Johnston v. Pascoe

• Decision Date: 04 September 1979
• Docket Number: No. 12009,12009
• Parties: Elmer D. JOHNSTON, Plaintiff-Respondent, v. Darrel PASCOE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 985

599 P.2d 985

100 Idaho 414

Elmer D. JOHNSTON, Plaintiff-Respondent, v. Darrel PASCOE, Defendant-Appellant.

No. 12009.

Supreme Court of Idaho.

Sept. 4, 1979.

Donald E. Downen of Gigray, Miller, Downen & Weston, Caldwell, for defendant-appellant.

Richard B. Eismann, Homedale, for plaintiff-respondent.

McFADDEN, Justice.

This is an appeal from a summary judgment granted in favor of Elmer D. Johnston, plaintiff-respondent, and against Darrel Pascoe, defendant-appellant, in an action brought on a previously obtained judgment against defendant-appellant. In a previous opinion, the appeal was dismissed. Thereafter, appellant's petition for rehearing was granted and the appeal was reargued. The previous opinion is withdrawn and this opinion substituted therefor. In this opinion denial of appellant's motions brought under I.R.C.P. 59(a) and 60(b) are affirmed and the appeal from the summary judgment is dismissed. While the appeal was pending Mr. Eismann was substituted as respondent's counsel; he was not counsel, or of counsel, in the trial court.

In order to appreciate the issues presented on this appeal it becomes incumbent to briefly review the chronological series of events involved in this litigation.

May 10, 1968, a judgment was entered in the case of Johnston v. Pascoe in favor of Johnston for $13,620.00 plus 6% Interest and $2500.00 attorneys fees on a promissory note.

May 17, 1968, Johnston brought an action against Pascoe and others to set aside allegedly fraudulent conveyances, which was duly answered by the defendants. This action was dismissed on September 9, 1969 for lack of prosecution.

May 10, 1974, the present action was instituted by Johnston against Pascoe to renew the judgment of May 10, 1968. Answer was filed by Pascoe, setting forth among other defenses that the Johnston claim had been discharged in bankruptcy proceedings culminating in a discharge by Pascoe of certain obligations.

December 5, 1974, a motion for summary judgment supported by affidavits and memorandum was filed by Johnston. In the motion and affidavits, Johnston contended that Pascoe had failed to properly schedule his debt to Johnston in the bankruptcy proceedings and hence the judgment was not discharged.

February 14, 1975, Pascoe filed his memorandum in opposition to the motion for summary judgment, supported by his affidavit. This memorandum of Pascoe was opposed by a subsequent memorandum of Johnston served February 24, 1975.

March 4, 1975, Pascoe moved the court for an extension of time within which to file additional affidavits, deposition and interrogatories, which was opposed by Johnston.

March 12, 1975, the trial court entered its memorandum decision denying the motion for extension of time and ruling that plaintiff Johnston was entitled to summary judgment. The court directed Johnston's counsel to prepare the order denying the requested extension of time and an order granting the motion for summary judgment. This memorandum decision reflects that a copy of it was submitted to counsel for each of the parties.

March 21, 1975, orders entered granting motion for summary judgment and denying motion for extension of time, both dated March 12, 1975.

March 21, 1975, summary judgment dated March 18, 1975, was entered.

April 21, 1975, Pascoe moved for new trial or in the alternative for amendment of judgment under I.R.C.P. 59(a) and also moved to vacate judgment under I.R.C.P. 60(b). These motions were supported by counsel's brief and affidavit. In his affidavit counsel acknowledged receipt of the court's memorandum decision of March 12, 1975, but stated that he was never notified of the entry of the summary judgment and order and first became aware of its entry on or about April 11, 1975, and obtained copies of the judgment and order on April 16, 1975. He stated therein that although Johnston's attorney filed a cost bill on March 18, 1975, he was not served with a copy of it.

April 21, 1975, Pascoe filed a motion for stay of proceedings until disposition of his motions under I.R.C.P. 59(a) and 60(b). The court entered its order granting a stay of proceedings on April 22, 1975.

April 29, 1975, Johnston filed objections to Pascoe's motions, supported by memorandum of authorities and affidavit.

May 12, 1975, Pascoe filed three affidavits of witnesses to establish that Johnston had personal knowledge of Pascoe's pending bankruptcy.

May 16, 1975, the court granted 10 days to Johnston to supplement his objections to motions by Pascoe, and Pascoe was given 5 days to respond, following which the court was to rule without further argument.

May 27, 1975, Johnston's supplemental memorandum was filed, and following, on July 8, 1975, Pascoe's reply memorandum.

On July 8, 1975, the trial court entered its order denying Pascoe's motion to vacate judgment under I.R.C.P. 60(b) and denying his motion for new trial or in the alternative for an amendment of the judgment under I.R.C.P. 59(a). The court also struck costs allowed Johnston in the summary judgment, and revoked the stay of proceedings previously entered.

August 11, 1975, Pascoe's notice of appeal dated August 7, 1975, was filed.

Appellant Pascoe in his initial brief asserts that the trial court erred in two regards in entering the summary judgment inasmuch as there were unresolved issues of disputed fact as to whether Johnston had received notice of the bankruptcy of the defendant, and that the trial court erred in the summary judgment in granting appellant attorneys fees. He also contends that the trial court erred in denying his motion for an extension of time to file additional affidavits, depositions and interrogatories in opposition to the motion for summary judgment; that the trial court erred in denying his I.R.C.P. 59(a) motion for new trial or in the alternative for amendment of the judgment; and finally that the trial court erred in denying his I.R.C.P. 60(b) motion to vacate the judgment.

In his petition for rehearing appellant asserts that this court should have considered his I.R.C.P. 60(b) motion and that it failed to give due weight to the opinion in the United States Supreme Court case of Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283 (1944), 149 A.L.R. 736. In his reply brief on rehearing, appellant strenuously contends that the ruling of this court in Sines v. Blaser, 98 Idaho 435, 566 P.2d 758 (1977), should control.

Appellant's assignments of error will be discussed in the order presented. Under I.C. § 13-201, ¹ an appeal from a final judgment, including a summary judgment, must be filed within 60 days of entry of the judgment. Here the summary judgment was filed in the district court on March 21, 1975, yet this appeal from that judgment was not filed until August 11, 1975, well beyond the 60 day appeal time. Appellant, however, argues that the time for appeal should be tolled because the district court clerk failed to provide immediate notice of entry of judgment as required by I.R.C.P. 77(d) as that provision existed at the time pertaining to this appeal. ² However, even if the 60 day period of appeal were tolled until April 11, 1975, at which time appellant acknowledges he was aware of the entry of the summary judgment, more than sixty days elapsed between that date and the date of filing of this appeal. Therefore, we conclude that the appeal from the summary judgment was not timely and must be dismissed.

Appellant, nevertheless contends that under Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283 (1944), this appeal should still be entertained. In that case, the Supreme Court was considering an appeal taken from the District Court of the District of Columbia to the Court of Appeals. The appeal was not timely taken insofar as the original judgment of dismissal was concerned. The clerk of the district court failed to serve notice of entry of the judgment by mail and to make a note in the docket of mailing, contrary to the provisions of the Federal Rule 77(d) (which employed the same language as I.R.C.P. 77(d) here involved). The trial court, however, signed and filed a second judgment in the same terms as that of the original judgment, and the next day the appellant filed his notice of appeal. The high court held that the appeal was timely taken, stating:

It is true that Rule 77(d) does not purport to attach any consequence to the failure of the clerk to give the prescribed notice; but we can think of no reason for requiring the notice if counsel in the cause are not entitled to rely upon the requirement that it be given. It may well be that the effect to be given to the rule is that, although the judgment is final for other purposes, it does not become final for the purpose of starting the running of the period for appeal until notice is sent in accordance with the rule. . . . But we think it was competent for the trial judge, in the view that the petitioner relied upon the provisions of Rule 77(d) with respect to notice, and in the exercise of a sound discretion, to vacate the former judgment and to enter a new judgment of which notice was sent in compliance with the rules. The term had not expired and the judgment was still within control of the trial judge for such action as was in the interest of justice to a party to the cause.

Hill v. Hawes, 320 U.S. at 523-24, 64 S.Ct. at 336, 88 L.Ed. at 285, 286 (1944).

A similar situation prevailed in the case of this court in Andrus v. Irick, 87 Idaho 471, 394 P.2d 304 (1964), where the trial court entered its judgment on November 14, 1961. No appeal was timely perfected from that judgment. However, on February 23, 1962, the appellants moved under the then current version of I.R.C.P. 60(b) to be relieved from the entry of that judgment on the grounds of mistake, inadvertence, surprise or excusable neglect on the part of themselves and their counsel. The motion was supported by affidavits. Later a subsequent motion was filed seeking to set aside the...