Radermacher v. Eckert

• Decision Date: 10 March 1942
• Docket Number: 6966
• Citation: 123 P.2d 426,63 Idaho 531
• Parties: HENRY J. RADERMACHER, Respondent, v. AMOS ECKERT, Appellant
• Court: Idaho Supreme Court

123 P.2d 426

63 Idaho 531

HENRY J. RADERMACHER, Respondent, v. AMOS ECKERT, Appellant

No. 6966

Supreme Court of Idaho

March 10, 1942

APPEAL AND ERROR-REVERSAL-LEASE AND SALE TO THIRD PARTY PENDING APPEAL-RESTITUTION-BONA FIDE PURCHASER-PLEADING, AMENDMENT OF-JOINDER OF ACTIONS.

1. Where plaintiff seeking to recover possession of realty and certain farming equipment had been in possession of realty and equipment for some time, his right to possession was a "moot question."

2. Under statute providing that, when a judgment or order is reversed or modified, the appellate court may make complete restitution of all property and rights lost, the Supreme Court in a proper case may order restitution or may order the district court to make restitution, or an independent action may be brought. (I. C. A. sec. 11-220.)

3. Where wife pending husband's appeal from judgment awarding realty and personalty to wife executed a lease and a bill of sale to defendant, and defendant agreed to abide by result of litigation, defendant was not a "bona fide purchaser" of personalty, and his rights under lease were commensurate only with those of wife, and upon reversal of judgment defendant became liable to husband for reasonable rental value of realty during his possession and for value of personalty which he could not return, and he was required to make complete restitution to husband. (I. C. A. secs. 11-220, 12-606.)

4. Upon reversal of a judgment, the right to restitution exists against those who are parties to the suit and also against third persons receiving the money or property involved who are not bona fide purchasers. (I. C. A. sec. 11-220.)

5. Where wife pending husband's appeal from judgment awarding realty and personalty to wife executed a lease and a bill of sale to defendant, and defendant agreed to abide by result of litigation, that husband did not furnish a supersedeas bond on appeal did not preclude him from questioning validity of lease or sale of personalty after reversal of judgment. (I. C. A. sec. 12-606.)

6. The statutory "discretion" of the trial court to permit or deny amendments to pleadings is a sound and impartial discretion. (I. C. A. sec. 5-905.)

7. Causes of action for the recovery of possession of real and personal property and its rental value during time defendant had possession thereof, and for the recovery of possession of horses or their value, were not improperly joined where they arose out of the same transaction. (I. C. A. sec. 5-606.)

8. The allowance or denial of amendments to pleadings by the trial court in the exercise of discretion will not be revised or disturbed on appeal except for manifest abuse of discretion. (I.C.A. sec. 5-905.)

9. Unless the trial court's exercise of discretion in granting or refusing to grant permission to amend a pleading deprives a party of some substantial right, it is not error. (I. C. A. sec. 5-905.)

10. The trial court did not abuse its discretion in refusing to permit defendant to amend his demurrer to raise the question of improper joinder of two causes of action, where the causes arose out of the same transaction, and defendant did not show in what respect he was prejudiced or denied any substantial right by the court's action. (I. C. A. secs. 5-606, 5-905.)

11. In action for restitution of horses sold to defendant by reason of an erroneous judgment, where complaint alleged sale of 18 horses for $300, but bill of sale stated that only 8 horses had been sold to defendant, and record showed that but 7 horses and their increase were claimed by defendant, and that the other horses were in plaintiff's possession or on his ranch, judgment reciting that plaintiff was entitled to receive 17 horses plus their increase or $300 was erroneous. (I. C. A. sec. 11-220.)

12. In an action in restitution to recover possession of property plaintiff is entitled to have restored to him only the property lost to him by reason of the erroneous judgment consistent with his cause of action and the proof offered in support thereof. (I. C. A. sec. 11-220.)

13. In action to recover possession of horses and increase or value thereof, where jury found that plaintiff was entitled to recover horses which defendant bought from plaintiff's wife by reason of a judgment which was reversed on appeal but did not find that plaintiff was entitled to recover a certain horse or its value, and that horse was not one attempted to be sold or an increase, judgment awarding that horse to plaintiff contrary to verdict was erroneous. (I. C A. sec. 11-220.)

APPEAL from the District Court of the Fourth Judicial District in and for Gooding County. Hon. Charles F. Koelsch, Presiding Judge.

Action to recover possession of certain real and personal property and its rental value during the time Defendant held it. Judgment for Plaintiff as to first cause of action, affirmed. Judgment for Plaintiff as to second cause of action, reversed, new trial granted.

Judgment affirmed in part and reversed in part and a new trial granted.

Ariel L. Crowley, for Appellant.

Restitution can in general be enforced only against parties to the record. (3 Am. Jur. 739, Sec. 1242; 3 Am. Jur. 742, sec. 1245; Little v. Bunce, 28 Am. Dec. 363; U. S. v. Bank, 8 L.Ed. 299; Johnson v. McKinnon, 54 Fla. 221, 45 So. 23, 13 L. R. A. (N. S.) 874, 127 Am.)

The right to restitution is controlled by statute in this state, and the statute by its terms declares the cases in which district court actions may be brought. This case is not one of those listed. Expressio unius est exclusio alterius. Respondent's remedy lay in the Supreme Court, not the District Court. (Section 11-220 I. C. A.; McLean v. District Court, 24 Idaho 441, 134 P. 536, Ann. Cas. 1915 D, 542; Moore v. Boise Land & Orchard Co., 34 Idaho 50, 198 P. 753; 3 Am. Jur. 742, Sec. 1245.)

A proceeding for restitution will not lie against a bona fide purchaser of personal property for value. (Coon v. O'Brien, 186 N.W. 340, 107 Neb. 427; Thaxter v. Thain, 91 N.Y.S. 729, 100 A.D. 488, App. Dismissed 74 N.E. 1126; 5 C. J. S. 1544; Sec. 1982; Oldfield v. Bank of America, 56 P.2d 1235 (1239-1240).)

The first and second causes of action could not lawfully be joined, and the amendment to the demurrer to attack the misjoinder should have been allowed. (Sec. 5-606 I. C. A.; Dunbar v. Board of County Co., 5 Idaho 407, 49 P. 409; Kelly v. Leachman, 3 Idaho 629, 33 P. 44.)

Bissell & Bird, for Respondent.

The right of restitution may be enforced by proper order of the appellate court, summary proceedings in the lower court in the same cause, or by an independent action, depending of course on the nature of the property and the parties involved. Sec. 11-220 I. C. A.; 5 C. J. S. 1545; Burgess v. Lasby, 24 P.2d 147, 153; 3 Am. Jur. 746.)

Restitution may be had, not only against parties to the record, but also against third persons receiving the involved money or property who are not bona fide purchasers: MacKenzie v. Engelhard & Sons Co., 266 U.S. 131, 69 Law Ed. 205, 45 S.Ct. 68, 36 A. L. R. 416; 5 C. J. S. 1543; DiNola v. Allison, 76 P. 976; Kremer v. Schutz, 107 P. 780; Rackner v. Hoppas, 239 P. 967; Rumsey v. Rumsey, 90 P.2d 1093.)

The extent of restitution in a situation like that now before the court is not limited to a return of the property itself, but also includes the reasonable value of the use and occupation of such property: (Kremer v. Schutz, supra 1 and 5; Trubee v. Miller, 40 Am. Rep. 177; § 11-207 I. C. A.; 3 Am. Jur. 751.)

BUDGE, J. Givens, C. J., Morgan, Holden, and Ailshie, JJ., concur.

OPINION

BUDGE, J.

Respondent 's complaint contained three causes of action. The third cause of action is not before us. Respondent failing to recover thereon took no cross-appeal.

In his first cause of action, respondent Henry J. Radermacher alleged among other things that the district court in and for Gooding County on September 3, 1937, made and entered a judgment in an action between respondent and his wife, Freda Radermacher, awarding all real and personal property hereinafter referred to and set out in respondent's complaint, to Freda Radermacher; that respondent appealed to this court, and thereafter on December 7, 1937, Freda Radermacher entered into a written lease with appellant wherein she leased to him for a period of five years whatever interest she then had in said property, or had acquired by reason of the judgment of the trial court heretofore referred to, or that should be given or awarded to her in the final determination of the litigation then pending between her and respondent; that appellant agreed in said lease to abide by the result of said litigation; that respondent, after learning of the making of said lease, notified appellant of the pendency of said appeal, and that he would look to him for the rental value of said property in case he, respondent, should prevail in said appeal. It is also alleged that this court modified the judgment heretofore referred to by striking therefrom the provisions awarding the property therein described to Freda Radermacher, and by directing the district court to enter a new decree. (Radermacher v. Radermacher, 59 Idaho 716, 87 P.2d 461.) Whereupon the trial court entered a new decree in which it again awarded certain property to Freda Radermacher. From this latter decree, respondent again appealed to this court whereupon it was again held that the trial court had no authority to ratify the sale of personal property which Freda Radermacher did, in the interim, make to appellant, and directed the trial court to enter a decree in accordance with the latter opinion. (Radermacher v. Radermacher, 61 Idaho 261, 275, 100 P.2d 955.) On July 27, 1940, the trial court again amended its decree by striking therefrom that part...