Bates v. Price

• Decision Date: 28 June 1917
• Citation: 166 P. 261,30 Idaho 521
• Parties: J. L. BATES, Respondent, v. D. W. PRICE, Appellant
• Court: Idaho Supreme Court

166 P. 261

30 Idaho 521

J. L. BATES, Respondent, v. D. W. PRICE, Appellant

Supreme Court of Idaho

June 28, 1917

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.

Action for money had and received. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

James A. Wayne, for Appellant.

The district court acquired no jurisdiction to grant to the plaintiff a trial de novo, and the lack of jurisdiction in the district court can be raised at any time, and was not waived by a failure to object to the jurisdiction of the court by demurrer or answer; neither was it waived by proceeding to trial without objection. (Aram v Edwards, 9 Idaho 333, 74 P. 961.)

This court has had occasion to discuss the impropriety of remarks similar to those of counsel in this case, when made in the course of a trial, and under these decisions the remarks of counsel in this case constitute reversible error. (Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Petajaniemi v. Washington Water Power Co., 22 Idaho 20-28, 124 P. 783; Powers v. Boise City, 22 Idaho 286, 125 P. 194; McLean v. Hayden Creek Mining Co., 25 Idaho 416, 138 P. 331; State v. Harness, 10 Idaho 18, 76 P. 788; State v. O'Neil, 24 Idaho 582 599, 135 P. 60.)

T. P Wormward and Chas. E. Miller, for Respondent.

Alleged errors which were not, but could have been, called to the attention of the court below, will not be entertained, for the first time, on appeal to this court. (Smith v. Sterling, 1 Idaho 128; Miller v. Donovan, 11 Idaho 545, 83 P. 608; Marysville M. Co. v. Home Fire Ins. Co., 21 Idaho 377, 121 P. 1026.)

In an ordinary trading partnership, either partner has an implied authority to pay debts from the assets of the firm, in the ordinary course of the business. (M. A. L. 343; Benchley v. Chapin, 10 Cush. (64 Mass.) 173.)

A judgment cannot be reversed because of improper remarks of counsel in his argument to the jury, to which no exception was taken. (Mississippi Cent. R. Co. v. Turnage, 95 Miss. 854, 49 So. 840, 24 L. R. A., N. S., 253.)

To warrant a reversal for remarks of counsel in his argument to the jury, they must be prejudicial. (Pigford v. Norfolk S. R. Co., 160 N.C. 93, 75 S.E. 860, 44 L. R. A., N. S., 865.)

Improper argument by counsel will not require a reversal if from the whole case it is evident that it did not prejudice the rights of the complaining party. (Paducah B. & B. Co. v. Parker, 143 Ky. 607, 136 S.W. 1012, 43 L. R. A., N. S., 179.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

This action was originally instituted and tried in the probate court of Shoshone county, where judgment was rendered in favor of the appellant. The case was then appealed to the district court and was there tried before a jury, resulting in a verdict and judgment for respondent. A motion for a new trial was denied, and this appeal is from the judgment and the order denying the motion for a new trial.

Respondent had been employed by Hollar & Plemmons, co-partners, engaged in the livery business at Kellogg, who were indebted to him for past services. One Barnhart and one Roberts were each indebted to Hollar & Plemmons and on October 6, 1914, Hollar gave respondent on order on Barnhart for $ 229.50, signed Hollar & Plemmons, per M. E. Hollar, and an order on Roberts for $ 105, signed M. E. Hollar, in payment of their indebtedness to respondent. Shortly thereafter, in an action brought by the First State Bank of Kellogg against Hollar & Plemmons for the foreclosure of several mortgages, appellant was appointed receiver of certain property belonging to them. Respondent thereafter turned the two above orders over to appellant to collect. Appellant collected the sum of $ 292 on the two accounts and instead of turning the money over to respondent accounted for it in the receivership action. Respondent brought this action to recover the amount collected on the accounts, alleging that at the time they were turned over to appellant the latter agreed to collect the same and to immediately pay the money so collected over to respondent.

Appellant answered, admitting that he had received the orders from respondent, but denied that they were signed by Hollar & Plemmons and that Hollar & Plemmons had any authority to sign the orders, and denied that he agreed to collect the orders for respondent or to pay him the amount collected thereon, and alleged that the orders were delivered to him as receiver and collected in that capacity.

The evidence on behalf of respondent sustains the issues on his part and in rebuttal to appellant's testimony, to the effect that he had received the orders as receiver, respondent introduced the complaint and order in the receivership action, from which it appears that the receiver was authorized by the court to take possession of the property described in the mortgages, which were being foreclosed. One of the mortgages and the order, after describing in detail certain personal property, such as horses, rigs, wagons, sleighs, harness, whips, robes, sleigh-bells, hay and oats, contained the following clause: "And all that goes with the livery business connected with the Charles L. Hollar barn."

Numerous errors are assigned, and for the purpose of argument have been grouped by appellant as follows: First, the defective notice of appeal; second, errors committed by the trial court; third, misconduct of counsel for the plaintiff; and fourth, insufficiency of the evidence.

It appears that the notice of appeal from the probate to the district court contained only the following statement, with reference to the matter appealed from: "Plaintiff appeals . . . . from the judgment of dismissal entered herein against him and in favor of defendant, on the 2d day of April, 1915, and from the whole thereof." It is contended by appellant that this notice was insufficient to give the district court jurisdiction of the cause, reliance being placed upon section 4838, Rev. Codes, which provides, among other things: "The appeal is taken by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party. The notice must state whether the appeal is taken from the whole or a part of the judgment, and if from part, what part, and whether the appeal is taken on questions of law or fact, or both." The notice of appeal from the probate to the district court was never served on appellant. It appears from the record that appellant appeared in the district court, asked leave to file and did file an answer and tried the cause, without raising any objection to the jurisdiction upon the ground of the defective notice of appeal. The rule is well settled that, where an appeal is taken from a justice or probate court to the district court, a general appearance on the part of the one opposing the appeal waives all defects and irregularities on the proceedings for appeal. (24 Cyc. 694; Shay v. Superior Court, 57 Cal. 541; Claflin v. American Nat. Bank, 46 Neb. 884, 65 N.W. 1056; McCombs v. Johnson, 47 Mich. 592, 11 N.W. 400; Wrolson v. Anderson, 53 Minn. 508, 55 N.W. 597.) The reason for the rule is well stated in the latter case as follows: "The district court has original jurisdiction without respect to the amount in controversy, and had jurisdiction of the subject matter of this action, if the parties voluntarily appeared and submitted the controversy to the court, which it is very clear they did do. After the pleadings were amended, and the case voluntarily set for trial, it was too late to move to dismiss, and the irregularity in the mode of bringing the case into the court in the first instance was waived. The parties appeared in the district court, and consented to the trial of a controversy, the subject of which was within the jurisdiction of the court."

Several errors are assigned as to the admission of evidence and to the giving and refusal to give certain instructions. We have carefully examined the record and are unable to find that the court committed any error in this respect.

During the course of his argument counsel for responden...