Glancy v. Williams

• Decision Date: 19 July 1930
• Docket Number: 5471
• Citation: Glancy v. Williams, 290 P. 555, 49 Idaho 594 (Idaho 1930)
• Parties: KIRBY C. GLANCY and PEARL R. GLANCY, Appellants, v. EUGENE WILLIAMS and CLARA M. WILLIAMS, Respondents
• Court: Idaho Supreme Court

290 P. 555

49 Idaho 594

KIRBY C. GLANCY and PEARL R. GLANCY, Appellants, v. EUGENE WILLIAMS and CLARA M. WILLIAMS, Respondents

No. 5471

Supreme Court of Idaho

July 19, 1930

APPEAL AND ERROR-RIGHT TO APPEAL-WAIVER.

1. That plaintiffs, pending appeal, unwittingly caused judgment for costs to be paid, and defendants entered satisfaction of judgment, held insufficient to warrant dismissing appeal.

2. Mere payment of costs, unlike acceptance of amount of judgment does not waive error in proceedings, or right of appeal.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Motion to dismiss appeal. Motion denied.

Motion to dismiss the appeal denied.

Rhodes & Estabrook, for Appellants.

T. A Walters, for Respondents.

GIVENS C. J. Budge, Lee, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, C. J.

In an action involving an agreement for the transfer of real property the trial court decreed that appellants should execute and deliver to respondents deeds to the property in question, and in default of their so doing the clerk of the court should make the necessary deed. Appellants appealed from said decree August 2, 1929. March 18, 1930, while the appeal was pending but before it had been heard or disposed of, appellant Kirby C. Glancy, a resident of Nampa, desired to sell other real property not involved in this litigation, and was advised by the abstract company of Caldwell that there was a judgment against him which would show on the abstract but did not advise appellant what judgment it was. Appellant instructed the abstracter to pay it, which he did. This judgment was for costs in the action above noted, and thereafter, upon receipt of these costs for costs in the action above noted, and thereafter, upon receipt of these costs amounting to some few dollars, respondents' attorney entered satisfaction of judgment March 19, 1930.

Respondents now move to dismiss the appeal on the ground that the questions involved have become moot by reason of the payment of the costs and this entry of the satisfaction of judgment. The only basis for the entry of the satisfaction of judgment was the payment of costs. There was no abandonment of the appeal on the real question involved, namely, the right to the real property, and no intent to so abandon the appeal, and no knowledge on appellants' part that the costs paid were in the suit in question.

This court has held that under such circumstances the payment of costs does not waive the right of appeal. (Kootenai County v. Hope Lumber Co., 13 Idaho 262, 268, 89 P 1054; see, also, Boone v. Boone, 160 Iowa 284, 137 N.W. 1059, 141 N.W. 938; Hogue v. McAllister, 122 Wash. 347, 210 P. 671.) Since, therefore, the reason for the entry of the satisfaction of judgment is insufficient to warrant a dismissal of the appeal, the mere entry of the satisfaction, being by respondents and not appellants is insufficient to warrant the dismissal of the appeal. Johnson v. Barton, (N. D.) 134 N.W. 84, identical on the facts, thus...