Frank v. Frank

• Decision Date: 08 January 1929
• Docket Number: 5229
• Citation: 273 P. 943,47 Idaho 217
• Parties: A. E. FRANK, Respondent, v. MIKE FRANK, Appellant
• Court: Idaho Supreme Court

273 P. 943

47 Idaho 217

A. E. FRANK, Respondent, v. MIKE FRANK, Appellant

No. 5229

Supreme Court of Idaho

January 8, 1929

TRIAL-ACTION AT LAW-EQUITABLE DEFENSE-APPEAL AND ERROR-INVITED ERROR.

1. Where equitable defense is interposed by cross-complaint in action at law or cross-action at law in action cognizable in equity, court should hear and dispose of equitable cause first, or, if entire case is submitted to jury, he may submit and adopt answers to special interrogatories in aid of equitable jurisdiction, or make findings on equity branch of case without submitting interrogatories.

2. Where a party has consented to or invited alleged error, the judgment will not be reversed.

3. Defendant, whose counsel made no objection to trial of action for debt to jury, but clearly indicated his idea of whole case going to jury and dwelt particularly on partnership issue raised by cross-complaint for accounting, etc., in opening argument, and was instrumental in having jury fully instructed on law of partnerships, cannot be heard to complain of submission of case to jury on appeal from judgment on general verdict for plaintiff.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. A. H. Featherstone, Judge.

Action for debt, with cross-complaint for accounting, etc. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

Franklin Pfirman, for Appellant.

When an action at law is brought and an equitable defense is interposed by a cross-complaint, the proper rule of procedure for the court is to hear and dispose of the equitable cause of action before proceeding to try the issues at law. (Penninger Lateral Co. v. Clark, 22 Idaho 397, 126 P. 524; Liberty Oil Co. v. Condon Nat. Bank, 260 U.S. 235, 43 S.Ct. 118, 67 L.Ed. 232; Martin v Zellerbach, 38 Cal. 300, at page 319, 99 Am. Dec. 365; Schieffery v. Tapia, 68 Cal. 184, 8 P. 878.)

James A. Wayne, for Respondent.

Where a party has consented to or invited the alleged error complained of on appeal, the judgment will not be reversed. (Knollin & Co. v. Jones, 7 Idaho 466, 475, 63 P 638; Farmers' Co-operative Ditch Co. v. Riverside Irrigation District, 14 Idaho 450, 94 P. 761; Gaskill v. Washington Water Power Co., 17 Idaho 128, 105 P. 51; Nobach v. Scott, 20 Idaho 558, 119 P. 295; Trask v. Boise King Placers Co., 26 Idaho 290, 142 P. 1073; Dover Lumber Co. v. Case, 31 Idaho 276, 170 P. 108; Clear Lake Power etc. Co. v. Chriswell, 31 Idaho 339, 173 P. 326; Powers v. Security Savings & T. Co., 38 Idaho 289, 222 P. 779.)

This rule is one of universal application; and where a party suggests, consents to, acquiesces in, or fails to object to a certain form of procedure, or to the trial of an action at law as a suit in equity, or conversely the submission of an equity case to a jury, he cannot thereafter assign as error any irregularity in the mode of trial or procedure. (4 Corpus Juris, p. 714, sec. 2627; Locust v. Caruthers, 23 Okla. 373, 100 P. 520; Deidrich v. Simmons, 75 Ark. 400, 87 S.W. 649; Anders v. Roark, 108 Ark. 248, 156 S.W. 1018.)

BUDGE, C. J. Givens, Taylor and Wm. E. Lee, JJ., and Hartson, D. J., concur.

OPINION

BUDGE, C. J.

Respondent sued appellant to recover $ 341.57, balance alleged to be due for goods, wares and merchandise sold and delivered between January 1, 1922, and March 3, 1924. Appellant, by his answer, denied the indebtedness and alleged affirmatively that during all of the times mentioned in the complaint he and respondent were copartners engaged in the automobile business. With his answer, appellant filed a cross-complaint, alleging therein that on July 1, 1919, he and respondent entered into a partnership agreement, which was not dissolved until July 1, 1924; that there never had been an accounting, and that the goods, wares and merchandise mentioned in respondent's complaint were furnished to appellant by the partnership, consisting of himself and respondent. The cross-complaint prayed for an order dissolving the partnership, that a receiver be appointed, that an accounting be had, that respondent be restrained from interfering with the debts, moneys, properties or effects of said partnership or from disposing of any thereof, and for general relief. Respondent, in his answer to appellant's cross-complaint, denied specifically all the material allegations therein, and affirmatively alleged that he and appellant had an arrangement under the terms of which both parties worked during their spare hours in repairing automobiles, which arrangement applied only to repair work and did not relate to the purchase or sale of automobiles, gasoline, oil or accessories; that during the time appellant worked under this arrangement the gross receipts thereof amounted to $ 2,202.60, of which amount appellant had been paid by respondent his full share, to wit, $ 1,101.30.

The entire case as made up by the pleadings was tried to the court and a jury. Evidence was introduced covering all of the issues raised. Certain instructions were given by request of appellant, others upon the court's own motion, both as to the law side of the case and the equity side. A general verdict was returned in favor of respondent for $ 100, and from the judgment entered thereon and an order overruling a motion for new trial, appellant appeals.

Certain of the assignments of error involve the action of the court in submitting the entire case to the jury for their general verdict, the failure of the court to make findings upon the cross-complaint of appellant and answer thereto, failure to submit special interrogatories to the jury for an advisory verdict to aid the court's equitable jurisdiction, ignoring the equitable issues presented by appellant in his cross-complaint, and rendition of judgment on the general verdict.

In Penninger Lateral Co. v. Clark, 22 Idaho 397, 126 P. 524, similar questions were raised, and in the course of that opinion the following language is found:

"In the present case the allegations of the cross-complaint clearly state a cause of action in equity for the purpose of determining the right and interest of the defendant and respondent in and to the Penninger Lateral and having his title quieted to such interest claimed by him in such ditch and clearly shows an equitable right of action under the authorities cited above. . . . Under this condition of the pleadings, it was the duty of the trial court to first determine the issues involved under the allegations of the cross-complaint which could be tried by the court alone without the aid of a jury, or the court could submit to the jury such issues as he deemed proper...