Barker v. McKellar

• Decision Date: 31 December 1930
• Docket Number: 5639
• Citation: 296 P. 196,50 Idaho 226
• Parties: JOHN A. BARKER, Respondent, v. PETER MCKELLAR, Appellant
• Court: Idaho Supreme Court

296 P. 196

50 Idaho 226

JOHN A. BARKER, Respondent, v. PETER MCKELLAR, Appellant

No. 5639

Supreme Court of Idaho

December 31, 1930

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Action for specific performance of contract to convey real property. From judgment denying same and awarding compensation for improvements, and order striking notice of motion for new trial, defendant appeals. Affirmed.

Judgment and order affirmed. Costs to respondent. Petition for rehearing denied.

E. V Boughton, for Appellant.

It is the contention of appellant that the notice of motion in itself is sufficient, under C. S., sec. 6890, subd. 2, to retain the jurisdiction of the case in the trial court for the purpose of considering a motion for a new trial. In the case of Times Printing & Pub. Co. v. Babcock, 31 Idaho 770, 777, 176 P. 776, this court said: "We are of the opinion that the notice of motion for a new trial, if filed within the time required by statute, continues the jurisdiction of the trial court to rule upon the merits of the motion."

Again in the case of Brockman v. Hall, 37 Idaho 564, 218 P. 188, the court had under consideration the question of jurisdiction conferred by the notice of motion for a new trial, and especially approved the language in the case of Times Printing & Pub. Co. v. Babcock, supra.

Reed &amp Reed, for Respondent.

Specification of error No. 7, that the court erred in rendering judgment for damages in favor of respondent, is fully answered by the following authorities: 36 Cyc. 681-684; Grice v. Woodworth, 10 Idaho 459, 109 Am. St. 214, 80 P. 912, 69 L. R. A. 584; Elliot v. Craig, 45 Idaho 15, 260 P. 433; Henrikson v. Henrikson, 143 Wis. 314, 127 N.W. 962, 33 L. R. A., N. S., 534; Superior Oil & Gas Co. v. Mehlin, 25 Okla. 809, 138 Am. St. 942, 108 P. 545; Kinsell v. Thomas, 18 Cal.App. 683, 124 P. 221; 25 R. C. L. 280, 346, 347.

In this case the complaint, in addition to praying for specific performance, also prayed for "such other and further relief as may be just and equitable." The argument of the appellant that our statute prohibits the granting of relief not demanded in the complaint does not apply in a case where the defendant has answered, as the court may grant any relief consistent with the case made by the complaint and embraced within the issues. (C. S., sec. 6829; Stocker v. Kirtley, 6 Idaho 795, 59 P. 891; Burk Land Co. v. Wells Fargo Co., 7 Idaho 42, 60 P. 87; Dover Lbr. Co. v. Case, 31 Idaho 276, 170 P. 108.)

C. S., sec. 6888, specifies the particular grounds upon which a motion for a new trial may be made. Clearly, it was the intention as the statute provides, that the party giving notice of a motion for a new trial must incorporate in his notice to the opposite party two things: First, he must, out of the seven grounds for a new trial in sec. 6888, name one or more of said grounds; and, second, he must specify in said notice whether the motion will be made upon affidavits or the records and files in the action, or the minutes of the court. If the notice of intention or notice of motion, whichever it may be called, is sufficient in this case, then the entire procedure or requirements specified in sec. 6890 are of no effect. (Farmers & Merchants' Bank v. Hartford Ins. Co., 43 Idaho 222, 253 P. 379; Brockman v. Hall, 37 Idaho 564, 218 P. 188.)

This very point has been decided by the supreme court of the state of Idaho in the case of Newby v. City of St. Anthony, 49 Idaho 299, which appears in 287 P. 953, in which it is held as follows:

"The Statute (C. S., Sec. 6890) requires the party moving for a new trial to file with the Clerk and serve upon the adverse party a notice of his motion, designating the grounds upon which the motion will be made. . . . The form of the notice is immaterial so long as it complies with the requirement of the statute."

VARIAN, J. Givens, C. J., and Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Respondent brought this action for specific performance of an oral contract to convey certain land near Huetter, Idaho. From a decree awarding compensation for permanent improvements in lieu of specific performance, and an order striking notice of motion for a new trial, defendant appeals.

Appellant is the uncle of respondent's wife. The court found: That appellant on March 12, 1929, was the owner of the northwest quarter of the southwest quarter of section 4, township 50 north, range 4, W. B. M., in Kootenai county; that said land was of little value, and in furtherance of a desire to increase its value appellant wrote to respondent in Florida and offered to give him sufficient land upon which to erect a gasoline service station, chicken-houses, and an automobile tourist camp, if respondent would come to Kootenai county and erect said mentioned buildings, and offered to pay for all materials used in said buildings if respondent would pay for the labor in constructing said buildings; that thereafter respondent came to Kootenai county, and appellant chose a site upon which to erect said buildings; that appellant, pursuant to his said offer, furnished materials used in building said gasoline service station and living-rooms, amounting to about $ 800; that respondent furnished all of the labor in constructing said building, expending therefor the sum of $ 2,090.03, and performed labor in said construction of the value of $ 300; that about October 1, 1929, respondent went into possession of the buildings so constructed by the parties, and ever since has been in such possession; that their rental value is $ 30 per month; that appellant's offer and respondent's acceptance thereof was a just and equitable contract and agreement between them, for the reason that appellant's real estate, at the time of his offer, did not exceed $ 40 per acre in value, and that the buildings increased and enhanced the value of appellant's adjoining lands; that respondent has purchased under contract two gasoline pumps, located on the premises, and for which he has not fully paid; that appellant agreed to convey to respondent sufficient land upon which to erect a service station and other buildings but that said land was not sufficiently described, either as to quantity or survey, so as to entitle respondent to specific performance of said agreement. The court concluded that respondent was not entitled to specific performance, but was entitled to judgment against appellant for $ 2,390.03, less $ 240, reasonable rental value for the time the premises were occupied by respondent; that appellant was entitled to a quitclaim deed from respondent of his interest in said buildings, etc.

The court's action in striking appellant's notice of motion for a new trial is assigned as error. Findings of fact, conclusions of law and judgment entered thereon were served upon counsel for appellant on May 24, 1930. On June 2, 1930, appellant served and filed a notice of motion for a new trial, which, omitting the title, date, signature and to whom addressed, reads:

"Please take notice that the above-named defendant intends to and will move the court for a new trial in the above-entitled matter. Said motion will be hereafter filed and served within twenty (20) days from the date hereof, or such further time as the court may allow."

On the same date the trial judge signed the following ex parte order, viz.:

"It is hereby ordered that the name of E. V. Boughton shall be entered as attorney for defendant, and that defendant may have up to and including the 15th day of July, 1930, in which to prepare, file, and serve his motion for a new trial with specifications."

Four days later, respondent filed a motion to strike the notice of motion for a new trial, because it did not comply with the requirements of C. S., sec. 6890. Thereafter, appellant filed his "motion for a new trial" designating numerous specifications of error under two main statutory grounds, i. e., insufficiency of the evidence to justify the judgment, and errors of law occurring at the trial. Later, on June 28, 1930, the court entered an order striking the notice of motion, etc.

C. S., sec. 6890, provides that a party intending to move for a new trial must, within ten days after notice of the decision of the court or referee, if tried without a jury, "file with the clerk and serve upon the adverse party a notice of his motion designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the records and files in the action, or the minutes of the court."

C. S., sec. 6890, subd. 2, reads:

"When the motion is to be made upon minutes of the court, and the ground of the motion is the insufficiency of evidence to justify the verdict or other decision, the notice of motion must specify the particulars in which the evidence is alleged to be insufficient; and, if the ground of the motion be errors in law occurring at the trial, and excepted to by the moving party or deemed excepted to, the notice must specify the particular errors upon which the party will rely. If the notice of motion does not contain the specifications herein designated the moving party may at any time within twenty days after filing such notice of motion, or within such further time as the court may allow, file a notice containing such specifications and serve a copy of the same upon the adverse party, and unless he do so the motion must be denied."

Apparently the last clause of this subdivision is designed to permit the movant to specify the particulars in which the evidence is insufficient, or what errors of law occurred, within twenty days after filing the notice of motion, or such further time as the court may allow. It does not excuse ...