Maloney v. Zipf

• Decision Date: 18 June 1925
• Citation: 237 P. 632,41 Idaho 30
• Parties: JAMES F. MALONEY, Appellant, v. GEORGIA ZIPF, Respondent
• Court: Idaho Supreme Court

237 P. 632

41 Idaho 30

JAMES F. MALONEY, Appellant, v. GEORGIA ZIPF, Respondent

Supreme Court of Idaho

June 18, 1925

JUDGMENTS-WHEN VOID-MAY BE VACATED ON MOTION-WHEN PROCEDURE IS NOT SPECIFIED SUITABLE MODE MAY BE ADOPTED.

1. It is necessary to the validity of a judgment that the court have jurisdiction of the question which it assumes to decide or the particular remedy or relief which it assumes to grant and when any portion of a judgment or decree is void on its face because of going beyond what the court was authorized to decide it may strike therefrom the void portion.

2. Where jurisdiction is conferred on a court or judicial officer all the means necessary to carry it into effect are also given, and if the procedure be not specifically pointed out any suitable mode may be adopted conformable to the spirit of the code.

APPEAL from an order of the District Court of the Third Judicial District for Ada County, recalling its remittitur and correcting its judgment. Hon. Raymond L. Givens, Judge. Judgment affirmed.

Judgment affirmed, with costs to respondent.

Karl Paine, for Appellant.

C. S sec. 7175, has no application to the question before the court.

The respondent has mistaken his remedy, which was an appeal from the judgment, or a motion for a new trial, and not a motion to strike. (Wyllie v. Kent, 28 Idaho 16, 152 P 194.)

Charles F. Koelsch and Johnson & Nixon, for Respondent.

It is within the jurisdiction and the duty of the district court, when it is brought to its attention that a portion of one of its decrees is void on its face, to amend it by striking out the void portion. (C. S., sec. 6726; Dellwo v. Peterson, 34 Idaho 697, 203 P. 472; Miller v. Prout, 33 Idaho 709, 197 P. 1023; Gile v. Wood, 32 Idaho 752, 188 P. 36.)

Where the order admitting the will to probate and appointing an executrix is reversed on appeal by the district court for error and not for want of jurisdiction, the district court should not remit its judgment to the probate court to be carried into effect by said court before the statutory time for appeal therefrom to the supreme court has expired; and if the district court has so remitted its judgment, it has the power to recall such judgment, where the executrix has duly perfected her appeal to the supreme court from said judgment. (C. S., sec. 6511; C. S., tit. 55, art. 3, chap. 261; McDougall v. Sheridan, 23 Idaho 191, 128 P. 954; Fox v. Flynn, 27 Idaho 580, 150 P. 44; Smith v. Clyne, 15 Idaho 254, 97 P. 40; In re Skelly's Estate, 21 S.D. 424, 113 N.W. 91; Morgrage v. National Bank, etc., 25 Cal.App. 133, 142 P. 1124; In re Prager's Estate, 167 Cal. 737, 141 P. 369.)

WILLIAM A. LEE, C. J. Budge and Taylor, JJ., concur. WM. E. LEE, Dissenting.

OPINION

WILLIAM A. LEE, C. J.

What purported to be the last will and testament of John F. Maloney, deceased, was admitted to probate and respondent was granted letters testamentary. An appeal from this order of the probate court was taken to the district court and after trial the district court made and entered a judgment which, among other things, recited that:

"It is further ordered, adjudged and decreed, that probate of said will be and the same is hereby rejected, and that the said order admitting said will to probate and granting letters testamentary to the defendant, Georgia Zipf, is null and void, and that the letters testamentary issued to defendant thereon be, and the same are hereby revoked and set aside, and that all acts and proceedings of defendant as executrix of said will be, and the same are hereby annulled and set aside, and that plaintiff have and recover his costs and disbursements herein amounting to the sum of $ 402.50.

"It is further ordered that a copy of this judgment, duly certified by the Clerk of this Court, be forthwith remitted to said Probate Court."

Respondent moved to strike from the judgment entered in the district court the italicized words, which motion was granted, and the words above italicized were stricken. From this order of the district court, striking these words from the judgment, this appeal is taken upon the following assignments of error: (1) the court erred in sustaining a motion to strike from the judgment the part above referred to, and in declaring that the certified copy of the judgment entered October 25, 1923, and remitted to the probate court of Ada county be and the same is hereby recalled; (2) in holding that its judgment should not have been remitted to the probate court until after the time for an appeal had expired; (3) in making the order sustaining the motion to strike and in entertaining said motion for any purpose or at all; (4) respondent's remedy was an appeal from the judgment or a motion for a new trial and not a motion to strike.

The words stricken from the judgment "and that all acts and proceedings of defendant as executrix of said will be, and the same are hereby annulled and set aside" was the entry of an order beyond what the court was authorized to make in that proceeding. It is necessary to the validity of a judgment that the court have jurisdiction of the question which it assumes to decide, or the particular remedy or relief which it assumes to grant, and when any portion of a judgment or decree is void on its face, because of going beyond what the court was authorized to decide, it may strike therefrom the void portion. (Gile v. Wood, 32 Idaho 752, 188 P. 36; Miller v. Prout, 33 Idaho 709, 197 P. 1023; Wright v. Atwood, 33 Idaho 455, 195 P. 625.)

The question presented to the district court on the appeal from the order of the probate court was limited to a determination of the question as to the validity of the instrument purporting to be the last will and testament of John F Maloney, deceased. It was, therefore, not within the jurisdiction of the district court, upon such hearing, to adjudge all the acts and proceedings of defendant, as executrix, void or to annul...