Stafford v. Field, No. 7585

• Court: United States State Supreme Court of Idaho
• Writing for the Court: GIVENS; HOLDEN
• Citation: 218 P.2d 338,70 Idaho 331
• Docket Number: No. 7585
• Decision Date: 09 May 1950
• Parties: STAFFORD v. FIELD et ux.

Page 338

218 P.2d 338 70 Idaho 331 STAFFORD
v.
FIELD et ux. No. 7585. Supreme Court of Idaho. May 9, 1950.

[70 Idaho 333]

Page 339

Bistline & Bistline, Pocatello, for appellant.

Black & Black, Pocatello, for respondents.

GIVENS, Justice.

Appellant, mother of respondent Mrs. Mary Louise Field, on June first, 1948, sued on a promissory note for $1500.00 signed by respondents. Respondents secured a nullifying verdict based on their defense of no consideration and that the note was given because of duress and coercion.

December 29, 1939, appellant, living in Santa Cruz, California, was appointed guardian of the persons of Patricia Ann and Merwin Sinns, aged 2 1/2 years and 13 months respectively, minor children of respondent, Mrs. Field, who at that time had been divorced from her husband, their father, about 14 months and had married one Prouty. The father never paid the $2.50 per week required in the divorce decree as support for each of the children. Mrs. Field, then Mrs. Prouty, was a party to and present in court in the guardianship proceedings. No order was made as to the support of the minors.

Evidently Mrs. Field was not living with appellant at the time of her appointment and qualification as guardian, but had been prior thereto. Mrs. Field remained in California a few weeks, then later--she didn't remember when--went to Missouri. She sent some clothing and contributed $5.00 per week for the support of the children for several months, and Mr. Prouty, her second husband, while in the Military Service, allotted checks for about a year and a half or ten months to appellant for the support of the children. Respondent,[70 Idaho 334] Mrs. Field, was married to Prouty for about four years--did not remember just when she divorced him--during which time she was living in Kansas City. She then went to Pasco, Washington, and occasionally visited the children and her mother in Santa Cruz and in Des Moines, Iowa, where for about a year appellant was living. Except for such casual contributions, the record indicates the entire expense for the care of the children was borne by appellant from her own property. The minors had and have no estate.

Respondents did not raise the nonjoinder of appellant's husband by demurrer or answer, but did so on motion for nonsuit at the conclusion of appellant's case-in-chief and final submission and now urge appellant had no capacity to sue without joining her husband as party plaintiff, urging the note is community property. By not raising the issue by demurrer or answer, the defect of nonjoinder, if any, was waived. Sections 5-607 and 5-611, I.C.; Anthes v. Anthes, 21 Idaho 305 at 311, 121 P. 553; Trask v. Boise King Placers Co., 26 Idaho 290 at 299, 142 P. 1073; Thelen v. Thelen, 32 Idaho 755 at 756, 188 P. 40; McGrath v. West End Orchard & Land Co., 43 Idaho 255 at 263, 251 P. 623; Younie v. Sheek, 44 Idaho 767, 260 P. 419; Jutila v. Frye, 9 Cir., 8 F.2d 608 at 609.

Respondent and Mr. Field were married in May 1944 and in April 1946 respondent, Mrs. Field, instituted proceedings in the Superior Court for the County of Santa Cruz in California, which had granted the guardianship, to regain custody of the children, deposing therein: '* * * That since said time (appellant's appointment) the economic condition of your petitioner has improved so that at the present time your petitioner is well able to properly care for and provide for said minors.' Which relief was denied, but provision was made for visitation.

In 1947 appellant, in the same court, sought to have the guardianship extended to the minors' estate, and respondents restrained from interfering with appellant's custody, etc., reciting that appellant had solely maintained the minors and narrated other interim dissensions with Mrs. Field. Respondent, Mrs. Field, in effect renewed her application for guardianship.

The official minutes of that proceeding, both appellant and respondents being represented by counsel, and the order properly

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certified (Section 9-312, I.C.) April 16, 1949, by H. E. Miller, Esq., Clerk, and Honorable James L. Atteridge, Judge, and introduced as Plaintiff's Exhibit B, showing appellant, respondents and minors were witnesses, thus recited:

Minutes

'Said motion (appellant's) being now heard and submitted to this court, it is now ordered by the court that Herman J. Mager, Esq. as the attorney for said Mary L. [70 Idaho 335] Field, the mother of said minors, prepare an order awarding the care, custody and control of said minors to the said Mary L. Field under the terms and conditions now dictated by the court into the phonographic record of proceedings herein, among which, are that this court shall retain jurisdiction of said minors and of this guardianship proceeding and that said Mary L. Field shall reimburse said guardian for certain expenditures heretofore made by said guardian for the support and maintenance of said minors.'

The consequent, formal Order is as follows:

'* * * It is hereby ordered, adjudged and decreed:

'1. That Estella M. Stafford be, and is, hereby removed as the guardian of the persons of the aforesaid minors;

'2. That the care, control and custody of said minors be and is hereby awarded to their mother, Mary L. Field; provided however that said children shall either be brought to the state of California for the purpose of visiting the said Estella M. Stafford and maternal grandparent, or that said parent be extended an invitation to visit in Idaho for the purpose of seeing said children; that said visits shall be arranged at least once every two years on the demand of said Estella M. Stafford;

'3. That this court does hereby retain jurisdiction of these guardianship proceedings until said court relinquishes such jurisdiction.

'James L. Atteridge Judge of the Superior Court'

'Dated: March 27, 1947.'

Respondents introduced evidence that the Judge, outside of Court, stated the reimbursement was a condition precedent to appointing Mrs. Field as guardian, as showing coercion and duress. Appellant's objection to this line of testimony should have been sustained.

'Exhibits 'A' and 'B' being properly authenticated, were admissible in evidence, and entitled to the same faith and credit which would have been accorded to them in the State of Oregon. U. S. Constitution, Article IV, Section 1; 28 U.S.C.A. § 687. [28 U.S.C.A. § 1738]. Said exhibits established the fact that the Oregon Courts had a...