Farmer v. Boyd

• Citation: 89 Idaho 269,404 P.2d 353
• Decision Date: 26 July 1965
• Docket Number: No. 9540,9540
• Parties: Roland M. FARMER and Maxine Farmer, husband and wife, Plaintiffs-Appellants, v. Delbert E. BOYD and Lapreal Boyd, husband and wife, and Bertha G. Farmer, a single woman, Defendants-Respondents.
• Court: United States State Supreme Court of Idaho

Page 353

404 P.2d 353

89 Idaho 269

Roland M. FARMER and Maxine Farmer, husband and wife, Plaintiffs-Appellants, v. Delbert E. BOYD and Lapreal Boyd, husband and wife, and Bertha G. Farmer, a single woman, Defendants-Respondents.

No. 9540.

Supreme Court of Idaho.

July 26, 1965.

Robert W. Bennett, Pocatello, for appellants.

H. J. Swanson and George W. Hargraves, Pocatello, for respondents.

SMITH, Justice.

This is an appeal from a judgment of dismissal of a claim and delivery action brought by appellants to obtain possession of certain personalty, i. e., furniture and equipment located in and upon the following described real property:

Lots 14 and 15, the northwesterly 5 feet of Lot 17 lying next to and adjoining Lot 18, and Lots 18, 19 and 20 in Block 467 of Pocatello Townsite, in Bannock County, Idaho.

Consisting of apartment houses in Pocatello, Idaho.

Appellants in their complaint alleged that prior to and on October 29, 1963, the real property was owned by appellant Roland M. Farmer, and respondent Bertha G. Farmer, as tenants in common, (see Farmer v. Farmer, 81 Idaho 251, 340 P.2d 441 (1959); that on October 29, 1963, respondents took possession of the real property and wrongfully acquired possession of the personalty, describing it, located in the apartment houses; and that, although appellants were entitled to its possession, respondents refused its surrender. Appellants prayed judgment for recovery of possession of the personalty, or, in the alternative, for damages. Appellants posted the statutory undertaking for requisition of the property whereupon respondents immediately posted the required undertaking for redelivery. I.C. § 8-301 et seq.

Respondents then filed a motion to dismiss appellants' complaint 'for the reason that it is an action to determine ownership and right to possession of certain personal property, and there is presently pending a case * * * [in the Bannock County District Court], relating to the same parties and subject matter.'

In support of the motion to dismiss, as well as the stay of proceedings, respondents allege that the personalty involved in the claim and delivery action was also involved in the same court [district court, Bannock County] in a divorce action, Case No. 18413, wherein appellant Roland M. Farmer is the plaintiff, and respondent Bertha G. Farmer is the defendant; that in the divorce action there is pending a motion by the plaintiff Roland M. Farmer for an order to compel Delbert E. Boyd and Lapreal Boyd, husband and wife, and Bertha G. Farmer, respondents herein, to deliver said personalty to Roland M. Farmer. Respondents then set forth a court order entered October 30, 1963, in the divorce action, restraining Roland M. Farmer from molesting the tenants living in the apartment houses, and from selling, or moving, or attempting to sell or move the personalty during pendency of the divorce action, or until further court order; also that Roland M. Farmer be required to show cause why he should not be held in contempt of court for violation of such order, by his attempt to seize and move the personalty by means of the claim and delivery action. Respondents then set forth an order entered December 3, 1963, in the divorce action whereby the court found that Farmer was in contempt of the court's order of October 30, 1963, and alleged that he had not purged himself of the contempt.

The district court resolved the motion to dismiss in favor of respondents and entered a judgment dismissing the pending claim and delivery action with prejudice. Appellants perfected an appeal from the judgment.

Appellants assign error of the trial court in granting respondents' motion to dismiss on the ground that another action is pending between the same parties for the same cause, I.R.C.P. 12(b)(8).

The essential question presented, and which the trial court resolved by granting the motion to dismiss, was whether the issue of title to the personalty should be resolved in the pending divorce action, Case No. 18413, or in the separate claim and delivery action.

Farmer v. Farmer, 81 Idaho 251, 340 P.2d 441 (1959), disposed of an appeal in the divorce action. The record in that appeal shows a judgment entered by the district court December 12, 1957, which adjudged and decreed that Roland M. Farmer and Bertha G. Farmer be divorced; also that the real property hereinbefore described 'and all personal property therein is the community property of Roland M. Farmer and Bertha G. Farmer, and that said property is to be held [by them] as tenants in common * * *.' The order of this Court relating to disposition of the property reads:

'* * * the judgment is modified to provide that the court forthwith appoint a receiver to take possession and charge of such community property, that respondent [Roland M. Farmer] account for his management of such property to such receiver, and that the receiver proceed forthwith to sell such community property under the direction of the court and to divide the net proceeds after payment of community debts equally between the parties.' 81 Idaho 256, 340 P.2d 443.

The briefs of the parties disclose additional facts, concerning which there appears to be no dispute, regarding the record in the divorce action. Both parties agree that the receiver, in that action, petitioned the district court for authority to sell the property therein involved, that the receiver duly published notice of sale of the hereinbefore described real property (and other property) 'together with all furniture, furnishings and equipment thereon and therein situate and located,' the sale to be subject to liens and encumbrances on the property. The court ordered the sale and the property was bid in by, and the sale was confirmed to, respondents Delbert E. Boyd and Lapreal Boyd.

The controversy appears grounded upon the claim of appellants that, prior to the sale, appellant Roland M. Farmer had acquired certain furniture and fixtures for use in the apartment houses (common property owned by himself and Bertha G. Farmer) in order to keep the apartments rented. Conversely respondents Boyds claim ownership of the personalty in that, as they assert in their argument, upon acceptance of their bid for the property described in the Notice of Sale, including the furniture and equipment located in and upon the real property, they immediately took possession of said property and thereupon 'acquired furniture to furnish said apartments in anticipation of acceptance of a bid and confirmation of the same by the court.' It further appears that prior to confirmation of the sale, the Farmers advised the Boyds and the receiver in the divorce action that they, the Farmers, claimed as their property the personalty described in the claim and delivery action; also, as described in a motion and accompanying affidavits by them filed in the divorce action. In that motion appellants Farmers requested the court...