Hample v. McKinney

• Decision Date: 30 September 1929
• Docket Number: 5393
• Citation: 281 P. 1,48 Idaho 221
• Parties: J. E. HAMPLE, Appellant, v. PETER MCKINNEY, Respondent
• Court: Idaho Supreme Court

281 P. 1

48 Idaho 221

J. E. HAMPLE, Appellant, v. PETER MCKINNEY, Respondent

No. 5393

Supreme Court of Idaho

September 30, 1929

COURTS - POWER TO CORRECT RECORDS - LAPSE OF TIME - TIME FOR TAKING APPEAL-AGENCY-JURY'S FINDINGS-CONCLUSIVENESS.

1. Where original entry on minutes, reciting that defendant's motion for new trial was denied, was erroneous on account of fact that court merely announced his decision that new trial would be denied, and that new trial was sought by plaintiff, trial court did not err in subsequently directing order to be corrected, under C. S sec. 6477, subd. 8, giving court power to amend and control its process and orders, since court of record has inherent power to correct its records, and such power is not lost by mere lapse of time.

2. Where original minute entry relative to denial of motion for new trial was incorrect and erroneous, time for appeal, under C. S., sec. 7152, ran from subsequent formal order whereby trial judge denied motion for new trial.

3. In action to recover deficit arising from sale of defendant's wool, claimed by plaintiff to have been taken on consignment, with advance of money in excess of that received from sale, question whether one who at plaintiff's request made arrangements for obtaining defendant's wool acted as plaintiff's agent held question of fact for jury, on which jury's finding was conclusive, where testimony was conflicting.

4. In action for deficit arising on sale of wool, in which plaintiff claimed that the wool was consigned by defendant whereas defendant claimed that there was an outright sale for which moneys given as advance constituted payment finding of jury that there was sale, preventing plaintiff's recovery, held sustained by evidence.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Action for money had and received. Judgment for defendant. Affirmed.

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

L. E. Glennon, for Appellant.

"Agency is a fact, the burden of proving which rests upon the party affirming its existence; and the rule is equally applicable to one who would relieve himself from personal liability on the ground of agency, and to one who would charge another as principal with the act of an alleged agent." (2 C. J. 923; Schulz v. Jordon, 141 U.S. 213, 11 S.Ct. 906, 35 L.Ed. 705; Nofsinger v. Goldman, 122 Cal. 609, 55 P. 425; Saul v. Lapidus, 46 Colo. 538, 105 P. 863.)

We concede that where there is a conflict of evidence as to the disputed agency it is a question for the jury. But where there is no evidence of agency other than testimony as to acts of the alleged agent it resolves itself into a question of law for the court to determine, and it is error to submit the question to the jury. (2 C. J. 960, sec. 731, and notes 10, 11; 14 R. C. L. 79, note 4; Goble v. Boise-Payette Lumber Co., 38 Idaho 525, 224 P. 439; Whitson v. Pacific Nash Motor Co., 37 Idaho 204, 215 P. 846; Green v. Soule, 145 Cal. 96, 78 P. 337; Smith v. Humphreyville, 47 Tex. Civ. 140, 104 S.W. 495.)

E. H. Casterlin and E. W. Whitcomb, for Respondent.

For the purpose of an appeal an order is entered when it is spread at large upon the minutes and this entry is as effectual as an order contained in a separate instrument signed by the judge. (18 Cal. Jur. 665; Von Schmidt v. Widber, 99 Cal. 511, 34 P. 109; Ex parte Von Vetsera, 7 Cal.App. 136, 93 P. 1036.)

The time for appeal begins to run from the entry of the order and the general rule is not affected when the order is amended or modified in particulars not changing its character. (3 C. J. 1050, par. 1047; Savings etc. Soc. v. Horton, 63 Cal. 310; Schulze v. Oregon R. & Nav. Co., 41 Wash. 614, 84 P. 587.)

The court cannot extend the time provided by statute within which to appeal from an order made and entered in the minutes. (Hyde v. Harkness, 1 Idaho 623; Moe v. Harger, 10 Idaho 194, 77 P. 645; 3 C. J. 1069, par. 1077; Tracy v. Coffey, 153 Cal. 356, 95 P. 150.)

While the statement or declaration of a person alone is insufficient to prove agency it may be shown from all the attending circumstances. (Madill v. Spokane Cattle Loan Co., 39 Idaho 754, 230 P. 45; 21 R. C. L. 820, sec. 6.)

Agency is a question of fact for a jury when the evidence is conflicting. (Kelly v. Arave, 41 Idaho 723, 243 P. 366.)

BUDGE, C. J. Givens, T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

OPINION

BUDGE, C. J.

This cause has been before this court upon a former occasion, the judgment being reversed and the cause remanded for a new trial. (Hample v. McKinney, 44 Idaho 435, 258 P. 179.)

It is alleged in the complaint that respondent is indebted to Jeremiah Williams & Co., a copartnership, in the sum of $ 2,508.22, with interest thereon at the rate of seven per cent per annum, on account of money loaned to respondent by said company; that the company assigned said indebtedness by an instrument in writing, duly executed, to appellant; that respondent has not paid the same or any part thereof and that there is now due and owing to appellant the above sum, together with interest thereon, for which sum and interest, together with costs, appellant seeks recovery. Respondent in his answer specifically denied the indebtedness to appellant's assignor, or any indebtedness on account of money loaned by Jeremiah Williams & Co., and upon information and belief denied that Jeremiah Williams & Co. is or was a copartnership, and denied the assignment as alleged in the complaint. Upon the issues thus made by the pleadings the cause was tried to the court and jury, a verdict being returned for respondent, whereupon judgment was entered accordingly. Appellant made a motion for new trial, which was denied, and this appeal is from the order denying the motion for new trial.

In limine, we are met with a motion to dismiss the appeal upon the ground that the notice of appeal was not filed and served within the time specified by C. S., sec. 7152. A motion was also made to strike the transcript. This latter motion becomes immaterial in view of the disposition to be made of the motion to dismiss the appeal.

From the record it appears that on October 15, 1928, the following entry was made in the minutes of the court:

"This cause having heretofore been heard on defendant's motion for a new trial and having been taken under advisement by the Court, now at this time the Court orders that the said motion be and the same is hereby denied."

On December 27, 1928, the trial judge, in writing, made the following order, omitting the formal parts thereof, which was filed December 31, 1928:

"It is hereby ordered that the motion of the plaintiff to set aside the judgment and grant a new trial be, and the same is hereby, denied."

It is respondent's contention that the time within which to file notice of appeal from the order denying motion for new trial commenced to run October 15, 1928, while it is the contention of appellant that the time within which to file notice of appeal did not commence to run until December 31, 1928.

The trial judge in an order filed of date July 22, 1929, sets out, inter alia, that the minute entry made by the clerk under date of October 15, 1928, "fails to clearly state the actual facts with reference to what was done at that time in that the minute entry of such proceedings states that the court at that time ordered that the motion for a new trial, which had theretofore been presented and taken under advisement, be, and the same is hereby denied; whereas in fact, the court at said time simply announced its decision to the effect that the motion for a new trial on behalf of the plaintiff would be denied, but did not make an order to that effect or direct the clerk to enter such an order; and said minute entry also being erroneous in referring to 'defendant's' motion for a new trial for the reason that the...