J. I. Case Co. v. McDonald

• Decision Date: 01 March 1955
• Docket Number: No. 8112,8112
• Citation: 280 P.2d 1070,76 Idaho 223
• Parties: J.I. CASE COMPANY, a corporation, Plaintiff-Respondent, v. Charles F. McDONALD, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1070

280 P.2d 1070

76 Idaho 223

J.I. CASE COMPANY, a corporation, Plaintiff-Respondent, v. Charles F. McDONALD, Defendant-Appellant.

No. 8112.

Supreme Court of Idaho.

March 1, 1955.

Rehearing Denied March 28, 1955.

S. T. Lowe and Kales E. Lowe, Thomas H. Church, Burley, for appellant.

Richards, Haga & Eberle, Boise, for respondent.

TAYLOR, Chief Justice.

On February 14, 1953, the plaintiff (respondent) filed an action against the defendant (appellant) for a balance alleged to be due upon an account for merchandise. At the same time it procured the issuance of a writ of attachment upon an affidavit alleging 'that the security originally securing payment of such indebtedness has * * * become valueless', and that the same is not now secured. April 10, 1953, the defendant moved the court to dissolve the attachment. The defendant was a dealer in farm machinery, buying from the plaintiff, machinery, attachments and parts for sale at retail at Burley and Rupert, Idaho.

On June 12, 1953, a hearing was had on the motion to dissolve. Upon this hearing defendant presented to the judge an affidavit in support of the motion, and the motion was amended to include the affidavit as a part of the basis thereof. Plaintiff was then given time to file counter-affidavits and the cause was continued. Defendant's affidavit sets forth a provision common to all the purchase order contracts executed by the parties on the occasion of each sale, as follows:

'Until full payment has been made therefor to Company in cash, goods purchased under this contract shall be resold by Dealer only in the ordinary course of trade at retail and the title to all of such goods until so sold, together with right of possession in the event of default, shall be and remain in the Company, and the proceeds of goods sold, whether in cash, notes, book accounts or other property, shall be deemed the property of Company and held in trust for it, subject to its order until full payment in cash shall be made to it for such goods, and Dealer expressly authorizes and empowers Company at any time to possess itself of the proceeds of any goods resold, and, upon its request, agrees to execute all necessary endorsements and assignments fully to vest Company with all such proceeds under the terms of this contract.'

The affidavit then goes on to aver that prior to the commencement of the action the plaintiff repossessed certain merchandise, but there still remained in his possession merchandise, described in the affidavit, of a total value of $20,803.71, 'title to which is held by the plaintiff as security for the payment of any indebtedness that might be due or owing from defendant to the plaintiff.' Counter-affidavits by plaintiff's district manager and one of its attorneys were filed June 19, 1953. They aver in substance that all of the merchandise described in defendant's affidavit had been fully paid for and, therefore, the plaintiff had no right, title, interest or security therein; that prior to commencement of the action, at the time plaintiff repossessed certain merchandise held by defendant, the affiants, as its agents, made demand upon defendant for all merchandise, and proceeds of merchandise, then on hand for which he had not fully paid; and defendant then told them the property which he turned to them at that time was all of the merchandise, or proceeds of merchandise, then remaining in his hands and for which he had not paid the plaintiff in full.

In rebuttal defendant McDonald made a second affidavit, filed August 8, 1953. In this affidavit he avers that during the period of his dealership, commencing in 1941, he made payments on his account with the plaintiff from time to time; that he never designated 'any particular merchandise or machinery on which the payments were to be applied, excepting when he sold a certain large item like a tractor or other similar equipment'; and that payments made by him during the last year preceding the commencement of the action were credited on his general account with the plaintiff. He also denies that at the time of the repossession he represented or told plaintiff's agents the merchandise then repossessed was all of the merchandise, or proceeds of merchandise, which he had on hand, for which he had not made full payment.

On August 8, 1953, the date on which defendant's rebuttal affidavit was filed, the district judge made an order, filed August 10, dissolving the attachment. This order was made without further argument or presentation by counsel.

Some time later (date not shown) plaintiff filed a motion for reconsideration of defendant's motion to dissolve the attachment. Hearing upon this motion was had on September 3, 1953. At this hearing counsel for the respective parties placed conflicting constructions upon the affidavits theretofore considered by the court. Counsel for defendant at that time urged the court to consider the provisions of a general contract entered into annually by the parties, which he had discovered subsequently to the order of August 8, and which had not been previously called to the attention of the court. He contended that by the terms of this general contract all merchandise, and proceeds of merchandise, purchased from plaintiff, which he had on hand, remained the property of the plaintiff and subject to its order, until his account was paid in full.

The court ordered a 'reconsideration or rehearing', which was had October 26 and 27, 1953. When the cause was called on October 26, counsel for defendant then objected to the reconsideration on the ground:

'First: That an order dissolving an attachment is an appealable order.

'Second: That the time for an appeal from the order dissolving the attachment has now expired and the same has become final, and the Court would have no jurisdiction to reconsider or vacate the same.'

This objection was overruled. The court then heard testimony of witnesses on both sides. On January 7, 1954, the court made its order vacating the order of August 8, 1953.

This appeal is from the order of January 7, 1954. In this last order the court recites:

'* * * it appearing to the court that said order of August 8, 1953, had been made through a misapprehension of the court and by error, omission, oversight and misunderstanding and that the facts as they really existed were that plaintiff at the time of the issuance of said writ of attachment had no security by mortgage, lien or pledge and that the affidavit upon which said writ was issued was not false and that said order should be vacated and set aside, * * *.'

The first question presented is the power of the district court to reconsider and vacate its order dissolving the attachment.

Appellant urges that the order of August 8th, being appealable and the time for appeal having expired prior to the rehearing on October 26th, § 13-201, I.C., the order had become final and the court was without further jurisdiction in the premises. The motion to reconsider had been acted upon and granted by the court on September 3rd, when it 'ordered re-consideration or re-hearing.' This was before the time for appeal from the first order had expired. Whether the court could entertain such a motion made after time for appeal, is not before us.

Appellant relies upon § 13-101, I.C., which provides:

'A judgment or order, in a civil action, except when expressly made final, may be reviewed as prescribed in this code, and not otherwise.'

He argues that the 'prescribed' 'review' of an order such as here involved, is by way of the appeal provided for in § 13-201, I.C., and that appeal is the exclusive remedy. We think the 'review' referred to in § 13-101, I.C., is a review by an appellate tribunal. § 13-219, I.C.; Weehawken Wharf Co. v. Knickerbocker Coal Co., 25 Misc. 309, 54 N.Y.S. 566; 77 C.J.S. page 337; 5 C.J.S., Appeal and Error, § 1453. 'Rehearing' or 'reconsideration' as used here properly refers to a reconsideration by the same court by which the original determination was made. § 1-1617, I.C.; Guernsey v. First National Bank, 63 Kan. 203, 65 P. 250; Bass v. Baltimore & O. Terminal R. Co., 7 Cir., 142 F.2d 779; In re Friedman, 123 Misc. 809, 206 N.Y.S. 410; Jones v. Thompson, 8 Cir., 128 F.2d 888; 76 C.J.S. page 106; Lake v. State, 100 Fla. 373, 129 So. 827; Citizens Auto. Inter-Insurance Exch. v. Andrus, 70 Idaho 114, 212 P.2d 406. 'Review' is limited to the record made in the lower court. A rehearing or reconsideration in the trial court usually involves new or additional facts, and a more comprehensive presentation of both law and fact. Indeed, the chief virtue of a reconsideration is to obtain a full and complete presentation of all available facts, so that the truth may be ascertained, and justice done, as nearly as may be. No additional record or new facts may be presented upon an appeal. Hence, in such cases appeal affords no remedy. In addition a reconsideration by the trial court will tend to reduce the number of appeals, with the attendant expense and delay. Moreover, § 13-101, I.C. must be construed in harmony with § 1-1603, subsection 8 I.C., which provides that every court has power 'To amend and control its process and orders, so as to make them conformable to law and justice.'

In Hirsch v. Hirsch, 74 Cal.App.2d 391, 168 P.2d 770, 771, the court, considering section 473 of the Code of Civil Procedure, in part the same as our § 5-905, I.C., said the statute was not intended 'to circumscribe the inherent powers of the courts but rather to enlarge such powers.' In Occidental Life Ins. Co. v. Niendorf, 55 Idaho 521, 44 P.2d 1099, 1102, this court recognized the common law power of a 'court to modify, alter, or vacate its judgments at any time during the term at which they were entered', and held nevertheless that 'in so far as, the manner and method of exercising these powers has been defined and prescribed by statute, the statutory method and remedy is exclusive.' The statute referred to was...