Buza v. Columbia Lumber Co.
| Decision Date | 02 October 1964 |
| Docket Number | No. 453,453 |
| Parties | Walter BUZA and AL Buza, Appellants, v. COLUMBIA LUMBER COMPANY of Alaska, a corporation, Appellee. |
| Court | Alaska Supreme Court |
Albert Maffei, Anchorage, for appellants.
G. F. Boney and L. S. Kurtz, Jr., of Burr, Boney & Pease, Anchorage, for appellee.
Before NESBETT, C. J., and DIMOND and AREND, JJ.
This appeal is brought to review the decision in the court below concerning the ownership of six bundles of spruce logs designated as Carlson Raft No. 7 and valued at about $8,000.
In a complaint, filed on July 20, 1962, the plaintiff-appellee, Columbia Lumber Company, hereinafter referred to as Columbia, accused the defendants-appellants of converting the logs, willfully trespassing upon Columbia's property and interfering with its mill operations. For relief Columbia prayed for the return of the logs and for compensatory and punitive damages totaling $31,000. 1
In answer to the complaint, the appellants alleged that the logs were the property of the appellant, AL Buza, who had purchased them from one Boyd Carlson by bill of sale; denied that they had converted the logs or that they had trespassed upon or damaged Columbia's property; and admitted the value of the logs to be $8,000. By way of counterclaim the appellants alleged that AL Buza was the owner of the logs; that Columbia had wrongfully taken them from Patton Bay to Whittier, Alaska, to AL Buza's damage in the sum of $7,500; and that AL Buza was entitled to recover the logs or their value.
Columbia filed a reply to the counterclaim in which it denied all of the allegations of the counterclaim except for admitting the value of the logs to be $8,000, and that it had taken the logs from Patton Bay to Whittier but not wrongfully.
The case was tried to a jury which returned a verdict for Columbia. By its verdict the jury found that Columbia was the owner of the logs and entitled to their possession but that it was not entitled to recover any damages. Judgment was entered on the verdict and the appellants filed a motion for a new trial, which was denied. The judgment included an award of an attorney's fee to Columbia for $1,250. Later the trial court entered a 'Corrected Judgment on General Verdict' awarding to Columbia an attorney's fee in the amount stated and its costs of suit to be taxed by the clerk in the amount of $1,302.10. Notice of appeal to this court was filed by the appellants on December 2, 1963. Nine days later an appeal was taken to the superior court from the clerk's ruling on costs and on December 17, 1963, the superior court declared that the clerk's cost bill of $1,302.10 would stand.
The appellants have listed five specifications of error, all of which have been attacked by Columbia on the grounds that they fail to comply with the following requirements of Supreme Court Rule 11(a)(6):
'(a) * * * [Appellant's] brief shall contain * * *:
* * *
* * *
* * *'
We agree with Columbia as to the first three errors specified. These were:
1) That the lower court erred in giving instructions to jury particularly instruction No. 17 and instruction No. 19 and for the courts [sic] failure to give instructions encompassing the following statutes: 29-1-71 and 29-1-72 ACLA 1949.
2) That the following portion of instruction No. 17 was erroneous: 'if the jury finds that the logs were left in the possession of seller Carlson who, in turn, sold them to plaintiff for value received and caused them to be delivered to plaintiff's sawmill at Whittier, Alaska without informing plaintiff that said logs were the property of the defendants, if indeed they were, then you must find plaintiff to be the owner of the logs and render a verdict for said plaintiff.' (emphasis added).
3) That the lower court ought to have allowed as evidence that certain memorandum made by appellant, AL BUZA, at the time he had a conversation with Mr. Morgan, President of appellee, COLUMBIA LUMBER COMPANY, which memorandum was made at the time of the conversation in July, 1962.
Comparing these three specifications of error with the requirements of Supreme Court Rule 11(a)(6) we find a woeful lack of compliance on the part of the appellants. The first specification actually specifies three errors: That instruction 17 was wrong; that instruction 19 was wrong; and that other instructions should have been given. Furthermore, it does not set forth the instructions claimed to have been erroneously refused; and it does not state the grounds of objection urged at the trial.
Specification of error No. 2 likewise fails to set forth the grounds of objection urged at the trial. Without searching the record ourselves, we do not know whether the appellants even voiced any objections to instruction No. 17 in the court below. Nor do the appellants state anywhere in their brief that they objected to the instruction in the lower court or the nature of the objection at the time, if objection was made.
The third specification of error violates Rule 11(a)(6) in two respects: (1) The substance of the memorandum alleged to have been erroneously excluded is not set forth; and (2) the grounds on which the memorandum's admission was urged is not stated in the specification.
Since the appellants have disregarded the plain requirements of Supreme Court Rule 11(a)(6), which has been in effect now for nearly five years and the observance of which has been urged upon the bar in a number of our decisions, 2 we need not consider the first three errors charged. 3
The other two errors specified by the appellants relate to the allowance of costs to Columbia and are set forth in the margin. 4 With respect to the issues raised by these specifications of error, the appellants contend that Columbia was not the prevailing party since it did not recover the full amount of the relief prayed for and, therefore, was not entitled to costs; or, in the alternative, if Columbia was entitled to costs, it should not have been allowed costs for the transportation and witness fees of witnesses whose testimony produced no verdict by the jury.
AS 09.60.010 states: 'Except as otherwise provided by statute, the supreme court shall determine by rule or order what costs, if any, including attorney fees, shall be allowed the previaling party in any case.' Civil Rule 54(d) provides that 'costs shall be allowed as of course to the prevailing party unless the court...
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...be entitled to costs or attorney fees. In De Witt, the Supreme Court of Alaska reviewed its earlier decision in Buza v. Columbia Lumber Co., 395 P.2d 511 (Alaska 1964), where the court enunciated the standard for determining who is a prevailing "[I]t has been established by case law that th......
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