Idaho Wholesale Grocery Co. v. Robinson ( 1919 )

ON APPLICATION FOR REHEARING.

' Appellant has applied for a rehearing of this canse, and assigns more errors and misapprehensions on the part of the court than are usually found in applications of this kind, and that is saying a great deal :

‘‘(1) Misapprehension by the court of the facts in said case.

“(2) Misapprehension by the court of the pleadings.

"(3) Misapprehension by the court of the law applicable to the case.”

Perhaps we should not have considered the facts at all. They had no bearing upon the case, nor did they in any manner influence our opinion. If we admit that every fact was incorrectly stated, and every conclusion drawn therefrom was wrong, the correctness of the judgment rendered would not be affected. The judgment was rendered on the pleadings uninfluenced by a single fact, the belief of appellant’s counsel to the contrary notwithstanding. Our sole reason, whether good or bad, for stating the facts and drawing conclusions was to present an intelligible history of the case and incidentally to show that, notwithstanding the defective pleadings, the case on its merits was such that this court would not be justified in reversing the judgment. As it now appears, our assumption of an unnecessary burden with good intentions was an instance of mistaken magnanimity.

But it is said the court misapprehended the pleadings. If it did, then appellant has presented substantial grounds for a rehearing. The pleadings are exceedingly simple. We have stated them in substance in the opinion handed down, and need not repeat the statement here. Appellant has failed to specify wherein the pleadings were misapprehended. No particulars are stated. We are left in the dark, and can only reaffirm our statement heretofore made.

This court is not prepared to hold that the mere voluntary transfer of property by a debtor to a third person operates ipso facto as a transfer of title to the creditor. Appellant says, in effect, that this proposition is axiomatic, is not controverted, and even expresses surprise that we should have so declared in the opinion complained of. In this connection, appellant announces the startling proposition-that we entirely overlook the attachment proceedings, the judgment, and the fact that no appeal had been taken. This court has many times been criticized in proceedings of this kind for overlooking things in its opinions, but this is the first time in the experience of the writer that the court has been censured for overlooking something which had no existence. Nowhere in the pleadings upon which our judgment was rendered is there even a suggestion of attachment proceedings, of judgment rendered, of failure to appeal therefrom, or anything of that kind or nature. Appellant certainly cannot conceive it to be the duty of this court, when a motion is made for judgment on the pleadings, to go outside of the pleadings themselves, groping for facts in order to reach a conclusion. Nevertheless, such is the logic of appellant’s contention.

The cases referred to in the application, Thompson v. Baker, 141 U. S. 648, 12 Sup. Ct. 89, 35 L. Ed. 889, and Ogden State Bank v. Barker, cited in our opinion, were not overlooked, neither were they disregarded. They shed no light whatever upon the real question. As regards the first-mentioned case the surprise is it was referred to at all.

But appellant says, as no counterclaim was filed by defendant, no reply on the part of plaintiff was required. That is not the question presented here. A reply is required when defendant files a counterclaim and is also admissible when “plaintiff claims to have a defense, by reason of the existence of some fact which avoids the matter alleged in the answer.’’ Comp. Laws Utah 1917, section 6590. Plaintiff’s 4 reply in this case has all the earmarks of a confession and avoidance as contemplated in the section referred to. Defendant had alleged in his answer that he was the owner of the property by purchase on the 10th day of April, 1916, from Mary Millard Robinson, who was then the oivner. (Italics ours.) Appellant does not deny that Mary Millard Robinson was the owner of the property when she made the deed, but seeks to avoid it by alleging she was indebted to plaintiff at the time of its execution, and made the conveyance without consideration and with intent to defraud ber creditors. That is all that is alleged. We say on its face it was not sufficient, and in legal effect was an admission that defendant was the owner of the property. It is ordinarily dangerous to plead more than is necessary in any case. It must be admitted that if one part of a pleading so qualifies another as to change its entire meaning the pleading must be taken with the qualification. If the qualifying portion is relevant to the subject-matter of the action the court cannot disregard it merely because it might with propriety have been omitted.

The criticism of the opinion by appellant’s counsel is at times almost drastic. It is characterized by a vein of irony. We have not allowed this to ruffle our feelings or disturb our equanimity. We have all at some time been practicing members of the bar, and are familiar with the exuberant sensation attendant upon success. We wish we could forget the uncharitable and unforgiving feelings we have sometimes experienced when disappointed in our hopes of victory. This is human, and to be expected. We are satisfied, however, that a calm, cool, and dispassionate consideration of the opinion, uninfluenced by matters not alleged in the pleading, will convince the fair-minded reader familiar with the elementary principles of pleading that the opinion is correct, and states the lav/ as it is and ought to be in this jurisdiction.

The application for rehearing is denied.

.CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.