Washington County Land & Development Co. v. Weiser Nat. Bank

• Decision Date: 25 January 1915
• Citation: 146 P. 116,26 Idaho 717
• Court: Idaho Supreme Court
• Parties: WASHINGTON COUNTY LAND & DEVELOPMENT COMPANY, a Corporation, Appellant, v. THE WEISER NATIONAL BANK, a Corporation, Respondent

146 P. 116

26 Idaho 717

WASHINGTON COUNTY LAND & DEVELOPMENT COMPANY, a Corporation, Appellant, v. THE WEISER NATIONAL BANK, a Corporation, Respondent

Supreme Court of Idaho

January 25, 1915

APPEAL-UNDERTAKING FILED BUT OMITTED FROM TRANSCRIPT-APPEARANCE-STIPULATION-JURISDICTION-DEFAULT-JUDGMENT-RELIEF DEMANDED.

1. A motion to dismiss an appeal upon the ground that no undertaking on appeal or deposit of money, in lieu thereof was made or deposited with the clerk of the district court within five days after the service of the notice of appeal will be denied and the appeal will be heard upon its merits when such an undertaking in due form and in the proper amount was, in fact, filed in time and transmitted to this court but omitted from the transcript through oversight on the part of the clerk.

2. A defendant appears in an action when he answers, demurs or gives the plaintiff written notice of his appearance or when an attorney gives notice of appearance for him.

3. A stipulation that the defendant have until a certain date to make settlement of the amount claimed by plaintiff and containing a promise on the part of the defendant that in the event the settlement is not made by that time, it will confess judgment in the action then pending between the parties, is not an appearance contemplated by sec. 4892, Rev Codes.

4. In case the defendant fails to appear, answer, demur or otherwise plead within the time prescribed by statute, the district judge has jurisdiction and power at chambers to enter a default and to hear testimony thereon and to enter judgment.

5. In case the defendant fails to answer, the trial court is without power to grant relief not demanded in the complaint and if there be no prayer accompanying the complaint and no relief demanded, no judgment can be entered in favor of the plaintiff.

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

Suit to vacate and set aside judgment and to quiet title. Judgment for defendant. Affirmed.

Judgment affirmed and costs awarded to the respondent.

Lynne F. Clinton, for Appellant.

The stipulation filed by appellant and respondent was a voluntary appearance within the purview of sec. 4149, Rev. Codes, and had the jurisdictional effect of an answer or demurrer. (Cooper v. Gordon, 125 Cal. 296, 301, 57 P. 1006.)

Powers conferred on a court cannot be exercised by a judge in vacation, even by consent of parties, unless a statute so provides. (23 Cyc. 545; Bates v. Gage, 40 Cal. 183; Wicks v. Ludwig, 9 Cal. 173.)

The omission of any prayer for relief is not a fatal defect. (Sannoner v. Jacobson, 47 Ark. 31, 14 S.W. 458; Parker v. Norfolk etc. R. Co., 119 N.C. 677, 25 S.E. 722; Iowa County v. Mineral Point Ry. Co., 24 Wis. 93.)

The prayer for relief is no portion of the statement of facts constituting a cause of action. The entire omission of any demand for judgment does not subject the complaint to a general demurrer. (Fox v. Graves, 46 Neb. 812, 65 N.W. 887; Culver v. Rodgers, 33 Ohio St. 537, 546.)

"If the facts stated in the complaint are established by the evidence and show that the plaintiff is entitled to any relief, the court may grant him such relief, although not prayed for." (Anderson v. War Eagle Consol. Min. Co., 8 Idaho 789, 72 P. 671; Presson v. Boone, 108 N.C. 78, 12 S.E. 897.)

The want of a special or general prayer is not a defect involving the power or jurisdiction of a court to render a decree. (Evans v. Schafer, 119 Ind. 49, 21 N.E. 448; Baxter v. Knoxville First Nat. Bank, 85 Tenn. 33, 1 S.W. 501.)

Ed. R. Coulter, for Respondent, files no brief.

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This is an appeal from the district court of the seventh judicial district for Adams county, and is prosecuted from a judgment wherein the court refused to set aside a former judgment entered in a case in which respondent here was plaintiff and this appellant was defendant.

The defendant, Weiser National Bank, named as respondent herein, defaulted in the district court by its failure to answer or otherwise appear, but moved in this court to dismiss this appeal upon the ground that no undertaking on appeal, or deposit of money in lieu thereof, was made or deposited with the clerk of the district court from which this appeal was taken within five days after service of the notice of appeal upon said respondent, and alleges, among other things, that a copy of the said notice of appeal was served upon respondent on the 3d of December, 1913; that no undertaking on appeal was ever filed in said cause, as appears from the transcript on appeal.

An undertaking on appeal in due form and in the proper amount has been transmitted to this court in this case, and, as appears from the filing mark thereon, it was filed on December 6, 1913. As a matter of fact it does not appear in the transcript, probably through oversight on the part of the clerk, but the undertaking being in due form and in the proper amount and having been filed in time, the motion to dismiss will be denied and the appeal will be considered upon its merits.

Although the complaint in this case is not accompanied by a prayer and no relief is demanded, the apparent purpose of the action is to vacate and set aside the former judgment and to remove from the title to plaintiff's real estate the cloud thereby cast upon it.

In the former case the default of the defendant was entered and judgment was thereafter awarded to plaintiff at chambers. The defendant in the former case, plaintiff and appellant in this, has prosecuted this appeal upon the theory that the judge of the district court was without jurisdiction to enter said former judgment at chambers, for the reason, as it contends, that it appeared in said former action and is, therefore, entitled to a judgment in this case vacating and setting aside said former judgment. The document relied upon by appellant as an appearance in the former action is a stipulation between the parties and, omitting the title of the court and cause, is as follows:

"STIPULATION.

"It is hereby stipulated by and between the respective parties to the above-entitled action, and their respective attorneys, that the Washington County Land and Development Company shall have up to and including November 1, 1912, in which to settle said action and have the suit dismissed at the instance of the Weiser National Bank, and that in the event that said suit is not settled and dismissed by November 1, 1912, that the Washington County Land and Development Company will confess judgment for the amount of the said promissory notes involved in said suit, together with interest and attendant costs and attorneys fees in such sum as the Court may adjudge reasonable not to exceed amt. prayed for.

"WASHINGTON COUNTY LAND AND DEVELOPMENT COMPANY.

"BY LYNNE F. CLINTON, "Its Attorney in Fact.

"WEISER NATIONAL BANK.

"By ED R. COULTER, "Its Attorney in Fact.

"Filed Sept. 6, 1912. C. W. Holmes, Clerk."

Appellant cites and relies upon the 17th subdivision of sec. 3890, Rev. Codes, conferring jurisdiction upon district judges at chambers, and the part of said section material to a decision of this case is as follows:

"Sec 3890. A district judge may sit at chambers anywhere within his district, and when so acting, has jurisdiction and power as follows: . . . .

"17th. To enter defaults and to hear testimony thereon; and to enter judgment in default cases, where there has been...