Roberts v. Roberts

• Decision Date: 01 October 1945
• Docket Number: 2319
• Citation: 162 P.2d 117,62 Wyo. 77
• Parties: BARBARA ROBERTS, Plaintiff and Appellant, v. DON ROBERTS, as Administrator of the Estate of ORA P. ROBERTS, Deceased, Defendant and Respondent
• Court: Wyoming Supreme Court

162 P.2d 117

62 Wyo. 77

BARBARA ROBERTS, Plaintiff and Appellant, v. DON ROBERTS, as Administrator of the Estate of ORA P. ROBERTS, Deceased, Defendant and Respondent

No. 2319

Supreme Court of Wyoming

October 1, 1945

APPEAL from District Court, Natrona County; HARRY P. ILSLEY, Judge.

Action by Barbara Roberts against Don Roberts, as administrator of the estate of Ora P. Roberts, deceased, on a claim for services performed for, and moneys loaned to, decedent by plaintiff. From a judgment entered after demurrer to plaintiff's petition was sustained, plaintiff appeals.

Reversed and remanded.

For the Plaintiff and Appellant, the cause was submitted on the brief of Charles E. Winter and R. R. Rose, both of Casper, Wyoming and oral argument by Mr. Rose.

POINTS OF COUNSEL FOR APPELLANT

Plaintiff did not make an election of remedies, but merely chose a remedy which, in view of this court's decision, did not exist at all, and may now pursue the remedy involved in this action. 9 R. C. L. 962, Sec. 9.

It is the general rule that an election can exist only where there is a choice between two or more inconsistent remedies actually existing at the time the election is made. 28 C. J S. 1080, Sec. 12.

It is essential to an election that the party making it "be cognizant of his legal rights and of such facts as will enable him to make an intelligent choice", and that he must have "voluntarily chosen and carried into effect an appropriate remedy with knowledge of the facts and his rights". 18 A. J. 129-130, Sec. 3.

In order to be bound by an election the party must have knowledge of the facts and of his rights. 18 A. J. Sec. 24 146-147.

The fact that a party through mistake attempts to exercise a right to which he is not entitled or has made choice of a supposed remedy which never existed, and pursued it until the court adjudged that it never existed, does not preclude him from afterwards pursuing a remedy for relief to which in law and good conscience he is entitled. Conrad, Admrx. v Youghiogheny & Ohio Coal Co., 36 A. L. R. 1288; 4 L. R. A. 145, 10 A. S. R. 487, 35 A. S. R. 26; Linz vs. Eastland County, 77 A. L. R. 1466, Utah-Idaho C. R. Co. v. Commission, 94 A. L. R. 1423; Schotis v. N. C. S. Co. 78 A. L. R. 1427 and Adams v. Kentucky, etc., Co. 58 A. L. R. 217.

Mistaken nor unsuccessful suits are usually held not to constitute an election between remedies, and the mere bringing of a suit or the presentation of a claim against an estate, without prosecuting it to final determination or judgment, will not as a rule be taken as an election to pursue that and no other remedy. 11 R. C. L. 198, Sec. 219. 21 A. J. 601, Sec. 387; Hunnicutt v. Higginbotham, 100 A. S. R. 45; Zimmerman v. Robinson & Co., 102 N.W. 814, (Ill.) 1905.

The pursuit of a remedy that did not in fact exist, viz., a reliance upon a marital status that the court held not to have been established, does not preclude one after an adverse judicial determination upon the question of the asserted marriage, from prosecuting a suit and recovering a judgment for the value of services rendered to the deceased in his lifetime. Asher v. Pegg, Admr. 30 L. R. A. (N. S.) 890, 123 N.W. 739.

Where an amendment is not substantially different from the original claim the amendment is a part of it, and the statute of limitations runs from the time of the filing of the original claim. 11 R. C. L. 198, Sec. 220; 21 A. J., 595, Sec. 376; 34 C. J. S. 199-200, Sec. 417.

Liberality should be exercised in allowing amendments to claims. White v. Deering, 38 Cal.App. 516, 179 P. 401; Wise v. Outtrim, 139 Iowa 192, 117 N.W. 264, 130 Am. St. Rep. 301. The rule is to allow amendments to pleadings, and the exception is to deny them. Fowlis v. Heinecke, 87 Mont. 117, 287 P. 169. 74 A. L. R. 400, 76 A. L. R. 1380.

For the Defendant and Respondent, the cause was submitted on the brief and also oral argument of William J. Wehrli, Casper, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

Any right, fact, or matter of issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose or subject matter of the two suits is the same or not. 34 C. J., page 743, Section 1154.

This suit is not an appeal or proceeding in error comprising a direct attack upon the judgment of the District Court, but is a collateral attack. 34 C. J., 748, Section 1158.

A judgment entered upon confession without action is as conclusive as any other judgment and operates as a merger of the cause of action, and while it remains in force plaintiff cannot maintain an action for the same claim or demand. 34 C. J., 778, Section 1196.

Orders of the probate court are final, appealable orders. In re Barrett's estate, 22 Wyo. 281.

It is the general rule that orders of probate courts are res judicata. 34 C. J., Page 759, Section 1170.

A decision upon a matter at any stage of the proceedings is subject to the doctrine of res judicata. City of Detroit v. Village of Highland Park, 152 N.W. 1002.

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action. 24 Wyo. 305, 157 P. 698; 24 Wyo. 400, 160 P. 334.

The party at whose instance a judgment is rendered is not entitled, in a collateral proceeding, to contend that the judgment is invalid. Neither want of jurisdiction, defect of procedure, or any other ground of invalidity can be availed of collaterally, by the party who is responsible for the existence of the judgment. Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068. Bledsoe v. Seaman, 77 Kan. 679, 95 P. 576; 3 A. L. R. 535.

The doctrine of election of remedies is not confined to cases of fraud. It applies whenever a party takes an inconsistent position, whether arising from claims that carry a different measure of damages or otherwise. A claimant cannot "blow both hot and cold". Barquin v. Hall Oil Company, 28 Wyo. 164, 201 P. 352.

A party who has, with knowledge of the facts, assumed a particular position in judicial proceedings, and has succeeded in maintaining that position, is estopped to assume a position inconsistent therewith to the prejudice of the adverse party. 21 C. J. 1223, 1227; Sec. 231.

Where remedies are so inconsistent that the pursuit of one necessarily involves or implies the negation of the other, the party who deliberately and with full knowledge of the facts invokes one of such remedies is said to have made his election, and cannot thereafter have the benefit of the other. Zimmerman v. Robinson & Co., 102 N.W. 814; McMahon v. McMahan, 115 S.E. 293, 26 A. L. R. 1295.

It is the inconsistency of the demands which makes the election of one remedial right an estoppel against the assertion of the other, and not the fact that the forms of action are different. 20 C. J. 20.

KIMBALL, Justice. BLUME, Ch. J., and RINER, J., concur.

OPINION

KIMBALL, Justice.

This is an appeal by plaintiff, Barbara Roberts, from a judgment against her after a demurrer to her petition had been sustained and she had elected to stand on the petition, in an action against the administrator of the estate of Ora P. Roberts, deceased, in which plaintiff sought to establish against the estate her claim on account of services performed for and moneys loaned to decedent by plaintiff during the period February 18, 1927, to June 23, 1940.

The petition contains three causes of action. The first and second set forth the claim of wages for services, the first declaring upon an express contract, the second upon a quantum meruit. The third cause of action is for recovery of money loaned.

The petition and exhibits that are made a part of it, show the following facts that seem relevant on the questions raised by the demurrer:

Ora P. Roberts died June 23, 1940, and on June 27, 1940, letters of administration were issued to plaintiff upon her application as widow of the decedent, and she acted as administratrix until July 10, 1943.

April 22, 1941, she filed in the office of the clerk of court her claim in two items, one for wages for services and the other for moneys loaned, as mentioned above. January 27, 1942, objections to the claim were filed with said clerk "by certain brothers and sisters of the decedent, and her claim and said objections were duly set down for hearing and were heard" by the district judge August 3, 1942. "At said hearing the plaintiff, believing herself to have been the wife and then to be the widow of said decedent and believing and being advised that as such wife and widow she could not legally claim wages from said decedent, through her attorney of record waived her claim for such wages and submitted no proof in support thereof, and said claim was disallowed and rejected by the court by its order filed on or about the 25th day of September, 1942." August 8, 1942, in a proceeding involving the question whether plaintiff and decedent were legally married, the district court adjudged that they were not, and upon appeal to the supreme court the judgment of the district court was affirmed February 2, 1943, and rehearing denied in May, 1943. (See Roberts v. Roberts, 58 Wyo. 438, 133 P.2d 492).

July 10, 1943, plaintiff ceased to act as administratrix and letters of administration were issued to defendant.

"Thereafter it being made to...