First Nat. Bank of Lewiston v. Sampson

• Decision Date: 18 April 1901
• Citation: 64 P. 890,7 Idaho 564
• Parties: FIRST NATIONAL BANK OF LEWISTON v. SAMPSON
• Court: Idaho Supreme Court

64 P. 890

7 Idaho 564

FIRST NATIONAL BANK OF LEWISTON v. SAMPSON

Supreme Court of Idaho

April 18, 1901

PLEADINGS-MATERIAL ALLEGATIONS-RECORDS-SUPPLEMENTAL RECORD.-When the complaint states a cause of action, a general demurrer will not be sustained. Only the record as certified by the clerk, or attorneys of record, can be considered in this court. A motion to strike a supplement from the record which was not called to the attention of the lower court, or was no part of the record in the case, will be sustained.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Affirmed.

S. S Denning and Needham & Walker, for Appellants.

Section 4520 of the Revised Statutes of this state provides for all foreclosure proceedings. When the return of the sheriff shows a balance still due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt, and it becomes a lien against the real estate of such judgment debtor, as in other cases on which execution may be issued. Such balance when docketed by the clerk becomes a personal judgment and not before. (Russell v Hank, 9 Utah 309, 34 P. 245.) It is a general rule of law recognized by all courts that the statute of limitations begins to run on a judgment or contract when a right of action accrues thereon. In case of deficiency judgments, the statute of limitations begins to run from the date of the docketing thereof, and not from the decree fixing the liability of the defendants or the return of the sheriff showing that a deficiency exists. (Isaac v. Swift, 10 Cal. 71, 70 Am. Dec. 698; Chapin v. Broder, 16 Cal. 403; Englund v. Lewis, 25 Cal. 337; Stoddard v. Van Bussum, 57 N. J. Eq. 34, 40 A. 29.) A mere contingent provision referring to no particular amount and in abeyance until the contingency is determined is not within the meaning of the statute. It may become a valid and perfect judgment, but until the amount to be recovered is ascertained and fixed and judgment docketed therefor, no effect can be given to it as a lien or otherwise. (1 Freeman on Judgments, 4th ed., sec. 39; Thompson v. Golding, 5 Allen, 81; Gilpatrick v. Glidden, 82 Me. 201 19 A. 166; Chapin v. Broder, 16 Cal. 403; Englund v. Lewis, 25 Cal. 337; 2 Freeman on Judgments, 4th ed., sec. 339; Hibberd v. Smith, 50 Cal. 511; Linn v. Patton, 10 W.Va. 187.)

George W. Tannahill and I. N. Smith, for Respondent.

Mere reference in a complaint to a judgment does not make a profert of the entire judgment. (Anderson v. Cecil, 86 Md. 490, 38 A. 1074; 2 Wharton on Evidence, sec. 326; Chittendon v. Witbeck, 50 Mich. 401, 15 N.W. 526; Nash v. Harris, 57 Cal. 243 (244).) To make a document a part of a record it must be produced. The lower court must be given a chance to pass upon it. (This court in the case of State v. Boise, 5 Idaho 519, 51 P. 110.) The complaint pleads in the language required at section 4211 of the Revised Statutes of Idaho because it shows this judgment to have been "duly given, made, rendered and entered in a court of general jurisdiction." This is an allegation which has been held sufficient as against a general demurrer. (Schenk v. Birdseye, 2 Idaho 141, 6 P. 128; Dore v. Thornburg, 90 Cal. 64, 27 P. 30, 25 Am. St. Rep. 100; High v. Bank of Commerce, 95 Cal. 386, 29 Am. St. Rep. 121, 30 P. 556.) An unpaid balance after mortgage foreclosure sale is specified as the cause of action. Counsel argues that there can be but one action "on a debt for the enforcement of any right secured," etc., and cite section 4520 of the Revised Statutes of Idaho. In their application, however, they overlook the object of that section and the further fact that the debt sued on herein is not secured. (Blumberg v. Birch, 99 Cal. 416, 37 Am. St. Rep. 67, 34 P. 102; Merced Bank v. Cassaccia, 103 Cal. 641, 37 P. 648.) A court will take notice of its own records, but cannot travel for this purpose out of the records relating to the particular case. It cannot take notice of the proceeding in another case unless such are put in evidence. (Anderson v. Cecil, 86 Md. 490, 38 A. 1074; 2 Wharton on Evidence, sec. 326; Chittenden v. Whitbeck, 50 Mich. 401, 15 N.W. 526; Nash v. Harris, 57 Cal. 244.)

STOCKSLAGER J., QUARLES, C. J. Quarles, C. J., Sullivan and Stockslager, JJ., concurring.

OPINION

STOCKSLAGER, J.

This action was commenced in the district court of Nez Perces county. The complaint was filed on the thirtieth day of August, 1900. On the tenth day of September thereafter a demurrer was filed, to wit: "The abovenamed defendants demur to the complaint of the plaintiff in this action, and specify as grounds of objection thereto that it appears upon the face of the complaint that the same does not state facts sufficient to constitute a cause of action." On the twenty-fourth day of September, 1900, an order was made by the district court overruling the demurrer, in which order the judge states that "the defendants elect to stand on the pleadings as now made, and refuse to further plead." On the ninth day of November, 1900, the default of defendants was entered, and on the same day judgment was entered against the defendants for the sum of $ 1,003.67 and costs of suit. Thereafter an appeal was perfected to this court for review. In the transcript we find what is called a "Supplement," which purports to show a foreclosure proceeding wherein the same parties were plaintiff and defendants as appear in this suit. Counsel for respondent files his motion to strike the supplement from the transcript, to wit: "Comes now the respondent, the First National Bank of Lewiston, Idaho and moves the honorable the above-entitled court to strike from the transcript herein all that part thereof denominated a 'Supplement,' on the following grounds: 1. That the same is not certified to so as to identify it with any transcript on appeal in said cause; 2. That the same was never at any time used in the court below for any purpose; 3. No profert thereof in the lower court was ever made, no oyer demanded, and the matters sought to be argued therefrom were never called to the lower court's attention; 4. That the same is surplusage, redundant, and not part of the record in this cause on appeal, and has no connection legally therewith, so as to entitle the same to be put into this transcript. This will be made upon the records and files herein, and on the affidavit of I. N. Smith, and the certificate of the honorable judge of the above court." The affidavit of I. N. Smith, referred to, says "that he is one of the attorneys for the respondent herein, and that he makes this affidavit on behalf thereof to strike the supplement of the transcript therefrom; that the said supplement was never at any time proffered in the lower court, nor demanded therein, nor ever at any time a part of this cause, nor called to the court's attention; that in the lower court the cause was submitted on demurrer, without argument, as appears from the transcript." Honorable Edgar C. Steele, the district judge before whom this cause was tried, in his certificate, among other things, says: That the demurrer therein was submitted without argument; that at no time were the documents contained in the supplement of the transcript on appeal ever directed to my attention, nor were they proffered in court, nor was any oyer thereof demanded; that the same at no time were ever directed to my attention in any manner, nor used in any manner on the submission of the demurrer without argument, nor referred to at all.

We will first dispose of the motion to strike what is termed the "Supplement" from the files. The record discloses the fact that Stewart S. Denning, Daniel Needham, and Ray D Walker, attorneys of record for appellants, certify to the correctness of the papers purporting to be the proceedings in a former action tried in the district court of Nez Perces county, which papers constitute what is called the "Supplement" in the record in the case before us for review. It is not contended by appellants that the papers constituting the supplement were ever used in the trial of this case, but that the court should take judicial knowledge of all proceedings in court. We agree with this contention, as a general rule, but are not in accord with the proposition that a general demurrer may be filed, submitted without argument, and the real grounds of the demurrer first called to the attention of this court on appeal. This is not fair to the trial court, and many appeals might be avoided by submitting all the facts and grounds upon which relief is sought to the lower court for its consideration and determination. We think the case of Anderson v. Cecil, 86 Md....