Swanson v. State

• Decision Date: 23 November 1960
• Docket Number: No. 8865,8865
• Citation: 358 P.2d 387,83 Idaho 126
• Parties: R. V. SWANSON and Lottie Swanson, his wife, and Bessie Hubbard, Plaintiffs-Appellants, v. STATE of Idaho, and Evans Investment Company, a corporation, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 387

358 P.2d 387

83 Idaho 126

R. V. SWANSON and Lottie Swanson, his wife, and Bessie Hubbard, Plaintiffs-Appellants, v. STATE of Idaho, and Evans Investment Company, a corporation, Defendants-Respondents.

No. 8865.

Supreme Court of Idaho.

Nov. 23, 1960.

Rehearing Denied Jan. 16, 1961.

F. M. Bistline, Pocatello, for appellants.

Frank L. Benson, Atty. Gen., and Thos. Y. Gwilliam and Frank Langley, Asst. Attys. Gen., and Anton Hohler, former Asst. Atty. Gen., and Gregg R. Potvin, American Falls, for Evans Investment Co.

Wm. R. Padgett, Chief Legal Counsel and Andrew M. Harrington, Boise, for Idaho Department of Highways, for defendants-respondents.

KNUDSON, Justice.

Appellants (plaintiffs) seek to quiet title to a strip of land 16 ft. wide and 400 feet long at what is known as Michaud Siding in Power Company described as:

'Beginning at a point south 53 degrees 10 minutes East, 890 feet from the 1/4 corner between Sections 15 and 16, Township 6 South, Range 33 East of Boise Meridian, thence North 72 degrees 20 Minutes East 400 feet; thence South 17 degrees 40 minutes East to a point on the Northwesterly right of way line of the Oregon Short Line Railroad Company to the true point of beginning; thence South 72 degrees 20 minutes West along the Northwesterly right of way line of the Oregon Short Line Railroad Company a distance of 400 feet; thence North 17 degrees 40 minutes West 16 feet; thence North 72 degrees 20 minutes East a distance of 400 feet; thence South 17 degrees 40 minutes East 16 feet to the true point of beginning, same being a rectangular tract 16 feet wide and 400 feet long in Section 15, Township 6 South, Range 33 East of the Boise Meridian in Power County, Idaho.'

The property in controversy borders the northwesterly right of way line of the Oregon Short Line Railroad Company.

In 1926 a warehouse 42 ft. by 280 ft. was moved to Michaud Siding by four persons as joint adventurers. The northerly 16 ft. of the warehouse stands upon a part of the land in controversy and the southerly 26 ft. on land leased from said railroad company. The warehouse was operated under the joint adventurer arrangement until 1927 when it was incorporated as the Michaud Warehouse & Grain Company. On April 6, 1948, W. J. Hubbard and wife purchased all the stock of the corporation and took possession of the warehouse at that time. W. J. Hubbard died April 25, 1956, and appellant Bessie Hubbard succeeded to all property and rights of her deceased husband.

Appellants R. V. Swanson and wife allege that Bessie Hubbard is the owner in fee of the area involved subject to an agreement to purchase (Ex. A.) executed by appellants bearing date of September 1, 1951, which agreement does not describe the property here involved. Under date of March 24, 1959, (being the date of commencement of trial of this action) appellant R. V. Swanson and the said Bessie Hubbard entered into a supplemental agreement (Ex. B.) wherein it is stated that the property in controversy was inadvertently omitted from said purchase agreement and that the terms and conditions of said purchase agreement shall be applicable to and include the property here involved.

In support of appellants' claim of ownership they allege that they are now in possession of said property by virtue of said purchase agreement; that the vendors under said purchase agreement and their predecessors in interest have been in long continued possession of said property since 1926, coupled with complete dominion over same and open and visible acts of ownership, in that there is, and since 1926 has been located thereon, the northwesterly 16 ft. of a warehouse; that their predecessors in interest were during said period since 1926, in open, notorious and adverse possession of said property and during said period paid all taxes and assessments which were levied against said property.

During the trial appellants sought to introduce the testimony of two witnesses tending to prove an oral agreement on the part of L. L. Evans (now deceased) a former owner of the land in controversy to the effect that if the warehouse company would build the warehouse in the place where it is located such former owner would give them whatever land was needed for the warehouse site. Appellants' attempt to prove such oral agreement was by appellant Mrs. Hubbard who testified:

'I understood at the time that the warehouse was erected on that certain spot because L. L. Evans had told the warehouse company that if they did build it there he would deed them the warehouse site.'

The witness (Mrs. Hubbard) did not testify that she heard L. L. Evans make any such statement nor did any other witness testify or offer to testify that such a statement was made in his presence.

The other witness (F. M. Bistline) testified:

'A. This was a metting held approximately in 1934. As I recall it, L. L. Evans, the father of Paul Evans, died, I believe, in April of 1934, and this was a metting of the board of directors at some time probably later in that year, or early in 1935, and at that time Mr. Davis brought up the matter about the fact that no deed had been executed, and said to Mr. Evans that L. L. Evans, his father, had promised, or had stated that if they put a warehouse up there he would see that they had all the necessary land they needed for it.'

The rulings of the trial court in striking the testimony of Mrs. Hubbard and sustaining objections to the testimony of Mr. Bistline relative to statements of L. L. Evans (deceased) are assigned as error. Such assignments are without merit.

In an attempt to establish an oral agreement on the part of J. Paul Evans and the Evans Investment Company (successors in interest to L. L. Evans) said witness F. M. Bistline continued his testimony as follows:

'A. Well, pursuant to the conversation, nevertheless, the deed was made, and, as I recall it, Paul Evans said he would see that a deed was made at that time. It was called to his attention and the deed was asked for, and he said he would see that the deed was made to the warehouse company, and he was asked for a deed for what they needed, and later on,--it wasn't very long after that that a deed was made. As to what the deed contained, I never did know that until the date in 1953 when Mr. Swanson and I came down to American Falls and talked to Mr. Evans, as I say after Mr. Swanson had received the letter from the State, and at that time we checked it with the belief that this piece of property was included in it, but we found that it was not inlcuded in it.'

J. Paul Evans (in referring to the same meeting of the board of directors as the witness Bistline referred to in the foregoing excerpt) testified as follows:

'Q. And do you recall what was said in that meeting with regard to that, whether certain property would be deeded over to the warehouse company? A. There was some property on the north side of the highway they wanted a deed to, so I gave them a deed to it.'

The evidence offered in support of appellants' said contention is wholly insufficient. The burden is upon appellants to prove by clear, satisfactory, convincing and certain evidence that an oral agreement to convey the real property involved was made and entered into. Johnson v. Albert, 67 Idaho 44, 170 P.2d 403; Prairie Development Co., Ltd. v. Leiberg, 15 Idaho 379, 98 P. 616; Wormward v. Taylor, 70 Idaho 450, 221 P.2d 686.

Appellants assign as error the action of the trial court in setting aside the default judgment entered on February 13, 1956. The affidavit filed in support of respondent's motion to set aside said default judgment discloses that the original appearance on behalf of respondent was made by attorneys who were employed by an interested title insurance company. Thereafter the defense of the action was turned over to the State of Idaho and referred to an attorney employed by the Department of Highways who at that time was familiar with the action but left the employ of the Department of Highways about the time the defense of the action was turned over to the State. The attorney to whom the action was thereafter referred was not informed of the filing of any motion of withdrawal on the part of the attorneys who originally appeared as counsel for respondent and assumed that the action was still in a demurrer status.

The statutory authority for relief from defaults is contained in I.C. § 5-905 under which it is provided that a court may, in its discretion, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.

An application to set aside a default is addressed to the sound legal discretion of the trial court and the order of the court will not be reversed on appeal unless it clearly appears that the court abused its discretion; and in determining the question of discretion the power of the court should be freely and liberally exercised under the statute to mold and direct its pleadings so as to dispose of cases upon their substantial merits. Holzeman & Co. v. Henneberry, 11 Idaho 428, 83 P. 497; Pittock v. Buck, 15 Idaho 47, 96 P. 212; Crane v. City of Harrison, 34 Idaho 167, 200 P. 892; Johnson v. Noland, 78 Idaho 642, 308 P.2d 588.

The motion in the instant case was filed within the time provided by statute. There is no showing that appellants were prejudiced or that they were deprived of any advantage to which they were properly entitled. It is our opinion that the showing made was sufficient to establish inadvertence and excusable neglect and we are not prepared to say that there has been such abuse of discretion by the trial court as would justify us in reversing the order complained of.

The remaining specifications of error will be considered together since all relate to the same contention that judgment should have been entered for appellants upon the evidence in the case. By reason of such contention we must examine the record to ascertain...