Julien v. Barker

• Decision Date: 08 July 1954
• Docket Number: No. 8032,8032
• Parties: JULIEN v. BARKER et al.
• Court: Idaho Supreme Court

Page 718

272 P.2d 718

75 Idaho 413

JULIEN v. BARKER et al.

No. 8032.

Supreme Court of Idaho.

July 8, 1954.

W. J. Nixon, Bonners Ferry, Geo. W. Young, Spokane, Wash., for appellant.

Whitla & Knudson, Coeur d'Alene, for respondent Barker.

Wm. S. Hawkins, Coeur d'Alene, for respondent Matson.

TAYLOR, Justice.

This appeal is from 'oral order sustaining the motion for nonsuit herein at the conclusion of the plaintiff's case in chief', and from the order denying appeallant's motion for a new trial. The notice of appeal was dated, served and filed June 30, 1953. The oral order referred to was apparently a ruling of the court made at the trial on March 18, 1953. A judgment of nonsuit dated March 18, 1953, was filed March 23, 1953. Respondents have moved to dismiss the appeal from the order of nonsuit. The appeal, having been taken more than 90 days after the entry of the order, is dismissed. § 13-201 I.C.

The order denying a new trial was dated May 22, 1953, and filed June 1, 1953. The appeal from that order is timely. § 13-201 I.C. The separate motions of the respondents to dismiss the appeal from the order denying a new trial, are based upon the grounds that there is no certificate as to the papers used or considered by the trial judge in disposing of the motion, as required by Rule 35 of the appellate rules of this court, and on the further ground that the record affirmatively shows that papers other than those included in the transcript were submitted to, and considered by, the trial judge in disposing of the motion for a new trial.

The motion of respondent Barker was filed in this court May 10, 1954, and the motion of respondent Matson was filed May 13, 1954. By order made April 26, 1954, the cause was set to be argued on the merits May 24, 1954. On May 12, 1954, the appellant filed with the clerk of the district court a supplemental praecipe requesting the clerk to prepare a transcript of the omitted papers, and a clerk's certificate as to papers used on the motion for a new trial. A supplemental transcript was accordingly prepared, and filed in this court May 24, 1954.

The certificate included in the supplemental transcript appears to have been signed by the clerk by his own hand, and bears the seal of the clerk of the district court. However, it appears from the showing made by appellant that the clerk, in a letter received by appellant's counsel on May 21st, refused to execute such a certificate on the ground that he was not present at the hearing of the motion for a new trial, and had not been informed by the district judge as to what papers he used or considered. The affidavit made by one of the appellant's counsel further shows that the omission of the counter-affidavits and the certificate from the original transcript was by mistake and inadvertence; that he was not aware of the omission until he received the brief of respondent Barker (filed March 1, 1954); that he thereupon, on May 10, 1954, wrote the clerk of the district court requesting the supplemental transcript, and mailed to this court his motion for an order augmenting the record; that on May 23, 1954, he asked counsel for respondent Barker and counsel for respondent Matson to join him in a certificate. Both counsel for respondents refused the request. Thereafter, and on the same day, the affiant requested the district judge, who had entered the order appealed from, to execute such a certificate; that the judge had retired from office subsequently to the making of the order by reason of ill health, and that he refused to sign the certificate, stating that he had no recollection of what papers he used or considered in disposing of the motion for a new trial. Appellant's counsel then executed a certificate in proper form, which was filed in this court May 24, 1954.

The question presented is whether this certificate, executed by appellant's counsel only, is a sufficient compliance with Rule 35, and related sections of the statute. §§ 13-214, 13-216 and 10-607 I.C.

No contention or suggestion is made that the certificate certifies to any papers which were not used or considered by the district judge, or omits any papers which were used or considered by him, in passing on the motion for a new trial. The original transcript was certified to by the clerk of the district court October 21, 1953. The district judge who acted on the motion for a new trial and retired from office, because of illness and infirmity, on July 30, 1953. The judge having retired under such circumstances that his memory failed him as to what papers were before him, and the clerk not having been present and not having been advised by the judge, neither of such officers could execute the certificate.

Under such circumstances the certificate made by appellant's counsel, not being challenged as to the correctness of its contents, should be accepted, and the appeal heard on its merits. Although appellant was at fault in omitting from his original praecipe the counter-affidavits and certificate, it appears that in all likelihood he could not have obtained the certificate from either the judge or the clerk if the omission had not occurred.

We have on numerous occasions permitted augmentation to supply or amend the required certificate. Steensland v. Hess, 25 Idaho 181, 136 P. 1124; Smith v. Inter-Mountain Auto Co., Ltd., 25 Idaho 212, 136 P. 1125; Burgess v. Corker, 25 Idaho 217, 136 P. 1127; Witt v. Beals, 31 Idaho 84, 169 P. 182; Owen v. Taylor, 62 Idaho 408, 114 P.2d 258. In some of these cases the augmentation was permitted when requested as late as the hearing on the motion to dismiss. In Eichner v. Meyer, 56 Idaho 751, 58 P.2d 845, the certificates were signed by appellant's attorney only. The court, speaking through Chief Justice Givens, said:

'Considering Rules 23 and 30, and § 11-216, I.C.A., it is apparent that the certificate, to be sufficient, must be signed by the attorneys for all parties, and this certificate was therefore fatally defective.' 56 Idaho at page 754, 58 P. 2d at page 846.

In that case, however, it appears there was no showing as to why the certificate was not made by the judge or the clerk or why it was not signed by counsel for the respondent, and no motion was made for leave to amend or supply a proper certificate.

In Gloubitz v. Smeed Bros., 52 Idaho 725, at page 727, 20 P.2d 198, at page 199, the court held:

'Such certificate is not jurisdictional, and the failure to include it in the transcript may be corrected before final submission of the case on appeal.'

This statement was approved in Owen v. Taylor, supra.

The motion to augment the record is granted.

The motion to dismiss the appeal from the order denying a new trial is denied.

The motion for a new trial is predicated upon the following grounds:

'1. Irregularity in the proceedings of the Court, jury, or adverse party or any order of the Court or abuse of discretion by which either party was prevented from having a fair trial in that the defendants and those privy to them and whose conduct in law is imputable to the defendants, conspired to and did conduct a campaign of intimidation consisting of threats of withdrawal or professional patronage and professional reprisals which were calculated to and did have the effect of intimidating and coercing two medical experts who were employed by the plaintiff to testify in this case, which medical testimony would have established, prima facie, negligence with which defendants are chargeable and for the sake of which the motion for nonsuit was granted in this case; that the campaign of coercion was conceived, executed and timed so as to commence following the announcement of the names and residences of said experts made at the opening of the case and prior to voir dire examination of prospective jurors, thus preventing plaintiff from procuring other expert witnesses, and plaintiff was successfully prevented thereby from obtaining other expert witnesses in time for such trial.

'2. Accident or surprise which ordinary prudence could not have guarded against.

'3. That the decision of the Court granting defendants separate motions for nonsuit is against law.

'4. Error in law occurring at the trial and excepted to by the plaintiff.'

The first ground sets forth a very serious charge of contempt of court, which would justify the prosecution of the offenders, had the acts charged occurred within the jurisdiction of the court. §§ 7-601, 7-610 I.C. It appears from the affidavit of one of the appellant's counsel that he had arranged with Dr. S. Thatcher Hubbard and Dr. W. V. Moyer, of Spokane, Washington, to be in attendance at the trial in Coeur d'Alene, Idaho, on the morning of March 17, 1953; that they had assured him as late as March 16th, the day the trial began, that they would appear and testify for the plaintiff; that on the evening of the 16th Dr. Hubbard advised the attorney that he would not be present, and on the morning of the 17th Dr. Moyer advised that he would not be present. These prospective witnesses told the affiant that they had been importuned by officers and members of the Spokane Medical Society, and by agents of insurers of medical practitioners against liability for malpractice, not to testify for the plaintiff; and that they had been intimidated by suggestions and threats from such persons, that their professional relations with the medical society and the insurers, and their practice, would be damaged if they became witnesses in plaintiff's behalf; and that by reason of such intimidation they refused to appear as witnesses. If true, it is hard to conceive of conduct more damaging to the medical profession, or to its relations with the public, and with the courts.

In the immediate inquiry, however, we are limited to the competency and sufficiency of this showing to require the granting of a new trial upon the ground of irregularity in the proceedings of the adverse party, by which plaintiff was prevented from...