Syth v. Parke

823 P.2d 766, 121 Idaho 162, 1991 Ida. LEXIS 185

Opinions

ON REHEARING

BAKES, Chief Justice.

By order dated July 29, 1991, this Court granted the Syths’ petition for rehearing. The Court received additional briefing and heard oral argument on the petition on October 7, 1991. Appellants Syths’ petition for rehearing asserts primarily that our original opinion was in error for failure to recognize that, while appellants’ original appeal was pending, the Syths filed a Motion to Suspend the Appeal on October 13, 1989, requesting this Court to stay further action on the appeal “upon the grounds and for the reasons that the appeal may be mooted by the fact that the Order Granting a New Trial is currently under advisement by way of the trial court’s own motion and Appellants are presently waiting for the Court’s decision.” The petition for rehearing points out that on November 13, 1989, the Clerk of this Court issued an order granting the motion to suspend the appeal for a period of sixty days. Accordingly, the appellants argue that the effect of that order was to return jurisdiction to the district court to rule on its own sua sponte motion to reconsider its prior order granting a new trial in this matter.

Motions for suspension of appeals are permitted under I.A.R. 13.2, which provides that, “An order suspending an appeal will state the duration and any conditions of such suspension, which may be terminated or extended by further order of the court. ...."¹The November 13, 1989, order issued by the Clerk suspended the appeal for sixty days, but did not set out any other “conditions of such suspension.”

I.A.R. 13.3, on the other hand, is the rule authorizing “a case to be remanded to the district court or to the administrative agency to take further action as designated in the order of remand.” The effect of such a remand under I.A.R. 13.3 is that “the district court or administrative agency shall have jurisdiction to take all actions necessary to fulfill the requirements of the order of remand.”²

The motion filed on October 13, 1989, by the appellants Syths did not seek a remand to give the district court “jurisdiction to take all actions necessary to fulfill the requirements of the order of remand” under I.A.R. 13.3. The appellants Syths’ motion, to which respondents did not object, and which was granted by an order issued by the Clerk of this Court, only stayed the processing of the appeal, i.e., the preparation of the clerk’s and reporter’s transcripts, and the briefing by the parties. The order did not remand the case to the district court “to fulfill the requirements of the order of remand.” Therefore, the order issued by the Clerk of the Court on November 13, 1989, did not reinvest the trial court with jurisdiction to rule upon its own sua sponte motion to reconsider its prior order granting a new trial.

Furthermore, even if an order had issued from this Court under I.A.R. 13.3, remanding the case to the district court so it could rule upon its own sua sponte motion for reconsideration of its prior order granting a new trial, there is no authority for a district court to reconsider an order granting a new trial, as our opinion issued in this case points out. Spivey v. District Court, 37 Idaho 774, 219 P. 203 (1923) (“[T]he clear intent of our statutes is that an order either granting or denying a new trial is final and the only remedy is by appeal.”); I.R.C.P. 11(a)(2)(B) (“[Tjhere shall be no motion for reconsideration of an order of the trial court entered on any motion [granting a new trial] filed under Rules ... 59(a)____”). Accordingly, we adhere to our original opinion in this matter.

After the issuance of our opinion in this matter on May 23,1991,121 Idaho 156, 823 P.2d 760, the Syths filed another notice of appeal (S.Ct. No. 19367) on June 10, 1991, appealing “from the Order Granting a New Trial for Defendants entered in the above entitled action on the 1st day of August, 1989.” On June 13, 1991, the Clerk of the Court issued an order conditionally dismissing the second notice of appeal in No. 19367 on the ground that “[i]t appears that the NOTICE OF APPEAL was not filed within forty-two (42) days from the date of entry of the final Order entered August 1, 1989____” The appellants Syths objected to the conditional order of dismissal, and this Court held oral argument on the objection on October 7, 1991. We have reviewed the record and conclude that the second notice of appeal, No. 19367, was not timely under I.A.R. 14, which requires that the notice of appeal be filed within forty-two days of the filing of the judgment or post trial order appealed from. Nearly two years elapsed from the filing of the order granting a new trial on August 1, 1989, to the filing of the notice of appeal, S.Ct. No. 19367. Accordingly, the notice of appeal in No. 19367 must be dismissed because it was not timely filed. The timely filing of a notice of appeal is jurisdictional. I.A.R. 21.

Costs on rehearing to respondent. No attorney fees allowed.

JOHNSON and McDEYITT, JJ„ concur.

1 . Rule 13.2. Suspension of appeal.—Proceedings in an appeal before the Supreme Court may be suspended only by order of the Supreme Court on motion showing good cause. An order suspending an appeal will state the duration and any conditions of such suspension, which may be terminated or extended by further order of the court upon application of any party or upon the initiative of the Court.

2 . Rule 13.3. Temporary remand to district court or administrative agency.—(a) Remand by the Court. At any time before the issuance of an opinion, the Supreme Court may on its own motion, or on motion of any party showing good cause, order a case to be remanded to the district court or to the administrative agency to take further action as designated in the order of remand.

(b) Effect of Remand. During a remand to the district court or administrative agency the appeal shall remain pending in the Supreme Court, but the district court or administrative agency shall have jurisdiction to take all actions necessary to fulfill the requirements of the order of remand.