Plott v. Kittelson

Citation228 N.W. 217,58 N.D. 881
Decision Date10 December 1929
Docket NumberNo. 5644.,5644.
PartiesPLOTT et al. v. KITTELSON et al.
CourtUnited States State Supreme Court of North Dakota

OPINION TEXT STARTS HERE

Syllabus by the Court.

On appeal from an action tried under section 7846, Comp. Laws 1913, as amended by chapter 8, § 1, Session Laws of 1919, where the statement of the case demands a retrial of the entire case, specifications of error are not required by either the statute or the rules of this court.

In an action affecting the title to real property the filing of the notice of the pendency of the action for record, with the register of deeds of the county in which the real property is situated, is not constructive notice, unless the complaint in said action is filed in the office of the clerk of the district court in which the action is pending, as provided by section 7425, Comp. Laws 1913.

In the instant case, the defendants allege in their answer that there is another action pending between the same parties, in the same court, for the same cause, and also answers on the merits. On proof of another action pending during the trial, the plaintiffs moved to dismiss the same, which motion was granted, and judgment dismissing the former action was duly entered on the order of the trial court, and, it further appearing from the record that the defendants were ready for trial, and were prejudiced in no way by reason of the former action, there was no error in dismissing such action and proceeding with the one then before the court.

Where, in an impeaching question, the attention of a witness is called to a conversation claimed to have been had in the early part of 1909, and the record shows that the conversation that the impeaching witness testified to took place, if at all, in 1904 or 1905, the impeachment fails, and evidence adduced from the extremely leading questions offered and permitted for impeachment can be used for no other purpose.

Under section 5921, Comp. Laws 1913, “an executed contract is one, the object of which is fully performed. All others are executory.”

An instrument executed by husband and wife, denominated by them as “this memorandum of agreement,” signed by both parties, no consideration paid at the time of its execution, the consideratiton being the support of three children, one 7, one 10, and one 11 years old, until they became of age, is an executory contract, though it contained words of present assurance, such as “give, grant and convey.” Such contract was expressly made for the benefit of said children, and under section 5841, Comp. Laws 1913, it cannot be enforced by said children after it has been rescinded by their parents who executed it.

Appeal from District Court, Cass County; G. Grimson, Judge.

Action by Tilda Kittelson Plott and others against John Kittelson and others. Judgment for plaintiffs, and the named defendants John Kittelson and John Larson appeal. Reversed and rendered.B. F. Spalding, of Fargo, for appellants.

Robt. A. Eaton, of Edgeley, and S. E. Ellsworth, of Jamestown, for respondents.

BURKE, C. J.

This is an action to determine adverse claims to lot 9, block 23 in the town of Galesburg, N. D., and the northeast quarter of section 19, township 143, range 53 in Cass county, N. D. The plaintiffs claim that said lands were conveyed to their mother for life, with the remainder over to them at the expiration of the life estate in their mother.

The defendant John Kittelson denies that it was a deed of conveyance, and claims that it was at most only an executory contract, that it was never operative, never delivered, and the defendant John Larson claims under a deed from John Kittelson. There was a judgment for the plaintiffs, and these defendants appeal.

There is a motion by respondent to strike out appellants' assignment of errors from 7 to 68, for the reason that such assignments do not specify the particulars, errors, and the reasons why they are erroneous.

[1] This action was properly triable, and was tried under section 7846, Comp. Laws 1913, as amended by chapter 8, § 1, Laws of 1919. The defendants Kittelson and Larson in the statement of the case each desire and demand a retrial of the entire case in the Supreme Court.

In the case of Peckham v. Van Bergen, 8 N. D. 595, 80 N. W. 759, 760, the court said: “As to eight of said findings of fact, the defendant has filed exceptions upon the ground that the same, respectively, are not justified by the evidence. Said exceptions embrace no specifications of particulars. But such exceptions are unnecessary in a case where the statement embraces the declaration that the defendant desires a retrial of the whole case in this court. See Bank v. Davis, 8 N. D. 83, 76 N. W. 998.”

In the latter case the court said, on page 86 of 8 N. D., 76 N. W. 1000: “In cases where the appellant desires to have reviewed only certain particular facts, that such facts must be pointed out or specified in the statement; and, where the appellant desires to retry the entire case in this court, it is incumbent upon him to specify or state that fact in the settled statement of the case. But we are likewise of the opinion that the act of 1897 has entirely superseded the requirements of section 5630 and of article 8 of chapter 10 of the Revised Codes, relating to the specification of errors of law, and of the particulars wherein findings of fact are not justified by the evidence. Under the amendment we are considering, such specifications as are required by former statutes and by the rules of this court are no longer required in actions tried below without a jury, and which come to this court for a retrial upon the merits.”

In this particular the statute has not been amended since 1897. This decision is practically in the terms of the statute itself, viz.: “A party desiring to appeal from a judgment in any such action, shall cause a statement of the case to be settled within the time and in the manner prescribed by article 8 of chapter 11 of the Compiled Laws of North Dakota for the year 1913, and shall specify therein the questions of fact that he desires the supreme court to review, and all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court. Only such evidence as relates to the questions of fact to be reviewed shall be embodied in this statement.” This provision applies to cases where it is not necessary to bring up the entire record for review, but only a part of it, and it is incumbent upon appellants to specify the questions of fact that he desires the court to review, and only the evidence which relates to the questions of fact specified is included in the statement. But this provision does not apply where appellants desire and demand a retrial of the entire case. In such case the following provision of the statute applies: “But if the appellant shall specify in the statement that he desires to review the entire case, all the evidence and proceedings shall be embodied in the statement.” In such case appellant does not specify any particular facts, but complies with the statute when he specifies in the statement that he desires to review the entire case. It is then incumbent upon the Supreme Court to review the entire record and try anew all the questions of fact in the entire case and dispose of the same whenever justice can be done without a new trial. Since the appellants demand a retrial of the entire case, the specifications of error were not necessary.

Appellants contend that there is another action pending, by the same parties, in the same court, for the same cause. The question is raised by answer, as it does not appear on the face of the complaint and could not be raised by demurrer.

[3] It developed at the trial that on the 27th day of February, 1917, Sarah Kittelson for herself, and on behalf of these plaintiffs, brought an action to determine adverse claims to the property involved; that on August 14, 1923, the plaintiffs, through another attorney, brought an action against the defendants John Larson and John Kittelson to determine adverse claims to the North East 1/4 of section 19, township 145, range 53. Neither action was ever tried, but the last one was dismissed, during the trial of this action, and after the trial had been in progress for several days. It is the contention of the appellant that the action abates.

In the case of Golly v. Northland Elevator Co., 53 N. D. 564, 207 N. W. 438, 439, the court said: “It is elementary that the plea of another action pending presents matter in abatement merely and not in bar. First State Bank v. Osborne-McMillan Elevator Co., 207 N. W. 37 [37 C. J. 1162].”

In the case of Chapman v. Moore, 151 Cal. 509, 91 P. 324, 325, 121 Am. St. Rep. 130, relied upon by appellant, one Strohm and his wife were two of the defendants. They pleaded in abatement another action pending, which was the first issue tried by the court. At the conclusion of the testimony on that issue the action was dismissed as to the Strohms. The court said: “The showing was sufficient to sustain the plea and upon it the Strohms were entitled to have the subsequent action against them abated”-as the former action had not been dismissed.

First California Jurisprudence, § 17, p. 37, states the rule as follows: “If the court, upon a consideration of the proof adduced, finds that another action is pending between the same parties and for the same cause, its judgment should be that the action abate * * *. But the defense of another action pending does not authorize a judgment on the merits of the case. Hence the court should not give a general judgment in favor of the defendant, nor a judgment that the plaintiff take nothing by his action. * * *” In other words, if it appears from the showing made that there is another action pending, the action abates. If the other action is tried and judgment is entered, it is a bar to the subsequent action. If it is dismissed without prejudice, the abated action may be revived. In the case at bar, in...

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13 cases
  • Lucas v. Porter, 20070169.
    • United States
    • United States State Supreme Court of North Dakota
    • 28 de agosto de 2008
    ...the first action has terminated in a judgment on the merits when the second action is brought. Id. [¶ 11] In Plott v. Kittelson, 58 N.D. 881, 886-87, 228 N.W. 217, 218-19 (1929), this Court explained a rule of "If the court, upon a consideration of the proof adduced, finds that another acti......
  • Gust v. Wilson
    • United States
    • United States State Supreme Court of North Dakota
    • 30 de setembro de 1953
    ...587, 142 N.W. 169. Where a new trial is demanded in the Supreme Court specifications of error are not required. In Plott v. Kittelson, 58 N.D. 881, 885-886, 228 N.W. 217, 218, this Court 'In such case the following provision of the statute applies: 'But if the appellant shall specify in the......
  • Investors Title Ins. Co. v. Herzig, 20090213.
    • United States
    • United States State Supreme Court of North Dakota
    • 19 de outubro de 2010
    ...from the complaint.’ ” Bragg v. Burlington Res. Oil & Gas Co., 2009 ND 33, ¶ 9, 763 N.W.2d 481 (quoting Plott v. Kittelson, 58 N.D. 881, 890, 228 N.W. 217, 220 (1929)). “A ‘lis pendens is notice of all facts apparent on the face of the pleadings, and of those facts of which the facts so sta......
  • Kainz v. Jacam Chem. Co. 2013
    • United States
    • United States State Supreme Court of North Dakota
    • 3 de março de 2023
    ...... evidence or argument, and the court stood firm on its ruling. . .          [¶17]. In Lucas, 2008 ND 160, ¶ 11 (quoting Plott. v. Kittelson, 228 N.W. 217, 218-19 (N.D. 1929)),. this Court discussed abatement and explained:. . . If the court, upon a consideration of the ......
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