LEE, C. J. —
On May 31, 1928, plaintiff and respondents, Yivian F. Baldwin and E. R. Baldwin, her husband, secured a joint, money judgment against the Singer Sewing Machine Company and one Ed. Anderson, its agent. From such judgment, the defendants jointly appealed, the only
supersedeas
bond filed being that heretofore set out in
Baldwin v. Anderson et al.,
50 Ida. 606, 299 Pac. 341. On appeal, the judgment was reversed as to the Singer Sewing Machine Company and affirmed as to defendant Anderson, the trial court being directed to dismiss the case as against the Singer Company. Anderson having failed to pay the judgment, plaintiffs and
respondents applied to the trial court for judgment upon the
supersedeas
bond. The judgment, when entered, recited “ .... the plaintiffs having moved the court for a judgment against the said American Surety Company of New York, a corporation, and the court being fully advised in the premises etc. Done in open court this 23rd day of June 1930.”
Thereafter, on June 26, 1930, appellant Surety Company moved the court to vacate and set aside the judgment so entered, contending that the same was void for several reasons, one of which being that the judgment had been entered without any notice to either appellant Surety Company or the Singer Sewing Machine Company. The trial court subsequently granted appellant’s motion, respondents appealed and on May 2, 1931, the order vacating the judgment was reversed.
(Baldwin v. Anderson,
50 Ida. 606, 299 Pac. 341.) In that opinion, the
supersedeas
bond was set forth
in toto,
and the contentions that the incident judgment was void fully discussed, it being directly held that under C. S., see. 7155, the judgment creditor may move for judgment against the surety on a
supersedeas
bond without giving notice.
On June 18th following, appellant moved the court to amend and correct the judgment of June 23, 1930, and to vacate and set aside the same, when so corrected and amended. The correction and amendment sought constituted striking from the body of the judgment the recitals “and the plaintiff having moved the court for a judgment, etc.,” and the words, “in open court,” and substituting in lieu of the latter the words “at chambers.” Two grounds only were urged in the motion to vacate, viz.: that the court had no jurisdiction to enter said judgment at chambers, “it being a matter requiring judicial consideration,” and that no notice of said chambers proceeding had been given appellant. This last motion having been denied, defendant Surety Company has appealed.
It is insisted that the court erred in refusing to correct the judgment, since the facts adduced at the hearing
show that no motion for judgment was ever filed in the case and that the proceedings were had and the subsequent judgment entered at chambers and not in open court. For the same reasons, it is contended that the trial judge was without jurisdiction to hear the matter or enter judgment thereon. The question of notice heretofore having been disposed of in
Baldwin v. Anderson, supra,
it is
res judicata
here and will not again be considered.
It but remains to determine whether or not a proper application for judgment was made and whether or not the subsequent proceedings including the entry of judgment were properly had. There is no merit in the contention that a formal motion must have been filed. Any application for an order is a motion. (C. S., sec. 7194, identical with Cal. Code Civ. Proc., sec. 1003.) Such motion is “usually made orally.”
(Williams v. Hawley,
144 Cal. 97, 77 Pac. 762, 763.) Oral motions are also recognized in jurisdictions having similar statutes.
(Van Curon v. King,
93 Okl. 1, 219 Pac. 337, 338;
Genardini v. Kline,
21 Ariz. 523, 190 Pac. 568, 570.)
The judgment of June 23, 1930, positively recited that a motion for judgment was made and the certificate of the trial judge made on June 23, 1931, one year later, details that respondents’ counsel “stepped to the bench, court still being in session, and made a motion for judgment in favor of Vivian F. Baldwin and E. R. Baldwin and against the American Surety Company upon its
supersedeas
undertaking .... and thereupon submitted a form of judgment, together with the complete records and files in said cause, including the opinion of the Supreme Court of the State of Idaho in said case, dated April 10, 1930, and the
remittitur
issued pursuant thereto, also the undertaking of the American Surety Company referred to.....I then told him I would consider the motion and take the matter under advisement.” Several days thereafter, during the hearing, the trial judge dictated into the record substantially the same recitals. Here, is a presumption of regularity re-enforced by the judge’s certificate and record state
ment. With the burden of proof upon it, appellant Surety Company seeks to overcome all three by the introduction of court minutes that- are silent, negativing neither, and affidavits of individuals not primarily participating in what occurred between court and counsel. Where the record is silent on the point in controversy, the regularity of the judgment and the truth of its recitals are, in the absence of evidence to the contrary, conclusively presumed.
(State v. Feehan,
24 Ida. 548, 135 Pac. 59;
Ollis v. Orr,
6 Ida. 474, 56 Pac. 162; 4 C. J. 740, par. 2670.) “The trial judge’s own recollection of the facts was the equivalent of testimony.”
(Cazzell v. Cazzell,
133 Kan. 766,
3
Pac. (2d) 479, 480.)
Whether or not the judgment was signed at chambers or in open court- is negligible: the signing of judgments involves no judicial consideration. That the proceeding was initiated and undertaken in open court was the fact found by the trial judge on the hearing. ITis finding is fully supported by presumption and evidence and must be final.
(Sullivan v. Coakley,
205 Iowa, 225, 217 N. W. 820;
Kaufman v. Shain,
111 Cal. 16, 52 Am. St. 139, 43 Pac. 393, 395.)
Notwithstanding that upon the instant motion the point is not before us, it has been earnestly suggested that this court should construe the
supersedeas
bond upon which the judgment of June 23, 1930, was rendered, declare that said bond on its face precludes all liability for Anderson’s default, and that the trial court’s judgment was void for total lack of jurisdiction of the subject matter.
The bond has heretofore been construed contrariwise by the trial court. In that court’s opinion, appellant by its contract undertook, in case of partial or whole affirmance, to pay a certain judgment, not a judgment against the Singer Sewing Machine Company, not a judgment against Ed. Anderson, but the only judgment docketed in the ease, to wit, a joint, indivisible judgment against them both. Appeal from the trial court’s judgment based upon its interpretation of the bond was .lost through lapse of time. Now, this
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LEE, C. J. —
On May 31, 1928, plaintiff and respondents, Yivian F. Baldwin and E. R. Baldwin, her husband, secured a joint, money judgment against the Singer Sewing Machine Company and one Ed. Anderson, its agent. From such judgment, the defendants jointly appealed, the only
supersedeas
bond filed being that heretofore set out in
Baldwin v. Anderson et al.,
50 Ida. 606, 299 Pac. 341. On appeal, the judgment was reversed as to the Singer Sewing Machine Company and affirmed as to defendant Anderson, the trial court being directed to dismiss the case as against the Singer Company. Anderson having failed to pay the judgment, plaintiffs and
respondents applied to the trial court for judgment upon the
supersedeas
bond. The judgment, when entered, recited “ .... the plaintiffs having moved the court for a judgment against the said American Surety Company of New York, a corporation, and the court being fully advised in the premises etc. Done in open court this 23rd day of June 1930.”
Thereafter, on June 26, 1930, appellant Surety Company moved the court to vacate and set aside the judgment so entered, contending that the same was void for several reasons, one of which being that the judgment had been entered without any notice to either appellant Surety Company or the Singer Sewing Machine Company. The trial court subsequently granted appellant’s motion, respondents appealed and on May 2, 1931, the order vacating the judgment was reversed.
(Baldwin v. Anderson,
50 Ida. 606, 299 Pac. 341.) In that opinion, the
supersedeas
bond was set forth
in toto,
and the contentions that the incident judgment was void fully discussed, it being directly held that under C. S., see. 7155, the judgment creditor may move for judgment against the surety on a
supersedeas
bond without giving notice.
On June 18th following, appellant moved the court to amend and correct the judgment of June 23, 1930, and to vacate and set aside the same, when so corrected and amended. The correction and amendment sought constituted striking from the body of the judgment the recitals “and the plaintiff having moved the court for a judgment, etc.,” and the words, “in open court,” and substituting in lieu of the latter the words “at chambers.” Two grounds only were urged in the motion to vacate, viz.: that the court had no jurisdiction to enter said judgment at chambers, “it being a matter requiring judicial consideration,” and that no notice of said chambers proceeding had been given appellant. This last motion having been denied, defendant Surety Company has appealed.
It is insisted that the court erred in refusing to correct the judgment, since the facts adduced at the hearing
show that no motion for judgment was ever filed in the case and that the proceedings were had and the subsequent judgment entered at chambers and not in open court. For the same reasons, it is contended that the trial judge was without jurisdiction to hear the matter or enter judgment thereon. The question of notice heretofore having been disposed of in
Baldwin v. Anderson, supra,
it is
res judicata
here and will not again be considered.
It but remains to determine whether or not a proper application for judgment was made and whether or not the subsequent proceedings including the entry of judgment were properly had. There is no merit in the contention that a formal motion must have been filed. Any application for an order is a motion. (C. S., sec. 7194, identical with Cal. Code Civ. Proc., sec. 1003.) Such motion is “usually made orally.”
(Williams v. Hawley,
144 Cal. 97, 77 Pac. 762, 763.) Oral motions are also recognized in jurisdictions having similar statutes.
(Van Curon v. King,
93 Okl. 1, 219 Pac. 337, 338;
Genardini v. Kline,
21 Ariz. 523, 190 Pac. 568, 570.)
The judgment of June 23, 1930, positively recited that a motion for judgment was made and the certificate of the trial judge made on June 23, 1931, one year later, details that respondents’ counsel “stepped to the bench, court still being in session, and made a motion for judgment in favor of Vivian F. Baldwin and E. R. Baldwin and against the American Surety Company upon its
supersedeas
undertaking .... and thereupon submitted a form of judgment, together with the complete records and files in said cause, including the opinion of the Supreme Court of the State of Idaho in said case, dated April 10, 1930, and the
remittitur
issued pursuant thereto, also the undertaking of the American Surety Company referred to.....I then told him I would consider the motion and take the matter under advisement.” Several days thereafter, during the hearing, the trial judge dictated into the record substantially the same recitals. Here, is a presumption of regularity re-enforced by the judge’s certificate and record state
ment. With the burden of proof upon it, appellant Surety Company seeks to overcome all three by the introduction of court minutes that- are silent, negativing neither, and affidavits of individuals not primarily participating in what occurred between court and counsel. Where the record is silent on the point in controversy, the regularity of the judgment and the truth of its recitals are, in the absence of evidence to the contrary, conclusively presumed.
(State v. Feehan,
24 Ida. 548, 135 Pac. 59;
Ollis v. Orr,
6 Ida. 474, 56 Pac. 162; 4 C. J. 740, par. 2670.) “The trial judge’s own recollection of the facts was the equivalent of testimony.”
(Cazzell v. Cazzell,
133 Kan. 766,
3
Pac. (2d) 479, 480.)
Whether or not the judgment was signed at chambers or in open court- is negligible: the signing of judgments involves no judicial consideration. That the proceeding was initiated and undertaken in open court was the fact found by the trial judge on the hearing. ITis finding is fully supported by presumption and evidence and must be final.
(Sullivan v. Coakley,
205 Iowa, 225, 217 N. W. 820;
Kaufman v. Shain,
111 Cal. 16, 52 Am. St. 139, 43 Pac. 393, 395.)
Notwithstanding that upon the instant motion the point is not before us, it has been earnestly suggested that this court should construe the
supersedeas
bond upon which the judgment of June 23, 1930, was rendered, declare that said bond on its face precludes all liability for Anderson’s default, and that the trial court’s judgment was void for total lack of jurisdiction of the subject matter.
The bond has heretofore been construed contrariwise by the trial court. In that court’s opinion, appellant by its contract undertook, in case of partial or whole affirmance, to pay a certain judgment, not a judgment against the Singer Sewing Machine Company, not a judgment against Ed. Anderson, but the only judgment docketed in the ease, to wit, a joint, indivisible judgment against them both. Appeal from the trial court’s judgment based upon its interpretation of the bond was .lost through lapse of time. Now, this
court is importuned, in the absence of an appeal, to review the conclusions of a trial judge and do just what it is denied he had a right to do — decide a question before him as he thought proper.
But, it is argued, there could be no question before him, because the terms of the bond are so clear and appellant’s freedom from liability so plain that the trial court was without jurisdiction to examine the subject matter. Who is it whose exclusive province it is first to announce the import of a contract? An appellate court with no appeal before it or the tribunal to which the contract is submitted in the first instance? This entire matter of jurisdiction it is contended rests entirely upon the effect of the bond. We heartily agree. But the bond was not a nullity; very decidedly it meant something, but that something must be what appellant says it is. Apparently, in such an obviously translucent situation, the trial judge must not think at all. Unless he can see as appellant sees, what he sees simply does not exist. He has jurisdiction to say, “No,” but none to say, “Yes.” Nowhere is it suggested that, had he said, “No,” his jurisdiction would have been questioned. Jurisdiction cannot be so split.
Appellant was either bound to respond for Anderson or it was not, an issue clearly cut and one to be first resolved by the only instrumentality by law provided. Had formal suit upon the bond been filed and appellant joined issue by general demurrer or answer denying all liability, could it logically be claimed there was no issue before the court ?
Judgment affirmed; costs to respondents.
Givens and Varian, JJ., concur.
Petition for rehearing denied.