Needham v. Salt Lake City

• Decision Date: 04 June 1891
• Citation: 7 Utah 319,26 P. 920
• Court: Utah Supreme Court
• Parties: JONATHAN NEEDHAM, AND OTHERS, APPELLANTS, v. SALT LAKE CITY, AND OTHERS, RESPONDENTS

26 P. 920

7 Utah 319

JONATHAN NEEDHAM, AND OTHERS, APPELLANTS, v. SALT LAKE CITY, AND OTHERS, RESPONDENTS

Supreme Court of Utah

June 4, 1891

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Judgment reversed.

Mr Arthur Brown, for the appellants.

Mr. C F. Loofbourow, for the respondents.

BLACKBURN J. MINER, J. concurred in the results. ZANE, C. J., having once given an opinion upon this title did not participate.

OPINION

BLACKBURN, J.:

This suit is brought to quiet title, and, before proceeding to decide the case, we wish to say that the abstract is so imperfect that the work of the court was vastly increased, because it was compelled to read the whole record to understand the case. Attorneys ought to take more pains in preparing their abstract. A preliminary question is, when was this suit commenced? The complaint was filed November 13, 1888; amended complaint, January 16, 1889; answer of defendants, December, 1889. No summons was issued in the case; the defendants answered voluntarily. The statute of the territory expressly provides that the filing of the complaint is the commencement of the action (2 Comp. Laws Utah, § 3155); that a summons may issue within a year, and the defendants may within that time appear without summons, and defend the action (section 3203). The defendants did appear, and defended the action without making any point by their answer, or any other way, that a summons was not issued within a year. The suit was continued on the docket as commenced. We think, therefore, the date of the commencement of this action is November 13, 1888, 2 Comp. Laws Utah, p. 237.

Another preliminary question is, what can the appellate court review in this case? The contention of the respondents is that the question as to whether the evidence justifies the judgment cannot be reviewed because the appeal was not taken within sixty days from the rendition of the judgment. The appeal was not taken within sixty days from the rendition of the judgment; but the appeal was taken both from the judgment and from the order overruling the motion for a new trial, and only a few days from the date of the order. The notice of motion for a new trial states that the motion is made upon the ground, inter alia, that the evidence does not support the judgment. We think the appellate court can review anything the court below might rightfully pass upon, on the hearing of a motion for a new trial, in an appeal from the order overruling the motion. Therefore we think the whole case is subject to review by this court. McLaughlin v. Doherty, 54 Cal. 519, 520; 2 Comp. Laws Utah, § 3635.

The defendants contend that the appeal from the order overruling the motion for a new trial cannot be considered, because there is no such motion in the record. There is a notice of such motion and such an order, and it is too late to take advantage of the want of the formal motion for the first time in this court, and the practice in this territory is to allow the notice of the motion for a new trial to take the place of the formal motion.

This suit is brought to quiet title to the quarter section of land described in the complaint, by the heirs of Jonathan Needham, deceased. The defendants filed an answer denying the allegations of the complaint, and a cross-complaint alleging they are the owners of a portion of the land of said quarter section, and deraign their title through a deed from the administrators of the estate of said decedent to the city of Salt Lake. They also set up adverse possession for more than seven years. The decedent settled upon the land, and made final proof and paid for the land in his life-time, and after his death a patent for the land was issued to him. This gives the heirs a title in fee, unless the title passed out of them by the sale and deed made by the administrators; but plaintiffs claim that the proceedings in the probate court in the applications of one of the administrators are absolutely void. The first question is, is this contention by the appellants well taken? These proceedings were had in 1875, under the law as it then existed. It provided that the lands of decedents may be sold to pay debts and claims against the estate when the personal property is not sufficient to pay the same, but it did not provide the mode of procedure; it only gave the probate court jurisdiction to order the sale of the land on the application of the administrators. Comp. Laws Utah 1876, pp. 265-269.

In this case application was made to the probate court, by only one of the administrators (there being two), on August 23, 1875; the order of sale, August 27, 1875; sale, August 28, 1875; and confirmation of sale, September 3, 1875. No notice of the application or of the sale or of the confirmation was given. The statute does not provide that any notice of these proceedings shall be given, but is silent on the subject. The contention of the appellants is that these probate proceedings are coram non judice, and void for want of notice. In the view we take of this case, it is not necessary to pass upon that question. But it seems to us, when a special proceeding is provided for by statute, and the manner of performing it is not specified, it ought to be according to the course of the common law, and the rule at common law is that every person interested in any adjudication shall have an opportunity to be heard, and to have notice so that he may be heard. Yet many authorities hold that in the class of cases under discussion notice to heirs is not necessary. On that question we pass no opinion. Another contention of the appellants is, the petition to the probate court to have this land sold did not state facts sufficient to give the court jurisdiction of the subject-matter. We think this contention is well taken. Two prerequisites to authorize the probate court to order the administrators to sell the lands of decedents are: (1) There must be debts or charges against the estate unpaid; and (2) that the personal property of the decedent is insufficient to pay these debts and charges. "The rule is that a statutory remedy or proceeding is confined to the very case provided for and extends to no other. A party seeking the benefit of such a statute must bring himself strictly within not only the spirit, but also its letter. He can take nothing by intendment." Suth. St. Const. § 234 et seq. The meaning of this is that this statute under discussion is stricti juris, and must be strictly followed.

The...