Poepping v. Monson, 10020

Docket NºNo. 10020
Citation354 P.2d 183, 138 Mont. 38
Case DateJuly 26, 1960
CourtUnited States State Supreme Court of Montana

Page 183

354 P.2d 183
138 Mont. 38
Wilfred W. POEPPING, Respondent,
Rose E. MONSON, Appellant.
No. 10020.
Supreme Court of Montana.
July 26, 1960.

On petition for rehearing.

For original opinion see 353 P.2d 325.

[138 Mont. 49] PER CURIAM.

It is Ordered that appellant's petition for rehearing herein, be denied.

HARRISON, C. J., CASTLES, J., and ERNEST E. FENTON, District Judge, sitting in place of BOTTOMLY, J., concur.

ADAIR, Justice.

On petition of the appellant, Rose E. Monson, for a rehearing of this appeal I have again reviewed the arguments and authorities given and relied upon by the parties hereto and, at this time, desire to make it clear that my concurrence in the majority opinion filed herein does not extend to a concurrence in the language there quoted from the case of Sanders v. Sanders, 124 Mont. 595, 229 P.2d 164, where, in my dissenting opinion I expressed my views concerning the language from the Sanders case, supra, which again appear in the instant case of Poepping v. Monson. My views continue as they are stated in my dissent in Sanders v. Sanders, supra, and I here reaffirm what I there said, and in the instant Poepping case I agree only with the result reached in the majority decision.

ANGSTMAN, Justice (dissenting).

On motion for rehearing, defendant Rose Monson again contends that the court erred in not requiring Carol Ann Poepping to be made a party defendant. Her contention is that defendant Rose Monson had the right to the benefit of the testimony of Carol Ann Poepping to sustain the presumption that the Lincoln Avenue property held in the name of Carol Ann Poepping was a gift to her from her husband, the plaintiff, and in consequence the proceeds from the sale of the Lincoln Avenue property used to purchase the Blue Cloud Ranch was all her money, in which plaintiff had no interest, and hence, that plaintiff has no interest [138 Mont. 50] in the property, but that it belongs to defendant Rose Monson and Carol Ann Poepping as joint owners with the right of survivorship as the deed to them declares.

Plaintiff contends that defendant did not, by her answer, claim title through her daughter Carol Ann Poepping. The rule is that the plaintiff in a suit to quiet title need not deraign his title in his complaint. Thomson v. Nygaard, 98 Mont. 529, 41 P.2d 1; Nadeau v. Texas Company, 104 Mont. 558, 69 P.2d 586, 593, 111 A.L.R. 874; Polson Sheep Co. v. Owen, 110 Mont. 601, 106 P.2d 181. And a defendant who seeks to...

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4 cases
  • Poepping v. Monson, 10020
    • United States
    • Montana United States State Supreme Court of Montana
    • July 26, 1960
    ...325 353 P.2d 325 138 Mont. 38 Wilfred W. POEPPING, Plaintiff and Rose E. MONSON, Defendant and Appellant. No. 10020. Supreme Court of Montana. Submitted March 3, 1960. Decided May 27, 1960. Rehearing Denied July 26, 1960. See 354 P.2d 183. Page 327 [138 Mont. 40] Loble, Picotte & Hooks, Hel......
  • Bender v. Bender, 10718
    • United States
    • Montana United States State Supreme Court of Montana
    • January 7, 1965
    ...R.C.M.1947, Sec. 93-216; Haynes v. Fillner, 106 Mont. 59, 75 P.2d 802; Poepping v. Monson, 138 Mont. 38, 353 P.2d 325, rehearing denied 354 P.2d 183. To determine whether the trial court was in error, it is necessary for us to review briefly the history of the Market, and in particular its ......
  • Johnson v. Silver Bow County, 11429
    • United States
    • Montana United States State Supreme Court of Montana
    • June 19, 1968
    ...since he has the advantage of observing the witnesses and their conduct on the stand. Poepping v. Monson,138 Mont. 38, 353 P.2d 325, 354 P.2d 183. To establish title by adverse possession when no written claim of title exists the property must have been protected by a substantial enclosure ......
  • Bergan v. Gallatin Val. Mill. Co., 10075
    • United States
    • Montana United States State Supreme Court of Montana
    • August 16, 1960
    ...On Petition For Rehearing. Rehearing denied. ANGSTMAN, Justice (dissenting). Upon further study of this case, on motion for rehearing, I [138 Mont. 38] have sufficient doubt about the correctness of the majority opinion to believe that the petition for rehearing should be granted and the cause...

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