Idaho Gold Dredging Corp. v. Boise Payette Lumber Co.

• Decision Date: 10 March 1934
• Docket Number: 5706 and 6054
• Citation: 54 Idaho 270,30 P.2d 1076
• Parties: IDAHO GOLD DREDGING CORPORATION, a Corporation, Respondent, v. BOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

30 P.2d 1076

54 Idaho 270

IDAHO GOLD DREDGING CORPORATION, a Corporation, Respondent, v. BOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant

Nos. 5706 and 6054

Supreme Court of Idaho

March 10, 1934

APPEAL AND ERROR-SUCCESSIVE APPEALS-NEW TRIAL-JUDGMENT-DISMISSAL-BRIEFS-SPECIFICATIONS OF ERROR-AMENDMENT-DELAY IN FILING RECORD ON APPEAL.

1. Order reinstating judgment in literal compliance with direction of supreme court, which reversed order granting new trial, held not appealable order after judgment, since district court's action strictly in compliance with supreme court's mandate is not subject to appeal.

2. Second notice of appeal, made after order reinstating judgment in accordance with supreme court's direction when it reversed order granting new trial, should be dismissed; it being too late, if referring to original judgment, and attempt to appeal from nonappealable order if referring to order of reinstatement.

3. Supreme court may grant appellant privilege of amending brief by inserting new and additional specifications of error.

4. Supreme court will not inquire into merits of case on motion for dismissal of appeal.

5. Appeal from judgment would not be dismissed on theory that questions involved had been decided on appeal from order granting new trial, since there are certain questions presented on appeal from judgment which cannot be considered in reaching decision on motion for new trial.

6. Fundamental questions whether complaint will support judgment or whether judgment grants relief beyond issues are brought up for review in all appeals from final judgments and are not waived by failure to refer to them in specifications of error.

7. Proceedings for new trial are limited to examination of proceedings had at trial (I. C. A., sec. 7-601).

8. Proceedings for new trial and appeal from judgment are independent remedies which may be pursued at same time, or either may be pursued without the other.

9. Pendency of motion for new trial leaves judgment which will support direct appeal and does not extend time in which to prepare and file record on appeal.

10. Where judgment is affirmed on appeal, court may still grant new trial, but, if judgment is reversed on appeal, such reversal of itself ordinarily calls for new trial.

11. Where appellate court disposes of action, granting of new trial will not reinstate it.

12. Delays in preparing and filing record on appeal will not ordinarily warrant dismissal of appeal unless respondent has been prejudiced, but this principle does not apply where motion to dismiss is based on strictly jurisdictional grounds.

13. Delay in preparing and filing record on appeal held not to warrant dismissal; there being no showing that respondent was prejudiced, where, after judgment, new trial was granted and order granting it was reversed.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck and Hon. Charles E. Winstead Judges.

Motion to dismiss two appeals from judgment. Motion denied as to first appeal and granted as to second.

Motion to dismiss the appeal denied.

Hawley & Worthwine and Luther W. Tennyson, for Respondent.

If a litigant has no right to defer his appeal until the decision upon a void order vacating the judgment is found against him he should not have that right merely because the order was voidable and not void. We think that the precise situation here presented was settled by California on identical statutory provisions to our own in the days when Idaho adopted California's method of appeal, and, of course its decisions. (Puckhaber v. Henry, 147 Cal. 424, 81 P. 1105; Kline v. Murray, 79 Mont. 530, 257 P. 465.)

Alfred A. Fraser and Richards & Haga, for Appellant.

The statute expressly vests jurisdiction, power and authority in the district court to grant new trials of cases determined in that court, and defendant's motion for new trial presented to the trial court a question which "challenged judicable inquiry," and the order granting a new trial was, therefore, at most erroneous or voidable, but not void, and the rule that a void order does not toll the time for perfecting appeals does not apply to erroneous decisions, and the order granting a new trial therefore tolled the time for preparing and filing the record in the supreme court. (Secs. 7-601 to 7-607, I. C. A.; Baldwin v. Anderson et al., 51 Idaho 614, 8 P.2d 461; Mountain States Implement Co. v. Arave, 50 Idaho 624, 2 P.2d 314; Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135; Kower v. Gluck, 33 Cal. 401; Knowles v. Thompson, 133 Cal. 245, 65 P. 468.)

RICE, D. J. Givens, Morgan, Holden and Wernette, JJ., concur.

OPINION

RICE, D. J.

On October 20, 1930, judgment was entered in the district court in favor of the plaintiff, the respondent here, and against the defendant, appellant here. It will be convenient to refer to the parties as plaintiff and defendant.

On October 25, 1930, the defendant filed notice of motion for a new trial. On January 12, 1931, defendant perfected an appeal from the judgment by serving and filing notice thereof and the required undertaking. On February 24, 1931, the district court granted the motion for a new trial. Thereafter, on April 23, 1931, plaintiff appealed from the order granting a new trial and on March 6, 1933, the supreme court reversed the order of the district court granting a new trial and ordered the judgment reinstated. On June 1, 1933, the district court, pursuant to the mandate of the supreme court, entered its order reinstating the judgment. On June 6, 1933, the defendant perfected a second appeal. The defendant took no action to bring up to the supreme court the record on its appeal of January 13, 1931, other than to file its praecipe with the clerk and procure and serve an order directing the reporter to prepare a transcript of the evidence and proceedings at the trial within ninety days. Both the praecipe and the order for reporter's transcript were filed in due time. The plaintiff now moves to dismiss both appeals.

Defendant insists that its appeal of June 6, 1933, which will be referred to as the second appeal, and which it refers to as an appeal from a new or reinstated judgment, has been regularly perfected and should not be dismissed. There is no new judgment. The remittitur from the supreme court transmitting its judgment in the matter of the new trial, directed the trial court to reinstate the judgment. Pursuant to that direction the district court entered the following order:

"NOW THEREFORE, Upon application and motion of counsel for plaintiff for judgment in conformity with the mandate of said Supreme Court, IT IS ORDERED AND ADJUDGED, that the said decree of the said Supreme Court of the State of Idaho, be, and the same hereby is made the decree of this court, and it is further ordered and adjudged that the said order of this court heretofore entered herein on the 24th day of February, A. D. 1931, granting a new trial and vacating and setting aside the said judgment for the said plaintiff, be and the same hereby is vacated, set aside and held for naught, and the said judgment for the said plaintiff heretofore entered herein on the 20th day of October, A. D., 1930, be, and the same hereby is, reinstated as of the 20th day of October, A. D., 1930, the date of its original entry."

This is not in any sense a judgment, nor is it a renewal of the judgment or a re-entry thereof. The reinstatement necessarily refers to the original judgment as of the date of its original entry. Neither is it an appealable order after judgment. It is a literal compliance with the direction of the supreme court. Where a district court acts strictly in compliance with the mandate received from the supreme court, its action is not subject to appeal. (Gonzaga University v. Masini, 44 Idaho 113, 255 P. 413; Blaine County Investment Co. v. Mays, 52 Idaho 381, 15 P.2d 734.)

If any controversy should arise as to the rate of interest to be computed upon the judgment by reason of the enactment of chapter 197 of the 1933 Session Laws, since the judgment was entered, that controversy does not arise out of the order of reinstatement and is not involved in this appeal.

We consider the second notice of appeal as referring only to the original judgment of October 20, 1930. If that construction is correct, the second appeal is too late. If the notice of appeal can be construed to refer to the order of reinstatement, it is an attempt to appeal from a nonappealable order. The second appeal will be dismissed.

Plaintiff contends that when it has shown that all of the questions involved in an appeal from the judgment have been decided on an appeal from an order granting a new trial, the appeal from the judgment should be dismissed, and the plaintiff insists that that is the condition that exists in this case. The plaintiff refers to the specifications of error contained in defendant's brief on appeal from the judgment already filed in this court to bear out this contention. However this court may grant an appellant the privilege of amending his brief by inserting new and additional specifications of error and has, upon occasions, permitted such amendments to be made. Also it would be sufficient to state that in order to determine whether the specifications of error now contained in the brief on file present any new questions not heretofore decided,...