Inman v. Round Valley Irr. Co., Ltd.

• Decision Date: 20 August 1925
• Citation: 41 Idaho 482,238 P. 1018
• Parties: J. R. INMAN et al., Appellants, v. THE ROUND VALLEY IRRIGATION COMPANY, LTD., a Corporation, et al., Respondents
• Court: Idaho Supreme Court

238 P. 1018

41 Idaho 482

J. R. INMAN et al., Appellants, v. THE ROUND VALLEY IRRIGATION COMPANY, LTD., a Corporation, et al., Respondents

Supreme Court of Idaho

August 20, 1925

ORDER DISMISSING ACTION-APPEAL-MOTION TO DISMISS-COMPLAINT-DEMURRER-PLEADING-FRAUD-JUDGMENT-WATER RIGHTS.

1. An order sustaining the demurrer of certain of a number of defendants and dismissing the action as to the defendants whose demurrer was sustained is a final judgment as to them and an appeal from such an order must be taken within ninety days.

2. In an action to set aside a judgment alleged to have been obtained by fraud, the complaint should allege the particular facts constituting the fraud which resulted in the entry of the judgment and prevented the entry of a proper judgment, and it is not sufficient to allege generally that the judgment was obtained through fraud.

3. One who seeks to vacate a judgment should allege that he had a good cause of action or a meritorious defense which he could have established but for the perpetration of the acts constituting the fraud, and that on a new trial of the issues he will be able to establish his cause of action or defense.

4. In an action to vacate a judgment for fraud in securing a stipulation to be signed by the party's attorney, the complaint should specifically allege the manner and means through which the attorney was induced to sign the stipulation.

5. A decree determining water rights is not binding on a stranger to the action.

6. A complaint on the part of a number of plaintiffs alleging an abandonment of water, theretofore decreed to a number of individual defendants, is not good as against a general demurrer, where it is not alleged that any specific quantities of the water alleged to have been abandoned have been used or are claimed by the plaintiffs respectively.

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

Action to vacate a decree and quiet title to water rights. Motion to dismiss appeal by certain respondents. Motion granted. Appeal from judgment. Judgment reversed.

Judgment reversed. No costs allowed.

W. W Adamson, for Appellants.

"A decree adjudicating water rights does not bind one who is a stranger to the action." (Mays v. District Court, 34 Idaho 200, 200 P. 115; Stocker v Kirtley, 6 Idaho 795, 59 P. 891; Josslyn v. Daly, 15 Idaho 137, 96 P. 568; Frost v. Idaho Irr. Co., 19 Idaho 372, 114 P. 38; Lambrix v. Frazier, 31 Idaho 382, 171 P. 1134; 2 Wiel, Water Rights, 3d ed., sec. 1233, p. 1137.)

Whitcomb, Cowen & Clark, Chase A. Clark, John W. Jones and Guy Stevens, for Respondents.

"If fraud is the ground on which the aid of equity in relieving against a judgment is asked it is not sufficient to incorporate in the bill a general allegation of fraud, deceit or misconduct, but the specific facts constituting the alleged fraud must be set forth particularly." (23 Cyc. 1041.)

"In an action to vacate a judgment it must be shown, not only the facts constituting the fraud which prevented a fair judgment from being rendered in the former action, but it must also show that there was a good defense to the original action, upon the merits, and that the defendant will be able to present this defense upon a new trial. These matters must be alleged, not in the form of conclusions or ultimate facts, but in the same manner as the facts constituting the fraud." (Berger v. Horlock, 10 Cal.App. 352, 101 P. 918, 920; Truett v. Onderdonk, 120 Cal. 581, 53 P. 26; Wood v. Carpenter, 101 U.S. 135, 25 L.Ed. 807.)

"The bill must likewise allege and show that it would be against conscience to allow the enforcement of the judgment, or that it would work injury or injustice to the complainant in some specific manner." (23 Cyc. 1040.)

WM. E. LEE, J. William A. Lee, C. J., and Budge and Givens, JJ., concur.

OPINION

WM. E. LEE, J.

--On February 19, 1923, the district court sustained the demurrer of defendants, Melvin Chivers, John W. Stephens, Lillian Stephens, Thomas Stephens, William Leaton, S. J. Bradbury, William Millick, Earl Millick, Fred Funkhouser, A. D. Kelley, William Rabenort, W. A. Pierson, R. W. Philps and Everet Baxter to the third amended complaint, and dismissed the action as to them. Thereafter on motion of plaintiffs the order sustaining the demurrer and dismissing the action was vacated and the demurrer was argued to the court. On March 17, 1923, the court again sustained the demurrer and dismissed the action as to them.

On May 4, 1923, the demurrers of the remaining defendants to the third amended complaint were heard and sustained, the material portion of the order reading as follows:

"It is hereby ordered that said demurrers be, and they are hereby sustained and that said action may be dismissed."

On the same day, May 4, 1923, a judgment was duly made and entered dismissing the action.

On August 1, 1923, more than ninety days after the order of March 17, 1923, was made, but within that period from May 4, 1923, when the second order and the judgment were made, appellants filed a notice of appeal from the judgment of May 4, 1923.

We are first met with a motion by those defendants whose demurrer was sustained and with respect to whom the action was dismissed on March 17, 1923, to dismiss the appeal on the ground that it was not taken in time. The material portion of the order of March 17, 1923, sustaining the demurrer and dismissing the action, is as follows:

"It is now hereby ordered that the said demurrer of the said defendants to the third amended complaint of the plaintiffs be and it is hereby sustained, and, it appearing to the judge of said court that no material amendments of the second amended complaint were made, on motion therefor, it is further hereby ordered that the said third amended complaint be and it is hereby as to these demurring defendants hereby dismissed."

This was a final judgment as to the parties with respect to whom the action was first dismissed; the action was dismissed as to them just as effectively as if the order had been labeled a judgment. "A judgment is the final determination of the rights of the parties in an action or proceeding." (C. S., sec. 6826.) The office of a pleading or instrument is determined by what it is rather than by the name it bears. (Swank v. Sweetwater Irr. etc. Co., 15 Idaho 353, 98 P. 297; 6 Cal. Jur. 256, sec. 164; Consumers' Co. v. Public Utilities Com., 40 Idaho 772, 236 P. 732.) Suppose the court had overruled the demurrer of the remaining defendants, when and from what would plaintiffs have taken their appeal as to these moving defendants? This assumed situation merely illustrates the impracticability of any other conclusion than that the order of March 17, 1923, constituted a final judgment as to the defendants thereby affected, and that their motion to dismiss the appeal should be granted.

As to the remaining defendants, eight causes of action are attempted to be stated on behalf of the plaintiffs. The complaint is attacked by the remaining defendants by demurrers on the grounds that:

1. The complaint does not state facts sufficient to constitute a cause of action;

2. That the court has no jurisdiction over the defendants;

3. "That two causes of action have been so mixed that the . . . . complaint is doubtful and uncertain in that it is impossible to know whether it is an action for damages or a case to determine irrigation rights."

The complaint is not vulnerable to the third ground of the demurrers. Whatever the case attempted to be stated by the complaint may be denominated, it is not an action for damages.

As to the second ground of the demurrers, the district court for Custer county is a court of original general jurisdiction, and it does not appear from an examination of the complaint that the court does not possess jurisdiction of the defendants or of the subject matter of the action. The second ground of demurrer is not good.

Viewed from the first ground of the demurrers, the third amended complaint alleges that in 1911, in the case of Stevens et al. v. Shaw et al., then pending in the court from which this appeal was taken, a suit to adjudicate the respective rights of the parties in and to the waters of Challis Creek, defendants fraudulently agreed to and did misrepresent the true facts with respect to the flow of the creek, the dates of priorities and the amounts of water the parties to that action were entitled; that they misled the court as to the true facts and thereby induced the court to base its "findings and judgment on said so-called 'statement of facts,'" which was that the respondents and their predecessors had appropriated all the normal flow of the waters of the creek on May 1, 1879, and other dates, and that plaintiffs had inferior rights therein to defendants, which defendants knew was false and fraudulent. It seems that the "statement of facts" was embodied in a stipulation between the parties and was filed in the cause; and it is alleged that defendants knew that "such stipulation and decree would deprive each of the plaintiffs of their just rights as to the flow of the waters of said stream."

It is further alleged that defendants presented the stipulation to the trial court, "a...