Richelson v. Mariette

• Citation: 34 S.D. 573,149 N.W. 553
• Parties: RICHELSON v. MARIETTE et al.
• Decision Date: 30 November 1914
• Court: South Dakota Supreme Court

34 S.D. 573
149 N.W. 553

RICHELSON
v.
MARIETTE et al.

Supreme Court of South Dakota.

Nov. 30, 1914.

Appeal from Circuit Court, Potter County; J. H. Bottum, Judge.

Action by Andrew Richelson against R. L. Mariette and another. From a judgment for defendant Mariette, plaintiff appeals. Reversed, with directions to enter judgment for the plaintiff.

[149 N.W. 554]

S. M. Howard, of Gettysburg, for appellant.

Sutherland & Payne, of Pierre, for respondent.

SMITH, P. J.

Action to quiet title to a half section of land in Potter county. Defendant Clark made default. Trial to the court. Findings of fact and judgment for defendant Mariette. Motion for and order denying a new trial. Plaintiff appeals.

[1] Respondent contends that errors predicated upon the motion for a new trial, cannot be considered on this appeal. Respondent is clearly right in this contention, under the decisions of this court in Traxinger v. Ry. Co., 23 S. D. 90, 120 N. W. 770, and Regan v. Whittaker, 14 S. D. 373, 85 N. W. 863.

There was no notice of intention to move for a new trial. The notice of motion for a new trial stated that such motion “will be made on the minutes of the court.” Even the notice of motion did not contain the specifications which, under section 303, Code Civil Procedure, should have been contained in the notice of intention, where the motion is to be based upon the minutes of the court. Indeed there are no specifications found in the settled record. It follows that no assignments of error can be considered, except those based on the judgment roll, and upon those the only question before us is the sufficiency of the findings to support the judgment.

The findings of fact disclose that, during the year 1898, plaintiff was the owner in fee of a half section of land in Potter county; that during that year, while in the city of Chicago, he became insane, and on or about April 9, 1898, by order of the probate court of Cook county, Ill., was committed to the Northern Hospital for the Insane, at Elgin, Ill., where he remained until about the 1st of September, 1911, a period of over 13 years, when he was released, and is now sane; that prior to such confinement plaintiff was a resident of Potter county, and after his release returned to and again became a resident of said county; that during the latter part of 1898 one Frank E. Riley, a resident of Potter county, was, by the county court of that county, appointed guardian of his person and estate, qualified by giving bond and taking oath, and letters of guardianship were issued December 16, 1898; thereupon Riley, as guardian, took and retained possession of all the real and personal estate of his ward. Some time in the latter part of the year 1899, Riley as guardian, filed in the county court, a petition for an order of sale of all of the land of his ward, and on January 31, 1900, the county court made an order authorizing a sale of the whole of said real estate; pursuant to said order the land was sold, on the 24th day of February 1900, to one Anna L. Boyle, for $1,055, and thereafter, upon a return of such proceedings to the county court, an order was made confirming the sale, and a guardian's deed was executed; that Riley as such guardian did not, prior to the making of said sale, or at any time, subscribe a sale bond, as required by section 403 of the

[149 N.W. 555]

Probate Code; Anna L. Boyle, by quitclaim deed dated June 9, 1900, conveyed said land to one William S. Small, which deed was recorded July 8, 1902. Small conveyed to James O. Boyle, by quitclaim deed July 17, 1902, and September 12, 1904, Boyle conveyed by warranty deed to defendant Mariette; and on January 19, 1907, Mariette conveyed to defendant Clark by warranty deed 40 acres of the land in controversy.

Upon the record before us, the only irregularity which can be considered is the failure of the guardian to give the special sale bond provided for by section 403, Probate Code.

[2] The findings of fact disclose that the guardian wholly failed to account, either to the court or to the plaintiff, for the proceeds of the sale, and no part of such proceeds was ever received by plaintiff. Plaintiff, not having received the proceeds of the sale, is not estopped from questioning its validity. The failure of the guardian to account for the proceeds of the sale, however, does not of itself render the sale invalid. Respondent's contention is that the omission to give this bond was an irregularity which did not render the sale and conveyance void, and that appellant's only remedy is by appeal, or by direct attack upon the order and decree of the county court.

Before considering this question, we deem it proper to notice appellant's contention that the burden of proof rests upon respondent to show affirmatively the facts essential to confer jurisdiction upon the county court to order a sale of the ward's property, and to sustain the order confirming the sale. This contention is very material to appellant's case, because appellant has not himself brought the proceedings of the county court into the record in any way. Prior to the trial in the lower court, a stipulation seems to have been entered into that:

“Each party may attach copies of such county court proceedings for the consideration of the court.”

[3] But the findings of fact fail to show the contents of the petition for sale, or of the order confirming the sale, nor does it appear that any request was made for such findings. The proceedings in the county court, therefore, are not before us, except in so far as they are contained in the findings. Neither the stipulation of facts, nor the contents of the petition for the sale, or of the order of confirmation, has been brought before us by an order overruling a proper motion for new trial. It does, however, appear from the findings themselves that the findings are founded upon a stipulation of the facts. If it...