Thomson v. Reynolds

FRICK, C. J. It would be futile to attempt to pass upon the merits of the ease on this appeal. We shall therefore refer to the record only for the purpose of showing why the case legally cannot, and, as a matter of justice to all the interested parties, should not, be determined on the merits by this court. The action originated in the justice court between Matthew McB. Thomson as plaintiff and Charles Reynolds as defendant, as an action of unlawful detainer, under Comp. Laws 3907, section 3575. The complaint was filed and summons issued pursuant to the provisions of section 3580, and the allegations of the complaint are the usual ones in such actions. The plaintiff prayed judgment for restitution of the premises and for damages, etc. The defendant filed an answer, in which he denied that the plaintiff was the owner of the premises; denied that the plaintiff demanded possession thereof; denied that defendant had refused to surrender possession of the premises; denied that he was in default of the payment of-the rent as alleged in the complaint; and, as an alleged affirmative defense, averred that at all times mentioned in the complaint one Mary Atkinson was the owner of the demanded premises, and was in the quiet and peaceable possession thereof, and that, for the reasons just stated, Mary Atkinson was a necessary party to the action. Defendant further averred that at the commencement of this action another action was pending between the plaintiff and said Mary Atkinson in the district court'of Salt Lake County “for the same cause of action as that in the complaint herein stated and alleged”; that the court was without jurisdiction for the reason that the title to the premises was involved. The answer ended with the following prayer: “Wherefore this defendant prays that said Marj^ Atkinson be made a party defend — 439 — ant herein, and that this defendant go hence without day, with his costs and disbursements herein expended.” After the answer was filed Mary Atkinson filed what is called a “Petition in Intervention,” in which she asked that she be made a party to the action. The justice did not act upon said petition, but made the following order: “It is hereby ordered that this cause be transferred to the district court of Salt Lake County, state of Utah. ’ ’ The case was accordingly certified to the district court of Salt Lake County. No order permitting Mary Atkinson to file an answer was ever made' by the justice court, nor did she ever file an answer in that or in any other court. At the trial the district court, however, recognized her as a party, and permitted her to defend under the answer filed by the defendant Eeynolds, the substance of which we have before stated. The complaint and the answer aforesaid are the only pleadings that were ever filed in the case by any one. The case was heard on those pleadings, and the district court made findings of fact, conclusions of law, and entered judgment in favor of the plaintiff quieting title to the premises in Mm, from which judgment Mary Atkinson appeals, and she will be hereinafter designated 'as appellant. The assignments of error filed in this court when the case was first appealed are as follows: “(1) The court erred in overruling the demurrer to the complaint; (2) the decision is against law; (3) the decision is contrary to the evidence; (4) the evidence is insufficient to justify the decision.” The only question argued by appellant’s counsel in his original brief was that the premises constituted the homestead of the appellant and her husband, and that, under the provisions of Comp. Laws 1907, section 1207, she could not be removed from said homestead against her will. Counsel for respondent in Ms brief insisted that appellant’s assignments of error were insufficient, and that by arguing only the one question before stated he had waived all other assignments of error, and hence the only matter that counsel for respondent argued was the question of appellant’s rights under section 1207 aforesaid. Bespondent’s counsel further contended that — 440 — the premises in question never had been the homestead of the appellant and her husband. The district court also took that view. The case was submitted to this court upon the propositions just outlined. The members who then constituted this court being unable to agree, a reargument of the case was ordered, which was duly had. On the second argument the writer called the attention of appellant’s counsel to the character of his assignments and to the limited claims presented by him in his original brief. Counsel who had represented respondent at the trial and at the original hearing in this court had died before the second argument took place. Appellant’s counsel then asked leave of this' court to prepare and file additional assignments of error and in connection therewith to prepare and file a supplemental brief. Leave was granted, but counsel never did file additional assignments of error as required by rule 26 of this court. He, however, filed what he called “Amended Assignments of Error and Brief” in the form of a printed supplemental brief in which the additional assignments of error were printed. The so-called amended assignments of error are as follows: “(1) The district court did not have jurisdiction of the appellant nor of the subject-matter of the action; (2) the complaint does not state facts sufficient to constitute a cause of action against appellant; (3) the decision is against law; (4) the judgment is contrary to the pleadings and the evidence.” In the supplemental brief filed counsel argued four propositions: (1) That the district court Avas without jurisdiction; (2) that the complaint is insufficient in substance; (3) that the district court’s decision is “against law”; and (4) that “the judgment is contrary to the pleadings and evidence.” The case was again submitted on all of the assignments of error and arguments, and again no conclusion was reached by ■this court as then constituted. Thereafter the membership of this court was increased from three to five. At the last term the case Avas again argued to the five members upon the assignments and briefs before stated. — 441 — The foregoing, though brief, correctly reflects appellant’s contentions in this court. 1, 2 Let ns now, for a moment, refer to the evidence produced and the proceedings had at the trial. As before stated, the district court, by consent of counsel, permitted the appellant to present her case upon the answer filed by the defendant Reynolds. In support of her claim of ownership of the premises in question she testified that while ■ she lived in Bridgeport, Conn., and in Paterson, N. J., she had earned considerable sums of money, which was kept in a bank; that when her husband came west to Utah she gave him $1,600 to buy a home. Counsel for respondent objected to this evidence on various grounds, and the court intimated that the objection was good. Counsel for appellant, apparently conceding the objection to be good, suggested that he would thereafter prove the necessary facts to make the testimony of appellant proper as against the plaintiff, and the, court permitted the testimony to remain in the record for the present to permit counsel to redeem his promise. Counsel for respondent then asked permission from the court to postpone cross-examination of appellant until such time as her counsel should show her testimony relevant and material as against the plaintiff, and the court granted the request of respondent’s counsel. At the conclusion of appellant’s case counsel for respondent insisted that appellant’s counsel had failed to make his client’s testimony respecting the advancement of money to her husband material as against the plaintiff, and then moved that all her testimony upon that subject be stricken from the record. The district court granted the motion, and eliminated all of appellant’s testimony respecting the advancement of money to her husband, for the purpose she had stated, from the record. Appellant’s counsel had, however, introduced in evidence appellant’s complaint in the action which the defendant Reynolds in his answer had averred was pending. In that complaint the facts respecting the advancement of money by appellant to her husband were stated in accordance with her testimony which had been stricken. When the court came to consider the purpose and effect of the statements contained in appellant’s complaint — 442 — which she filed in the alleged pending action, the court, addressing her counsel, said, “I take it those files are introduced in support of the allegation in your complaint there is another action pending between the parties.” The court doubtless referred to the answer instead of the complaint, because no such allegation, was contained in any complaint. Her counsel, to the court’s question, answered, "Yes.” The court then said, "Do I understand that has been finally determined,” referring to the action. Appellant’s counsel again answered, "It has not.” The record thus shows that all of the testimony of appellant respecting the advancement of money to 'her husband was stricken from the record, and that the statements to the same effect in her complaint in the action which was alleged to be pending was not considered by the court, except to support the allegation in the answer in this case that another action was pending.. The complaint was competent for that purpose, but was wholly incompetent for the purpose of proving that appellant had advanced money to her husband. That statement was merely a self-serving declaration, and was, for that reason if for no other, wholly incompetent to prove the' fact alleged. That is not all, however. Appellant’s husband had filed an answer to her complaint in the alleged pending action in which he had denied that she had advanced him any funds for the purpose claimed by her or at all. The statements, therefore, in appellant’s complaint in the pending action were denied, and, quite apart from the fact that her self-serving declarations were in evidence against the plaintiff, the denial of her statements by-her husband in his answer left her statements without force or effect until established by competent evidence. There is therefore not a particle of competent evidence in this record to sustain appellant’s claim that she had contributed any money for the purchase of the property in question,, the title to which was in her husband. There is therefore nothing to sustain the alleged resulting trust. That must-also have been the view that appellant’s counsel took of the matter when he prepared his original brief. He made no claim there that the evidence was sufficient to sustain such a trust. He, however, insisted that the premises in question constituted the — 443 — homestead of appellant and her husband, and for that reason she could not be dispossessed either by her husband or by any one claiming under him, under section 1207. If that claim be sustained by proper evidence, we are of the opinion that the contention of appellant’s counsel should prevail, even though appellant failed to prove the alleged resulting trust. Of course, if she can establish by proper evidence a resulting trust, then she should also prevail to the extent of her interest in the premises, although she failed to prove that it was a homestead, provided she can establish that the plaintiff had knowledge of the trust. 3,4 Counsel for appellant, in his supplemental brief, insists that the district court erred in entering a decree of the character it did in an action of this nature. In our judgment that contention is well founded. Neither the pleadings nor the evidence sustain such a decree.' The case of Welling v. Abbott, 52 Utah 240, 173 Pac. 245 (decided at this term), holds that it is not proper to quiet the title to real estate in an action of forcible entry or in an action for unlawful detainer. That such is the holding of all the courts, whether based upon a statute or on the common law, is clearly shown by an examination of the following cases: Shoudy v. School District, 32 Ill. 290; Kepley v. Luke, 106 Ill. 395; Hunt v. Wilson, 14 B. Mon. (53 Ky.) 44; Hill v. Olin, 82 Mich. 643, 46 N. W. 1038; McCartney v. Alderson, 45 Mo. 35; Dawson v. Dawson, 17 Neb. 671, 24 N. W. 339; Worthington v. Woods, 22 Neb. 230, 34 N. W. 368; O’Donohue v. Holmes, 107 Ala. 489, 18 South. 263; Bush v. Coomer (Ky.) 69 S. W. 793; Felton v. Millard, 81 Cal. 540, 21 Pac. 533, 22 Pac. 750; Bulkley v. Sims, 48 W. Va. 104, 35 S. E. 971; Silvey v. Summer, 61 Mo. 253; Texas Land Co. v. Turman, 53 Tex. 619; Carter v. Newbold, 7 How. Prac. (N. Y.) 166; Ow v. Wickham, 38 Kan. 225, 16 Pac. 335; Boardman v. Thompson, 3 Mont. 387; Barnes v. Nicholson, 2 N. J. Law, 326. In the foregoing cases the question is considered from every angle. Some of the eases are based on statutes wherein the courts are prohibited from determining the title in such actions, while in others the decisions are based upon the common law. In all the cases, whether based on statutes or hot, it is, however, — 444 — held that the title may not be litigated in such actions, since they are intended to determine the right of possession merely, and the proceeding is intended to be summary. It is, however, insisted that the parties tried the case at bar as an equitable action. Such was also the case in Welling v. Abbott, supra. Let it be assumed, however, that the parties actually stipulated to do that, which they did not, and yet the pleadings are wholly insufficient to support a decree quieting the title in either of the parties. We had assumed that the question that a decree or judgment must be supported by the pleadings, or at least by the record, had been settled, in this jurisdiction at least, in the case of Rosentlvyne v. Malfhews-McCulloch Co., 51 Utah, 38, "168 Pac. 957. We are not unmindful of the contention that the parties, at least tacitly, agreed to try the case as an equitable proceeding. If that be conceded, however, it still has no effect upon what the result should be. If this case had in ’fact been commenced as an equitable action, yet, if the pleadings were as they now are, and hence did not sustain the judgment, the result must be the samo. Moreover, under the repeated rulings of this court, neither appellant’s assignments of error nor the arguments in her counsel’s brief entitle her to affirmative relief. In view of the whole record, the most she is entitled to is a reversal of the judgment for the reasons stated. If she should be awarded affirmative relief on this record the plaintiff would be deprived of his day in court, for the reason, as before stated, that in reliance on the court’s ruling in excluding all of appellant’s testimony on the question, of advancing money to her husband, respondent’s counsel waived cross-examination, and, in view that appellant’s complaint was admitted only to prove the pendency of the former action, he presented no evidence in opposition to appellant’s evidence, but rested the case in, the belief that no evidence had been produced by the appellant upon the alleged claim of ownership or the resulting trust. If the excluded evidence were now considered, and the self-serving statements of appellant in her-complaint were now treated as competent evidence, the plaintiff would be prevented from presenting his side of the case. We are of the opinion that the judgment should be, and it — 445 — accordingly is, reversed, and the canse is remanded to the district court, with directions to permit the parties to amend and recast their pleadings, and, when that is done, to hear the evidence, and to make findings of fact-and conclusions of law upon the issues, and to enter judgment accordingly. The questions of both law and fact may then be determined in accordance with the rules of pleading and of evidence. Appellant to recover costs. CORFMAN, THURMAN, and GIDEON, JJ., concur.