Fleming v. Bithell , 56 Idaho 261 ( 1935 )

I dissent from that part of the opinion which makes use of what is therein referred to as a memorandum decision, which consists of two letters written by the trial judge to the attorneys in the case prior to making findings of fact, conclusions of law and decree.

The law does not require district judges to write such letters nor to render so called memorandum decisions and they have no place in the record on appeal, nor should they be taken into consideration by us in rendering our decisions affirming, modifying or reversing judgments or orders appealed from.

If the decision of the district judge, consisting of the findings and conclusions, follows the law and is supported by the evidence it should be upheld and the judgment should be affirmed regardless of how unsound the theories may have been which prompted him to render it. If his decision violates the law or is not, supported by the evidence the judgment should be reversed although he may have expressed sound theories in letters to counsel prior to making his findings, conclusions and entering his judgment.

This court has not been entirely silent on this subject. InNorth Robinson Dean Co. v. Strong, 25 Idaho 721, 730,139 P. 847, 850, it said:

"There is also in the record a memorandum of decision of Judge Budge, dated July 25, 1913, and filed on the same date. This decision of Judge Budge has no place in this record and does not bind this court in any way or control our consideration of the case, and it no doubt was his opinion addressed to the attorneys after the conclusion of the trial in the district court and the filing and recording of the verdict of the jury and the judgment of the trial court, which was dated the 30th day of October, 1912. The overruling of the motion for a new trial was dated August 26, 1913; this was after Judge Budge had rendered his decision on the 25th of July."

In Corker v. Cowen, 30 Idaho 213, 215, 164 P. 85, 86, we said:

"As to those matters referred to in the first paragraph of appellant's assignment of errors this court is without jurisdiction, for the reason that the errors there assigned have reference to the opinion of the trial court, which though incorporated into the record, is not properly a part thereof under sec 4818, Rev. Codes, as amended by Sess. Laws, 1911, p. 375, which specifies the contents of the record on appeal. (Graham v.Linehan, 1 Idaho 780; Williams v. Boise Basin Min. etc. Co.,11 Idaho 233, 81 P. 646; Taylor v. McCormick, 7 Idaho 524,64 P. 239; Stewart Mining Co. v. Ontario Mining Co., 23 Idaho 724,132 P. 787; Smith v. Faris-Kesl Construction Co., 27 Idaho 407,150 P. 25.) It is not within the province of this court on an appeal to question the soundness of the trial court's reasons in giving its decision, for they cannot affect the judgment itself, however enlightening they may be to counsel contemplating an appeal. (Pennsylvania Co. v. Versten, 140 Ill. 637,30 N.E. 540, 15 L.R.A. 798.)"

In Baldwin v. Singer Sewing Machine Co., 48 Idaho 596,284 P. 1027, the first section of the syllabus, which correctly reflects the part of the opinion having to do with this subject, is as follows:

"Written opinion of trial judge constitutes no part of the record and is not before supreme court on appeal."

Although the letters of the district judge to the attorneys, referred to as a memorandum decision, were bound with the transcript there is no authority in law for so doing and they are no part of the record on appeal prescribed by statute. One of these letters shows quite clearly, as pointed out by the majority, the trial judge was of the opinion the commitment of Bithell to the hospital for the insane, together with the fact that he had not been certified or adjudged to be cured or restored to his reason as provided for in I. C. A., sec.31-108, showed conclusively his incapacity to contract and rendered the mortgage void. The findings of fact and conclusions of law, which the trial judge correctly states to be the decision of the court, do not disclose that the finding that Bithell was insane and incompetent to contract was based solely on the adjudication in the insanity proceeding. In making use of the so-called memorandum decision the majority has gone outside the record for justification of a reversal of the judgment.

When findings of fact are insufficient the case should be remanded with instructions to make further findings. Those made should not be supplemented by recourse to unauthorized observations by the trial judge.

ON PETITION FOR REHEARING. (January 13, 1936.)