Idah-Best, Inc. v. First Sec. Bank of Idaho, N.A., Hailey Branch

• Decision Date: 04 October 1978
• Docket Number: INC,No. 12712,IDAH-BES,12712
• Citation: 584 P.2d 1242,99 Idaho 517
• Parties: , 25 UCC Rep.Serv. 209 , Plaintiff-Respondent, v. FIRST SECURITY BANK OF IDAHO, N.A., HAILEY BRANCH, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1242

584 P.2d 1242

99 Idaho 517, 25 UCC Rep.Serv. 209

IDAH-BEST, INC., Plaintiff-Respondent, v. FIRST SECURITY BANK OF IDAHO, N.A., HAILEY BRANCH, Defendant-Appellant.

No. 12712.

Supreme Court of Idaho.

Oct. 4, 1978.

Stephen W. Boller, Hailey, Richard E. Hall of Moffatt, Thomas, Barrett & Blanton, Boise, for defendant-appellant

Paul M. Beeks of Smith & Beeks, Twin Falls, for plaintiff-respondent.

McFADDEN, Justice.

Plaintiff-respondent Idah-Best, Inc. filed this action against the Hailey branch of the First Security Bank of Idaho, N.A., hereinafter appellant. Appellant had dishonored a check drawn on itself and payable to respondent. In its complaint, respondent alleged that appellant had failed to return the dishonored check or give notice of dishonor within its "midnight deadline." Respondent prayed for judgment in the amount of the check, as provided by I.C. § 28-4-302, ¹ as well as costs and attorney fees. Respondent subsequently moved for summary judgment, which was granted. In a document styled a "partial summary judgment" the court ruled that appellant had indeed failed to meet its midnight deadline and was therefore liable for the amount of the check ($30,000) plus interest. The "partial summary judgment" also calculated the interest on the amount of the check and further ordered "that the question of attorneys fees and of costs of suit be deferred until trial on other proceeding in this action." Upon appellant's motion, the court granted a "stay of execution" of the

"partial summary judgment" pending reconsideration. Subsequently the court denied the motion to reconsider and "vacated" the "stay of execution." It is from this "partial summary judgment" that appellant appealed. The parties later stipulated that the orders of the trial court regarding costs and attorney fees should be made a part of the appeal record but no action was taken to add these orders to the record.

ISSUE OF APPEALABILITY

The threshold issue in this appeal is whether the court has before it an appealable judgment or order. This court has repeatedly stated that although art. 5, § 9, of the Idaho Constitution gives this court jurisdiction to review "any decision of the district courts," "the phrase 'any decision' does not mean all decisions made by said courts or the judges thereof during the progress of a trial, but only such as are final or such as are specifically provided for by statute . . . ." Weiser Irrig. Dist. v. Middle Valley Irrig. Ditch Co., 28 Idaho 548, 553, 155 P. 484, 486 (1916). See Pulver v. State, 92 Idaho 627, 448 P.2d 241 (1968); Farmers Equip. Co. v. Clinger, 70 Idaho 501, 222 P.2d 1077 (1950). Rule 11 of the Idaho Appellate Rules provides that appeals to this court may be taken:

From the following judgments and orders of a district court in a civil action:

1. Final judgments and decrees including decisions by the district court dismissing, affirming, or reversing or remanding an appeal.

2. Judgments made pursuant to a partial summary judgment certified by the trial court to be final as provided by Rule 54(b), I.R.C.P.

3. An order granting or refusing a new trial.

4. An order granting or denying a motion for judgment notwithstanding the verdict.

5. Any order made after final judgment.

Under the circumstances of the instant case, this court finds that in order for the "partial summary judgment" to be appealable, it must come within I.A.R. 11's provisions allowing appeals either from "final judgments" or from "(j)udgments made pursuant to a partial summary judgment certified by the trial court to be final as provided by Rule 54(b), I.R.C.P."

The record shows no certification of the "partial summary judgment" pursuant to I.R.C.P. 54(b). Therefore the "partial summary judgment" must be a final judgment if this court is to exercise appellate jurisdiction.

" Whether an instrument is an appealable order or judgment must be determined by its content and substance, and not by its title." Howell v. Reimann, 77 Idaho 84, 87, 288 P.2d 649, 651 (1955); State v. McNichols, 62 Idaho 616, 115 P.2d 104 (1941); Swinehart v. Turner, 36 Idaho 450, 211 P. 558 (1922). Thus if the instrument "ends the suit," Farmers Equipment Co. v. Clinger, supra, "adjudicate(s) the subject matter of the controversy," Doolittle v. Morley, 76 Idaho 138, 140, 278 P.2d 998, 999 (1955), and represents a "final determination of the rights of the parties," Pulver v. State, 92 Idaho 627, 628, 448 P.2d 241, 242 (1968) (citing former I.C. § 10-701), the instrument constitutes a final judgment regardless of its title. See Southland Produce Co. v. Belson, 96 Idaho 776, 536 P.2d 1126 (1975); Viani v. Aetna Ins. Co., 95 Idaho 22, 501 P.2d 706 (1972); Gerry v. Johnston, 85 Idaho 226, 378 P.2d 198 (1963); Lamberton v. McCarthy, 30 Idaho 707, 168 P. 11 (1917); Evans State Bank v. Skeen, 30 Idaho 703, 167 P. 1165 (1917).

This court's examination of a somewhat confused record shows that the "partial summary judgment" was intended as a final judgment. The partial summary judgment disposed of the substantive issues, leaving for determination only the issue of "attorneys fees and costs of suit." It is significant that the "partial summary judgment" not only determines that appellant is liable on the dishonored check and establishes the amount of the damages, but it also calculates interest on the amount of the liability. If the court has truly granted a partial summary judgment it would not

[99 Idaho 520] have calculated interest until entry of a subsequent final judgment. See State ex rel. Symms v. Collier, 93 Idaho 19, 454 P.2d 56 (1969); Elliot v. Elliot, 88 Idaho 81, 396 P.2d 719 (1964). Furthermore, if the "partial summary judgment" were only that, the court would not have granted a "stay of execution" pending a ruling on the motion to reconsider the decision; there can be no execution on a money judgment not yet final. Nor did respondent act in any way inconsistent with the finality of the "partial summary judgment." Following the filing of the notice of appeal, respondent joined appellant in a stipulation waiving supersedeas bond a stipulation that referred to appellant's "appeal (from) the Partial Summary Judgment." Under these circumstances, the court holds that the "partial summary judgment" was intended to be and is a final judgment that anticipated subsequent determination of costs by the trial court. Dolbeer v. Harten, 91 Idaho 141, 148, 417 P.2d 407, 414 (1966) (dicta). There being a final judgment, the case is appealable to this court under I.A.R. 11 and will be decided on its merits.

MERITS

A. The Facts

The check giving rise to this action was dated ² Friday, October 31, 1975, drawn by Wesley Prouty doing business as Fox Acres, on appellant Hailey branch, First Security Bank of Idaho, N.A., and issued to the named payee, respondent Idah-Best, Inc. on that date in Twin Falls, Idaho. Also on Friday, October 31, respondent deposited the check in its account with Twin Falls Bank & Trust Company, obtaining a provisional credit in its account. I.C. § 28-4-201 (provisional settlement). Nothing further occurred on Saturday, November 1, and Sunday, November 2, during which time Twin Falls Bank & Trust was closed. See I.C. § 26-1002 (prohibiting banking on Saturdays and legal holidays); I.C. § 73-108 (proclaiming every Sunday a legal holiday). The bank being closed on these days, they were not "banking days." I.C. § 28-4-104(1)(c).

On Monday, November 3, Twin Falls Bank & Trust, acting as respondent's agent for collection, I.C. § 28-4-201, mailed respondent's check, as well as others drawn on First Security branches in southwestern Idaho, to the Boise branch of First Security Bank for deposit in Twin Falls Bank & Trust's commercial account there. This commercial account is maintained by Twin Falls Bank & Trust for the purpose of clearing between it and southwestern Idaho First Security branches checks drawn on each other.

Respondent's check arrived at the Boise branch the next day, Tuesday, November 4, in the batch of checks from Twin Falls Bank & Trust. The batch was sent to the data processing center in the basement of the Boise branch where the total amount of the batch and the accompanying "cash letter" were reconciled. Twin Falls Bank & Trust was then given a provisional credit in its Boise branch account for the amount of the "cash letter." The checks were then indorsed by the Boise branch by stamping on the back the customary bank indorsement with the Boise branch's number.

Next, the batch of checks was sorted according to the particular first Security branch upon which each was drawn. The amount of each check was then encoded upon each check in magnetic ink. During the nighttime, the encoded information, which included the bank and account numbers, was recorded on a magnetic disc, which in turn was transmitted by telephone line to First Security Bank's Salt Lake City, Utah, computer, which contains all accounts in all First Security banks. Using the transmitted data, the Salt Lake City computer posted the amounts of the individual checks to the particular accounts. The computer also adjusted the account balances between the Boise branch and the other branches upon which checks were drawn, giving the Boise branch provisional credits for the checks drawn on each respective branch's accounts. Again by telephone line, the Salt Lake City computer transmitted to Boise new balances in all affected accounts in all southwestern Idaho branches. This information was printed at the Boise data processing center for distribution to all branches. The Salt Lake City computer also transmitted to Boise a list of checks for which the computer found insufficient funds, closed accounts or incorrect account numbers. This entire process was completed in time for delivery of the processed checks to Bankers Dispatch ³ by 8:00 a.m. of the next morning.

On the list of checks drawn on appellant Hailey branch for which the computer found insufficient...