Berding v. Varian

• Decision Date: 30 November 1921
• Docket Number: 3736,3732
• Citation: 202 P. 567,34 Idaho 587
• Parties: NATALIE V. BERDING, Plaintiff, v. B. S. VARIAN, Judge of the District Court of the Seventh Judicial District, J. W. SLICK and W. B. SLICK and NORTHWESTERN SECURITIES COMPANY, a Corporation, Defendants. NATALIE V. BERDING, Respondent, v. NORTHWESTERN SECURITIES COMPANY, a Corporation, and J. W. SLICK and W. B. SLICK, Appellants
• Court: Idaho Supreme Court

202 P. 567

34 Idaho 587

NATALIE V. BERDING, Plaintiff, v. B. S. VARIAN, Judge of the District Court of the Seventh Judicial District, J. W. SLICK and W. B. SLICK and NORTHWESTERN SECURITIES COMPANY, a Corporation, Defendants.

NATALIE V. BERDING, Respondent, v. NORTHWESTERN SECURITIES COMPANY, a Corporation, and J. W. SLICK and W. B. SLICK, Appellants

Nos. 3732, 3736

Supreme Court of Idaho

November 30, 1921

MANDAMUS-PETITION-DEMURRER-MOTIONS TO DISMISS APPEALS-GROUNDS-COMPLIANCE WITH STATUTES.

In a proceeding for writ of mandate to compel performance of a certain act by an officer or tribunal it should be made to appear that the petitioner has sought to obtain from such officer or tribunal the performance of substantially the same act as petitioner seeks by such writ to compel such officer or tribunal to perform.

Original proceeding for Writ of Mandate. Defendants demur. Demurrer sustained; alternative writ quashed and peremptory writ denied.

Motions to dismiss appeals denied.

Motions to dismiss the appeals denied, with costs.

R. E Haynes and Isham M. Smith, for Plaintiff and Respondent.

The object of the stay bond is to prevent the enforcement of a decree or judgment pending the appeal, and if the stay bond is not given, the enforcement of such decree is not stayed. (California Mortgage & Savings Bank v. Graves, 129 Cal. 649, 62 P. 259; Montgomery v. Tutt, 11 Cal 190, 191; Union Mutual Life Ins. Co. v. Windett, 36 F. 838; State v. Thiele, 19 Neb. 220, 27 N.W. 109; Collins v. Brown, 64 Neb. 173, 89 N.W. 754; Evans v. Kahr, 60 Kan. 719, 57 P. 950, 58 P. 467; Freeman on Judgments, 4th ed., 484.)

The right to writ of assistance is a part of every decree not only of foreclosure and sale, but of strict foreclosure. (Harding v. Harker, 17 Idaho 341, 134 Am. St. 259, 105 P. 788; Griswold v. Simmons, 50 Miss. 123; Diggle v. Boulden, 48 Wis. 477, 4 N.W. 678; Baldwin v. MacDonald, 24 Wyo. 108, 156 P. 27; Johnston v. Smith's Admr., 70 Ala. 108.)

"No stay of execution is effected by an appeal unless by virtue of some statutory provision." (Reed Orchard Co. v. Superior Court, 19 Cal.App. 648, 128 P. 9, 16.)

The superior court has no general power to stay execution of its judgment pending appeal. Such power can only be exercised when a supersedeas bond is given. (Mannix v. Superior Court, 157 Cal. 730, 109 P. 264; Hoppe v. Hoppe, 99 Cal. 537, 34 P. 222; Gray v. Palmer, 28 Cal. 416, 419; 3 C. J., sec. 1054, p. 1056.)

The statute gives the right of appeal from the judgment as entered. The Idaho decisions do not recognize the right to appeal from a judgment as filed. The appeal lies only from the judgment as entered in the judgment-book. (Durant v. Comegys, 3 Idaho 67, 35 Am. St. 267, 26 P. 755; Santti v. Hartman, 29 Idaho 490, 161 P. 249; Wood, Curtis & Co. v. Missouri-Pacific R. R. Co., 152 Cal. 344, 92 P. 868; Thomas v. Anderson, 55 Cal. 43; Schurtz v. Romer, 81 Cal. 244, 22 P. 657.)

W. C. Bicknell, for Defendants and Appellants Slick.

Writ of mandate will not lie against a court, unless it be clearly shown that such court has refused to perform some manifest duty. (Lindsey v. Carlton, 44 Colo. 42, 96 P. 997; Blackwell Lumber Co. v. Flynn, 27 Idaho 632, 150 P. 42.)

Hawley & Hawley, for Appellant N.W. Securities Co.

A motion to dismiss an appeal presents only the question of whether or not the statutory requirements as to the mode of taking the appeal have been observed. (Bohannon Dredging Co. v. England, 30 Idaho 721, 168 P. 12, and cases therein cited.)

Inasmuch as the capacity of the Northwestern Securities Company to appeal in this action and to maintain a cross-complaint was never questioned in the lower court, the question of its capacity cannot be raised in this court. (Dahlstrom v. Walker, 33 Idaho 374, 194 P. 847; Anthes v. Anthes, 21 Idaho 305, 121 P. 553; Thelen v. Thelen, 32 Idaho 755, 188 P. 40; Wilson v. Wilson, 26 Ore. 251, 38 P. 185; Wright v. Wayland (Mo. App.), 188 S.W. 928.)

DUNN J. Budge, McCarthy and Lee, JJ., RICE, C. J., concurring.

OPINION

DUNN, J.

Respondent has moved to dismiss the appeal of Northwestern Securities Company on the ground that said company has not at any time complied with C. S., sec. 4706, and has defaulted in all the payments required to be made under the contract between the said company and the respondent and that said company's rights under its contract are nugatory.

She has also moved to dismiss the appeal of J. W. Slick and W. B. Slick on the grounds: First, that said appeal is taken from a judgment made and filed on November 19, 1920, and not from a judgment made and entered on said date; second, that the appeal on behalf of said J. W. Slick and W. B. Slick is a moot appeal for the reason that the decree entered herein declares the contract between respondent and said J. W. Slick and W. B. Slick to be in full force and effect, provided said J. W. Slick and W. B. Slick should pay to the respondent within 60 days from November 16, 1921, the sum of $ 32,754.61, with 7 per cent interest from said date, and said payment has not been made; that no bond staying the execution of said judgment has been filed and no application made by said appellants to have the trial court fix the amount of such stay bond, nor any application made by said appellants for an extension of time within which to give such stay bond; third, that the said J. W. Slick and W. B. Slick do not come into this court of equity on appeal with clean hands; that the said J. W. Slick and W. B. Slick have each committed iniquity respecting the subject matter of this appeal, to wit, the lands and premises in controversy, and that neither the said J. W. Slick nor W. B. Slick, nor anyone for them, had ever offered to do equity.

As to the motion to dismiss the appeal of the Northwestern Securities Company, we think the objection that said appellant has not complied with C. S., sec. 4706, is not well taken, for the reason that it was not raised in the court below. It was there stipulated by the respondent and said appellants as follows:

"It is hereby stipulated by and between counsel for all parties to this action that Northwestern Securities Company, an Oregon corporation, is and at all times mentioned in the complaint was qualified to do business in the state of Idaho by virtue of a full compliance with the laws of Idaho relative to foreign corporations doing business in Idaho."

No objection was there raised as to the right of said corporation to maintain or defend the action, and we think such objection was waived. The other ground goes to the merits of the case in this court and does not subject the appeal to dismissal.

The first ground upon which a dismissal is asked against J. W. Slick and W. B. Slick is without merit for the reason that under our statute when a judgment is filed it is deemed in law to be entered. (C. S., sec. 6899.)

As to the second ground, while the record shows no filing of a stay bond, this does not authorize the dismissal of the appeal.

The matters set up under the third ground, we think, are such as must be dealt with in considering the appeal on the merits and do not entitle respondent to a dismissal.

Respondent has also filed a petition for a peremptory writ of mandate commanding B. S. Varian, as judge of the district court of the seventh judicial district in and for county of Payette to carry into effect the decree heretofore rendered in this cause and to give the respondent all writs and processes necessary to bring her into immediate possession of the lands and premises referred to in the complaint herein. An alternative writ of mandate was issued requiring the said judge and said appellants to show cause why said peremptory writ should not be issued as prayed for by said respondent. The application for this writ is based upon the petition and the transcript on file in this court in the case of Natalie V. Berding, Respondent, v. J. W. Slick and W. B. Slick, Appellants. No answer to the petition was filed, but defendants B. S. Varian, J. W. Slick and W. B. Slick demurred to the petition and moved to quash the alternative writ of mandate, "for the reason that the facts alleged in the petition are insufficient to invoke relief by mandamus." The decree entered in said case required said appellants to pay respondent $ 32,754.61 within 60 days from November 16, 1920, and upon such payment being made that respondent should execute and deliver to appellants a warranty deed conveying to them the property in controversy clear of all encumbrances except a certain mortgage, and in default of such payment upon application of respondent to the district court "the said J. W. Slick and W. B. Slick, or their assigns, shall be declared in default in said contract, and that thereupon all payments made by said J. W. Slick and W. B. Slick, or their assigns, shall be forfeited to Natalie V. Berding and title in said above-described real property be forever quieted in said Natalie V. Berding, plaintiff, as against any right, title, interest, claim, lien or equity claimed or to be claimed upon the part of said J. W. Slick or W. B. Slick or either of them, or by their administrators, executors or assigns, by virtue of said contract." An examination of the transcript shows that the respondent on February 11, 1921, filed in the district court of Payette county her motion for, "an order of default against J. W. Slick and W. B. Slick, declaring them and each of them in default in said contract entitled plaintiff's exhibit 'A' in said cause, and further, that all payments made by said J. W. Slick and W. B. Slick be forfeited to Natalie V. Berding, plaintiff, and that title to the real property named in said plaintiff's complaint be forever quieted in said Natalie V. Berding as against any...