Garren v. Butigan

• Decision Date: 19 April 1973
• Docket Number: No. 10459,10459
• Citation: 95 Idaho 355,509 P.2d 340
• Parties: Manual GARREN, Plaintiff-Appellant, v. Robert E. BUTIGAN, Sheriff, Bonner County, Idaho and United Pacific Insurance Company, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 340

509 P.2d 340

95 Idaho 355

Manual GARREN, Plaintiff-Appellant, v. Robert E. BUTIGAN, Sheriff, Bonner County, Idaho and United Pacific Insurance Company, Defendants-Respondents.

No. 10459.

Supreme Court of Idaho.

April 19, 1973.

Peter G. Leriget, Moscow, for plaintiff-appellant.

No appearance for respondents.

McFADDEN, Justice.

On May 3, 1962, the plaintiff, Manual Garren, purchased five bowling pin setting machines at a sheriff's sale held at the county courthouse in Sandpoint, Idaho. Bonner County Sheriff, Robert E. Butigan, issued Garren a 'Sheriff's Bill of Sale' and a 'Sheriff's Certificate of Sale' for the five machines. Upon demand by Garren, Sheriff Butigan refused to deliver two of the machines. Following the refusal, Garren filed a omplaint in the Second Judicial District Court on December 21, 1962, against defendant Butigan alleging his failure to deliver the two machines and seeking attorney's fees and damages. The complaint alleged that defendant Butigan as sheriff wrongfully released the two machines to unknown parties.

On April 23, 1963, defendant Butigan moved to quash or dismiss the complaint alleging improper venue and failure to state a claim upon which relief might be granted. By stipulation of the parties on August 26, 1965, the District Court of the Second Judicial District in Latah County denied the motion to quash or dismiss and transferred the case to the District Court of the Eighth Judicial District in Bonner County. In his answer dated September 8, 1965, the defendant generally denied all the allegations of the complaint. The defendant filed a motion on January 1, 1966, to dismiss plaintiff's complaint alleging that the mandatory bond required by I.C. § 6-610 had not been filed. ¹ The plaintiff secured and filed a bond of $500 on February 27, 1967. After hearing argument on the motion the district court dismissed the complaint on March 3, 1969. Plaintiff timely appealed from the dismissal of his complaint. The case was submitted to this Court on the basis of the appellant's brief and the record.

In dismissing the complaint the district court relied on Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957), and I.C. § 6-610, and held that filing a bond was a condition precedent to filing a complaint against Sheriff Butigan. The district court also held that '(t)he only question here is whether the defendant has timely raised the question (of filing a bond). In the opinion of this Court he has. In my opinion that timely raised means before proceeding to trial.'

Finally, the district court held that appellant's subsequent filing of the required bond failed to satisfy the condition precedent in I.C. § 6-610. In reaching this conclusion the district court cited Monson v. Boyd, 81 Idaho 575, 348 P.2d 93 (1959), for the proposition that the initial failure to file a bond may not be subsequently cured.

On the facts of this case we believe the dispositive issue is whether the defendant waived the bond requirement. The opinion in Pigg v. Brockman, supra, stated:

'(t)he requirement of the statute is not jurisdictional. The undertaking may be waived by the defendant. However, the statute is mandatory, so that where it is not complied with, the district court must dismiss the action when appropriate objection is timely urged by defendant.' (Emphasis added.) 79 Idaho at 238, 314 P.2d at 611.

Neither in Pigg v. Brockman nor in Monson v. Boyd did the court consider what constitutes a waiver of the bond requirement in I.C. § 6-610.

In analyzing this problem the waiver provisions in the Idaho Rules of Civil Procedure will control our discussion. All defenses and matters of avoidance under I.R.C.P. 8(c) ² must be made in the responsive pleading if a pleading is required, except that defenses (1) through (8) set forth in I.R.C.P. 12(b) ³ may be made by motion before pleading. Except for the defenses of failure to state a claim upon which relief may be granted, failure to state a legal defense to a claim, failure to join an indispensable party, and lack of jurisdiction '(a) party waives all defenses and objections which he does not present either by motion as hereinbefore provided (I.R.C.P. 12(b)) or, if he has made no motion, in his answer or reply.' (Emphasis supplied.) I.R.C.P. 12(h). ⁴ At this point a comparison with the analogous federal rules is helpful. The waiver provision in I.R.C.P. 12(h) is identical to the pre-1966 F.R.Civ.P. 12(h), which stated 'A party waives all defenses and objections which he does not present either by motion as hereinbefore provided or, if he has made no motion, in his answer or reply * * *.' (Emphasis supplied.) The waiver mechanism in pre-1966 Rule 21(h) was interpreted to include defenses found in Rule 8(c) and Rule 12(b). As a result of the 1966 amendment of F.R.Civ.P. 12(h), the waiver provision no longer specifically applies to 'all defenses and objections.' In spite of the amendment the authorities uniformly agree that by a textual reading of Rules 8(c), 8(d) and 12(d) all affirmative defenses must be pleaded, or when appropriate, raised by motion under Rule 12(b), or they will be waived. Wright & Miller, Federal Practice and Procedure: Civil §§ 1278, 1394 (with citations); 2A Moore's Federal Practice 12.23 (with citations); 1A Barron & Holtzoff, Federal Practice and Procedure § 370 (with citations).

I.R.C.P. 12(b) provides that every defense in law or fact must be asserted in a responsive pleading where one is required. Since I.R.C.P. 8(c) requires defenses or matters of avoidance to be set forth affirmatively and I.R.C.P. 12(h) applies to 'all defenses and objections' failure to plead defenses and failure to present defenses by pre-answer motion under I.R.C.P. 12(b) (other than those exceptions in I.R.C.P. 12(h)) constitute a waiver only correctable as justice requires under I.R.C.P. 15(a). See, Resource Engineering, Inc. v. Siler, 94 Idaho 935, 500 P.2d 836 (1972); Bryan and Co. v. Kieckbusch, 94 Idaho 116, 482 P.2d 91 (1971).

We must next consider whether the objection to the lack of a bond under I.C. § 6-610 falls within the non-waivable defenses of I.R.C.P. 12(h) or whether it is an affirmative defense under I.R.C.P. 8(c). In Pigg v. Brockman, supra, this Court stated that the bond requirement was not jurisdictional that it could be waived, and that any objection must be timely made. Notwithstanding its logic in relation to I.C. § 6-610 this statement eliminated the bond requirement from consideration as a non-waivable defense under I.R.C.P. 12(h) and qualified it as a waivable defense under either I.R.C.P. 8(c) or I.R.C.P. 12(b).

In determining whether the bond requirement is a matter of 'avoidance or affirmative defense' which must be pleaded in a responsive pleading we emphasize the scope of I.R.C.P. 8(c). Although I.R.C.P. 8(c) enumerates nineteen affirmative defenses, the listing is not intended to be exhaustive or exclusive. I.R.C.P. 8(c) provides that 'any other matter constituting an avoidance or affirmative defense' must be pleaded. This catch-all phrase offers no assistance in defining other 'matters constituting an avoidance or affirmative defense.' Because of this residuary clause Professors Wright and Miller advise caution '(a)s a result, a pleader, in order to avoid waiving an otherwise valid defense, often will decide to set up affirmatively a matter that technically may not be an affirmative defense but nonetheless might fall within the residuary clause of Rule 8(c).' Wright & Miller, Federal Practice and Procedure: Civil § 1271, p. 304. Considering the statement in Pigg v. Brockman, supra, and the residuary clause in I.R.C.P. 8(c) the Court concludes that the lack of a bond is a matter of avoidance or affirmative defense. In accordance with our earlier discussion of waiver of defenses under I.R.C.P. 8(c), 12(b) and 12(h), we hold that the defendant waived the right to assert the bonding requirement under I.C. § 6-610 as a defense, since he only raised the issue after his answer. See, generally, Annot. 8 A.L.R. 1512 (1920). Even if the Court had concluded that the bonding requirement was a defense properly assertable under I.R.C.P. 12(b) and not under I.R.C.P. 8(c), the result would nevertheless be the same. Except for the four non-waivable defenses, I.R.C.P. 12(b) motions must be 'made before pleading if a further pleading is permitted.' Thus, the respondent's answer foreclosed his opportunity to assert the lack of a bond regardless of whether it is considered a defense arising under I.R.C.P. 12(b) or under I.R.C.P. 8(c).

In Pigg v. Brockman, supra, the opinion stated that I.C. § 6-610 'intended to secure to the people of the state maximum protection and effective law enforcement by freeing police officers so...