Walsh v. Kennedy

Decision Date18 April 1944
Docket NumberNo. 8437.,8437.
PartiesWALSH v. KENNEDY.
CourtMontana Supreme Court

115 Mont. 551

WALSH
v.
KENNEDY.

No. 8437.

Supreme Court of Montana.

March 25, 1944.
Rehearing Denied April 18, 1944.


Appeal from District Court, Second District, Silver Bow County; Jeremiah J. Lynch, Judge.

Action by Mary Walsh, as administratrix of the estate of Mary Kennedy, also known as Mary Z. Kennedy, deceased, against Harold N. Kennedy to quiet title to certain realty, wherein defendant cross-complained. Judgment and decree for defendant, and plaintiff appeals.

Affirmed.

ADAIR, J., dissenting.


McCaffery & McCaffery, of Butte, for appellant.

R. Lewis Brown, J. F. Emigh, and Alf C. Kremer, all of Butte, for heirs at law.


JOHNSON, Chief Justice.

Plaintiff, as administratrix of the Estate of Mary Kennedy, Deceased, appeals from a judgment and decree in favor of defendant Harold N. Kennedy in a quiet title suit involving Lot 23 of Block 5 of the Travona Addition to the city of Butte. Both the amended complaint and the cross-complaint are in the usual short form for quiet title actions and allege title in the pleader, and adverse, invalid and inferior claims by the opposing party.

There are three specifications: That the court erred in permitting an amendment of the answer at the trial and in admitting certain testimony hereinafter set forth, and that the evidence does not sustain the findings, conclusions and decree.

Among other things the complaint alleges that Mary Kennedy died on June 27, 1941; that plaintiff was appointed administratrix of her estate; “that at all the times hereinafter mentioned and for more than three years prior to the 27th day of June, 1941, the said Mary Kennedy was the owner in fee” of the property in question. No times were thereinafter mentioned, so that the latter allegation in effect is only “that for more than three years prior to the 27th day of June 1941” plaintiff's intestate was the owner. It will be noted that the allegation does not expressly state that she was still the owner on that date or at the time of her death, and while it would seem to mean that she was the owner continuously during the three years and more immediately prior to that date, it will not be necessary to rule expressly upon the point here.

The transcript does not disclose the answer as it originally was; but during oral argument counsel for respondent expressly consented to appellant's attempt to supplement the record in that respect by means of her reply brief filed in this court. Thus we know that the answer originally said with reference to the above allegation of the complaint: “Admit that prior to the 27th day of June, 1941, Mary Kennedy was the owner of the real property described in paragraph 3 of the amended complaint.” The final paragraph of the answer, which was not amended, denied each allegation of the complaint not expressly admitted or denied. Certainly the two provisions do not expressly constitute an admission of Mary Kennedy's ownership during the full three year period prior to the date named, and there may be some room for argument whether they constitute an admission of the ownership during any period immediately prior to the date. Since, as above noted, the allegation of the complaint is that plaintiff's intestate owned prior to that date, and not that she owned it on that date or at the time of her death, the answer cannot have admitted the latter. However, in disposing of this appeal it will not be necessary to consider whether, in this state of the pleadings, the complaint stated a cause of action, or whether the answer originally admitted ownership during the period immediately prior to that date.

Defendant having testified that about the last of January, 1941, Mary Kennedy delivered to him a deed for the property, plaintiff moved to strike the testimony on the ground that it was not within the issues and was at variance with the pleadings. The court denied the motion but expressed a belief that defendant's answer constituted an admission which would be binding upon him in spite of the evidence. Defendant then orally sought permission to amend his answer; the application was denied without prejudice, but defendant was granted a continuance until afternoon in which to prepare the amendment and a showing for its allowance. At that time he moved to amend the answer so as to deny that Mary Kennedy was the owner of the premises at all times prior to June 27, 1941, and to admit that prior to about January 28, 1941, she was the owner, and to allege that on or about that date she executed and delivered to defendant a deed for the property.

The defendant's motion included his consent that if deemed necessary by the court the cause “may be continued on terms,” and was supported by the affidavits of defendant and one of his counsel. The affidavits recited that it was at all times intended to rely upon the delivery of the deed to defendant on about January 28, 1941; that it was always intended to deny that Mary Kennedy was the owner after that date, and that it was believed that the effect of the answer was to do so; that it was never intended to admit that Mary Kennedy owned the property after that time, and that if the answer had the effect of such admission it was by reason of excusable neglect, inadvertence and mistake; that in discussions between counsel for the parties it was stated on numerous occasions that the only question in the case was whether there was an actual delivery of the deed to defendant; that on April 22, 1942, defendant's deposition was taken on his own motion because of his illness and that he then, in the presence of plaintiff's counsel, testified to the delivery of the deed to him about the last of January or the first of February, 1941.

Plaintiff objected to the sufficiency of the showing and renewed her oral objections that the motion was untimely, would change the issues and theory of the case, and “would necessarily require sufficient time within which to meet this new issue.” But she did not file counter-affidavits nor otherwise controvert the facts stated.

The court overruled the objections and granted the motion. Plaintiff then asked that her reply be considered amended to deny the new allegations of the amended answer, which was allowed without objection, and the trial then proceeded without any request on plaintiff's part for a continuance.

By the amendment paragraph 3 of the answer was made to read as follows: “That Defendant, Harold N. Kennedy, denies that at all times in Plaintiff's Complaint mentioned prior to the 27th day of June, 1941, the Decedent, Mary Kennedy, was the owner in fee of the premises described in said Paragraph 3 of the Complaint on file herein, but admits the fact to be that prior to on or about the 28th day of January, 1941, the said Mary Kennedy was the owner in fee of said premises, and in this behalf alleges the fact to be, that on or about the 28th day of January, 1941, the said Mary Kennedy, in her lifetime, did make, execute and deliver to this answering Defendant a good and sufficient deed to the real property described in Paragraph 3 of said Complaint; that at all times thereafter, and at the time of the death of said Mary Kennedy, Plaintiff was, and ever since has been, the lawful owner of said real property in fee, and denies all other matters and things set forth and contained in Paragraph 3 of said Amended complaint.”

The dissenting opinion seems to construe the amended answer as admitting that in spite of the execution and delivery of the deed Mary Kennedy still owned the property at the time of her death. Since the clause does not begin with either “admit” or “deny” the first part of it, which is quoted and underlined alone in the dissent, must be construed as meaningless unless meaning is added by the concluding words of the section “and denies all other matters and things set forth and contained in Paragraph 3 of said Amended complaint;” and if the latter denial does not suffice for that purpose, the first part of the clause remains meaningless and the latter denial sufficiently denies the allegation, so far as it appears in the complaint and therefore calls for denial if not a mere conclusion of law. The dissent seeks, apparently, to relate the allegation to the word “admits” in the preceding clause, which is brought to an end by a semicolon; but that clause is entirely separate and is mainly a denial only partially qualified by the words, “but admits the fact to be” etc., which regardless of punctuation cannot logically be carried over into the next clause.

The wording, the punctuation and the entire purpose of the amendment, all indicate the intent to deny and not admit the conclusion that Mary Kennedy was the owner at her death. Neither the court nor the appellant had any difficulty in understanding its meaning, and in justice to the appellant it should be stated that she has not questioned it, either at the trial or on this appeal. However, if the meaning were as the dissent assumes, and if the clause constitutes ultimate fact rather than conclusion of law, the pleading must be deemed amended by the testimony of defendant, admitted without objection, as to the delivery of the deed. We may therefore proceed to examine the first question raised by appellant, whether the permitted amendment of the answer constituted error.

It is of course well established that liberality in allowance of amendments is the rule, that the denial of amendments should be the exception, and that the amendment should be allowed unless there is a good reason for its refusal. State ex rel. Barnard-Curtiss Co. v. District Court, 113 Mont. 107, 121 P.2d 419. It is equally well settled that even though the trial court's ruling might seem erroneous, it will not be reversed unless the error was prejudicial to the appellant. Under the latter rule it becomes unnecessary to consider any of the questions relative to the propriety of the court's action in permitting the amendment; for it is apparent that the plaintiff was not misled or...

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