Blaine County Investment Company v. Mays

• Court: Idaho Supreme Court
• Writing for the Court: BUDGE, J.
• Citation: Blaine County Investment Company v. Mays, 15 P.2d 734, 52 Idaho 381 (Idaho 1932)
• Decision Date: 26 October 1932
• Docket Number: 5789
• Parties: BLAINE COUNTY INVESTMENT COMPANY, a Corporation, Appellant, v. ROBERT G. MAYS et al., Respondents

15 P.2d 734

52 Idaho 381

BLAINE COUNTY INVESTMENT COMPANY, a Corporation, Appellant, v. ROBERT G. MAYS et al., Respondents

No. 5789

Supreme Court of Idaho

October 26, 1932

APPEAL AND ERROR-APPEALABLE ORDER-JUDGMENT-DECISION-SUPPLEMENTARY JUDGMENT.

1. Written findings of fact and conclusions of law filed with clerk constitute "decision" of court within statute requiring decision within certain time after submission of cause (C. S., sec. 6866).

2. Term "decision" does not mean "judgment" (C S., sec. 6867).

3. Written findings of fact and conclusions of law cannot be considered as final judgment or order from which appeal will lie (C. S., secs. 6826, 6867, 7152).

4. Order directing entry of judgment is not appealable order (C S., sec. 7152, subd. 2).

5. Supplementary decree entered upon remittitur held final judgment from which appeal will lie (C. S., secs. 6899 7152).

6. Appeal may be taken from part of final judgment (C. S., sec 7153).

7. Transcript on appeal from supplementary judgment entered on remittitur need only contain so much of proceedings as have taken place subsequently to remandment of cause.

8. Record on prior appeal in same case in same court is judicially noticed by the latter.

9. If on examination of record on appeal from supplementary judgment entered upon remittitur it is determined that mandate has been complied with, appeal will be dismissed.

10. If on examination of record it is determined that mandate of appellate court has not been complied with, appeal will lie from supplementary judgment, and cause will be remanded with directions for amendment of decree.

APPEAL from the District Court of the Sixth Judicial District, for Butte County. Hon. Ralph W. Adair, Judge.

Motion to dismiss appeal from order. Sustained. Motion to dismiss appeal from supplemental judgment. Denied. Appeal from supplemental judgment entered upon remittitur. Affirmed in part and modified in part.

Judgment affirmed. No costs allowed.

Peterson & Clark, for Appellant.

The decree of the trial court purporting to modify its original decree to conform to the remittitur of the supreme court is a final judgment and appealable as such. (Randall v. Duff, 107 Cal. 33, 40 P. 20; Lambert v. Bates, 148 Cal. 146, 82 P. 767; Rudiger v. Coleman, 148 A.D. 682, 132 N.Y.S. 990; Sayre v. State, 128 N.Y. 622, 27 N.E. 1079; Re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414.)

If the judgment appealed from in this case is not a final judgment, then it is a special order made after judgment and hence appealable. (McElroy v. Whitney, 24 Idaho 210, 133 P. 118; State v. District Court of Second Judicial District, 32 Mont. 20, 79 P. 410.)

F. J. Cowen and Irvine, Skeen & Thurman, for Respondents.

If it is desired to have this order reviewed by the supreme court, the appeal must be taken from the final judgment, consisting of the original with these modifications, and it would be considered to have become final at the time the modifications were added to it under the terms of the order. (Weiser Irr. Dist. v. Middle Valley etc. Co., 28 Idaho 548, 155 P. 484; Maple v. Williams, 15 Idaho 642, 98 P. 848; Richards v. Richards, 24 Idaho 87, 132 P. 576.)

BUDGE, J. Lee, C. J., and Givens, Varian and Leeper, JJ., concur.

OPINION

BUDGE, J.

On October 3, 1930, this court issued its remittitur in the case of Blaine County Investment Co. v. Mays, 49 Idaho 766, 291 P. 1055, directing the trial court to modify the judgment theretofore entered in the lower court in the particulars specified in the opinion of this court and the remittitur. Thereafter, on June 11, 1931, the trial court made and entered a supplemental decree reciting that the same was "made and entered in the said cause in conformity . . . . with the decision and mandate of said Supreme Court," in which it amended and modified the original findings and conclusions of law by amending one finding and one conclusion of law and adding a new finding, and amended and modified the original decree by amending two paragraphs thereof and adding two new paragraphs thereto.

The following order appears following the supplemental decree and a part thereof, to wit:

"Order: The Clerk of the above entitled District Court is hereby ordered and directed to record the foregoing amendments, modifications and substitutions as a part of the original judgment herein, and he is further directed to note on the said original Findings, Conclusions, and Judgment at the paragraphs which have been amended hereby, a reference indicating that changes have been made in said Judgment and directing attention to this modified Judgment as the same may appear upon his records."

The following notation appears after the above order:

"Entered and docketed Book 2 Orders and Decrees, page 55. June 16, 1931."

In the transcript the clerk's certificate indicates that the supplemental judgment was properly entered.

Blaine County Investment Company has appealed "from that certain order and judgment dated June 11, 1931, filed June 16, 1931, entitled 'Decree modifying the original decree to conform to remittitur from Supreme Court'" and also "from the finding and conclusions of the District Court upon which said decree is predicated."

Taking up first the attempted appeal from the findings and conclusions, the written findings of fact and conclusions of law filed with the clerk constitute the decision of the court within the meaning of C. S., sec. 6866 (Caldwell v. Wells, 16 Idaho 459, 101 P. 812; Stewart Min. Co. v. Ontario Min. Co., 23 Idaho 724, 132 P. 787; Smith v. Faris-Kesl Const. Co., 27 Idaho 407, 150 P. 25), and the term "decision" does not mean the judgment. (Caldwell v. Wells, supra.) C. S., sec. 6867, provides that judgment upon the decision must be rendered accordingly. A judgment is the final determination of the rights of the parties in an action or proceeding. (C. S., sec. 6826.) As the judgment is based upon the decision, i. e., the findings of fact and conclusions of law, it follows that such findings and conclusions cannot be considered as a final judgment or order within the meaning of C. S., sec. 7152, from which an appeal will lie, and the attempted appeal therefrom is therefore dismissed.

Respondent has moved to dismiss the appeal from the order quoted above on the ground that the same is not an appealable order. Such order amounts to nothing more than a direction to the clerk to enter up the supplemental decree and to make appropriate references thereto upon the original findings, conclusions and decree. An order directing entry of judgment is not an appealable order within the meaning of C. S., sec. 7152, subd. 2. (Durant v. Comegys, 3 Idaho 67, 35 Am. St. 267, 26 P. 755; Bissing v. Bissing, 19 Idaho 777, 115 P. 827; Hodgins v. Harris, 4 Idaho 517, 43 P. 72; Santti v. Hartman, 29 Idaho 490, 161 P. 249; Witty v. Wells, 39 Idaho 20, 225 P. 1020; White v. Stiner, 36 Idaho 129, 209 P. 598.) The appeal from the order should be dismissed and it is so ordered.

Respondent has also moved to dismiss the appeal from the supplemental decree on the ground that the same is not a final judgment upon which an appeal will lie, and contends that if in fact the clerk complied with the order with respect to the supplemental decree, the same became a part of and merged in the original decree, and it was necessary for appellant to appeal from the original decree as amended, and that it could not appeal from the modified portion alone. However, C. S., sec. 6899, provides that:

". . . . a judgment shall be deemed to be entered when, being duly rendered, it is deposited in the office of the clerk of the court with the proper officer for entry, and upon such deposit the clerk shall indorse upon such judgment the date of the filing of the same under or following the word 'entered.'"

In view of the fact that the supplemental decree bears a notation of entry and filing as above pointed out, the same is deemed properly entered. The certificate of the clerk would also indicate that the supplemental judgment has been properly entered. If it be contended that the supplemental decree is but a part of the judgment, an appeal may be taken from a part of a final judgment, C. S., sec. 7153, providing that "an appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof. . . . " See, also, McClain v. Lewiston Interstate etc. Assn., 17 Idaho 63, 20 Ann. Cas. 60, 104 P. 1015, 25 L. R. A., N. S., 691), which is separable from the remainder. (8 Bancroft's Code Prac., sec. 6267, p. 8325.) The parts of the judgment here modified and amended are separable. On the other hand, the original decree cannot be amended or modified by valid proceedings to date back to the date of the original decree, so as to deprive a party of a right to review or attack the judgment, as amended, which he did not have under it as originally entered. (14 Cal. Jur. 1008; Spencer v. Troutt, 133 Cal. 605, 65 P. 1083.) As also stated in 14 Cal. Jur., p. 935, sec. 42:

"It hardly requires argument or authority to establish the proposition that a court cannot, by antedating an order or the entry of it, cut off the right of a party to move for a new trial, to move to set aside the judgment, or to appeal. These rights given by the code, are not lost by such action whether that effect was designed or not. The test in such cases, as to whether the period in which a party must act has elapsed is whether he could have obtained the desired review or relief before the nunc pro tunc order was made."

Applying the above test to the instant case, appellant could not have obtained a review of the modifications and amendments...