KOPRIAN v. MENNECKE

• Decision Date: 24 March 1949
• Docket Number: No. 5142,5142
• Citation: 53 N.M. 176,204 P.2d 440
• Parties: KOPRIAN v. MENNECKE et al.
• Court: New Mexico Supreme Court

53 N.M. 176

204 P.2d 440

KOPRIAN

v.MENNECKE et al.

No. 5142.

Supreme Court of New Mexico.

March 24, 1949.

[204 P.2d 440, 53 N.M. 176]

Frazier, Quantius & Cusack and Richard G. Bean, all of Roswell, for appellant.

G. T. Watts, of Roswell, for appellees.

SADLER, Justice.

The plaintiff below, as the appellant here, asks us to review a judgment rendered against him by the district court of Chaves County in a suit wherein he sought to hold his mother liable as a trustee for an accounting and for the gains on an interest in a business allegedly received by her to his use and benefit at the time his father was divorced by the mother forty-five years prior to institution of the suit. Louis Mennecke, the step-father, to whom the mother was married about ten years after the divorce, was joined as a defendant on the theory that the property allegedly received in trust plus gains thereon had become commingled with property in the joint ownership of his mother and stepfather.

The defendant, Christina Mennecke, whose marriage to the plaintiff's father, Joseph Koprian, took place in St. Louis, Missouri, in 1893, conducted a small dry goods store in that city for almost fifteen years beginning in 1896 before coming to New Mexico to reside upon her marriage to Louis Mennecke in 1912. It is the plaintiff's claim that his father was a part owner of this store and that upon sale thereof his interest was received by the mother in trust for the son's use and benefit. The mother stoutly denied that the father of plaintiff ever invested any money in the business or had the slightest interest therein. Accordingly, the defenses interposed were a denial that any trust ever existed, limitations, laches and a written release duly executed by plaintiff of all claims against his mother. With this brief statement of the controversy, a clearer understanding may be had of the trial court's findings and conclusions to follow. They read:

'I. That the defendant, Christina Mennecke, and Joe Koprian, were husband and wife and were divorced in St. Louis, Missouriin 1903, and that the defendant was awarded the care, custody and control of the plaintiff, who was then a minor.

'II. That at the time of the divorce between the said Christina Mennecke and Joe Koprian, aforesaid, there was no community property owned by the parties and that all of the property in the hands of the parties, or either of them, was a small store located in St. Louis, Missouri, which was acquired by Christina Mennecke from moneys borrowed by her, on her sole and individual credit, from her sister, father and brother, and from funds inherited by her.

'III. That in 1936 the plaintiff ceased to make his home with his mother and more than four years prior to the commencement of this action he had knowledge that his mother disclaimed any indebtedness in favor of the plaintiff and refused to makeany settlement claimed by him to be due him or to meet any of his demands for settlement.

'IV. That in the year 1944, after the plaintiff had made demands upon his mother for settlement, and at a time when he had knowledge regarding his claim to any property allegedly owned by his father, he signed a full and complete release to his mother, the defendant Christina Mennecke, and that he knew, or should have known, the terms of said release.

'V. That the defendant, Christina Mennecke, never at any time had any estate belonging to Joe Koprian, or held any estate in trust for the plaintiff, Joe Koprian, either constructive or resulting.

'VI. That the plaintiff has failed to establish proof of such a trust, either constructive or resulting.

'Conclusions of Law.

'1. That all property owned by Christina Mennecke, or held by her at the time of her divorce from Joe Koprian, consisting of the store in St. Louis, Missouri, and all cash on hand at that time, was her sole and separate estate.

'2. That the plaintiff did, on April 19, 1944, make, execute and deliver to the defendant, Christina Mennecke, a full and complete release of any and all claims of all and every character which he then had against the said Christine Mennecke and arising from the beginning of time to the date of the execution of said release.

'3. That any claim which plaintiff might have had against the defendants, or either of them, is barred by Limitations as such action, if any he ever had, accrued more than four years prior to the commencement of his action.

'4. That any action which plaintiff had, if any he ever had, is barred by the plaintiff's guilt of laches in that he has lawfully permitted such time to elapse that it is difficult, if not impossible, for the defendants, or either of them, because of the lapse of such period to either prove or disprove the facts surrounding the alleged trust. That the plaintiff has wholly and totally failed to carry the burden of proof in this action required of him by law.

'5. That the plaintiff is not entitled to an accounting from the defendants, or either of them, and that the defendants, and each of them, are entitled to recover their costs herein expended.

'6. That any findings of facts and conclusions of law requested by either the plaintiff or the defendants not consistent with the findings of facts and conclusions of law herein made are herely denied.

'Let judgment be entered accordingly.'

Judgment was entered as directed in the trial court's decision and this appeal is brought to review it and secure a newtrial. Counsel for the plaintiff argue their case under the single point that the trial court erred in dismissing the complaint because (a) the trust was established; (b) the release does not bind plaintiff, and (c) neither limitations nor laches bar him.

Thus it is that in order to secure a reversal counsel must satisfy us that the trial...