First Nat. Bank of Pocatello v. Poling

• Decision Date: 24 June 1926
• Citation: 42 Idaho 636,248 P. 19
• Parties: FIRST NATIONAL BANK OF POCATELLO, a Corporation, Respondent, v. HUGH POLING, ZETTA POLING, HARLEY POLING, and MARGARET POLING, Appellants
• Court: Idaho Supreme Court

248 P. 19

42 Idaho 636

FIRST NATIONAL BANK OF POCATELLO, a Corporation, Respondent, v. HUGH POLING, ZETTA POLING, HARLEY POLING, and MARGARET POLING, Appellants

Supreme Court of Idaho

June 24, 1926

"ORDER" DEFINED-REPORTER'S NOTES AS MINUTES OF COURT-CLERK'S MINUTES AS EVIDENCE OF PROCEEDINGS-ORAL DECISION WITHOUT RECORD ORDER-PLEDGES-RIGHTS OF HOLDER OF COLLATERAL SECURITY - CHATTEL MORTGAGES - SUMMARY FORECLOSURE - STATUTORY PROCEDURE-HUSBAND AND WIFE-LIABILITY OF WIFE ON NOTE INDEBTEDNESS.

1. An "order" is a decision made during progress of case either prior or subsequent to final judgment, settling some point collateral to main issue presented by pleadings and necessary to be disposed of.

2. Ordinarily, reporter's notes do not constitute court minutes proper, although they are record of certain proceedings of trial.

3. Minutes kept by clerk, and authenticated by judge, may be looked to as evidence of proceedings of court.

4. C S., sec. 6560, as amended by Sess. Laws 1925, chap. 111 providing that stenographic record shall constitute minutes of court for use on motions for new trial, review, or appeal does not refer to final rulings and orders orally announced on collateral issues, and does not affect appealable orders and interlocutory judgments in section 7152, par. 2, under which appeal from order denying motion to dissolve attachment could only be taken.

5. Mere oral decision is of no avail for purpose of appeal or error without an order making it of record.

6. Under C. S., sec. 7164, appeal from order denying motion for new trial under section 7152 will be dismissed, in view of section 7194 defining order, where only record of such order was in reporter's transcript.

7. In absence of agreement, holder of collateral security or pledge is under no obligation to exhaust or return collateral before suing on principal obligation.

8. Whether note was delivered to creditor as collateral or for collection to apply proceeds on debt held immaterial, in suit on principal obligation, where proceeds were properly applied, and no fraud was shown.

9. Mortgagee who sells property without strict compliance with statutes relative to summary foreclosure of chattel mortgages cannot thereafter maintain action for deficiency.

10. Mortgagee obtaining possession of mortgaged property from person in possession, and giving notice under C. S., sec. 6382, and filing return in accordance with section 6384, complied with statute relative to summary foreclosure, enabling him to maintain action for deficiency.

11. Service of affidavit and notice under C. S., sec. 6380, is not required, where person in possession of mortgaged property was not one of mortgagors; section 6381 requiring service on person in possession only when peaceable possession has not been obtained.

12. In absence of allegation or proof that debt represented by note was contracted for benefit of separate estate of wife of maker, she was improperly held liable thereon, although execution was admitted.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action on promissory note. Judgment for plaintiff. Reversed as to defendant Zetta Poling. Affirmed as to defendant Hugh Poling.

As modified judgment affirmed, with costs to respondent.

F. E. Tydeman, for Appellants.

A mortgagee, who by his own illegal acts disposed of the mortgaged personal property, cannot maintain an action for any balance due on the mortgaged debt. (Rein v. Callaway, 7 Idaho 634, 65 P. 63.)

The affidavit must be personally served upon the mortgagor and upon the person having possession of the mortgaged property. (C. S., sec. 6381.)

The failure of the mortgagee to have notice served upon the person in possession of the mortgaged property is fatal and prevents the mortgagee who has sold the mortgaged property without such demand from bringing an action for any alleged deficiency. (Tappin v. McCabe, 27 Idaho 402. 149 P. 460.)

F. M. Bistline, for Respondent.

Appellants have failed to furnish the court with a copy of the order overruling motion to dissolve attachment which is appealed from, or the minutes of the court showing the entry of such order. (C. S., secs. 7164, 7152.)

Where peaceable possession of the mortgaged property is given to the mortgagee, it is not necessary to serve the person in charge of the mortgaged property with affidavit or notice. The giving of peaceable possession is the equivalent to an appearance and a waiver of service. (C. S., sec. 6380.)

ADAIR, District Judge. William A. Lee, C. J., and Wm. E. Lee, Givens and Taylor, JJ., concur.

OPINION

ADAIR, District Judge.

--This action was originally commenced in the probate court of Bannock county. A writ of attachment was levied upon certain personal property. A motion to dissolve the attachment was interposed upon various grounds, chief of which was that the affidavit of attachment was false in that plaintiff held a title retaining note signed by one William Cleazie as collateral security, and also held a chattel mortgage which had not been legally foreclosed at the time the affidavit of attachment was executed and the writ issued. An answer was filed by the defendants also alleging that the chattel mortgage executed as security for the note sued upon had never been legally foreclosed and that plaintiff held a title retaining note as collateral security therefor. The action was appealed and tried de novo in the district court, and the judge directed a verdict for plaintiff in the sum of $ 198.25. No order denying the motion for the discharge of the attachment was ever signed by the trial court and no entry was ever made of any action thereon in the court minutes as prepared by the clerk. From the judgment and the purported order refusing to dissolve the attachment, Hugh Poling and Zetta Poling, two of said defendants, appeal to this court.

C. S., sec. 7152, provides that an appeal may be taken from a district court to the supreme court, in certain matters therein specified, one of which is an order dissolving or refusing to dissolve an attachment, such appeal to be taken within sixty days after the order is made and entered on the minutes of the court, or filed with the clerk.

C. S., sec. 7164, is as follows: "On appeal from a judgment rendered on an appeal, or from an order, except an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below."

This record contains no reference to any action by the court below on the motion to discharge the attachment, except that the reporter's transcript shows that the judge orally announced after trial on the merits, that this motion was denied. At the time the appeal was perfected the reporter's transcript had not been prepared, settled and allowed, and there was nothing in the record, including the minutes of the court prepared by the clerk, showing any action whatsoever on this motion.

C. S., sec. 7194, defines an order as "every direction of a court or judge made or entered in writing and not included in a judgment."

This court has held that an order is made when signed by the judge. (Exchange National Bank v. Northern Idaho Pine Lumber Co., 24 Idaho 671, 135 P. 747; Dahlstrom v. Portland Mining Co., 12 Idaho 87, 85 P. 916.)

Regardless of statute an order has been defined as a decision made during the progress of the case, either prior or subsequent to final judgment, settling some point of practice or some question collateral to the main issue presented by the pleadings and necessary to be disposed of before such issue can be passed upon by the court, or necessary to be determined in carrying into execution the final judgment. (29 Cyc. 1514.)

The record in this case does not show any order made and entered in accordance with the provisions of the statutes, nor within what in the practice is regarded as the minutes of the court. The reporter's notes are the record of certain of the proceedings on the trial of the cause, but do not ordinarily constitute the court minutes proper. At common law, the minutes were merely memoranda from which records were made up after the term, but under modern practice the minutes are kept by the clerk, and usually authenticated by the judge, and may be looked to as evidence of the proceedings of the court. We must look to the entries made by the clerk and consider them as evidence of what occurred in court. To give certainty, authority and verity to the orders of courts of record the minutes showing its proceedings should be prepared and kept by the clerk, for they purport to give the orders, actions and decrees of the court.

In the case of Spivey v. District Court, 37 Idaho 774, 219 P. 203, it is said:

"There is no statute prescribing just how, or by whom the minutes or journal shall be kept. However, the practice has been firmly established, and should be recognized, of having the clerk enter in the minutes, or journal a written statement of the action taken by the court. It is to such an entry that the above-mentioned statutes must refer."

The notes of the official court reporter do not constitute court minutes proper, and an appeal will not ordinarily lie from a ruling or order orally made and found only in the reporter's transcript, under C. S., sec. 7152. While C S., sec. 6560, as amended by chapter 111, Sess. Laws of 1925, provides that the stenographic record made by the court reporter shall, when properly certified, "constitute ...