Mountain States Implement Co. v. Arave

• Decision Date: 22 September 1930
• Docket Number: 5595
• Citation: 291 P. 1074,49 Idaho 710
• Parties: MOUNTAIN STATES IMPLEMENT COMPANY, a Corporation, Appellant, v. N.E. ARAVE, WILLIAM ARAVE and LAWRENCE WADSWORTH, Respondents
• Court: Idaho Supreme Court

291 P. 1074

49 Idaho 710

MOUNTAIN STATES IMPLEMENT COMPANY, a Corporation, Appellant, v. N.E. ARAVE, WILLIAM ARAVE and LAWRENCE WADSWORTH, Respondents

No. 5595

Supreme Court of Idaho

September 22, 1930

NEW TRIAL-MOTION-TIME OF FILING-VACATION OF JUDGMENT ON COURT'S OWN MOTION - APPEAL AND ERROR - ASSIGNMENTS OF ERROR.

1. Court properly denied motions to vacate judgment, which were in effect motions for new trial and were not filed within ten days after verdict (C. S., secs. 6888, 6890).

2. Supreme court could consider assignment of error, intention of which was apparent from its statement read in connection with statements of question to be decided found in appellant's brief, notwithstanding indefiniteness.

3. Court could not on own motion vacate judgment eighty-three days after verdict was returned (C. S., sec. 6893).

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

Action on title-retaining notes. Judgment for plaintiff, who appeals from order on court's own motion vacating verdict and judgment and granting new trial. Reversed.

Order reversed, with costs to appellant.

Otto E McCutcheon, for Appellant.

The court, being without jurisdiction to grant defendants' motion to vacate the judgment, was equally without jurisdiction to vacate the judgment on its own motion. (C S., secs. 6887-6894; Brockman v. Hall, 37 Idaho 564 218 P. 188; Gould v. Duluth etc. Co., 2 N.D. 216, 50 N.W. 969; Delmont State Bank v. Ramsdell, 50 S.D 188, 208 N.W. 827; Parrott v. Hot Springs, 9 S.D. 202, 68 N.W. 329; Clement v. Barnes, 6 S.D. 483, 61 N.W. 1126.)

If the court did have jurisdiction to vacate the judgment on its own motion, the granting of such a motion was erroneous and an abuse of discretion affecting the substantial rights of this plaintiff. (Mizener v. Bradbury, 128 Cal. 340, 60 P. 928; Townley v. Adams, 118 Cal. 382, 50 P. 550; Eades v. Trowbridge, 143 Cal. 25, 76 P. 714; Watt v. Stanfield, 36 Idaho 366, 210 P. 998; Baille v. City of Wallace, 22 Idaho 706, 127 P. 908.)

Crowley & Crowley and George W. Edgington, for Respondents.

The specifications of error in appellant's brief must set forth clearly the error which appellant complains was made. This for the purpose of pointing out to the court and opposing counsel the position which the appellant will take on appeal, and in case such specifications are too general or do not clearly indicate the alleged error relied upon, this court will not review the same on appeal. Rule 40 of this court. (Hill v. Porter, 38 Idaho 574, 223 P. 528; McDonald v. North River Ins. Co., 36 Idaho 638, 213 P. 349; Pinal County v. Heiner, 24 Ariz. 346, 209 P. 714.)

District courts in Idaho have full power during the term to alter, revise, revoke, annul or amend their judgments. (Moore v. Taylor, 1 Idaho 630, Freeman on Judgments, 5th ed., pp. 375 and 403.)

VARIAN, J. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Appellant, as assignee of Iona Mercantile Company, brought this action on two title-retaining notes, given in payment of the purchase price of a certain International motor-truck. Respondents admit the execution of the notes, the delivery of the truck, and the repossession of the truck by appellant, but deny it was sold at private sale, as alleged in the complaint, or at all, and as a defense alleged that plaintiff refused and neglected to sell the truck at public or private sale, as specified in the notes sued on; that, instead, plaintiff caused the truck to be appraised without defendants' consent, and the amount so appraised credited on the notes. A counterclaim was also pleaded, but withdrawn by respondents before trial.

After appellant rested its case, respondents promptly rested and began to move for a judgment of nonsuit, whereupon appellant asked and obtained leave to reopen the case and amend its complaint to allege consent by respondents to the appraisal of the truck in lieu of sale, and the crediting of the appraised value on the notes. Further testimony in support of the amendment was introduced, also evidence on behalf of the respondents. On December 19, 1929, the jury brought in a verdict against respondents N.E. and William Arave for the balance claimed to be due on both notes, in favor of appellant, and exonerating respondent Wadsworth. On the following day, December 20, 1929, the clerk entered judgment on the verdict. January 31, 1930, forty-three days after rendition of the verdict, respondent William Arave filed what is designated as "motion to vacate and set aside verdict and judgment," with supporting affidavits, asking the court to reconsider its rulings in permitting plaintiff to amend its complaint and rulings on the admission of evidence, and to vacate the judgment and verdict, upon grounds that might be considered a motion for a new trial under the statute (C. S., sec. 6888). On February 6, 1930, forty-nine days after the verdict, respondent N.E. Arave filed a motion similarly designated and upon like grounds. After argument, the court denied both motions, rightly considering them as in effect motions for a new trial which were not filed within ten days after the verdict, as the statute directs. (C. S., sec. 6890; Boam v. Sewell, 40 Idaho 524 (528), 234 P. 153; Prairie Flour Mill Co. v. Farmers Elevator Co., 45 Idaho 229 (234), 261 P. 673; Eades v. Trowbridge, 143 Cal. 25, 76 P. 714.)

On the same day, March 12, 1930, eighty-three days after the verdict, the trial judge, of his own motion, entered an order vacating the judgment and setting aside the verdict as to all respondents, upon condition that in case the appellant, on or before 12 o'clock noon of March 15, 1930, file with the clerk a written stipulation to the effect that the judgment be vacated as to William Arave, the judgment and verdict should otherwise stand. Appellant declined so to stipulate, and prosecutes this appeal from the order so made. There is no appeal by any party from the judgment.

Three specifications of error are set forth in appellant's brief, but in view of the conclusions reached, we shall consider only the third, which is to the effect that the court erred in setting aside the judgment and verdict of its own motion. All the assignments are attacked for want of definiteness, but in view of the fact that the intention of the third assignment is made so apparent from its statement, read in connection with statements of the question to be decided found in appellant's brief, we are constrained to consider it. (See Thibadeau v. Clarinda Copper Min. Co., 47 Idaho 119, 272 P. 254; McClellan v. Davis, 45 Idaho 541, 263 P. 1002; McKinlay v. Javan Mines Co., 42 Idaho 770, 248 P. 473.)

It is contended that the court had no jurisdiction, after entry of judgment on the verdict (more than eighty days having elapsed), to vacate the judgment, set aside the verdict, and order a new trial, upon its own motion. On the other hand, respondents urge that the trial judge had jurisdiction to vacate the judgment at any time during the term in which it was entered, and that the statute hereinafter quoted gave him power to set aside the verdict at any time during said term. The court's order recites the grounds which authorize a judge to set aside a verdict, as set forth in C. S., sec. 6893, reading as follows:

"The verdict of a jury may also be vacated and a new trial granted by the court in which the action is pending, on its own motion, without the application of either of the parties when there has been such a plain disregard by the jury of the instructions of the court, or the evidence in the case, as to satisfy the court that the verdict was rendered under a misapprehension of such instructions or under the influence of passion or prejudice. The order of the court may be reviewed on appeal in the same manner as orders made on motions for a new trial, and a reporter's transcript to be used on such appeal may be prepared in the same manner as provided in section 6886."

The precise point here is: Did the court act in time in making its order? The authorities in states having the same or similar statutes are not uniform, and text-writers vary in their conclusions on this question. In the states of North Dakota, South Dakota and California prior to the repeal of Cal. Code Civ. Proc., sec. 662 (see Cal. Stats. 1915, p. 202), the statutes are substantially the same as our C. S., secs. 6888 and 6893.

North Dakota laid down the rule that such order should be "made promptly on coming in of the verdict. In no case should such an order be made after a delay of some months." (Gould v. Duluth & Dakota Elevator Co., 2 N.D. 219, 50 N.W. 969 (970).

South Dakota has adopted the rule that the court can only set aside a verdict and grant a new trial of his own motion at the time the jury returns the verdict. (Delmont State Bank v. Ramsdell, 50 S.D. 188, 208 N.W. 827 (828), and cases cited.)

In Michigan, at a time when there was no statute similar to the one under consideration, it was held that ...