Bemboom v. National Surety Corp.

1 Reported in 31 N.W.2d 1 . This is an appeal from an order denying plaintiffs' motion for a new trial. *Page 164 Bernard Wieling died testate in 1935 in Iowa, where he resided. He left a farm in Minnesota. In 1937, Bernard Kennedy was appointed administrator with the will annexed by the probate court for Morrison county, Minnesota, wherein the land lay. He administered the estate until his death in December 1945. Plaintiffs allege that they are the widow and devisees of Wieling. It is plaintiffs' claim that between March and July 1941, Kennedy, as administrator, wrongfully and unlawfully razed, wrecked, and devastated certain buildings on the above-described real property. This action, brought in the district court after leave to sue had been granted by the probate court, was grounded on alleged active waste against defendant as surety on Kennedy's bond. The claim arises out of the fact that buildings on the Minnesota farm were in such a run-down condition that Kennedy, by letter, asked the probate court for license to sell them as wreckage. The judge replied that no license was required to sell "personal property." Kennedy then disposed of the buildings as lumber for $25, for which he accounted in his final account. After hearing the evidence, the trial court directed a verdict for defendant on the ground that the matter was one resting solely and exclusively in the jurisdiction of the probate court and over which the district court had no jurisdiction. 1. The answer interposed a general denial. It also admitted the incorporation of defendant and the appointment in this state of Kennedy as personal representative of the Wieling estate, his administration thereof until his death on December 16, 1945, and the sale of the dilapidated buildings for $25, which he duly accounted for and credited in his final account. Nowhere, however, in the answer does defendant admit the title of plaintiffs to the property upon which the waste was alleged to have been committed. Neither did plaintiffs offer any evidence of title beyond the conveyance to Bernard Wieling, nor any evidence that they are the widow and devisees. At the beginning of the trial, the trial court, seeing the issue of title made by the pleadings, discussed with counsel the matter of admitting ownership in plaintiffs. *Page 165 Counsel for defendant, however, admitted only the conveyance to Wieling and specifically refused to admit ownership in the plaintiffs, saying "I haven't seen the will. I don't know if it was willed to them or to whom." Therefore, plaintiffs were adequately warned of defendant's position at the beginning of the trial. Again, at the close of plaintiffs' case, when defendant asked for and was granted the privilege of resting provisionally, he stated "that there is no showing here that the parties plaintiff are the only parties in interest in this action, * * * and that no cause of action is shown against the defendant." At the close of all the testimony, defendant again moved for a directed verdict "on the same grounds and for the same reasons as stated in my motion at the close of plaintiffs' testimony * * *." The court granted the motion. 2. If defendant was entitled to a directed verdict for any reason, the trial court must be sustained although he may have announced a different reason. Pangolas v. Calvet, 210 Minn. 249 , 297 N.W. 741 ; Blomberg v. Trupukka, 210 Minn. 523 , 299 N.W. 11 ; Iowa Guarantee Mtg. Corp. v. Kingery, 181 Minn. 477 , 233 N.W. 18 ; Kipp v. Clinger, 97 Minn. 135 , 106 N.W. 108 . We have searched the record in vain for any evidence or offer of evidence that plaintiffs are the owners of the land on which the wrecked buildings stood or that they are the widow and devisees. Hence they have failed to prove a cause of action. Therefore, the other questions which might well have been presented are not reached. Order affirmed. UPON APPLICATION FOR REARGUMENT. On February 20, 1948, the following opinion was filed: