Summary
In Clear v. Marvin, 83 Idaho 399, 363 P.2d 355, 356 (1961), an action for wrongful death was involved wherein it was alleged that the defendant's negligence was the cause of the death of the plaintiff's minor daughter.
Summary of this case from Wheatland Irrigation District v. McGuireOpinion
No. 9050.
July 5, 1961.
APPEAL FROM DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, LATAH COUNTY, JACK McQUADE, J.
Martinson Gale, Moscow, Hawkins Miller, Coeur d'Alene, for appellant.
McCarthy Adams, Lewiston, Sharp Bishop, Clarkston, Wash., for respondent.
Section 13-201, Idaho Code, provides for appeals from final judgments. Rule 54(a) of the Idaho Rules of Civil Procedure defines a judgment as including any decree or order from which an appeal lies.
In Alexander v. Bates, 127 Ala. 328, 28 So. 415, the Alabama Supreme Court held that the finality of a judgment is not determined by the stage of the suit at the time it is rendered, but upon whether it concludes a party is imposing on him a liberty or depriving him of a right. The appellant contends that he has by the trial court been deprived of his right to trial by jury under Article I, Section 7, of the Constitution of the State of Idaho, and a ruling by this Court is necessary for clarity of the procedures in the State of Idaho that a litigant may be secure in his rights.
Trial court's order limiting issues to be tried is not a "final judgment" and therefore is not appealable, but error, if any, in such order may be reviewed upon appeal from the final judgment. Maybury v. City of Seattle, 53 Wn.2d 716, 336 P.2d 878, at page 879.
No interlocutory judgment or decree is recognized as final or appealable in this state, except an interlocutory judgment in an action for partition of real property. Newell v. Newell, 77 Idaho 355, at page 362, 293 P.2d 663.
Plaintiff (respondent) brought this action to recover damages from defendant (appellant) for the wrongful death of plaintiff's nine-year-old daughter, alleged to have been caused by the negligence of the defendant. Upon plaintiff's motion for a summary judgment the trial court found that the child's death was the result of gross negligence on the part of defendant; that the defendant was liable therefor as a matter of law; and that there was a genuine issue as to the amount of damages which the plaintiff is entitled to recover. Judgment was accordingly entered determining defendant's liability and that the only issue remaining to be resolved is the amount of plaintiff's damage.
Defendant brought this appeal from the judgment. On defendant's motion the district court stayed further proceedings in that court, pending appeal.
The cause is now before this court on plaintiff's motion to dismiss the appeal. The issue is governed by I.R.C.P., Rule 56(c), which is as follows:
" Motion for summary judgment and proceedings thereon. — The motion shall be served at least ten (10) days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Such judgment, when appropriate, may be rendered for or against any party to the action."
Idaho Code, § 13-201, enumerates the judgments and orders of the district court from which an appeal may be taken. The only interlocutory judgment from which an appeal is allowed by that section is one entered in an action for the partition of real property.
The judgment here entered has the character of finality, but only as to a portion of the issues raised by the pleadings. It is a judgment declared by the rule to be interlocutory in character.
Negligence and contributory negligence are issues of fact presented by the pleadings. The correctness of the court's ruling as to such issues may be seriously questioned. Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657. This court may determine such question upon an appeal from the final judgment, but not upon this attempted appeal from the interlocutory judgment. Maybury v. City of Seattle, 53 Wn.2d 716, 336 P.2d 878; Hontz v. White, Wash., 348 P.2d 420; Owens v. Kuro, Wash., 354 P.2d 696; 3 Barron Holtzoff, §§ 1231, 1241.
Appeal dismissed.
McQUADE, J., did not participate.