COEUR D‘ALENE TURF CLUB, INC., an Idaho Corporation, Plaintiff, v. Darwin D. COGSWELL, Judge of the District Court of the First Judicial District of the State of Idaho, in and for the County of Kootenai, Defendant.
No. 10451.
Supreme Court of Idaho.
July 22, 1969.
461 P.2d 107
Gary M. Haman, Coeur d‘Alene, for Kootenai County Board of County Com‘rs, amicus curiae.
DONALDSON, Justice.
Plaintiff, Coeur d‘Alene Turf Club, Inc., petitioned this Court for a writ of review and stay of proceedings pending the resolution of an appeal from a judgment rendered by defendant Darwin D. Cogswell, Judge of the District Court of the First Judicial District, State of Idaho, in and for the County of Kootenai. An alternative writ of prohibition was issued commanding Judge Cogswell to desist and refrain from taking any action in the matter until further order from the Supreme Court, and ordering him to show cause why he should not be permanently restrained from any further proceedings pending outcome of the appeal on the merits.
In 1967, Kootenai County, acting through its Board of Commissioners, leased certain real property known as the Kootenai County Fairgrounds to the Coeur d‘Alene Turf Club for the purpose of conducting horse racing thereon.
Thereafter, Joseph Hansen brought a class action on behalf of Kootenai County taxpayers against the County Board and the Turf Club concerning the lease. July 1, 1968, Judge Towles, of the First District Court in and for Kootenai County, entered judgment declaring the lease void.
The County Board and the Turf Club then entered into a new lease agreement dated July 18, 1968. Mr. Hansen thereupon filed a “supplemental” complaint praying that the new lease be held void and praying for other appropriate relief. A hearing was held, and on May 5, 1969, the defendant in this case Judge Darwin Cogswell filed judgment decreeing
“I.
“That the lease between the defendant County Commissioners and the defendant Turf Club dated July 18, 1968 providing for use of the Kootenai County Fair Grounds by defendant Turf Club for the purpose of conducting horse-racing is violative of Article 8 Section 4, and Article 12 Section 4, of the Constitution of the State of Idaho and is therefore null and void.
“II.
“This Court lacks jurisdiction to make a determination of whether there has been any violation of Chapter 19 of Title 54, Idaho Code, for the reason that any such violation is criminal in nature and such offenses must be defined and prosecuted by the sovereign authority of the State.
“III.
“That all other claims of the plaintiff against the defendants for damages and relief are hereby denied. * * *”
May 5, 1969, Mr. Hansen filed a petition for an order requiring the County Board and the Turf Club to show cause why the Turf Club should not vacate the premises. The order was duly issued and hearing thereon set for May 12, 1969.
May 5, 1969, the Turf Club filed a motion under
“This Court lacks jurisdiction to make a determination of whether there has been any violation of Chapter 19 of Title 54, Idaho Code, for the reason that any such violation is criminal in nature and such offenses must be defined and prosecuted by the sovereign authority of the State.”
May 7, 1969, the Board of County Commissioners filed an almost identical motion to delete the same paragraph from the judgment. The Board also noticed that motion for hearing on May 12.
Thereafter, on May 9, 1969, the Turf Club perfected an appeal from that part of the judgment stating:
“That the lease between the defendant County Commissioners and the defendant Turf Club dated July 18, 1968 providing
for use of the Kootenai County Fair Grounds by defendant Turf Club for the purpose of conducting horseracing is violative of Article 8 Section 4, and Article 12 Section 4, of the Constitution of the State of Idaho and is therefore null and void.”
By “perfected,” we use the term in the same sense as it is used in the statute concerning proceedings automatically stayed by perfection of appeal.
At 10:05 A.M. on May 12, 1969 the Board of County Commissioners filed an appeal from the same portion of judgment as the earlier appeal by the Turf Club.
On May 12, the exact time of which is not shown, a hearing was held on the motions to amend and on the show cause order.
On May 13, Judge Cogswell entered an order reciting that appeals had been taken by the defendant Turf Club and defendant Board of County Commissioners and that the court was without jurisdiction to consider motions to alter or amend the judgment but did have jurisdiction to enforce its original judgment. The order also commanded the Turf Club to vacate the premises within ten days and commanded the Board of County Commissioners to retake possession of the property within the same time period.
May 14, pursuant to
May 15, the Turf Club filed with this court a petition for writ of review and stay of proceedings. The Board of County Commissioners was not made a party to this action, but has appeared as Amicus Curiae.
May 19, the Supreme Court issued the alternative writ, stay of proceedings and show cause order.
May 21, the Turf Club filed an exception to the May 13th order of the district court on the ground that the district court exceeded its jurisdiction in so acting. On the same date, the Turf Club amended its notice of appeal to include in the matter appealed from the following portion of the May 13th order:
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the petition of the plaintiff shall be and the same hereby is granted and the defendant Coeur d‘Alene Turf Club, Inc., an Idaho Corporation, is hereby ordered to remove themselves from the Kootenai County Fairgrounds and to fully restore possession of said Kootenai County Fairgrounds to the defendant Kootenai County Commissioners on or before ten (10) days following the entry of this Order.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant Kootenai County Board of County Commissioners acting by and through Henry J. Meyer, Ralph W. Cope and Don Adams, shall, within said ten (10) days, retake possession of said property forthwith and hold the same for the use and benefit of the public as provided by law.”
The Board filed a similar exception and amended notice of appeal on May 23.
A question has been raised, sua sponte, by a member of this court as to whether or not the appeals of May 9 and May 12 taken respectively by the Turf Club and by the Board of County Commissioners were from a “final” judgment. This problem apparently was recognized by none of the parties, since no reference was made to it by brief or by argument.
The issue, simply stated, is: did the pendency of the two
“Rule 59(e). Motion to alter or amend a judgment. — A motion to alter or amend the judgment shall be served not later than ten (10) days after entry of the judgment.”
The time for taking an appeal is statutory in Idaho.
“An appeal may be taken to the Supreme Court from a district court.
1. From a final judgment in an action or special proceeding commenced in a district court * * *; from a judgment rendered on an appeal from an inferior court; from a judgment rendered on an appeal from an order, decision or action of a board of county commissioners; within sixty days after the entry of such judgment; Provided, however, that the running of the time for appeal is terminated by a timely motion for a new trial; a timely motion for a judgment notwithstanding the verdict, following a timely motion for a directed verdict; a timely motion to amend or make additional findings of fact, whether or not alteration of the judgment is required if the motion is granted, or a timely motion to alter or amend the judgment, and the full time for appeal fixed by this act commences to run and is to be computed from the entry of any order granting or denying any of the above motions.
2. From an order granting or refusing a new trial; from an order granting or denying a motion for a judgment notwithstanding the verdict; from an order granting or dissolving an injunction; from an order refusing to grant or dissolve an injunction; from an order dissolving or refusing to dissolve an attachment; from an order granting or refusing to grant a change of place of trial; from any special order made after final judgment; and from an interlocutory judgment in an action for partition of real property; within sixty days after the order or interlocutory judgment is made and entered on the minutes of the court, or filed with the clerk. [C.C.P. 1881, § 642; R.S., § 4807; am. 1895, p. 142, § 1; reen. 1899, p. 273, § 1; reen. R.C., § 4807; am. 1911, ch. 111, p. 367; am. 1915, ch. 80, § 1, p. 193; reen. C.L., § 4807; C.S., § 7152; I.C.A., § 11-201; am. 1957, ch. 105, § 1, p. 183.]” (Emphasis supplied.)
“Rule 73. Appeal to a Court of Appeals.
(a) How and When Taken. An appeal permitted by law from a district court to a court of appeals shall be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment appealed from, except that: (1) in any action in which the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days from such entry; (2) upon a showing of excusable neglect the district court in any action may extend the time for filing the notice of appeal not exceeding 30 days from the expiration of the original time herein prescribed; (3) if a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise herein prescribed, whichever period last expires; (4) an appeal by permission of a court of appeals obtained under Title 28, U.S.C., § 1292(b) shall be taken in accordance with the rules of the court of appeals. The running of the time for appeal is terminated as to all parties by a timely motion made by any party pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of
the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50(b); or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. If an appeal has not been docketed, the parties, with the approval of the district court, may dismiss the appeal by stipulation, filed in that court, or that court may dismiss the appeal upon motion and notice by the appellant.” (Emphasis supplied.)
“Appeals in Civil Cases. In a civil case (including a civil action which involves an admiralty or maritime claim and a proceeding in bankruptcy or a controversy arising therein) in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days of the date of the entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days of such entry. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.
The running of the time for filing a notice of appeal is terminated as to all parties, by a timely motion filed in the district court by any party pursuant to the Federal Rules of Civil Procedure hereinafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; (4) denying a motion for a new trial under Rule 59. A judgment or order is entered within the meaning of this subdivision when it is entered in the civil docket.
Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.” (Emphasis supplied.)
In Federal jurisdictions, it appears to be the rule that an appeal taken during the pendency of a timely motion, brought under rules 50(b), 52(b), or 59, is premature. The reason given for this holding is that the finality of the judgment temporarily is destroyed by making such a motion. The Federal Courts have not always been uniform in declaring the effect of this specie of “premature” appeal, but often it has been treated as a nullity. See, generally, 3A Barron & Holtzoff, Federal Practice and Procedure (1958) § 1553; 7 Moore‘s Federal Practice (2d ed.) ¶ 73.09[4] [6] (now found in Vol. 9, civil appendix, at the paragraph cited); 9 Moore‘s Federal
On the other hand, this court has specifically stated in an unanimous opinion that it has not adopted any Federal rules governing appeals. Dolbeer v. Harten, 91 Idaho 141, 417 P.2d 407 (1967). While federal cases may be of some benefit in reaching a resolution of the issues before us, they are by no means binding authority.
Confining this opinion to the particular facts before us, it is our view that the pendency of the motions to amend judgment, which motions were directed to a singularly gratuitous portion of the judgment having no effect on the rights and liabilities of the parties, did not in any way deprive those same movants of the right to take their appeals of May 9 and 12 from another portion of the judgment. The portion of the judgment from which the appeals were taken was final, and the May 9 and May 12 appeals were not premature. See Scott-Whitaker Co. v. Joyce Properties, Inc., 155 So.2d 661 (Dist.Ct.App., Fla. 1963); Frank v. Pioneer Metals, Inc., 114 So.2d 329 (Fla.App. 1959); Holsinger v. City of Fresno, 246 F.2d 263 (9th Cir. 1957).
To reiterate, when:
1. A motion to amend judgment is made in the trial court, and;
2. It is patent on the face of the motion that the lower court‘s ruling thereon could not possibly change the rights and liabilities of the parties under the judgment, and;
3. During the pendency of the motion to amend judgment, that same party appeals from a particular part of the judgment, and;
4. The portion of the judgment appealed from has absolutely no connection with the portion sought to be amended; then the appeal will be considered as from a final judgment and not premature. As to any other factual situation, where an appeal is taken during the pendency of a timely-filed motion mentioned in
The next issue is whether the mere filing of an appeal by the Turf Club, without a supersedeas bond, stayed further proceedings against the Turf Club in the district court. Whether a stay results automatically from the mere perfection of appeal or whether a supersedeas bond is required depends upon the nature of the judgment from which the appeal is taken.
“In cases not provided for in sections 13-204 [money judgment], 13-205 [judgment in replevin], 13-206 [judgment in specific performance] and 13-207 [judgment in ejectment], the perfecting of an appeal by giving the undertaking, or making the deposit mentioned in section 13-203, stays proceedings in the court below upon the judgment or the order appealed from * * *”
The judgment appealed from on May 9 merely declared the invalidity of the lease. It was not one of those judgments or orders listed in
Once the proceedings are stayed by appeal, the district court ordinarily is divested of jurisdiction to act in any manner (with relation to the rights and liabilities of an appellant) except to act in aid of and not inconsistent with the appeal. See Dolbeer v. Harten, supra; Richardson v. Bohney, 18 Idaho 328, 109 P. 727 (1910); 4 Am.Jur.2d, Appeal and Error § 352.
The action taken by the defendant district judge was not in aid of appeal, but was inconsistent with the appeal.
There is also adequate security to protect the plaintiff in the original suit if he is successful on appeal since the petitioner has placed over $100,000.00 worth of improvements on the Fairgrounds out of which it is willing to reimburse the county for any damage sustained in the event it loses its appeal.
For these reasons, the alternative writ of prohibition will be made permanent pending determination of the appeal on its merits. See also Ruby v. Secretary of United States Navy, 365 F.2d 385 (9th Cir. 1966), cert. denied, 386 U.S. 1011 (1967); Borgmeier v. Stone, 233 F.2d 818 (7th Cir. 1956).
Concerning that part of the order of ejectment relating to the duty of the Board of County Commissioners, exactly the same reasoning applies. Furthermore, to require the Board to retake possession of the property, in accordance with the order of ejectment, would adversely affect the existing rights of the Turf Club just as severely as would permitting the order of ejectment to act directly against the Turf Club. In exercise of and in protection of the Supreme Court‘s appellate jurisdiction, the operation of the order as it affects the Board of County Commissioners also is stayed. Idaho Const., art. 5, § 9;
So that the status quo be preserved during the pendency of the appeal, it is ordered that all proceedings in Kootenai County Case No. 22904 be and are stayed,
No costs allowed.
McFADDEN, C. J., and SPEAR, J., concur.
McQUADE, Justice (dissenting).
Before discussing the reasons why I believe the majority to be in error, I would like to dispose of the question of whether the issue of the finality of the judgment appealed from in this case is properly before this Court. The reference to the question of finality being raised “sua sponte” in the majority opinion at least implies that the issue is not properly before us.
Although it is at least arguable that respondents addressed themselves to the issue on oral argument (“We submit that the plaintiffs in this action have * * * sought the simultaneous jurisdiction of the Supreme Court and the District Court of the State of Idaho to their own benefit * * *“), that is of no matter. The finality of a judgment sought to be appealed to us is a prerequisite of our jurisdiction. State ex rel. State Board of Medicine v. Smith, 80 Idaho 267, 269, 328 P.2d 581 (1958); Evans State Bank v. Skeen, 30 Idaho 703, 704, 167 P. 1165 (1917); accord Studer v. Moore, 153 F.2d 902 (2nd Cir. 1946). And, because it is jurisdictional, it not only may be, but must be raised and determined by this Court before any further action on the purported appeal can be taken by us. Studer v. Moore, supra; McEwen v. McEwen, 203 Or. 460, 280 P.2d 402, 407 (1955); Sheridan County Electric Co-op v. Anhalt, 127 Mont. 71, 257 P.2d 889, 891 (1953); Pulliam v. Pulliam, 163 Kan. 497, 183 P.2d 220, 1 A.L.R.2d 418 (1947). We can not be relieved of this duty by any failure, waiver, or agreement of the parties; we must determine whether or not we have jurisdiction, even when the parties do not expressly question it. McEwen v. McEwen, supra; Sheridan County Electric Co-op v. Anhalt, supra; 4 Am. Jur.2d, Appeal and Error § 10; 4 C.J.S. Appeal and Error §§ 43, 45.
The judgment from which petitioners attempted to appeal on May 9, was not final, because of the intervention of the motions which they filed on May 5, and May 7. We must hold that those motions destroyed the finality of the judgment filed by Judge Cogswell on May 5, 1969.
The rule in this state, as enacted by the legislature and regularly restated by this Court, is that, with a very few discreet exceptions, in order for a judgment or order to be appealable it must be final.
“The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government; but the legislature shall provide a proper system of appeals * * * so far as the same may be done without conflict with this Constitution.” Idaho Const. art. 5 § 13. Jones v. Jones, 91 Idaho 578, 582, 428 P.2d 497 (1967) (Taylor, C. J., concurring); State ex rel. State Board of Medicine v. Smith, supra, at 268-269, 328 P.2d 581.
The rule that judgments and orders must be final before they may be appealed to this Court is not, however, an unconstitutional restriction on our jurisdiction.
“It is a recognition by the legislature of a truism inherent in a proper system of appeals; namely, to permit an appeal from all intermediate orders and decisions of the district courts would result in such vexatious and intolerable confusion and delay as to render impossible an orderly and expeditious administration of justice by the courts of the state. Evans State Bank v. Skeen, 30 Idaho 703, 167 P. 1165 [1917].” State ex rel. State Board of Medicine v. Smith, supra, at 269, 328 P.2d at 581.
There are several purposes served by an adherence to the rule that judgments must be final before an appellate court may take cognizance of them. They include the avoidance of harassing and costly delays in the prosecution of just claims, the establishment of clear, certain, and stable boundaries of jurisdiction between courts so that parties and the public may, without confusion, know which court has the power to act on a cause, and the determination of as many issues of fact and law as completely and as economically as possible in the trial court. State ex rel. State Board of Medicine v. Smith, supra; Evans State Bank v. Skeen, supra; Utah Assn. of Credit Men v. Budge, 16 Idaho 751, 757-758, 102 P. 691 (1909); Hill v. Hawes, 320 U.S. 520, 524-525, 64 S.Ct. 334, 88 L.Ed. 283 (1944) (Stone, C. J., dissenting); Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940) (Frankfurter, J.). This Court, in service of these goals of avoiding protracted litigation and of maintaining the power and responsibility of the trial court to settle the entire case, has repeatedly affirmed our inability to review, on appeal, cases in which something remains “to be done in the adjudication of substantial rights * * * by the court entertaining jurisdiction.” Evans State Bank v. Skeen, supra, at 705, 167 P. at 1166; accord, e.g., Gerry v. Johnston, 85 Idaho 226, 378 P.2d 198 (1963) (judgment defective as to finality because “subject to revision“); Hunter v. Merger Mines Corp., supra. These same considerations apply to the case before us.
If this case were to occur in a federal jurisdiction it is clear that the appeal of May 9, 1969 would be premature, because the Rule 59(e) motions of petitioners would have destroyed the finality of the judgment of May 5, 1969 before the appeal was filed. See
There are two bases for this federal rule. The first was the language of Rule 73(a), set out in the majority opinion, which provided that the running of the time for appeal was terminated by the timely filing of any one of several post-trial motions. A Rule 59(e) motion was one of these. This language was based on two United States Supreme Court decisions, Leishman v. Associated Electric Co., supra, and United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160 (1944). These cases distinguished motions which would toll the time for appealing from those which would not according to whether or not they were addressed to questions of substance or mere matters of form. 318 U.S. 203, 205, 63 S. Ct. 543, 87 L.Ed. 714; 323 U.S. 173, 177, 65 S.Ct. 254, 89 L.Ed. 160. When the language of Rule 73 was adopted, however, this distinction was wisely dropped, because the time for making the motions after judgment is only ten days long and the distinction between substance and form was felt to be too uncertain and promotive of confusion and litigation to be useful. 9 Moore‘s Federal Practice, Appeals to Court of Appeals ¶ 72.03[4], 73.09[4] (2nd ed., J. Moore and B. Ward, 1969).
The second basis for the rule appears to be the same purpose which animates the final judgment rule. That is to avoid protracted and confused litigation by maintaining jurisdiction in the trial court to wind up as much of the cause as is possible, including the correction of the trial
This Court should at least follow the federal rule in these cases. That is that we should at least hold today that the filing of Rule 59(e) motions should render the appeal which petitioners filed on May 9, 1969, premature because they destroyed the judgment‘s finality. Both bases of the federal rule are available to support such a holding.
It is true that when we adopted the federal rules as our own we “reserved” adoption of Rules 73(a) through 76, and that we are, thus in no way bound by federal decisions interpreting those rules. A comparison of the language in Rule 73(a) with that in our
Prior to the adoption of the Idaho Rules of Civil Procedure in 1958 there were two lines of cases which served the general purpose of avoiding protracted litigation by allowing the lower courts to close up actions and to correct their own errors without recourse to this Court. The first we have already examined; it embraces the cases announcing the final judgment rule. The other line of decisions includes those which affirm a jurisdiction in the trial court to correct errors negligently made, or which are merely clerical to vacate judgments which are void, and to entertain motions for a new trial. A distinction is drawn in these opinions between the cases involving relief from mere mistakes and those containing errors of law, not involving the validity of the judgment. The former, lesser sorts of error could be corrected at any reasonable time at the discretion of the court, the latter could be corrected only by appeal or on a timely motion for a new trial. E.g., Baldwin v. Anderson, 50 Idaho 606, 299 P. 341 (1931); Fall River Irr. Co. v. Swendsen, 41 Idaho 686, 241 P. 1021 (1925); Wyllie v. Kent, 28 Idaho 16, 152 P. 194 (1915). (See also Baldwin v. Anderson, 51 Idaho 614, 8 P.2d 461 (1932); and Occidental Life Ins. Co. v. Niendorf, 55 Idaho 521, 44 P.2d 1099 (1935) on the inherent power of the court to vacate void judgments at any time). This distinction is still made under our rules of civil procedure. Compare
A motion for new trial, if timely made, and an appeal are two different remedies, and, therefore, an appeal will not cut off the trial court‘s jurisdiction to entertain a motion for a new trial. Angleton v. Angleton, 84 Idaho 184, 199, 370 P.2d 788 (1962); cf. Clark v. Foster, 87 Idaho 134, 391 P.2d 853 (1964); Gerry v. Johnston, supra. All of these rules are designed to allow trial courts, even after judgment, to correct their own errors. A new trial motion may, thus, produce the same desirable result, with greater simplicity and less cost, as would an appeal. The principal difference which the codification of the law of these cases in our Rules 59 and 60 makes is that Rule 59 now permits errors to be corrected even more efficiently on a Rule 59(e) motion to alter or amend a judgment, thereby obviating the necessity of an appeal and a new trial. I would, following these cases, apply the rule which we have
“* * * [T]he running of the time for appeal is terminated by a timely motion for a new trial; a timely motion for a judgment notwithstanding the verdict, following a timely motion for a directed verdict; a timely motion to amend or make additional findings of fact, whether or not alteration of the judgment is required if the motion is granted, or a timely motion to alter or amend the judgment * * *,” (emphasis added)
and by the explicit language of
If we adopt such a rule we will best serve the interests involved in “finalizing,” in finishing up, litigation before an appeal is perfected to this Court. Such would preclude the race to file motions and/or appeals which may be inspired by the majority‘s opinion in this case and the decision in Dolbeer v. Harten, supra, which I would overrule. And the rule which is here proposed is most in harmony with this Court‘s previous treatment of remedial motions, especially new trial motions under
Dolbeer is something of an anomoly in our jurisprudence; it is not in harmony with our general policy guarding the trial court‘s inherent power to correct his own errors. I believe that the potentiality of a race which lies in the Dolbeer rule is too undesirable to stand in the face of the language of the statute.
But, even if we are unwilling to operate within our modern civil procedure and our statutes, we need not deny them as the majority would have us do today. Dolbeer does not compel such a step.
Nor are the parties in this case in a posture which would appeal to our sense of equity or which would lend itself to the fashioning of an exception to the more normal, federal rule of finality. The plaintiff in the action on the merits has not attempted to deprive the petitioners of their right to appeal by stalling with spurious
We should dismiss petitioner‘s appeal of May 9, 1969, as premature, because the motions of May 5, and May 7, under
The judgment of May 5, 1969 is one which is covered by
“Stay of proceedings — Judgment in ejectment. — If the judgment or order appealed from direct the sale or delivery of possession of real property the execution of the same can not be stayed unless a written undertaking be executed on the part of the appellant with two or more sureties, to the effect that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed or the appeal dismissed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or order made, and which must be specified in the undertaking. * * * [C.C.P. 1881, § 647; R.S., R.C., & C.L., § 4812; C.S. § 7158; I.C.A. § 11-207.]”
It should be noted that this section dates back to 1881, nearly nine-tenths of a century.
The judgment of May 5, was, as the plaintiffs below asked in their complaint, paragraph XII, 1, in the form of a declaration. The declaratory judgment chapter of Title 10 of the Idaho Code substantially post-dates
We must, therefore, construe
The sort of construction which is urged, that is one cognizant of the age of the section‘s language and sympathetic with its purpose to protect winning plaintiffs from winning the battle but losing the res, was held to be a correct interpretation in Berding v. Varian, 34 Idaho 587, 202 P. 567 (1921). This Court said in that case:
“The judgment as entered was final, but it did not in terms direct the delivery of possession of real property. The right to recovery of possession, however, follows as an incident to the judgment to the same extent as if expressly contained therein. * * * The only thing to be done in execution of the judgment is the placing of Berding in possession of the premises. In other respects the judgment is self-executing.
* * * * * *
“If appellants desired to stay the execution of this judgment, it was their duty to give an undertaking for that purpose in conformity with C.S., § 7158 [
I.C. § 13-207 ]. No such undertaking having been given, the respondent is entitled to the possession of the property pending the appeal.” 34 Idaho 587, at 593-594, 202 P. at 569 (1921).
I cannot imagine a case which more precisely fits that language than this declaratory judgment, if it is actually final. Under our cases, if it is a final judgment from which an appeal may be taken, all the questions of substantial rights — here, rights to possession of the parties — must have been determined, and all that remains is “the mere ministerial execution of such judgment,” the power to supervise which may be reserved in the trial court. Lamberton v. McCarthy, 30 Idaho 707, 713, 168 P. 11 (1917); accord Doolittle v. Morley, 76 Idaho 138, 278 P.2d 998 (1955). And it seems to have been the opinion of both sides below that the declaratory judgment did determine all rights to possession. The petitioners, even after judgment and in response to the order to show cause continued to claim a possessory right only under the lease declared a nullity by the judgment. They claimed no other right. Affidavit of Donald MacDonald, an officer of Coeur d‘Alene Turf Club, Inc., at 1 and 3 (May 8, 1969). Following Berding v. Varian, supra, therefore, I would, if the declaration of May 5 is held to be a final and appealable judgment and the appeal of May 9 is thereby proper, still hold that petitioners had to comply with the requirements of
SCOGGIN, D. J., concurs in the dissent.
DONALDSON, J.
JUSTICE OF THE SUPREME COURT OF IDAHO