Chalmers v. Sheehy

—Action to quiet title. Sheehy alone answered, and is the sole defendant. The court adjudged that plaintiff Mary D. Chalmers and defendant James Sheehy were owners, as tenants in common, of an equal undivided one-half interest in and to the premises in controversy, and that plaintiff Ella T. Chalmers had no interest therein. Plaintiffs appeal from the order denying their motion for a new trial on a statement of the case. It was admitted at the trial, and the court found, that plaintiff Mary D. Chalmers was the owner of all the interest claimed by her. We do not see, therefore, that the appeal concerns her. The real issue is as to the ownership of the remaining undivided one-half interest in the property.

Sheehy commenced an action against Chalmers on March 1, 1892, in the superior court of the city and county of San Francisco, for an alleged slander, laying his damage at fifty thousand dollars. The cause was tried in May, 1894, by a jury, and Sheehy had a verdict against Chalmers for two

1. Appellants make the point that the transcript does not show that the answer was verified. No verification appears in the printed copy of the answer. In the clerk’s certificate, however, it is stated that the transcript was correct, “with the exception of the following,—to wit, . . . the affidavit of James Sheehy, verifying the answer in said action.” There was no motion to strike out the answer, and the parties went to trial on the pleadings without objection. Conceding the clerk’s certificate to be insufficient to show that the answer was in fact verified, it is too late to urge the objection here for the first time. It is also objected that the allegations of fraud in the answer, impeaching the deed from Chalmers to his wife, are not sufficiently specific. There was no demurrer to the answer, in the absence of which the allegations were sufficient. The case was tried on the assumption that the issue of fraud was properly pleaded.

2. Appellants also make the point that Sheehy’s right to have the transfer to Mrs. Chalmers set.aside is barred by the three years’ statute of limitations. (Code Civ. Proc., sec. 338, subd. 4.) This contention rests upon the claim that the statute began to run from the date of Chalmers’s deed to his wife, October 3, 1893.

3. The grounds much relied on for reversal are, newly discovered evidence, and accident and surprise. The alleged newly discovered evidence referred to in the affidavits is not set out. It is alleged to consist of statements previously made by Sheehy and one Horgan in another action pending between Sheehy and Chalmers, contradictory of their testimony in this action, but of which affiants had no knowledge at the latter trial. Judging from what is stated in the affidavits, it is impeaching evidence, for it is stated to be intended to contradict testimony given by Horgan and Sheehy in the present action. The rule is, that newly discovered evidence which is merely cumulative, or designed to contradict a witness, is not of a character to warrant a new trial. (People v. Anthony, 56 Cal. 397 .)

Upon the question of accident and surprise, the affidavits and counter-affidavits are very lengthy, and embrace the history not only of the trial of the present case, but much of that relating to the action for defamation of character out of which the defense in this action arose.

An examination of the numerous affidavits shows that appellants relied on the alleged fact that the cause was not fairly or fully or properly presented to the court, on account of the abandonment of the case, at a critical moment, by plaintiffs’ attorney, Mr. Eugene Deuprey, who had defended Chalmers in the slander suit and had prepared the present cause for trial. It is set forth in plaintiffs’ affidavit that Mr. Deuprey was fully paid for his services, but, because of other important engagements, refused to attend to this present case, and that plaintiffs were compelled to employ counsel unfamiliar with the law and the facts, in consequence of which the cause was not tried as it should have been on plaintiffs’ behalf; that the firm of Smith & Murasky was retained as substitute

It is no doubt true that enforced changes in counsel during the progress of a case sometimes are most unfortunate, although not always necessarily so. We think, however, that the facts as shown to the court warranted its conclusion that no injury resulted to plaintiffs’ cause by a change of counsel, and that plaintiffs were not wholly blameless for Mr. Deuprey’s withdrawal from the case. Mr. Deuprey made affidavit that the trial was continued once at his request, and that, before the day of trial arrived, he demanded a fee for his services, which was refused on the ground that he had been amply paid in the slander suit, and ought not to expect pay in this action. He refused to take plaintiffs’ view of the matter, but nevertheless accompanied Mr. Smith to Santa Cruz and took part in the trial at the day fixed. He deposed that he imparted to Mr. Smith fully all the facts relating to the litigation and the law involved, as he understood it, and that Mr. Smith was fully equipped to conduct the case. A further continuance became necessary, and because his clients refused him any compensation in this action, Mr. Deuprey drew out of the case and Mr. Smith conducted it to the close of the evidence, when it was submitted upon briefs to be thereafter prepared. It was at this point he became colonel of the First California, although his regiment was not mustered in for several months thereafter, during which time it is shown that he continued in active practice. The first day of the trial was July 17, 1897, and the cause was then continued to September 8, 1897, giving Mr. Smith ample time for preparation. The testimony was written out, and placed in his hands September 23, 1897, and his regiment was not mustered in until the following April.

In an affidavit by Matt I. Sullivan, Esq., one of the attorneys for defendant, it is stated that the cause was continued the second time, by agreement, to July 31st, and from time to

The briefs found their way to the court in July, 1898, and the findings were filed and the judgment entered on August 19, 1898. There is no satisfactory explanation of Colonel Smith’s failure to brief the case. With the transcript before him, and an opportunity to consult with Colonel Smith about the case after the trial, if not before, it is not likely that plaintiff’s case failed to be well and fully presented by Mr. Murasky. All the matters, of which the foregoing is a brief summary, were submitted on the motion to the trial judge, who was in a position to determine whether there had been any miscarriage of justice. A careful examination of all the facts, the salient features of which have been given, fails to convince us that there was any abuse of discretion in denying the motion.

4. The court found that the deed of Chalmers to his wife “was without consideration whatever, and was made with intent to hinder, delay, and to defraud said defendant Sheehy of his demand against said William P. Chalmers, and was made in anticipation of judgment that might be rendered against said William P. Chalmers in said action of Sheehy v. Chalmers” (the slander suit). It was further found that at the .time the transfer was made, Chalmers owned no property, except his interest in the land in dispute, out of which execution could be satisfied in whole or in part, and that Chalmers “is now, and at the time the transfer was made, and until said sheriff’s sale, was, without any property whatever, other than said” interest, and that the deed to plaintiff Mrs. Chalmers “is void as against said defendant James Sheehy.”

Appellants insist that the evidence does not support these findings. Appellants claim the law to be, “that no third

It is immaterial that Mrs. Chalmers was innocent (Judson v. Lyford, 84 Cal. 505 ), or that she did not know the condition of her husband’s affairs. (Threlkell v. Scott, 34 Pac. Rep. 851 ; Cal., Nov., 1893.) When on the witness-stand, Chalmers was unable to state when he first informed his wife that he had made the deed to her, and was unable to say that he at any time made a manual delivery of it to her, and he stated that he did not know who deposited the deed for record, and he testified that he thought it was prepared in the office of Mr. Deuprey, who was his attorney in the slander suit. As a reason for making the conveyance, he testified that he was advised by another physician to do so, “to avoid the unforeseen consequences of a suit for damages,” which it was explained was likely to arise in any physician’s surgical practice; but when on cross-examination he was asked if he had been personally threatened with any suit prior to October 3, 1893, on account of any operation performed by him, or on account of any medical treatment of any patient, he could give but one instance, which was the threat of Sheehy to sue him, and that was, not for alleged malpractice, but for falsely circulating a defamatory report concerning Sheehy.

It appeared that Sheehy had loaned Chalmers money,, and held his note for $1,050; that, being called on for payment, ■Chalmers informed Sheehy that he was unable to pay it with•out mortgaging his interest in the land in dispute, and that he did not want to do that. Sheehy, however, brought suit and attached this land, and the debt was afterwards paid'. It is in evidence that, immediately following this suit, which was brought December 1, 1891, Dr. Chalmers made threats that he would blast the reputation of Sheehy; he circulated the story that he had treated Sheehy for a loathsome disease, and on December 3d brought suit against Sheehy for two thousand dollars for medical services, alleged to have been rendered in

Other facts appeared, showing that the court was justified in believing that Chalmers's intention was to put the property where Sheehy could not reach it, should he recover; and as it was all the property he had, he would thus prevent Sheehy from collecting anything if he succeeded in obtaining judgment. If we could assume the law to be as claimed by appellants, Chalmers’s deed to his wife might have accomplished its evidently fraudulent purpose, but as the law is otherwise, we must hold the effort to have been abortive; the deed was void, and the court did not err in so finding.

There are no errors of law alleged to have occurred at the trial which seem to call for special notice.

The order should be affirmed.

Haynes, C., and Gray, C., concurred.

For the reasons given in the foregoing opimon the order is affirmed. Harrison, J., Van Dyke, J., Garoutte, J.

Hearing in Bank demed.