Walker v. McGinness
| Decision Date | 09 June 1903 |
| Parties | WALKER v. McGINNESS |
| Court | Idaho Supreme Court |
NOTICE AND UNDERTAKING ON APPEAL-JUDGMENT-SUFFICIENCY OF.
1. When the undertaking on appeal is not in conformity with the notice of appeal, the appeal may be dismissed.
2. A judgment perpetually enjoining the commission of a given act without any further adjudication where the findings of fact and conclusions of law are full and specific, examined and held a sufficient decree.
(Syllabus by the court.)
APPEAL from District Court, Elmore County. Honorable George H Stewart, Judge.
From a modified judgment in favor of plaintiffs, defendant appeals. Affirmed.
Affirmed, with costs.
N. M Ruick, for Appellant.
If that which is found on page 8 of the transcript on second appeal and which is denominated "modified judgment and decree" constitutes a judgment in any sense as the same is defined in our statute (Code Civ. Proc. 1901, sec. 3465) such judgment is incomplete and does not conform to the definition of a judgment nor to the object or purpose of a judgment. A perusal of this so-called modified judgment and decree will show that it adjudges no fact and embodies no conclusion of law. It adjudicates nothing. It constitutes an order of injunction but does not declare the rights of the respective parties as the same are found to exist by reason of the facts appearing in the record of such former appeal as well as in the findings of fact contained in the transcript on this appeal. "A judgment is the final determination of the rights of the parties in an action or proceeding." (Rev. Stats. 1887, sec. 4350; Code Civ. Proc., sec. 3495.) A judgment is "the decision or sentence of the law, pronounced by the court . . . . upon the matter contained in the record," or "The conclusion of the law upon facts found by the court or jury." (Freeman on Judgments, 3d ed., sec. 2.) It may be that if our contention be admitted, this appeal will have to be dismissed under the ruling of this court in numerous cases, only one of which it is necessary to cite. (Adams v. McPherson, 3 Idaho 117, 27 P. 577.)
W. C. Howie, for Respondents.
The only thing that I can see in appellant's brief is that he is objecting because there are no findings of fact or conclusions of law in the judgment. He has apparently overlooked section 4407 of the Revised Statutes. (Code Civ. Proc., sec. 3484.) Complete findings of fact are made and conclusions of law. In fact, attorney for appellant has no fault to find with them--he could not, for they are very full and complete--and are separately stated as required by our statutes and the judgment is rendered on them. Nor is there any question but what all the rights of the parties to the action upon the questions raised in the action are fully determined. As shown by the pleadings and findings, every right as to the water between the parties had been formerly adjudicated except one, and that was appellant's right of point of diversion.
The facts are stated in the opinion.
This case was before this court and the judgment of the lower court was reversed on June 13, 1902, and that opinion is found in 8 Idaho 540, 69 P. 1003. The trial court was there instructed "to make findings of fact and conclusions of law in accordance with the views expressed in this opinion and enter judgment as prayed for in the complaint." Thereafter and on December 24, 1902, and in pursuance of the directions of this court, the district judge made and filed his "Corrected Findings of Fact and Conclusions of Law," and thereupon entered what is designated a "Modified Judgment and Decree."
From such judgment defendant again appeals to this court. Respondents have moved to dismiss the appeal herein upon the grounds "that no sufficient undertaking on appeal has been filed in said cause." The appeal, as recited in the notice thereof, is from the judgment and the whole thereof, while the undertaking on...
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