Blackburn v. Jones

GIDEON, J. The plaintiff below, one of the appellants here, as executor of the last will of Ann H. Burt, seeks a decree quieting title to certain real property described in the complaint. The defendant claims title through deeds alleged to have been executed by the deceased some years prior to her death. The real property in question is located in Box Elder county, this state. T.he deceased resided in that county at the date of her death, and had for many years prior thereto. The defendant below, respondent here, is a son of the deceased. The other parties except the executor appearing as plaintiffs and appellants are also children of the deceased. The judge of the district court for Box Elder county being disqualified, Judge Agee, from the Second district, was called to try the cause. A trial was had in the year 1918, and a decree entered — 560 — quieting tbe title to the property in question in plaintiff. Subsequently a new trial was granted, and Judge McCarthy, from the Third district, heard the case, and a decree was entered quieting the title in the defendant. From that judgment this appeal is taken. It appears that when the matter was first called for trial in April, 1918, the court was of the opinion that it was necessary for a complete determination of the matters in controversy that William H. Jones, Esdras H. Jones, B. Howell Jones, Alice H. Rosenbaum, and John-H. Burt, should be made parties to the action. An order was accordingly made directing that summons be served upon said parties, if they failed to voluntarily appear, and that they be required to set up, either as plaintiffs or defendants, any title or interest they, or either of them, claimed to the property in question. Subsequently Esdras H. Jones, B. Howell Jones, and Alice II. Rosenbaum, for themselves and as assignees or transferees of William H. Jones and John H. Burt, appeared and filed a pleading and joined in the prayer of the complaint— in other words, became plaintiffs in the action. It should be said in passing that B. Howell Jones and Ricy H. Jones are attorneys at law, and members of the bar of this state. B. Howell Jones and William J. Lowe signed the paper or pleading designated “family appearance” by Esdras H. Jones and others, in conformity with the order requiring these individuals to be made parties to the proceeding. Before proceeding to a discussion of the errors it is necessary to determine a motion to strike the bill of exceptions. It appears that, after entering judgment quieting title in respondent a motion for new trial was made. That motion was denied July 14, 1920. The trial judge granted appellants 30 days’ additional time to prepare and serve a bill of exceptions. It also appears that on or about September 11, 1920, appellants did prepare and serve upon counsel for respondent a proposed bill of exceptions consisting as stated in the brief, “of about 44 pages of closely written typewritten matter. ’ ’ So far as the record now before this court shows, that proposed bill of exceptions was never returned — 561 — by respondent to the court, the appellants, or their attorneys. True it is the respondent denies ever having received such bill of exceptions. There are, however, found in the record two affidavits, one by William J. Lowe, who was attorney for the executor, and one by Le Roy B. Young, who at that time was one of the attorneys for the respondent. Both of these men are reputable members of the bar of this state, and this court has no hesitancy in saying that it accepts their statements as conclusive on the controversy as to whether this bill of exceptions was ever prepared, served, or received by counsel. There is found in the record a copy of a receipt executed by Mr. Young that he received- the proposed bill of exceptions on September 11, 1920. The affidavit of Mr. Lowe is to the effect that he is an attorney of record in this' case; that the proposed original draft of a bill of exceptions was prepared on behalf of appellants, and was served upon Le Roy B. Young. It is also stated in the affidavit that no amendments were proposed to the bill to the best of affiant’s .information, and that the original draft wás never returned to him, and that he was informed by Mr. Young that it was held by the defendant, respondent here. Mr. Young in his affidavit states that he had been counsel for respondent in this case; that frequently papers were served upon him, that he recalls the original draft of the bill of exceptions being served upon him; that he receipted for the same and delivered said bill to the respondent personally; that no amendments were proposed to the recollection of affiant, and after a period of 10 days a request was made that it be returned. Respecting that matter Mr. Young in his affidavit says: “In fact, B. H. Jones repeatedly called and applied for the return of the original hill of exceptions, and I requested Ricy H. Jones to return it to me so that I could deliver it, hut it was never returned to me by the defendant heréin or hy any other person.” At a later date such proceedings were had that the present bill of exceptions was settled by the present judge in that district. It will be seen from the foregoing that the proposed draft' of the bill was prepared and served within the time allowed — 562 — under the orders made extending the time for the preparation and service of the bill. From the showing made it must be concluded that the only reason why the bill was not presented to the court for allowance was the act of the respondent in not returning it. Under that state of facts the appellants should be given an opportunity to present a bill of exceptions and have the matter heard by this court upon the record made in the district court. To permit respondent now to object to the jurisdiction of the court to settle the bill would be both inequitable and unfair, and 1 should not be permitted. 4 C. J. 476. A proposed bill having been served in time, the fact that it was not settled by the court within the time allowed for its presentation and service will not justify or authorize an order striking the same from the record. Blackburn v. Baker, 47 Utah, 219, 152 Pac. 1188; Wo-gin-up Estate, 57 Utah, 29, 192 Pac. 267. The motion to strike will be denied. When thé case was caEed for trial at the second hearing counsel for appellants requested a jury to try the issues of fact. The request was denied. Thereupon 'the following colloquy was had between counsel and court respecting the appearance of B. H. Jones as counsel for the heirs: “The Court: You may proceed. “Mr. B. H. Joues: We have here, if your honor please, an application for a continuance. “The Court: On file? “Mr. Allen: No; we haven’t been served with any application or with any affidavits. “Mr. B. H. Jones: The affidavit is as you hold it in your hand. “Mr. Allen: This affidavit shows no motion for any continuance. “The Court: May I get the name of the counsel? Mr. Jones, in this case I would prefer that you proceed through your counsel inasmuch as you are a party to the action, and likewise the other gentleman; I prefer that he should also proceed through his counsel. I think that is the proper way to proceed, and I understand that that has been the order of this court heretofore, and that will he the order of this court. “Mr. B. H. Jones: To the ruling of the court we respectfully reserve an exception, and X will say to your honor I represent plaintiffs in this case that my associate counsel do not represent. “The Court: You appear personally for some of these plaintiffs? — 563 — “Mr. B. H. Jones: Yes; Alice H. Rosenbaum. • “Tbe Court: You are not appearing, Mr. Lowe?' “Mr. Lowe: Not for Mrs. Rosenbaum. “Mr. Allen: I think the pleadings are signed with all the names. “Mr. Lowe: I was attorney for Mr. Blackburn, and any appearance I have heretofore made or at the present time is not in any way for the heirs. “Mr. Allen: There is no separation of counsel in the pleadings. “The Court: If it should appear during the trial of this case that the interests of this party are not involved in the general issues here, and that special representation other than Mr. Lowe is needed in this case, the court, perhaps, will make a different order, but until that time appears the order of this court will stand as heretofore made. “Mr. B. H. Jones: I should like to make this showing to your honor before I am disbarred in this case. I represent all of the children, and have represented them (all of the children) throughout the entire proceedings, and Brother Lowe and Brother Foxley at one time represented the executor. Alice and William were impecunious and it was necessary that I represent them because they were unable to obtain counsel. I am a member of the bar of the Supreme Court of this state and of the United States, and there has never been any order entered in this court disbarring me, and I ask the privilege of representing them (the children) in this case. “The Court: Mr. Jones, would you mind allowing the counsel on the other side to proceed this morning, and the court will look up the record in this matter.” So far as tbe record shows, no further order was made respecting counsel for the heirs. The heirs had appeared in the action in response to an order of the court. The case proceeded to judgment against the executor and these heirs without any counsel being present in court representing them with the exception of B. H. Jones. The ruling of the court is assigned as error. The record in this case presents a most unusual, if not to say extraordinary, state of facts. The deceased made a will in 1910. It is stated therein that at that time she was 70 years of age. She died in the latter part of 1916. . The will, after making certain bequests to different children, directs that all the other property shall go to her children, share and share alike. After the death of Mrs. Burt her will was admitted to probate and Thomas H. Blackburn was con — 564 — firmed as executor. During the lifetime of the deceased she, either in person or by tenant, occupied the property in question, consisting of two separate pieces. She executed leases on the property in her own name, collected the rents, paid the taxes thereon, and in every respect exercised all the prerogatives of ownership. It is also apparent from the testimony in the record, in addition to the terms of the will, that it was the desire of the deceased that her children should share equally in whatever she possessed at the time of her death. Some seven months after the death of the deceased, respondent, defendant below, placed on record a deed purporting to have been executed conveying to him one of the pieces of property involved in this action. About the same time a deed was recorded purporting to have been executed by the deceased conveying the remaining real property to another son. A deed from that son to the respondent was also produced. The respondent claims the property under these deeds. The original deeds are¡ not in the record; nor are the originals of any of the exhibits. The deed from the deceased to the respondent of what is known as the “Main street” property bears date some five years before the death qf the deceased. The property included in the deed constitutes the most valuable part of the estate of the deceased. It also appears that about the dates these respective deeds were supposed to have been executed the respondent executed a lease on the premises included in the conveyance to him giving to his mother a life tenancy. That lease was recorded prior to the death of the deceased. It also appears that the other son, Esdras H. Jones, executed a lease to his mother for the term of her life for the premises conveyed to him. Whether the mother had any personal knowledge of these leases does not satisfactorily appear from the evidence. It is also a significant fact, as stated in the memorandum decision of Judge Agee, that the respondent, in the first answer filed in this action, did not set up or malte any statement respecting a deed held by him from his mother, but based his claim to the property on the fact that his mother held a lease from him, and that she and her estate would be estopped — 565 — to deny bis title. That original answer does not, however, seem to be in the record. It is a mere truism to say that under such a state of facts a court of equity will scrutinize with jealous care any claim made by respondent, and the burden will be upon him to satisfactorily explain that the conveyance was made either as a gift or for a valuable consideration. The decree quieting the title to the premises in the respondent to all intents and purposes would give the respondent the entire estate left by his mother. It can readily be seen, therefore, 2, 3 that the interest of the remaining heirs would be vitally affected by a decree entered in this proceeding, and they were entitled,\ if they so elected,- to be represented by counsel especially charged with the duty of looking after their interest and presenting to the court such facts and legal arguments in support of their claims as such counsel should think advisable. ¥e are therefore of the opinion that the order of the court refusing to permit B. Howell Jones to represent these heirs as an attorney was prejudicial error unless at the same time an opportunity was given these claimants to employ 4 other counsel. If in the orderly procedure of the court it was found necessary or deemed advisable that these claimants should be represented by other counsel, it was the duty of the court to so advise, and they should have been given the opportunity of employing additional counsel. This record is burdened with many motions, affidavits, counter affidavits and objections. Upon a retrial the court can ignore these motions, take the issues as made by the pleadings, and proceed to hear the testimony and determine the matter in an orderly and regular way. The judgment of the district court is reversed, and a new trial granted. Neither party will be allowed costs on this appeal. CORFMAN, C. J., and WEBER and THURMAN, JJ., concur.