Lingenfelter v. Eby, 7375

• Court: United States State Supreme Court of Idaho
• Writing for the Court: Holden, Justice.
• Citation: 68 Idaho 134,190 P.2d 130
• Docket Number: 7375
• Decision Date: 18 February 1948
• Parties: LINGENFELTER v. EBY et al. EBY et ux. v. LINGENFELTER et al

190 P.2d 130

68 Idaho 134

LINGENFELTER
v.
EBY et al.

EBY et ux.
v.
LINGENFELTER et al

No. 7375

Supreme Court of Idaho

February 18, 1948

[68 Idaho 135]

Appeal from District Court, Third Judicial District, Ada County; Charles F. Koelsch, Judge.

Affirmed.

Hamer H. Budge and Dale Clemons, both of Boise, for appellant.

The failure of the court to make a finding on a material issue constitutes reversible error. I.C.A. 7-502; I.C.A. 7-302 and 7-303; Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490, 35 L.R.A.,N.S., 1142; Carson v. Thews, 2 Idaho 176, 9 P. 605; First National Bank v. Williams, 2 Idaho 670, 23 P. 552; Standley v. Flint, 10 Idaho 629, 79 P. 815; Jensen v. Bumgarner, 25 Idaho 355, 137 P. 529; Bentley v. Kasiska, 49 Idaho 416, 288 P. 897; Cheesbrough v. Jensen, 62 Idaho 255, 109 P.2d 889.

W. B. Bowler, of Boise, for cross-defendant, Earl F. Eby.

Hawley & Hawley and Claude V. Marcus, all of Boise, for respondents.

The burden of proof rests upon the party who asserts property is separate property to show such fact by a preponderance of the evidence. Clifford v. Lake, 33 Idaho 77, 190 P. 714; Humbird Lumber Company v. Doran, 24 Idaho 507, 135 P. 66; Chaney v. Gauld Company, 28 Idaho 76, 152 P. 468.

Where conflicting evidence is submitted to a trial court, either as a court of law or as a court of equity, the findings of the court on questions of fact will not be disturbed where there is competent evidence to support them. Viel v. Summers, 35 Idaho 182, 209 P. 454; Davenport v. Burke, 30 Idaho 599, 167 P. 481; Lus v. Pecararo, 41 Idaho 425, 238 P. 1021; Collins v. Hibbard, 48 Idaho 178, 279 P. 619.

Holden, Justice. Givens, C. J., Miller and Hyatt, JJ., and Sutphen, District Judge, concur.

OPINION

Holden, Justice.

This is a suit to quiet title to an undivided two-ninths interest in and to certain real property located in Ada county, together with an undivided two-ninths interest in and to certain uncut diamonds.

[68 Idaho 136] It appears, to use the language of appellant, that "Eugene W. Eby and Anna M. Eby were married on June 24, 1890, in the State of Nebraska. They migrated to Idaho, and in 1908 bought the real property which is involved in this action." It further appears three children were born of this marriage, namely, Vivian (Eby) Lingenfelter, appellant herein, Waldo W. Eby, respondent, and Earl F. Eby, nominally a respondent. It also appears that following the purchase of the property Eugene W. Eby and Anna Eby built a house, barn and other buildings on the property and reared a family and continued to live on the property as their home until after the death of the mother, Anna M. Eby, April 1, 1937. Many years after the purchase of the real [190 P.2d 131] property, Eugene W. Eby and Anna M. Eby were arrested on a charge of violating the federal Prohibition Act, 27 U.S.C.A. § 1 et seq. Following their arrest and before conviction, the Ebys, November 4, 1929, for a recited consideration of one dollar, conveyed the real property so acquired by them to their son, Earl F. Eby. Both were convicted February 14, 1930, and given jail sentences, Eugene W. Eby twelve months and Anna M. Eby eight months. December 1, 1930, Earl F. Eby conveyed the property (excepting certain of the property theretofore conveyed by him by quitclaim deed to one A. H. Smith) to his mother, Anna M. Eby, one of his grantors, for a recited consideration of the sum of $ 1, no money, in fact, being paid.

Following the death of Anna M. Eby, Eugene W. Eby again married February 26, 1938. March 12, 1940, Eugene W. Eby filed a petition in the probate court of Ada county for the purpose of having the property in question adjudged to be and distributed to him as the community property of himself and his first wife, Anna M. Eby, then deceased. April 11, 1940, a decree adjudging the property to be community property and decreeing it as such to Eugene W. Eby was rendered and entered in that court. April 17, 1940, Stella Eby (the second wife) commenced a suit for divorce in the district court in and for Ada county against Eugene W. Eby, as well as to recover a money judgment. On the same day lis pendens was filed and recorded. Following the commencement of the suit for divorce, Waldo W. Eby wrote appellant and her husband and then called them by phone and, at the direction of appellant's husband, went to the court house and obtained certain papers; having done that, he took the papers to California and discussed the existing situation with appellant and her husband, after which appellant's husband prepared an affidavit for the signature of respondent, Waldo W. Eby, for later use in support of a motion to be filed in the said probate court in the Matter of the Estate of Anna M. Eby, Deceased, to set aside the decree theretofore rendered and entered as aforesaid, adjudging the property in question to be community property.

[68 Idaho 137] August 2, 1940, Waldo W. Eby filed in said probate court in said proceeding a motion to set aside the decree entered April 11, 1940, adjudging the property to be community property. Thereafter, August 24, 1940, Waldo signed the affidavit prepared by appellant's husband, as aforesaid, and then filed the same in said probate court, in said proceeding, in support of said motion. The affidavit, in so far as pertinent here, stated: "That said Eugene W. Eby, as surviving husband, was entitled only to his share and interest as a surviving husband in the separate property of the deceased wife, and that affiant [Waldo W. Eby] and his said brother [Earl F. Eby] and sister [Vivian Eby Lingenfelter] were entitled to such rights and interests in said property and estate as separate property and estate of said decedent [Anna M. Eby], as provided by law;" that affiant [Waldo W. Eby] "if said decree of distribution be set aside, intends to and will file in the above entitled proceeding [In the Matter of the Estate of Anna M. Eby, Deceased] a written opposition to said petition of said Eugene W. Eby, wherein and whereby affiant [Waldo W. Eby] will deny the allegations of said petition to the effect that said property and estate were or are community property and will allege that all thereof was and is the separate property of said decedent. * * *"

January 27, 1941, Homer Lingenfelter, an attorney practicing law at Marysville, California, and husband of appellant (who the record shows acted for appellant in various matters affecting the property in question prior to the commencement of this suit), wired respondent, Waldo Eby, that "if conveniently possible judgment [referring to the Stella Eby...