Backman v. Douglas

Decision Date24 September 1928
Docket Number4961
Citation270 P. 618,46 Idaho 671
PartiesWALTER E. BACKMAN, BURNS WHEELER, DAVID A. BACKMAN and J. N. MIMM, Respondents, v. TIM DOUGLAS, Defendant, And EVANS BROTHERS LAND AND LIVESTOCK COMPANY, a Corporation, Defendant and Appellant
CourtIdaho Supreme Court

APPEAL AND ERROR-DISMISSAL-EXECUTION-REDEMPTION-JUDGMENT-DEFAULT-MOTION TO VACATE-TIME-SUFFICIENCY OF PLEADING-JURISDICTION-ACTION TO FORECLOSE LABOR LIEN-DEFICIENCY-ATTORNEY FEES.

1. Where real property of defendant was sold on execution issued on judgment, and judgment was not fully satisfied by sale redemption, if made by defendant, was not voluntary payment or an acceptance of judgment, or an abandonment of appeal.

2. Where motion to vacate default judgment was not made within time limited by C. S., sec. 6726, court had power to grant relief only if void character of judgment appeared from judgment-roll.

3. If the void part of default judgment can be separated from the balance, it will be done, and judgment as to such portion vacated.

4. Judgment in default cases must be supported by allegations which fairly tend to apprise defendant of claims made against him and relief sought by plaintiff.

5. In action to foreclose farm laborers' liens, in which there was no allegation of personal liability on part of defendant court had no jurisdiction to enter judgment other than one of foreclosure.

6. In action to foreclose farm laborers' liens on hay harvested, fact that plaintiff showed, when default proof was submitted, that defendant had appropriated and fed hay, did not warrant personal judgment against defendant, where there was no allegation of personal liability.

7. In action to foreclose farm laborers' liens, prayer for deficiency against defendants personally liable warranted such judgment against defendants alleged to be personally answerable, and no other, under C. S., sec. 6829.

8. Where complaint in action against one contracting to harvest hay and the owner to foreclose farm laborers' liens against hay harvested alleged that owner was liable under contract of employment for payment of wages due and thirty days' additional wages, under C. S., sec. 7381, on failure of lien, court had right to enter personal judgment against owner.

9. In action to foreclose farm laborers' liens, in which personal judgment was rendered, where there was no allegation that five days' demand for payment had been made in writing, so as to authorize allowance of attorney's fees under C. S., sec. 7380, and lien was not foreclosed attorney's fees could not be allowed.

10. In action to foreclose farm laborers' liens, where liens were not foreclosed, but personal judgment was rendered, cost for preparation and filing claim of lien could not be allowed.

APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. Ralph W. Adair, Judge.

Action to foreclose farm laborers' liens. Judgment for plaintiffs. Appeal from order denying motion to vacate judgment. Affirmed in part and reversed in part.

Maurice M. Myers, for Appellant.

That the judgment should be vacated because it does not rest upon sufficient pleadings, and that while the suit was for foreclosure and deficiency yet the judgment was of an entirely different character, being in no sense one for foreclosure but for a personal liability against appellant, appellant cites the following authorities: Miller v. Prout, 33 Idaho 709, 197 P. 1023.

"A judgment must rest on sufficient pleadings. It is true that under C. S., sec. 6707, the allegations of the pleadings must be liberally construed with a view to substantial justice between the parties. (McCormick v. Smith, 23 Idaho 487, 130 P. 999.) Every reasonable intendment is indulged in favor of the sufficiency of the complaint, and all inferences of fact which may be drawn from the facts alleged must be deemed within reasonable limits to be alleged, unless it is specifically attacked by demurrer or motion. (Mode v. Myers, 30 Idaho 159, 164 P. 91; Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602.) These cases, however, do not go so far as to hold that a judgment may be sustained where there is an entire lack of essential allegations to support it. 'In addition to the jurisdiction of the parties and subject matter, it is necessary to the validity of the judgment that the court have jurisdiction of the question which the judgment assumes to decide, or the particular remedy or relief which it assumes to grant.' (Gile v. Wood, 32 Idaho 752, 188 P. 36.) In that case it was held that it was beyond the jurisdiction of the court to order a deficiency judgment in an action for the foreclosure of a mortgage against a party, in the absence of an allegation in the complaint to the effect that the party was indebted to the plaintiff. 'Neither can it (a court) go beyond the issues and pass upon a matter which the parties neither submitted nor intended to submit for its determination.' (Black on judgments, 2d ed., sec. 215, p. 323; Munday v. Vail, 34 N.J.L. 418; McFadden v. Ross, 108 Ind. 512, 8 N.E. 161; Sache v. Wallace, 101 Minn. 169, 118 Am. St. 612, 11 Ann. Cas. 348, 112 N.W. 386, L. R. A., N. S., 803; Newman v. Bullock, 23 Colo. 217, 47 P. 379; Sandoval v. Rosser, 86 Tex. Civ. App. 682, 26 S.W. 930.)"

Bissell & Bird and A. Humphrey, for Respondent Humphrey.

The district court had jurisdiction of the subject matter and of the persons of the defendants, and the relief granted was reasonably within the issues. This being true, the judgment, however erroneous it may be, is not void, and the only remedy is by appeal. (Gillespie v. Fender, 180 Cal. 202, 180 P. 332; Bunnell, etc., v. Curtis, 5 Idaho 652-659, 51 P. 767.)

Appellant's motion to vacate the judgment was properly denied, as appellant did not accompany its motion with an answer or affidavit of merits to show that the judgment is erroneous and that if permitted to defend a judgment more favorable to appellant might result. (Hall v. Whittier, 20 Idaho 120, 116 P. 1031; Armstrong v. Hartford Ins. Co., 33 Idaho 303, 195 P. 301; Council Impr. Co. v. Draper, 16 Idaho 541, 102 P. 7.)

The court had jurisdiction of the subject matter and of the persons of the defendants, the complaint apprised the defendants of the nature of the plaintiff's demands, and the judgment, being reasonably within the issues, is not void, though it might have been subject to a special demurrer filed in season. (Sheehan v. All Persons, 80 Cal.App. 393, 252 P. 337; Black on Judgments, sec. 242; State v. District Court, 33 Wyo. 281, 238 P. 545; Whitehurst v. Stuart, 129 Cal. 194, 61 P. 963.)

BAKER, Commissioner. Varian and Brinck, CC., concur.

OPINION
BAKER, Commissioner

On January 10, 1923, Walter E. Backman, Burns Wheeler, David A Backman and J. N. Mimm commenced their action against Tim Douglas and Evans Brothers Land & Livestock Company (hereinafter referred to as the company or as appellant) to foreclose four farm laborers' liens, of which one was filed by each of the plaintiffs. The complaint alleged that during the year 1922 the company was the owner of a crop of hay then growing on certain land in Power county; that on or about June 1, 1922, it entered into a contract with Douglas by the terms of which he was to harvest the hay and that during July and August the plaintiffs were severally employed by Douglas to assist and did later assist in that work. The first, second and third causes of action, are, in all essential respects, identical and differ only in the names of claimants, the amounts due, the character of work performed and the period of employment. In each of these causes of action it is alleged, among other things, that the contract of employment was made with Douglas and that the amount claimed was due from him. The only reference to the company is that in each cause of action it is alleged its interest in the crop is subject and inferior to the claim of lien therein mentioned. In the fourth cause of action, founded upon the claim of J. N. Mimm, it is alleged the employment was by both Douglas and the company. In that cause of action it is alleged, as in the others, that the interest of the company is subject to the claim of lien. By further allegations each of the plaintiffs claimed additional wages under the provisions of C. S., sec. 7381, for the period of thirty days amounting to the sum of $ 65. Plaintiffs sought to recover as attorney's fee the sum of $ 150 for the enforcement of the liens and the further sum of $ 20 for preparing and filing claims of lien. They prayed that it be determined there was due to each the amount claimed, for decree foreclosing the liens and for deficiency "against the defendants personally liable."

The defendants were personally served but defaulted. On February 21, 1923, default was entered, proof was submitted and judgment or decree was ordered as prayed. On April 25, 1923, personal judgment was entered in favor of each plaintiff and against both defendants for the total amount claimed with interest and thirty days' wages in addition. The sums of $ 150 attorney's fees, $ 20 for preparation and filing claims of lien and $ 12.80 costs were allowed. There was no decree of foreclosure and in the judgment the liens were not mentioned.

The judgment was assigned to A. Humphrey, trustee, on January 2, 1926, and on January 11th the sheriff of Power county, pursuant to writ of execution, levied upon certain land as the property of the company. On February 2, 1926, the company filed its motion to vacate the judgment and to stay the execution thereof upon the ground that the complaint did not allege a personal liability and that the personal judgment was therefore void.

The plaintiffs attempted to justify the entry of personal judgment against the defendant...

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    ... ... balance, the void portion will be vacated and the balance ... permitted to stand. Backman v. Douglas, 46 Idaho ... 671, 677, 270 P. 618 ... The ... remaining question is whether or not there is a sufficient ... showing of ... ...
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