Harvey v. Bunker Hill And Sullivan Mining & Concentrating Co.

• Decision Date: 03 March 1890
• Citation: 2 Idaho 765,24 P. 30
• Parties: HARVEY v. BUNKER HILL AND SULLIVAN MINING AND CONCENTRATING COMPANY
• Court: Idaho Supreme Court

24 P. 30

2 Idaho 765

HARVEY v. BUNKER HILL AND SULLIVAN MINING AND CONCENTRATING COMPANY

Supreme Court of Idaho

March 3, 1890

PRO FORMA JUDGMENT-APPEAL FROM.-A complaint is filed in the justice's court alleging defendant is indebted to plaintiff in the sum of $150. Defendant files an answer denying the indebtedness. Justice has jurisdiction only in sums of $100. Defendant consents that judgment may be entered against him as prayed for simply to expedite an appeal. District court dismisses the appeal. Held, that the judgment must be reversed, and tried in the district court.

APPEAL from District Court, Shoshone County.

Judgment reversed, and a trial ordered.

William H. Clagett, for Appellant.

The judgment rendered in the justice's court is not a judgment by default, an answer being in, and issue of fact pending. Neither was it a judgment by confession, which must be in writing, admitting some sum to be due, and concisely stating the facts out of which the debt confessed arose. (Rev. Stats., secs. 4725, 4777, 5061.) Neither is it a judgment by consent on the theory that by consenting thereto the party waives all objection to the judgment, and will not be allowed to question the same on appeal. The consent was not real, but pro forma only, and the party does not waive or lose any of his rights thereby. (Mecham v. McKay, 37 Cal. 158, 159; Hayne on New Trial and Appeal, sec. 282.) To make a good complaint in a justice's court, the facts constituting the plaintiff's cause of action must be concisely stated. (Rev. Stats., sec. 4668.)

Charles W. O'Neil, for Respondent.

No appeal lies from a judgment by consent. (Campbell v Randolph, 13 Ill. 314; Oullahan v. Morrisey, 73 Cal. 297, 14 P. 864; Brick v. Brick, 65 Mich. 230 31 N.W. 907, and 33 N.W. 761.) An appeal from a judgment by default can only be upon questions of law. (Hayne on New Trial and Appeal, sec. 343.) There can be no trial de novo where there was no trial originally. (Southern Pac. R. Co v. Superior Court, 59 Cal. 475.)

SWEET, J. Beatty, C. J., and Berry, J., concur.

OPINION

SWEET, J.

On March 25, 1889, plaintiff filed his complaint before J. S. Languishe, a justice of the peace in and for Wardner precinct, Shoshone county, Idaho territory, in which he alleged that the defendant was indebted to him in the sum of $ 150 for professional services rendered at defendant's instance and request. On that day a summons was issued, and was returned on the 29th of the same month. On the 29th, also, defendant appeared and filed its answer, denying each and every allegation contained in plaintiff's complaint. At the same time, defendant consented to what is termed in this written consent, the entering of a pro forma judgment, and judgment was thereupon entered for plaintiff. The paper under which the judgment was entered is as follows:

"This case having been called for trial, the defendant consents that judgment may be entered pro forma in favor of plaintiff and against defendant, as prayed for in the complaint herein, reserving all of its rights under an appeal from said judgment.

"WILLIAM H. CLAGETT,

"Attorney for Defendant."

Immediately after the rendition of judgment, to wit, on the said twenty-ninth day of March, 1889, defendant filed its notice of appeal, together with the undertaking thereon, and the said appeal was perfected by defendant's causing a transcript of the docket of said justice to be verified and forwarded to the clerk of the district court. The cause came on for trial in the district court, whereupon plaintiff moved that the appeal be dismissed. The motion was granted by the district court on the ground that, inasmuch as there had been no trial in the lower court, upon questions of fact, and that, as no statement had been made, there was nothing to try. The court, in dismissing the case, used the following language: "As before stated, the case cannot be tried in this court for the first time. There must have been an actual trial before the justice before that can be done here. Manifestly, this case can only be affirmed or reversed by this court, or the appeal dismissed. The appeal must be dismissed, for the reason that there are no issues presented to this court which can be tried."

We do not understand why the issues were not clearly presented in the district court. The complaint was there, alleging the debt. The answer was there, denying it. The issues were as fully presented in the district court as they could be presented after a trial had in the justice's court. No trial in the justice's court would have presented the issues any differently from the manner in which they were presented at that time. We take it that this objection is not a valid one.

The next inquiry suggested is far more serious in its character. It is this: May the defendant consent to a judgment in the justice's court, and then appeal from the judgment to which he has consented? If the amount were $ 100, or less the defendant would unquestionably be bound by the judgment to which he consented, unless a new hearing were granted in the justice's court for cause shown; and we doubt if his declaration that he consented only to a pro forma judgment would save him. We do not think the appeal could be saved by declining to enter into a trial before the justice involving an amount confined to the original jurisdiction of the lower court. Counsel for defendant treats his written consent to the entry of said judgment as a stipulation, and cites Mecham v. McKay, 37 Cal. 154, as an authority in support of his position. After stating that the court has repeatedly refused to review judgments and orders entered by consent, the court discuss the question further, and say: "We are not inclined to retract or modify this proposition. but it is to be limited to cases wherein it does not appear from the record that the consent was given only pro forma to facilitate the appeal, and with the understanding on both sides that the party did not thereby intend to abandon his right to be heard on the appeal in opposition to the judgment. . . . If it appears from the record that it was intended by the parties to be only a pro forma judgment or order entered, by consent, for the mere purpose of hastening an appeal, and with no intention to waive an exception thereto, it would be a somewhat rigid rule to give the stipulation a conclusive effect not contemplated by the parties. . . . The stipulation in this case, on which the order denying a new trial is entered, is not free from doubt; but, taking it altogether, and construing it as a whole, in connection with the other facts disclosed in the record, we conclude it was intended by the parties that the motion for a new trial should be denied pro forma only to hasten the appeal." But the plaintiff contends that this paper is in no sense a stipulation. Taken alone, it could not be considered as such. But the amount involved was and is within the original jurisdiction of the district court. Both parties were before the justice. An answer had been filed denying the indebtedness, and, on the same day, the notice of appeal was given, the undertaking filed, and the transcript promptly forwarded to the district court. Counsel for defendant contends that after said answer was filed it was agreed between counsel for plaintiff and defendant that...