Baldwin v. Anderson, 5783

• Decision Date: 12 July 1932
• Docket Number: 5783
• Citation: 13 P.2d 650,52 Idaho 243
• Parties: VIVIAN F. BALDWIN and E. R. BALDWIN, Respondents, v. ED. ANDERSON, Respondent, and AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Surety, Appellant
• Court: Idaho Supreme Court

13 P.2d 650

52 Idaho 243

VIVIAN F. BALDWIN and E. R. BALDWIN, Respondents, v. ED. ANDERSON, Respondent, and AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Surety, Appellant

No. 5783

Supreme Court of Idaho

July 12, 1932

JUDGMENT-REGULARITY-RES JUDICATA-MOTION FOR JUDGMENT-APPEAL AND ERROR-RE-EXAMINATION.

1. Decision that judgment creditor may move for judgment against surety on supersedeas without notice held res judicata in subsequent proceeding between same parties involving such issue (C. S., sec. 7155).

2. Oral application held sufficient as "motion for judgment," filing of formal motion being unnecessary (C S., sec. 7194).

3. Where record is silent, regularity of judgment and truth of its recitals are conclusively presumed, in absence of contrary evidence.

4. Presumption of regularity of judgment held not overcome by silence of court's minutes respecting motion for judgment or by affidavits of individuals not participating.

5. Whether judgment was signed at chambers or in open court was immaterial on motion to set aside judgment.

6. Judgment construing supersedeas bond not having been appealed from, appellate court could not on subsequent appeal re-examine matter on theory judgment was void for trial court's lack of jurisdiction.

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

Defendant American Surety Company, appeals from an order denying its motion to amend a judgment, and as amended to vacate and set it aside. Affirmed.

Judgment affirmed; costs to respondents. Petition for rehearing denied.

Richards & Haga and Martin & Martin, for Appellant.

A court has power to correct its judgments, records and processes to make them speak the truth and also to set aside a void judgment regardless of the expiration of the term at which said judgment was entered or the lapse of time. (State v. Winter, 24 Idaho 749, 135 P. 739; State v Douglass, 35 Idaho 140, and cases cited on pages 146, 147, 208 P. 236; Ladd & Tilton v. Mason, 10 Ore. 308; White v. Ladd, 41 Ore. 324, 93 Am. St. 732, 68 P. 739.)

The judge at chambers had no power to enter the judgment of June 23, 1930, and the entering of said judgment at chambers was void. (C. S., sec. 6493; Delano v. Board of Commrs., 4 Idaho 83, 35 P. 841; Elledge v. Arterberry, 54 Okla. 382, 154 P. 341; Washington & Idaho R. R. Co. v. Coeur d' Alene Ry. etc. Co., 3 Idaho 263, 28 P. 394; Mills v. Board of County Commrs., 35 Idaho 47, 204 P. 876; Greene v. Edgington, 37 Idaho 1, 214 P. 751; Duerr v. Sloan, 50 Cal.App. 512, 195 P. 475, 479.)

James F. Ailshie, Jr., and J. R. Smead, for Respondents Baldwin.

A motion in a proceeding in a district court need not be written. Any application for an order is a "motion." (C. S., sec. 7194; Williams v. Hawley, 144 Cal. 97, 77 P. 762, 763; 42 C. J. 476, sec. 29.)

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 not one requiring the introduction of evidence. It presented to the court only a question of law to be decided on the records and files in the action, and it was not necessary to offer the records and files in evidence. (Baldwin v. Anderson, supra; Gray v. Cotton, 174 Cal. 256, 162 P. 1019; United States Fidelity & G. Co. v. Fort Misery Highway Dist., supra.)

The mere fact that the court minutes in this case were silent as to the proceeding by which judgment on the undertaking was obtained does not establish that such proceeding did not occur in open court. Where the related record is merely silent, it will be presumed that the judgment is regular and that its recitals are correct. (Hall v. Whittier, 20 Idaho 120, 125, 116 P. 1031; State v. Wyley, 24 Idaho 548, 135 P. 59; Spivey v. District Court, 37 Idaho 774, 219 P. 203; Milner v. Earl Fruit Co., 40 Idaho 339, 356, 232 P. 581; Harpold v. Doyle, 16 Idaho 671, 102 P. 158; Ollis v. Orr, 6 Idaho 474, 56 P. 162.)

LEE, C. J. Givens and Varian, JJ., concur. LEEPER, J., Budge, J., Dissenting.

OPINION

LEE, C. J.

On May 31, 1928, plaintiff and respondents, Vivian F. Baldwin and E. R. Baldwin, her husband, secured a joint, money judgment against the Singer Sewing Machine Company and one Ed. Anderson, its agent. From such judgment, the defendants jointly appealed, the only supersedeas bond filed being that heretofore set out in Baldwin v. Anderson et al., 50 Idaho 606, 299 P. 341. On appeal, the judgment was reversed as to the Singer Sewing Machine Company and affirmed as to defendant Anderson, the trial court being directed to dismiss the case as against the Singer Company. Anderson having failed to pay the judgment, plaintiffs and respondents applied to the trial court for judgment upon the supersedeas bond. The judgment, when entered, recited " . . . . the plaintiffs having moved the court for a judgment against the said American Surety Company of New York, a corporation, and the court being fully advised in the premises etc. Done in open court this 23rd day of June 1930."

Thereafter, on June 26, 1930, appellant Surety Company moved the court to vacate and set aside the judgment so entered, contending that the same was void for several reasons, one of which being that the judgment had been entered without any notice to either appellant Surety Company or the Singer Sewing Machine Company. The trial court subsequently granted appellant's motion, respondents appealed and on May 2, 1931, the order vacating the judgment was reversed. (Baldwin v. Anderson, 50 Idaho 606, 299 P. 341.) In that opinion, the supersedeas bond was set forth in toto, and the contentions that the incident judgment was void fully discussed, it being directly held that under C. S., sec. 7155, the judgment creditor may move for judgment against the surety on a supersedeas bond without giving notice.

On June 18th following, appellant moved the court to amend and correct the judgment of June 23, 1930, and to vacate and set aside the same, when so corrected and amended. The correction and amendment sought constituted striking from the body of the judgment the recitals "and the plaintiff having moved the court for a judgment, etc.," and the words, "in open court," and substituting in lieu of the latter the words "at chambers." Two grounds only were urged in the motion to vacate, viz.: that the court had no jurisdiction to enter said judgment at chambers, "it being a matter requiring judicial consideration," and that no notice of said chambers proceeding had been given appellant. This last motion having been denied, defendant Surety Company has appealed.

It is insisted that the court erred in refusing to correct the judgment, since the facts adduced at the hearing show that no motion for judgment was ever filed in the case and that the proceedings were had and the subsequent judgment entered at chambers and not in open court. For the same reasons, it is contended that the trial judge was without jurisdiction to hear the matter or enter judgment thereon. The question of notice heretofore having been disposed of in Baldwin v. Anderson, supra, it is res judicata here and will not again be considered.

It but remains to determine whether or not a proper application for judgment was made and whether or not the subsequent proceedings including the entry of judgment were properly had. There is no merit in the contention that a formal motion must have been filed. Any application for an order is a motion. (C. S., sec. 7194, identical with Cal. Code Civ. Proc., sec. 1003.) Such motion is "usually made orally." (Williams v. Hawley, 144 Cal. 97, 77 P. 762, 763.) Oral motions are also recognized in jurisdictions having similar statutes. (Van Curon v. King, 93 Okla. 1, 219 P. 337, 338; Genardini v. Kline, 21 Ariz. 523, 190 P. 568, 570.)

The judgment of June 23, 1930, positively recited that a motion for judgment was made and the certificate of the trial judge made on June 23, 1931, one year later, details that respondents' counsel "stepped to the bench, court still being in session, and made a motion for judgment in favor of Vivian F. Baldwin and E. R. Baldwin and against the American Surety Company upon its supersedeas undertaking . . . . and thereupon submitted a form of judgment, together with the complete records and files in said cause, including the opinion of the Supreme Court of the State of Idaho in said case, dated April 10, 1930, and the remittitur issued pursuant thereto, also the undertaking of the American Surety Company referred to. . . . I then told him I would consider the motion and take the matter under advisement." Several days thereafter, during the hearing, the trial judge dictated into the record substantially the same recitals. Here, is a presumption of regularity re-enforced by the judge's certificate and record statement. With the burden of proof upon it, appellant Surety Company seeks to overcome all three by the introduction of court minutes that are silent, negativing neither, and affidavits of individuals not primarily participating in what occurred between court and counsel. Where the record is silent on the point in controversy, the regularity of the judgment and the truth of its recitals are, in the absence of evidence to the contrary, conclusively presumed. (State v. Feehan, 24 Idaho 548, 135 P. 59; Ollis v. Orr, 6 Idaho 474, 56 P. 162; 4 C. J. 740, par. 2670.) "The trial judge's own recollection of the facts was the equivalent of testimony." (Cazzell v. Cazzell, 133 Kan. 766, 3 P.2d 479, 480.)

Whether or not the judgment was signed at chambers or in open court is negligible:...