Dоnald AVERITT, Jr., and KJS Entertainment, Inc., a corporation, Plaintiff-Respondents, v. CITY OF COEUR D‘ALENE, State of Idaho, Loren Edinger, Don Johnston, Ray Koep, Dixie Reid, Raymond Stоne, Harry Fields and Russell Joki, Mayor and Council Members of the City of Coeur d‘Alene, Defendant-Appellants.
No. 12947
Supreme Court of Idaho
Jan. 21, 1980
605 P.2d 515
Of course, if there exists sufficient evidence which shows that the certificate was false, and not merely incomplete, the presumption of regularity in the performance of notarial acts would disappear. See Meyers v. Meyers, 81 Wash.2d 533, 503 P.2d 59 (1972) (in action against notary for negligence in giving certificate of acknowledgment, proof of falsity of certificate shifts burden to notary to show that he was deceived through no lack of reasonable care on his part). The presumption would also be overcome where there is evidence that the notary failed to require the personal appearance of the acknowledgers, Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939); Myers v. Eby, 33 Idaho 266, 193 P. 77 (1920), or where the notary used the wrong form in taking the acknowledgment. See Jordan v. Securities Credit Corp., 79 Idaho 284, 314 P.2d 967 (1957) (notary executed certificate of acknowledgment in individual form when person acknowledging execution of the underlying instrument was acting for a corporation in а representative capacity).
We therefore conclude that it was error for the trial court to conclude, absent supporting evidence, that the notary public improperly carried out her official duty. However, we decline to order the entry of summary judgmеnt for appellant on this issue. Since all the parties, as well as the court below, apparently felt that the issue of constructive notice would rise or fall solely on the sufficiency of the certificate on its face, the respondents should be permitted to bring forth evidеnce, if any exists, that would tend to overcome the presumption attaching to notarial acts and the evidence of due execution before the notary.
The judgment of the trial court is hereby reversed and remanded for proceedings consistent with this opinion.
Costs to appellant. No attorney fees allowed.
DONALDSON, C. J., and SHEPARD, McFADDEN and BISTLINE, JJ., concur.
David A. Frazier, Coeur d‘Alene, for plaintiffs-respondents.
BAKES, Justice.
In January, 1977, the City of Coeur d‘Alene revoked plaintiff respondent Averitt‘s city beer license for alleged violations of the city and state regulations govеrning the sale of alcoholic beverages. Averitt petitioned district court to vacate the revocation order, arguing that the сity had failed to notify Averitt of its intended action and had not provided Averitt with an opportunity to be heard in the matter. After a hearing, the district сourt entered a judgment vacating the city‘s revocation order. In its judgment the court taxed plaintiff respondent Averitt‘s costs and attorney fees incurred in the action against the defendant city.
The city appeals solely from the district court‘s order taxing costs and attorney fees, arguing that the court had no power to assess costs and attorney fees against the city in the action. The appellant city argues that general statutory law, including statutes awarding costs, do not apply to the state or other governmental entities unless expressly so provided or unless by necessary implication, citing Chicago, Milwaukee & St. Paul Ry. Co., et al. v. Public Utilities Comm‘n of State of Idaho, 47 Idaho 346, 275 P. 780 (1929), and Chastain‘s, Inc. v. State Tax Comm‘n, 72 Idaho 344, 241 P.2d 167 (1952). It is the city‘s contention that costs and attorney fees may not be assessed against a municipality acting in a governmental capаcity unless the assessment is expressly provided or necessarily implied by statute.
Costs have been routinely awarded against municipalities in recent decisions by this Court. See, e. g., Local 1494 of Int‘l Ass‘n of Firefighters v. City of Coeur d‘Alene, 99 Idaho 630, 586 P.2d 1346 (1978); Butler v. City of Blackfoot, 98 Idaho 854, 574 P.2d 542 (1978); Boise City v. Blaser, 98 Idaho 789, 572 P.2d 892 (1977); Winther v. City of Weippe, 91 Idaho 798, 430 P.2d 689 (1967); Gaige v. City of Boise, 91 Idaho 481, 425 P.2d 52 (1967). It is within the district court‘s discretion to make a cost award against a municipality to a prevailing party in an action brought in district court.
Thе appellant City of Coeur d‘Alene also argues that the trial court erred in including an attorney fee award in the cost bill taxed against thе city. The district court‘s award of attorney fees to plaintiff respondent Averitt was made pursuant to
DONALDSON, C. J., and SHEPARD and McFADDEN, JJ., concur.
BISTLINE, Justice, specially concurring.
In Minich v. Gem State Developers, 99 Idaho 911, 921, 591 P.2d 1078, 1088 (1979), I registered my misgivings as to the Court‘s wisdom and propriety in judicially amending the legislatively enacted
Here, short months later we have a persuasive brief wherein able counsel do discuss that exaсt proposition. The Court impliedly concludes that it need not be addressed, the barn door having been shut with the horse not in, having heretoforе been ridden off with the Court astride. Again I opine here as I did in that case:
“It was the prerogative of the legislature, and the legislature alоne, to create law whereby attorney‘s fees may be awarded by district courts in all civil actions; where that sparsely worded statute hаs created confusion and proliferation of litigation, the legislature, not the Court, should amend its own statute, giving it such further definition and delimitation as it concludes to be necessary and desirable.”
99 Idaho at 922, 591 P.2d at 1089.