Lawrence v. Corbeille

• Citation: 28 Idaho 329,154 P. 495
• Parties: J. G. LAWRENCE, Appellant, v. MOISE CORBEILLE, and H. GILLIS, Guardian of the Person and Property of MOISE CORBEILLE, Respondents
• Decision Date: 08 January 1916
• Court: United States State Supreme Court of Idaho

154 P. 495

28 Idaho 329

J. G. LAWRENCE, Appellant, v. MOISE CORBEILLE, and H. GILLIS, Guardian of the Person and Property of MOISE CORBEILLE, Respondents

Supreme Court of Idaho

January 8, 1916

FINDINGS OF FACT, CONCLUSIONS OF LAW, DECREE FILED-CHANGE-MODIFICATION-TRIAL COURT-NEW TRIAL.

1. After findings of fact, conclusions of law and decree have been made and filed and judgment thereon entered, they can be changed or modified by the trial court, except in respect of mere clerical errors, only by the granting of a new trial.

2. Where findings of fact, conclusions of law and decree have been made and entered by the trial court, and recorded, in favor of one of the parties to the action, it is reversible error for the court, upon motion for a new trial, and of its own motion, to set aside the previous judgment entered and substitute new findings of fact, conclusions of law and a decree in favor of the other party, without granting a new trial.

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. John M. Flynn, Judge.

Action to quiet title. Judgment for defendants. Reversed.

Judgment of the trial court in favor of respondents reversed and cause remanded, with directions. Costs awarded to appellant.

G. H Martin and Chas. L. Heitman, for Appellant.

The district court did not have the right to vacate and set aside the findings of fact, conclusions of law and decree made and filed April 10, 1915, and immediately make new findings of fact, conclusions of law and decree without granting or having a new trial of the issues in the case. (Mitchell v. Hackett, 14 Cal. 661; Wunderlin v. Cadogan, 75 Cal. 617, 17 P. 713; Hawxhurst v. Rathgeb, 119 Cal. 531 63 Am. St. 142, 51 P. 846.)

E. W Wheelan, for Respondents, cites no authorities on points decided.

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

This action was brought to quiet title to the southeast quarter of the northwest quarter and the east half of the southwest quarter and the southwest quarter of the southeast quarter of sec. 18, twp. 56 N., range 2 E., Boise Meridian, and to recover possession of said land.

Defendants answered the complaint denying all the material allegations therein, and filed a cross-complaint alleging title in the defendant Corbeille. Thereafter plaintiff filed an answer to defendants' cross-complaint denying the ownership of the defendant, but admitting that the land was owned by defendant at all times prior to January, 1907, at which time plaintiff alleged said land was assessed for taxes for the year 1907, which taxes for said year were unpaid and became delinquent in January, 1908; that said land was sold on July 10, 1908, to Bonner County; that on December 8, 1908, Bonner county sold and assigned the tax sale certificate to plaintiff; that no redemption was made from said tax sale, and that on November 8, 1912, Defenbach, the then duly elected, qualified and acting assessor and ex-officio tax collector of Bonner county, executed and delivered to plaintiff a tax deed for said premises which was recorded in Bonner county.

Defendants filed a demurrer to the answer to the cross-complaint which was overruled. Thereafter defendants amended their answer by setting up the failure of the taxing officer of Bonner county to enter the extension of taxes on said land for 1908, in red ink, and the failure of the plaintiff to give notice of application for tax deed as required by sec. 27, chapter 8, Sess. Laws 1912; and further alleged redemption of said land from the tax sale of 1908, by payment to the treasurer of Bonner county, and an offer to repay the sums of money expended by plaintiff together with the statutory interest; and that the defendant Corbeille was at all times mentally incompetent to transact business.

Plaintiff thereupon filed an amendment to his answer to the cross-complaint, and pleaded the decision of this court in the case of Lawrence v. Defenbach (23 Idaho 78, 128 P. 81), which was an action brought by plaintiff against Defenbach as ex-officio tax collector, requiring him to execute a tax deed as such officer to the plaintiff. To this amendment to the answer to the cross-complaint, the defendants demurred and their demurrer was overruled.

Trial was then had and in support of his case plaintiff offered in evidence the tax deed to which reference has heretofore been made. Defendants objected to the admission of this deed in evidence upon the ground that the proof failed to show a compliance with the provisions of sec. 27, chapter 8, Sess. Laws 1912, requiring service of notice upon the occupant of the land at the time the application is made for the deed. This objection was overruled and the deed admitted in evidence, whereupon plaintiff rested his case.

Defendants then offered oral and documentary evidence, and plaintiff offered testimony in rebuttal, and the cause was taken under advisement by the court.

On April 10, 1915, the court made its findings of fact and conclusions of law and entered a decree in favor of plaintiff, which was duly recorded. On April 19, 1915, defendants filed and served motion for new trial specifying several grounds in support of the motion. On May 29, 1915, the court entered an order setting aside the findings of fact, conclusions of law and the decree theretofore made and entered in favor of plaintiff and, of its own motion and without granting a new trial, made and filed findings of fact, conclusions of law and a decree in favor of defendants, quieting title in defendant Corbeille to the land in controversy. This is an appeal from the latter judgment.

Appellant presents five assignments of error. We think, however, it will only be necessary for us to consider the first, viz., the action of the court in vacating and setting aside the findings of fact, the conclusions of law and decree in favor of plaintiff first filed and recorded on April 10, 1915, and making and filing new findings of fact, conclusions of law and decree in favor of defendants on May 29, 1915, without granting a new trial.

The former judgment quieted title to the land in controversy in plaintiff; the latter judgment quieted title to the same land in defendant. The court did not pass upon the motion for a new trial, and for aught we know the same is still pending.

From the record we might be justified in reaching the conclusion that the court set aside the findings of fact, conclusions of law and decree rendered and entered in the first instance when its attention was called, upon the motion for a new trial, to what it considered was a fatal defect in the execution of the deed by Defenbach on November 8, 1912, who at that time, was not ex...