Diamond v. Grath

SCHOTTKY, J., pro tern. — Appellant appeals from a judgment in favor of respondents, entered in a quiet title action. Appellant filed an action against a large number of defendants to quiet title to certain oil royalty interest. The complaint set forth that appellant was the owner of the property described therein; that defendants claimed an interest .adverse to appellant; and then alleged further:

“That the plaintiff herein is holding title to the property herein described as Trustee for various persons named in a certain Agreement of Trust, which said Agreement of Trust is in writing . . . and reference is being hereby made to said Agreement of Trust for the names and interest of all said parties under said trust.”

Only a few of the defendants appeared in the action. One filed a disclaimer and defaults were entered against others for failure to appear. The case came on for trial on October 6, 1938, and according to the bill of exceptions appearing in the transcript, the following proceedings were had:

Plaintiff and appellant was called as a witness by plaintiff and was asked: “ Q. Are you the owner of the property described in the complaint, Mr. Diamond?” The objection of defendants that the question was incompetent, irrelevant and immaterial and calling for the conclusion of the witness was overruled by the court, and the witness answered, “I am.” The witness was then asked: “Q. Are you the owner by reason of a certain trust agreement?” A similar objection by defendants was overruled, and the witness answered, “I am.”

The witness was next asked: “Q. I show you, Mr. Diamond . . . what purports to be a trust agreement and ask you if this is the document by which you claim ownership and if it was signed by the parties whose signatures it purports to bear?” Objection was made that it was an attempt to prove ownership in the plaintiff as trustee under an alleged trust, whereby it would be shown that Mr. Diamond was not the owner of the property as alleged in the complaint, but was merely a trustee in a purported trust; also that the defendants [445]objected to any evidence with respect to the purported trust as a material variance, and that the action was not being prosecuted in the names of the real persons in interest. These objections were sustained. The trust agreement referred to was not received in evidence and is not in the record.

Plaintiff thereupon moved to amend his complaint, though the nature of the amendment does not appear in the record, which motion was denied by the court. Plaintiff then moved to dismiss the action as to the answering defendants only, which motion was opposed by the answering defendants and denied by the court. Plaintiff declined to proceed further and the answering defendants moved for judgment. The minutes of the court then show: “Judgment is ordered for answering defendants against plaintiff without prejudice. Judgment is ordered for plaintiff against defaulting defendants as prayed. Plaintiff is to prepare judgment.”