Lada v. Wilkie

Decision Date18 December 1957
Docket NumberNo. 15812.,15812.
PartiesAnna LADA and Martha Hein, by Eugene Wengert, their attorney in fact, Appellants, v. Charlie WILKIE, a single person, William W. Eichhorst and Eileen Eichhorst, his wife, Western Surety Company, a corporation, and Lario Oil and Gas Company, a corporation, and H. R. Talkington and Madge Talkington, his wife, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Martin J. Torphy, Milwaukee, Wis., for appellants.

Ward M. Kirby, Dickinson, N. D. (Mackoff, Kellogg, Muggli & Kirby, Dickinson, N. D., were on the brief), for appellees Charlie Wilkie, William W. Eichhorst and Eileen Eichhorst, his wife, and Western Surety Co.

Before SANBORN, JOHNSEN, and VOGEL, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from an order of the District Court dismissing the complaint of the plaintiffs (appellants) upon the grounds "that this District Court is without jurisdiction to grant a part of the relief demanded in the Complaint" and "that plaintiffs have failed to state a claim upon which relief can be granted (having failed to allege performance of conditions precedent to their right to recover, as required by Rule 9(c), Federal Rules of Civil Procedure 28 U.S.C. A.)."

Broadly stated, the question for review is whether the complaint presented any issues of fact or of law which entitled the plaintiffs to a trial. Publicity Building Realty Corp. v. Hannegan, 8 Cir., 139 F.2d 583. In that case this Court said (at pages 586-587):

"This Court has repeatedly said that a motion to dismiss a complaint should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. Leimer v. State Mut. Life Assur. Co., supra 8 Cir., 108 F.2d 302, at page 306 of 108 F.2d; Sparks v. England, 8 Cir., 113 F.2d 579, 581, 582; Cohen v. United States, 8 Cir., 129 F. 2d 733, 736; Louisiana Farmers\' Protective Union, Inc., v. Great Atlantic & Pacific Tea Co., 8 Cir., 131 F.2d 419, 423, 424; Musteen v. Johnson, 8 Cir., 133 F.2d 106, 108.
"Rule 22(2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that actions brought under § 24(26) of the Judicial Code as amended, Title 28 U.S.C.A. § 41(26), shall be conducted in accordance with those Rules. The Federal Rules of Civil Procedure do not sanction the disposition of doubtful issues of fact or law upon motions to dismiss for insufficiency of pleadings. The Rules contemplate a determination of all such issues by the trial court after a hearing, and that the trial court shall make findings of fact and conclusions of law, to the end that the parties to the litigation and the reviewing court may know the exact factual and legal basis for the trial court\'s decision. This, of course, does not mean that if it is certain that a plaintiff has no claim which entitles him to relief, the District Court is obliged to hold a trial. If it clearly appears from a complaint that a trial of the claim asserted will be futile, the court is not required to proceed further. * * *"

In Sparks v. England, 8 Cir., 113 F. 2d 579, 581-582, we said:

"* * * This Court has consistently disapproved of the practice of terminating litigation, believed to be without merit, by the dismissal of complaints for informality or insufficiency of statement. See Leimer v. State Mutual Life Assurance Co., 8 Cir., 108 F.2d 302, 305. If it is conceivable that, under the allegations of his complaint, a plaintiff can, upon a trial, establish a case which would entitle him to the relief prayed for, a motion to dismiss for insufficiency of statement ought not to be granted. See and compare Donnelly Garment Co. v. International Ladies\' Garment Workers\' Union, 8 Cir., 99 F.2d 309, 312; Leimer v. State Mutual Life Assurance Co., supra."

See, also, Dennis v. Village of Tonka Bay, 8 Cir., 151 F.2d 411, 412-413 and cases cited.

In United States v. Duggan, 8 Cir., 210 F.2d 926, 933, it was said:

"* * * Complicated and doubtful issues of fact and law can seldom be satisfactorily determined by dismissing a pleading for insufficiency of statement."

See, also Kingwood Oil Co. v. Bell, 7 Cir., 204 F.2d 8, 13, and Rennie & Laughlin, Inc. v. Chrysler Corporation, 9 Cir., 242 F.2d 208, 213.

The instant case is obviously one which should not have been disposed of by a dismissal of the complaint for insufficiency of statement or of the prayer for relief. We are satisfied that it would not have been so disposed of had counsel taken the pains to call to the attention of the District Court the many cases in this and other federal appellate courts in which cases orders of dismissal were disapproved and set aside, and the cases remanded for trial.

In substance, the complaint shows: That the plaintiffs are residents and citizens of Germany, and heirs at law or legatees of Edward Josucks, deceased, who, prior to his death, was a resident of Billings County, North Dakota, and the owner of lands and personal property located in that County; that the defendant Wilkie is a resident and citizen of Billings County, North Dakota; that the defendants Eichhorst and the defendants Talkington are residents and citizens of North Dakota who have acquired interests in the Edward Josucks lands from Wilkie; that the Lario Oil and Gas Company, a Kansas corporation, has an oil lease from Wilkie, the Eichhorsts and the Talkingtons on the Josucks lands; that the defendant Western Surety Company on September 7, 1951, issued a surety bond guaranteeing the fidelity of Charlie Wilkie, who on that day was appointed administrator of the estate of Edward Josucks, deceased, by the County Court of Billings County, North Dakota; that Wilkie, as administrator, inventoried certain lands and personal property of Josucks described in the complaint; that the inventory was fraudulent in that not all of the Josucks property was listed; that the defendant William W. Eichhorst was the attorney for Wilkie and knew the facts concerning the ownership and amount of property of the Josucks estate; that Eichhorst, on or about September 10, 1951, with the knowledge and at the solicitation of Wilkie, with intent to deceive and defraud the plaintiffs, and without informing them of the extent of the property of Josucks, deceased, and before any inventory was filed in the probate proceedings in the County Court of Billings County, falsely represented that Wilkie, who in fact had no interest in the property of the estate, was the joint owner with Edward Josucks of all the property of which Josucks died seized, and that Wilkie had a claim to one-half of the estate and would pay the plaintiffs $20,000 for their entire interest in the estate; that Eichhorst stated to them that the offer was a liberal one, and advised them to take it; that the plaintiffs, being foreigners and ignorant of the true facts, were induced by these false representations, made to them, to execute "Waivers of Notice of all Hearings, Assignments of...

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