Gustin v. Byam

• Court: Idaho Supreme Court
• Writing for the Court: BUDGE, J.
• Citation: Gustin v. Byam, 41 Idaho 538, 240 P. 600 (Idaho 1925)
• Decision Date: 06 October 1925
• Parties: LILLIE C. GUSTIN, Formerly LILLIE C. BYAM, Appellant, v. R. D. BYAM, Husband of Plaintiff, BERT BYAM, ERB HARDWARE COMPANY, a Corporation, and HARRY LYDON, as Sheriff of Nez Perce County, State of Idaho, Respondents

240 P. 600

41 Idaho 538

LILLIE C. GUSTIN, Formerly LILLIE C. BYAM, Appellant, v. R. D. BYAM, Husband of Plaintiff, BERT BYAM, ERB HARDWARE COMPANY, a Corporation, and HARRY LYDON, as Sheriff of Nez Perce County, State of Idaho, Respondents

Supreme Court of Idaho

October 6, 1925

APPEAL AND ERROR-SPECIFICATION IN BRIEFS OF ERRORS IN RULINGS ON PLEADINGS OR INSTRUCTIONS-FRAUD-EVIDENCE-ADMISSIBILITY - DEFAULT JUDGMENT - AUTHORITY OF CLERK TO ENTER - WHEN VOID - HUSBAND AND WIFE - COMMUNITY PROPERTY - TRANSFERS IN FRAUD OF WIFE - SALES - POWER OF HUSBAND - COSTS.

1. Assignments of error for which no propositions of law are stated, authorities cited, or argument made in the brief, or reasons given why the ruling of the trial court was erroneous, will not be considered on appeal.

2. Reversible error cannot be predicated of the trial court's ruling that a foundation must be laid for the admission of a document in evidence, where it is offered against all defendants and by the terms of the offer and by the instrument itself its competency and admissibility against some of the defendants is not made to appear.

3. C S., sec. 6832, does not authorize the clerk of the district court to enter a judgment by default in an action upon contract where the damages claimed are not liquidated by the terms of the contract itself.

4. A judgment by default entered by a clerk of the district court for principal, interest and attorney fee, in an action upon a promissory note which provides for an unliquidated reasonable attorney fee in the event of suit, is void.

5. In an action by a divorced wife against her former husband and others to recover damages for an alleged fraudulent transfer of community personal property, the wife cannot recover unless she proves that the transaction was in fact fraudulent as to her.

6. The husband has the right to sell community personal property even though it be exempt from execution.

7. The transactions in the instant case examined, and held to amount to a valid sale by the husband of the community personal property.

8. On denial of a motion to strike his brief, prevailing party will not be allowed costs for the printing of brief where it was not served within the time provided by the rules of this court.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action by divorced wife against former husband and others to recover damages for alleged fraudulent transfer of community personal property. Judgment for defendants. Affirmed.

Judgment affirmed, with costs, except for printing brief, to respondents.

Daniel Needham, for Appellant.

The judgment by default entered by the clerk of the district court was void. (Parke v. Wardner, 2 Idaho (263) 285, 13 P. 172; C. S., sec. 6832; Freeman on Judgments, 4th ed., sec. 533; Providence Tool Co. v. Prader, 32 Cal. 634, 91 Am. Dec. 598; Curry v. Roundtree, 51 Cal. 184; Blount v. Gallaher, 22 Fla. 92.)

Fred E Butler, for Respondents.

Plaintiff has no capacity to maintain this action. (Cummings v Cummings, 72 Cal. xxi, 14 P. 562; McKay on Community Property, sec. 412; Labonte v. Davidson, 31 Idaho 644, 175 P. 588.)

Community property is liable for the debts of the husband whether incurred for his own use or for the benefit of the community. (Holt v. Empey, 32 Idaho 106, 178 P. 703.)

Failure to claim property as exempt until after the sale constitutes a waiver of the claim of exemption. (Stanton v. French, 83 Cal. 194, 23 P. 355; Parsons v. Evans, 44 Okla. 751, 145 P. 1122, L. R. A. 1915D, 381; Pillsbury v. Title Ins. & Trust Co., 175 Cal. 454, 166 P. 11, 3 A. L. R. 1396; State v. Boulden, 57 Md. 314; In re Stern, 208 F. 488.)

There can be no actionable conspiracy where the act done is lawful or the means employed are also lawful. (Barton v. Rogers, 21 Idaho 609, Ann. Cas. 1913E, 192, 123 P. 478.)

"The rule is well settled that in addition to specifying the alleged errors complained of the brief should state reasons to show why the rulings complained of were erroneous." (3 C. J. 1428; Los Angeles Traction Co. v. Wilshire, 135 Cal. 654, 67 P. 1086; Idaho S.Ct. Rules No. 42.)

BUDGE, J. William A. Lee, C. J., and Taylor, J., concur, WM. E. LEE, J., Givens, J., Concurring Specially.

OPINION

BUDGE, J.

At the time appellant commenced her action in the district court she was the wife of respondent R. D. Byam. In the interval, some four years, between the commencement and trial, she had secured a divorce and had remarried. She brought this suit against her former husband, his brother Bert Byam, Erb Hardware Company, a corporation, and the sheriff of the county, to set aside a judgment procured by the hardware company against her husband, and to recover the value of the community personal property levied upon and sold at sheriff's sale under an execution issued upon said judgment, and for $ 5,000 damages for alleged malicious taking of such property, and for mental and bodily pain and suffering alleged to have been caused by the levy upon the personal property and its sale depriving her of the necessaries of life. The complaint alleges that all of the respondents conspired to cheat and defraud appellant out of the personal property sold at the sheriff's sale, all of which property she claims was exempt from execution, and that at such time she was abandoned by her husband and left in destitute circumstances.

Appellant and R. D. Byam married in 1915. In 1916 she and her husband lived upon land of about 550 acres owned by her father, Joe Hermann, under an arrangement by which the husband was to farm the land during that year and give one-half of the crop for the use of the land. On July 28, 1916, R. D. Byam gave to his brother Bert a note for $ 750 secured by a chattel mortgage covering the whole of the crops, including the landlord's share. Appellant did not join in the execution or acknowledgment of this mortgage. At the insistent request of Joe Hermann this mortgage was released by the mortgagee on September 26th, by an instrument which recited that the indebtedness secured was fully paid.

Prior to September 30th Bert Byam indorsed to the hardware company a note for $ 750, signed by R. D. Byam, dated July 28, 1916, payable on demand, contended to be the same note theretofore secured by the chattel mortgage. On September 30th the hardware company brought suit on this note, together with one for $ 61.60 given to it by R. D. Byam, praying judgment for principal, interest and a total of $ 100 as reasonable attorney fees for the prosecution of the action. On the same day a summons was served on R. D. Byam, a demurrer filed by his attorney, and a notice served upon such attorney that the demurrer would be called up for hearing October 2d. On the latter date an order was made by the district judge in chambers overruling the demurrer and giving the defendant to October 3d to answer. No answer being filed, the clerk of the court on October 5th entered the default of R. D. Byam, and immediately thereafter entered a judgment against him for the principal amount of the notes, together with interest, costs and $ 100 attorney fees, and issued an execution thereon. Under such execution the sheriff of the county on October 6th levied upon Byam's share of the grain, wheat straw and hay raised and then upon the premises, and on October 13th sold such one-half share to the hardware company for the sum of $ 1,200.

It further appears that on September 29th R. D. Byam left the farm and did not again return. According to appellant's testimony, he left her without means of support, and did not make or offer to make a home elsewhere for her and their infant child. On October 20th she made a demand upon the sheriff for the return of the personal property sold by him or for its value, alleging that the whole thereof was exempt from execution, but this demand was not complied with.

Upon the trial, at the close of appellant's testimony, the court on motion of respondents instructed the jury that the evidence produced by appellant did not warrant a verdict in her favor. Thereupon the jury returned a verdict in favor of the respondents. From judgment entered upon such verdict this appeal is prosecuted. No evidence was offered by appellant as to the amount claimed by her as damages for the alleged malicious taking of her property or for mental and bodily pain and suffering; therefore, outside of errors alleged to have been committed by the trial court in the rejection of evidence, this case presents only the question of appellant's right to recover the value of the community personal property sold at sheriff's sale.

Appellant's third and fourth assignments of error are that the court erred in not specifying the points stated in respondent's motion for a directed verdict, and erred also in overruling the appellant's demurrer, general and special, to respondents' answer and separate affirmative defenses. No propositions of law are stated, authorities cited, or reasons given or argument made in appellant's brief as to why the ruling of the trial court was erroneous, therefore they will not be considered.

Appellant first contends that the trial court erred in not admitting in evidence the chattel mortgage offered by appellant, being the one given by R. D. Byam to his brother securing the payment of the $ 750 note. Appellant offered this instrument in evidence to show a conspiracy of all the respondents to defraud the appellant out of the community personal property exempt from execution, and by its admission sought to prove that such chattel mortgage was the basis of the hardware company's action, contained a copy of the note sued upon in that case, showed that the pretended indebtedness had been paid, and that...