Sutton v. Brown
| Decision Date | 07 November 1962 |
| Docket Number | No. 9218,9218 |
| Citation | 85 Idaho 104,375 P.2d 990 |
| Parties | Rex SUTTON, Plaintiff-Respondent, v. D. A. BROWN, Mrs. D. A. Brown, Brian Webb, Mrs. Brian Webb, Dale Peringer, Mrs. Dale Peringer, Melvin D. Brittain, Mrs. Melvin D. Brittain, Bert Bellis, Mrs. Bert Bellis, George T. Carr, Mrs. George T. Carr, Mark James, Mrs. Mark James, G. W. Selves, Mrs. G. W. Selves, George Hawkins, Mrs. George Hawkins, Park Gardner, Mrs. Park Gardner, Robert F. Goldsworthy, Mrs. Robert F. Goldsworthy, Jack Shaw and Mrs. Jack Shaw, Defendants-Appellants. |
| Court | Idaho Supreme Court |
McNaughton & Sanderson, J. Ray Cox, Jr., Coeur d'Alene, for appellants.
J. Henry Felton, Lewiston, for respondent.
Respondent, Rex Sutton, commenced this action by complaint filed June 23, 1961, wherein he alleged that he purchased from the State of Idaho, during the 1940s, a water pipeline and diversion works on Cougar Creek, Bonner County, Idaho; that respondent's ownership of said pipeline and diversion works was contested in a case entitled 'Rex Sutton, plaintiff vs. Les Tovey, J. E. Rosenberger, and Arthur Wilson, defendants' being case No. 7596, in the District Court, Bonner County, and it was therein decreed to be the property of respondent; that appellants have conspired together and have connected onto said pipeline belonging to respondent; that they have damaged respondent in the sum of $10,000.00; that they refuse to disconnect from said pipeline and that respondent will be further damaged unless appellants are restrained from using respondent's pipeline and diversion works.
Appellants filed three motions (1) motion for more definite statements; (2) motion to drop all defendants but one or to specify alleged conspiring acts of each defendant, and (3) motion to strike (a) paragraph II of the complaint for the reason that it appears by the complaint that none of appellants was a party to suit No. 7596, and (b) the words 'have conspired together' on the ground that they are mere conclusions of law and no acts of conspiracy are alleged.
Thereafter and prior to any consideration or disposition of the motions filed by appellants and prior to the filing of an answer by appellants, respondent filed motion for summary judgment. The trial court concluded that the pleadings, affidavits, records and files in the action did not show that there existed any issue of fact to be tried and granted said motion on June 4, 1962.
This appeal is from the judgment entered upon said motion.
The salient issue here presented requires that we determine if the trial court erred in so concluding.
The affidavits filed herein in support of, and in opposition to, the motion for summary judgment were executed by attorneys of record of the respective parties. With no intent of questioning the competency of either such affiants to testify as to the matters set forth in their respective affidavits (as required under I.R.C.P., Rule 56(e)) we consider it prudent to call attention to the possibility of an attorney, under such circumstances, being called to testify whereby his right to conduct the trial of his client's case, after appearing as a witness, may be questioned. However, the affidavits here involved are entitled to equal dignity.
In respondent's complaint it is alleged that he acquired title to the pipeline and diversion works by purchase from the State of Idaho, and that his ownership thereto was contested and determined in case No 7596 hereinbefore mentioned. The affidavit of J. H. Felton filed in support of the motion states that 'the defendants therein [referring to case No. 7596] represented the supposed rights of the defendants in this suit.' By the affidavit of J. Ray Cox, it is denied that any of the rights of appellants in the present action was involved in said case No. 7596, and it is stated in said affidavit that the appellants in this action had no notice of any such suit which would affect their rights.
It is convincing that the trial court was substantially influenced by the findings and decree entered in said case No. 7596. Its entire record has been furnished for our examination.
The original complaint in said case named 'The State of Idaho' as the only defendant. Under the second amended complaint (upon which the case was tried) only three individuals, to-wit: Les Tovey, J. E. Rosenberger and Arthur Wilson, are named as defendants. There is no allegation that they, or either of them, are made parties in any official capacity or as representatives of any person, corporation, organization or body politic. There is nothing whatever in said second amended complaint, or in the defendants' answer to indicate that the three defendants therein named are made parties in any capacity other than as individuals. In the findings of fact and conclusions of law or decree in said action there is no mention of or reference to the appellants in the instant case to indicate that they were in any respect involved in that action.
From a careful examination of the record in case No. 7596 we are unable to find, nor is our attention called to, any support for a conclusion that the defendants in that case were authorized in any respect to represent the appellants named in this action as to their claimed rights to the pipeline, diversion works or water rights there or here involved. Nor is there any showing that the defendants in case No. 7596 undertook to or did in any respect represent these defendants.
Notwithstanding the issue of fact created by said contradictory statements contained in the affidavits as to representation of parties, the court in the instant case found that 'the defendants therein [case No. 7596] represented the supposed rights of the defendants in this suit.' Such action of the court was not authorized. From such finding it must be assumed the court concluded that the defendants in this action had been represented in case No. 7596 and their rights to the subject of this lawsuit had there been adjudicated.
We do not agree with a contention that the judgment in case No. 7596 has any 'res judicata or collateral estoppel effect' between the parties to the present action. In 6 Moore's Federal Practice, Second Edition, 2257-2258, the general rule applicable is stated as follows:
'Under general basic principles that control the grant or denial of summary judgment, a motion for summary judgment on the basis of a prior judgment should be denied if the prior...
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