First Security Bank of Idaho National Ass'n v. Neibaur

P.2d FIRST SECURITY BANK of Idaho Association,

National

Plaintiff-Respondent, v.

Clyde B. Nei- A. and Norma NEIBAUR

baur, Layne Neibaur Vi Mitchell C. and

Neibaur, Defendants-Respondents,

and Tassell, Erma Van Van Tassell and

Glen

Defendants-Appellants. VAN and Erma Van

Glen TASSELL

Tassell, Cross-Plaintiffs-Appellants, v. NEIBAUR, Neibaur,

Clyde A. Norma B. Layne C. Neibaur and Vi Nei-

Mitchell

baur, Cross-Defendants-Respondents. Margaret and

Rex E. HEBDON M.

Hebdon, wife, husband and

Plaintiffs-Respondents,

v. VAN and TASSELL Erma

Glen wife,

Tassell, and husband

Defendants-Appellants, and Neibaur, Norma B.

Clyde A. Neibaur and wife, Neibaur Mitchell C. and

husband Neibaur, Layne husband Vi Bros., partnership, and

wife, Horsley Defendants-Respon Campbell,

Mitt

dents. and Erma VAN TASSELL

Glen wife, Tassell, husband

Plaintiffs-Appellants,

v. Idaho, N.A., BANK SECURITY

FIRST Neibaur, Neibaur, B. Clyde A. Norma Layne Nei and Vi C. Neibaur

Mitchell Margaret

baur, M. Rex E. Hebdon Bros.,

Hebdon, Horsley partnership, Defendants-Respon Campbell, Mitt

dents. and 12396.

Nos. of Idaho.

Supreme Court 20, 1977.

Sept. Clarke, Kerr, F.

Kenneth Williams & Clarke, Blackfoot, defendants-appel- for lants. Jones,

L. Pocatello, Lamont plaintiff- for respondent Security First Bank of Idaho. Thatcher, Gordon S. of Rigby, Thatcher & Andrus, Rexburg, for defendants-respon- dents Neibaur. Transtrum,

Wallace M. Springs, Soda and Olson, L. Hoggan, Brent Hoggan, & Sor- enson, Logan, Utah, plaintiffs-respon- for dents Hebdon.

DONALDSON,Justice. This case involves the status of prop- real erty in Caribou County. On December 1972, Rex and Hebdon Margaret conveyed property real this action to appellants Glen and Erma Tassell. To sale, gave finance the Hebdons a note in promissory principal $146,000 by purchase- amount of a secured money mortgage. The Van Tassells de- faulted and the Hebdons filed foreclosure court on against action them April 11, 1975. default,

Prior to their the Van Tassells had entered con- into an installment sales tract for the sale of the same real property to Clyde Neibaur. On Norma Idaho, Security Bank of the First transaction, filed an agent escrow in the interpleader and the Neibaurs to to whom its determine responsibility agent would run. as escrow In that same case Van Tassells cross- against the Neibaurs and Nei- claimed Tassells, against the Van baurs cross-claimed claiming each that the other party breached the installment sales contract. one George been com- sells favor of W. Flick in the discovery procedures had After set $265,561.55 pleted, interpleader action in the amount of State of Utah was never set trial. foreclosure action was filed in the records of Caribou trial, were distinct however. cases County recorder. stage proceedings. at this then, its district court own mo- set for trial of day On tion, entered minute action, began be- interpleader discussion 27,1975, in which back-dated the court the Neibaurs counsel tween counsel for stated that both the aim of reach- with the for the Van Tassells fully compromised foreclosure action were settlement. Counsel ing an out-of-court further ordered that settled. into the brought also dis- the Hebdons was preju- with both actions should be dismissed preliminary cussion. The reached dice. that agreement. The record establishes Hebdons, doubting efficacy the was careful to counsel for the Hebdons judg- of the Flick court order view to ac- limit his the foreclosure stipulation lien, attempted ment to obtain relief from to have any He stated not specifically tion. dismissing the district court’s order their agreement reached be- knowledge of the They action. filed a motion foreclosure Tassells the Neibaurs tween the Van and to set designated as motion aside concerning cross-claims in the inter- their reinstate, which specify proce- that did not He stated but pleader action. also Separate did agreement yet inspired was not final. dural rule it. The be- stipulations embodying agreement not court’s dismissal challenge the Neibaurs tween the Van Tassells and together of the with its interpleader action in the inter- regarding cross-claims their at this cross-claims time. between

pleader agreement action and set to aside Hebdons’ motion regard- the Hebdons and the Van Tassells their action and to dismissal of foreclosure were made in ing the foreclosure action have was never apparently it reinstated were stipulations some- open court. Instead, ruled the district court en- upon. vague appears what but their net effect to 28, 1975, tered a new on October have been of the Neibaurs the substitution which ordered the Van Tassells to clear mortgage on Van Tassells obli- ninety Flick’s judgment days, lien within or to Hebdons. The Van Tassells in gation in the alternative to allow the Hebdons $22,500 paid by be consideration for to such judgment and/or the Neibaurs to clear relinquish all their inter- Hebdons were offsetting any expended lien funds so convey est in the real property obligation owed to against any subject only to the Hebdons to the property stipulations. terms of the Tassells under the acquired interest that the Neibaurs had un- was intention to effec- The district court’s In sales der the installment contract. 27,1975. tuate The court May the order separate stipulation, Neibaurs although was dated as stated that the order their cross-claims Van Tassells abandoned 28,1975, was effective of October the order against each other. as 1975. May stipulations were never reduced to On December of the writing. anticipation It was the Supreme filed Court appeal an to the Idaho May that the details of the 27th They also 28th order. the October stipulations would be clarified and commit- time, at this appealed May 27th order they ted to writing day the next against cross-claim hoping to reinstate their To would be to the court. that submitted the Neibaurs in the meeting arranged end a was court- both The Neibaurs filed a motion dismiss morning room of for the judge the district untimely. were alleging that however, appeals, morning, 28th. That same addition, also filed mo- In the Van Tassells stipulations before be reduced could 60(b)(4), (5) of the upon the Van Tas- tions writing, based Idaho Rules of Civil 1975. Their appeal Procedure for relief was not filed from both 27th and October 28th until December however. orders. Idaho Code 13-201 mandates an that recognition In of the fact that a district appeal must be taken within sixty days court loses to hear motions that court order. the date of a final district pertain to subject matters for which an can establish some Unless the Van Tassells appeal filed, has been the Van Tassells filed independent basis for the allowance of their a motion to remand Supreme with the of the 27th it must be Court on June Said dismissed as untimely. granted in an order of temporary remand suggested: Three bases are first 28,1976. dated June The district court was that district court’s order given temporary jurisdiction for the sole second, case, 28th reopened the purpose of hearing the Van Tassells’ Rule aside reinstate Hebdons’ motion to set 60(b) motions. Under the terms of the or- time, third, tolled der, in the event 27th district court order of was void. motions, denied the the Van Tassells were legiti None theories can suggested relieved of the necessity perfecting appeal. mize the Van Tassells’ appeal. The order of provided remand 28th The district court order of October the record would be augmented untimely appeal can not from a to reflect validate an the action of the district court in 13-201 demands denying 60(b) prior order. Idaho Code motions and § that an ap- peal per- from orders be the denial that all from final appeals could be heard on the merits without The order of days. fected within necessity sixty of perfecting another appeal. the re- 27th was final in that it dismissed By ap- not spective prejudice. actions with 24, Prior to this 1976, time on May statutory time pealing that order within Van Tassells filed another complaint in the any right period, abdicated the Van Tassells district court contending among other timely appeal A must appeal that order. things that the district court orders May of final even judgment be taken that is 27th and October 28th were void. post-judgment aby it is followed August 24, 1976, On case, district order. In the present dismissed the Van 60(b) Tassells’ Rule mo- an additional evidently thought court tions. The district court also dismissed the prior its necessary order was to effectuate Van Tassells’ complaint 24th, of con- entered order. It therefore tending that the exact same matter was itself, is, appeala- 28th order. That order Supreme before the Court in the appeals ble,1 permit but it does not attack on the from the district court orders of May 27th judgment is underlying judgment if that and October 28th and that the district court 110.- final. 9 Practice Moore’s Federal § did not therefore have to con- (2d 1975). ed. 14[1] sider the matter. The Van appeal contend The Van Tassells further this dismissal. appeal This has been consol- set aside and idated with the Van Hebdons’ motion appeals Tassells’ time. 27, appeal reinstate district court orders of tolled the 1975 28, and October in The to be answered re- question first which Idaho procedural The solving mesh that has is under evolved in this matter this Hebdons case can be simplified. The Van Tas- Rule of Procedure Civil sells are attempting to Hebdons did not reinstate their cross- The brought their motion. claim in the interpleader action that It can be specify a rule in their motion. dismissed 59(e) in the district court’s order motion classified either as an I.R.C.P. judgment preclude appeal 1. The ultimately final rule does not can be taken from them. 9 post-judgment They (2d review of orders. are Moore’s Federal Practice ed. § 110.14[1] finality, 1975). themselves to the test of but an

603 judgment to set made a motion aside 60(b) motion. Which motion or an I.R.C.P. significant in fact because it a Rule days judgment within of the as ten on motions have respective effect 60(b) we believe to be Given what motion. for relief judgment. of a Motion finality rules, we respective of the the total context not 60(b) finality Rule does affect under Hebdons’ motion to set aside will treat hence not toll the of a does Fo- 59(e) as a motion. and reinstate Rule judgment. from the final appeal time Davis, (1st 1961). man 292 85 v. F.2d Cir. 59(e) motion, however, destroy A Rule does Heb- the effect then is question finality purposes of a of the the dismissal don’s motion time appeal, and the full com- interpleader action. mences to run anew from the of an restoring order disposing set aside and The Hebdons’ motion to 13-201; finality. I.C. 7 Moore’s Federal § 59(e) motion a Rule reinstate considered as (2d 1975). Practice 60.29 ed. 27,1975 did time on toll the federal rules applying Cases identical au time on that it tolled the but thorize the under judgments vacation fore- affected the so far as it only order States, Klapprott v. United both rules. 335 order of court’s closure action. 69 93 L.Ed. 266 U.S. S.Ct. May 27,1975 dismissed both foreclosure Inc., Vollstedt’s, Patapoff v. (1949); 1959); Kelly v. Delaware (9th F.2d 863 Cir. times, indicates, however, record that at all Commission, River Joint (3rd F.2d 93 even the district court’s denied, cert. 1951), Cir. U.S. of the two identities separate (1951); 96 L.Ed. 614 6A Moore’s S.Ct. entered preserved. cases were Federal Practice § 59.12[1] stipulations, respective separate into believe, however, purposes We mo- separate pleadings and counsels filed respective rules dictate resort cases, tions in the and the district should be made to 59 if the time identities of the itself maintained the dual expired limitation for such relief has not was two No for consolidation cases. motion when the is motion served. the proceed- made of by any parties the Rule 59 the designed was to allow trial 42(a) to Rule of ings pursuant order and no court either on its own initiative or on has been the of Procedure Idaho Rules Civil by motion the errors correct both the Given issued cases. consolidating the of fact and that in its law had occurred cases, post-trial separate the identities of proceedings. thereby a mecha- provided It the case in which only motions would affect end, appeal. nism to circumvent To this it motion Hebdons’ filed. were provided was time statutory that the allot- action made the foreclosure to reinstate appeal ted for be suspended should until the interpleader no the of the finality effect on trial court entered a on the Rule 59 ruling action. motion. The time for filing limitation Rule 59 set days motion was at ten from is final contention The Van Tassells’ the judgment. of This time limita- 27th was void May that the order of tion struck a the balance between need for is judgment that a void appeal an from finality utility permitting the of self- the expiration it after timely even if occurs 60(b) correction of error. Rule allowed a appeals. allowed for statutory period of the period longer seeking judg- for relief from this authority proposition No is for cited ment, but it did not affect of finality Putting aside can find none. we judgment. The Hebdons’ motion to set 1975 order May issue of whether 27, 1975, May 27, aside order of and rein- void, void was we hold that their state foreclosure action was filed on making a necessity does not affect 3, that it June 1975 so was within time timely perfect A cannot 59(e) appeal. party Rule motion. We timely allowed untimely grounds on the any appeal are unable to find case which construed otherwise 604 appealed from is void.2 ceived an order of temporary remand to (2d

7 Moore’s Federal Practice ed. § allow 60.25[1] the district court their entertain 60(b) Rule motion. The temporary order of 28, 1976, remand dated June gave the dis- the Van Since Tassells cannot establish trict court for the sole purpose any basis validating tardy appeal hearing 60(b) Van Tassells’ Rule mo- 27, May of the 1975 we dismiss their tions. way In no can it validate other any as appeal untimely. The Neibaurs’ motion appeal Once an taken from to dismiss was correctly granted. court, district the district court is divested On May while this ap of jurisdiction, except to take in aid action peal pending, was the Van filed a Tassells Club, the appeal. Coeur d'Alene Turf complaint alleging 324, Cogswell, Inc. v. 93 Idaho 461 P.2d 107 27, May 28, 1975 order and the October (1969); 7 Moore’s Federal Practice 60.- § 1975 were void. The district court 1975); Am.Jur.2d, Appeal 4 30[2] dismissed contending that action 352. Error The district proper- § court exact same Supreme matter was before the ly ruled that the Van complaint Tassells’ in the appeals Court from the district court claim; 24, 1976 did not state a valid 27, orders 28, err therefore did not We agree with the district court. dismissing the action. Validation of the complaint Van Tassells only proce- action before us that has 24, of May 1976 would only produce repeti- dural appeal merit Tassells’ from litigation. tive The principal contention of 28, the district court’s order of October complaint, of May orders appeal 1975. That was filed within void, 1975 and October 1975 were has by statutory period limitations set I.C. been raised in the Van Tassells’ We will 13-201. therefore consider its orders, those which appeal pending was substance. their com- initiated plaint. issue of whether the willWe also consider the related void, and October 1975 orders were as subject of the validity of the well peripheral as issues of com- order. have already We held that the Van was plaint, also raised in the Van Tassells’ cannot 60(b) Rule relief. together dismissal of Hebdons, with how its cross-claims. The the Van their Rule When Tassells filed ever, filed, what we motion, have found to be a 60(b) which motion filed con- 59(e) motion, seeking relief with their temporaneously 27, 27,1975 orders, May order in so far 1975 and October 1975 as it dismissed May their apparently recognized that once an foreclosure That motion has they filed, is loses yet upon. sub- to be ruled We to the remand ject matter over the suit until district purpose, court this but in order appellate is by the case remanded to it the to avoid litigation additional we believe and re- sought court. that some comments are in order.3 pro- will Idaho Rules of Procedure do This denial be 2. The Civil considered in footnote against judgment. opinion. One of vide relief void the this 60(b) judgment bases Rule relief is judgment 60(b) the that was void. A Rule already timely It has been stated mo- that predicated judgment on a void can be 59(e) judg- tion under Rule to alter or amend time,” within a made “reasonable which ac- ment, motion, 60(b) suspends unlike a Rule the cording authority generally to one “means no finality judgment tolls time for the limit.” 7 time Moore’s Federal Practice 60.- denied, § taking appeal. the an If the motion is (2d 1975). ed. The Van did file a restored; Tassells finality judgment granted, 25[2] is if the 60(b) argu- part motion based in on the judgment a new case final is entered. In either the was void. ment 1975 order appeal, is time the to and the by motion was That denied the district court. commences to nm from the the was never parties between agreement erred in en district court its erred in court realized. The district 1975 and October tering both the As the this failure. to to atone for instances, attempt 1975 orders.4 In both order, the establishes 28th record the October stipulations of beyond court went court, by was initiated that it regard record that in parties. The indicates its unaware of being totally parties out order, only 27th the barest terms. by been reached agreement lines an were to finalize parties. parties this is that the The net result of In following day. their foreclo- agreement are entitled have Hebdons was for that there action remand regard to the October 28th sure reinstated. We the Neibaurs purpose. rights Whatever agreement no whatsoever. property have in the sub- and Van Tassells A between stipulation agreement in will be determined ject to foreclosure court. before the respecting counsel matters that suit. upon parties’ both validity predicated Its No costs allowed. stip- agreement attempted to its terms. An when it is ulation is ineffective clear J., BEEBE, McFADDEN, District C. that the never assented record SCOGGIN, Judge, Judge, District Beach, Long to it. Palmer v. Cal.2d retired, concur. (1948); Stipula- 199 P.2d 952 73 Am.Jur.2d (2d 1974). ed. tions The record of § BAKES, Justice, concurring specially: proceedings before district court re- opinion that agree majority I with the specting 27th order reveals entering the district erred in both gave counsel never his uncon- Hebdons’ 28, 1975, ditional assent to the dismissal of the Heb- orders, in and that the by When asked dons’ foreclosure action. Tassells had as- which Neibaurs and Van agreed the court whether he the terms their each other serted cross-claims action, he compromise the foreclosure upon dismissed incor- erroneously stated: assumption matter had been rect that the it, general “As I understand this is the further fully compromised. The Court outline, although specific, it is somewhat the Neibaurs rights holds that “whatever general of the matters to be outline property sub- have in the Tassells morning settled tomorrow at 10:00 A.M. will in be determined ject to foreclosure understanding the details with by filed foreclosure action [the will at that time I will be submitted Court suit.” Hebdons which the reinstates] ” * * * stipulate to the matter. Thus, Ante at 283. it seems that be purport- Because of the intervention of the Tassells will able to Neibaurs and Van lien, only anticipated ed final action not assert that foreclosure error is Practice constituted another Federal matter. the court’s order. 6A Moore’s denying not district court did err in 59.15[4] 60(b)(4) Tassells’ motions. each of 4. The Van have contended in We also at this the district note time appeals and relief in their motion for denying the Van Tassells’ court did not err 60(b)(4) May 27, 1975 and under Rule that the par- 60(b)(5) provides That rule that a motion. void. Those orders 1975 orders are ty judgments “it is can obtain relief In to be are not void. order for longer equitable that should no void, generally jurisdiction- must be some there 60(b)(5) prospective application”. Rule have authority al in the to enter defect court’s designed provide relief from orders such as to judgment, per- either the court lacks because prospective application. injunction have jurisdic- sonal or because it lacks (2d ed. 60.26[4] 7 Moore’s Federal Practice § subject matter of the suit. tion over the 1975). challenged present in the orders (2d ed. Moore’s Federal Practice 60.25[2] application. prospective did case not have bar, 1975). the case In at inapplicable. The rule therefore Moore’s jurisdic- personam both in tion, matter Federal Practice § 60.26[4] judgments Whether so its were valid. their interest in the also property, but

claims one another under so- compromise

called and settlement which

prompted the trial court dismiss their to However,

claims with prejudice. since it is

fairly obvious from the record there

may never been meeting have compromise

minds on that and settlement

agreement, will of necessity go

have to back claims underlying positions

behind their various

explain what that compromise and settle-

ment was Therefore, all about. practi- as a matter,

cal right are they back where

started, going and this whole matter is

have to be relitigated in the Hebdon fore-

closure action. P.2d 284 Jones,

Milford JONES and Hazel

Plaintiffs-Respondents,

v. Watson,

Albert WATSON Madeline

Defendants-Appellants.

No. 12176.

Supreme Court of Idaho.

Oct.

Case Details

Case Name: First Security Bank of Idaho National Ass'n v. Neibaur

Court Name: Idaho Supreme Court

Date Published: Sep 20, 1977

Citation: 570 P.2d 276

Docket Number: 12150, 12151 and 12396

Court Abbreviation: Idaho