Kershaw v. Pierce Cattle Co.

• Decision Date: 11 June 1964
• Docket Number: No. 9430,9430
• Citation: Kershaw v. Pierce Cattle Co., 87 Idaho 323, 393 P.2d 31 (Idaho 1964)
• Parties: Walter W. WERSHAW and Dorothy W. Kershaw, his wife, and Leslie Cox, an unmarried man, in their individual capacities and Dee Bar Land and Livestock Co., a co-partnership composed of Walter W. Kershaw and Dorothy W. Kershaw, his wife, and Leslie Cox, an unmarried man, as co-partners and Frederick H. Cox, Plaintiffs-Respondents, v. PIERCE CATTLE CO., a co-partnership, composed of Clifton C. Pierce and John K. Pierce, and Clifton C. Pierce and Eilien E. Pierce, his wife, and John K. Pierce and Mrs. John K. Pierce, his wife, as individuals, Defendants- Appellants.
• Court: Idaho Supreme Court

Page 31

393 P.2d 31

87 Idaho 323

Walter W. WERSHAW and Dorothy W. Kershaw, his wife, and Leslie Cox, an unmarried man, in their individual capacities and Dee Bar Land and Livestock Co., a co-partnership composed of Walter W. Kershaw and Dorothy W. Kershaw, his wife, and Leslie Cox, an unmarried man, as co-partners and Frederick H. Cox, Plaintiffs-Respondents, v. PIERCE CATTLE CO., a co-partnership, composed of Clifton C. Pierce and John K. Pierce, and Clifton C. Pierce and Eilien E. Pierce, his wife, and John K. Pierce and Mrs. John K. Pierce, his wife, as individuals, Defendants- Appellants.

No. 9430.

Supreme Court of Idaho.

June 11, 1964.

A. A. Merrill, Idaho Falls, for appellants.

Baum, Peterson & Kugler, Pocatello, for respondents.

TAYLOR, Justice.

Plaintiffs (respondents) brought this action on two counts to recover the value of hay and livestock handling facilities furnished to defendants (appellants).

Defendants admitted liability for hay furnished and filed a cross-complaint, containing three counts: to recover the value of hay furnished to plaintiffs; damages for breach of contract; and damages for wrongful attachment.

On June 12, 1962, at the time the cause was set for trial, in the presence of the district judge in chambers, the parties entered into a stipulation for the settlement and dismissal of the action. The stipulation as dictated to and transcribed by the court reporter was as follows:

'Mr. Peterson [of counsel for plaintiffs]: It is stipulated by and between the parties that the defendants named in this action pay to the Dee Bar Land and Livestock Company the sum of $19,000. Payment of which constitutes a full and complete release of all claims or matters set forth or alleged in Plaintiffs' complaint, Counts both One and Two. Such sum of $19,000 to be paid upon Court order out of the funds held by the clerk of the district court of Bannock County. The said sum being on deposit with the clerk pursuant to stipulation of plaintiffs and defendants and pursuant to Court order.

'It is further agreed that in consideration of the payment of the above sum set forth in the settlement that the defendants do hereby dismiss their counterclaims or cross-complaints or prejudice; said cross-complaints or counterclaims filed in this action in three counts.

'It is further stipulated and agreed that in consideration of the settlement of this action and pursuant to this stipulation that the defendant Clifton C. Pierce and his wife Eilien E. Pierce will dismiss with prejudice forthwith that certain action pending in the Superior Court of the State of California for the County of Los Angeles, wherein Clifton C. Pierce and Eilien E. Pierce are plaintiffs and Walter W. Kershaw and Dorothy W. Kershaw and Doe 1, Doe 2, Doe 3, Doe 4 and Doe 5 are defendants in such action; being Case No. 794289.

'It is further stipulated that the defendant Clifton C. Pierce and Eilien E. Pierce, his wife, will in addition to dismissing the last referred to action with prejudice will also forthwith release lease any and all garnishments and attachments of any kind issued pursuant to said suits or in any way connected therewith.

'Mr. Merrill [counsel for defendants]: It is further stipulated by and between the parties, and each and all of them, they do hereby forever release and discharge the defendants Clifton C. Pierce and his wife Eilien E. Pierce of and from all actions, causes of actions, debts, and any obligations of any kind which they might have from the beginning of the world to date hereof. It being the spirit of this stipulation that each of the parties, that is, the plaintiffs and the defendants have this day settled all of their affairs and obligations of any kind and character leaving nothing to be settled hereafter.

'Mr. Gustin [of counsel for plaintiffs]: This stipulation does not affect the responsibility or the obligations or the rights of the respective parties in and to the property in or about San Diego, California, and more particularly the trust deed heretofore executed by Clifton C. Pierce and his wife in favor of Walter W. Kershaw and Dorothy W. Kershaw covering certain property in or about San Diego, California.

'Mr. Peterson: It is further understood and agreed that when the terms of this stipulation have been complied with including the delivery of the $19,000 on deposit with the clerk here and the dismissal with prejudice of the suit in the Superior Court of California referred to above and a dismissal of any and all garnishments or attachments and the production of evidence that said action has been dismissed with prejudice and all garnishments or attachments on this have been released that this action will also be dismissed with prejudice.'

August 23, 1963, the cause was argued by the respective parties on plaintiffs' motion for the entry of judgment in accord with the stipulation. Thereafter, on September 23, 1963, the court entered its order of dismissal.

The order recites the terms of the stipulation; that its conditions had been complied with by the respective parties; and concludes:

'IT IS HEREBY ORDERED AND ADJUDGED that the aforesaid stipulation be and the same is hereby ratified, approved and confirmed, and pursuant thereto the within action and plaintiff's complaint and each and every count therein contained and defendants' answer, counterclaim and cross-complaint and each and every count contained therein be and the same are hereby dismissed with prejudice without the award of costs to any party, and without prejudice to the rights of plaintiffs, Walter W. Kershaw and Dorothy W. Kershaw, under and pursuant to the terms and conditions of said trust deed on real property situate in or about San Diego, California, and the promissory note secured thereby.'

Defendants brought this appeal from the order, contending that the trial court 'took into consideration matters outside the record and construed the stipulation of the parties contrary to its terms.' In their brief they assert that the court was limited to the entry of an order dismissing the complaint and cross-complaint with prejudice. In this they are in error. By the express terms of the stipulation and as a part of the consideration therefor, the defendants agreed to dismiss an action then pending in Los Angeles County, California, and to release all garnishments and attachments levied in that action. Thus, it became necesssary for the trial court to require that such dismissal and releases be executed and delivered as a condition precedent to the dismissal of this action.

Defendants' counsel also injected into the stipulation a provision for discharge, in favor of his clients, of all obligations or claims which plaintiffs might have against them. This broad, all-inclusive release thus sought by defendants, made it...