Hale v. Belgrade Co.
| Decision Date | 18 December 1925 |
| Docket Number | 5801. |
| Citation | 242 P. 425,75 Mont. 99 |
| Parties | HALE et al. v. BELGRADE CO., Limited, et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Gallatin County; George B. Winston Judge.
Action by Mary Barbara Hale and others against the Belgrade Company Limited, the Farmers' Bank of Belgrade, and others. From a decree for plaintiffs, defendant bank appeals. Affirmed.
See also, 240 P. 371.
George Y. Patten, of Bozeman, for appellant.
Walter Aitken, of Bozeman, for respondents.
The complaint herein is in the usual form in an action to quiet title in plaintiffs to certain real estate described; it is therein alleged that each of the defendants claims some interest in the property adverse to plaintiffs, but that such claims are "without right." The plaintiffs were, at the time of the commencement of the action, minors, and therefore appeared by guardian ad litem.
The Belgrade Company, Limited, demurred to the complaint, but, on the demurrer being overruled, failed to plead further, and its default was duly entered. The Farmers' Bank of Belgrade, by affirmative allegations in its answer, claimed a lien upon the property described in the complaint, by reason of a deficiency judgment entered October 20, 1922, in a foreclosure proceeding against other property of its judgment debtors, W. J. Hale and Rose L. Hale, parents of the plaintiffs, and further alleged that the deed under which plaintiffs claim title, and which was executed on October 18, 1922, by Rose L. Hale, was without consideration moving from plaintiffs and was wholly voluntary, sham, and fictitious, and was given for the purpose of concealing the property of the said Rose L. Hale and to hinder, delay and defraud this defendant and her other creditors.
The cause was tried to the court without a jury, and resulted in judgment and decree quieting title to the property in the plaintiffs, and from this judgment the defendant Farmers' Bank of Belgrade has appealed.
Counsel for plaintiffs has filed herein a motion to strike from the transcript on appeal the bill of exceptions contained therein, upon the grounds: (1) That, as the time for the preparation and presentation of the bill was extended by stipulation and not by order of court, the court was without jurisdiction to settle the bill. (2) That the bill was settled without the county in which the trial was had.
1. In support of the first ground stated, counsel cites O'Donnell v. City of Butte, 72 Mont. 449, 235 P. 707. In that case this court held that "on the expiration of the time allowed by statute (whether original or extended) the court loses jurisdiction to settle or sign the bill," and that a bill "presented, settled, and signed after the expiration of the time * * * is a nullity, and cannot be considered on an appeal, * * * even though counsel should, by consent or written stipulation filed in the appellate court, agree that it shall be considered." Counsel asserts that, while he does not withdraw from his stipulation, the latter clause of the above quotation prohibits counsel from stipulating for an extension of time. The situation here presented, however, differs materially from that shown in the record in the O'Donnell Case. Here it is admitted that the stipulation for extension of time was entered into and filed before the expiration of the statutory time, while the declaration found in the O'Donnell Case, relied upon by counsel, was made with references to, and applies only to, a reinvestiture of jurisdiction after the trial court had lost jurisdiction.
Stipulations are recognized by courts generally, and may govern in procedural matters so long as counsel do not thereby attempt to confer jurisdiction where none exists, or where jurisdiction has theretofore been lost, or to determine thereby questions of law or the validity of statutory provisions, or to affect rights other than those existing between the parties to the suit in which the stipulation is filed; they may go so far as to waive statutory provisions or irregularities. 36 Cyc. 1285.
Nothing said in the O'Donnell Case indicates that counsel may not, while the court still retains jurisdiction, waive the necessity of securing a court order for further time, and, having done so, the plaintiffs will not be heard to question the sufficiency of the bill, settled and allowed pursuant to the stipulation entered into on their behalf.
2. The contention that the bill of exceptions was not settled within the jurisdiction in which the case arose and the trial was had is not borne out by the record; therefore we are not called upon to determine whether, under the provisions of chapter 53, Laws of 1923, declaring the jurisdiction of district judges in certain judicial matters coextensive with the state of Montana, a bill of exceptions may be settled outside of the county in which the cause was tried.
Section 9390, Revised Codes of 1921, provides the steps to be taken in the settlement of a bill of exceptions, among which are that the "judge must designate the time and place at which he will settle the bill" and that "at the time designated, the judge must settle the bill." After prescribing the manner of settlement, the section declares that, "when settled, the bill must be signed by the judge or referee with his certificate to the effect that the same is allowed, and shall then be filed with the clerk."
The record discloses that all necessary steps were taken as directed by the statute; that there were two bills of exceptions presented in the case and amendments thereto filed, and that, on the day designated, the judge who tried the case sat in open court in Gallatin county, counsel for plaintiff and defendant being present, and settled the bills of exceptions, determined what should be included therein, and passed upon the amendments offered. He then directed that the two bills be incorporated in one, with the amendments. This clerical work requiring time; the judge returned to his home in Anaconda where, a few days later, on receipt of the bill in the form in which it was settled, he signed the bill and attached thereto his certificate as required. Thus it appears that the judicial function was performed within Gallatin county; no rights were lost by plaintiffs by this procedure, and the bill as settled and signed was exactly what it would have been had it been in shape for signature of the judge at the time it was settled.
The signing was no part of the settlement of the bill, and the certificate was merely evidence of what was done at the time of the settlement. Mr. Justice Holloway, speaking for the court in State ex rel. Lindsey v. Ayers, 52 Mont. 62, 155 P. 276, said:
The statute requires only that the bill shall be settled at the time and place designated. It then requires that the bill, as settled, be signed by the judge and his certificate attached thereto, which action shall follow as soon after the bill is settled as possible; but these are acts over which the party presenting the bill has no control, and a failure on the part of the court to follow the statute cannot defeat the rights of such party. A note to Cincinnati Traction Co. v. Ruthman, 85 Ohio St. 62, 96 N.E. 1019, found in Ann. Cas. 1913A, 914, and citing many authorities, reads:
Even though the action of the judge was irregular-which we do not hold it to be, under the above authorities-such action does not warrant the action sought, and the motion to strike is therefore denied.
3. Reverting to the question presented by the appeal. The record contains no substantial conflict in the evidence. The plaintiffs introduced documentary evidence of title in Rose L. Hale on October 18, 1922, and transfer on that day to plaintiffs, and rested their case. The defendant then proved its deficiency judgment, the issuance of execution thereunder, and levy upon and sale of "all the right, title and interest of" W. J. Hale and Rose L. Hale in and to the property in controversy, to defendant, and the subsequent issuance to it of a sheriff's deed therefor. For the purpose of proving its allegations concerning the transfer, it relied upon the testimony of Rose L. Hale. The facts brought out on her examination and cross-examination are substantially as follows:
W. J Hale and Rose L. Hale acquired this property in 1912; the consideration therefor being $19,500. Of this amount they secured $7,000 from one H. J. Stevens, an uncle of Rose L. Hale, who lived with the Hales for years, giving no security therefor; $11,000 was evidently secured from the Drake-Ballard Company, and a mortgage given on the property for the payment thereof. Thereafter W. J. Hale and Rose L. Hale borrowed money from time to time for the payment of interest on the Drake-Ballard mortgage, for taxes on the property, and for other purposes, from Stevens, without giving to him any security for its...
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