Mountain States Implement Co. v. Arave

• Decision Date: 04 May 1931
• Docket Number: 5682
• Parties: MOUNTAIN STATES IMPLEMENT COMPANY, a Corporation, Respondent, v. N.E. ARAVE et al., Defendants, and WILLIAM ARAVE, Appellant
• Court: Idaho Supreme Court

2 P.2d 314

50 Idaho 624

MOUNTAIN STATES IMPLEMENT COMPANY, a Corporation, Respondent, v. N.E. ARAVE et al., Defendants, and WILLIAM ARAVE, Appellant

No. 5682

Supreme Court of Idaho

May 4, 1931

APPEAL AND ERROR-STATUTORY TIME FOR APPEAL, TOLLING OF.

1. Void order, as order vacating judgment, is wholly ineffective.

2. Trial court's void order vacating judgment, even though made on court's own motion, does not toll statutory time for appeal.

3. Where trial court's order vacating judgment is void statutory time for appeal begins to run from rendition or entry of judgment vacated.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Motion to dismiss appeal. Appeal dismissed.

Appeal dismissed; costs to respondent. Petition for rehearing denied.

Crowley & Crowley, for Appellant.

All the earlier California cases hold that an order granting a new trial vacates the judgment, and an appeal cannot thereafter be taken or prosecuted therefrom. (Knowles v Thompson, 133 Cal. 64, 65 P. 468; Kower v Gluck, 33 Cal. 401; Bronner v. Wetzlar, 55 Cal. 420.)

NOTE.--At the time these cases were decided, the California statute Code Civ. Proc., sec. 939, was practically the same as our statute, sec. 7152, C. S., but these California statutes have since been amended and the later California decisions are therefore not in point or applicable.

In the state of Washington, section 1718, Rem. Code 1915, is identical with our C. S., sec. 7152, and in applying and construing this ninety-day term within which an appeal must be taken, and under a state of facts almost identical with the facts in the case at bar, the supreme court of Washington say, in the first syllabus of their decision.

"An order setting aside a judgment and granting a new trial, which was void because beyond the power of the Court, suspended the right of or reason for an appeal from the judgment, and therefore suspended the time within which the appeal must be taken under Rem. Code 1915, sec. 1718, so that the party against whom the judgment was rendered could appeal therefrom within the statutory time after reversal of the void order." (Rogers v. Savage, 117 Wash. 521, 201 P. 768.)

Otto E. McCutcheon, for Respondent.

The filing of the notice of appeal within the statutory time is jurisdictional. (Kimzey v. Highland Livestock & Land Co., 37 Idaho 9, 214 P. 750; Chapman v. Boehm, 27 Idaho 150, 147 P. 289; Continental & Commercial Trust & Sav. Bank v. Werner, 36 Idaho 601, 215 P. 458.)

When the notice of appeal is not filed within the statutory time, the supreme court loses jurisdiction, and the appeal will be dismissed; the court has no power to extend the time or cure the defect. On this question there is a unanimity of opinion among the courts. (Moe v. Harger, 10 Idaho 194, 77 P. 645; Wallace v. McKenna, 37 Idaho 579, 217 P. 982; Continental & Commercial Trust & Sav. Bank v. Werner, supra; Robinson v. School District, etc., 36 Idaho 133, 209 P. 726.)

C. S., sec. 7152, is a statute of limitation, and there is no provision of law which suspends the running of the statute.

Where the lower court had no jurisdiction to vacate the judgment and acted without right or authority of law, the judgment stood as if it had never been disturbed. (Boam v. Sewell, 41 Idaho 718, 241 P. 1020.)

GIVENS, J. Lee, C. J., and Varian, J., concur. MCNAUGHTON, J., BUDGE, J., Dissenting.

OPINION

GIVENS, J.

December 20, 1929, the clerk of the trial court entered on a jury's verdict a judgment in favor of respondent. March 12, 1930, the court denied motions filed by defendants Arave to vacate and set aside the verdict and judgment, but on his own motion, March 12, 1930, the same day, entered an order vacating the judgment, which order on appeal (Mountain States Implement Co. v. Arave, 49 Idaho 710, 291 P. 1074), was held unauthorized. There was heretofore no appeal from the original judgment, October 21, 1930, the trial court, remittitur in the above appeal having been filed October 16, 1930, vacated its former order and ordered the judgment of December 20, 1929, reinstated; an unnecessary and ineffective provision, since the judgment had never been dethroned. October 21, 1930, the appeal herein was taken from the judgment, which appeal respondent moves to dismiss as filed too late.

We have carefully examined the more recent authorities passing upon this point, and the following cases held that proceedings, ineffective as to the previous judgment, toll the statute during the time they are in operation, or being considered by the trial court: Rogers v. Savage, 117 Wash. 521, 201 P. 768; In re German Ditch Co., 56 Colo. 252, 139 P. 2; Kamoss v. Kansas City R. Co., (Mo. App.) 202 S.W. 434; Scott v. Rees, 300 Mo. 123, 253 S.W. 998; St. Clair v. Conlon, 12 App. D.C. 161; Southern P. Co. v. Sartoris, 27 F.2d 852.

The following authorities hold that such proceedings do not toll the statute: Miller v. Prout, 32 Idaho 728, 187 P. 948; Walton v. Clark, 40 Idaho 86, 231 P. 713; Boam v. Sewell, 41 Idaho 718, 241 P. 1020; Pedigo v. Fuller, 37 Wash. 529, 79 P. 1129; Hahn v. Astoria Nat. Bank, 63 Ore. 1, 114 P. 1134, 125 P. 284; Spotton v. Superior Court, 177 Cal. 719, 171 P. 801; In re Big Bend Drainage Irr. Dist., 29 Wyo. 50, 208 P. 872; First Nat. Bank v. Chowning, 95 Okla. 137, 218 P. 676; Burch v. Smith, 30 Wyo. 237, 218 P. 791; Scott v. Woodhams, 79 Colo. 528, 246 P. 1027; Western Land & Irr. Co. v. Humfeld, 118 Ore. 416, 247 P. 143; Kline v. Murray, 79 Mont. 530, 257 P. 465; Alvarado v. Stanton, 204 Cal. 172, 267 P. 313; Oxford Tel. Co. v. Arkansas Nat. Bank, 134 Ark. 386, 204 S.W. 1140; Jowell v. Lamb, (Tex. Civ. App.) 207 S.W. 987; Pearce v. People's Sav. Bank, 152 Ark. 581, 238 S.W. 1063; Central Liberty Trust Co. v. Roy, 212 Mo.App. 680, 245 S.W. 1085; Dent v. Farmers' & Merchants' Bank, 162 Ark. 325, 258 S.W. 322; Beach v. Beach, 160 A.D. 229, 145 N.Y.S. 409; Hild v. McClintic-Marshall Co., 216 A.D. 770, 215 N.Y.S. 88; Stampfer v. Peter Hand Brewing Co., 67 Ind.App. 485, 118 N.E. 138; Wyant v. Russell, 109 Ohio St. 167, 142 N.E. 144; Neighbors v. Thistle Down Co., 26 Ohio App. 324, 159 N.E. 111; In re Slimmer's Estate, 146 Minn. 429, 178 N.W. 954; In re Rocky Run Drainage Dist., 184 Wis. 557, 200 N.W. 384; Levine v. Roth, 276 Pa. 244, 120 A. 115; United States v. Fidelity & Dep. Co., 155 F. 117; Collins Pav. Co. v. Holseapple, 221 Ala. 308, 128 So. 599; J. S. Bache & Co. v. Locke, 86 Pa. Super. 501; Meadville Tel. Co. v. Shafer, 94 Pa. Super. 246; Buckley v. Sutton, 38 Mich. 1; Quinn Chapel A. M. E. Church v. Pease, 66 Ill.App. 552; Marder, Luse & Co. v. Campbell Printing Co., 76 Ill.App. 431.

It must be kept in mind that the order vacating the judgment was void. In the case at bar, the court had no jurisdiction to issue the order setting aside the previous judgment. A void order is of no effect whatever. (Williams v. Sherman, 36 Idaho 494, at 503, 212 P. 971; Johnson v. Carroll, 190 Ky. 689, 228 S.W. 412; White v. Hidalgo County Water Imp. Dist., (Tex. Civ. App.) 6 S.W.2d 790; Simmons v. Hefter, 308 Ill. 292, 139

N.E. 404; People v. Miller, 339 Ill. 573, 171 N.E. 672; In re Woolley's Estate, 96 Vt. 60, 117 A. 370; Hunt v. Kennedy Coal Corp., 140 Va. 17, 124 S.E. 189; United States ex rel. Rauch v. Davis, 56 App. D.C. 46, 8 F.2d 907.)

It is urged that a distinction is to be made in favor of appellant herein, by reason of the fact that the court entered the order of its own motion, not on appellant's motion. It is doubtful if much effect may be given such contention in the action herein, in view of the record, which shows that while the court entered this order on his own motion, it was on the very day he denied appellant's motion seeking the same thing. The authorities above cited, pro and con, do not appear, however, to take as the foundation for their ruling, action based on appellant's motion, rather than on the court's own initiative, reasoning that because the order, however prompted, is void, stands undisturbed, and the appeal therefrom, not in time, confers no jurisdiction on the appellate court, which, as to the last, was the express pronouncement in Miller v. Prout, supra, at page 731: "This appeal not having been perfected within ninety days from the entry of the original judgment, conferred no jurisdiction upon this court,"--and in the same opinion, the court held that an appeal would lie from the judgment which it was sought to vacate, while an appeal was pending from an order vacating such judgment, the court saying:

"The proceeding under this statute is an independent proceeding and exists concurrently with the right of appeal from the judgment. Any order made pursuant to such a proceeding does not operate to extend the time for appeal from the judgment. The proper course is to appeal from the judgment if it is desired to have the judgment reviewed and to apply to the trial court for relief under this section, notwithstanding such appeal."

The order in the instant case was none the less void because made on the court's own motion.

It appears, therefore, by numerical weight and better reasoning, the authorities hold that a void order does not operate as a stay, or toll the statutory time for appeal.

"The code provisions limiting the time in which to appeal are mandatory, and the time limited cannot be extended by the court, or by any circumstances, except by the pendency of proceedings on motion for a new trial." (2 Cal. Jur., sec. 171, p. 404.)

The exception is provided for by special statute passed in 1915, and the doctrine is laid down in Leake v. City of Venice, 43 Cal.App. 568, 185 P. 424. We do not have such a statute.

Where the order vacating the judgment is a nullity, the statute...