Opinion
No. 16,309.
Decided May 22, 1950. Rehearing denied July 17, 1950.
An action to determine interests in, and quiet title to, real property. Judgment for defendants.
Affirmed.
1. PRACTICE AND PROCEDURE — Appeal and Error — Briefs. The flagrant violation of the rules of civil procedure by counsel for plaintiff in error in the preparation of his brief, "might well justify affirmance of the judgment without further consideration."
2. DEEDS — Delivery. In the absence of other showing, a deed must be presumed to have been delivered on its date.
3. PARTIES TO ACTIONS — Service of Summons. An unknown party claiming an interest in land, title to which is in litigation, is properly served by publication summons.
4. JUDGMENTS — Default — Court Action. In the instant case, in view of the attending facts, it is held that the trial court did not abuse its discretion in refusing to set aside a default entered against plaintiff in error as an unknown defendant.
5. PLEADING — Inconsistent Grounds. "A party to an action may not base his cause upon inconsistent and self-destructive grounds."
Error to the District Court of Huerfano County, Hon. John L. East, Judge.
Mr. V. G. SEAVY, for plaintiff in error.
Mr. SAM T. TAYLOR, for defendants in error.
ON September 5, 1946, defendants in error, as plaintiffs, filed their complaint for determination of interests and quieting title in them to lands therein described, joining numerous parties defendant, including Bessie Wigton, and all unknown persons who claimed any interest in such lands. May 7, 1947, default was entered against all defendants except Bessie Wigton, who had appeared by motion on September 28, 1946, and had thereafter been given until May 16, 1947, in which to further plead. May 16, plaintiff in error filed an answer in the cause alleging that prior to November 12, 1946, the date of the death of Bessie Wigton, the latter was the owner of certain described land, being a portion of the realty involved in this suit, and further alleging, "That prior to her death the said Bessie Wigton had made, executed and delivered to the said W. I. Wigton a deed conveying to him the above described real property and that said deed is now of record in the office of the Clerk and Recorder of Huerfano County, Colorado, and "That the said W. I. Wigton is now the owner of said property and is the proper defendant to carry on the above entitled litigation in the place and stead of Bessie Wigton;" also making sundry denials and allegations in defense to the cause of action set out in the complaint.
July 11, 1947, plaintiffs filed motion to "dismiss" the answer of W. I. Wigton on the ground, among others, that default had been entered prior to the answer, and that W. I. Wigton was well acquainted with entire proceeding from its inception. It appears elsewhere from the record that W. I. Wigton was the husband of Bessie Wigton and well acquainted with the bringing of the suit, and the basis of plaintiffs' asserted title, since September 14, 1946, when summons therein was served on Bessie Wigton. On the date of the filing of said motion, it was heard by the court without objection. Evidence was submitted by both parties at the hearing and the attorney for plaintiff in error testified that Bessie Wigton died testate; that her will was admitted to probate in Pueblo county on February 24, 1947, and that prior to May 16, 1947, the will was construed by the County court of Pueblo County as making an absolute conveyance of the property involved in this suit to her husband, W.I. Wigton; that on July 22, 1922, Bessie Wigton had made and executed a special warranty deed purporting to convey said property to W. I. Wigton, which was recorded January 17, 1947, and that he had knowledge of the filing of the action from the time his wife was served with summons therein.
November 14, 1947, plaintiff in error, W. I. Wigton, filed a motion to set aside the default judgment, if said judgment included him, and then filed a second answer alleging ownership of the involved property by Bessie Wigton when the suit was commenced; failure to make delivery of the deed executed by her purporting to convey said property to plaintiff in error; her death testate; admission of her will to probate; construction of said will by the County Court as an absolute conveyance of said property to W.I. Wigton, and other matters which were set up in defense to the allegations of plaintiffs' complaint.
Thereafter a supplemental decree was entered by the court reciting, among other things, knowledge of the suit and issue involved by plaintiff in error from the date of service of summons Bessie Wigton on September 14, 1946; the service of summons by publication; that such service was complete on January 24, 1947, and default duly entered on May 7, 1947, that plaintiff in error failed to appear within the statutory time, that he had been lawfully served with summons; that the time within which to answer had expired prior to the time of the filing of his answer, and that default had been properly entered against him. Pursuant to said recital the court ordered that the motion to file answer be denied, and decreed that plaintiffs' title be quieted as against all interest of plaintiff in error.
Reversal is here sought on specifications that the court erred in holding that default had been entered against plaintiff in error; in refusing to set aside such alleged default; in refusing to permit him to file his tendered answer, and in entering the supplemental decree.
In preparing the brief of plaintiff in error, counsel has ignored substantial requirements of our rules of procedure, particularly in that there is no adequate subject index; no separate or particular statement of any point intended to be argued, no summary of the argument, and no clear and separate statement of the points of fact and law upon which he relies. Observance of the rules is not only of assistance to the court, but may well clarify the thinking and argument of counsel. Their flagrant violation here might well justify affirmance of the judgment without further consideration.
[2-4] Under the issues here made, we do not deem it necessary to consider whether or not plaintiff in error in his answer set up an adequate defense, or concern ourselves with the considerable discussion of that question in the brief. By his answer, filed on May 16, 1947, plaintiff in error alleged that prior to her death Bessie Wigton had made, executed and delivered to him a deed conveying to him the property involved, and that he was then the owner thereof. It is undisputed that the deed, by virtue of which he there claimed ownership, was dated July 22, 1922. In the absence of other showing in that answer, the deed must be presumed to have been delivered on its date; therefore, the title and interest asserted by plaintiff in error in his answer vested in him prior to the commencement of the action, and since his deed was not recorded until January 17, 1947, he was, at the time of the commencement of the suit, an unknown party claiming an interest in said land, an, as such, was properly served by publication of summons. The subsequent recording of his deed did not change his status. Such publication of summons became complete, and his time to answer expired, on February 25, 1947, default was duly taken against all unknown defendants on May 7, 1947, and that default included him. From the record, it appears to be undisputed that plaintiff in error had full knowledge of the issues involved in the action and of the bringing of the suit, from the date of service of the summons upon his wife Bessie Wigton on September 14, 1946, and in view of his full knowledge of the proceedings and the absence of good cause shown, we can find no abuse of discretion on the part of the trial court in refusing to set aside the default so entered against him as an unknown defendant, and in striking his first answer.
There remains for consideration the second answer filed some six months later, following the motion to dismiss the first answer. Therein plaintiff in error denied the essential facts solemnly asserted in his former answer and alleged the ownership by Bessie Wigton when suit was brought, the failure of delivery of the deed executed by her upon which he had formerly based his title, her subsequent death, and the devise of the property to him by her will.
Plaintiff in error filed his first answer just ten days after the date of construction of the will of Bessie Wigton, by which his ownership was finally determined, as he now alleges; yet, with full and immediate knowledge thereof, he made no claim in his first answer of title by devise, and no reference to, or mention of, said will but asserted title solely and positively by virtue of the prior deed to him from Bessie Wigton. Not until six months thereafter, when it became apparent that he had been too late in making his appearance in the pending suit, as a grantee of Bessie Wigton, did he attempt to set up another and inconsistent source of title, and deny the facts solemnly set forth in his prior answer. This was done without any showing of excuse or reason for misstatement or misunderstanding of the facts set out therein or even of their legal effect. A party to an action may not base his cause upon inconsistent and self-destructive grounds. Palmer v. Sackett, 82 Colo. 61, 256 Pac. 1093. We are of the opinion that by his first answer plaintiff in error was estopped to deny the delivery and effect of the deed under which he had there asserted title. Accordingly, we hold that the trial court properly acted within its discretion in striking the subsequently tendered answer and entering judgment in behalf of defendants in error on the default.
The judgment is affirmed
MR. CHIEF JUSTICE HILLIARD, MR. JUSTICE HAYS and MR. JUSTICE HOLLAND dissent.