231 P. 713 | Idaho | 1924
Lead Opinion
This is an appeal from a judgment and from an order overruling a motion for new trial. E.F. Walton, the respondent, filed an information in the district court of Twin Falls county against D.F. Clark, the appellant, a member of the board of trustees of Independent School District No. 1, of Twin Falls county, charging him with neglect and refusal to perform the duties pertaining to his office, and praying that appellant be removed from his office and that respondent, as informer, be awarded judgment against appellant in the sum of $500. At the same time respondent filed a similar information against both W.W. Parish and G.W. Bice, two other members of the same board of trustees. The three causes were consolidated for trial, a judgment of ouster entered against each of the three trustees, and judgment for $500 was rendered in favor of respondent against each of the three trustees.
Respondent moved to dismiss the appeal from the judgment on the ground and for the reason that the transcript on appeal was not filed in this court within ninety days *91 after the appeal was perfected, as provided by Rule 26. The judgment was filed on August 30, 1921; the notice of appeal was filed on November 26, 1921; and the undertaking was filed on November 30, 1921. The transcript on appeal was filed in this court on May 11, 1922, more than ninety days after the appeal was perfected. On April 10, 1922, which was more than ninety days after the appeal was perfected, respondent moved to dismiss the appeal from the judgment. The motion was not then passed on, and is now urged. The notice of motion for new trial was filed August 31, 1921, and the motion was denied November 10, 1922.
In resisting the motion to dismiss the appeal from the judgment, appellant filed herein certain affidavits in which it is stated, as a reason for the failure to have the transcript lodged in this court within ninety days after perfecting the appeal, that appellant was relying on an oral understanding between counsel that, since it was then expected that the decision of this court in the case of Walton v. Channel,
The showing made by appellant is not a showing of diligence, but an excuse for a failure to act. No action was taken to cause the transcript to be prepared until after the motion to dismiss was made. The order of the trial judge for the preparation of the reporter's transcript was not made until April 1, 1922, two months after the transcript should have been lodged in this court. The failure to comply with the rules is not chargeable to the clerk or the reporter of the trial court, as has been frequently the case where appeals have been dismissed because of a failure to file the transcript in time. If there is a justification for Rule 26, it would seem to be peculiarly applicable to a case like this, where no steps were taken by appellant to secure a transcript until after the expiration of the time for filing the transcript in this court, and until after the filing of a motion to dismiss the appeal. (Blumauer-Frank Drug Co. v. First Nat. Bank,
Appellant insists that respondent has waived his right to insist upon a dismissal of the appeal because of the numerous stipulations between the parties extending the time to file briefs, by not objecting to a settlement of the reporter's transcript after the ninety-day period, and because of orders by members of this court extending the time to lodge the transcript on appeal in this court. It was held in Lucas v.Nampa,
The pendency of a motion for a new trial does not extend the time within which to file a transcript on appeal from the judgment. (Miller v. Prout,
Anticipating the action of the court on the motion to dismiss the appeal from the judgment, counsel for appellant insists that certain of the questions presented by them, relating to the merits of the action, should be considered on the appeal from the order overruling the motion for a new trial, appellant having asked for a new trial on the grounds that the "decision of the court is against law" and the insufficiency of the evidence. Respondent, however, calls attention to the fact that appellant has nowhere specified as error the action of the trial court in overruling the motion for new trial, and insists that the judgment must therefore be affirmed. Appellant makes twenty-five assignments of error, none of which refer in any manner to the action of the trial court in overruling the motion for new trial; and at no place in appellant's brief is it specifically stated that the court erred in denying a new trial.
Rule 42, among other things, provides: "The brief of the appellant shall also contain a distinct enumeration of the several errors relied on." In a large number of decisions, including Morton Realty Co. v. Big Bend Irr. Min. Co., *94
Appellant insists that under Smith v. Wallace National Bank,
"Moreover, these appellants are in no position to urge the question of bona fide purchase upon this appeal; first, because they have made no assignment of error raising the question in this court. . . . ."
See, also, Perrin v. Union Pacific R. Co.,
Not desiring, however, to place what might be thought to be a too technical construction upon the rule stated in Smith v.Wallace Nat. Bank, supra, we have decided to consider the appeal from the order denying a new trial. In so doing we will consider only the two grounds upon which the motion was based. The first ground, that the evidence is insufficient to sustain the decision, cannot be considered, because the notice of motion for new trial specifies no particulars in which the evidence is insufficient, nor does the record show that notice of such specification was filed and served within the time provided by C. S., sec. 6890, or at all.
Counsel for appellant contends that under the assignment that the decision is against law, the court must consider: *95
First, does the complaint state a cause of action? As has been repeatedly held by this court, that question cannot be considered on a motion for new trial. (Naylor v. Lewiston R.Co.,
Second, has the court found upon all the material issues in the case? The contention of the appellant is that the court failed to find that the alleged omissions in the performance of defendant's duties occurred purposely, intentionally or consciously. The complaint does not allege that the neglect charged occurred purposely, intentionally or consciously, so that no material issue on these points was raised. Such a finding would go beyond the allegations of the complaint. Under the authorities above cited, the defects of the complaint in this respect, if they existed, are not reviewable upon appeal from an order denying a new trial.
Third, do the conclusions of law follow from the facts found by the court? And fourth, is the judgment of the court sustained by and does it necessarily follow the complaint, findings of fact and the conclusions of law? These questions could have been raised on an appeal from the judgment, but not upon a motion for new trial, under the assignment that the decision is against law. A new trial is a re-examination of an issue of fact. (C. S., sec. 6887.) That the court may have erred in applying the law to the facts as found is no ground for re-examining the facts; but the remedy is by appeal from the judgment. (Caldwell v. Wells,
Motion to dismiss the appeal from the judgment granted.
Order denying motion for new trial affirmed.
Costs to respondent.
McCarthy, C.J., and Brinck, District Judge, concur. *96
Dissenting Opinion
This is a proceeding of ouster, brought under C. S., sec. 8684, to remove appellant D.F. Clark from the office of trustee of independent school district No. 1, which includes the city of Twin Falls, and to recover the $500 penalty provided for by the statute.
The charging part of the information is "that the defendant has neglected and refused to perform the official duties pertaining to the office held by him in that the board of trustees of said school district including the defendant neglected and refused," etc.; and then follow thirty-eight counts, each enumerating specific acts of neglect of official duty as such member of the board of trustees of this district.
A general and special demurrer was interposed to the information, the general demurrer being that neither of said counts stated a cause of action, and upon the demurrer being overruled, defendant, respondent herein, answered, denying specifically the allegations in the several counts. The action was tried to the court and it made findings of fact and conclusions of law to the effect that appellant had refused and neglected his official duty, as charged in a number of the counts, and that appellant should be removed from office and pay respondent, the informer, $500, the penalty fixed by the statute.
The same charges were made against W.W. Parish and G.W. Bice, who were also members of the same school board during the same time, and a like judgment was rendered against each of them. By stipulation the actions were consolidated for the purpose of trial in the court below and only one hearing was had. After judgment the parties severally moved for a new trial, which was denied, and all the parties to the record agreed that the actions should be consolidated for the purpose of an appeal from the judgment and also from the order denying appellants' respective motions for a new trial.
The record on appeal from the judgment was not filed in this court within the time required by law. Appellants make a showing that such delay was due to an understanding *97
with counsel for respondent that the appeal might be delayed, awaiting the judgment of this court in the case of Walton v.Channel et al.,
The only assignment which it is necessary to consider is "that the decision of the court is against law." It will be observed that the charge against appellants is that they, as individuals, each severally "neglected and refused to perform the official duties pertaining to the office held by him in that the board of trustees of such school district, including the defendant, neglected and refused," etc., to perform the official acts enumerated in the 38 counts attempted to be charged in the information.
Each of these omissions to act complained of relates to official acts that could only be performed by the board of trustees acting as an official corporate entity. Not a single act or omission charged could have been performed by any one of these appellants acting individually or in concert with each other, unless they were joined in such action by the remaining three members of this official board. Therefore, this record presents the question, can a member of an official board, consisting of six members, be charged with having refused or neglected to perform an official duty pertaining to his office, where the refusal or neglect pertains to an act or acts that can only be done by the board of which he is a member, unless the information contains some appropriate allegation which shows, or tends to show, that such member was derelict in his duty in such manner, or in *98 some way that contributed to the failure of the board to take the official action required? It cannot be contended that any one or more members of an official board of this character can be guilty of violating the provisions of C. S., sec. 8684, and thereby be subject to removal from office and the penalty of $500, unless he has in some manner contributed to the neglect or refusal of the official body of which he is a member to perform the official duties of such board.
In the instant case only three of the six members of the board are charged with a refusal and neglect of duty. But it is plain that they cannot be guilty of a dereliction of duty unless they in some manner have contributed to the failure of the board to act. If the charge, as in the Channel case,supra, was against all the members constituting the board, it would state at least a prima facie case. I do not think that the penalty prescribed by this section of the statute can be evaded by an individual member of an official board, because such official action requires a majority of its number, or of a legal quorum of such board to act, and where all the members are properly charged with such failure or neglect, it may constitute a sufficient charge against each of them severally. But where less than a legal majority are charged for the failure of the board, in order to state a cause of action against such member, or any one, or all, who may have been ready and willing to act but could not do so by reason of not having any power to act, the information, in order to state a cause of action, should allege facts tending to show that the refusal and neglect of such members prevented or tended to prevent the board from acting, and in the absence of such allegation the information fails to state a cause of action.
While proceedings under this statute are of a civil character, in the nature of quo warranto, to remove from office those who neglect to perform their official duty, it is termed a quasi-penal statute, and is summary in its operation. The right of a jury trial being denied, it is, in effect, an impeachment of an official, for it removes him from *99
office and penalizes him in the sum mentioned by the statute. While it is not required to show that the official acted with an evil or corrupt intent, it is necessary that the act done or omitted to be done was intentionally, designedly and without lawful excuse. (Archbold v. Huntington,
In State v. Kennedy,
By C. S., sec. 6591, "There is in this state but one form of civil action"; and by C. S., sec. 6670, "Civil actions in the courts of this state are commenced by filing a complaint." C. S., sec. 6687, requires that "the complaint must contain . . . . a statement of the facts constituting the cause of action, in ordinary and concise language." C. S., sec. 6693, provides that "if no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action."
In the instant case appellants did object to the complaint on the ground that it did not state a cause of action against either of them. But if, in fact, it failed to state a cause of action, a failure to object would not be a waiver of the right *100 to raise this question at any later stage of the proceedings.
While courts will ordinarily indulge every reasonable presumption and intendment in favor of a pleading in order to sustain a judgment that has been pronounced thereon, I know of no authority and think none can be found, either at common law or under the code system of procedure, holding that a judgment can be sustained in any civil action unless a cause of action has been stated in the petition or complaint. A civil action can only be instituted by the filing of a complaint. Without such a foundation for its action the judgment of a court of record is void, even though it be a court which has jurisdiction over the subject matter referred to in the judgment. (In re Tinn,
Under the provisions of sec. 4178 of the Rev. Codes, if the complaint fails to state facts sufficient to constitute a cause of action, the complaint will not support the judgment rendered upon said complaint, and the judgment so entered will be reversed upon appeal. (Trueman v. Village of St. Maries,
I think the information in the instant case fails to state a cause of action and that the cause should be reversed and remanded with instructions to permit the informant, if he so desires, to amend the information so the facts stated will support a judgment, and the cause thereafter proceeded with in the usual manner.
I am authorized to say that Justice Budge concurs in the view that the information is insufficient to support a judgment and that the judgment appealed from should be set aside.
Petition for rehearing denied. *101
