Coeur D'Alene Turf Club, Inc. v. Cogswell

461 P.2d 107, 93 Idaho 324, 1969 Ida. LEXIS 306

• Court: Idaho Supreme Court
• Decided: July 22, 1969
• Docket: 10451
• Status: Published

Opinions

DONALDSON, Justice.

Plaintiff, Coeur d’Alene Turf Club, Inc., petitioned this Court for a writ of review and stay of proceedings pending the resolution of an appeal from a judgment rendered by defendant Darwin D. Cogswell, Judge of the District Court of the First Judicial District, State of Idaho, in and for the County of Kootenai. An alternative writ of prohibition was issued commanding Judge Cogswell to desist and refrain from taking any action in the matter until further order from the Supreme Court, and ordering him to show cause why he should not be permanently restrained from any further proceedings pending outcome of the appeal on the merits.

In 1967, Kootenai County, acting through its Board of Commissioners, leased certain real property known as the Kootenai County Fairgrounds to the Coeur d’Alene Turf Club for the purpose of conducting horse racing thereon.

Thereafter, Joseph Hansen brought a class action on behalf of Kootenai County taxpayers against the County Board and the Turf Club concerning the lease. July 1, 1968, Judge Towles, of the First District Court in and for Kootenai County, entered judgment declaring the lease void.

The County Board and the Turf Club then entered into a new lease agreement dated July 18, 1968. Mr. Hansen thereupon filed a “supplemental” complaint praying that the new lease be held void and praying for other appropriate relief. A hearing was held, and on May 5, 1969, the defendant in this case Judge Darwin Cogs-well filed judgment decreeing

“I.

“That the lease between the defendant County Commissioners and the defendant Turf Club dated July 18, 1968 providing for use of the Kootenai County Fair Grounds by defendant Turf Club for the purpose of conducting horse-racing is violative of Article 8 Section 4, and Article 12 Section 4, of the Constitution of the State of Idaho and is therefore null and void.

“II.

“This Court lacks jurisdiction to make a determination of whether there has been any violation of Chapter 19 of Title 54, Idaho Code, for the reason that any such violation is criminal in nature and such offenses must be defined and prosecuted by the sovereign authority of the State.

“III.

“That all other claims of the plaintiff against the defendants for damages and relief are hereby denied. * * *”

May 5, 1969, Mr. Hansen filed a petition for an order requiring the County Board and the Turf Club to show cause why the Turf Club should not vacate the premises. The order was duly issued and hearing thereon set for May 12, 1969.

May 5, 1969, the Turf Club filed a motion under I.R.C.P. Rule 59(e) to amend the judgment by deleting from it the following paragraph:

“This Court lacks jurisdiction to make a determination of whether there has been any violation of Chapter 19 of Title 54, Idaho Code, for the reason that any such violation is criminal in nature and such offenses must be defined and prosecuted by the sovereign authority of the State.”

May 7, 1969, the Board of County Commissioners filed an almost identical motion to delete the same paragraph from the judgment. The Board also noticed that motion for hearing on May 12.

Thereafter, on May 9, 1969, the Turf Club perfected an appeal from that part of the judgment stating:

“That the lease between the defendant County Commissioners and the defendant Turf Club dated July 18, 1968 providing fo'r use of the Kootenai County Fair Grounds b'y' defendant Tuff Club for the purpose of conducting horsefacing is violative of Article 8 Section 4, and Article 12 Section -4, of the Constitution of the State of Idaho and is therefore null and void.”

By “perfected,” we use the term in the same sense as it is used in the statute concerning proceedings automatically stayed by perfection of appeal. I.C. § 13-211. No supersedeas bond additional to the appeal bond, however, was posted. I.C. §§ 13-202, 13-203.

At 1Ó :05 A.M. on May 12, 1969 the Boárd of County Commissioners filed an appeal from the same portion of judgment as the earlier appeal by the Turf Club.

On May 12, the exact time of which is not ‘shown, a hearing was held on the motions to amend and on the show cause order.

On May 13, Judge Cogswell entered an order reciting that appeals had been taken by the defendant Turf Club arid defendant Board of' County Commissioners and that the court was without jurisdiction to consider motions to alter or amend the judgment but did have jurisdiction to enforce its' original judgment. The order also commanded the Turf Club to vacate the premises within ten days and commanded the .Board of County Commissioners to retake possession of the property within the saüie time period.

May 14, pursuant to I.R.C.P. Rules 62(a), (e), the Board of Commissioners moved in district court for a stay of execution of judgment pending appeal. The motion was noticed for hearing on May 19, 1969. The district court ordered the plaintiff Hansen to show cause on May 19 why • an order should not be made staying execution. No further action, however, has been taken concerning the motion in district court for stay of execution because of • the issuance of the alternative writ of prohibition by this court.

May 15, the Turf Club filed with this court a petition for writ of review and stay of proceedings. The Board of County Commissioners was not made a party to this action, but has appeared as Amicus Curiae.

May 19, the Supreme Court issued the alternative writ, stay of proceedings and show cause order.

May 21, the Turf Club filed an exception to the May 13th order of the district court on the ground that the district court exceeded its jurisdiction in so acting. On the same date, the Turf Club amended its notice of appeal to include in the matter appealed from the following portion of the May 13th order:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the petition of the plaintiff shall be and the same hereby is granted and the defendant Coeur d’Alene Turf Club, Inc., an Idaho Corporation, is hereby ordered to remove themselves from the Kootenai County Fairgrounds and to fully restore possession of said Kootenai County Fairgrounds to the defendant Kootenai County Commissioners on or before ten (10) days following the entry of this Order. “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant Kootenai County Board óf County Commissioners acting by and through Henry J. Meyer, Ralph W. Cope and Don Adams, shall, within said ten (10) days, retake possession of said property forthwith and hold the same for the use and benefit of the public as provided by law.”

The Board filed a similar exception and amended notice of appeal on May 23.

A question has been raised, sua sponte, by a member of this court as to whether or not the appeals of May 9 and May 12 taken respectively by the Turf Club and by the Board of County Commissioners were from a “final” judgment. This problem apparently was recognized by none of the parties, since no reference was made to it by brief or by argument.

The issue, simply stated, is: did the pendency of the two I.R.C.P. Rule 59(e) motions to amend judgment make the May 9 and May 12 appeals premature.

I.R.C.P. Rule 59(e) states:

“Rule 59(e). Motion to alter or amend a judgment. — A motion to alter or amend the judgment shall be served not later than ten (10) days after entry of the judgment.”

I.R.C.P. Rule 59(e) is identical to Fed. Rules Civ.Proc., rule 59(e), 28 U.S.C.

The time for taking an appeal is statutory in Idaho. I.C. § 13-201 states:

“An appeal may be taken to the Supreme Court from a district court.

1. From a final judgment in an action or special proceeding commenced in * a district court * * *; from a judgment rendered on an appeal from an inferior court; from a judgment rendered on an appeal from an order, decision or action of a board of county commissioners; within * sixty days after the entry of such judgment; Provided, however, that the running of the time for appeal is terminated by a timely motion for a new trial; a timely motion for a judgment notwithstanding the verdict, following a timely motion for a directed verdict; a timely motion to amend or make additional findings of fact, whether or not alteration of the judgment is required if the motion is granted, or a timely motion to alter or amend the judgment, and the full time for appeal fixed by this act commences to run and is to be computed from the entry of any order granting or denying any of the above motions.

2. From an order granting or refusing a new trial; from an order granting or denying a motion for a judgment notwithstanding the verdict; from an order granting or dissolving an injunction; from an order refusing to grant or dissolve an injunction; from an order dissolving or refusing to dissolve an attachment; from an order granting or refusing to grant a change of place of trial; from any special order made after final judgment; and from an interlocutory judgment in an action for partition of real property; within * sixty days after the order or interlocutory judgment is made and entered on the minutes of the court, or filed with the clerk. [C.C.P. 1881, § 642'; R.S., § 4807; am. 1895, p. 142, § 1; reen. 1899, p. 273, § 1; reen. R.C., § 4807; am. 1911, ch. Ill, p. 367; am. 1915, ch. 80, § 1, p. 193; reen. C.L., § 4807; C.S., § 7152; I.C.A., § 11-201; am. 1957, ch. 105, § 1, p. 183.]” (Emphasis supplied.)

Fed.Rules Civ.Proc., rule 73(a), 28 U.S.C. (abrogated Dec. 4, 1967, eff. July 1, 1968), though not statutory, was similar to I.C. § 13 — 201 and read in its final version:

“Rule 73. Appeal to a Court of Appeals.

(a) How and When Taken. An appeal permitted by law from a district court to a court of appeals shall be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment appealed from, except that: (1) in any action .in which the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 dajrs from such entry; (2) upon a showing of excusable neglect the district court in any action may extend the time for filing the notice of appeal not exceeding 30 days from the expiration of the original time herein prescribed; (3) if a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which'the first notice of appeal was filed, or within the time otherwise herein prescribed, whichever period last expires; (4): an appeal by permission of a court of appeals obtained under Title 28, Ü.S.C., § 1292(b) shall be taken in accordance with the rules of the court of appeals. The running of the time for appeal is terminated as to all parties by a timely motion made by any party pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in'this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50(b) ; or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59.

Failure of an appellant to take any stép other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. If an appeal has not been docketed, the parties, with the approval of the district court, may dismiss the appeal by stipulation, filed in that court, or that court may dismiss the appeal upon motion and notice by the appellant.” (Emphasis supplied.)

F.R.A.P. Rule 4(a), 28 U.S.C., also not statutory, is similar to I.C. § 13-201:

“Appeals in Civil Cases. In a civil case (including a civil action which involves an admiralty or maritime claim and a proceeding in bankruptcy or a controversy arising therein) in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days of the date of the entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days of such entry. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.

The running of the time for filing a notice of appeal is terminated as to all parties, by a timely motion filed in the district court by any party pursuant to the Federal Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b) ; (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; (4) denying a motion for a new trial under Rule 59. A judgment or order is entered within the meaning of this subdivision when it is entered in the civil docket.

Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.” (Emphasis supplied.)

In Federal jurisdictions, it appears to be the rule that an appeal taken during the pendency of a timely motion, brought under rules 50(b), 52(b), or 59, is premature. The reason given for this holding is that the finality of the judgment temporarily is destroyed by making such a motion. The Federal Courts have not always been uniform in declaring the effect of this specie of “premature” appeal, but often it has been treated as a nullity. See, generally, 3A Barron & Holtzoff, Federal Practice and Procedure (1958) § 1553; 7 Moore’s Federal Practice (2d ed.) ¶ 73.09[4] [6] (now found in Vol. 9, civil appendix, at the paragraph cited) ; 9 Moore’s Federal Practice (2d ed.) ¶¶[ 204.02[2], 204.12, 204.-14.

On the other hand, this court has specifically stated in an unanimous opinion that it has not adopted any Federal rules governing appeals. Dolbeer v. Harten, 91 Idaho 141, 417 P.2d 407 (1967). While federal cases may be of some benefit in reaching a resolution of the issues before us, they are by no means binding authority.

Confining this opinion to the particular facts before us, it is our view that the pendency of the motions to amend judgment, which motions were directed to a singularly gratuitous portion of the judgment having no effect on the rights and liabilities of the parties, did not in any way deprive those same movants of the right to take their appeals of May 9 and 12 from another portion of the judgment. The portion of the judgment from which the appeals were taken was final, and the May 9 and May 12 appeals were not premature. See Scott-Whitaker Co. v. Joyce Properties, Inc., 155 So.2d 661 (Dist.Ct.App., Fla. 1963) ; Frank v. Pioneer Metals, Inc., 114 So.2d 329 (Fla.App. 1959); Holsinger v. City of Fresno, 246 F.2d 263 (9th Cir. 1957).

To reiterate, when:

1. A motion to amend judgment is made in the trial court, and;

2. It is patent on the face of the motion that the lower court’s ruling thereon could not possibly change the rights and liabilities of the parties under the judgment, and;

3. During the pendency of the motion to amend judgment, that same party appeals from a particular part of the judgment, and;

4. The portion of the judgment appealed from has absolutely no connection with the portion sought to be amended; then the appeal will be considered as from a final judgment and not premature. As to any other factual situation, where an appeal is taken during the pendency of a timely-filed motion mentioned in I.C. § 13-201, we expressly reserve decision on the question of prematurity until the issue is properly brought before this court.

The next issue is whether the mere filing of an appeal by the Turf Club, without a supersedeas bond, stayed further proceedings against the Turf Club in the district court. Whether a stay results automatically from the mere perfection of appeal or whether a supersedeas bond is required depends upon the nature of the judgment from which the appeal is taken. I.C. § 13-211 provides:

“In cases not provided for in sections 13-204 [money judgment], 13-205 [judgment in replevin], 13-206 [judgment in specific performance] and 13-207 [judgment in ejectment], the perfecting of an appeal by giving the undertaking, or making the deposit mentioned in section 13-203, stays proceedings in the court below upon the judgment or the order appealed from * *

The judgment appealed from on May 9 merely declared the invalidity of the lease. It was not one of those judgments or orders listed in I.C. §§ 13-204 — 13-207. Under the terms of I.C. § 13-211, the filing of notice of appeal and undertaking on appeal automatically stayed proceedings on May 9 insofar as they related to the Turf Club, and no supersedeas bond was required. Of course, had the May 13 order in ejectment been filed prior to perfection of appeal, then a supersedeas bond would have been required to stay proceedings. I. C. § 13-207. Such, however, was not the case.

Once the proceedings are stayed by appeal, the district court ordinarily is divested of jurisdiction to act in any manner (with relation to the rights and liabilities of an appellant) except to act in aid of and not inconsistent with the appeal. See Dolbeer v. Harten, supra; Richardson v. Bohney, 18 Idaho 328, 109 P. 727 (1910); 4 Am.Jur.2d, Appeal and Error § 352.

The action taken by the defendant dis ■ trict judge was not in aid of appeal, but was inconsistent with the appeal.

The Supreme Court has jurisdiction to issue extraordinary writs in aid of its appellate jurisdiction. Idaho Const., art. .5, ■§ 9; I.R.C.P. Rule 62(f); Brookshier v. Hyatt, 91 Idaho 305, 420 P.2d 788 (1966). A writ of prohibition is available to arrest the proceedings of - any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. I.C. § 7-401. The writ may issue when there is not a plain, speedy and adequate remedy in the ordinary course of law. I.C. § 7-402. Appeal is a plain, speedy and adequate remedy at law, in the absence of a showing of exceptional circumstances or of the inadequacy of an appeal to protect existing rights. Smith v. Young, 71 Idaho 31, 225 P.2d 466 (1950) ; accord, Clearwater Timber Protective Association v. District Court of Second Judicial Dist., In and For Clearwater County, S4 Idaho 129, 369 P.2d 571 (1962). The order of ejectment is an appealable order. I.C. §. 13-201. The facts before us, however, indicate that appeal is not sufficiently speedy and adequate to protect the Turf Club under the circumstances of this case. If, the order of ejectment is permitted to operate .pending appeal,- the plaintiff will be unable to conduct its business during the racing season. It has expended large sums. of. money in reliance of the profits to be -gained in -the business. The moneys expended- cannot be recovered. The operation of the racecourse apparently does not interfere with the usual use of the property. The property has not been wasted, but rather enhanced, by the acts of the Turf Club. Once the time of the racing season has passed, it has passed forever, and the opportunity for conducting the races during 1969 cannot be revived. It might well be that appeal from the order of ejectment a'nd filing of a supersedeas bond would delay the effect of the order of ejectment, particularly in view of I.R.C.P. Rules 62(d), (f) which give the Supreme Court the right on appeal to grant a stay of proceedings to enforce a judgment. However, .if the district court had not acted in excess of its jurisdiction in the first instance there would have been no need of further action. Furthermore, in the interest of saving time and effort of all of the parties concerned, and bringing an end to additional litigation and controversy, this court will issue the writ since this court is constitutionally authorized to issue any writ necessary or proper to the complete exercise of its appellate jurisdiction. Idaho Const., art. 5, § 9; I.R.C.P. Rule 62(f); Brook-shier v, Hyatt, supra.

There is also adequate security to protect the plaintiff in the original suit if he is successful on appeal since the petitioner has placed over $100,000.00 worth of improvements on the Fairgrounds out of which it is willing to reimburse the county for any damage sustained in the event it loses its appeal.

For these reasons, the alternative writ of prohibition will be made permanent pending determination of the appeal on its merits. See also Ruby v. Secretary of United States Navy, 365 F.2d 385 (9th Cir. 1966), cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967); Borgmeier v. Stone, 233 F.2d 818 (7th Cir. 1956).

Concerning that part of the order of ejectment relating to the duty of the Board of County Commissioners, exactly the same reasoning applies. Furthermore, to require the Board to retake possession of the property, in accordance with the order of ejectment, would adversely affect the existing rights of the Turf Club just as severely as would permitting the order of ejectment to act directly against the Turf Club. In exercise of and in protection of the Supreme Court’s appellate jurisdiction, the operation of the order as it affects the Board of County Commissioners also is stayed. Idaho Const., art. 5, § 9; I.R.C.P. Rule 62(f); Brookshier v. Hyatt, supra. No security is required from the Board. I.R.C.P. Rule 62(e).

So that the status quo be preserved during the pendency of the appeal, it is ordered that all proceedings in Kootenai County Case No. 22904 be and are stayed, and that the District Court of the First Judicial District, State of Idaho, in and for Kootenai County, and Darwin D. Cogwell, one of the judges thereof, desist and refrain from any further proceedings in the said action, or in enforcing the order of May 13, 1969, except for such proceedings as may be in furtherance of the appeal or appeals therefrom, until such time as this Court may render a decision on the merits thereof, or until such time as this Court may order otherwise.

No costs allowed.

McFADDEN, C. J., and SPEAR, J., concur.