Gravelin v. Porier
| Decision Date | 25 October 1926 |
| Docket Number | 5929. |
| Citation | 250 P. 823,77 Mont. 260 |
| Parties | GRAVELIN v. PORIER et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; George B. Winston Judge.
Suit by Anna Gravelin against Marie Porier and others, in which Joseph N. Gravelin, administrator of the estate of Anna Gravelin, deceased, was substituted as plaintiff Judgment for plaintiff, and defendants appeal. Affirmed.
J. E Healy and A. C. McDaniel, both of Butte, for appellants.
William Meyer, of Butte, for respondent.
Appeal from a judgment of the district court of Silver Bow county awarding to, and directing the administrator of the estate of Euphemie Leger Vautour, deceased, to turn over to, the plaintiff all of the property of said estate, after deducting the amount of the debts of the deceased and the expense of administration.
On October 27, 1923, one Anna Gravelin filed in the district court of Silver Bow county a complaint in which she named all of the individual defendants herein as heirs at law of Euphemie Leger Vautour. The complaint alleged that Rosamund Vautour died in 1918, leaving his wife, Euphemie, surviving him, and that all of the property acquired by either of them then stood in the name of the wife. It is then alleged that the wife died on the 14th day of April, 1922, leaving an estate consisting of real and personal property in Silver Bow county, and that the individual defendants would take said property as the heirs at law of Euphemie Leger Vautour, except for the agreement set up in the complaint. The complaint then alleges that the plaintiff was born in 1889 and came, with her mother, to the home of the Vautours in 1890, where she lived for a period of two years, when the mother entered into an agreement with the Vautours that she would yield the care, custody, and control of said child to the Vautours in consideration of their agreement to adopt said child, care for her, educate her, and treat her as their own child and would each make a will leaving to said child the share in their property which a natural child would receive, and that she "would receive a child's share in their estate" at their death. The complaint alleges that the father of said child had deserted the mother and child, and that at the time the agreement was made his whereabouts were unknown and that the mother was the guardian of the child.
It is further alleged that the mother and child performed all the conditions of the agreement, and that the Vautours did receive the child and care for her, educate her, exercise custody and control over her, and lavish affection upon her, and, in fact, treat her as their own child until she became of age; that plaintiff was given and took the name of Anna Vautour and addressed the Vautours as father and mother, and rendered service, obedience, and affection to them in the same manner as would a natural child.
It is then alleged that the Vautours failed to evidence the adoption in the manner and form prescribed by law, which fact was not known to plaintiff and her mother until after the death of Rosamund Vautour, and that each of the Vautours failed to leave a will as agreed. The prayer of the complaint is that the court enforce the contract of adoption, declare the defendants holders of the estate in trust for the plaintiff, and decree that the plaintiff is entitled to the distribution of the whole estate.
Summons having been issued and returned unserved for the reason that none of the defendants resided within the jurisdiction of the court, an alias summons was secured and publication thereof made in the manner prescribed by law. The affidavit for publication of summons gives the last-known residence of all defendants, and shows that most of them were residents of Canada, and the others of states other than Montana.
The defendants named in the original complaint appeared by counsel and duly moved to quash the service on the ground and for the reason that all of the defendants were nonresidents of the state of Montana and the action was one in personam, in which service by publication could not confer jurisdiction of the persons of defendants on the court. This motion was overruled, and the defendants saved their exception to the ruling, and thereafter a bill of exceptions thereon was duly served, settled, and allowed. Thereupon the defendants moved the court that the plaintiff be required to separately state and number her alleged causes of action, to wit: (1) For the specific performance of a contract for adoption; (2) on a contract to make a will; and (3) to have plaintiff declared the owner of and entitled to the entire estate. This motion was denied, and a bill of exceptions thereon settled and allowed.
Thereafter the plaintiff filed herein an amended complaint, being the same as the original complaint except that John Lindsay, as administrator of the estate of Euphemie Leger Vautour, was made a defendant. No motion was made either by the original defendants or the defendant administrator to require the plaintiff to separately state and number the alleged separate causes of action set out in the amended complaint, but by separate demurrer John Lindsay and the individual defendants challenged the sufficiency of the complaint upon the grounds: (1) That it did not state facts sufficient to constitute a cause of action; (2) that causes of action were improperly united therein; and (3) that it was ambiguous and unintelligible in the particulars stated. These demurrers were overruled, and thereafter the defendants answered, denying the allegations of the complaint and affirmatively alleging laches, the statute of frauds, and the statute of limitations. Replies were filed denying the affirmative allegations of the answers, and issue thus joined November 10, 1924. In July, 1925, the plaintiff died and thereafter the administrator of her estate was substituted as plaintiff.
The cause was tried on October 30, 1925, Hon. George W. Winston, of the Third judicial district, presiding. At the opening of the trial defendants objected to the introduction of any evidence on the ground that the court was without jurisdiction and that the complaint did not state facts sufficient to constitute a cause of action. These objections were overruled, and both sides introduced evidence, and at the close of the trial the court took the matter under advisement, and later made findings of fact and conclusions of law, on all points raised in the pleadings and in the evidence, in favor of plaintiff. Judgment followed in accordance with the findings and the prayer of the complaint, and from this judgment the defendants have appealed.
There is but one appeal before us, the notice of which is signed jointly by counsel for John Lindsay, as administrator, and counsel for the individual defendants, and recites that "the defendants hereby jointly and severally appeal" from the judgment. A joint brief was filed in which, however, such joining counsel separately specify error. Counsel for the administrator has numbered his specifications successively from 1 to 11, but No. 11 predicates error upon nine findings of the court, merely designating them by number, and upon the action of the court "in making each and all of the conclusions of law set forth," while counsel for the individual defendants makes 17 specifications of error raising the same and additional questions. Having thus defined the issues on appeal, counsel again get together in a joint argument, which, however deals only with certain of the questions presented by the specifications of error, does not refer directly to any of those specifications, and so mingles the presentment of the points involved that we have found it rather difficult to follow many of the arguments presented to their ultimate conclusion.
Counsel for plaintiff complains in his brief, rather bitterly of this treatment of the matter, and we here call attention of the profession thereto in the hope that a more strict adherence to the rules of this court respecting the preparation of briefs will be indulged in in the future.
From a careful reading of appellants' brief we conclude that only the questions hereinafter discussed are relied upon, and that those questions presented by specifications of error, but not thereafter argued, have been abandoned. Stephenson v. Home Ins. Co., 67 Mont. 193, 214 P. 955; National Cash Register Co. v. Wall, 58 Mont. 60, 190 P. 135; Biering v. Ringling, 74 Mont. 176, 240 P. 829.
1. The first question presented by defendants is as to the jurisdiction of the persons of the defendants. The bill of exceptions thereon discloses that the written motion and notice of motion were served and filed on December 14, 1923, by counsel, whose appearance for the defendants is not and cannot be questioned. The notice of motion advised counsel for the plaintiff that counsel for the defendants would, on the 22d day of December, 1923, at 9:30 a. m., or as soon thereafter as counsel could be heard, "at department No. 1 of said court," move the court to quash the service. It further appears from said bill of exceptions that, under the rules of court in the district, this cause was "allotted" to department No. 1, and that on the 20th day of December, 1923, or two days before said motion was to be heard in that department, the following order was entered in the minutes of department No. 1:
"This day, on application of counsel for defendants and for convenience, this case was by the court ordered transferred to department No. 2 of this court, Hon. William E. Carroll, judge presiding, for all further hearings and trial.
On December 29, 1923, counsel for defendants, with counsel for plaintiff, appeared in Department No. 2 and presented the...
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