First Sec. Bank v. Neibaur
| Decision Date | 20 September 1977 |
| Docket Number | 12151 and 12396,Nos. 12150,s. 12150 |
| Citation | 98 Idaho 598,570 P.2d 276 |
| Parties | FIRST SECURITY BANK of Idaho National Association, Plaintiff-Respondent, v. Clyde A. NEIBAUR and Norma B. Neibaur, Mitchell C. Neibaur and Vi Layne Neibaur, Defendants-Respondents, and Glen Van Tassell and Erma Van Tassell, Defendants-Appellants. Glen VAN TASSELL and Erma Van Tassell, Cross-Plaintiffs-Appellants, v. Clyde A. NEIBAUR, Norma B. Neibaur, Mitchell C. Neibaur and Vi Layne Neibaur, Cross-Defendants-Respondents. Rex E. HEBDON and Margaret M. Hebdon, husband and wife, Plaintiffs-Respondents, v. Glen VAN TASSELL and Erma Van Tassell, husband and wife, Defendants-Appellants, and Clyde A. Neibaur and Norma B. Neibaur, husband and wife, Mitchell C. Neibaur and Vi Layne Neibaur, husband and wife, Horsley Bros., a partnership, and Mitt Campbell, Defendants-Respondents. Glen VAN TASSELL and Erma Van Tassell, husband and wife, Plaintiffs-Appellants, v. FIRST SECURITY BANK of Idaho, N.A., Clyde A. Neibaur, Norma B. Neibaur, Mitchell C. Neibaur and Vi Layne Neibaur, Rex E. Hebdon and Margaret M. Hebdon, Horsley Bros., a partnership, and Mitt Campbell, Defendants-Respondents. |
| Court | Idaho Supreme Court |
Kenneth F. Clarke, of Kerr, Williams & Clarke, Blackfoot, for defendants-appellants.
L. Lamont Jones, Pocatello, for plaintiff-respondent First Security Bank of Idaho.
Gordon S. Thatcher, of Rigby, Thatcher & Andrus, Rexburg, for defendants-respondents Neibaur.
Wallace M. Transtrum, Soda Springs, and L. Brent Hoggan, of Olson, Hoggan, & Sorenson, Logan, Utah, for plaintiffs-respondents Hebdon.
This case involves the status of real property in Caribou County. On December 15, 1972, Rex and Margaret Hebdon conveyed the real property subject to this action to appellants Glen and Erma Van Tassell. To finance the sale, the Van Tassells gave the Hebdons a promissory note in the principal amount of.$146,000 secured by a purchase-money mortgage. The Van Tassells defaulted and the Hebdons filed a foreclosure action against them in district court on April 11, 1975.
Prior to their default, the Van Tassells had entered into an installment sales contract for the sale of the same real property to Clyde and Norma Neibaur. On May 27, 1975, the First Security Bank of Idaho, the escrow agent in the transaction, filed an interpleader action against the Van Tassells and the Neibaurs to determine to whom its responsibility as escrow agent would run. In that same case the Van Tassells cross-claimed against the Neibaurs and the Neibaurs cross-claimed against the Van Tassells, each party claiming that the other breached the installment sales contract. After discovery procedures had been completed, the interpleader action was set for trial. The foreclosure action was never set for trial, however. The cases were distinct at this stage of the proceedings.
On May 27, 1975, the day set for trial of the interpleader action, discussion began between counsel for the Neibaurs and counsel for the Van Tassells with the aim of reaching an out-of-court settlement. Counsel for the Hebdons was also brought into the discussion. The parties reached a preliminary agreement. The record establishes that counsel for the Hebdons was careful to limit his stipulation to the foreclosure action. He specifically stated not to have any knowledge of the agreement reached between the Van Tassells and the Neibaurs concerning their cross-claims in the interpleader action. He also stated that the agreement was not yet final. Separate stipulations embodying the agreement between the Van Tassells and the Neibaurs regarding their cross-claims in the interpleader action and the agreement between the Hebdons and the Van Tassells regarding the foreclosure action were made in open court. The stipulations were somewhat vague but their net effect appears to have been the substitution of the Neibaurs for the Van Tassells on the mortgage obligation to the Hebdons. The Van Tassells in consideration for $22,500 to be paid by the Hebdons were to relinquish all their interest in the real property and convey the property to the Hebdons subject only to the interest that the Neibaurs had acquired under the installment sales contract. In their separate stipulation, the Neibaurs and the Van Tassells abandoned their cross-claims against each other.
The stipulations were never reduced to writing. It was the anticipation of the parties that the details of the May 27th stipulations would be clarified and committed to writing the next day when they would be submitted to the court. To that end a meeting was arranged in the courtroom of the district judge for the morning of May 28th. That same morning, however, before the stipulations could be reduced to writing, a judgment against the Van Tassells in favor of one George W. Flick in the State of Utah in the amount of $265,561.55 was filed in the records of the Caribou County recorder.
The district court then, on its own motion, entered a minute entry and order, back-dated May 27, 1975, in which the court stated that both the interpleader and the foreclosure action were fully compromised and settled. The court further ordered that both actions should be dismissed with prejudice.
The Hebdons, doubting the efficacy of the court order in view of the Flick judgment lien, attempted to obtain relief from the district court's order dismissing their foreclosure action. They filed a motion designated as a motion to set aside and reinstate, but did not specify which procedural rule inspired it. The Van Tassells did not challenge the district court's dismissal of the interpleader action together with its cross-claims at this time.
The Hebdons' motion to set aside the dismissal of their foreclosure action and to have it reinstated apparently was never ruled upon. Instead, the district court entered a new order on October 28, 1975, which ordered the Van Tassells to clear Flick's judgment lien within ninety days, or in the alternative to allow the Hebdons and/or the Neibaurs to clear such judgment lien offsetting any funds so expended against any obligation owed to the Van Tassells under the terms of the stipulations. The district court's intention was to effectuate the order of May 27, 1975. The court stated that although the order was dated as of October 28, 1975, the order was effective as of May 27, 1975.
On December 24, 1975, the Van Tassells filed an appeal to the Idaho Supreme Court from the October 28th order. They also appealed the May 27th order at this time, hoping to reinstate their cross-claim against the Neibaurs in the interpleader action. The Neibaurs filed a motion to dismiss both appeals, alleging that they were untimely. In addition, the Van Tassells also filed motions based upon Rule 60(b)(4), (5) of the Idaho Rules of Civil Procedure for relief from both the May 27th and October 28th orders.
In recognition of the fact that a district court loses jurisdiction to hear motions that pertain to subject matters for which an appeal has been filed, the Van Tassells filed a motion to remand with the Supreme Court on June 1, 1976. Said motion was granted in an order of temporary remand dated June 28, 1976. The district court was given temporary jurisdiction for the sole purpose of hearing the Van Tassells' Rule 60(b) motions. Under the terms of the order, in the event that the district court denied the motions, the Van Tassells were relieved of the necessity of perfecting an appeal. The order of remand provided that the record on appeal would be augmented to reflect the action of the district court in denying the 60(b) motions and that an appeal from the denial could be heard on the merits without the necessity of perfecting another appeal.
Prior to this time on May 24, 1976, the Van Tassells filed another complaint in the district court contending among other things that the district court orders of May 27th and October 28th were void.
On August 24, 1976, the district court dismissed the Van Tassells' Rule 60(b) motions. The district court also dismissed the Van Tassells' complaint of May 24th, contending that the exact same matter was before the Supreme Court in the appeals from the district court orders of May 27th and October 28th and that the district court did not therefore have jurisdiction to consider the matter. The Van Tassells appeal this dismissal. This appeal has been consolidated with the Van Tassells' appeals from the district court orders of May 27, 1975 and October 28, 1975.
The procedural mesh that has evolved in this case can be simplified. The Van Tassells are attempting to reinstate their cross-claim in the interpleader action that was dismissed in the district court's order of May 27, 1975. Their appeal was not filed until December 24, 1975, however.
Idaho Code § 13-201 mandates that an appeal must be taken within sixty days from the date of a final district court order. Unless the Van Tassells can establish some independent basis for the allowance of their appeal of the May 27th order, it must be dismissed as untimely.
Three bases are suggested: first that the district court's order of October 28th reopened the case, second, that the Hebdons' motion to set aside and reinstate tolled the appeal time, and third, that the district court order of May 27th was void. None of the suggested theories can legitimize the Van Tassells' appeal.
The district court order of October 28th can not validate an untimely appeal from a prior order. Idaho Code § 13-201 demands that all appeals from final orders be perfected within sixty days. The order of May 27th was final in that it dismissed the respective actions with prejudice. By not appealing that order within the statutory time period, the Van Tassells abdicated any right to appeal that order. A timely appeal must be taken from a judgment that is final even when it is followed by a post-judgment order. In the present case, the district court evidently thought that an...
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