Sines v. Blaser

CourtUnited States State Supreme Court of Idaho
Citation566 P.2d 758,98 Idaho 435
PartiesGordon J. SINES and Betty J. Sines, husband and wife, and Tom Sines, Plaintiffs and Respondents, v. Albert E. BLASER and Ruth L. Blaser, together with all unknown owners of all or any part of the following described real property situated in the County of Canyon, State of Idaho, and described as follows, to-wit: The East 40.5 feet of Lot 9; all of Lots 10, 11, 12, 13, 14, 15 and the West 52.5 feet of Lot 16, Block 6 Resubdivision of Lots 14, 15, and 16 in Block 1 and all of Block 6 Vanal Heights, according to the Plat thereof filed
Decision Date21 August 1973

Jon N. Wyman, Boise, for defendants and appellants.

Richard Rosenberry, Dunlap, Rettig & Rosenberry, Caldwell, for plaintiffs and respondents.

BISTLINE, Justice.

The underlying dispute arose out of the failure of Albert E. and Ruth L. Blaser to pay three years of back taxes on certain parcels of real property which they owned in Canyon County. In April, 1970, the County Treasurer sent Mr. Blaser an informal notice of delinquent taxes due. This was followed, in November, 1970, by a registered letter giving formal notification of pendency of issue of a tax deed. When the registered letter was returned unclaimed, notice was published in the Idaho Free Press and, on January 1, 1971, the County took the property by tax deed. Newspaper publication was also made prior to the time when the property was sold to Gordon and Betty Sines and Tom Sines at a tax sale on August 15, 1972. Record title was conveyed on August 6, 1973.

Since, in the meantime, the Blasers had filed a vendor's lien against the property, the Sineses brought a quiet title action in late 1973. The case came to trial in May, 1974, with the Blasers arguing that the passing of title at the tax sale was void because of a failure to give proper notice to the record owners. The County Treasurer, according to appellants, was lacking in due diligence in resorting to notice by publication without any follow-up efforts to find and notify the Blasers after the single formal notice by registered mail was returned unclaimed. 1 It was uncontradicted at trial that the Blasers have lived at the same address for over 25 years, owned many parcels of land in Canyon County, and were personally known to and had dealings with the County Treasurer throughout the entire period in question. Moreover, it was uncontested that no separate attempt was made to notify Mrs. Blaser, the co-owner of the property.

On September 19, 1974, the trial court handed down its memorandum decision in favor of the Sineses and, following a practice this Court has recently had occasion to question see, Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977) winning counsel drafted the findings of fact, conclusions of law and judgment, originals of which were mailed to the court and copies of which were mailed to counsel for appellants on October 15, 1974. The court signed the judgment on October 18, 1974, and it was entered the same date. A copy of the Notice of Entry of Judgment was not sent out to any party by the clerk of the court, although respondents' counsel had prepared and furnished a suitable form. The original Notice of Entry took its place in the court files where it obviously served no purpose whatever.

On December 10, 1974, counsel for appellants, unaware that judgment had been entered, filed a motion to set aside or amend the findings, a motion for judgment n. o. v., and, in the alternative, a motion for a new trial. At a hearing on December 20, 1974, the trial court, by order entered the same date, denied all three motions, not on their merits, but as not having been timely filed.

The court minutes of December 20, 1974, reflect that counsel for Blasers, on receiving the oral decision that the post-judgment motions were being denied as untimely, attempted to move orally for relief under the provisions of Rule 60(b), I.R.C.P. The trial court advised that a written motion was to be preferred.

Blasers did then file and serve a written motion, under date of the 14th of January, 1975, requesting the court "for relief of Judgment, under Rule 60b, sections 1, 3 and 6 of the Idaho Rules of Civil Procedure." The motion was based upon the files and records and the supporting affidavit of counsel for Blasers, later supplemented by another affidavit of February 20, 1975. No affidavits in opposition to the showing made by Blasers were filed on behalf of the Sineses. The 60(b) motion was denied on April 16, 1975, without opinion or memorandum decision. The appeal to this Court followed, Blasers purporting to appeal from the final judgment of October 16, 1974, from the order of December 20, 1974, denying their post-judgment motions, and from the order of April 16, 1975, denying relief under Rule 60(b). The appeal from the judgment is of no effect. More than 60 days elapsed between October 16, 1974, and the appeal filed on June 13, 1975. Were we to consider the post-judgment motions as timely, even then the appeal time from the judgment would be only extended to the order of denial on December 20, 1974, and again June 13, 1975, would be far beyond the time of any possible extension for appeal from the judgment. The order denying the post-judgment motions is an order entered after final judgment, and is appealable, but not here where far more than 60 days elapsed from the entry of the order on December 20, 1974, to June 13, 1975.

The appeal of Blasers may lie from the order denying Rule 60(b) relief, provided that it was timely served. That it was timely filed is not questioned; nor is there question as to filing of the appeal cost bond.

A threshold question on this appeal, raised in this Court by respondents' motion to dismiss, is whether or not a copy of the Blasers' notice of appeal from the order dated April 16, 1975, was served within the time limit, which expired on June 15, 1975. That such notice must be served upon opposing counsel in timely fashion is not in dispute.

"This court will not consider an appeal wherein the notice of appeal was not timely served on the opposing party." Blinzler v. Andrews, 95 Idaho 769, 770, 519 P.2d 438, 439 (1973).

The parties are in agreement that on June 18, 1975, appellants' counsel carried to the office of respondents' counsel a packet of five copies of appeal papers which included the notice of appeal, the cost bond, the praecipe, the order for a reporter's transcript, and an order to certify exhibits. It is clear that if the only copy of the notice of appeal which was served upon respondents was this hand-delivered copy served on June 18, 1975, it was not timely served. However, the wife of counsel for appellants states in her affidavit that she mailed a copy of the notice of appeal to counsel for respondents at the time she filed the appeal with the clerk of court which was on June 13, 1975. Counsel for respondents states that the only notice which was received was that hand-delivered on the 18th. Service on the 13th of June would have been timely.

Thus, we are called upon to resolve a question of fact, each contention supported by affidavits. These affidavits are not necessarily contradictory. It is entirely possible that the notice was mailed on time and yet not received. Given our general policy of providing appellant his day in court, Rule 1, I.R.C.P., and assuming the integrity of both affidavits, and keeping in mind also that we weigh a statement of an affirmative as against a statement of a negative, we find that the notice of appeal was timely served upon opposing counsel as required by I.C. §§ 13-201, 13-202 and I.R.C.P. 5(b). See also, dissent of Justice Bakes in Blinzler v. Andrews, supra.

We turn next to the Order of April 16, 1975, denying appellants' motion for relief of judgment, which motion appellants made under Rule 60(b) on January 15, 1975. Supporting affidavits from counsel for appellants specify the manner in which counsel claims to have been the victim of "mistake, inadvertence, surprise, or excusable neglect" in not filing his post-judgment motions within the time limit prescribed by I.R.C.P. 50(b), 52(b) and 59(b). Counsel declares, without being refuted, that neither counsel for respondents nor the clerk of the court ever sent him a copy of the October 18, 1974, judgment, a copy of the cost bill, of the notice of entry of judgment, or of a respondents' brief submitted to the trial court for the hearing on December 20, 1974. Indeed, counsel's affidavit states that the clerk of the court made the baldfaced assertion "that no notice was ever sent in any cases to the attorney on the other side of entry of judgment in accordance with Idaho Rule of Civil Procedure, Rule 77(d)." 2 The supporting affidavit states further that it was not until the December 20 hearing itself that counsel for appellants discovered one usual file copy (it is unclear whether it was the brief or the notice of entry of judgment) which is to be sent to opposing counsel lying loose in his adversary's file; it was hand delivered during the course of the arguments.

The question before us on appeal, then, is whether the trial court abused its discretion in denying appellants' motion for relief under the provisions of Rule 60(b)(1), (3) and (6), I.R.C.P. Clearly, a 60(b)(1) motion is an appropriate way of attacking such a denial if the requisite "mistake, inadvertence, surprise, or excusable neglect" can be shown. See, Crawford v. West India Carriers,...

To continue reading

Request your trial
17 cases
  • Loomis, Inc. v. Cudahy
    • United States
    • Idaho Supreme Court
    • 1 Octubre 1982
    ...that the rules are to be liberally construed, and a just result is always the ultimate goal to be accomplished." Sines v. Blaser, 98 Idaho 435, 439, 566 P.2d 758, 762 (1977). "It has long been judicial policy in Idaho that controversies be determined and disposed of each on its own particul......
  • Clark v. Olsen
    • United States
    • Idaho Supreme Court
    • 5 Marzo 1986
    ...policy behind the current rules of civil procedure is to provide every litigant with his or her day in court. Sines v. Blaser, 98 Idaho 435, 437, 566 P.2d 758, 760 (1977). The rules are to be construed to secure a just, speedy and inexpensive determination of every action or proceeding. I.R......
  • Cook v. Skyline Corp.
    • United States
    • Idaho Supreme Court
    • 29 Septiembre 2000
    ...that a "just result" is accomplished, rather than requiring strict adherence to rigid forms of pleading. See Sines v. Blaser, 98 Idaho 435, 439, 566 P.2d 758, 762 (1977). Christensen v. Rice, 114 Idaho 929, 931, 763 P.2d 302, 304 When construed liberally, the complaint in the instant case s......
  • Johnston v. Pascoe
    • United States
    • Idaho Supreme Court
    • 4 Septiembre 1979
    ...149 A.L.R. 736. In his reply brief on rehearing, appellant strenuously contends that the ruling of this court in Sines v. Blaser, 98 Idaho 435, 566 P.2d 758 (1977), should Appellant's assignments of error will be discussed in the order presented. Under I.C. § 13-201, 1 an appeal from a fina......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT