Kelson v. Ahlborn

• Decision Date: 12 June 1964
• Docket Number: No. 9160,9160
• Citation: 393 P.2d 578,87 Idaho 519
• Parties: , 13 A.L.R.3d 274 Charles M. KELSON, Plaintiff-Respondent, v. A. C. AHLBORN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 578

393 P.2d 578

87 Idaho 519, 13 A.L.R.3d 274

Charles M. KELSON, Plaintiff-Respondent, v. A. C. AHLBORN, Defendant-Appellant.

No. 9160.

Supreme Court of Idaho.

June 12, 1964.

Rehearing Denied July 23, 1964.

Stephen Bistline, Sandpoint, Thomas A. Mitchell, Coeur d'Alene, for appellant.

Prather & Wilson, Bonners Ferry, for respondent.

TAYLOR, Justice.

Plaintiff (respondent) moved to dismiss this appeal on the ground that it was not taken within the time prescribed by I.C. § 13-201. That section provides that an appeal from final judgment may be taken within sixty days after the entry of such judgment:

'Provided, however, that the running of the time for appeal is terminated by * * * a timely motion to amend or make additional findings of fact, * * * and the full time for appeal fixed by this act commences to run and is to be computed from the entry of any order granting or denying any of the above motions.'

Findings, conclusions and judgment herein were dated September 6, 1961, and filed September 28, 1961. Pursuant to a memorandum decision of the trial judge, dated August 21, 1961, counsel for plaintiff prepared proposed findings of fact and conclusions of law, and served same upon opposing counsel. Defendant's counsel prepared objections to the proposed findings, dated September 8, 1961, filed September 11, 1961, containing the following:

'and requests of the court that the same be amended and that the court set forth facts, rather than conclusions to substantiate a total indebtedness as is set forth in the proposed findings of fact and conclusions of law and in particular, the defendant requests of the court that findings be made to show the amounts of money that, if any were owed by the defendant to the plaintiff, and for what reason, and also, that amounts of money that were owed by the plaintiff, to the defendant.'

IRCP Rule 52(b) provides:

'Upon motion of a party made not later than ten (10) days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. * * *'- Plaintiff contends that defendant's objections to 'proposed' findings, made prior to the entry of the findings and judgment, do not constitute a motion to amend made within ten days after the entry of the judgment and, therefore, did not stay the running of the time for appeal. The record indicates that defendant's counsel prepared the objections without knowing that the findings had been signed by the district judge and therefore referred to them as 'proposed' findings. However, after the judgment was entered on September 28, 1961, defendant's objections, motion to amend and to make additional findings were treated by the court and opposing counsel as directed to the findings executed and filed by the district judge September 28th. A hearing was had upon the issues raised by the objections, motion to amend and to make additional findings. The court thereafter, by order dated November 16, 1961, filed November 17, 1961, overruled the objections, motion to amend and to make additional findings. The order recites:

'Defendant having filed herein objections to Findings of Fact and Conclusions of Law filed herein on September 28, 1961, * * *'

Therefore, the document titled 'Objection to Proposed Findings' is to be regarded as a motion to amend and to make additional findings, made within ten days after the entry of the judgment. The appeal taken November 28, 1961, was timely, and the motion to dismiss is denied.

The action of the trial court, denying defendant a trial by jury, is assigned as error. IRCP Rule 38(b) provides:

'Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than ten (10) days after the service of the last pleading directed to such issue. * * *'

IRCP Rule 86 provides that the rules shall take effect November 1, 1958, and further, that:

'* * * They govern all proceedings in actions brought after they take effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court, expressed by its order, their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the procedure existing at the time the action was brought applies.'

Defendant's answer, containing affirmative allegations and counterclaims, was filed January 7, 1958. Defendant's prior counsel withdrew May 6, 1958. It is made to appear by affidavit of defendant's present counsel that this action was allowed to remain dormant during the pendency of another action between defendant and a third party, which other action was concluded in April 1959. The date of the first appearance of defendant's present counsel in this action is not shown.

A letter from plaintiff's attorneys addressed to defendant's attorney advised that at defendant's request hearing on motion and demurrer addressed to the answer and counterclaim was postponed from August 4, 1959, and would be called for hearing on the date of the next calendar call, August 18, 1959. On the last mentioned date the cause was set for trial September 17, 1959, without a jury, and the issues raised by the motion and demurrer were not determined. Counsel for defendant was not present on August 18, 1959, and was absent from his office. Upon his return, learning that the cause had been set for trial before the court, he advised the court orally that his client had not and would not waive his right to a jury trial. Counsel for plaintiff asserted that some unnamed attorney, purporting to represent the defendant, on August 18th waived defendant's right to jury trial. Defendant's counsel asserts he did not authorize any attorney to so act for him. No minute entry of such a waiver appears in the record.

September 3, 1959, the court vacated the trial setting because of pending issues of law. The issues raised by the motion and demurrer were argued to the court September 1, 1959; and after the submission of briefs requested by the court, order was entered, sustaining the motion and demurrer, January 25, 1961. Prior to the call of the calendar for the spring term of 1960, defendant's counsel, by letter dated March 7, 1960, as permitted by district court rule 81, advised the court that it might be impossible for him to be present at the calendar call and that this case could be placed on the jury docket. The case was not set for trial at either the spring or fall term in 1960. Defendant's counsel being unable to be present at the calendar call for the spring term, February 6, 1961, arranged to have attorney W. W. Nixon appear for him and request that the cause be set for trial by jury. Attorney Nixon advised defendant's counsel by letter dated February 6, 1961, that the cause had been set for trial June 5, 1961, to the court without a jury, and that the judge was of the view that the cause having been previously set for court trial, defendant was not entitled to a jury. June 5, 1961, defendant's counsel filed his affidavit in which he reviewed the chronological order of the proceedings in the case and again demanded a jury trial. The trial date was again postponed to June 19, 1961, at which time the court proceeded to try the case without jury. In this the court erred. The right to trial by jury is preserved by the constitution. Const., art. 1, § 7. The rule governing waiver of trial by jury, prior to the effective date of IRCP is set out in I.C. § 10-301, as follows:

'Trial by jury may be waived by the several parties to an issue of fact in actions arising on contract, or for the recovery of specific real or personal property, with or without damages, and with the assent of the court, in other actions in the manner following:

'1. By failing to appear at the trial.

'2. By written consent, in person or by attorney, filed with the clerk.

'3. By oral consent, in open court, entered in the minutes.'

Rule 86 makes Rule 38(b) applicable to further proceedings in pending cases, except where the application of the rule would not be feasible or would work injustice. In this case the exception provided by the rule should have been recognized and applied by the trial court. The last pleading, directed to a jury issue, was filed months before IRCP became effective. The long delay is chargeable to both court and counsel. The continued insistence upon jury trial by defendant's present counsel indicates that he was relying upon the prior procedure. The failure of the court to make a minute entry of any alleged waiver precludes reliance upon such waiver.

'It affirmatively appears that claimant made a written demand for a jury trial before any trial was commenced. We will not indulge in any presumption that a litigant has waived such a fundamental right.' Farmer v. Loofbourrow, 75 Idaho 88, 267 P.2d 113, 41 A.L.R.2d 774 (1954).

The denial of defendant's right to a trial by jury makes it necessary to reverse the judgment and remand the cause for a new trial, and it is so ordered.

Plaintiff's complaint alleges an agreement with the defendant by the terms of which defendant was to perform certain logging operations for plaintiff; that defendant did not have the means to finance the operations agreed upon; that plaintiff advanced money to defendant for that purpose to be repaid in services; and that the advances exceeded the value of services rendered in the amount prayed for by plaintiff. Two other causes are alleged for minor loans, one of which defendant claimed was an advance in connection with the logging agreement.

Two of defendant's four counterclaims sought recovery of damages for plaintiff's failure to provide trucks for hauling logs as agreed in the logging contract; one sought compensation for the supervision of construction of a logging road; and the fourth counterclaim was for...