Price v. Case

• Decision Date: 02 January 1925
• Parties: JOHN M. PRICE, JOHN M. PRICE, Jr., and W. H. HARBERT, Copartners Doing Business as NAMPA ELECTRIC SUPPLY COMPANY, Appellants, v. PAUL L. CASE, Doing Business as CASE FURNITURE COMPANY, and H. W. KINNEY, Sheriff, Respondents
• Court: Idaho Supreme Court

232 P. 576

40 Idaho 197

JOHN M. PRICE, JOHN M. PRICE, Jr., and W. H. HARBERT, Copartners Doing Business as NAMPA ELECTRIC SUPPLY COMPANY, Appellants, v. PAUL L. CASE, Doing Business as CASE FURNITURE COMPANY, and H. W. KINNEY, Sheriff, Respondents

Supreme Court of Idaho

January 2, 1925

INJUNCTION - APPEAL AND ERROR - DISMISSAL OF APPEAL - JURISDICTION OF JUSTICE COURT-RESIDENCE OF DEFENDANTS.

1. Appeal from order dissolving injunction must be taken within sixty days after the order is made and entered on the minutes of the court or filed with the clerk, as provided by C. S., sec. 7152, or the appeal will be dismissed.

2. A demurrer to a complaint seeking to set aside the judgment of a justice court upon the ground of lack of jurisdiction is properly sustained where the complaint fails to allege the residence of the defendants, and this court will not infer in the absence of such showing that the residence of the defendants was without the jurisdiction of the justice court.

3. A guarantor or general indorser of a negotiable promissory note renders himself jointly liable thereon with the makers thereof so that an action upon such note may, under the provisions of C. S., sec. 7053, subd. 2, be maintained in the justice court of the precinct or city in which any of the defendants reside.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to set aside judgment and for injunction. From order dissolving injunction and from judgment dismissing action plaintiffs appeal. Appeal from order dismissed. Judgment affirmed.

Judgment affirmed. Costs awarded to respondents.

G. W Lamson, for Appellants.

The judgment rendered in the justice court is in direct violation of C. S., sec. 7053, and is void upon the face of the record. The justice court never acquired jurisdiction. It was error of the district court in dissolving the injunction and in rendering a judgment of dismissal. (Gregory v Howell, 118 Iowa 76, 91 N.W. 778; Cooley v Barker, 122 Iowa 440, 101 Am. St. 276, 98 N.W. 289; Lowe v. Alexander, 15 Cal. 296, 301; Abrams v. White, 11 Idaho 497, 83 P. 602; Wilkerson v. Walters, 1 Idaho 564; Kirk v. United States, 124 F. 324; Hosford v. Hotchkiss, 27 F. 285, 23 Blatchf. 479; Missouri P. Ry. Co. v. Reid, 34 Kan. 410, 8 P. 846; Dial v. Olsen, 4 Ariz. 293, 36 P. 175.)

The original payee (Marsh) by his indorsement cannot make himself a joint maker of the notes. (8 C. J. 69.)

M. H. Eustace, for Respondents.

The justice's court had jurisdiction. (C. S., sec. 7053.)

Where the jurisdiction of a court is questioned it must affirmatively appear in the objections and the showing made by the movant that such jurisdiction is lacking. ( Perkins v. Smith, 4 Blackf. (Ind.) 299; State v. Durand, 36 Utah 93, 104 P. 760; Silver City Mercantile Co. v. District Court, 57 Utah 365, 195 P. 194.)

BUDGE, J. McCarthy, C. J., and William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, J.

This action was brought for the purpose of obtaining an injunction restraining the enforcement of a judgment and seeking to set aside the judgment upon the ground that the court lacked jurisdiction to enter it and the same was therefore null and void.

The complaint alleges substantially as follows: That respondent Case commenced an action against appellants in the justice court of Caldwell Precinct, Canyon county, and that summons was duly served upon appellants; that thereafter appellants entered a special appearance for the purpose of objecting to the jurisdiction of the court; that they made no further appearance and judgment was thereafter awarded in favor of respondent Case; that subsequently respondent Case caused execution to be issued and delivered the same to respondent Kinney, as sheriff of Canyon county, for the purpose of satisfying the judgment, and will proceed to satisfy such judgment out of the property of appellants unless restrained; and that the judgment is void for the reason that the court was without jurisdiction to enter the same. Appellants prayed that a temporary injunction be granted restraining further proceedings on the part of the sheriff in the matter of levying execution and satisfying the judgment; that the judgment be declared void and that the injunction, upon final hearing, be made permanent. A temporary injunction as prayed for was thereafter issued. Respondents filed a demurrer to the complaint, which was sustained by the court. Whereupon the court made and entered its order dissolving and vacating the temporary injunction and also made and entered judgment dismissing the action and awarding costs in favor of respondents. From the order dissolving the injunction and from the judgment this appeal is taken.

Considering first the appeal from the order dissolving the injunction, it is apparent that this appeal must be dismissed for the reason that the same was not perfected within the time provided by C. S., sec. 7152, subd. 2. The order dissolving the injunction was filed on January 11, 1923. The appeal was perfected on March 29, 1923, seventy-seven days after the filing of the order. C. S., sec. 7152, provides, inter alia, that:

"An appeal may be taken to the supreme court from a district court . . . . from an order granting or dissolving an injunction . . . . within 60 days after the order or interlocutory judgment is made and entered on the minutes of the court, or filed with the clerk."

The appeal from the order was therefore not taken within the statutory time, and this being an element upon which the jurisdiction of this court depends, the appeal from the order must be dismissed. (Kimzey v. Highland Livestock & Land Co., 37 Idaho 9, 214 P. 750, and cases therein cited.)

Coming now to the appeal from the judgment, it is first to be noted that the brief fails to contain "a distinct enumeration of the several errors relied on" as provided by Rule 42 of this court. No assignments of error appear in the brief. This court has called attention to other briefs in which similar omissions have occurred and has held that such practice is loose and not to be commended. (Noble v. Harris, 33 Idaho 188, 190 P. 922; Whitney v. Dewey, 10 Idaho 633, 80 P. 1117; Standley v. Flint, 10 Idaho 629, 79 P. 815; Spencer v. John, 33 Idaho 717, 197 P. 827.) However, inasmuch as it is apparent from that part of the brief denominated "Argument" that the sufficiency of the complaint is the only question involved, and under the practice followed in the above cited cases, we will consider that question.

It is contended by appellants that the judgment of the justice court was void for the reason that the court was without jurisdiction and that under the provisions of C. S sec. 7053, subds. 7 and 9, the action should have been commenced in the justice court of Nampa Precinct. Respondents assert that the...