Nielson v. Garrett

• Decision Date: 19 January 1935
• Docket Number: 6125
• Citation: 55 Idaho 240,43 P.2d 380
• Parties: JAMES NIELSON, Respondent, v. FRANK D. GARRETT et al., as Trustees of OLD CHARLES DICKENS MINING COMPANY (Formerly IDAHO KNICKERBOCKER MINES COMPANY), a Defunct Corporation, et al., Defendants; DICKENS CONSOLIDATED MINES COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

43 P.2d 380

55 Idaho 240

JAMES NIELSON, Respondent, v. FRANK D. GARRETT et al., as Trustees of OLD CHARLES DICKENS MINING COMPANY (Formerly IDAHO KNICKERBOCKER MINES COMPANY), a Defunct Corporation, et al., Defendants;

DICKENS CONSOLIDATED MINES COMPANY, a Corporation, Appellant

No. 6125

Supreme Court of Idaho

January 19, 1935

APPEAL AND ERROR-MOTION TO DISMISS APPEAL - NOTICE - MATTERS CONSIDERED BY REVIEWING COURT-JUDGMENT-EXTENT OF RELIEF-ACTION TO FORECLOSE TRUST DEED-DEFAULT JUDGMENT-MOTION TO VACATE-NOTICE-ADVERSE PARTY-JUDGES - DISQUALIFICATION.

1. On motion to dismiss appeal, Supreme Court will consider judgment-roll and, upon proper showing, all pertinent facts and circumstances outside of that record.

2. In suit by bondholders' trustee to foreclose trust deed on patented mining claims which were transferred by mortgagor wherein default judgment was rendered against transferee mortgagor corporation and its statutory trustees held not "adverse parties" within statute requiring notice to adverse party on motion to vacate judgment, or within statute requiring notice of appeal to adverse party, and hence appeal would not be dismissed, notwithstanding corporation and statutory trustees were not given notice (I C. A., secs. 5-905, 11-202).

3. Motion to vacate default judgment is addressed to sound judicial and reviewable discretion of trial court (I. C. A sec. 5-905).

4. Order refusing to vacate default judgment will not be reversed unless trial court has abused its discretion (I. C. A., sec. 5-905).

5. Refusal to vacate default judgment held not abuse of discretion, where before entry of judgment appellant had two years within which to have answered, and for three and a half months after notice of application for default appellant failed to move to set it aside (I. C. A., sec. 5-905).

6. Trial judge held not disqualified from rendering foreclosure decree because of affidavit alleging disqualification where, before decree was rendered, trial judge dismissed suit as to defendant, who filed affidavit which alleged disqualification only as to such defendant (I. C. A., sec. 1-1801, as amended by Laws 1933, chap. 218).

7. Judgment must be responsive not only to prayer, but to issues tendered by pleadings; and, where no answer is filed, court is limited to relief demanded in complaint, and judgment, particularly, in default cases, must be supported by allegations which fairly tend to apprise defendant of claims made against him and relief sought by plaintiff (I. C. A., sec. 7-704).

8. In suit to foreclose trust deed, trial court held without jurisdiction to render deficiency on personal judgment against defendant where plaintiff did not allege that defendant, as transferee of mortgaged premises, agreed to pay principal on outstanding bonds or interest thereon, evidencing unpaid portion of mortgage debt (I. C. A., sec. 7-704).

9. In suit by bondholders' trustee to foreclose trust deed against transferee of mortgaged property, transferee, as bondholder, held entitled to share pro rata with all bondholders in mortgaged property, or proceeds of sale of property.

10. In suit to foreclose trust deed, sale of personalty not described in trust deed and complaint held void because in excess of relief demanded by complaint (I. C. A., sec. 7-704).

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Everett E. Hunt, Presiding Judge.

Suit to foreclose trust deed. Appeal from order denying motion to set aside default judgment. Motion to dismiss appeal denied. Reversed in part, affirmed in part, and modified, with directions.

Decree reversed in part and affirmed in part. No costs allowed to either appellant or respondent. Petition for rehearing denied.

Walter H. Hanson and Whitla & Knudson, for Appellant.

Only party in whose favor judgment runs entitled to notice to set it aside. (Consolidated W. & M. Co. v. Housman, 38 Idaho 343, 221 P. 143; Schart v. Schart, 116 Cal. 91, 47 P. 927; Durre v. Brown, 7 Ind.App. 127, 34 N.E. 577.)

Where judgment is by default, relief is limited to allegations of complaint and prayer. (Section 7-704, I. C. A.; Washington Consol. Land & Dev. Co. v. Weiser Nat. Bank, 26 Idaho 717, 146 P. 116; Angel v. Mellen, 48 Idaho 750, 285 P. 461.)

Affidavit disqualifying judge having been filed he was without jurisdiction to proceed. (1933 Sess. Laws, p. 463; Gordon v. Conor, 5 Idaho 673, 51 P. 747; Callahan v. Callahan, 30 Idaho 431, 165 P. 1122.)

All doubt resolved in favor of setting default judgment aside. (Humphreys v. Idaho Gold Mines Dev. Co., 21 Idaho 126, 120 P. 823; Citizens' Nat. Bank v. Branden, 19 N.D. 489, 126 N.W. 102, 27 L. R. A., N. S., 858.)

James F. Ailshie, Tannahill & Durham and Elmer E. Johnston, for Respondent.

In the recent case of Sonleitner v. McLaren, 52 Idaho 791, 20 P.2d 1014. Justice Morgan collated all the Idaho cases on this subject and emphasized the previous holding of the court in defining "adverse party" by saying:

"An adverse party, within the meaning of this action, is any party to the action or proceedings whose interest might be prejudicially affected by reversal or modification of the judgment or order appealed from. Service of the notice of appeal on all such adverse parties, or their attorneys, is necessary to give this court jurisdiction of the case."

It was necessary for appellant to serve notice of motion to vacate and set aside the default and judgment on defendants Garrett, Miller, Nestos, Sargent and Roeder.

The court may, after notice to the adverse party, grant relief. (Section 5-905, I. C. A.)

An adverse party is every party whose interest in the subject matter may be affected by a modification, or reversal, regardless of whether he is plaintiff, defendant or intervenor. (Nelson Bennett Co. v. Twin Falls etc. Co., 13 Idaho 767, 92 P. 980, 13 Ann. Cas. 172; Sonleitner v. McLaren, supra; Titiman v. Alamance Min. Co., 9 Idaho 240, 74 P. 529; Bannock Nat. Bank v. Automobile Accessories Co., 36 Idaho 527, 212 P. 864.)

A joint and several judgment defendant is an adverse party. (Diamond Bank v. Van Meter, 18 Idaho 243, 108 P. 1042; Walker v. Shell, 48 Idaho 481, 282 P. 947.)

Service in the manner prescribed by statute is jurisdictional. (Patrick v. Finch et al., 51 Idaho 538, 8 P.2d 776.)

The motion for disqualification of Judge Hunt was properly denied.

A second or subsequent affidavit of disqualification must be filed within three days after the party or his attorney of record have received notice of new judge assuming jurisdiction. (Sess. Laws of 1933, chap. 218, p. 465.)

An affidavit of prejudice is ineffectual if not filed within the time required by statute. (State v. Irish, 183 Minn. 49, 235 N.W. 625; 33 Corpus Juris, sec. 180, p. 1013, col. 2; State ex rel. Jacobs v. District Court, 48 Mont. 410, 138 P. 1091; Taylor v. Nelson, 139 Ore. 155, 5 P.2d 707, 8 P.2d 1089.)

HOLDEN, J. Givens, C. J., and Morgan and Wernette, JJ., concur. Budge, J., dissents.

OPINION

HOLDEN, J.

This is a suit to foreclose a trust deed on patented mining claims, located in Shoshone county. It was commenced March 17, 1924 (at which time Old Charles Dickens Mining Company had forfeited its charter), by James Nielson, as trustee of the bondholders, against said Old Charles Dickens Mining Company, a corporation, and others. After the filing of the original complaint in foreclosure, but prior to the filing of the third amended and supplemental complaint, Old Charles Dickens Mining Company transferred and conveyed its interest in the property, covered by the trust deed, to one Kratzer, and then Kratzer conveyed and transferred the property to appellant Dickens Consolidated Mines Company.

This case was before the court on a former appeal (Nielson v. Old Charles Dickens Min. Co. et al., 51 Idaho 40, 1 P.2d 193), where a chronological history of the case up to the date of the appeal may be found. Upon that appeal, an order dismissing the suit in the trial court for want of prosecution was reversed July 3, 1931. Thereafter, to wit, July 5, 1933, an order was apparently made, but not filed until July 11, 1933, under and by which the last board of directors, and, therefore, the statutory trustees of Old Charles Dickens Mining Company, as such trustees, were permitted to adopt the answer of that company, the said answer being ordered filed nunc pro tune, that is to say, as of July 18, 1924, and on the day of the adoption of that answer, to wit, July 5, 1933, the suit was dismissed as to defendant A. W. Davis, and the default of appellant Dickens Consolidated Mines Company (made a party defendant after the commencement of the suit because it was the successor in interest and title of said Old Charles Dickens Mining Company), and all other defendants, excepting said Old Charles Dickens Mining Company, and the said statutory trustees, was entered. Whereupon, proof was submitted, findings of fact and conclusions of law made, dated July 5, 1933, and thereafter, July 11, 1933, filed, and on that day decree of foreclosure was entered, the trial court reserving and retaining jurisdiction "for the purpose of hearing and adjudging the claims of and amounts due bondholders and the method and manner of holding, preserving, apportioning or disposing of said property in the event of its purchase by plaintiff, as trustee, and also for the purpose of hearing and determining the claims of all bondholders as to the amount due each and the matter of payment or prorating in the event the sale does not realize to plaintiff enough to pay said indebtedness, costs and expenses in full."

November 21, 1933, appellant Dickens Consolidated Mines Company filed notice of motion and motion to vacate the decree of foreclosure. The motion was made...