from a brief, often as prolix as the assignments of error, which of the latter are

really relied on. We can only try to respond to such points made by counsel as seem to be material to the judgment which we must render." Michigan Home Colony v. Tabor (C.C.A.) 141 F. 332, 333, 334.

We adopt the above words without modification, except to note that in the Michigan Home Colony Case, supra, there were 78 assignments of error, while here there are 109. There are 12 grounds alleged in plaintiffs' motion for a new trial. The added grounds in the assignments of error apparently came about through the employment of additional counsel for plaintiffs in this court, but we have often said that we do not consider assignments of error on grounds which the trial court has not had an opportunity to consider, when a motion for a new trial has not been dispensed with by court order. Plaintiffs have not been prejudiced, however, through lack of forethought, for we do not find any of the assignments to be well taken.

2. We cannot grant the motion to dismiss for want of jurisdiction. This court has complete jurisdiction over the subject-matter and over the persons of all defendants except two, Thomas S. Harrison individually and as trustee. It was acquired by a voluntary general appearance in this court made by the attorneys for defendants in this case. The decree quiets title in twenty defendants. Some of them were designated in the district court as unknown, but they appeared and answered and had their rights decreed. Plaintiffs' counsel made the mistake of continuing to designate them as 'unknown' in this court; they were not named in the scire facias; their interests are not severable; they are indispensable parties. As they are such, the failure to make them parties would ordinarily be fatal to the writ. 3 C.J. 1014, § 970; 2 R.C.L. p. 68, § 50; 2 Ency. Pl. and Pr. p. 192; Chapman v. Pocock, 7 Colo. 204, 3 P. 219; Quimby v. Boyd, 8 Colo. 194, 201, 6 P. 462. But the voluntary general appearance entered in this court by attorneys on behalf of the absentees cures the defect in...