Valentine v. Rosenhaupt

• Decision Date: 31 December 1910
• Citation: 19 Idaho 130,112 P. 685
• Parties: SARAH D. VALENTINE, Respondent, v. SID ROSENHAUPT, Appellant
• Court: Idaho Supreme Court

112 P. 685

19 Idaho 130

SARAH D. VALENTINE, Respondent, v. SID ROSENHAUPT, Appellant

Supreme Court of Idaho

December 31, 1910

EVIDENCE-STRIKING FROM THE RECORD-PLEADING-AMENDMENT.

(Syllabus by the court.)

1. The fact that the trial court gives a wrong reason for striking out certain evidence is not a reason for reversal of the case.

2. It is not error of the trial court to strike out evidence which is hearsay and immaterial, and which could in no way affect the rights of the opposite party.

3. Where, after the close of the evidence in the trial of a case, an amendment is proposed to the answer, and it appears that such proposed amendment would not be supported by the proof, it is not error to disallow the same.

APPEAL from the District Court of the Eighth Judicial District of the State of Idaho, in and for Kootenai County. Hon. Robert N. Dunn, Judge.

An action to enjoin further proceedings in attachment against property of the wife for the debt of the husband, where it is claimed property is the separate estate of the wife. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

Alex M Winston and Gray & Knight, for Appellant.

Defendant's bill of exceptions in this case shows that Mr Valentine's testimony was stricken out, "upon the ground and for the reason that the defendant's answer is made upon information and belief." (Warburton v Ralph, 9 Wash. 537, 38 P. 140.)

Under a general or specific denial of any fact which the plaintiff is required to prove to maintain the action, the defendant may give evidence to disprove it. (Jones v. Rush, 156 Mo. 364, 57 S.W. 118; Cornwall v. Mix, 3 Idaho 687, 34 P. 893; Lindsay v. Wyatt, 1 Idaho 738; Pomeroy's Code Remedies, 4th ed., secs. 546, 547; Brewing Co. v. Grubb, 24 Wash. 163, 63 P. 1091; Jeffersonville etc. Co. v. Riter, 146 Ind. 521, 45 N.E. 697.)

In this case the court seems to have indulged a presumption that the property was the separate property of the wife. There was no legal evidence showing that she had more than a $ 2,000 interest in this $ 5,000 property.

"Property purchased in the name of the wife, partly with funds of her separate estate and partly with money borrowed during the existence of the community, is the separate estate of the wife to the extent to which funds of her separate estate are used and community property to the extent to which such borrowed money is used in its purchase." (Hypotheek Bank v. Rauch, 7 Idaho 152, 61 P. 516; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033.)

The court erred in refusing to permit the defendant to file an amendment to its answer. If under any rule of pleading or evidence it would have changed defendant's position, it should have been permitted. (Harrison v. Russell & Co., 17 Idaho 196, 105 P. 48.)

By striking out the evidence of the defendant as to the money advanced by him to the husband of the plaintiff, the trial court reversed the rule of liberal construction heretofore followed in this state, and by a far-fetched refinement enabled the plaintiff and her husband to perpetrate a fraud upon the appellant. This mode of trying causes should not be encouraged. (Stuart v. Noble Ditch Co., 9 Idaho 766, 76 P. 255; Cantwell v. McPherson, 3 Idaho 721, 34 P. 1095; Wheeler v. Commercial Bank, 5 Idaho 15, 46 P. 830.)

R. E. McFarland, for Respondent.

Any admissions as to the character of a wife's separate property made by her husband in her absence are not binding upon her. (Owens v. N.Y. & T. Land Co., 11 Tex. Civ. 284, 32 S.W. 189; Whelpley v. Stoughton, 112 Mich. 594, 70 N.W. 1098; Fox v. Windes, 127 Mo. 502, 48 Am. St. 648, 30 S.W. 323; Bank v. Lavery, 110 Iowa 575, 80 Am. St. 325, 81 N.W. 775; Jones v. McKee, 3 Pa. 496, 45 Am. Dec. 664.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

Sid Rosenhaupt, the appellant, brought an action in the district court of Kootenai county against R. S. Valentine, the husband of Sarah D. Valentine, respondent herein, upon a promissory note for the sum of $ 530. Attachment was issued and levied upon the real property involved in this action. After the attachment had been levied, the respondent commenced this action against the appellant to restrain and enjoin him from further proceedings in said attachment suit, alleging that said lands so levied upon were her sole and separate property, and that her husband, R. S. Valentine, had no interest whatever in the same.

The case was tried to the court without a jury, and findings of fact and conclusions of law were made, and a decree rendered in favor of the respondent. A motion for a new trial was made and overruled. This appeal is from the judgment and from the order overruling the motion for a new trial.

In the complaint the plaintiff alleges that on the 12th day of October, 1905, her father died intestate in the state of Michigan, leaving by his last will and testament to the plaintiff the sum of $ 7,575, and that she received said sum on or about the 9th day of April, 1906, upon the distribution of said estate, and that all the consideration and purchase price of the property described in her complaint, upon which the attachment was levied in the suit of Rosenhaupt v. R. S. Valentine, was paid out of the moneys received by her upon the distribution of her said father's estate, and that her said husband, R. S. Valentine, paid no part of the purchase price, and that all of said real estate is her sole and separate estate.

The defendant answered, and among other things alleged: "That this defendant says that he is informed and believes, and therefore states the fact to be, that the said lands were in fact purchased by R. S. Valentine, the husband of the said plaintiff, pursuant to the contract entered into with the said George T. Addis and wife by the said R. S. Valentine, on or before the 15th day of December, 1908, and defendant says that he is informed and believes, and therefore states the fact to be, that the said lands described in plaintiff's complaint were purchased with community funds of the said R. S. Valentine and Sarah D. Valentine, and that said lands are community property of the said R. S. Valentine and Sarah D. Valentine."

It is also further alleged in the answer as follows: "As to whether or not all or...