Radioear Corporation v. Crouse

tape oral statements were and the recorded

inadmissible. I remand

For all of these reasons would

for a new trial. J.,

McQUADE, C. concurs. CORPORATION, corporation,

RADIOEAR Plaintiff-Respondent, CROUSE, Hearing

David F. dba Boise Aid Defendant-Appellant. Center,

No. 11743.

Supreme Court of Idaho.

March

Sept. 18, 1975.

Rehearing April 15, Denied Corporation

Radioear served Crouse a set of interrogatories request and a for admissions which were answered. Crouse’s former attorney moved to with- draw as counsel of record and this motion April 5, heard May 9, 1973. On magistrate signed an pro order nunc allowing tunc attorney of record to April 5, withdraw as April 1973. On Corporation Radioear a notice served by mail ap- him Crouse “to requesting pear person in appoint or to another attor- Heiser, Peter Jr., E. of Kidwell & Heis- ney to you”. act for The notice informed er, Boise, defendant-appellant. for you Crouse appoint fail to an- “[i]f Chalfant, Frank Boise, Jr., E. plain- for other attorney, appear to de- tiff-respondent. fend give undersigned Notice of doing twenty within receipt McFADDEN, Justice. Notice, of this the Plaintiff will take Corporation ment, Radioear this ac- prayed instituted Complaint, magistrate’s tion in against against you court David F. by default” to I.C. § Crouse, doing Hearing business as Boise appoint 3-206.1 Crouse did not a new at- Center, Aid seeking judgment on a debt al- torney, nor did the twen- he within legedly by owed Crouse. After Crouse an- ty day period. swered, Corporation Radioear moved for a Corporation Radioear moved for a de judgment default and this motion was judgment 26, 1973; April on the at granted. Crouse moved to set aside the torney for Corporation Radioear submitted default this motion was asserting sworn affidavit that Crouse granted. also Crouse moved to be allowed appeared had not the sum- answered against to file counterclaim Radioear complaint mons and , served him. Cit Corporation, granted. was also Ra- which ing appear, magis Crouse’s failure to Corporation appealed dioear to the district against trate him entered default setting aside the de- court from the orders 9,May 1973. Crouse was served permitting Crouse to day application with a three notice of the The district court re- file a counterclaim. (I.R.C.P. default appealed to versed both orders and Crouse served 55(b)(2)), nor was Crouse later the district court’s this court. reverse judgment (I.R. notice of the magistrate’s both or- order and reinstate 77(d)).2 C.P. ders. presents tangled pro- Crouse

This case web became aware of the default steps during must unraveled. a preliminary cedural search title Corporation property. this action on his real Radioear instituted Crouse retained his present alleging attorney represent Crouse him in this in the attorney petitioned Radioear a debt amount action and his owed attorney magistrate answered to set aside the default $976.40. Corpora- denying August owed Radioear Pursuant to I.C. that he complaint. prayed deposited funds with the tion the sum Repealed, SX.1975, infra, 2. See n. ch. 242 1. All refer enees to the Idaho Rules of Civil Procedure amendments, are to the rules to the 1975 unless otherwise noted. court to terclaim. The district reversed both obtained a appealed release orders and ment, Crouse thus was able to remove property cloud the title to his real cre- Setting aside ated lien and he sold the legal a matter committed to sound discre property. tion of the trial court and such decision motion, Following hearing on the the appeal in the ab will not be disturbed on magistrate ordered the default Fisher v. sence of an abuse of discretion. opinion, set aside. In his memorandum the 341, Bunker Hill 96 Idaho magistrate procedural the following cited Savings Loan and Western irregularities: Smith, 94, P. 1084 Co. 12 Idaho “(1) Appoint to Pursu- Attorney, Notice (1906). de- ant to was mailed to I.C. complaint; had Crouse answered 6, 1973, April ac- fendant while the thus, properly to for be a default Allowing tual Order Withdrawal case, pursuant to it must be taken signed May 9, was not until rule, Under 55(b)(2). I.R.C.P. “[i]f (the judgment was date default judgment by de- party against whom entered), also and never served appeared sought fault is has

“defendant. ** * written he be served with shall “(2) Defendant was never served with at application for notice De- 3-day to Take Notice of Intent hearing three to the (3) least 55(b)(2). to I.R.C.P. No 55(b)(2). application”. I.R.C.P. application notice of default “(3) Affidavit, Judg- The and Order also have was Crouse should served. erroneously were of Default de- entry of the notice of the served with alleged fail- upon based defendant’s court, judgment by the clerk of answer, appear ure to and rather 77(d).3 not done. I.R.C.P. which was appoint an- than his failure to may be either notice give to The failure attorney appear person, attor- submitted due the affidavit 3-206; pursuant to I.C. nor was § he ney Corporation, in for Radioear pursuant to he notice served with failed to had alleged that Crouse * * 77(d). Rule *.” actually failed If had answer. Crouse have been appear, neither notice would entry order set- Subsequent of the to the required. 77(d).4 judgment, I.R.C.P. ting aside default plead- amend moved be allowed to with judgment entered A default against Ra- adding ings by a counterclaim day notice voida requisite out three grant- Corporation. magistrate The dioear obtained. irregularly ble it has been ed this motion. Mader, P.2d 605 Idaho Acker v. Miller, Federal See, Wright and (1971). Corporation appealed to Radioear Procedure; Civil Practice magistrate’s memo- from the district court cases, appropriate most (1973). In setting aside the order opinion and randum a voidable relief from method obtain the order from default to vacate motion judgment would coun- allow granting motion Crouse’s mailing. of the in the docket make note 77(d). orders or Notice 3. “Rule entry Immediately an ments. — the district clerk of order Rules Idaho By entry amendments the 1975 a notice of serve shall entry of Procedure, of the notice provided of Civil rule 5 for in in the manner mail every party given “to thereby every party affected 77(d). thereby”. I.R.C.P. appear, affected shall failure to in default for not judgment pursuant 55(c) State I.R.C.P. ex Symms rel. v. V-1 Oil Company, However, 60(b)(1), (6).6 (3), Crouse did Idaho 490 P.2d 323 Moun application not have notice of tain Implement States Co. Sharp, default judgment nor did have notice of he 459 P.2d 1013 (1969) (wherein of the he default this court held that 5-905 was not day comply completely was unable to limit abrogated by I.R.C.P. 60(b)); 60(b)(1), (2), (3) Lowe, I.R.C.P. Lowe v. 92 Idaho filing judg a motion vacate the default Wylie, Rich v. 84 Idaho see, are (1962). Wright But Mill & presented er, Procedure, with a situation where Federal Practice given required the two notices. 2864, 2866, As soon as Crouse became aware Corporation Radioear submits judgment, sought Crouse, by satisfying judgment by the de- judgment. Upon record, mag the positing funds with the clerk of the court by istrate did set not abuse his discretion 10-1115,9 to I.C. an elec- § ting judgment.7 aside a voidable default tion of precluded remedies and is Mader, from See, supra; 5-905.8 Acker v. § aside, provided by law, (1) 55(c). Betting judg- set year as within one 5. “Rule aside default judgment entered, jüdgment good may after was a ment. —For cause shown the court against party per- and, judg- obtained sonally a who was not set aside an of if a complaint by may served with entered, summons ment default has been like- any in in either the state of Idaho or wise set 60(b).” it aside in rule accordance with jurisdiction, and who has failed to judgment in said or to set aside a 60(b). Mistakes, inadvertence, 6. Rule ex- fraud the court.” neglect, newly evidence, cusable discovered By 7. grounds the amendments to the Idaho Rules fraud, judgment on from relief Procedure, filing a mo- of the time for Civil order.—On motion such terms as magistrate’s court, in tion to vacate under just, party may are the court relieve a or 60(b)(1), (2), (3) (6), has legal representative I.R.C.P. judg- his from a final changed days months. I. from 10 to six ment, order, proceeding following or for the 60(b). R.O.P. (1) mistake, inadvertence, surprise, reasons: neglect; (2) newly or excusable discovered S.L.1975, Repealed, § ch. by diligence evidence which due could not procedure satis- have been in Additional discovered time to move for a 9. “10-1115. money. — n judgment Disposition 59(b) ; (3) new trial under rule fraud — faction of (whether procedure for the heretofore denominated intrinsic or As a further extrinsic), misrepresentation, judgment, in to the satis- or other mis- a addition by judgment provided party; (4) judg- law or an as conduct of adverse the a faction of void; (5) any person, against judgment court, exists whom ment is has been rule of money satisfied, released, discharged, judgment or who or or a for the a any judgment upon any property which which it is based has been in is interested may pay vacated, judgment lien, the amount reversed or otherwise is is a or it no such longer equitable clerk of the to the on such due rendered, any prospective application; (6) was have such or court in which opera- thereupon justifying release other reason relief from the shall and such clerk judgment upon records of tion of the The motion shall be such judg- time, county such in which made within a reasonable and for rea- and the said court * * (1), (2), (3) (6) rendered; *. Unless sons not more than ment was court, (6) was in six district and not which such months a of the court money paid magistrates more than ten turns over sooner rendered person deter- to the division of the district court after the to him on thereto, proceeding ment, order, by or to be entitled or was entered such court mined county (b) to the the same over taken. A motion under this subdivision turn he shall * * finality county coun- *. Said does not affect the of a of his treasurer ty * * * money pay suspend operation. said time rule at This treasurer shall power determined shall be limit enter- does not of a over independent order of tain an action relieve a thereto entitled judgment, proceeding, rendered.” was from a order or in which such Corpo- of I.C. 10-1115 the enactment judgment. Radioear attacking § ato defend- that, at- were available desired to two “remedies” ration asserts if Crouse as dilemma such obtained ant confronted judgment, tack he should have Crouse’s; have satisfied stay 11-101.10 he could of execution I.C. § 10-1113, 1114, repealed (I.C. S.L. merit.11 argument is without This sought or he have 1) ch. could § as question serious to whether have a (I.C. 11-101). stay Those of execution § ap of election of remedies the doctrine inconsistent, but, may be cer- “remedies” bar; was plicable the case at tainly, they not have assisted this would seeking appellant, seeking to who was remove right or to seeking enforce a remedial from his title caused cloud wrong (except inasmuch redress a However, enacting lien. I.C. § right to a trial seeking to enforce his procedure legislature created a claim). Black’s Law the merits of the essentially hybrid between the Dobbs, ed., Dictionary p. 4th procedures. two alternative In our Remedies, (1973). See 1.1 The Law of statute, legislature, by had enacting Mattson, 40 Idaho Dahlquist v. guaranteeing pay- full mind creditor However, purposes for the his yet awarding ment of funds and de we will assume without this discussion opportunity judgment debtor an to clear ciding of the election doctrine property. the title Under I.C. 10- applicable at bar. to the case remedies is 1115, may the judgment debtor obtain a doc defined the This court has judgment by paying satisfaction of to trine : amount of the right is the of a ment, of remedies removing “Election thereby (which the lien action one of two party in an to choose blocking this case appel- the sale of rights, co-existing or more remedial ; lant’s property) (or county the clerk rights out of same such arise where treasurer) money “pay[s] holds the limited facts; generally the term is money but said over to the who shall be party a a inconsist- to choice between determined to entitled thereto the or- ** rights, one the assertion of ent remedial der of the court 10-1115. repu- to a being necessarily repugnant or The depositing of funds with the clerk un- Co., Largilliere statutory procedure diation of the other.” der this is not incon- Kunz, 772, 767, 244 right Bankers v. 41 Idaho sistent with an assertion of the to 404, (1925). P. 405 to judgment. move vacate a We cannot say Crouse, by that availing himself of this prerequisite of the elements is a One procedure, not elected to contest the de- application of to the doctrine is that judgment. remedies available Boise be inconsistent. Development City, magistrate’s vacating Co. v. Boise 30 The order the de- Collins, 675, Eliott (1917); 167 1032 v. is affirmed. Radioear Cor- 266, that, (1898). poration argue 6 Idaho 55 P. 301 Prior does not if the default Time which execution or a within motion for from a or or- “11-101. may Stay pursuant pending disposition mo- der made to section 5-905.” issue — * tions. —* *. In. its discretion and on conditions 11. The record does not issue indicate this security parties magistrate’s adverse or was raised in the court or may stay proper, appeal pre- as are execu- district “Issues of, proceeding enforce, tion a sented to trial court be considered will not appeal.” 236, pending disposition Baugh, of motion Dunn v. 95 Idaho 10-602, pursuant 238, 463, (1973). a new trial made to section 465 Thus we notwithstanding argument verdict as a basis for cannot consider sustaining ruling. to sections 10-224 and the district court’s 506 aside, Yankwich, 1, 6, should not 237

judgment is set 38 Cal.2d P.2d 39 A.L.R. filing ; 2d 191 pleadings Ryan Engelke, v. 285 S.W. (1951) allowed amend therefore, ; counterclaim; Equip (Mo.App.1955) 2d 6 Beacon Home Paulsen, 468, Ill.App. leave the court ment Co. v. 99 granting order The (1951); is also N.E.2d v. a counterclaim affirmed. Webb Const. Co. file Co., 299, magis- reversing (1938). both Crane court’s order Ariz. 80 P.2d 698 district Miller, appel- also, Tong See trate’s orders reversed. Costs v. 231 Mich. Harmon & lant. N.W. v. Griffis Crane, 108 Bates (La.App.1959); So.2d Nichols, Iowa 274 N.W. BAKES, J., J., con- McQUADE, C. (1937). release, The es acquiescence, terms cur. toppel, variously waiver and mootness have applied consequences of volun SHEPARD, (dissenting). Justice tary payment. Crane See Webb Const. Co. v. Baker, supra; Chaney v. Ill. by the ma- The ultimate decision reached Scott, 218 N.E. 14 Scott v. my compels case dis- jority La. Reserve So.2d question relatively simple The sent. Frankfather, Ins. 123 Colo. Co. v. Life litigant presented case whether pays and voluntarily satisfies may have that thereafter coupled The action of the lower court holds majority The aside and set vacated. majority opinion’s with affirmance on disagree. and I affirmative portion the case demonstrate appellant at the time of accepted deter- test generally The possessed a sound compliance payment or mining whether attacking basis for otherwise par- off the defeated cuts 60(b); See I.R.C.P. Johnson pro- right appeal or initiate other ty’s McIntyre, 80 Idaho judgment is whether ceedings to attack the Garrett, (1958); Nielson v. Idaho involun- voluntary performance Rathbun, Davis v. 153-191, 4(a). 3.(b), tary. 39 A.L.R.2d Idaho 321 P.2d 609 (1958). and agreement There is substantial payment jurisdictions that or satis- action, Despite this available course of following execution faction of appellant pay here chose to first and satis- does not bar voluntary and is not fy then it seek to set See granting of relief from aside. I would conclude that such conduct Idaho Day, v. Falls Creek Timber Co. subsequent voluntary and waived County v. 228 P. Power Crane, supra; relief. Harmon & v. Griffis Ida- Evans Bros. Land Livestock & Baehr, Muckey v. 158 Kan. (1926); Backman ho and, majority of (1944). The herein 270 P. Douglas, course, appellant appellant assert rationale 6. The A.L.R.2d advantage satisfy found it appears rule for the thereby discharge the levy threat of imminent under the lien cloud on which constituted a re- duress therefore and sale under then desired property title to real which he inas However, where garded as coerced. under agree that payment I cannot to sell. sat- compliance with instant compul- constituted the circumstances the absence is in of isfaction legal such coercion process of sion voluntary com- execution, it is deemed which, law as a matter of duress however, split au- is, pliance. There that volun- the rule out of take case Reitano question. See thority prevents language later I tary payment nothing ment. find indicating it that was intended statute attack thereon. codifi- a mere clarification and more than Likewise, agree major- I cannot replaced and it of the statutes that cation ity opinion that 10-1115 creates I.C. § majority cites merely note that the hybrid type statutory animal some contrary authority or rationale for no permits a defeated volun- conclusion. re- tarily pay thereof and simultane-

ceive the benefits DONALDSON, J., concurs. ously that judg- or thereafter seek attack

Case Details

Case Name: Radioear Corporation v. Crouse

Court Name: Idaho Supreme Court

Date Published: Mar 16, 1976

Citation: 547 P.2d 546

Docket Number: 11743

Court Abbreviation: Idaho