Strumberger v. Hall

THE COURT.

This is a motion to dismiss the appeal or affirm the judgment on the ground the appeal was taken for delay and the questions are so unsubstantial as not to

[23]

require further argument. An order of affirmance of the judgment was heretofore made from the bench.

The action was instituted by Stephanie and Louis Strumberger to quiet title and to declare a trust with respect to a promissory note and a deed of trust securing it, payable to Elizabeth Strumberger Hall, daughter of plaintiffs and wife of defendant Hall, and now deceased. The plaintiffs allege they are the beneficiaries of a resulting trust with respect to the note in that the consideration therefor was money belonging to them and that the payee had no beneficial interest therein and during her lifetime claimed no such interest but was the holder of the bare legal title and that the trust was terminated by the endorsement of the note and the assignment of the security to the plaintiffs and plaintiffs are the legal as well as the equitable owners thereof. The prayer is for the determination of the adverse claims of the defendant. Hall filed a disclaimer in his individual capacity but, as executor of the estate of Elizabeth Strumberger Hall, he filed an answer denying the ownership of plaintiffs and the resulting trust in their favor, alleging that the assignment and endorsement were obtained by fraud of the plaintiffs and set up as an affirmative defense an action in the municipal court wherein he, as administrator, obtained a judgment against the plaintiffs determining that he was the owner of and entitled to possession of the note and trust deed. The municipal court judgment is pleaded as

res judicata

and by way of estoppel in that the title to the note and trust deed being there in issue, the plaintiffs should have set up their claim of trust by counterclaim. The findings of the court recite a stipulation of the parties for a determination of the issues of

res judicata

and estoppel before the presentation of plaintiff’s case, and on these issues the court found in favor of the defendant. Judgment was entered declaring plaintiffs had no right, title or interest in the note and canceling the assignment to them by Elizabeth S. Hall. Plaintiffs thereafter moved for a new trial on the ground of irregularity in the proceedings which prevented' plaintiff from having a fair trial, insufficiency of the evidence, errors in law and accident and surprise which ordinary prudence could not have guarded against. The motion was denied. The claims of irregularity, accident and surprise are supported by affidavits to the effect that, when the stipulation for the trial