Opinion
No. 5297.
October 8, 1929.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. C.J. Taylor, Judge.
Action for partition of crops and for damages. Judgment for the plaintiff. Affirmed in part and reversed in part.
Witty Anderson, for Appellant.
The complaint in this case wholly fails to state any cause of action for partition, the law being that there is no authority in a court of equity to partition personal property of this sort without some allegation of facts or circumstances which justify equitable action to prevent a loss of the property. ( Beardsley v. Kansas Natural Gas Co., 78 Kan. 574, 96 P. 859; Loker v. Edmans, 204: App. Div. 223, 197 N. Y. Supp. 857.)
In Idaho a right to trial by jury may not be waived except in the statutory mode. (C. S. 6865; People v. Metropolitan Surety Co., 164 Cal. 174, Ann. Cas. 1914B, 1181, 128 P. 324.)
The complaint in this action could not be sustained as a complaint for an accounting. To do so it must appear that there was some fiduciary relationship between the parties. ( Harle v. Haggin, 131 App. Div. 742, 116 N.Y. Supp. 51; Moore v. Coyne Delaney Mfg. Co., 113 App. Div. 52, 98 N.Y. Supp. 892; Getman v. Dorr, 28 Misc. Rep. 654, 59 N.Y. Supp. 788.)
Jones, Pomeroy Jones, for Respondent.
Where a party voluntarily adopts a certain form of procedure or agrees to the manner in which his rights shall be submitted for determination in the trial court, he will not be permitted to complain on appeal or error that proceedings had in conformity thereto were erroneous. ( Frank v. Frank, 47 Idaho 217, 273 P. 943; 4 C. J. 714, sec. 2627.)
The appellant contends in her brief the fact that the property in the instant case being readily divisible prevents the court from having jurisdiction in said matter. In answer to such contention we find that in 47 C. J., page 294, this proposition of law enunciated "that personal property of every class may be subjected to compulsory partition." And such is the general rule of law, 47 C. J., page 294. ( Baughman v. Reed, 75 Cal. 319, 7 Am. St. 170, 17 P. 222; Godfrey v. White, 60 Mich. 443, 1 Am. St. 537, 27 N.W. 593; Loker v. Edmans, 204 App. Div. 223, 197 N.Y. Supp. 857; Robinson v. Dickey, 143 Ind. 205, 52 Am. St. 417, 42 N.E. 679.)
Respondent and one Wirack rented a farm from appellant under a certain lease agreement. Respondent alleged in substance that immediately after the lease agreement was entered into, Wirack was released by mutual consent. Though appellant denied this and contended Wirack was a necessary party, there is evidence supporting the finding of the trial court that he had been so released.
Respondent further alleged that he had fully performed the obligations placed upon him by the lease but that appellant unlawfully took possession of the premises and was disposing of the crops to respondent's injury; claimed a one-half interest in the crops by reason of the lease and asked for an accounting and one-half of the crops. Appellant denied the unlawful repossession and claimed respondent had not fulfilled his obligations and that he had committed waste; admitted respondent was entitled to his share of the crops but denied it to be in the amounts claimed by him; and affirmatively asked for an accounting.
Appellant now assigns as error, in substance, that respondent brought the wrong action, pursued the wrong remedy, and that the complaint does not state a cause of action.
The complaint was sufficient and appellant acquiesced in the action and the procedure followed, and in her cross-complaint sought against respondent the same remedy he sought against her. These assignments are therefore without merit. ( Frank v. Frank, 47 Idaho 217, 273 P. 943.)
Appellant now complains because the trial was not tried by a jury. C. S., sec. 6865, provides that trial by jury may be waived in the following manner (subd. 2): "By written consent, in person or by attorney, filed with the clerk."
The cause was called for trial to the court without a jury. No jury was requested, and no objection made to such procedure until now in this court. Therefore in the absence of a showing in the record that written consent was not filed, and the record is silent thereon, it will be presumed such consent was filed. ( In re Allen, 31 Idaho 295, 170 P. 921; Kettenbach v. Walker, 32 Idaho 544, 186 P. 912; Leadbetter v. Lake, 118 Cal. 515, 50 P. 686; 15 Cal. Jur. 349.)
There was no occasion for the appointment of commissioners or a receiver. The necessary parties were before the court, asking for a division of the crops and there is sufficient evidence to support the findings and conclusions and judgment except as to the values placed upon the wheat, oats and barley.
The judgment is affirmed as to the amount of hay, wheat, oats and barley due respondent and the value of the hay, if the hay cannot be delivered, but reversed as to the values placed on the wheat, oats and barley, or any money judgment therefor in lieu of their delivery.
Costs awarded to respondent.
Budge, C.J., and T. Bailey Lee and Varian, JJ., concur.
Wm. E. Lee, J., concurs in the conclusion.