Howell v. Reimann

• Court: Idaho Supreme Court
• Writing for the Court: ANDERSON; TAYLOR
• Citation: Howell v. Reimann, 288 P.2d 649, 77 Idaho 84 (Idaho 1955)
• Decision Date: 04 October 1955
• Docket Number: No. 8282,8282
• Parties: Forrest HOWELL and Louise Howell, husband and wife, Plaintiffs-Respondents, v. Henry F. REIMANN and Eunice Short Reimann, husband and wife, Defendants-Appellants.

Page 649

288 P.2d 649

77 Idaho 84

Forrest HOWELL and Louise Howell, husband and wife, Plaintiffs-Respondents, v. Henry F. REIMANN and Eunice Short Reimann, husband and wife, Defendants-Appellants.

No. 8282.

Supreme Court of Idaho.

Oct. 4, 1955.

T. Harold Lee, Rigby, Robert K. Hillman, St. Anthony, for appellants.

Leonard O. Kingsford, Rexburg, Alvin Denman, Alvin L. Denman, R. R. Reeves, Idaho Falls, for respondents.

ANDERSON, Justice.

Plaintiffs (respondents) brought this action to quiet title to a right-of-way for the use of a road over defendants' (appellants') property. September 29, 1954, trial on the merits commenced at St. Anthony Idaho, and the plaintiffs produced evidence in support of their contention that defendants should repair segments A, B and C, these being designated portions of the road to be used temporarily, until the defendants built a road in a different location in compliance with a written agreement the parties had entered into August 30, 1951.

The plaintiffs rested, and the court took a recess until September 30, 1954. On that day, the attorneys for the parties entered into a stipulation in chambers at Idaho Falls, which in part provided that the defendants would build a road from plaintiffs' potato cellar, along a route agreed upon by the parties, down to a point near the buildings on the plaintiffs' feed lot, and that the case may be settled and compromised by the construction of such road by June 1, 1955, it to be built in a manner sufficient to allow the use of a tractor and sled, and the sufficiency thereof to be passed upon by the court, if necessary, upon the completion thereof.

It was further stipulated and agreed that the defendants repair by November 1, 1954, the previously-existing routes, described as segments A, B and C in the plaintiffs' complaint, to make the same passable for temporary use, and that the plaintiffs should be entitled to free and unobstructed use thereof until the completion of the road to be built by the defendants.

It was further stipulated that upon completion of the agreed route by defendants, the plaintiffs would have no right to travel any of the routes described in plaintiffs' complaint as segments A, B and C. The action was to be dismissed when the road was constructed, the court retaining jurisdiction until such time in order to pass upon the sufficiency of the construction if the need arose. None of the parties to the litigation was personally present September 30, 1954. November 2, 1954, plaintiffs caused to be served upon the then attorney for the defendants a motion for a court order requiring defendants to make segments A, B and C available.

Notice of withdrawal of attorneys for defendants, dated November 2, 1954, was filed November 4. On November 6, 1954, respondents gave notice to appellants to appoint another attorney, and an order to show cause was issued fixing November 12, 1954, as the time of hearing for the appellants to show why repair of segments A, B and C had not been made. November 12, the defendants, by their attorney, contended they did not authorize their former attorney to make the stipulation of September 30, 1954, but the court made an order in conformity with the stipulation entered into by the attorneys for the respective parties, and ordered that appellants forthwith repair segments A, B and C, and held that 'forthwith' should mean in this instance before November 16, 1954. November 15, defendants filed a notice of appeal, but failed to file a supersedeas bond, but did file a cost bond. They voluntarily dismissed this appeal on December 27, 1954.

November 17, defendants were ordered to show cause on November 26 why they should not be held in contempt of court for not obeying the order of November 12, 1954. At the hearing November 26, the court held that any contempt was only 'technical,' as an appeal had been filed, upon the advice of an attorney that the order was appealable, but no undertaking to stay the proceedings had been posted. Defendants were allowed time in which to file such an undertaking, the amount thereof was set at $1,000 by the court, and the cause was continued.

A continuation of the hearing on the order to show cause was held December 27, 1954. At this hearing, the defendants offered to testify that they had not authorized their previous counsel, nor anyone, to enter into the stipulation of September 30, 1954, settling the case; that they had refused to permit their former counsel to enter into such a stipulation, and they tendered him by check payment in full for his services on the evening of September 29, 1954; that they were not present in court on the morning of September 30 at chambers, and that they knew nothing of the fact that such stipulation had been entered into until November 12. This offer of evidence was objected to by plaintiffs, and the objection was sustained by the court.

Counsel for defendants them moved for a reconsideration of the undated order of November 12, ordering defendants to open the right-of-way, and for a reconsideration of the order of November 26 holding the defendants in technical contempt of court for failure to do so. Both motions were denied, and on December 29, 1954, this appeal was taken and a supersedeas bond filed.

Plaintiffs contend that the order of November 12, 1954, appealed from was not a final judgment, and that therefore this appeal will not lie. Sec. 10-701, I.C., provides:

'A judgment is the final determination of the rights of the parties in an action or proceeding.'

The case of Farmers Equipment Co. v. Clinger, 70 Idaho 501, 222 P.2d 1077, 1080, states:

'A 'final judgment' is one which ends the suit, and appeals can only be taken from judgments that are final or from those from which appeals are specifically provided for.'

Whether an instrument is an appealable order or judgment must be determined by its content and substance, and not by its title. Swinehart v. Turner, 36 Idaho 450, 211 P. 558; State v. McNichols, 62 Idaho 616, 115 P.2d 104.

In the present case everything that could be done was covered by the...