Mitchell v. McDonald

• Decision Date: 06 April 1943
• Docket Number: 8356.
• Citation: 136 P.2d 536,114 Mont. 292
• Parties: MITCHELL v. McDONALD et al.
• Court: Montana Supreme Court

136 P.2d 536

114 Mont. 292

MITCHELL v. McDONALD et al.

No. 8356.

Supreme Court of Montana

April 6, 1943

Rehearing Denied April 27, 1943.

Appeal from District Court, Third District, Granite County; Geo. W Padbury, Jr., Judge.

Suit by Robert Joseph Mitchell(otherwise known as Merle Mitchell), a minor, by his guardian, C. H. Degenhart, against Madilon McDonald to quiet title to realty, wherein defendant filed a cross-complaint asserting title to an undivided one-half interest in the realty as against plaintiff and Mary C Mitchell, who was duly made a partydefendant and defaulted and seeking partition by sale of the property and division of the proceeds.From a judgment in favor of plaintiff, the original defendant appeals.

Appeal dismissed.

S. P. Wilson, of Deer Lodge, for appellant.

Edwin T. Irvine, of Philipsburg, for respondent.

JOHNSON Chief Justice.

Defendant appeals from a judgment quieting title in plaintiff to residence property consisting of a house and two town lots, which were inherited by plaintiff and his father, Harold Mitchell, from plaintiff's mother.Plaintiff, then a minor, had sued by his guardian, C. H. Degenhart, claiming the entire interest, and defendant had filed her answer and cross-complaint asserting title to an undivided one-half interest in the property as against plaintiff and Mary C. Mitchell, plaintiff's stepmother, and seeking partition by sale of the property and division of the proceeds.Plaintiff's one-half interest inherited from his mother is not in question; the interest in litigation is theother one-half, which was at the same time inherited by his father.Mary C. Mitchell was duly made a partydefendant, was served with the cross-complaint, defaulted, and was decreed to have no interest in the property.

It was agreed by counsel at the trial that four deeds constituted all the written evidence of both parties' claims to the undivided one-half interest from their common source; those deeds, all of which the uncontradicted statutory presumption or uncontradicted evidence, or both, show to have been executed and delivered at their respective dates, are as follows:

1.Harold Mitchell(plaintiff's father) to Mary C. Mitchell(plaintiff's stepmother), warranty deed of October 5, 1937, recorded October 7, 1937;

2.Mary C. Mitchell to Harold Mitchell, warranty deed of October 5, 1937, recorded May 23, 1938;

3.Harold Mitchell to Madilon McDonald(defendant), warranty deed executed and recorded May 23, 1938;

4.Mary C. Mitchell to Merle Mitchell, otherwise known as Robert Joseph Mitchell(plaintiff), of Arcata, California, quitclaim deed without warranties of title, executed and recorded on December 20, 1940.

Some novel and interesting questions are presented by the findings, conclusions and decree in this case.However, our consideration of the merits upon the general facts and law of the case is prevented by an unusual circumstance; for it developed in the course of the plaintiff's case that the plaintiff, who was a minor when the suit was instituted in his name by the guardian and when defendant's cross-complaint and the other pleadings were filed and served, had become of age before the trial.He had for several years resided in California, took no part in the proceedings, and was not present at the trial.Defendant insisted throughout that the guardian's authority to conduct the action depended upon the ward's minority, and the guardian insisted throughout that the ward's age was immaterial, and that his authority depended only upon the circumstance that his letters of guardianship had not been revoked.

At the outset defendant's counsel objected to the guardian's oral testimony that he was "the duly appointed, qualified and acting guardian" of plaintiff's estate "for the reason it isn't the best evidence and the question of whether he is guardian resolves itself into a question of the age of Robert Joseph Mitchell and in any event the record of his appointment and the proof of age would constitute the best evidence of whether he is such Guardian."

The objection having been sustained, defendant's counsel said: "On behalf of defendants I would waive mention of the file in the matter of the guardianship of Robert Joseph Mitchell if counsel would offer the letters of guardianship as issued coupled with proof of age preceding the preliminary papers and as far as we are concerned we need not encumber the record with such documents.I do not wish to waive my objection or requirement as to proof of age, it being admitted here both by the pleadings and by statements of counsel that the guardianship of Robert Joseph Mitchell is a guardianship arising by virtue and because he was a minor and therefore, I think it is inherently a necessary element of the question of the present existence of this guardianship to establish the age."

The trial judge replied: "All that would be necessary would be the letters of guardianship and some testimony from the Clerk of the Court it is in full force and effect."

The clerk of court was then called as a witness and over defendant's objection testified that the guardian's letters had never been revoked, which defendant had eliminated from issue, as shown above.The objection called the court's attention to the more fundamental element of that authority, being as follows: "To which we object, if the Court please, on the ground it becomes immaterial inquiry, the question of the existence of the Guardianship in this matter being dependent upon or answered by determination of the age of Robert Joseph Mitchell who was the minor, our contention being as to age the record would would [show?] the guardianship terminated ipso facto of its own accord when the minor became an adult.It matters not what the record of the court showed, and it would not continue the guardianship.If and when the minor reached twenty-one the guardianship concluded of its own power."

Subsequently both the guardian and plaintiff's father testified that the plaintiff had become twenty-one years of age on September 20, 1941, twenty days before the trial.

Near the end of the defendant's case the following objection was made on her behalf: "I want my objections to stand in connection with the claim of the defendants that Degenhart is not now a party to this action in any sense.His guardianship having terminated of its own force and effect ipso facto when the minor became twenty-one years of age."

The objection having been summarily overruled, it was again made at the close of all the evidence as follows: "The evidence being concluded I move that plaintiff's case be dismissed for the reason that the guardianship is in fact actually terminated and C. H. Degenhart is not actually a guardian for the reason that Robert Joseph Mitchell *** is an adult person now at the time of the trial of this action ***."The court then stated that the motion and others which were coupled with it would be taken under advisement.They were never formally ruled upon, but must be considered to have been denied, since the trial court proceeded to adjudicate the rights of the parties.

The objection as made was (1) that upon the ward's majority the guardian's authority was automatically terminated and (2) that the guardian was no longer the party in interest entitled to sue under section 9067, Revised Codes, which provides that with certain exceptions not here material "every action must be prosecuted in the name of the real party in interest."

The second part of the objection was not good, for the suit was already being prosecuted in the name of the real party in interest; the plaintiff was "Robert Joseph Mitchell, *** a minor, by his Guardian, C. H. Degenhart."Our statutes provide:

"A minor may enforce his rights by civil action, or other legal proceedings, in the same manner as a person of full age, except that a guardian must conduct the same."Sec. 5687, Rev.Codes.

When an infant or an insane or incompetent person is a party, he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending, in each case.A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the infant, insane, or incompetent person in the action or proceeding, notwithstanding he may have a general guardian and may have appeared by him."Sec. 9071, Rev.Codes.

Every guardian *** must appear for and represent his ward in all legal suits and proceedings, unless another person be appointed for that purpose."Sec. 10418, Rev.Codes.

In other words, as properly disclosed by the title in this action, the ward has always been the partyplaintiff.He has merely appeared by his guardian, who was by statute authorized to conduct the proceedings for him and in his name while as a minor he was unable to conduct them for himself.

Referring to section 372 of the California Code of Civil Procedure, which is identical with our section 9071, supra, the Supreme Court of that state said in Emeric v. Alvarado,64 Cal. 529, 2 P. 418, at 460: "The guardian is to appear for them [the minor wards], and is no more a party to the action than the attorney who appears in an action for one who has attained his majority is a party to the suit in which he enters his appearance."

While the positions of guardian and attorney are not in all respects analogous they are so in the circumstance that neither is the party but merely represents the true party in interest.Therefore the second part of the objection--that the guardian is no longer a party in interest--is not good but the first part is good--that the guardian is no longer entitled to represent the...