Thelen v. Vogel
| Decision Date | 31 October 1929 |
| Docket Number | 6489. |
| Citation | 281 P. 753,86 Mont. 33 |
| Parties | THELEN v. VOGEL et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Fergus County; Edgar J. Baker, Judge.
Suit by Michael Thelen against Anna K. Vogel, as guardian of the persons and estates of Mary Finkbeiner and others, minors and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Rufus Hopkins and Ayers & Ayers, all of Lewistown, and Frank Polutnik, Jr., of Great Falls, for appellants.
Oscar M. Ulsaker and Ralph J. Anderson, both of Lewistown, for respondent.
In April, 1926, Michael Thelen brought suit to foreclose a mortgage executed in 1916 by Anna K. Vogel, as guardian of three minors; with the guardian, as mortgagor, he joined the three erstwhile minors and a stranger to the mortgage as defendants. The stranger defaulted. The guardian and the three remaining defendants demurred; the demurrer was overruled, and thereafter the guardian alone answered denying that she had authority to execute the mortgage, and alleging payment of the mortgage notes. Plaintiff joined issue, as to the affirmative allegations of the answer, by reply.
The default of all defendants, except Anna K. Vogel, was duly entered and the cause proceeded to trial by the court and terminated in a judgment and decree in favor of plaintiff and thereupon a notice of appeal was duly served and filed, stating that "the above named defendants and each of them * * * jointly and severally hereby appeal * * * from the judgment and decree. * * *" The then counsel for defendants filed herein a transcript containing the judgment roll and what purports to be all of the evidence adduced on the trial, and a brief specifying many alleged errors based on rulings of the court and asserted insufficiency of the evidence to justify the judgment.
Thereupon plaintiff moved this court, on notice, to strike the evidence from the transcript on the ground that it was not incorporated in a bill of exceptions; this motion was granted and the evidence stricken.
The defendants then secured new counsel, who, in oral argument on the hearing here, abandoned the assignments of error made and challenged the sufficiency of the complaint on the ground that the appointment and qualification of the guardian and her authority to execute the mortgage are not properly pleaded. This argument is based upon the assertion that the district court, sitting in probate, is an inferior court of special, limited jurisdiction.
Certain objections to the court's findings of fact and conclusions of law were also urged, but these could have merit only if the record contained a bill of exceptions; as it does not, we may consider only the judgment roll (section 9390, Rev. Codes 1921; Bohon v. Bitter Root Sales Co., 82 Mont. 260, 266 P. 645), and must presume that the evidence was sufficient to warrant the result reached ( Bond Lumber Co. v. Timmons, 82 Mont. 497, 267 P. 802).
While the defendants have not complied with the requirements of Rule X of this court by making a written specification of error based upon the overruling of their demurrer, specification 1 made contains an assertion that the guardian's authority is not sufficiently pleaded, and, as appearing counsel did all that was possible for his clients in the embarrassing situation in which they found themselves, we will consider the sufficiency of the complaint, without the benefit or briefs on the question raised. However, as Anna K. Vogel, guardian, answered over and went to trial, and the record here contains no bill of exceptions, as to her appeal, we must assume that the proof was ample and consider the complaint as amended to conform thereto. Shaw v. McNamara & Marlow, 85 Mont. ---, 278 P. 836; Blackwelder v. Fergus Motor Co., 80 Mont. 374, 260 P. 734.
Plaintiff contends that the complaint is assailed here for the first time, as to substance, and the attack should therefore be looked upon with disfavor and every reasonable inference drawn from the facts stated to support it, citing the Blackwelder Case, above. But the three young women who were minors in 1916 and have since reached their majority-the owners of the mortgaged premises-must, on the record, be considered as having demurred to the sufficiency of the complaint, stood on their demurrer, and suffered default judgment to be entered against them, and thereafter appealed from the judgment, thus requiring consideration of the sufficiency of the complaint tested by the demurrer.
The challenged portion of the complaint is that "the third day of January, A. D. 1913, by order of the district court of the Tenth Judicial District * * * Anna K. Vogel was duly appointed guardian of the persons and estate of [the minors named] and thereupon qualified * * * and letters of guardianship were issued to her, which letters have never been revoked and the said Anna K. Vogel ever since said date has been and now is the duly appointed, qualified and acting guardian of the persons and estates of" the minors. It is then alleged that "pursuant to an order duly made and given by the said district court * * * the 30th day of September, A. D. 1916, authorizing, empowering and directing the * * * guardian * * * to mortgage the real estate belonging to the said minors to secure the payment of a note, * * *" the note and mortgage in suit were executed.
Section 9169, Revised Codes of 1921, provides that, "In pleading a judgment or other determination of a court, officer, or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made."
The allegation as to authority is sufficient even under this provision; but the provision is not exclusive; the judgment therein referred to may still be pleaded by setting out the facts conferring jurisdiction. Weaver v. English, 11 Mont. 84, 27 P. 396; Himmelmann v. Danos, 35 Cal. 441. However, these alternate methods of pleading a judgment apply only to judgments of "inferior courts of special limited jurisdiction" and have no application to superior courts of general jurisdiction. Beach v. Spokane Ranch & Water Co., 25 Mont. 376, 65 P. 111; Lynde v. Columbus Co. (C. C.) 57 F. 993; Clark v. Nordholt, 121 Cal. 26, 53 P. 400; Rheinhart v. State, 14 Kan. 322; Fisher v. Kelly, 30 Or. 1, 46 P. 146; State v. Clatsop County, 63 Or. 377, 125 P. 271.
It has never been necessary to plead all of the facts showing jurisdiction in pleading the judgments of courts of record and general jurisdiction, as in such cases the presumption is in favor of jurisdiction and all things requisite to the validity of the judgment. 2 Black on Judgments, § 966, and cases cited.
The statute under consideration does not change these rules, but merely simplifies the method of pleading judgments theretofore required to be pleaded with great particularity, if the pleader chooses to take this shortcut. Mears v. Shaw, 32 Mont. 575, 81 P. 338; Weller v. Dickinson, 93 Cal. 108, 28 P. 854.
There seems to exist a rather widespread misapprehension as to the nature of the jurisdiction of the district court when exercising its probate powers; it being assumed, as counsel for defendants here assume, that, when "sitting in probate," the court is an inferior court of special limited jurisdiction, and therefore the first rule applies to the pleading of its judgments or other determinations. This misapprehension is perhaps justified by certain declarations of this court in former opinions, some of which deal directly with the question under consideration, while others are merely the announcement of general principles governing the practice in probate matters.
The question here presented has not heretofore been given careful consideration by this court although it has been touched upon in several opinions, in certain of which unfortunate expressions have been employed which have added to the confusion on the subject.
The rule respecting the pleading of judgments of courts of general jurisdiction has been recognized as applying, under certain circumstances, to the judgments of district courts in probate matters (In re Bruhn's Estate, 58 Mont. 526, 193 P. 1115; In re Spriggs' Estate, 68 Mont. 92, 216 P. 1108), while in Henderson v. Daniels, 62 Mont. 363, 205 P. 964, seemingly under the assumption that section 9169, above, applied to the pleading of all judgments, regardless of the status of the courts rendering them, it is held that, because the plaintiff did not allege his appointment as administrator in accordance with the first rule, he was not entitled to prove his appointment by introduction of the order in the probate proceeding.
In Knight v. Le Beau, 19 Mont. 223, 47 P. 952, although the question here under consideration was not before the court, as the question there was as to the capacity of the plaintiff to sue and, that question not being properly raised, the court held the complaint sufficient, it nevertheless condemned the laxity of pleading and clearly intimated that the first rule applied to the judgment there pleaded. While the criticism of the complaint therein may, in part, have been justified, since it related to failure to plead testacy on the part of a deceased, this intimation, in view of the disposition of the appeal, is but obiter.
In State ex rel. Thompson v. District Court, 75 Mont. 147 242 P. 959, 961, the holding would warrant the application of the rule respecting the pleading of a judgment of an inferior court to the order of the district court there considered (i. e., in an adoption proceeding); but that holding is based upon the well-established rule that, "when a court of general jurisdiction has special and statutory powers conferred upon it, which are wholly derived from statute, and...
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