Dolbeer v. Harten

• Decision Date: 22 September 1965
• Docket Number: No. 9541,9541
• Citation: Dolbeer v. Harten, 91 Idaho 141, 417 P.2d 407 (Idaho 1965)
• Parties: Fred J. DOLBEER and Anna Willis Dolbeer, his wife, Plaintiffs, Cross-Defendants, Appellants and Cross-Respondents, v. Kenneth HARTEN and Lucille B. Harten, his wife, Defendants, Cross-Claimants, Respondents and Cross-Appellants.
• Court: Idaho Supreme Court

Page 407

417 P.2d 407

91 Idaho 141

Fred J. DOLBEER and Anna Willis Dolbeer, his wife, Plaintiffs, Cross-Defendants, Appellants and Cross-Respondents, v. Kenneth HARTEN and Lucille B. Harten, his wife, Defendants, Cross-Claimants, Respondents and Cross-Appellants.

No. 9541.

Supreme Court of Idaho.

Sept. 22, 1965.

On Rehearing July 14, 1966.

Rehearing Denied Sept. 9, 1966.

H.J. Swanson and Archie W. Service, Pocatello, for appellants.

F. M. Bistline and Merrill K. Gee, Pocatello, for respondents.

McFADDEN, Justice.

On May 19, 1960, Mr. and Mrs. Fred J. Dolbeer, (appellants) agreed to sell Mr. and Mrs. Kenneth Harten, (respondents) an improved tract of land situate near Pocatello, known as Meridell Park. The improvements included a residence, a large building suitable for use as a warehouse or for manufacturing purposes, two tourists' cabins, a modern cottage, a community kitchen, rest room facilities, and two apartments: also facilities for trailer spaces. The agreed price under the contract was $67,500.

As the initial payment under the contract, the Hartens transferred title to the property they owned in Pocatello, at the agreed price of $7,500. The balance of $60,000 was to be paid in monthly installments, with interest on the unpaid balance computed at 6% per annum. The Hartens were to pay all taxes and maintain insurance on the property.

The Hartens took possession of the property and stayed in possession until February 28, 1963; during the time of their occupancy they paid on the contract the sum of $7,200.00, together with $268.24 in taxes and insurance in the amount of $272.00.

The monthly payments agreed to be paid to the Dolbeers by the Hartens were maintained until July 12, 1962. In September 1962, the Dolbeers gave notice of the default by the Hartens; the next month, the Dolbeers, on the basis of previous notice of default, served on the Hartens a notice of forfeiture, wherein they demanded possession of the premises.

Possession of the property was not given by the Hartens, and the Dolbeers instituted this action against the Hartens, seeking to quiet their title and to secure possession of the premises. The Hartens answered the complaint, asserting they had an equitable interest in the property by reason of the agreement of sale. They also interposed two cross-claims, the first for recision of the agreement on the grounds that the appellants had been guilty of fraudulent misrepresentations of facts at the time of the execution of the contract; the second for a money judgment claiming that they were entitled to some $35,723.29, because the provisions of the contract providing for a forfeiture constituted a penalty, and claiming that allowing the appellants to retain the payments and improvements made would constitute an unjust enrichment. They sought judgment in that amount, with interest.

In answer to the cross-claims, the appellants denied the facts claimed as constituting fraud, and denied that there was any penalty inherent in the contract. They also claimed that under the provisions of the agreement of sale they were entitled to a reasonable attorney's fee for maintaining the action to secure possession of the premises.

Provisions of the contract of particular importance here are:

'Time is of the essence of this agreement and in case the Purchasers shall fail, refuse or neglect to pay to the Vendors the money as is agreed herein to be paid or to pay the taxes and assessments at the time the same shall become due or shall fail to fulfill any of the covenants or agreements on their part to be kept and performed, then and in that event the Vendors shall be relieved from obligation in law or in equity to convey said property and the Vendors may at their option forfeit any and all rights of the Purchasers in and to the said real estate, and all money paid to the Vendors by the Purchasers under this agreement shall be retained by the Vendors as liquidated damages for non-performance of this contract and as rent for said premises, and the Vendees and the Purchasers shall cease to have any right, title or interest in and to said premises and agree to immediately surrender peaceable possession of the same to the Vendors.

'It is agreed that the above remedy is cumulative and the Vendors shall have any other remedy for the enforcement of this contract given to them by the laws of the State of Idaho.

'It is further agreed that if it becomes necessary for the Vendors to bring an action in any court of competent jurisdiction for the enforcement of this contract for the repossession of said premises upon failure of the Purchasers to make the payments and perform the covenants as herein specified, the Purchasers shall pay all costs contracted by the Vendors, together with a reasonable attorney's fee.'

After a protracted trial before the court, amended findings of fact, conclusions of law and judgment and decree were entered. The judgment was to the effect that the respondent Hartens had no right or title to the real estate; that the Hartens take nothing on their first cross-claim based on fraudulent misrepresentations; that the Hartens recover of the appellants $5,157.38 with 6% interest, which had been determined to be a penalty; that the appellants are not entitled to any attorney's fees.

The Dolbeers appealed from that portion of this judgment which awarded the sum of $5,157.38 to the Hartens, and also that portion thereof which denied them attorney's fee.

After the notice of appeal had been filed, and within ten days after entry of the judgment, the respondents filed their motion to amend the findings of fact, for additional findings of fact, and to vacate the judgment (I.R.C.P. 52(b)), which motion was argued to the court; thereafter second amended findings of fact and conclusions of law were entered together with an amended judgment and decree. The appellants also later appealed from the same provisions of the amended decree as they did from the first decree.

The appeal here was taken upon the judgment roll and the clerk's transcript alone, without any reporter's transcript of the testimony.

The first issue to be considered upon this appeal is whether the trial court, after appellants had appealed from the judgment, erred in considering respondent's motion to amend the findings of fact, for additional findings of fact, and to vacate the judgment.

Involved in resolution of this question is I.R.C.P. 52(b) which provides that upon motion within ten days after entry of judgment the trial court may amend its findings or make additional findings and may amend the judgment accordingly. Additionally involved, is I.R.C.P. 60(a) which provides that mistakes in judgments, orders, or other parts of the records, and errors arising from oversight or omission may be corrected by the court on its own initiative, or on motion of any party. It also provided 'During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the Supreme Court, and thereafter while the appeal is pending may be so corrected with leave of the Supreme Court.' I.R.C.P. 52(b), 60(a), and 59(e) (motion to alter or amend a judgment) are practically identical with the same numbered Federal Rules. I.C. § 13-201, provides among other items, that upon the filing of a timely motion to amend or make additional findings of fact, or a timely motion to alter or amend a judgment, the time for appeal commences to run from the entry of any order granting or denying such motions. The Federal counterpart of this statute is Federal Rule 73 (a) which in effect provides that upon the filing of a timely motion under Federal Rule 52(b) to amend or make additional findings of fact, or Federal Rule 59 to alter or amend the judgment, or Federal Rule 59 for a new trial, the time for appeal commences to run after the ruling on such motion.

The case of Fiske v. Wallace (Wallace v. Fiske) 115 F.2d 1003 (8th Cir. 1940), involved a factual situation comparable to the present case. Findings of fact, conclusions of law and decree were entered on a certain day. Nine days later, the defendant filed his notice of appeal. The same day, but two hours after the notice of appeal was filed, plaintiff filed his motion under Rule 52(b) for amendment of findings, conclusions, etc. The motion was submitted to and argued to the court some days later, and upon it being denied the plaintiff filed his notice of appeal. The question presented was whether the trial court had authority to rule upon the motion to amend after the appeal had been filed, and also as to whether the plaintiff's appeal was timely. The Eighth Circuit Court of appeals held that the trial court had no authority to pass upon the questions presented by the motion. In reaching that conclusion, the court stated:

'The plaintiff's motion to amend the conclusions of law and the judgment in his favor having been filed after the judgment defendants had taken their appeal did not operate to retain the case in the jurisdiction of the district court or to extend the time for appeal to the judgment plaintiff. After the judgment defendants had appealed, he has the right to take a cross apeal or to file his motion (within time) in the trial court and within time limited by statute for appeal from the judgment apply to this court to remand the case for consideration of his motion to modify. Isgrig v. United States, supra (109 F.2d 131 (4th Cir. 1940)). The difficulty here is that the trial court had, by the taking of the appeal, lost jurisdiction to consider and determine the motion before the motion was filed. But Mr. Wallace (the plaintiff) could not extend the time for his appeal merely by his motion filed after the defendants' appeal had been taken.' 115 F.2d 1005.

See also: Miller v. United States, 114 F.2d 267 (7th Cir. 1940).

Under the Federal Rules of Procedure it is generally held that upon the filing of a timely and sufficient notice of appeal, the trial court is...