Larsen v. McKenzie

• Decision Date: 07 December 1925
• Citation: 41 Idaho 715,241 P. 607
• Parties: REN LARSEN, Appellant, v. K. McKENZIE (Sometimes Known as K. McKINZIE), Respondent
• Court: Idaho Supreme Court

241 P. 607

41 Idaho 715

REN LARSEN, Appellant, v. K. McKENZIE (Sometimes Known as K. McKINZIE), Respondent

Supreme Court of Idaho

December 7, 1925

FINDINGS-CONFLICT OF EVIDENCE-APPEAL.

Findings of fact made by the trial judge based on conflicting evidence will not be disturbed if the evidence in support of such findings, if uncontradicted, is sufficient to sustain the findings.

APPEAL from the District Court of the Sixth Judicial District, for Custer County. - Hon. Raymond L. Givens, Judge. Action to quiet title to mining claims. Judgment for defendant. Affirmed.

Peterson & Coffin, for Appellant, cite no authorities on point decided.

Whitcomb Cowen & Clark, for Respondent.

Where there is a conflict in the evidence, the findings and judgment of the trial court will not be disturbed on appeal when the proof is sufficient, if uncontradicted, to support it. (Choate v. North Fork, Highway Dist., 39 Ida 483, 228 P. 885; Bedal v. Smiths, 36 Ida. 797, 214 P. 213; Woodland v. Hodson, 35 Ida. 514, 207 P. 715; Viel v. Summers, 35 Ida. 198, 209 P. 454; Fruitland State Bank v. Lauer, 34 Ida. 272, 200 P 127; Clifford v. Lake, 33 Ida. 77, 190 P. 714; Bafus v. Peeper, 33 Ida. 324, 194 P. 96.)

BUDGE J. William A. Lee, C. J., and Wm. E. Lee and Taylor, JJ concur. Givens, J., being disqualified, took no part.

OPINION

BUDGE J.

From the record it appears that on or about July 1, 1918, P. J Keenan was the record owner of an undivided 49/100's interest in a certain group of mining claims in Custer county. In the operation of these claims he became indebted to one McKenzie, who commenced an action against him about July 28, 1918, to recover such indebtedness, in which action McKenzie procured the issuance of a writ of attachment and caused a levy thereof to be made upon Keenan's interest in the mining claims. During the latter part of July, 1918, Keenan received orders to leave on August 9, 1918, for a training camp for the purpose of being inducted into the military service of the United States in the late war. The summons in the action of McKenzie v. Keenan was served upon the latter on August 8, 1918. On August 24, 1918, appellant filed his affidavit, in that action, showing that Keenan was in the military service and obtained an order suspending the proceedings until the further order of the court. The action abated until April 26, 1920, when respondent made a showing to the effect that Keenan had been mustered out in September, 1919, whereupon the abatement order was set aside the default of Keenan entered and McKenzie given judgment. Execution was issued upon this judgment and the sheriff proceeded to levy upon and advertise for sale Keenan's interest, in the mining claims. Appellant thereupon employed counsel, who instituted proceedings in behalf of Keenan, by motion in the case of McKenzie v. Keenan, to vacate and set aside the judgment and also instituted an injunction suit in the name of Keenan against the sheriff of Custer county and McKenzie to enjoin the sheriff's sale. The motion to vacate the judgment was denied, and upon the trial of the injunction suit the temporary writ was dissolved and a judgment entered denying the writ and dismissing the action. Thereafter a sale was had on execution, and on August 24, 1922, McKenzie, purchased at such sale the undivided 49/100's interest formerly owned by Keenan in the mining claims, and on September 11, 1923, received a sheriff's deed therefor. It is under the proceedings heretofore recited, culminating in the sheriff's deed, that McKenzie claims title to the 49/100's interest in the mining claims...