Williamson v. Ysursa

• Decision Date: 20 December 1956
• Docket Number: No. 8345,8345
• Citation: 305 P.2d 732,78 Idaho 423
• Parties: Ira WILLIAMSON and Eunice Williamson, husband and wife, Plaintiffs-Appellants, v. Benito YSURSA and Asuncion Ysursa, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 732

305 P.2d 732

78 Idaho 423

Ira WILLIAMSON and Eunice Williamson, husband and wife, Plaintiffs-Appellants, v. Benito YSURSA and Asuncion Ysursa, husband and wife, Defendants-Respondents.

No. 8345.

Supreme Court of Idaho.

Dec. 20, 1956.

Rehearing Denied Jan. 22, 1957.

Vernon K. Smith, Samuel Kaufman, Jr., Boise, for appellants.

E. H. Casterlin, Pocatello, for respondents.

KEETON, Justice.

Plaintiffs (appellants) commenced this action to recover alleged damages suffered due to a summary foreclosure of a chattel mortgage, and wrongful conversion of personal property by defendants (respondents).

Numerous reasons are alleged in the complaint of claimed errors and defects in the foreclosure proceedings; and appellants allege that there was nothing due on the mortgage when summarily foreclosed; that certain procedural requirements were not complied with.

In an answer defendants deny certain allegations of the complaint, admit others, and allege numerous reasons why defendants claim that plaintiffs cannot prevail, and allege in an affirmative defense that the matters complained of were placed in issue and adjudicated in a prior action (Ada County, No. 22369) between the same parties, and determined adversely to plaintiffs; that the matters complained of by plaintiffs are res judicata.

A jury was waived and trial was had before the court. The court concluded:

'That the plaintiffs' cause of action in the instant action constituted, was and is a counterclaim with respect to the cause of action stated in Civil Action No. 22369 above mentioned, which, if not litigated in said Civil Action No. 22369, should have been litigated therein and is now barred by reason of the doctrine of res judicata or judicial estoppel.'

Basing the decision on the doctrine of res judicata, the trial court dismissed the proceedings. From the judgment entered, plaintiffs appealed.

In the former litigation referred to by the court in his findings as Civil Action No. 22369, commenced August 19, 1949, Benito Ysursa and wife sued Ira Williamson and Frank E. Marcum to secure possession of the East half of Lot 12, Block 8, Original Townsite of Boise (701 Main Street), claiming that the property had been leased to defendants for a period of time commencing April 12, 1948 and ending December 31, 1950; that the monthly rental of $500 was in default; that the rent for April, May, June, July and August, 1949, had not been paid; that demand for payment had been made and payment refused and defendants continued in possession after default in the rent payment, and prayed judgment for the restitution of said premises, and for $2,500 rent; that said rent be trebled, and pursuant to the terms of the lease that plaintiffs in that action (No. 22369) should recover additionally, $500 attorney fees.

By a written instrument dated May 15, 1948, Marcum and wife, with the consent of the lessors, respondents here, assigned all their interest in the lease to Ira Williamson and Eunice E. Williamson, his wife, appellants here, and at the same time executed a bill of sale to them of personal property used in carrying on the business on the leased premises. Thereafter, until ejected, appellants continued to operate the business as owners.

By an instrument in writing dated August 17, 1948, to secure the payment of the rent as the same became due, Ira Williamson and wife, appellants, as mortgagors, mortgaged to Benito Ysursa and wife, said personal property owned, or claimed to be owned, by them, located on the premises, in the building in which the business was conducted, and described in the lease dated April 12, 1948.

On August 15, 1949, prior to the commencement of Civil Action No. 22369, the mortgagees, Ysursa and wife, commenced a summary mortgage foreclosure proceeding on the mortgage claiming that $2,500 was due and owing for unpaid rentals. Pursuant to an affidavit in the summary mortgage foreclosure proceeding and demand of mortgagees, the sheriff of Ada County took possession of the property mortgaged, or such of it as the found, which was located in, or on, the leased premises, in the business establishment of appellants, and on August 24, 1949, sold the same at public auction for the sum of $1,950.30 and from the proceeds of the sale paid the mortgagees (Ysursa and wife), respondents, $1,891.48 on the rent. This summary mortgage foreclosure proceeding is the one attacked by appellants in the present suit. The summary mortgage foreclosure proceeding was being conducted while Civil Action No. 22369 was pending.

In the then pending action No. 22369 wherein respondents here were plaintiffs and Ira Williamson, appellant here, a defendant, among other defenses, Williamson filed a cross-complaint claiming damages for a wrongful summary foreclosure of the mortgage and the conversion of his property, on the ground, among others, that the statutory procedure had not been followed and that no rent was in arrears at the time of the foreclosure sale. General demurrers were interposed and sustained to such cross-complaint on the ground that the cross-complaint was not permissible in an unlawful detainer action.

An amended answer, counterclaim and cross-complaint were subsequently filed, again claiming damages because of the alleged wrongful foreclosure and conversion of cross-complainants' property. Prior to the hearing on the latter cross-complaint, Ira Williamson filed a waiver disclaiming any right to possession of the premises involved. Again the court refused to allow the cross-complaint for the alleged wrongful mortgage foreclosure, sustained a general demurrer and struck the same.

A second amended answer and counterclaim was then filed wherein the alleged wrongful mortgage foreclosure and damages for conversion of the property were again asserted. A demurrer to the same was sustained and again the alleged wrongful mortgage foreclosure and conversion were on motion of the plaintiffs in that suit stricken.

The right to the possession of the leased property in controversy was then no longer an issue, the lessees, Williamson and wife, having disclaimed any right to possession of the premises involved.

In a third amended answer defendants denied there was anything due plaintiffs, alleged the rent had been overpaid in the sum of $2,658.83, and in the prayer asked for judgment for such overpayment.

Damages for the conversion of the personal property by wrongful summary foreclosure, having been thrice stricken, were not in the third amended answer alleged, or judgment for damages for conversion prayed.

In case No. 22369 the jury returned a general verdict for defendants, Williamson and Marcum, and judgment was entered on the verdict.

Subsequently appellants, Ira Williamson and Eunice Williamson, his wife, commenced this action against Benito Ysursa and Asunction Ysursa, his wife, for the conversion of their property because of an alleged wrongful mortgage foreclosure and sale thereof, based on the ground that the jury by general verdict in the district court proceeding had found that there was no rent due, and on the further ground that the required statutory procedure had not been followed in numerous respects.

Among other defenses respondents in this action alleged that the cause of action was one that was, or should have been, litigated in the former action No. 22369, and was res judicata. Appellants here moved to strike this defense which motion was denied. On the trial of the issues as above stated, the trial judge found that appellants' cause of action was litigated in the former action, and if not litigated, should have been, and is now barred.

In specifications of error appellants complain of certain findings, and specifically the finding and conclusion made to the effect that the matters and differences now in controversy were, or should have been, litigated in the former action, and failure of the trial court to find on all the issues. We shall not discuss all such assignments separately, but shall group for discussion those pertinent to a decision.

The prior action between the parties, No. 22369, was originally commenced to secure possession of the leased premises, also alleged rent owed. The parties apparently concede that a cross-complaint or counterclaim was then not permissible. This and other courts have so held. See Hunter v. Porter, 10 Idaho 72, 77 P. 434; Arnold v. Krigbaum, 169 Cal. 143, 146 P. 423, Ann.Cas.1916D, 370; Schubert v. Lowe, 193 Cal. 291, 223 P. 550; Smith v. Whyers, 64 Cal.App. 193, 221 P. 387; ...