Nelson v. Carlson

• Decision Date: 09 March 1908
• Citation: 48 Wash. 651,94 P. 477
• Parties: NELSON v. CARLSON.
• Court: Washington Supreme Court

94 P. 477

48 Wash. 651

NELSON v. CARLSON.

Supreme Court of Washington

March 9, 1908

Appeal from Superior Court, Kitsap County; A. W. Frater, Judge.

Action by John Nelson against Alex Carlson. From a judgment for defendant, plaintiff appeals. Affirmed.

Jerold Landon Finch, for appellant.

John G Barnes, for respondent.

CROW J.

Action by John Nelson against Alex Carlson to quiet title to land in Kitsap county to which plaintiff holds the record title. The defendant alleged fee-simple title to an undivided half of the land in himself as sole heir at law of his mother formerly one Christina Alida Carlson, whom the plaintiff married before he acquired the land, which became and continued to be the community property of plaintiff and defendant's mother until she died intestate in 1902. The existence of the alleged marriage, which was denied by the plaintiff, is the controlling issue in this case. The trial court found that the plaintiff and Christina Alida Carlson had intermarried as alleged, and entered a decree in favor of the defendant as her sole heir at law awarding him an undivided one-half interest in the land. The plaintiff has appealed.

The appellant was not represented on the trial by the attorney now representing him, who was afterwards substituted. At the close of the evidence appellant's former attorney made a motion to dismiss, which was denied, the respondent having filed a cross-complaint asking affirmative relief. The trial occurred November 9, 1906. After the substitution of attorneys, findings of fact, conclusions of law, and decree were signed and entered. On January 15, 1907, appellant made an application supported by affidavits, for an order extending his time within which to file a motion for a new trial, which motion he then tendered. Appellant's first contention is that the trial court erred in refusing this application. A trial judge, exercising his discretion, may grant such an extension of time. Bailey v. Drake, 12 Wash. 99, 40 P. 631; Leavenworth v. Billings, 26 Wash. 2, 66 P. 107. Having carefully examined the affidavits we are unable to conclude that the trial judge abused his discretion or committed prejudicial error in refusing the extension requested. In any event, all of the questions suggested by the proposed motion for a new trial are, by proper procedure, presented in the record for our consideration upon this appeal. The respondent testified that he was the son of Christina Alida Carlson by her former husband; that he and his mother were natives of Sweden; that when he was about 10 years of age, she, being a widow, left him with friends in the old country, and came to America; that about 1882 she and the appellant, whom he understood his mother had married, sent him money to come to them in the state of Colorado; that they were living as husband and wife in Colorado at that time; that he afterwards went with them to the state of California, where they lived as husband and wife; that they came to Washington in the year 1882; that they purchased the land in March, 1887, taking title in the appellant's name, and made it their home until Mrs. Nelson's death in September, 1902; that appellant erected a monument to respondent's mother upon which he inscribed her name as Mrs. Nelson; that he called her his wife; that she called him her husband, and that they were continually known and regarded as husband and wife for more than 22 years by all of their neighbors, friends, and acquaintances in Colorado, California, and this state. Other witnesses testified to the same facts, which were not disputed. Respondent also introduced certified copies of deeds and land contracts, executed and acknowledged by the appellant John Nelson and Mrs. Nelson, as husband and wife, in the years 1884, 1888, 1900, and 1902. After the respondent had rested the appellant was asked by his attorney whether in 1880 to 1882 he and the deceased were ever married to each other. To this question an objection was sustained, on the ground that, under section 5991, Ballinger's Ann. Codes & St. (section 937, Pierce's Code), the appellant was incompetent to testify as to any transaction between himself and the deceased, under whom the respondent, as an adverse party, claims title. The appellant, who offered no other evidence in rebuttal, now contends that the trial court committed prejudicial error in making such ruling. Under the authority of O'Connor v. Slatter (Wash.) 89 P. 885, decided since the trial of this action, the ruling of the trial court must be sustained. In Edelstein v. Brown (Tex. Civ. App.) 95 S.W. 1126, a suit similar to this, wherein the heirs at law of a deceased mother sought a recovery of her interest in community property, the Court of Civil Appeals of the state of Texas, construing a similar statute, held that the...