Jorgensen v. Bigelow

DUN'N, J. — This action has received the consideration of this court upon a prior appeal (Jorgensen v. McAllister, 34 Ida. 182, 202 Pac. 1061), and a statement of the facts involved will there be found. The cause was remanded with instructions to the trial court to permit Mary A. Jorgensen to offer additional proof in support of the sheriff’s deed and the administrator’s deed referred to in that opinion, within a reasonable time to be fixed by the court. Upon the cause being set for hearing in the lower court, the appellant, McAllister, asked leave to amend his answer to show that the property in question was the community property of himself and wife and that his wife was a necessary party defendant to the action. The court refused to permit the amendment and evidence was thereupon introduced in sup [543] port of the sheriff’s deed and the administrator’s deed. Objection was made to the introduction of this evidence upon the ground that the amended complaint did not state facts sufficient to constitute a cause of action and that the court was without jurisdiction of appellant and his wife or of the subject matter of the action, which objection was overruled by' the court. No evidence was introduced by appellant at the close of respondent’s proof and the court thereupon made its findings and conclusions and awarded judgment in favor of respondent, Mary A. Jorgensen, quieting title in her to an undivided three-fifths of the property in question, declaring her to be the owner of three-fifths of all mica taken from said premises and perpetually enjoining appellant from interference with said premises. This appeal is taken from the judgment. i Seven assignments of error are specified by appellant. ¡The first relates to the action of the trial court in denying 'defendant’s request for leave to amend and the second in not requiring appellant’s wife brought in as a party defendant. The sole and only purpose for which this cause was remanded was to permit respondent to offer additional proof in support of the sheriff’s deed and administrator’s deed, and we think the court rightly refused to permit the amendment. , We have carefully considered the remaining assignments of error and have come to the conclusion that there is no .merit in them. An examination of the entire record convinces us that the evidence introduced by respondent corrects the defects pointed out in the former opinion, that it justifies the findings of fact and conclusions of law, and that such findings and conclusions support the judgments . The judgment should therefore be affirmed, and it is so ordered. Costs are awarded to respondent. McCarthy and William A. Lee, JJ., concur. William E. Lee, J., being disqualified, took no part.