Banbury v. Brailsford
| Decision Date | 03 May 1945 |
| Docket Number | 7161 |
| Citation | 158 P.2d 826,66 Idaho 262 |
| Parties | RAY W. BANBURY, Special Administrator of the Estate of Louise W. Hazzard, Respondent, v. F. M. BRAILSFORD, otherwise known as Frederick M. Brailsford, a bachelor, Appellant |
| Court | Idaho Supreme Court |
Original Opinion of February 13, 1945, Reported at 66 Idaho 262. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Miller, J. Holden, J., concurs. Ailshie, C. J., concurs in the conclusion reached in the original opinion that the judgment should be reversed and the cause remanded with directions to grant a change of venue; also concurs in the dissent of Givens, J., with reference to the question of jurisdiction. Budge, J., concurring in part and dissenting in part. Givens, J., dissenting.
Following the filing of the original opinion herein, respondent filed a petition for a rehearing. The petition for a rehearing was granted and a rehearing had April 24. Since the rehearing this court has re-examined the questions presented on the original hearing and has carefully examined the questions presented by the petition for a rehearing, but finds no reason for changing the views expressed in the original opinion.
Ailshie, C. J., concurs in the conclusion reached in the original opinion that the judgment should be reversed and the cause remanded with directions to grant a change of venue; also concurs in the dissent of Givens, J., with reference to the question of jurisdiction.
CONCUR BY: BUDGE (In Part)
I agree with the conclusion reached in the majority opinion that the judgment should be reversed.
In my opinion this action is a local and not a transitory action; that the district court of Twin Falls County was without jurisdiction over the subject-matter involved, which objection may be raised at any time and cannot be waived. (1 C.J. p. 35, sec. 26.) Therefore, said district court had no jurisdiction to enter the judgment or to make any orders in connection with the proceedings had. I am fully satisfied, both upon principle as well as by the provisions of sec. 5-401, I.C.A., (see also Taylor v. Sommers Bros. Match Co., 35 Ida. 30, 204 P. 472, 42 A.L.R. 189) that an action involving real property, or any right, title or interest therein, must be commenced in the county or judicial district where the real property is situated.
The only property here involved was real property located in Gooding County, one of the counties comprising the Fourth Judicial District. The record definitely and conclusively establishes the foregoing statement. Consequently, it would follow that the District Court of the Eleventh Judicial District, in and for Twin Falls County, never having acquired jurisdiction over the subject-matter involved for any purpose, could neither render nor enter a valid judgment or order in relation thereto. Therefore, I am not inclined to hold with the majoritiy opinion wherein it states:
"For the reasons herein stated, the action is remanded with directions to the trial court to grant the motion for change of place of trial."
The trial court, upon receipt of the remittitur, should dismiss the action without prejudice. (Urton v. Woolsey (Cal.), 25 P. 154; Fritts v. Camp (Cal.), 29 P. 867; State v. Royal Consol. Mining Co. (Cal.), 202 P. 133; Nashville v. Webb (Tenn.), 4 Ann. Cas. 1169.)
By petition for rehearing, respondent urges that appellant, not having appealed from the order denying the change of place of trial as provided by sub-division 2, Section 11-201, I.C.A., may not now question the correctness thereof, relying on Maple v. Williams, 15 Ida. 642, 98 P. 848; Ringer v. Wilkin, 32 Ida. 330, 183 P. 986; Boise Assn. of Credit Men v. Insurance Co., 44 Ida. 249, 256 P. 523.
Appellant counters with the proposition that those cases involved transitory actions, whereas this is local, and exclusive jurisdiction is in the county where the real estate is situated, and lack of such jurisdiction may be raised any time and any place.
The majority opinion initially held to such effect, but on the first argument respondent did not urge the failure to appeal from the order as a bar and the point was not discussed.
Appellant now contends that not thus having been previously raised, it cannot now be considered on rehearing. The court has held to the contrary.
* * *" (Olympia Min. Co. v. Kerns, 13 Ida. 514 at 527, 91 P. 92.)
The reason now advanced by respondent could certainly have been urged in the first instance and the court above specifically states, "any questions that could have been properly raised on the original hearing could be presented on the rehearing."
Appellant sought a change of venue and in his appeal from the judgment urges that the trial court was in error in denying it. The question of venue has at all times been in the case at appellant's instance so he may not complain that it be fully considered on the merits. (Malcolm v. Hanmer, 64 Ida. 66, on petition for rehearing at 86, 127 P.2d 331.)
The court has even entertained a second rehearing and considered matters not theretofore similarly urged.
"While, as a matter of strict legal right, failure of counsel sufficiently to present a cause for determination is no ground for a rehearing, and matters presented for the first time on application for rehearing need not necessarily be considered (4 C.J., p. 627, sec. 2488, p. 629, sec. 2494), it is more essential that justice be done than that exact or technical rules of practice or procedure be followed. * * *" (Emphasis ours). (Wallace B. & T. Co. v. First Nat. Bk., 40 Ida. 712 at 725, Opinion on rehearing at 724, 237 P. 284.)
The pivotal question is whether the statutes of this state have so irremovably fixed the venue of actions involving real property in the county where the same is situated that by failure to follow the statutory procedure outlined to enforce a trial therein, the right so to do is waived.
The cases relied upon by appellant to support his ultimate contention that Section 5-401, I.C.A. confers exclusive jurisdiction on the county where the property is located, on analysis and consideration of the grounds for their holdings, in light of the difference between the underlying constitutional and statutory provisions there considered and our statutes render such authorities entirely inapplicable.
While it is true that Section 5-401, I.C.A. is identical with Section 392 of the California Court of Civil Procedure, the California authorities cited did not place their holding of exclusive jurisdiction on such statute, but upon a provision in the California constitution, Article VI, Section 5, which we do not have, which is clearly apparent from a cursory reading of the opinions.
* * *" (Urton v. Woolsey (Cal.), 25 P. 154 at 155.)
It will be noted that in the above case no reference whatever is made to the statute.
* * *" (Fritts v. Camp (Cal.), 29 P. 867 at 868.)
"Pursuant to the foregoing constitutional provision, section 392 of the Code of Civil Procedure similarly confers jurisdiction upon the courts in the county in which the real property, which is the subject of the action, is situated, in partition suits, foreclosure of mortgages and other liens on real property, and in suits to recover possession of the property or an interest therein, to determine, in any form, the rights or interests in such property and for injuries thereto." (Vaughan v. Roberts (Cal.), 113 P.2d 884 at 889.)
It will be noted that the court in the last cited case states the statute was pursuant to the constitutional provision; absent such constitutional provision, there is no basis for holding that the statute gives exclusive jurisdiction, that is, jurisdiction which cannot be waived.
The Washington courts have held the jurisdiction exclusive because of two reasons, neither of which are pertinent or controlling in view of the differences in the statutes.
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...place in the clerk's office in each county in the district and published in the Idaho State Bar Desk Book.'8 See Banbury v. Brailsford, 66 Idaho 262, 158 P.2d 826 (1945). Cf. Union Central Life Ins. Co v. Albrethsen, 50 Idaho 196, 294 P. 842 (1930).9 See Banbury v. Brailsford, supra n. 8; K......
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