Baldwin v. ED. Anderson

• Decision Date: 20 February 1932
• Docket Number: 5783
• Citation: 8 P.2d 461,51 Idaho 614
• 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

8 P.2d 461

51 Idaho 614

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

February 20, 1932

JUDGMENTS-VACATION OF-APPEAL AND ERROR-TIME LIMIT FOR APPEAL-DISMISSAL.

1. Courts of record have inherent power to vacate their judgments, void on face of judgment-roll, on parties' or their own motions, at any time.

2. Void judgment, invalidity of which does not appear on face of judgment-roll, may be vacated on motion within reasonable time.

3. Motion to vacate judgment is direct attack thereon, and any facts indicating invalidity thereof may be presented at hearing of motion.

4. Jurisdiction of question decided by judgment and jurisdiction to render judgment for particular remedy or relief granted are necessary to validity thereof.

5. Order vacating valid judgment was void as exceeding court's jurisdiction.

6. Motion to vacate judgment is independent proceeding concurrent with right to appeal therefrom (C. S., sec. 6726).

7. Time for appeal from valid judgment ran from entry thereof, not from date of void order vacating judgment (C. S., sec. 7152).

8. Appeal taken over ninety days after entry of valid judgment does not vest supreme court with jurisdiction (C. S., sec 7152).

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

Motion to dismiss one of two appeals pending on a consolidated record. Granted. Motion in re diminution of record under Rule 29. Denied.

Appeal dismissed. Costs to respondent.

Richards & Haga and Martin & Martin, for Appellant.

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

H. B Walker, for Respondent Ed. Anderson.

VARIAN, J. Lee, C. J., and Leeper, J., concur. Budge, J., dissents. Givens, J., not sitting, did not participate.

OPINION

VARIAN, J.

On May 31, 1928, Vivian F. Baldwin and E. R. Baldwin, respondents, obtained a judgment for damages for personal injuries, in the district court, against Singer Sewing Machine Company, a corporation, and Ed. Anderson. On appeal the judgment was affirmed as to Anderson, and ordered dismissed as to the Singer Sewing Machine Company. (Baldwin v. Singer Sewing Mach. Co., 49 Idaho 231, 287 P. 944.) On May. 24, 1930, after the coming down of the remittitur, the trial court entered judgment dismissing the Singer Sewing Machine Company and taxing its costs against plaintiffs Baldwin. On June 23, 1930, judgment was entered for said respondents against appellant, American Surety Company, for the amount due them on the original judgment against Ed. Anderson and Singer Sewing Machine Company, as surety on a supersedeas bond dated August 28, 1928. June 26, 1930, American Surety Company of New York, appellant here, moved the district court to vacate the judgment of June 23, 1930, aforesaid, upon the ground that it was void and that its enforcement was contrary to equity and good conscience, etc. August 12, 1930, an order was entered in the district court declaring said judgment of June 23, 1930, void and recalling and vacating the execution issued thereon. On appeal from the order of August 12, 1930, this court reversed said order and held the judgment of June 23, 1930, valid and not void. (Baldwin v. Anderson, 50 Idaho 606, 299 P. 341.) After the coming down of the remittitur in this last appeal, appellant moved, June 18, 1931, to correct and then set aside the said judgment of June 23, 1930. The motion was submitted upon affidavits and argument of counsel and by the court denied by order dated July 13, 1931. On the same date American Surety Company of New York appealed to this court from the judgment against it dated June 23, 1930, more than ninety days after the entry of said judgment. On the following day, July 14, 1931, American Surety Company of New York also appealed to this court from the order, dated July 13, 1931, denying the motion to correct and vacate the judgment of June 23, 1930.

July 18, 1931, the Chief Justice signed an order, on application of appellant, reciting the two appeals last above mentioned, and ordering "That but one transcript be made and filed in said appeals which said transcript shall include all the papers and matters necessary for the consideration of each of said appeals, and that a duplicate of this order be filed in said District Court from which said appeals are taken and included in said transcript." Other matters germane to the subject of this appeal will later be referred to.

Appellant petitioned this court for an order to correct an omission in the clerk's transcript, which matter was argued and submitted with the motion to dismiss. His praecipe called for the order of the Chief Justice of July 18, 1931, therein required to be filed in the district court, to be included in said transcript. While the order appears in the records in this court it does not appear in the transcript. The fact of its being filed in the court below is immaterial in view of the conclusions reached as to the motion to dismiss, and the motion is therefore denied.

We are only concerned here with the motion to dismiss the appeal of July 13, 1931, from the judgment of June 23, 1930. Respondent moves to dismiss the appeal, principally, because it was not taken within ninety days as prescribed by C. S., sec. 7152. Appellant contends that the order of August 12, 1930, vacating the judgment of June 23, 1930, was not void and therefore suspended the running of the statute requiring an appeal to be taken within ninety days from the entry of judgment, until the coming down of the remittitur on June 3, 1931, and that forty days yet remained, on July 13, 1931, in which to perfect its appeal.

The power, within proper limits, to vacate its judgments, is inherent in all courts of record independent of statute. (1 Freeman on Judgments, 5th ed., sec. 194, p 375.) While we have no statute expressly authorizing the vacation of a judgment, on motion, the inherent power of courts of record to vacate their judgments, void upon the face of the judgment-roll, upon motion of a party, or its own motion, at any time, has been repeatedly recognized by this court. (Angel v. Mellen, 48 Idaho 750, 285 P. 461; Backman v. Douglas, 46 Idaho 671, 677, 270 P. 618; Shumake v. Shumake, 17 Idaho 649, 663, 107 P. 42; Jensen v. Gooch, 36 Idaho 457, 211 P. 551; Richardson v. Ruddy, 15 Idaho 488, 98 P. 842.) And where the invalidity of a void judgment does not appear upon the face of the judgment-roll, it may be vacated upon motion made within a reasonable time. (Armitage v. Horseshoe Bend Co., 35 Idaho 179, 204 P. 1073; Miller v. Prout, 33 Idaho 709, 197 P. 1023.) ...