Wilbur v. Johnson

• Decision Date: 15 December 1915
• Citation: 32 N.D. 314,155 N.W. 671
• Parties: WILBUR v. JOHNSON et al.
• Court: North Dakota Supreme Court

32 N.D. 314

155 N.W. 671

WILBUR

v.JOHNSON et al.

Supreme Court of North Dakota.

Nov. 19, 1915.

Rehearing Denied Dec. 15, 1915.

Syllabus by the Court.

Equitable action to compel a reconveyance of land and for consequential damages. At the close of the trial, upon motion, the court dismissed the two causes of action. Plaintiff immediately asked for reinstatement, and that the trial proceed, and that two parties be joined which the court had in the rulings on the motions to dismiss held to be necessary parties. This request was granted, conditioned upon terms, the allowance of which was over plaintiff'sobjection and protests, and which terms he failed to pay after he had procured one extension of time in which to make payment. Later, on motion noticed for hearing, the action was dismissed over plaintiff's written objections challenging the propriety of all previous rulings.

Held, under the facts, more fully stated in the opinion, the persons ordered brought in as additional parties, while proper parties, were not necessary parties to the action.

That the action should not have been dismissed because of their nonjoinder as parties to the action.

That said persons, having appeared in court and testified in plaintiff's behalf, and by their affidavits denied any interest in the subject-matter of the action, and requested judgment to be entered in plaintiff's favor if he was otherwise entitled to it, had undertaken to control to that extent the plaintiff's case, and would be bound by the judgment.

That as to one of said parties, the wife of plaintiff, the necessity for whose joinder as a party to the action was only to bar her right of dower of lands in controversy situated in a foreign state, a court of equity could obviate such necessity under the plaintiff's offer to prove that she would join with him in a deed to said lands by an interlocutory decree conditioning his recovery upon conveyance by her of her dower interest in said lands. As full relief in equity could have been granted, she was not a necessary party.

Where full relief could thus be afforded, the right to raise the question of nonjoinder of parties had been waived by failure to raise the same by demurrer or answer, and it was error to dismiss the action upon a motion at the close of the case. The court should have proceeded with the trial and made its findings and conclusions.

Plaintiff has not waived his right to challenge the propriety of the order for continuance because he has not asked for the order made over his protests.

Although he attempted to raise the money to pay the $75 terms imposed as a condition precedent upon his further proceeding, and was unable to make such payment, and in his endeavor to comply with said order requested and obtained a 30 days' extension of time to raise said amount for said purpose, plaintiff has not waived his right to question the imposition of said terms.

Under said order for terms all benefits and advantages accrued to plaintiff's adversary, and plaintiff was conferring benefits, instead of receiving them, and his ineffectual attempt to comply with the order was of no substantial benefit to him or loss to the adversary; hence he does not lose his right to review on appeal the order for terms.

To estop a party on appeal from challenging an order, his acquiescence therein must have been unqualified, and the benefits received by him as a basis for estoppel must have been substantial.

As a vacation of the order for terms will not deprive defendants of any substantial advantage accruing because of the delay occasioned by plaintiff's attempt to comply with the order for terms, plaintiff is not estopped on this appeal from challenging the propriety of said order.

As plaintiff was not permitted to complete his proof upon equitable issues, or upon the issue of damages involved, trial de novo will not be had, but the judgment entered will be reversed, and the order for terms vacated, and a new trial will be ordered upon all causes of action.

Appeal from District Court, Morton County; Nuchols, Judge.

Action by Clarence J. Wilbur against John L. Johnson and another. From judgment for defendants, plaintiff appeals. Reversed and remanded.

R. H. Neely, of Flasher, and Jorgenson & Eggen, of Sisseton, S. D., for appellant. Robert F. Nash, of Flasher, and John F. Sullivan, of Mandan, for respondents.

GOSS, J.

This action is in equity to compel a reconveyance of exchanged real estate and for damages. Issue was joined and a trial had, wherein, after submission of his proof, plaintiff rested. Thereupon both causes of action were separately dismissed on motion of defendants, the court ruling orally that two persons, viz., plaintiff's wife, Teressa Wilbur, and his mother-in-law, Anna B. Cummings, both of whom had testified in plaintiff's behalf and were present in court, were necessary parties to the action. Plaintiff then asked to reopen the case for the purpose of naming them as additional parties, “and for the purpose of introducing evidence to show that the plaintiff and his wife are ready, willing, and able to return to the defendants a deed to the land conveyed to them in the state of Tennessee.” Defendants objected, and demanded time to plead to said new parties and terms to recompense them for the continuance of the case. Plaintiff desired to proceed with the trial and objected to terms, stating that “requiring him [plaintiff] to put up any costs would practically mean that he could not come into court” again. The cause was continued, and the two persons named were ordered to be brought in as parties and directed to plead, with the usual time allowed defendants for answer or demurrer; and $75 terms was imposed upon plaintiff, same to be paid at the time of the serving of the pleadings bringing in said additional parties as a condition precedent to plaintiff taking any further steps in the action. No payment of terms was made. Soon thereafter a notice to dismiss the action for noncompliance with said order was noticed. At the hearing plaintiff opposed a dismissal of the action, and asked for further time within which to raise the money to pay the terms, as appears from the affidavit of his attorney, reciting his inability to pay the terms as a reason for their nonpayment. The court thereupon extended the time for their payment from the 19th of August to the 18th of September. The latter date expired with no payment of terms made or compliance with the order as to service of pleadings or bringing in of the additional parties. On September 27th a motion to dismiss because of such noncompliance was again presented. Upon that hearing plaintiff's counsel appeared, and by written objection challenged the propriety of the order made in the first instance compelling the bringing in of said additional defendants, setting out that they were proper, but not necessary, parties, that the objection of nonjoinder of parties was one that could not be taken advantage of by motion or otherwise than by demurrer or answer, and that any objection on that ground to parties plaintiff accordingly had been waived because not so raised, and calling attention to the fact that said parties had been present at the trial and were in the courtroom, and “would have then and there testified that they had no interest whatever in the subject-matter of the action had the court granted the plaintiff's motion and allowed them to so testify,” and that the terms imposed were prohibitive of further proceedings on plaintiff's part, because he was unable to pay them. These are set forth in affidavits, including those of Teressa Wilbur and Anna B. Cummings, disclaiming any interest in the subject-matter of the action. The only reason for Teressa Wilbur as a party to the action arose from the fact that in the exchange plaintiff had taken over some Tennessee real estate, and under the law, it being presumed that the foreign law is the common law, she would have a dower interest in said Tennessee property. In her affidavit of disclaimer of interest, offered in opposition to the motion to dismiss, she stated that, “if she has any interest in said land, she is now and always has been ready, willing, and able to sign and execute any instrument that the court might direct” in case a retransfer was decreed. The motion was granted, without findings or conclusions being made, but upon the evidence submitted, and the cause was dismissed with prejudice and with costs as for noncompliance with the terms order. Plaintiff appeals, and demands a trial de novo.

[6][7][8][9][10] Respondents contend that the appellant is estopped from urging error, because-

“the court, acting on the request and motion of the appellant, granted leave to amend the pleadings on plaintiff's behalf against the objections of the defendants, and the plaintiff acquiesced in the order and consented to the continuance of the case in order to so plead. The plaintiff did not specifically acquiesce, but, not taking objections to the question, waived all rights to such objection, and by his acts in the matter showed that he desired the continuance of the action, and in order to comply with the order of the court, made at plaintiff's request, it was necessary to continue the action. That such order and continuance were made for the benefit of the plaintiff and at his request, and that plaintiff could not be aggrieved thereby.”

The first question presented then is whether plaintiff can review the propriety of the order imposing terms.

The record discloses that plaintiff's request to be permitted to make these persons additional parties was only done because the court had ruled that, if they were not made parties, the action would be summarily dismissed. In fact, the court had already orally ordered it dismissed before the motion was made, and in making the motion the plaintiff treated the case as dismissed, and asked a vacation of the order of dismissal. But the action was still pending and not...