Andrus v. Irick
| Decision Date | 22 July 1964 |
| Docket Number | No. 9219,9219 |
| Citation | 87 Idaho 471,394 P.2d 304 |
| Parties | John Ivan ANDRUS and Susis D. Andrus, Husband and Wife, and John Ivan Andrus, Jr., and Margie W. Andrus, Husband and Wife, Plaintiffs, Appellants and Cross-Respondents, v. Harold IRICK and Norma Irick, Husband and Wife, Defendants, Respondents, and Cross-Appellants. |
| Court | Idaho Supreme Court |
Gee, Hargraves & Armstrong, Pocatello, for appellants and cross-respondents.
Jones, Pomeroy & Jones, Pocatello, for respondents and cross-appellants.
Petition for rehearing having been granted, and the cause reheard, the previous opinion is withdrawn, and this opinion issued in lieu thereof.
We shall dispose of the issues presented, in the order: first by defendants' cross-appeal; and second by plaintiffs' appeal.
Plaintiffs, appellants and cross-respondents herein (hereinafter referred to as plaintiffs), instituted this action to rescind a certain real estate contract wherein they were the purchasers and the defendants (respondents and cross-appellants), were the vendors. By their complaint the plaintiffs claim misrepresentation and such nondisclosure of material facts by the sellers as to entitle them to a rescission of the contract or for damages. After trial on the issues presented by the pleadings, the trial court rendered its Memorandum Decision on October 26, 1961, and on November 14, 1961, entered findings of fact, conclusions of law and judgment for defendants.
On February 23, 1962, plaintiffs moved the Court for an order setting aside this judgment on the ground that the same was taken by mistake, inadvertence, surprise or excusable neglect on the part of the plaintiffs and their counsel. This motion was accompanied by affidavits of their counsel, two of the plaintiffs, and of a stenographer employed in counsel's office. On March 5, 1962, a supplemental motion was filed seeking to set aside the judgment, wherein it was asserted the plaintiffs deserve relief from the operation of the judgment on the ground that the court should re-open the judgment, take additional testimony, amend and make new findings of fact and conclusions of law and enter a judgment for plaintiffs.
Affidavits were filed by the defendants in opposition to plaintiffs' affidavits. The trial court heard testimony on the issues as to whether the cause should be again reopened. After the hearing, by its order of April 19, 1962, the trial court denied plaintiffs' supplemental motion of March 5, 1962, but granted their motion of February 23, 1962, to set aside the judgment and ordered entry of a new judgment. The Court's order among other things provided:
Pursuant to this order, a new judgment, verbatim with the original except for the date, was entered on April 19, 1962. It is from this order of April 19, 1962, that the defendants cross-appealed, contending it was beyond the court's authority to enter such an order, in effect extending the time for appeal from the judgment entered November 14, 1961. If this order granting the plaintiffs' motion of February 23, 1962 was properly granted, the time for appeal from the judgment commenced to run on April 19, 1962, and plaintiffs' notice of appeal from the judgment and order denying their supplemental motion of March 5, 1962, filed March 22, 1962, was timely; conversely, if the court erred in granting plaintiff's motion, the time for appeal from the judgment would have commenced to run from November 14, 1961, and the appeal would have been late and this court without jurisdiction to entertain the appeal from the judgment. See: I.C. § 13-201; Martin v. Soden, 80 Idaho 416, 332 P.2d 482; Mills v. Board of County Comrs., 35 Idaho 47, 204 P. 876; Estate of Dunn, 45 Idaho 23, 260 P. 432.
From the affidavits in support of the plaintiffs' motions and from the testimony submitted at the hearing, it appears that between November 1, 1961 and January 1, 1962, counsel for plaintiffs were involved in changing location of their offices and in remodeling their new offices; that their regular office procedures were disrupted, and they were employing temporary clerical employees; that mail was handled by individuals unfamiliar with their office procedure and their files were disorganized during that period; that it was not until February 23, 1962, that counsel became aware that findings of fact, conclusions of law and judgment had been entered on November 14, 1961; that the plaintiffs themselves had repeatedly inquired of counsel as to when the final judgment of the trial court would be entered, but that counsel could not tell them, because they were not aware of entry of the judgment.
Plaintiffs contend, that in our opintion rightfully so, that IRCP 60(b) did not wholly abrogate I.C. § 5-905, at least insofar as the following quoted portion thereof is concerned:
'* * * Whenever any judgment, order or proceeding is taken against a party otherwise without default, through the neglect or failure of any attorney of such party to file or serve any paper within the time limited therefor, the court, or the judge thereof, in vacation, shall, upon application filed within the time above limited, [not exceeding six months after the adjournment of the term] set aside such judgment, order or proceeding * * *.' (Emphasis added).
No findings of fact were entered following the hearing on the plaintiffs' motions, yet it is implicit in the order entered that the trial court found that the plaintiffs were 'otherwise without fault', and that the judgment was entered against them 'through the neglect or failure' of their attorneys, to discover that the findings of fact, conclusions of law and decree had previously been entered by the trial court. Under the decisions of this court, when similar findings have been made, the above quoted portion of I.C. § 5-905 (), has been held to make it the duty of the court to set aside a default entered against a defendant for the failure of his attorney to appear and answer within the time provided therefor. State ex rel. Sweeley v. Braun, 62 Idaho 258, 110 P.2d 835; Miller v. Brinkman, 48 Idaho 232, 281 P. 372. The reasoning of such decisions is applicable to the situation here; we are of the view that the trial court did not err in setting aside the original judgment and entering a subsequent judgment, when failure to move earlier to set it aside was occasioned by the fault or neglect of the plaintiff's counsel. This conclusion is reached even though the effect of such determination by a trial court is to extend the time for appeal. Defendant's cross-appeal is not well taken.
Plaintiffs appealed from the denial of their supplemental motion of March 5, 1962, for a new trial or to set aside the judgment and enter new findings of fact and conclusions of law and entry of a new judgment. The grounds set out in the supplemental motion are commensurate with the basis for plaintiffs' appeal from the judgment, and will be dealt with in the following portion of the opinion.
In 1953, the defendants, Harold Irick and Norma Irick, and other parties not now involved, as purchasers, entered into a written contract for the purchase of certain real property in Bannock County, together with a timber claim in Caribou County. They continued in possession of this real property, receiving an assignment of the interest of their co-purchasers.
Defendants under date of February 28, 1959, entered into a written contract with plaintiffs, by the terms of which the plaintiffs agreed to purchase the real property therein described and timber claim, with certain grazing rights. The price agreed upon was $100,000, of which $30,000 was paid in cash; the plaintiffs also agreed to assume and pay $15,476.00, being the balance on a real estate mortgage, and to assume and pay $24,975.00 the balance owing by the defendants to their original sellers, and to pay the remaining balance of $29,553.15, to defendants in ten annual installments of principal and interest. The funds were all to be paid to an escrow holder and disbursed by it in accordance with written instructions. Under this contract plaintiffs went into possession of the premises.
In January, 1961, the plaintiffs instituted this action seeking relief under two causes of action, the first for misrepresentation, asking for rescission of the contract of February 28, 1959, and for damages, the second cause based on the same allegations of misrepresentation set forth in the first cause, seeking an alternative recovery of damages in the amount of $38,000.00. The defendants answered, denying all of plaintiffs' allegations of misrepresentation. The cause was tried to the court without a jury, and thereafter findings of fact, conclusions of law and decree were entered in favor of the defendants.
The trial court found that the parties had entered into the written contract on February 28, 1959, for the sale and purchase of the real property involved, and that plaintiffs, as purchasers, in compliance with the agreement, took possession of the premises. The court found the parties had executed the escrow agreement mentioned. The court also made the following findings pertinent herein:
V.
'The Court finds that, although the defendant, Harold Irick, recklessly represented to plaintiffs that the forest land to be purchased under said contract could be traded with the United States Forest Service for other forest land adjoining a portion of the property purchased under the aforementioned written...
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