Judy v. Reilly Atkinson & Company, Inc.

• Decision Date: 10 February 1939
• Docket Number: 6571
• Citation: 59 Idaho 752,87 P.2d 451
• Court: Idaho Supreme Court
• Parties: R. E. JUDY, Appellant, v. REILLY ATKINSON & COMPANY, INC., a Corporation, Respondent

87 P.2d 451

59 Idaho 752

R. E. JUDY, Appellant, v. REILLY ATKINSON & COMPANY, INC., a Corporation, Respondent

No. 6571

Supreme Court of Idaho

February 10, 1939

JUDGMENT OF DISMISSAL-PREJUDICIAL ERROR-BURDEN OF SHOWING-DISTRICT COURT RULES-JUDICIAL NOTICE-PRESUMPTIONS.

1. Where judgment of dismissal for failure to prosecute action was entered in a suit for an accounting, appellant was not entitled to have a direction given by trial court to a referee before the entry of judgment and which did not affect the judgment reviewed, (I. C. A., sec. 11-219.)

2. The appellant has the burden of showing the existence of error prejudicial to him.

3. On appeal, in the absence of a showing to the contrary, it will be presumed that the judgment, order or decree appealed from is correct.

4. The supreme court cannot take judicial notice of the rules of the district courts.

5. Where the judgment appearing in the transcript shows it is based on a rule of court which does not appear in the record presumption obtains that the rule supports the action of the trial judge in entering the judgment. (District Court Rules rule No. 9.)

6. Where record failed to disclose any action had been taken in the case for more than one year prior to entry of judgment of dismissal in a suit for an accounting or any reason for failure to prosecute the suit other than plaintiff's dissatisfaction with direction of trial court to referee, a judgment of dismissal for failure to prosecute the action was authorized. (District Court Rules, rule No. 9; I. C. A., sec 7-705.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. Judgment of dismissal, for failure to prosecute the action does not entitle appellant to have rulings, made prior thereto and which do not affect the judgment, reviewed.

II. The burden is on appellant to show the existence of error prejudicial to him. It will be presumed on appeal, in the absence of a showing to the contrary, that the judgment, order or decree appealed from is correct.

III. The supreme court cannot take judicial notice of district court rules and, where the judgment appearing in the transcript shows it is based on a rule of court, which does not appear in the record, it is our duty to proceed on the theory and presumption that the rule supports the action of the judge in entering it.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Action for an accounting. Judgment of dismissal for failure of plaintiff to prosecute action. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Chapman & Chapman, for Appellant.

Hawley & Worthwine, for Respondent.

The appellant refused to proceed to a hearing before the referee and abandoned his case, leaving but one course open to the lower court--dismissal. (Rule 9, Rules of the District Court of the Third Judicial District of Idaho; I. C. A., sec. 7-705; McAllister v. Erickson, 45 Idaho 211, 261 P. 242.)

Since appellant assigns no error in the judgment of dismissal, none can be considered on the appeal. (Rule 42, Rules of Supreme Court of Idaho, p. 61; Coeur d'Alenes Lead Co. v. Kingsbury, 56 Idaho 475-483, 55 P.2d 1307; Rosa v. Devingenzo, 53 Idaho 213-217, 24 P.2d 1051; Stedtfeld v. Eddy, 45 Idaho 584, 264 P. 381.)

MORGAN, J. Ailshie, C. J., and Givens and Holden, JJ., concur, Budge, J., concurs in the conclusion.

OPINION

MORGAN, J.

It appears from the pleadings that on or about March 9, 1931, appellant and respondent entered into a written contract whereby the latter employed the former to act as its agent and salesman in the Twin Falls territory; that appellant was to be paid $ 125 a month, and his reasonable expenses when away from Twin Falls in the discharge of his duties, and that he was also to receive one-half the profits of all sales made by him after deductions had been made therefrom for the cost of handling the sales by respondent, the salary of appellant, his expenses, warehouse expenses, insurance, taxes and other reasonable items. The employment was terminated on or about September 16, 1932. Apparently controversy arose between the parties as to whether deductions should be made, in arriving at the profits, of uncollectible accounts for sales made by appellant during the entire period the contract was in force, or whether profit and loss should be computed on each transaction separately.

September 24, 1935, the cause being at issue, the judge made an order that it be referred to Frank J. Kester, a notary public, as referee to take and state the account of all dealings and transactions between the parties arising out of the contract. The date fixed for hearing before the referee was March 2, 1936. January 31, 1936, counsel for the parties joined in an application to the judge wherein they asked him to determine the meaning of the contract and modify, change or amplify his instructions to the referee in the following particulars:

"(1) Whether or not in arriving at the amount due, if any, from defendant to plaintiff under the terms and provisions of the contract in question, the accounting should be upon the basis of the total expenses for the entire period the plaintiff was employed by the defendant under the terms of said contract, deducted from the gross receipts of all of the transactions during said period, or

"(2) Whether or not in arriving at the amount due, if any, from defendant to plaintiff under the terms and provisions of the contract in question, the accounting should be upon the basis of the total expenses incurred in connection with each individual transaction under the terms and provisions of said contract, deducted from the total receipts of each individual transaction, or

"(3) Whether or not in arriving at the amount due, if any, from defendant to plaintiff under the terms and provisions of the contract in question the contract is so ambiguous, indefinite and uncertain that the Court cannot determine from the terms and conditions of said contract upon what basis the accounting should be had and that it will be necessary for the Referee to resort to oral testimony to determine the intent of the respective parties thereto."

An order was made granting counsel time in which to prepare, serve and file briefs on the questions propounded to the judge, and his decision thereon is shown by the minute entries, dated November 30, and December 4, 1936. The minute entry of November 30, is as follows:

"In this cause on application of counsel for respective parties for directions to the referee, the Court at this time rendered its decision and found in the negative as to questions 1 and 3 and in the affirmative as to question 2 as per written memorandum decision on file herein."

The memorandum of December 4th, recites:

"In this cause, the Court handed down a supplemental memorandum decision modifying its memorandum dated November 30, 1936, by holding that question 1 as therein set forth should be answered in the affirmative, and that questions numbered 2 and 3 should be answered in the negative; directing that the Referee be so instructed by Directions to Referee to be prepared by counsel for defendant."

December 7, 1936, the judge made an order that the referee proceed at some convenient time to an examination of the necessary books, records and data of the defendant and make his findings and report the same to the court upon the following basis:

"(1) The orders taken by the plaintiff for the defendant shall be listed separately and the condition of the accounts, i. e the amounts paid thereon by the purchasers, shall be separately itemized and a total found of actual payments and also of moneys uncollected; the dates of various orders shall also be reported.

"(2) The Referee shall find and itemize the various elements of expense chargeable against...