Baldwin v. Anderson, 5653

CourtUnited States State Supreme Court of Idaho
Writing for the CourtMCNAUGHTON, J.
Citation299 P. 341,50 Idaho 606
PartiesVIVIAN F. BALDWIN and E. R. BALDWIN, Appellants, v. ED. ANDERSON and AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Respondents
Decision Date02 May 1931
Docket Number5653

299 P. 341

50 Idaho 606

VIVIAN F. BALDWIN and E. R. BALDWIN, Appellants,
v.

ED. ANDERSON and AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Respondents

No. 5653

Supreme Court of Idaho

May 2, 1931


JUDGMENT-CORRECTION BY TRIAL COURT-JURISDICTION-APPEAL AND ERROR-SUPERSEDEAS UNDERTAKING-LIABILITY OF SURETY-NOTICE.

1. On appeal from order setting aside judgment against surety on supersedeas undertaking, supreme court cannot construe undertaking except to determine lower court's jurisdiction.

2. Judgment of court having jurisdiction of parties, subject matter, and issue presented is not void, though erroneous, and may be corrected only by appeal, in absence of mistake.

3. Judgment creditor may move for judgment against surety on supersedeas undertaking without giving notice (C. S., sec. 7155).

4. Supersedeas undertaking on appeal is complete independent contract, maker of which is not collaterally or secondarily liable (C. S., sec. 7155).

5. Obligations of surety on supersedeas undertaking must be determined from instrument itself (C. S., sec. 7155).

6. Surety held liable on supersedeas undertaking after affirmance of judgment as to one defendant, though reversed as to defendant named in introductory recital of facts (C. S., sec. 7155).

7. District court had jurisdiction to render judgment against surety on supersedeas undertaking after affirmance of judgment appealed from as to one defendant.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Koelsch, Judge.

Appeal from an order setting aside judgment on supersedeas undertaking. Reversed.

Judgment reversed, with costs to appellants. Petition for rehearing denied.

James F. Ailshie, Jr., and J. R. Smead, for Appellants.

By filing its supersedeas undertaking, as provided by C. S., sec. 7155, respondent American Surety Company became a party to the action, and hence was within the jurisdiction of the trial court. It was therefore unnecessary to give the surety company notice of appellant's motion for judgment on the undertaking. (C. S., sec. 7155; Portland Trust Co. v. Havely, 36 Ore. 234, 59 P. 466, 61 P. 346, 347; Mowry v. Heeney, (Cal.) 24 P. 301; Union Brewing Co. v. Cooper, 15 Colo. App. 65, 60 P. 946; Hawley v. Gray Bros. Artificial Stone etc. Co., 127 Cal. 560, 60 P. 437; Meredith v. Santa Clara Min. Assn., 60 Cal. 617; Toledo Scale Co. v. Computing Scale Co., 281 F. 488; Pease v. Rathbun-Jones Engineering Co., 243 U.S. 273, 37 S.Ct. 283, 61 L.Ed. 715, 721; Empire State-Idaho etc. Co. v. Hanley, 136 F. 99, 69 C. C. A. 87.)

And finally, the motion to vacate the judgment in this case presented no ground for equitable relief, because the mistake or error of the trial court in rendering judgment against the surety company, if any, should have been corrected in the proceeding at law and not in equity. The remedy at law was adequate, therefore equitable relief could not be granted. ( Donovan v. Miller, 12 Idaho 601, 10 Ann. Cas. 444, 88 P. 82, 9 L. R. A., N. S., 524; Ada County v. Bullen Bridge Co., 5 Idaho 79, 47 P. 818, 36 L. R. A. 367; Glover v. Brown, 32 Idaho 426, 184 P. 649; Buzard v. Houston, 119 U.S. 347, 7 S.Ct. 249, 30 L.Ed. 451; Heller v. Dyerville Mfg. Co., 116 Cal. 127, 47 P. 1016; Miller v. Owens, 55 Colo. 88, 133 P. 141; Ellis v. Akers, 32 Okla. 96, 121 P. 258; Baer v. Higson, 26 Utah 78, 72 P. 180; Strelau v. City of Seattle, 85 Wash. 255, 147 P. 1144.)

A judgment of a legally organized court is void, or voidable, only when the court was without jurisdiction to render it. A court having jurisdiction of the parties, the subject matter and having power to adjudicate cases or decide questions of the type or class there presented, never renders a void judgment. However erroneous the judgment may be, or however irregular the procedure leading to the judgment may have been, the judgment is neither void nor voidable. ( Kavanagh v. Hamilton, 53 Colo. 157, Ann. Cas. 1914B, 76, 125 P. 512; 14 C. J. 514; State v. Poynter, 34 Idaho 504, 205 P. 561, 208 P. 871; Taylor v. Hulett, 15 Idaho 265, 97 P. 37, 19 L. R. A., N. S., 535; Sharp v. Sharp, 65 Okla. 76, 166 P. 175 (cited with approval in Gile v. Wood, 32 Idaho 752, 754, 188 P. 36); Williams v. Sherman, 35 Idaho 169, 205 P. 259, 21 A. L. R. 353; Bunnell & Eno Inv. Co. v. Curtis, 5 Idaho 652, 51 P. 767; In re Ryan's Estate, 177 Cal. 598, 171 P. 297; People v. McKelvey, 19 Colo. App. 131, 74 P. 533; People v. Liscomb, 60 N.Y. 559, 19 Am. Rep. 211.)

The lower court had jurisdiction to entertain appellants' motion for judgment on the bond. Both appellants and respondent Surety Company were within the jurisdiction as parties to the proceeding, and the subject matter (the bond) was before the court. (Meredith v. Santa Clara Min. Assn., 60 Cal. 617; Toledo Scale Co. v. Computing Scale Co., supra; Portland Trust Co. v. Havely, 36 Ore. 234, 59 P. 466, 61 P. 346; Pease v. Rathbun-Jones Engineering Co., supra; Shannon v. Dodge, 18 Colo. 164, 32 P. 61; Empire State-Idaho etc. Co. v. Hanley, supra; United States Fidelity & G. Co. v. Ft. Misery Highway Dist., 22 F.2d 369; Gray v. Cotton, 174 Cal. 256, 162 P. 1019.)

If the lower court was in error in granting appellant's motion for judgment on the bond, and entering judgment accordingly, the Surety Company's remedy was by an appeal from that judgment to this court. The provisions for motion for new trial are not applicable in this type of procedure. (See C. S., secs. 6888, 7155; Gray v. Cotton, supra.)

Under statutes like ours the surety, having exclusive choice of the language used, will be held to the full extent of the meaning of the language so chosen. (Shannon v. Dodge, supra; Moffat v. Greenwalt, 90 Cal. 368, 27 P. 296; Handy v. Burrton Land Co., 59 Kan. 395, 53 P. 67; Rue v. Anderson, 160 Mo.App. 347, 142 S.W. 358; American Surety Co. v. Pangburn, 182 Ind. 116, Ann. Cas. 1916E, 1126, 105 N.E. 769.)

Having stated in the undertaking that the appeal was from the whole of the judgment, and thereupon having further stated that the undertaking was to stay execution of the judgment so appealed from, the surety is now estopped to deny the truth of these statements. (State v. McDonald, 4 Idaho 468, 40 P. 312; Creswell v. Herr, 9 Colo. App. 185, 48 P. 155; Harding v. Kuessner, 172 Ill. 125, 49 N.E. 1001; Portis v. Illinois Surety Co., 176 Ill.App. 590; Summit v. Colleta, 81 N.J.L. 153, 78 A. 1047; Richardson v. Penny, 10 Okla. 32, 61 P. 584; Pratt v. Gilbert, 8 Utah 54, 29 P. 965; Hathaway v. Davis, 33 Cal. 161; Swofford Bros. Dry Goods Co. v. Livingston, 16 Colo. App. 257, 65 P. 413.)

H. B. Walker, for Respondent Anderson, files no brief.

Richards & Haga and Martin & Martin, for Respondent American Surety Company of New York.

Under the complaint of the plaintiffs, Vivian F. Baldwin and E. R. Baldwin, the defendants Singer Sewing Machine Company and Ed. Anderson were jointly and severally liable. The plaintiff could sue them jointly, as they did, or could have sued each separately, and after having secured a joint judgment the plaintiffs could have enforced the same by execution against either one of them. (Cole v. Roebling Const. Co., 156 Cal. 443, 105 P. 255; Nichols v. Dunphy, 58 Cal. 605; Fowden v. Pacific Coast S. S. Co., 149 Cal. 151, 86 P. 178.)

In the case of a judgment against several defendants, a stay of execution in favor of one of the defendants pending an appeal by such defendant does not suspend the right to issue execution against those for whom no stay of execution is had. Nor does a supersedeas bond stay proceedings in favor of a person not named in the supersedeas bond. (C. S., secs. 7155 and 6002, amended by Laws 1929, p. 70; Drabant v. Cure, 280 Pa. 181, 124 A. 340; 23 C. J., pp. 411, 424, 425, 533; 3 C. J., p. 1324; 2 Cal. Jur. 472; State v. Beveridge, 109 Ore. 69, 218 P. 1112; Ex parte French, 100 U.S. 1, 25 L.Ed. 529; Bergevin v. Wood, 11 Cal.App. 643, 105 P. 935.)

Under the statutes of this state a supersedeas bond is a simple contract of suretyship by which the surety becomes liable for his principal named in the bond and none other. It is not a contract to pay the judgment appealed from unless his principal is adjudged liable therefor. Under the law of suretyship, it is undisputed that if the principal cannot be held the surety is not liable. (1 Freeman on Judgments, 5th ed., sec. 466, p. 1026; McConnell v. Poor, 113 Iowa 133, 84 N.W. 968, 52 L. R. A. 312; Howell v. Alma Milling Co., 36 Neb. 80, 38 Am. St. 702 (see note at pp. 712, 713), 54 N.W. 126.)

Where the contract of surety for hire is unambiguous, the contract as written, and not otherwise, fixes the rights and determines the liability of the surety. Sureties have a right to stand on the terms of their contract, and, having consented to be bound to the extent expressed therein, their liability must be found therein and strictly construed. ( Commercial Casualty Ins. Co. v. Durham Co., 190 N.C. 58, 128 S.E. 469; Wainwright Trust Co. v. United States Fidelity & Guaranty Co., 63 Ind.App. 309, 114 N.E. 470; Burdett v. Walsh, 235 Mass. 153, 126 N.E. 374; People v. Southern Surety Co., 76 Colo. 141, 230 P. 397.)

A judgment which is void on the face of the record is a mere nullity, and it may be attacked collaterally or may be vacated on the court's own motion or motion of the defendant independently of the statute. (Gile v. Wood, 32 Idaho 752, 188 P. 36; Miller v. Prout, 33 Idaho 709, 197 P. 1023; Nixon v. Tongren, 33 Idaho 287, 193 P. 731; 15 Cal. Jur. 52, 53.)

Where a judgment is not void upon the face of the record it may nevertheless be vacated on motion made within a reasonable time and a showing of lack of jurisdiction. (Armitage v. Horseshoe Bend Co., 35 Idaho 179, 204 P. 1073; Nixon v. Tongren, 33 Idaho 287, 193 P. 731; Norton v. Atchison, T. & S. F. R. Co., 97 Cal. 388, 33 Am. St. 198, 30 P. 585, 32 P. 452; Taylor v. Granite State Assn., 136 N.Y. 343, 32...

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12 practice notes
  • Coeur D'Alene Turf Club, Inc. v. Cogswell, No. 10451
    • United States
    • Idaho Supreme Court
    • July 22, 1969
    ...discretion of the court, the latter could be corrected only by appeal or on a timely motion for a new trial. E.g., Baldwin v. Anderson, 50 Idaho 606, 299 P. 341 (1931); Fall River Irr. Co. v. Swendsen, 41 Idaho 686, 241 P. 1021 (1925); Wyllie v. Kent, 28 Idaho 16, 152 P. 194 (1915). (See al......
  • Baldwin v. Anderson, 5783
    • United States
    • United States State Supreme Court of Idaho
    • July 12, 1932
    ...It was not necessary that any notice of motion for judgment on supersedeas undertaking be given the surety company. ( Baldwin v. Anderson, 50 Idaho 606, 299 P. 341; United States Fidelity & G. Co. v. Fort Misery Highway Dist., 22 F.2d 369.) The proceeding for judgment against the surety was......
  • McDonald v. McDonald, 6155
    • United States
    • Idaho Supreme Court
    • December 13, 1934
    ...into effect and render it binding and operative." (Taylor v. Hulett, 15 Idaho 265, 97 P. 37, 19 L. R. A., N. S., 535; Baldwin v. Anderson, 50 Idaho 606, 299 P. 341; Bunnell & Eno Inv. Co. v. Curtis, 5 Idaho 652, at 659, 51 P. 767; State v. Poynter, 34 Idaho 504, at 514, 205 P. 561, 208 P. 8......
  • Short v. Thompson, 6216
    • United States
    • United States State Supreme Court of Idaho
    • February 20, 1936
    ...that the surety has not had its day in court or that it is deprived of property or right without due process. (Baldwin v. Anderson, 50 Idaho 606, 299 P. 341; American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231, 86 A. L. R. 298.) One of the obligations of the bond, made s......
  • Request a trial to view additional results
12 cases
  • Coeur D'Alene Turf Club, Inc. v. Cogswell, No. 10451
    • United States
    • Idaho Supreme Court
    • July 22, 1969
    ...discretion of the court, the latter could be corrected only by appeal or on a timely motion for a new trial. E.g., Baldwin v. Anderson, 50 Idaho 606, 299 P. 341 (1931); Fall River Irr. Co. v. Swendsen, 41 Idaho 686, 241 P. 1021 (1925); Wyllie v. Kent, 28 Idaho 16, 152 P. 194 (1915). (See al......
  • Baldwin v. Anderson, 5783
    • United States
    • United States State Supreme Court of Idaho
    • July 12, 1932
    ...It was not necessary that any notice of motion for judgment on supersedeas undertaking be given the surety company. ( Baldwin v. Anderson, 50 Idaho 606, 299 P. 341; United States Fidelity & G. Co. v. Fort Misery Highway Dist., 22 F.2d 369.) The proceeding for judgment against the surety was......
  • McDonald v. McDonald, 6155
    • United States
    • Idaho Supreme Court
    • December 13, 1934
    ...into effect and render it binding and operative." (Taylor v. Hulett, 15 Idaho 265, 97 P. 37, 19 L. R. A., N. S., 535; Baldwin v. Anderson, 50 Idaho 606, 299 P. 341; Bunnell & Eno Inv. Co. v. Curtis, 5 Idaho 652, at 659, 51 P. 767; State v. Poynter, 34 Idaho 504, at 514, 205 P. 561, 208 P. 8......
  • Short v. Thompson, 6216
    • United States
    • United States State Supreme Court of Idaho
    • February 20, 1936
    ...that the surety has not had its day in court or that it is deprived of property or right without due process. (Baldwin v. Anderson, 50 Idaho 606, 299 P. 341; American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231, 86 A. L. R. 298.) One of the obligations of the bond, made s......
  • Request a trial to view additional results

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