*1 Duthie, J. Earl DUTHIE Ernestine D. 2: RATIO STUDY SAMPLING wife, husband and and J. Earl Duthie as PROCEDURE Guardian of the Person and Estate of meaningful In to obtain results order Duthie; Ernestine D. Duthie John D. necessary that each study, from a ratio it is Duthie, Rosemary husband and county in each category studied wife, Plaintiffs-Appellants, representation from the adequate study. particu- for the In samples chosen lar, geo- must well distributed samples be President, CLUB, Its GUN LEWISTON economically, and there graphically Connerley; Board of Di A. Its Alvin quantity must be a sufficient of these sam- Raymond rectors, Gregg, O’Con Robert develop a true coun- ples cross section of Booth, Roger nor, Clayton and James ty property. individually, Defendants-Respondents. acquire The Tax Commission shall all 13077. county. available sales data in each An Idaho. Supreme Court adequate number of appraisals pro- will be by appraisers duced staff and will be in- March study. Gathering cluded the ratio Opinion Rehearing on Denial of confirmation of the data used in the ratio 23, 1983. May study by qualified appraiser shall be done counties, primary statistician. In all source of sales information will deed
records of the county. All sales which meet requirements of a free market transac- willing
tion between a buyer willing and a
seller, and which are not to be excluded as
invalid sales as indicated below shall be
included in the ratio study. Validity of
sales data used in study the ratio shall be
made by confirming the details of each
transaction. Confirmation may be made person
contact in by or mail with either the
grantee, grantor, or other authorized
person who is fully informed of the terms transaction. Sales also be con-
firmed by thorough review of authenticated mail,
documents. If confirmation
cover letter question- and sales verification
naire will be Samples used. of these docu- provided
ments are E & F. Annex
Information shall be recorded on the com- approved
mission ratio data record. See
Annex G. *2 routinely are
Gun Club. Such contracts irrigation to users located outside the given district. and Rose-
Plaintiffs-respondents,
John
Duthie,
in 1971 to
mary
planning
started
John’s
property
build a home on the
Earl
parents, plaintiffs-respondents, J.
property
Ernestine Duthie. This
is located.
near the Lewiston Gun Club. Construction
in
of the home was started
November
the fall
John Duthie
1972.
In
Lewi-
president
contacted the then
Club,
Clinton,
requested
Zane
ston Gun
up to the
Club’s
permission to hook
Conflicting testimony
water line.
domestic
was
at the trial of the second
presented
request.
action
John Duthie
regarding
permission
granted
was
testified thft
use the waterline was not
right
that his
Clinton,' who
fashion. Zane
any
limited
Duthie,
a witness
testified
was called as
board of directors
up to the line
granted permission to hook
got
basis until either he
temporary
“on
other source.”
city
water from the
or some
the then
Additionally,
three members of
at the trial of
board of directors testified
at the
the second action
believed
that the hook-
request
granted
time the
up
going
only temporary.
to be
Givens, Lewiston,
James
plain-
W.
Following
granting
permission,
tiffs-appellants.
March
the line in
Duthies constructed
Blake,
Blake,
Wynne
Feeney
M.
&
surplus
water contract
1973 and obtained
Clark, Lewiston,
MeNichols,
Michael E.
Oro-
The Duthies
irrigation
from the
district.
fino,
defendants-respondents.
paid
waterline and
used the Gun Club’s
directly
irrigation
bills
their water
DONALDSON,
Justice.
Chief
was cut off
until their line
district
in October of
This action concerns the
of the de- Gun Club
Club,
fendants-respondents, Lewiston Gun
In
Club
directors,
president
its
and its
board
Judi-
No.
in the Second
Case
(hereinafter
Club),
the Gun
to disconnect
of Idaho
District Court of
State
cial
Duthies’,
plaintiffs-appellants,
waterline
the Du-
against
alleging
the Duthies
waterline.
from the Gun Club’s
upon the Gun Club’s
trespassed
thies had
up to the Gun Club’s
property by hooking
ex-
The Gun Club installed at its own
en-
5,000
thereby unjustly
waterline and were
pense approximately
feet of domestic
$2,000
aas
The Gun Club
irrigation
supply
water lines to
riched.
plus
cost
to construction
City
it leased from the
of Lewi-
contribution
(Vs) of all maintenance
lines
of one-third
County.
ston and Nez Perce
These
sum
as the defendants
Irriga-
long
bills “for so
connected to the Lewiston Orchards
[Du-
line
are
to the Gun Club’s
pipeline.
irrigation
tion District
dis-
connected”
thies]
alternative,
or,
requiring
an order
water to the
surplus
trict contracted to sell
effect of Case
from was the
Duthies to disconnect their waterline
The Duthies
January
on the instant case.
Gun Club’s waterline. On
granted
prejudice
pre-
the trial court
Club should
argued that
the Gun
the Duthies’
action
involuntary
claiming
motion for
dismiss-
in the second
cluded from
pursuant
41(b)
al
based on its
I.R.C.P.
was revoked because that
the license
findings that the Duthies
permission”
“had
have been raised
issue of revocation should
and,
issue,
up
hook
to the Gun Club’s waterline
reviewing this
the first action.
In
*3
therefore,
trespassers.
were not
The Gun
applies
judicata
court held that res
the trial
at
capable
granting
Club was
of
a license
Af-
the
only
pleadings.
to issues raised
least
in the
extent of its interest
answer in
complaint
ter
review of the
and
as a lessee.
29669, the trial court found that
Case No.
raised the issue of
nothing
pleadings
in the
spring
Connerley,
In the
of
A1
the waterline in
“use or continued use of
member of the then
Club’s board of
summary judg-
for
question.” The motions
attorney
directors discussed with the club’s
ment were denied.
Duthies to
possibility
getting
the
the
contribute to maintenance of the waterline.
trial,
the court found
Following
Connerley’s
His
at
con-
attorney,
request,
revoking
estopped
Club was not
attorney
requested
tacted the Duthies’
and
do
license and was entitled to
Duthies’
maintenance contribution. The Duthies re-
appealed.
The Duthies
so.
fused.
August
On
Firstly,
appeal,
the Duthies
the Duthies’
board
directors decided that
contend that
this issue of
waterline should be cut off. On October
we disa
though
decided. Even
erroneously
1977, A1
cut
the Du-
Connerley
capped
finding that res
gree with the trial court’s
thies’ waterline
this second
precipitating
raised
judicata applies only to issues
suit.
the lower
where an order of
pleadings,
capped
After the waterline was cut and
upon
correct but based
an errone
court is
the Duthies filed a complaint
the order will be affirmed
theory,
ous
Restraining
and received a Temporary
Or-
theory.
correct
Foremost Insurance Co.
course,
der from the district court.
In due
Putzier,
Idaho
established that the second action is be- parties upon tween the same the same claim BAKES, J., McFADDEN, J., (Ret.), and or cause of action. SCOGGIN, J., Tern, Pro concur. The second suit was between the same BISTLINE, Justice, dissenting. parties concerning what constitutes the Eighteen ago months in sublime naivete same claim or cause of action this Court joining (now withdrawn) opin- Court’s that, recently stated “The ‘sameness’ of a ion, paused “[tjhere to add that is an area cause of action purposes application years where this over the has been doctrine of res is determined steadfast, up- consistent and and that is in *4 by examining operative the facts underly holding judicata." Today its doctrine of res ing the two lawsuits.” Houser v. Southern shattered; only that dream is the consisten- Pipe Steel, Inc., Idaho & 441, 446, 103 Idaho cy which can now be ascribed to this Court 1197, (1982). (citing 649 P.2d 1202 Restate inconsist- policy being consistently is its of (Second) 61, Judgments, ment of Com § epitome Today’s opinion surely ent. (Tent. 1,1973)). ment a Draft No. ambivalence, appellate arming of the Court though Even out may two actions arise of precedent with lines of opposing operative same facts between the same justification serve purpose finding parties also stated that Court has appellate for whatever result is desired.
,“[h]owever,
single
sometimes a
trial cover-
oriented;
Today’s opinion is result
ing
aspects
all
of the case will be neither
incomprehen-
entire rationale for an
Court’s
bearing
desirable nor feasible. Evidence
result,
at odds with all notions
wholly
sible
aspect
may
unduly
one
of a case
be
this,
judicata,
only
nothing
res
prejudicial
respect
to another. Or cer- more:
while
may
ripe
tain matters
be
for trial
subsequent
to
“[Bjeeause facts occurred
prema-
consideration of others would be
triggered
filing
the first trial that
Heaney
ture.”
v. Board of Trustees of
suit,
that the issue of
the second
we hold
Valley
Garden
School District No.
98
ripe
not
for trial in the
revocability was
900, 903,
Idaho
case,
rather,
premature
was
un-
first
but
actually
was
revoked.
til
the license
In this case facts occurred subse
supra."
Heaney,
filing
to the first trial that led to the
quent
opinion, p. 290.
Court’s
suit,
i.e.,
the cutting
opinion
is found
beauty
Court’s
Therefore,
even
capping of
waterline.
in the fact
language quoted,
in the
but
not
though
the same facts
be used to de
an Idaho
language
is used
that such
termine whether the license was revocable
at the same time and
Supreme
while
as were used in the first action to deter
law
setting forth sound
opinion
in the same
existed,
mine whether a license
because
ago:
just twenty years
from a sound court
trial
subsequent
facts occurred
first
judicata applies,
“Concerning when
suit,
triggered
of the second
Food
in Intermountain
this Court stated
revocability
we hold that
the issue of
Waller,
94, 383
v.
Equipment Co.
case,
first
but
ripe
not
for trial
that,
(1963)
P.2d 612
rather,
premature
until the license was
“
correct rule to
‘We think the
Heaney, supra.
revoked.
There
actually
between the same
fore,
in an action
the trial court’s decision
uphold
we
demand,
the same claim or
parties upon
raising
that res
does not bar the
par-
concludes
adjudication
former
in the second suit.
revocability
the issue of
“WHEREFORE, plaintiff
privies
every
prays:
ties and
as to
matter offered and received to sustain
“1. For
cause
for
claim,
or defeat the
as
also
$2,000.00
connecting
the sum of
for
on to
matter which
and should have
line and for the value
said water
of one-
litigated
in the
Id. at
first suit.’
of the maintenance of said water
third
(quoting
29669:
for Plaintiff”
R.,
(emphasis added).
139—40
pp.
ought
ignore, however,
One
that in the
action,
first
No.
the Gun Club had
plaintiff’s
That action ended at the end of
squarely placed
alleged
in issue the Duthies’
involuntary
case on a motion for
nonsuit.
Findings
of Fact and Conclusions of
liability for maintenance of the Gun Club’s
therein
Law entered
recite that Duthie’s
own water bills since 1973:
motion for dismissal was “for the reason
ground
upon
the facts
“VII
thereto,
applicable
and the law
the Plaintiff
had failed
any right
to show
to relief
“That a reasonable value for the cost of
R,
added).
pp.
(emphasis
143-44
The action
plaintiff’s
connection to
said water line
prejudice
January
was dismissed with
on
defendants,
unjustly enriched
uninitiated,
even the
Obvious to
$2,000.00, plus
the sum of
the sum of
sought
the Gun Club’s action
the disconnec-
one-third of all the maintenance bills in-
prevail,
tion of Duthie’s water.
It did not
curred
from March
by plaintiff
appeal.
appeal—
and it did not
Better than
longer
until such time as defendant
is no
open
if one is to throw
the doors to self-
plaintiff’s
connected on to
said water
revolution,
insurrection,
help,
it simply
line.”
hired a new
and cut the water line
lawyer,
theory
This
case was carried into the
which carried to the Duthies their domestic
prayer
complaint:
water
if
supply
act of barbarism ever
—an
self-evident;
there
ploy
was one. The
“WHEREFORE, plaintiff prays:
Duthies,
so
re-
being
treated could
action,
“1. For the first cause of
kind,
spond
go
could
to court.
$2,000.00
connecting
the sum of
on to
Club,
Obviously,
represented by
the Gun
said water line and for
value of one-
counsel,
good grace
illustrious
could not in
water
third of the maintenance of said
gone
back into court and file a second
long
for as
line from March
just recently
lawsuit
one
identical
thereto.”
the defendants are connected
dismissed,
judicial
which had
de-
Duthies,
water, and hence sans
sans
termination that Duthie’s water could be
sanitation,
same district
resorted to the
Naturally,
cut off.
as even the Court’s
the contro-
out,
which had first resolved
opinion
cutting the Duthies’
court
points
precipitated
line
the second suit.
in No.
versy
*6
The Duthies had no alternative but to seek
court,
seeking restoration
in district
line,
restoration of their water
or
extor-
pay
line,
damages, both com-
of the water
money,
go
tion
without water.
wanton and
for the
pensatory
punitive,
opinion lays
The Court’s
out as
as
nicely
of the Gun Club
sever-
malicious actions
might be wanted the basis on which the
claims did not in
the line. The Duthies’
ing
Duthies’ water line was severed:
those issues
place in issue
any way
spring
Connerley,
“In the
A1
a
a conclusion
litigated
had been
to
member of the then Gun Club’s board
their
action had left
The first
first action.
directors discussed with the club’s attor-
severed
The Gun Club
supply
intact.
getting the Duthies
ney
possibility
was
conduct which
line,
it was this
to contribute to maintenance of
Duthies’ lawsuit.
the basis of the
Connerley’s
at
attorney,
waterline. His
that
said,
tongue-in-cheek,
perhaps
It is
attorney
Duthies’
request, contacted the
trial
to the first
subsequent
“facts occurred
requested
maintenance contribution.
the second suit.”
triggered
2,1977,
August
The Duthies refused. On
were of
6. The “facts”
opinion, p.
Court’s
board of directors decided
Gun Club’s
consisting of the sev-
doing,
the Gun Club’s
should be cut
that the Duthies’ waterline
resi-
line to the Duthie
of a water
ering
Connerley
A1
off. On October
dence,
attempt
payment
to force
done in an
the Duthies’ waterline
capped
cut and
complaint
of monies which
(Empha-
suit.”
precipitating this second
failed to establish.
sought and
in No. 29669
added.)
sis
a second
Only as
connection.
is held water
impossible premise it
From that
trial,
first
after
thought entertained
revocability
ripe
was not
“that the issue of
counsel, did it
rather,
of illustrious
case,
was with the benefit
in the first
but
for trial
it had sure and
Club that
occur to the Gun
actually
the license was
premature until
ever
Duthie
if indeed all that
is so
certain relief
opinion, p. 6. This
revoked.” Court’s
or,
“Hindsight,”
was a license.
possessed
It is
hardly merit discussion.
absurd as to
been,”
plagued every
has
have
“what
the first action was initiat-
inescapable that
it does
But
time immemorial.
lawyer
for the
prayed
Club and
ed
a second
right
precipitate
right
provide
determination of the
judicial
relief of
untenability
self-help.
try by utilizing
at
theory
it advanced
to disconnect.
dis-
readily
position
trial,
brief found in
of the Gun Club’s
set forth in a
if it wanted to
Why,
record,
by asking:
was not
cerned
was that the Gun Club
Duthie,
disconnect
simply
did it not
officers.
It
shed of
for the acts of its
responsible
bring
bothering
line without
right
to discon- his water
have also claimed
could
How, if it
in No. 29699?
a revocable license. Duthie to court
nect on the basis of
in such con-
permissible
engage
be-
theory
have. The entire
And it should
time, did it be-
judicata
pre-
is to
duct on their
at that
hind the doctrine of res
had been in
lawsuits that are not desir-
come
after
piece-meal
permissible
clude
disconnect,
illustrate,
judicial
has an obses-
seeking
able. To
this Court
court
and con-
against piece-meal appeals,
sion
to prevail?
failed
motion,
them of its own
stantly dismisses
rehearing,
filed for the
In a later brief
unless,
when, properly
and even
certified.
thought:
advances
Gun Club
court,
credit
giving
The trial
credit where
and the Duthies
“Though the Gun Club
due,
doctrine, believing
misapplied
the issue of the r'evo-
could
judicata applied only
to issues
res
in Case
the Duthies’ license
cability of
But
pleaded
actually
which are
tried.
so. since
they did not do
No.
Court,
error,
says
Supreme
issue of the
actually litigate the
did not
and out of nothing but whole cloth manu-
of the license
Case
revocability
long-es-
factures a novel exception to the
litiga-
judicata
res
does not bar
tablished doctrine of
—which so
37367.”
of that
issue in Case No.
tion
says
makes the erroneous trial court deci-
prin-
today’s majority agrees
Even
sion
consequence.
of no
the two theo-
Of
ciples
judicata encompass
ries, that of the trial court will strike most
well
that which was
have been as
should
attorneys as the best of a poor lot.
that, and
litigated. But more than
actually
It must be noted
newly
that the Court’s
out, the
which came
point
as I
created exception
body
to Idaho’s
of res
judi-
to a
once to establish
court
request
instiga-
law is not at the
re-
theory
one
cial disconnect —on
—cannot
tion of counsel for the
The Gun
Gun Club.
another
try
yet
later date to
out
turn at a
*7
Club, on the rehearing,
legitimate
makes
new
belatedly occurred to
theory
contentions,
accept
one of which is
tried and lost
original counsel
counsel after
revocability
the issue of
was a matter which
Why
advanced.
theory
the one
on but
might
litigated,
and should have been
counsel,
a third
try
a third
yet
retain
“[ejither party
then to note that
could have
infinitum.
lawsuit? Ad
theory in a third
revocability
the license.”
of
away from
has backed
today
The Court
rehearing,
petition
Gun Club’s brief on
in the Idaho
have stood out
what would
p. 6.
In hon-
outstanding opinion.
as an
reports
clarity, and doubtful of
to its
ready
hypothesis
answer to that
has
est obeisance
same, and
upon the
my ability
improve
It
Club
already been noted.
was the Gun
accusations
over bald
worry
in No.
aside
putting
who
the Duthies into court
incorporate for the
29669,
I now
plagiarism,
action
of
and it was their claim that
the now
portions of
posterity
of
judicially
the Court should
sever the
benefit
withdrawn earlier
opinion
II,
which at Ramseyer
supra, further states that the
was,
remains,
one time
my
and in
view
rationale behind the “might and should
precedent-backed
learned and
disposition of
have been” rule
Joyce, supra,
of
is strength-
the appeal: Duthies
appeal,
on
contend that
by
ened
the “evolution
systems
of modern
judicata
the issue of res
was erroneously
pleading
of
permissive join-
and their free
agree.
decided. We
claims,
der
provisions
liberal amendment
and compulsory counterclaims.”
In other
Recently in
Heaney
Board of Trustees
words the more liberal and flexible that the
Valley
71,
Garden
School District No.
modem rules of pleading
amending
be-
902-903,
Idaho
,
575 P.2d
500-501
900
come, then the more restrictive becomes the
(1978), we stated
judicata
effect in a second action on a
policy expressed
by
doctrine of
“[t]he
party who has not availed himself of these
judicata
litigation
is that
which is
liberal and
flexible rules
the first action.
repetitious or which is
by
inefficient
vir-
then,
question
appeal,
is whether
tue
fragmentation
of needless
should not
the revocability
permission given by
of the
be tolerated
unnecessarily
because it
bur-
the Duthies was a “matter
judicial
dens both the
system and the
might
litigat-
and should have been
party who
respond.
must
2 A. Free-
See
prior
ed” as
of Case No. 29669.
In
man,
Judgments
(5th
Law of
ed.
§
issue,
dealing
type
cases
with this
1925);
Restatement of Judgments §
approached
Court has
it as a decision be-
Comment a
Against
policy
inefficient,
tween the
policy
eliminating
weighed
must be
society’s
pro-
interest in
repetitious litigation and the
policy
pro-
viding a forum for the just
respon-
just
a forum for
viding
claim. Hea-
adjudication
sive
every aggrieved par-
II,
ney, supra; Ramseyer
supra.
ty’s claim....
“Ordinarily, efficiency requires that all
In Heaney, supra,
plaintiff
was dis-
claims to relief based
the same un-
charged
teaching position
from his
derlying
pursued
transaction be
in a sin-
reinstatement
a mandamus
gle action. This is because matters com-
against
action
his employer.
Summary
components
mon to the several
judgment
granted
to the school district.
once,
action need be addressed
rath-
plaintiff
Then the
filed a second suit
er than several times in greater or lesser
against
seeking damages.
the school district
However,
detail.
single
sometimes a
trial
plaintiff’s
The school district claimed that
covering
aspects
all
of the case will be
damage
judica-
action was barred
the res
neither desirable nor feasible. Evidence
proceeding.
ta effect cf the mandamus
Al-
bearing upon
aspect
may
one
of a case
be
though
recognized
plaintiff
it was
unduly prejudicial
respect
with
to anoth-
damage
could have combined his
and rein-
er. Or certain
ripe
matters
be
pursuant
statement
actions
to I.R.C.P.
trial while consideration of others would
18(a),
this Court held that res
did
premature.”
be
them.
necessary
not make it
to so combine
specifically recognized
While it
that res
Heaney, supra, framed its issue in terms of
prevent repeti-
be applied
should
whether the
matter
and should have
litigation,
tious
this Court also stated
been litigated in the earlier
consist-
covering
trial
all as-
single
“sometimes a
language
Joyce, supra.
ent
will
neither desirable
pects of
case
In Ramseyer
Ramseyer,
justice will often
nor feasible” and that
(1977) (hereinafter
provided
trials be
require
separate
II),
Ramseyer
po-
this Court reaffirmed its
damages
are con-
“where mandamus
*8
parties,
given
capac-
sition that
who are
the
Heaney, supra.
cerned.”
controversies,
ity
present
entire
are ex-
pected
citing Joyce, supra,
Ramseyer
Ramseyer,
to do so
In
I),
(Second)
(1976) (hereinafter Ramseyer
Judgments
Restatement
61
759
accounting
dissolution and
of a partnership.
ty’s expectations
or business under-
found,
The trial court
and this
af-
usage.
or
b to
61.”
standing
Comment
§
I,
Ramseyer
firmed in
that the partnership
(emphasis
original).
had been dissolved and
process
of wind-
case,
In the
Club
instant
ing up
partnership
affairs had been
seeking contribu-
trespass
the first action in
completed by earlier transactions between
maintenance of
tion for construction and
parties.
Based on these findings, plain-
or,
alternative,
the water line
in the
discon-
tiff’s
by
action was barred
the statute of
line from its
nection of the Duthies’ water
limitations. The plaintiff
then filed a
noteworthy that
especially
water line.
It is
second suit to quiet
title to
that
sought by
the Gun Club
contribution
had
of the partnership property
period
maintenance was for a
from March
prior to dissolution but was
explicitly
16, 1973, until
Duthies’ line was no
dealt with in either the earlier transactions
line.
In
longer connected to the Gun Club’s
Ramseyer
or in
I. The trial court granted
words,
other
the Gun Club elected to seek
summary judgment for the defendants and
past, present,
damages.
It
prospective
this Court affirmed in Ramseyer II based
recognized
has been
that such an election is
on
the res
effects of
I.
Ramseyer
appropriate.
Kingsburg
This
Kornoff v.
Court held that the
See
giv-
state of facts
ing
rise to plaintiff’s claim
Cotton
45
changed
Company,
had not
Oil
Cal.2d
from the first to
(Calif.1955);
Cameron,
the second action and the
38
Spaulding
essential
sought
relief
Ramseyer
on
II was
(Calif.1952);
Cal.2d
In considering the two competing policies
(4th ed.).
underlying
judicata,
we are influenced
by the following
quoted
factors
by Justice
The Duthies raised the defense of license.
Shepard in his
Heaney,
dissent to
supra at
action,
In the first
merely
Gun Club
904-905,
“What
factual grouping constitutes
judicial
efficiency and fairness to the
‘transaction’ is
prag-
to be determined
requires
Duthies
should have been
matically giving weight to such consider-
raised in the first action. The factual situa-
ations
to whether the facts are related
tion
time,
regarding
estoppel aspect
space,
motivation,
‘in
origin or
whether,
revocation of the license
together,
change
taken
did
they form a con-
unit,
venient’ trial
during
and whether
their
the time from the first to the second
treatment as a
par-
unit conforms to the
action. The
Club’s disconnection of
*9
cases,
the Duthies’ water line and the
of the two
Nez
Coun-
demand for
involved
Perce
action,
maintenance contribution are
remedies
ty Civil No.
and Nez
sought and failed to receive in Case No.
the second
County
Perce
Civil
29669. The Gun Club could have and
a
appeal
action —now before us on
—and
relief,
pursued
should have
it
later
recently
we
Ramseyer,1
citation to
wherein
awarded to itself in the first action. The
said:
Club, having
pursue
failed to
this ave-
“The drafters
of
the Restatement
nue of relief in the first
become
(Second)
Judgments
up
of
summed
precluded
litigating
from
it in future ac-
in their
a to
law on this matter
Comment
tions.
section 61:
“
I
my
opinion August
return to
earlier
‘The law of res
now reflects
point
out the
drawn
readily
are
expectation
parties
who
distinction
ordinary
between the
civil action
given the
their “en-
capacity
present
compared
to a mandamus action which
tire
shall in fact do so.’
controversies”
may also in the
litigate
same action
dam-
controversies
expectation
This
that entire
ages, pointing
previous-
also to that which I
all relevant
presented
will be
and that
ly quoted
from our unanimous res
long been
produced
material will be
has
decision in Ramseyer:
the rule in Idaho:
Heaney was not
the usual civil action
“ ‘We think the correct rule to be that
con-
judicata principles
insofar as res
are
parties
in an action between the same
cerned.
It
a
which all concede could
case
demand,
claim or
upon the same
gone
way,
being
prior
either
there
no
parties
adjudication
former
concludes
subject
touching upon
Idaho decision
every
as to
matter
privies
Hunziker,
other
v.
than Sutton
75 Idaho
to sustain or de-
offered and received
(1954),
761 Paraphrasing Ramseyer, when area vestige any consistency last in this 37367, forced the action law, Club in No. summarily eschews Court giving the state of facts rise to the conten- I write one final time in opportunity. they espoused tions which therein had not so that the other members of only case changed from the state of facts attendant may exactly see participating to their contentions made in the first action. do, what it is and to make certain that they upon it is not counsel for the Gun Club Principles prohibit of res whom for this aber- responsibility placed Club from revitalizing relitigating issues in supposed jurispru- ration science of which were or should have been tried in the certainly day dence —as it will some hence first action which went to a judgment. final be so denominated. A concluding thought. “Dissent is a scene, of the American but its exercise on I.
the appellate court level occurs only when a
justice’s sense of outrage overcomes his
Perhaps my earlier effort was insuffi-
sense of
“My
inertia.”2
brethren in the
Accordingly, I
ciently
succinct.
now
majority
departed from their normally
inescapable
.have
fact that
direct attention to
rational
temperament
....”3
Totally
action,
the Gun Club initiated the first
No.
overlooked, and,
not,
ignored,
if
then
in the
29669,
right
and claimed the
to disconnect
majority opinion is the
elementary
rather
the Duthies’ water line:
fact
that
newly
Gun Club and its
re-
“WHEREFORE, Plaintiff
[Gun Club]
tained counsel
any
never at
time pretended
prays:
or purported to notify Duthie that they had
right
license,
to revoke the
alternative,
“2.
...
in the
for an or-
did revoke it. They avoided all legal meas-
directing
der of the Court
that defend-
ures
indulged
in self-help of
type
immediately
ants
cease and desist from
that no court can condone.
If
any
at
time
trespassing
connecting
on
plain-
right
revoke,
had a
they were enti-
tiffs’ water line.”
tled to attempt
to come back into court to
R., pp. 104^105.
exercise
right.
That is what was re-
out,
pointed
As
earlier
quired of them.
29669,
trial brief in that
specifi-
opinion
today
Court issues
does
cally brought that issue to the attention of
not serve to add to its respectability,
suppose
the district court —one would
regard
which
it compares favorably with its
the basis that it was feared the court
recent Chandler4 and
opinions.
Leliefeld5
reading
otherwise have missed
The science of jurisprudence in
Idaho
And,
before,
pleadings.
pointed
as I
out
be seen
falling
on hard times.
No. 29669 ended in a dismissal entered
upon
ground
“for the reason and
BISTLINE, Justice, dissenting from deni-
upon
applicable
the facts and the law
al of rehearing.
thereto,
the Plaintiff
had
[Gun Club]
The Court today issues its order without
any right
failed to show
to relief
...”
opinion (cf.
Idaho,
Argonaut,
Gomez v.
right
appeal,
Gun Club had
S.Ct. No.
opinion
May
released
which it did not avail itself.
1983), denying the
petition
Duthies’
rehearing.
presented
Thus
heretofore,
with a last
As I
and as re-
pointed out
reprieve
minute
folly
from its
in erasing the
their
supporting
stated in
Duthies’ brief
Tompkins,
Boise,
Supply
City
2. Deshazer v.
93 Idaho
460
4. Chandler
104
Co.
(1969)
J.,
Idaho ---,
(1983).
(Shepard,
dissenting).
P.2d
407
petition rehearing, existing the Du- Idaho precedent, suggest thies to remain attached to Gun Club’s very doctrine of res merely line was a matter based of efficiency, notions and that could have been an issue in the first law- cases, in proper was said to be *11 suit, recognized it was the Gun Club aas one, not be a efficiency wholly should con- claimed right they pleaded which and trolling factor. There followed this collo- for that whereby they prayed specific relief. quy between counsel and myself: learned out, correctly points As their brief exactly “JUSTICE It’s not BISTLINE: Club, allowing appeal it, after time to because but you perhaps revoked how lapse, simply took the law into its own you you’re really revoked it. What want- type self-help hands —the exact which now, it, ing as I understand Mr. McNi- condemn, courts people and civilized chols, and for keeping you in mind that weren’t including obvious breach of lawsuit, you’re in on the first to trying reasons — peace leading and the likelihood of to the persuade client your us that should have Make shedding blood. no mistake about the right to come to court the second time it —the opinion today Court in its will be prove and in the lawsuit seen as clearly condoning such unlawful That’s all you’re license was revocable. conduct. I loss am at a to understand why. asking for. submit, For as the Duthies there is neither “MR. Yes. MCNICHOLS: law, any nor logic, nor ascertainable ratio And the Court “JUSTICE BISTLINE: decidendi in the Court’s facile statement request has thrown in face at the your “that subsequent facts occurred to the first judicata. Mr. Givens the doctrine trial that triggered of the second keep And I think we have to in mind that suit.” were Those “facts” the first you were not in lawsuit.... indulgence self-help in following a court efficiency And and I’d you mentioned adjudication went against them— just thinking like to own out on try my decided, perhaps wrongly from which they you, always very been you’ve because did not appeal challenge to the denial of the and helpful, you efficiency and mention relief of disconnection was a thrust fact that you you mentioned the believed of that first lawsuit. yourself, you I doubt that have and don’t The law of is day in a to strong body you up, of law back shambles; attorneys may with impunity have been revocable. license cite Duthie v. Lewiston Gun Club as emi- you say litigated And that that wasn’t authority nent sustain advising clients lawsuit, the revocability issue. who have self-help, lost a suit to resort to Then, when the first lawsuit came to a and thereby try have another at accom- conclusion it hadn’t been still plishing that which fell short in the first client, your and so client at the your Self-help may court action. well be the time, client, upon then him- but a took step first anarchy. toward manner, efficient self to solve in an revocability. your expression, borrow II. it, cutting with a torch or So it did either stated, state, I have and continue to hacksaw, the line. That and cut the basis which the Court founds its it would have taken efficient because to, opinion, is not in any way above alluded Duthies go time to and if the court responsive supplications of counsel just have disposed they might were so for the Gun Club. in, they but didn’t. gave turned tail and is, presentations my question going your At the the two back second of Now case, talking were argument argument you oral earlier when in this and the issues that represented pleadings an additional about the illustrious counsel, raised and should who A main were raised and weren’t argued. theme of his shouldn’t argument any maybe have been tried and disparagement was not in revoked, where- tried, you I ask have a it’s have I’m satisfied that if license all over. question fore, ask Mr. Blake this and it would have been you this law- question, you say would in the first see the You “JUSTICE BISTLINE: suit, you trespass action for had filed an have, were in thinking I that if I problem trying people to throw these off of this lawsuit, were in charge you of the or if line, claiming right, had no and lawsuit, and I if Mr. charge of that know they been to come had so bold back it, charge somebody Blake were in license, say you we have a had been in license, and, say in got I’ve I would said lawsuit, you of that charge would out, that come pleading, would fine, you do perhaps you perhaps said today you don’t. yesterday, don’t, you if have its do revocable maybe one Right, “MR. MCNICHOLS: file, little which I will pleading they didn’t use the word things reply, now revoking called a I am license; And don’t believe did. *12 license, then that would have been issue to two, that no counterclaim there was Where wrong? tried. am I an due. It was reply which was not “MR. MCNICHOLS: You’re to which there is no affirmative defense wrong at tell wrong, you’re not all. I can responsive pleading. you I wish happened. that that had Mr. permitted. “JUSTICE It’s BISTLINE: Blake wishes that had happened that permitted. anything’s I think the Gun Club wishes that had happened Well, an “MR. amended MCNICHOLS: we presume because the that evidence at the We have amended complaint. could trial would have been the same as it certainly it could have been complaint Mossman, Judge before presume we the approached somehow but it would be result would be same we ordinary things; course of there expense wouldn’t had a responsive pleading would have been second trial. filed, exactly but accu- your scenario opin- “JUSTICE BISTLINE: Then the rate as far as I can tell. ion of the Court went dealing that out you. “JUSTICE BISTLINE: Thank out, with points and is based “MR. Let me close MCNICHOLS: upon one of the principles which into goes pro- that if saying Club has it, a party in court has right free use to the vide water line litigate anything litigate, he wants to pay Duthies and if the Gun Club has to especially if equity he’s on the side of Duthies, damages may be Court, ,we there’s an old maxim that efficiency justice. Thank it’s back learned in law school “Equity seizes you.” the whole till controversy retains it apparent foregoing it’s From seems equity all over.” When is ousted jurisdiction not have final counsel realized judgment’s because a 29669, in complaint in No. coun- objection, entered with no said then it seems participate, specifically like sel did not had principle of res unfortu- pleaded very for the relief which nately your tend to bar client from back Club did not obtain. Under the law res coming again again. read, judicata, always as it has heretofore “MR. I MCNICHOLS: understand claimed a having disconnect view. I would say, Honor, Your we Duthies, required to in didn’t come back. your understand re- theory their each lawsuit advance is, no, sponse you to that went out pre- they might entitled the saw and cut pipe and forced vail. out, Duthies which no doubt did. nothing But please would the Gun Club
more than if the transpired scenario had origi-
as Your Honor or if suggested I, pleading
nal had said Cause of Action II,
you’re trespassing, if Cause Action