Rogers v. Courtney

KAUFMAN, J. Plaintiff appeals from a judgment in a quiet title suit rendered in favor of defendant, decreeing that appellant Isabelle C. Rogers has no right, title or interest in [885]the real property in question either individually, or as special administratrix of the estate of Michael C. Courtney, deceased, or otherwise.

Appellant and respondent were the daughter and son of Michael C. Courtney, deceased. The only remaining heir was another daughter. Michael C. Courtney died on July 9, 1952. Appellant was appointed special administratrix on July 25, 1952, and general administratrix on August 4, 1952. Letters of administration were issued on August 4, 1952, and first publication to creditors was made' on the following day. At the time of trial, which began on May 24, 1954, the time to file claims had expired more than 15 months previously with no claims against the estate having been filed.

In her complaint to quiet title filed on July 25, 1952, appellant alleged on information and belief that a certain parcel of real property was the property of Michael C. Courtney at the time of his death, that defendant claimed to have some right or interest in it adverse to the ownership of the estate and that such claim was without foundation. The answer was a general denial of appellant’s claim.

On October 16,1952, appellant’s attorney had filed a memorandum of motion to set the cause for trial and a demand for a jury. On February 3, 1954, a stipulation was filed by the attorney for the parties in regard to advancing the date for trial, waiving notice of the date of trial, and forfeiting jury fees in the event a jury trial was not had.

On April 2, 1954, notice of motion to strike the cause from the jury calendar was made by respondent. Appellant filed notice of motion for leave to amend her complaint on April 6, 1954. Both motions were heard on April 6, 1954. Appellant’s motion for leave to amend the complaint was denied, and respondent’s motion to strike the cause from the jury calendar was granted.

The amendment which appellant sought to make to the complaint was the additional allegation that “plaintiff is out of possession and defendant is in possession, of said premises.” The supporting affidavit of appellant’s attorney stated that respondent had been in possession of said premises since the death of decedent.

On April 9, 1954, appellant petitioned this court for a writ of prohibition to stop the trial before the court without a jury. The petition was denied on April 19, 1954.