First Trust & Savings Bank v. Randall, 6390

• Decision Date: 11 December 1936
• Docket Number: 6390
• Citation: 57 Idaho 126,63 P.2d 157
• Court: Idaho Supreme Court
• Parties: FIRST TRUST & SAVINGS BANK, a Corporation, Respondent, v. A. E. RANDALL, Appellant

63 P.2d 157

57 Idaho 126

FIRST TRUST & SAVINGS BANK, a Corporation, Respondent, v. A. E. RANDALL, Appellant

No. 6390

Supreme Court of Idaho

December 11, 1936

APPEAL AND ERROR-JUDGMENTS AND ORDERS APPEALABLE-ATTACHMENT-MOTION TO QUASH, GROUNDS FOR-INTERVENTION-RIGHTS OF CLAIMANT TO ATTACH PROPERTY.

1. Minutes of court proceeding stating that defendant moved for judgment of nonsuit and that court granted motion for nonsuit, entitled either party to have judgment of dismissal entered, but where no judgment was entered, subsequent order reopening case, and permitting plaintiff to introduce additional testimony, and further order denying motion to vacate order reopening case held not appealable. (I. C. A sec. 11-201.)

2. Order denying motion to quash and dissolve writ of attachment held appealable.

3. Objection of defendant's wife that writ of attachment was levied on her separate property could not be raised on motion to quash writ of attachment, since such motion can only be made on ground that same was improperly or irregularly issued.

4. Objection that writ of attachment was improperly levied on property that belonged to defendant's wife and in which defendant had no interest might properly be raised and presented by intervention petition on behalf of wife, but such petition must set forth sufficient facts which, if proven, would entitle intervenor to judgment removing cloud of attachment from her title.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Miles S. Johnson, Judge Presiding.

Action on promissory notes. Defendant's motion for nonsuit granted. Defendant appeals from order sustaining plaintiff's motion to reopen case, from order refusing to vacate same and from order denying motion to quash and dissolve writ of attachment. Appeal from order reopening case, and from order denying motion to vacate the same dismissed. Order denying motion to quash and discharge the attachment affirmed. Cause remanded for further proceedings.

Order denying motion to quash and discharge the attachment affirmed. Costs awarded to respondent. Cause remanded.

J. H Felton, for Appellant.

A judgment is final when it is announced by the court. The entry thereof is a ministerial duty of the clerk. Judgment is in effect from the time of its announcement. (34 C. J., par. 177, p. 46, note 83, on p. 48; In re Cook, 77 Cal. 220; Gray v. Palmer, 28 Cal. 416; Takekawa v. Hole, 170 Cal. 323, 149 P. 593; Holt v. Holt, 107 Cal. 258, 40 P. 390; Livingston v. Livingston, (Ind. App.) 121 N.E. 119; Village of Depue v. Banschbach, 273 III. 574, 113 N.E. 156.)

A. L. Morgan, for Respondent.

There never has yet been a final judgment entered in the above-entitled cause. (Miller v. Gooding Highway Dist., 54 Idaho 154, 30 P.2d 1074; Reberger v. Johanson, 38 Idaho 618, 223 P. 1079; Seisser v. Oregon Short Line R. R. Co., 33 Idaho 291, 193 P. 731; Bissing v. Bissing, 19 Idaho 777, 115 P. 827.)

AILSHIE, J. Givens, C. J., and Budge and Holden, JJ., concur. Morgan, J., did not sit at the hearing or participate in the decision in this case.

OPINION

AILSHIE, J.

March 19, 1921, appellant executed two promissory notes, with interest at 8 per cent, payable to respondent, as follows:

First note: for $ 5,000, signed by appellant as manager of Galata Montana Emporium Company, due Oct. 1, 1921;

Second note: for $ 1,168.60, signed by appellant personally, due June 1, 1921.

The notes were not paid and this action was instituted June 29, 1935, to collect the amount due. Appellant answered, pleading the bar of the statute of limitations, and as a second separate defense, that the notes were not delivered to respondent but were stolen from the safety deposit box of a Montana bank and came into respondent's possession; that neither the Montana company nor appellant received any consideration for the instruments.

The case went to trial and on March 20, 1936, after plaintiff's evidence was submitted, defendant's motion for nonsuit was granted. On motion of plaintiff an order was entered April 18th, reopening the case with leave to introduce additional testimony. Motions to quash and dissolve writ of attachment were filed by appellant and his wife, also motion to set aside order reopening cause for further hearing. From the orders denying these motions, this appeal is taken.

Respondent has moved for a dismissal of the appeal herein, on the ground that the same "is not prosecuted from any judgment or order within the meaning of Section 11-201, I. C. A." The statute referred to in the motion enumerates the appealable orders and judgments. The notice of appeal in this case recites that the appellants "hereby appeal to the supreme court of the state of Idaho from the following described orders, made and entered in the said cause after judgment therein, to-wit:

"1. Order dated April 18, 1936, sustaining plaintiff's motion to re-open said cause, permitting additional testimony and continuing cause until next term;

"2. Order dated June 15, 1936, denying motions to quash and dissolve writ of attachment;

"3. Order dated June 15, 1936, denying defendant's motion to set aside order of April 18, 1936."

In order to decide whether the orders dated April 18th and June 15, 1936, are appealable, it is necessary to determine whether or not any judgment had been entered in the case, for the reason that these orders are appealable orders only if they were made after judgment. It follows that if no judgment had really been entered in the case, these orders are not appealable. It is conceded that no formal judgment of dismissal or for costs was entered in the case by either the clerk or the judge.

The order, which it is claimed amounts to a judgment, appears in the minutes of the court proceedings of March 20, 1936, and, in so far as it applies to this case, reads as follows:

"Plaintiff rests. Comes now the defendant and moves the court for a judgment of non-suit. The court took the motion under consideration and at 12 o'clock noon a recess was taken until 1:30 o'clock P. M. At 1:30 o'clock P. M. court reconvened. The court granted the motion for non-suit. " This is all the record discloses with reference to disposal of the case. This entry in the minutes of the court entitled either party to have a judgment of dismissal entered. It remains a fact, however, that no judgment was entered and that thereafter, and on April 18, 1936, the trial judge made an order "that said case be reopened and plaintiff be permitted to introduce additional testimony and the cause is hereby continued until the next term of the above entitled court." Under the uniform holdings of this court, the above-quoted minute entry is not a judgment and is not appealable. (Bissing v. Bissing, 19 Idaho 777, 115 P. 827; Seisser v. Oregon Short Line R. R. Co., 33 Idaho 291, 193 P. 731; Reberger v....