Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 357, 358; R.S., R.C., & C.L., § 4365, 4366; C.S., §§ 6833, 6834; I.C.A.,§§ 7-101, 7-102, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 7(c), 12(b) to 12(d).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 359; R.S., R.C., & C.L., § 4367; C.S., § 6835; I.C.A.,§ 7-103, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 12(b) to 12(c).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 360; R.S., R.C., & C.L., § 4368; C.S., § 6836; I.C.A.,§ 7-104, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 12(c), 12(d), 53(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 361; R.S., R.C., & C.L., § 4369; C.S., § 6837; I.C.A.,§ 7-105, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 38(a) to 38(d), 39(a) to 39(c), 53(b).

Compiler’s Notes.

This section, which comprised C.S., § 6837A, as added by 1931, ch. 10, § 1, p. 14; I.C.A.,§ 7-106, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 7(c), 12(b), 42(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 362; R.S., R.C., & C.L., § 4370; C.S., § 6838; I.C.A.,§ 7-107, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 40(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 363; R.S., R.C., & C.L., § 4371; C.S., § 6839; I.C.A.,§ 7-108, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 40(b), 55(a)(1).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 364; R.S., R.C., & C.L., § 4372; C.S., § 6840; I.C.A.,§ 7-109, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 56(f).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 365; R.S., R.C., & C.L., § 4373; C.S., § 6841; I.C.A.,§ 7-110, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. P. 56(f).

Compiler’s Notes.

The words “this act” refer to S.L. 1976, ch. 275 which is compiled as this section.

Effective Dates.

Section 2 of S.L. 1976, ch. 275 declared an emergency. Approved March 31, 1976.

Attempts to Correct.

Once this section has been violated, attempts to correct it only reemphasize the improper influences raised in the minds of jurors. Robertson v. Richards, 115 Idaho 628, 769 P.2d 505 (1989).

Violation Not Tolerated.

Cited

An attorney’s intentional, inflammatory, and unfair tactic to violate the statute and confuse and unfairly prejudice the jury should not be tolerated; such tactics require the firm application of this section which requires a mistrial and leaves no discretion to the trial court judge. Robertson v. Richards, 115 Idaho 628, 769 P.2d 505 (1989). Cited Yacht Club Sales & Serv., Inc. v. First Nat’l Bank, 101 Idaho 852, 623 P.2d 464 (1980); Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983); Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 366; R.S., R.C., & C.L., § 4378; C.S., § 6842; I.C.A.,§ 7-201, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 47(e), 47(g).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 367; R.S., R.C., & C.L., § 4379; C.S., § 6843; I.C.A.,§ 7-202, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho R. Civ. P. 47(j), 47(k).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 368; R.S., R.C., & C.L., § 4380; C.S., § 6844; I.C.A.,§ 7-203; am. 1933, ch. 61, § 1, p. 98, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 47(h).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 369; R.S., R.C., & C.L., § 4381; C.S., § 6845; I.C.A.,§ 7-204, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 47(i).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 370; R.S., R.C., & C.L., § 4383; C.S., § 6846; I.C.A.,§ 7-205, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 47(m).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 371; R.S., § 4383; am. 1907, p. 166, § 1; reen. R.C. & C.L., § 4383; C.S., § 6847; I.C.A.,§ 7-206, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 51(a)(1).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 372; R.S., R.C., & C.L., § 4384; C.S., § 6848; I.C.A.,§ 7-207, was repealed by S. L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 51(a)(1).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 373; R.S., R.C., & C.L., § 4385; C.S., § 6849; I.C.A.,§ 7-208, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 51(a)(1), 51(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 374; R.S., R.C., & C.L., § 4386; C.S., § 6850; I.C.A.,§ 7-209, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 43(f).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 375; R.S., § 4387; am. 1901, p. 216, § 1; R.C. & C.L., § 4387; C.S., § 6851; I.C.A.,§ 7-210, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 47(n).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 376; R.S., R.C., & C.L., § 4388; C.S., § 6852; I.C.A.,§ 7-211, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 47(o), 47(p).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 377; R.S., R.C., & C.L., § 4389; C.S., § 6853; I.C.A.,§ 7-212, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 378; R.S., R.C., & C.L., § 4390; C.S., § 6854; I.C.A.,§ 7-213, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 51(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 379; R.S., R.C., & C.L., § 4391; C.S., § 6855; I.C.A.,§ 7-214, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 47( l ).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 380; R.S., R.C., & C.L., § 4392; C.S., § 6856; I.C.A.,§ 7-215, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 381; R.S., R.C., & C.L., § 4393; C.S., § 6857; I.C.A.,§ 7-216, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 48(b), 77(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 382; R.S., R.C., & C.L., § 4392; C.S., § 6858; I.C.A.,§ 7-217, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 48(b).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 383-386; R.S., R.C., & C.L.,§§ 4395-4398; C.S.,§§ 6859-6862; I.C.A.,§§ 7-218 — 7-221, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 13(c), 49(a), 49(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 387; R.S., R.C., & C.L., § 4399; C.S., § 6863; I.C.A.,§ 7-222, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 49(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 388; R.S., R.C., & C.L., § 4400; C.S., § 6864; I.C.A.,§ 7-223, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

This section, which comprised C.S., § 6864A, as added by 1931, ch. 27, § 1, p. 55; I.C.A.,§ 7-224, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. P. 50(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 389; R.S., R.C., & C.L., § 4405; C.S., § 6865; I.C.A.,§ 7-301, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 38(b), 38(d).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 390; R.S., R.C., & C.L., § 4406; C.S., § 6866; I.C.A.,§ 7-302, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 52(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 391; R.S., R.C., & C.L., § 4407; C.S., § 6867; I.C.A.,§ 7-303, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 52(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 392; R.S., R.C., & C.L., § 4408; C.S., § 6868; I.C.A.,§ 7-304, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 52(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 393; R.S., R.C., & C.L., § 4409; C.S., § 6869; I.C.A.,§ 7-305, was repealed by S.L. 1975, ch. 242, § 1. For present rules, see Idaho R. Civ. P. 52(a), 54(c).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 394-401; R.S., R.C., & C.L.,§§ 4414-4421; C.S.,§§ 6870-6877; I.C.A.,§§ 7-401 — 7-408, were repealed by S.L. 1975, ch. 242, § 1. For present rules, see Idaho Civil Procedure Rules 53(a)(1) to 53(e)(5).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 403, 404; R.S., R.C., & C.L.,§§ 4426-4428; am. 1911, ch. 227, § 1, p. 781; reen. C.L., § 4427; C.S.,§§ 6878-6880; am. 1925, ch. 9, § 1, p. 11; I.C.A.,§§ 7-501 — 7-503; am. 1947, ch. 109, § 1, p. 225, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 46.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 405-408; R.S., R.C., & C.L.,§§ 4429-4432; C.S.,§§ 6881-6884; I.C.A.,§§ 7-504 — 7-507, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 46, 83(a) to 83(y).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 409; R.S., R.C., & C.L., § 4433; C.S., § 6885; I.C.A.,§ 7-508, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. P. 63.

Compiler’s Notes.

This section, which comprised R.C., § 4434, as added by 1911, ch. 119, p. 379; reen. C.L., § 4434; C.S., § 6886; am. 1925, ch. 111, § 3, p. 157; am. 1927, ch. 33, § 1, p. 42; I.C.A.,§ 7-509, was repealed by S.L. 1977, ch. 170, § 3.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 410; R.S., R.C., & C.L., § 4438; C.S., § 6887; I.C.A.,§ 7-601, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 59(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 411; R.S., R.C., & C.L., § 4439; C.S., § 6888; am. 1931, ch. 12, § 1, p. 15; I.C.A.,§ 7-602, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 50(b), 50(c), 59(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 412; R.S. & R.C., § 4440; am. 1911, ch. 118, § 1, p. 337; reen. C. L., § 4440; C.S., § 6889; I.C.A.,§ 7-603, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 59(c).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 413; R.S. & R.C., § 4441; am. 1911, ch. 118, § 2, p. 377; reen. C. L., § 4441; am. 1919, ch. 108, § 1, p. 390; C.S. § 6890; I.C.A.,§ 7-604, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 5(a), 50(c), 59(b), 59(c).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 414; R.S. & R.C., § 4442; am. 1881, ch. 118, § 3, p. 378; reen. C. L., § 4442; C.S., § 6891; am. 1931, ch. 9, § 1, p. 13; I.C.A.,§ 7-605, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 59(a), 59(b), 59(c).

Compiler’s Notes.

This section, which comprised C.S., § 6891A, as added by 1931, ch. 28, § 1, p. 56; I.C.A.,§ 7-606, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 50(c), 52(b), 59(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 415; R.S. & R.C., § 4443; am. 1911, ch. 118, § 4, p. 378; reen. C.L., § 4443; C.S., § 6892; I.C.A.,§ 7-607, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 416; R.S. & R.C., § 4444; am. 1911, ch. 118, § 5, p. 378; reen. C. L., § 4444; C.S., § 6893; I.C.A.,§ 7-608, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 59(d).

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 4445; C.S., § 6894; I.C.A.,§ 7-609, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. P. 77(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 350; R.S., R.C., & C.L., § 4350; C.S., § 6826; I.C.A.,§ 7-701, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 54(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 351; R.S., R.C., & C.L., § 4351; C.S., § 6827; I.C.A.,§ 7-702, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 54(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 352; R.S., R.C., & C.L., § 4352; C.S., § 6828; I.C.A.,§ 7-703, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 54(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 353; R.S., R.C., & C.L., § 4353; C.S., § 6829; I.C.A.,§ 7-704, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 54(b), 54(c).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 354; R.S., R.C., & C.L., § 4354; C.S., § 6830; am. 1931, ch. 13, § 1, p. 16; I.C.A.,§ 7-705, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 13(i), 23(c), 41(a)(1) to 41(d), 50(a), 73.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 355; R.S., R.C., & C.L., § 4355; C.S., § 6831; I.C.A.,§ 7-706, was repealed by S.L. 1975, ch. 242, § 1. For present rules, see Idaho Civil Procedure Rules 41(a)(2), 41(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 356; R.S., R.C., & C.L., § 4360; C.S., § 6832; am. 1921, ch. 162, § 1, p. 358; I.C.A.,§ 7-801, was repealed by S.L. 1975, ch. 242, § 1. For present rules, see Idaho Civil Procedure Rules 54(c), 55(a)(1) to 55(b)(2), 55(d).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, § 776; R.S., R.C., & C.L., § 5060; C.S., § 7301; I.C.A.,§ 7-901, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 3(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 779; R.S., R.C., & C.L., § 5063; C.S., § 7304; I.C.A.,§ 7-904, was repealed by S.L. 1969, ch. 111, § 24, effective at 12:01 a.m. on January 11, 1971, and by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 780-782; R.S., R.C., & C.L.,§§ 5068-5070; C.S.,§§ 7305-7307; I.C.A.,§§ 7-1001 — 7-1003, were repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. P. 3(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 418; R.S., R.C., & C.L., § 4450; C.S., § 6895; I.C.A.,§ 7-1101, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 58(a), 62(a) to 62(g).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 419; R.S., R.C., & C.L., § 4451; C.S., § 6896; I.C.A.,§ 7-1102, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 420; R.S., R.C., & C.L., § 4452; C.S., § 6897; I.C.A.,§ 7-1103, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 13(c), 54(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 421; R.S., R.C., & C.L., § 4453; C.S., § 6898; I.C.A.,§ 7-1104, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 58(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 422; R.S. & R.C., § 4454; am. 1917, ch. 110, § 1, p. 389; reen. C.L., § 4454; C.S., § 6899; I.C.A.,§ 7-1105, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 58(a).

Appeal.

The district court trying de novo objections to a guardian’s sale of real estate on appeal from the probate court could enter findings of fact, conclusions of law, and judgment notwithstanding the death of the ward after the trial and before such entry. Knudson v. Bank of Idaho, 91 Idaho 923, 435 P.2d 348 (1967).

Denial of Default Judgment.

Since bank, seeking to foreclose on mortgage securing promissory note, did not move for default judgment until after the death of mortgagee and twice before trial the district judge gave bank the opportunity to substitute a representative of the estate, the court did not abuse its discretion in denying motion for default judgment. First Idaho Corp. v. Davis, 867 F.2d 1241 (9th Cir. 1989).

Judgment Not Entered.

Under this section, the court could not enter judgment against a deceased party when no substitution of parties was made and a verdict or decision has not been reached by the court. First Idaho Corp. v. Davis, 867 F.2d 1241 (9th Cir. 1989).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 424; R.S. & R.C., § 4456; am. 1909, p. 76, § 1; reen. C.L., § 4456; C.S., § 6901; am. 1921, ch. 152, § 1, p. 344; am. 1931, ch. 173, § 1, p. 288; I.C.A.,§ 7-1107, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 58(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 425; R.S. & R.C., § 4457; am. 1913, ch. 22, § 1, p. 91; reen. C.L., § 4457; C.S., § 6902; am. 1929, ch. 51, § 1, p. 70; I.C.A.,§ 7-1108; am. 1949, ch. 146, § 1, p. 301; am. 1957, ch. 236, § 1, p. 566, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 58(a).

Compiler’s Notes.

This section, which comprised C.S., § 6902A, as added by 1929, ch. 51, § 2, p. 70; I.C.A.,§ 7-1109, was repealed by S.L. 1955, ch. 45, § 2, p. 63.

Conveyance of Exempt Property.

Contention that the transfer of the homestead property by entryman and his voluntary petition for bankruptcy is a fraud upon his creditors is without merit, since a creditor who complains must show that the property was amenable to his debt; since the homestead property was exempt from execution before the transfer, then a creditor who could not reach it was not by such transfer deprived of any rights. St. Marie v. Chester B. Brown Co., 84 Idaho 216, 370 P.2d 195 (1962).

Deficiency Judgment.

If a deficiency judgment is obtained in due course by a mortgagee pursuant to§ 6-108, that deficiency judgment would be subject to the recording provisions of this section; in this way, the law protects property not subject to the mortgage unless the value of the mortgaged property is exhausted. Federal Land Bank v. Parsons, 118 Idaho 324, 796 P.2d 533 (Ct. App. 1990).

Failure to Record.

Homestead Exemption.

Where the record shows that no request was made nor fees tendered to the recorder to have an abstract, transcript or copy of the judgment filed with the recorder at the time it was entered in the judgment book, it was the determination of the court that no lien was created by the judgment superior to the homestead declaration since the judgment had not been tendered with fees to recorder of the county for entry into the reception book before the declaration of homestead was filed for record. Messenger v. Burns, 86 Idaho 26, 382 P.2d 913 (1963). Homestead Exemption.

Where creditor recorded a judgment in the county recorder’s office in July 2010, a judgment lien in favor of the creditor would attach to all of debtor’s after-acquired property in that county until the judgment is satisfied or lapses. When debtor purchased a home in the county in September 2010, creditor’s lien affixed to the property immediately. Thus, although debtor filed a homestead declaration two days later, the property was not exempt from execution because of the priority of the judgment lien. In re Bailey, 2011 Bankr. LEXIS 1528 (Bankr. D. Idaho Apr. 26, 2011).

Insufficiency in Writ of Execution.

Where a magistrate court, having before it a copy of a foreign judgment which had been filed in that court and recorded in the recorder’s office, issued a writ of execution with regard to said judgment, and where said magistrate court also had a copy of the requisite affidavit, a copy of the notice to the judgment creditors, and a copy of the clerk’s certificate indicating that the judgment had been recorded, and where the judgment debtors were not a party to a subsequent action concerning the issuance of said writ, with regard to that subsequent action, an irregularity in the writ or its issuance was not sufficient to render it void. Westmark Fed. Credit Union v. Smith, 116 Idaho 474, 776 P.2d 1193 (1989).

Interest in Executory Contract.

A vendee’s interest under an executory contract to purchase real property — where the contract or a notice containing the names of the contracting parties and the description of the property is recorded — is included within the meaning of “all real property of the judgment debtor” against which a recorded judgment imposes a lien under this section. Fulton v. Duro, 107 Idaho 240, 687 P.2d 1367 (Ct. App. 1984), aff’d, 108 Idaho 392, 700 P.2d 14 (1985).

Recording a judgment does impose a judgment lien on a vendee’s interest under an executory land sale contract where the contract, or a notice thereof containing the names of the parties and a description of the property, has been recorded. Fulton v. Duro, 107 Idaho 240, 687 P.2d 1367 (Ct. App. 1984), aff’d, 108 Idaho 392, 700 P.2d 14 (1985).

A vendee’s interest in a contract is an interest in real property within the meaning of this section, against which a recorded judgment does impose a lien if the contract has been duly recorded or where a “notice” of the contract — containing the names of the contracting parties and the legal description of the property — has been recorded. Fulton v. Duro, 108 Idaho 392, 700 P.2d 14 (1985).

Judgment.

Default judgments, which only partially adjudicate the controversy in a multi-party case, are not “judgments” for purposes of considering the time for renewal under§ 10-1111 and this section, because, by their nature, they are not final determinations of the rights and obligations of all parties in the dispute. Bach v. Dawson, 152 Idaho 237, 268 P.3d 1189 (Ct. App. 2012).

Lien by Operation of Law.

The lien of judgment attached to real property by operation of law and not by reason of the voluntary action of the judgment debtor. St. Marie v. Chester B. Brown Co., 84 Idaho 216, 370 P.2d 195 (1962). Idaho law operated to create a judicial lien on debtor’s property in favor of the creditor upon the domestication and recordation of the final, unappealed California order. In re Hyatt, 2011 Bankr. LEXIS 4849 (Bankr. D. Idaho Dec. 9, 2011).

This section does not mandate recording for a judgment to be valid. But from the time of recording, the judgment becomes a lien upon all real property of the judgment debtor in the county, not exempt from execution, owned by him at the time or acquired afterwards at any time prior to the expiration of the lien. Smith v. Smith, 164 Idaho 46, 423 P.3d 998 (2018).

Limitation.

Pursuant to section 5 of S.L. 2011, ch. 104, as amended by S.L. 2011, ch. 331, § 1, the bureau of child support of the Idaho department of health and welfare could file a motion to renew a 1998 judgment against a parent for unpaid child support in August 2011, even though, before the legislative change, any action to collect unpaid child support arrearages would have had to have been commenced by April 2007, five years after child reached the age of majority. Peterson v. Peterson, 156 Idaho 85, 320 P.3d 1244 (2014).

Mortgage.

A mortgage is not real property subject to a judgment lien. McKay v. Walker, 160 Idaho 148, 369 P.3d 926 (2016).

Nature of Lien.

A judgment lien is purely a creature of statute and does not exist in the body of our common law; therefore, the respective rights of parties to a suit must be adjudicated within the framework of the applicable statute. Messenger v. Burns, 86 Idaho 26, 382 P.2d 913 (1963).

The lien of a judgment, recorded after the sale of real estate on instalment contract but before completion of the payments under such contract and conveyance of the real estate pursuant thereto, attached to paid-in purchase money being held in escrow. First Sec. Bank v. Rogers, 91 Idaho 654, 429 P.2d 386 (1967).

Where judgment liens of two creditors attached to property at recordation, in 1983 and 1984, as debtor owned no interest in property before liens attached, the fixing of the liens could not be avoided even though debtor’s subsequent divorce decree created sole and separate ownership interest to property in favor of debtor. In re Mingo, 189 Bankr. 514 (Bankr. D. Idaho 1995).

Perfection of Foreign Judgment.

A foreign judgment may be perfected in Idaho by the filing of a duly authenticated copy of the judgment in the office of the clerk of a court, pursuant to§ 10-1303, together with an affidavit containing the name and address of the judgment debtor and of the judgment creditor, and notice of that filing shall be mailed to the judgment debtor where, upon recording, that judgment becomes a lien upon real property. Westmark Fed. Credit Union v. Smith, 116 Idaho 474, 776 P.2d 1193 (1989).

Procedure Required.

Renewed Judgment Lien.

In order to give full effect to the words and changes of the amendment made by the Laws of 1955, the creation of a judgment lien necessitates that a transcript or abstract of the judgment, certified by the clerk (or the original judgment as an “in county” judgment), be “filed with the clerk” of the district court, “who shall immediately file and docket the same as by law provided” and further necessitates that said abstract or transcript certified by the clerk be “filed with the . . . recorder,” who likewise “shall immediately file and docket the same as by law provided,” i.e., entered in the reception book maintained by the recorder. Messenger v. Burns, 86 Idaho 26, 382 P.2d 913 (1963). Renewed Judgment Lien.

Since plaintiff’s renewed judgment lien was allowed to lapse and was not re-perfected until it was appropriately recorded, the rerecordation date was the date which then became the priority date for plaintiff’s interest in the subject property. Amato v. United States, 94 F. Supp. 2d 1077 (D. Idaho 1999).

When a homebuyer tried to enforce a Utah judgment against a builder’s Idaho property, the builder was properly granted summary judgment because, inter alia, one basis for relief for the homebuyer was execution of a judgment lien based on the foreign judgment, but the judgment lien expired five [now 10] years after the entry of the judgment, and the homebuyer never tried to renew the lien or obtain a new lien. Grazer v. Jones, 154 Idaho 58, 294 P.3d 184 (2013).

Section 10-1111 does not provide that a judgment lien may be renewed within five [now 10] years after the judgment is recorded. Section 10-1111 incorporates the time period specified in this section, under which a non-child-support judgment lien continues five years from the date of the judgment. Grazer v. Jones, 154 Idaho 58, 294 P.3d 184 (2013).

Sale of Debtor’s Property.

Once the judgment debtor’s property was sold at execution and the certificate of sale was delivered to the execution purchaser, conveying legal title to him, the creditor lost her judgment lien against the property sold. Suchan v. Suchan, 113 Idaho 102, 741 P.2d 1289 (1986).

Supplemental Proceedings to Assert Claims.

In an action to foreclose mortgage, where only evidence of defendant’s alleged interest in resort property was the self-serving testimony in defendant’s deposition, and where defendant made no effort to appear and assert his claim, the trial court’s findings that defendant’s judgment creditors had proved that defendant owned an interest in the disputed property and that plaintiff had agreed to pay him for such interest were not supported by substantial evidence. Russ Ballard & Family Achievement Inst. v. Lava Hot Springs Resort, Inc., 97 Idaho 572, 548 P.2d 72 (1976).

Support Installments.

The legislature implicitly has recognized the status of support installments as judgments when they come due. Hunsaker v. Hunsaker, 117 Idaho 192, 786 P.2d 583 (Ct. App. 1990).

The district court committed no error in holding that interest accrues at the judgment rate from the due date on delinquent child support installments. Hunsaker v. Hunsaker, 117 Idaho 192, 786 P.2d 583 (Ct. App. 1990).

When Lien Does Not Attach.

When a voluntary encumbrance or lien is placed on the land by the entryman, the lien attaches to the entryman’s interest, but this is not true on a default judgment, even though it is a voluntary impression of the judgment lien on the homestead permitted by the entryman. St. Marie v. Chester B. Brown Co., 84 Idaho 216, 370 P.2d 195 (1962). A judgment lien cannot attach to the property for debts incurred prior to patent and if the entryman should sell, his purchaser takes the property free from claim of lien. St. Marie v. Chester B. Brown Co., 84 Idaho 216, 370 P.2d 195 (1962).

Where a debtor and her husband purchased a property as a married couple and resided there as their principal residence, the property was automatically protected by a homestead exemption under§ 55-1004, and a creditor’s judgment, which was recorded thereafter, did not attach as a judgment lien pursuant to this section. However, when the debtor quitclaimed her interest to her husband and then he later quitclaimed her interest back, the judgment lien attached to her new interest at the same that she reacquired that interest. Because those acts occurred simultaneously, the debtor did not have an ownership interest, or a homestead exemption, prior to the lien affixing, and the property was subject to the judgment lien under§ 55-1005. In re Hassler, 2011 Bankr. LEXIS 1880 (Bankr. D. Idaho May 17, 2011).

Decisions Under Prior Law

Filing and Recording.

It is not necessary, in order to create a lien upon real estate of the judgment debtor, that the certified transcript of the original docket be recorded; filing of the transcript to be recorded is sufficient to create the lien. Moore v. Taylor, 1 Idaho 630 (1876).

Am. Jur. 2d.

C.J.S.

ALR.

Subjection of community property or interest therein to lien of judgment for personal tort of spouse. 10 A.L.R.2d 988.

Solid mineral royalty as real or personal property for purposes of lien of judgment. 68 A.L.R.2d 735.

Interest of spouse in estate by entireties as subject to judgment lien and satisfaction of his or her individual debt. 75 A.L.R.2d 1172.

Issuance of levy of execution as extending period of judgment lien. 77 A.L.R.2d 1064.

Prior Laws.

Former§ 10-1111, which comprised C.C.P. 1881, § 426; R.S., R.C., & C.L., § 4458; C.S., § 6903; I.C.A.,§ 7-1111, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Amendments.

The 2011 amendment, by ch. 104, added the subsection (1) designation and added subsection (2).

The 2016 amendment, by ch. 269, substituted “ten (10) years” for “five (5) years” in the last sentence in subsection (1).

The 2017 amendment, by ch. 177, in subsection (1), inserted “the renewed” near the end of the last sentence.

Compiler’s Notes.

The 2018 amendment, by ch. 284, substituted “Orders renewing” for “Renewal of” in the section heading; substituted “order renewing judgment” or similar language for “renewed judgment” throughout the section; in subsections (1) and (2), substituted “order renewing judgment” for “renewed judgment” added “by entry of an order renewing judgment” following “renew such judgment” at the end of the first sentence, inserted “or continued” following “established” in the second sentence, and added the last sentence. Compiler’s Notes.

Section 4 of S.L. 2011, ch. 104 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 2 of S.L. 1978, ch. 115 declared an emergency. Approved March 14, 1978.

Section 5 of S.L. 2011, ch. 104, as amended by S.L. 2011, ch. 331, § 1 read: “An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval, and retroactively to July 1, 1995, and shall apply to all orders currently being enforced by the Idaho Department of Health and Welfare Child Support Program such that any Idaho judgment for child support that would otherwise have expired since July 1, 1995, may be renewed on or before December 30, 2011.”

Section 3 of S.L. 2016, ch. 269 declared an emergency and made this section retroactive to July 1, 2015, and applicable only to judgments issued on and after July 1, 2015, by a court of competent jurisdiction. Approved March 30, 2016.

Section 2 of S.L. 2017, ch. 177 declared an emergency. Approved March 27, 2017.

Construction.

This section does not require that a judgment be a lien on real property before such a judgment can be renewed under this section, as the express terms of this section provides for the renewal of judgments, not just judgment liens. Smith v. Smith, 131 Idaho 800, 964 P.2d 667 (Ct. App. 1998).

The five-year [now 10-year] time limit contained in this section sets the time limit for when a judgment creditor must take action to renew a judgment, such as filing a motion for renewal, and not as to when the court must enter an order extending a judgment. Smith v. Smith, 131 Idaho 800, 964 P.2d 667 (Ct. App. 1998).

Pursuant to section 5 of S.L. 2011, ch. 104, as amended by S.L. 2011, ch. 331, § 1, the bureau of child support of the Idaho department of health and welfare could file a motion to renew a 1998 judgment against a parent for unpaid child support in August 2011, even though, before the legislative change, any action to collect unpaid child support arrearages would have had to have been commenced by April 2007, five years after child reached the age of majority. Peterson v. Peterson, 156 Idaho 85, 320 P.3d 1244 (2014).

Judgment.

Default judgments, which only partially adjudicate the controversy in a multi-party case, are not “judgments” for purposes of considering the time for renewal under§ 10-1110 and this section, because, by their nature, they are not final determinations of the rights and obligations of all parties in the dispute. Bach v. Dawson, 152 Idaho 237, 268 P.3d 1189 (Ct. App. 2012).

When a homebuyer tried to enforce a Utah judgment against a builder’s Idaho property, the builder was properly granted summary judgment because, inter alia, one basis for relief for the homebuyer was execution of a judgment lien based on the foreign judgment, but the judgment lien expired five years [now 10 years] after the entry of the judgment, and the homebuyer never tried to renew the lien or obtain a new lien. Grazer v. Jones, 154 Idaho 58, 294 P.3d 184 (2013).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 427; R.S., R.C., & C.L., § 4459; C.S., § 6904; I.C.A.,§ 7-1112, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 429; R.S., R.C., & C.L., § 4461; C.S., § 6906; I.C.A.,§ 7-1113, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

This section, which comprised 1891, p. 119, § 3; reen. 1899, p. 80, § 3; reen. R.C., & C.L., § 4464; C.S., § 6909; am. 1929, ch. 51, § 4, p. 70; I.C.A.,§ 7-1114, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. P. 58(b).

Effective Dates.

Section 2 of S.L. 1955, ch. 4 declared an emergency. Approved January 26, 1955.

Appeal.

Depositing funds with the clerk under the procedure of this section does not bar an appeal by the judgment debtor, unless the release of the funds is also authorized. Long v. Hendricks, 109 Idaho 73, 705 P.2d 78 (Ct. App. 1985).

Construction.

This section does not require a judgment debtor to provide additional documents or complete certain procedures in order to satisfy a judgment. Weaver v. Searle Bros., 131 Idaho 610, 962 P.2d 381 (1998).

Duty of Clerk.

The duty of the clerk to declare the judgment satisfied is not abrogated by the filing of a notice of appeal by the judgment creditor. Long v. Hendricks, 109 Idaho 73, 705 P.2d 78 (Ct. App. 1985).

Interest.

A payment actually tendered without condition, and without prejudice to the judgment creditor’s right to seek a larger award on appeal, will terminate the creditor’s right to statutory interest on the existing judgment. Long v. Hendricks, 109 Idaho 73, 705 P.2d 78 (Ct. App. 1985).

Where the defendant’s notice of tender of judgment authorized the clerk of the court to release the funds tendered to the court to the plaintiff upon the presentation of a satisfaction of judgment duly executed by the plaintiff, but the plaintiff did not attempt to test the “condition” by presenting the clerk with a partial satisfaction of judgment or by seeking a court order to release the funds unconditionally pursuant to this section, the plaintiff failed to establish that he would have been prejudiced by accepting the tendered amount, and the tender of judgment barred the running of postjudgment interest on the original judgment. Long v. Hendricks, 109 Idaho 73, 705 P.2d 78 (Ct. App. 1985).

When a judgment debtor wishes to cut off the accrual of post-judgment interest, the tender of the amount of the judgment is sufficient. If by appealing the judgment creditor is not taking the risk of receiving less than the amount tendered, the judgment creditor may accept the tendered amount and continue with the appeal. If, however, the judgment creditor appeals the denial of a new trial and takes the risk of receiving less than the tendered amount, it is unfair to require the judgment debtor to pay post-judgment interest after the date of the tender, as the judgment debtor has no effective way of eliminating the obligation for post-judgment interest except by the tender. Long v. Hendricks, 117 Idaho 1051, 793 P.2d 1223 (1990).

Where the record showed that respondent tendered the amount of the judgment to appellant, thus complying with this section, appellant refused to accept the tender, and the parties later stipulated to the deposit of the check into an interest-bearing account, respondent was not required to pay statutory interest on the judgment during the pendency of respondent’s cross-appeal. Curtis v. Canyon Hwy. Dist. No. 4, 122 Idaho 73, 831 P.2d 541 (1992), overruled on other grounds, Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994).

The trial court correctly determined that postjudgment interest on the award of prejudgment interest began to accrue on the date of the judgment containing that award. Weaver v. Searle Bros., 131 Idaho 610, 962 P.2d 381 (1998).

Judgment Satisfied.

Satisfaction should halt the accrual of not only postjudgment interest but also prejudgment interest as of the date of the deposit; after a judgment debtor unconditionally satisfies the judgment, both prejudgment and postjudgment interest should cease. Weaver v. Searle Bros., 131 Idaho 610, 962 P.2d 381 (1998). Judgment Satisfied.

Where defendant not only deposited funds representing the amount of the judgment against him with the district court but also authorized release of the funds to plaintiff, which release was ordered by the district court, the judgment was satisfied and there could be no appeal. Bob Rice Ford, Inc. v. Donnelly, 98 Idaho 313, 563 P.2d 37 (1977).

Satisfaction of Judgment.

Defendants’ deposit, when viewed as a whole, was not conditional because the accompanying letter clearly indicated defendants’ intent to satisfy the judgment and to send additional monies, if necessary. Weaver v. Searle Bros., 131 Idaho 610, 962 P.2d 381 (1998).

Am. Jur. 2d.

C.J.S.

ALR.

Cross References.

Arbitration,§ 7-901 et seq.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

The provisions of§§ 10-1201 to 10-1216 are probably abrogated to the extent that the procedural requirements may be in conflict with the Idaho Rules of Civil Procedure. See Idaho R. Civ. P. 57.

Adverse Parties — Actual Controversy.

No judicial declaration is necessary or can be granted where there is no difference or threat, present or prospective, existing between the parties to the action or proceeding. State ex rel. Miller v. State Bd. of Educ., 56 Idaho 210, 52 P.2d 141 (1935); Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937).

The Declaratory Judgment Act contemplates some specific adversary question or contention based on an existing state of facts, out of which the alleged “rights, status, and other legal relations” arise, upon which the court may predicate a judgment “either affirmative or negative in form and effect.” State ex rel. Miller v. State Bd. of Educ., 56 Idaho 210, 52 P.2d 141 (1935); Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937); State ex rel. Diefendorf v. Idaho Egg Producers, 59 Idaho 38, 80 P.2d 28 (1938); Thomas v. Riggs, 67 Idaho 223, 175 P.2d 404 (1946); Ayers v. General Hosp., 67 Idaho 430, 182 P.2d 958 (1947).

There must be adverse parties and an actual controversy over the construction or validity of a statute or an instrument or other subject-matter coming properly within the purview of the Declaratory Judgment Act upon which the suit is based. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937).

No adversary controversy was tendered where plaintiff alleged that the contract was valid and that defendant was competent to contract. Defendant admitted and asserted the same facts. Plaintiff alleged: “That there exists an uncertainty as to the ability and capacity of the defendant to contract, and that this action is brought to quiet from the said title such uncertainty, and under the uniform Declaratory Judgment Act.” But it is nowhere alleged that defendant denies the contract or claims that he was incompetent to contract at the time it was executed, nor is it alleged that any member of his family, presumptive heir, or relative, who might be legally liable for his support, in case of his insanity and indigence, has questioned his competency or the validity of the contract. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937); State ex rel. Diefendorf v. Idaho Egg Producers, 59 Idaho 38, 80 P.2d 28 (1938).

If complaint for a declaratory judgment states a justiciable controversy, a general demurrer should be overruled. Grayot v. Summers, 75 Idaho 125, 269 P.2d 765 (1954).

The right sought to be protected by a declaratory judgment may invoke either remedial or preventive relief; it may relate to a right that has either been breached or is only yet in dispute or a status undisturbed but threatened or endangered; but, in either or any event, it must involve actual and existing facts. Harris v. Cassia County, 106 Idaho 513, 681 P.2d 988 (1984).

Attorney Fees.

Because insureds were not entitled to an award of attorney fees on an equitable basis, but were limited to exclusive statutory provisions regarding insurance coverage disputes, they were precluded from seeking an award for the cost of defending insurer’s declaratory judgment suit under general fee statutes or the fee provisions of the uniform declaratory judgment statute. Allstate Ins. Co. v. Mocaby, 133 Idaho 593, 990 P.2d 1204 (1999).

Constitutionality of Statutes.

Declaratory judgment is the proper procedure to determine the constitutionality of a statute. Montejano v. Rayner, 33 F. Supp. 435 (D. Idaho 1939).

Damages.

In a declaratory judgment proceeding, the court has jurisdiction to construe a contract and to award damages. Sweeney v. American Nat’l Bank, 62 Idaho 544, 115 P.2d 109 (1941).

In contractor’s action against building owner and bank for a declaratory judgment construing a tripartite agreement, under which the contractor agreed to look to the owner individually for payment of the cost of building in excess of a certain sum until a mortgage held by the bank was satisfied, where the court had jurisdiction of parties and subject-matter and the action was a proper one for declaratory judgment, the court, construing the contract and determining that there was something due from the owner to the contractor, erred in failing to go further and determine the amount due. Sweeney v. American Nat’l Bank, 62 Idaho 544, 115 P.2d 109 (1941).

Declaratory judgment proceeding was not the proper proceeding to determine the amount of damages that an insurance exchange owed to decedent’s estate because this was a factual issue, and there was no complicated question to answer with respect to a policy’s interpretation. Farmers Ins. Exch. v. Tucker, 142 Idaho 191, 125 P.3d 1067 (2005).

Declaratory Judgment on Cross-Complaint.

There is no sufficient issue of a controversy tendered under the Declaratory Judgment Act when the only question raised in the complaint is not the matter in controversy. State ex rel. Diefendorf v. Idaho Egg Producers, 59 Idaho 38, 80 P.2d 28 (1938).

Failure to dismiss cross claim, in suit brought for the sole purpose of securing a declaration that an insurance policy has been obtained by fraudulent representations and concealment of facts, of the heirs of the people killed in an automobile collision with insured was error as insurance company was entitled to attack propriety of the cross claim without waiving its right or the right of the insured to a jury trial on the issues raised thereby. Temperance Ins. Exch. v. Carver, 83 Idaho 487, 365 P.2d 824 (1961).

The cross claim filed by the heirs of the people killed in an automobile collision with insured in suit brought by the insurance company for the purpose of securing a declaration relative to its liability under the insurance policy was not a coercive pleading under this rule because it did not arise out of the transaction or occurrence which is the subject matter of the insurer’s action for declaratory relief. Temperance Ins. Exch. v. Carver, 83 Idaho 487, 365 P.2d 824 (1961).

Entire Controversy Adjudicated.

Where the court takes jurisdiction for one purpose, it will be retained for all purposes and the entire controversy fully settled. Sweeney v. American Nat’l Bank, 62 Idaho 544, 115 P.2d 109 (1941). It is the policy of the law that all differences should be decided in one proceeding if possible, and this applies to declaratory judgment actions. Sweeney v. American Nat’l Bank, 62 Idaho 544, 115 P.2d 109 (1941).

Federal Action Dismissed.

Since many questions concerning petroleum spill into creek could not be decided until a full factual record was developed, action filed in federal court for declaratory judgment by insurer against insured alleging that insured was not covered by policies executed between them with respect to the petroleum spill, would be dismissed in light of underlying state action between the parties, where insurer had an adequate state remedy in action for declaratory relief as authorized by this section. American Economy Ins. Co. v. Williams, 805 F. Supp. 859 (D. Idaho 1992).

Indispensable Parties.

Injured third parties are proper but not necessary parties defendant in an action brought by an insurer for a declaratory judgment determining the validity of an insurance policy and its liability thereunder. Temperance Ins. Exch. v. Carver, 83 Idaho 487, 365 P.2d 824 (1961).

Insanity Defense.

A statement of defense counsel asserting the impossibility of a psychiatrist offering an opinion of defendant’s insanity without a legal standard to work with, did not suffice to create a justiciable issue as to whether the abolition of the insanity defense deprived the defendant’s due process rights; therefore, the trial court properly refused to render a declaratory judgment on the issue. State v. Rhoades, 119 Idaho 594, 809 P.2d 455 (1991).

The supreme court upheld the trial court’s finding that the record did not create a justiciable controversy to support a ruling on the issue of the repeal of the insanity defense where there was nothing before the court to indicate an insanity defense had been raised, as a declaratory judgment can only be rendered in a case where an actual or justiciable controversy exists. State v. Rhoades, 120 Idaho 795, 820 P.2d 665 (1991), cert. denied, 504 U.S. 987, 112 S. Ct. 2970, 119 L. Ed. 2d 589 (1992).

Where the record before the trial court contained nothing more than the statement of counsel that he desired to inquire into the viability of the insanity defense, and that although defendant had been examined by a psychiatrist, no opinion in any form as to defendant’s mental state could be forthcoming unless the court provided an operative legal definition of insanity, counsel’s unsworn statement and the testimony of a law enforcement officer did not provide a factual showing sufficient to create a justiciable issue before the court. State v. Rhoades, 121 Idaho 63, 822 P.2d 960 (1991), cert. denied, 506 U.S. 1047, 113 S. Ct. 962, 122 L. Ed. 2d 119 (1993).

Issuance by Supreme Court.

Even though legislative authorization is not necessary, this section authorizes the supreme court to issue declaratory judgments in appropriate situations. Mead v. Arnell, 117 Idaho 660, 791 P.2d 410 (1990).

Issues for Jury.

The Declaratory Judgments Act of 1933 granted a right and a remedy unknown at common law. Since rights and remedies created by the legislature subsequent to the adoption of the constitution are not within the protection of the constitutional provisions, the trial of issues of fact incidental to the exercise of rights and remedies created by this act are generally triable before the court without a jury. Temperance Ins. Exch. v. Carver, 83 Idaho 487, 365 P.2d 824 (1961).

The trial of issues of fact incidental to the exercise of rights and remedies granted by the Declaratory Judgments Act are generally triable before the court without a jury. Temperance Ins. Exch. v. Carver, 83 Idaho 487, 365 P.2d 824 (1961).

When issues of fact triable by jury under the common law or territorial statutes arise in declaratory proceedings, the procedure must be such as to preserve the right of trial by jury. Temperance Ins. Exch. v. Carver, 83 Idaho 487, 365 P.2d 824 (1961).

Jurisdiction.

Where parties appear and suit may be construed as one to quiet title, or for declaratory relief to construe a contract to convey land, the district court has jurisdiction of both the parties and subject-matter. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937).

District court has jurisdiction to entertain suit to construe unemployment compensation law, notwithstanding power conferred on industrial accident board to determine its jurisdiction and questions relative to enforcement. Idaho Mut. Benefit Ass’n v. Robison, 65 Idaho 793, 154 P.2d 156 (1944).

Justiciable Controversy.

The questioned “right” or “status” may invoke either remedial or preventive relief; it may relate to a right that has either been breached or is only yet in dispute or a status undisturbed but threatened or endangered; but, in either or any event, it must involve actual and existing facts. State ex rel. Miller v. State Bd. of Educ., 56 Idaho 210, 52 P.2d 141 (1935); Ayers v. General Hosp., 67 Idaho 430, 182 P.2d 958 (1947).

Where plaintiff makes certain allegations in his pleadings and the defendant admits them, the pleadings are insufficient to present a justiciable controversy. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937); State ex rel. Diefendorf v. Idaho Egg Producers, 59 Idaho 38, 80 P.2d 28 (1938).

When there is no disputed issue, no justiciable controversy is tendered, and action will be dismissed. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937); State ex rel. Diefendorf v. Idaho Egg Producers, 59 Idaho 38, 80 P.2d 28 (1938).

Unless there is a justiciable controversy, a declaratory action will not lie. State ex rel. Diefendorf v. Idaho Egg Producers, 59 Idaho 38, 80 P.2d 28 (1938).

An action by publisher and others against code commission for declaratory judgment that statutory requirement requiring publishing company to have code printed on certain date was directory and not mandatory, presented a justiciable controversy within the purview of the declaratory judgment statute. Koon v. Bottolfsen, 66 Idaho 771, 169 P.2d 345 (1946).

Fact that code commission granted publisher an unauthorized extension of time for publication of code did not relieve publisher of duty to have code printed on date specified by statute. Koon v. Bottolfsen, 66 Idaho 771, 169 P.2d 345 (1946).

Where a grave question arose as to whether Canyon County, by entering into contracts for the construction of a new jail, thereby created an indebtedness in excess of revenues available for the year in which the contracts were made, it was proper to sue under the Declaratory Judgment Act in order to determine this and other questions. Iverson v. Canyon County, 69 Idaho 132, 204 P.2d 259 (1949). Executrix properly raised question of whether the statute of limitations had barred the right of the state to exact payment of transfer taxes from her as executrix in the matter of decedent’s estate under the declaratory judgment statute in action commenced more than five years after executrix had made application to the probate court for letters testamentary, she having made the state a party defendant by reason of its ostensible claim for transfer taxes, tax collector defending against executrix’s claim of being entitled to release from payment of transfer taxes as incident to estate of testator due to lapse of time. White v. Conference Claimants Endowment Comm’n, 81 Idaho 17, 336 P.2d 674 (1959).

Where the subject matter of an action involved alleged proposed unlawful action on the part of the director of insurance which allegedly would cause an insurer irreparable harm and resolution of the issues raised by the complaint required construction of applicable statutes and determination of the legal effect of a prior administrative decision and order and a prior order of a court of a sister state, the claims presented by the insurer in the district court action involved issues which could be appropriately determined in a declaratory judgment action. Sierra Life Ins. Co. v. Granata, 99 Idaho 624, 586 P.2d 1068 (1978).

As a general rule, a declaratory judgment can only be rendered in a case where an actual or justiciable controversy exists; a “controversy” in this sense must be one that is appropriate for judicial determination. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests; it must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Harris v. Cassia County, 106 Idaho 513, 681 P.2d 988 (1984).

Where a declaratory judgment on the facts presented would have clarified whether the county commissioners have a legal obligation to provide county assistance to claimants under Idaho indigency statutes if, and when, the indigent fund is depleted, and would have removed any uncertainty over whether the county assistance could again be terminated, the district court’s dismissal of the claimant’s action for declaratory relief was improper. Harris v. Cassia County, 106 Idaho 513, 681 P.2d 988 (1984).

Courts will not rule on declaratory judgment actions which present questions that are moot or abstract. An action for declaratory judgment is moot where the judgment, if granted, would have no effect either directly or collaterally on the plaintiff: the plaintiff would be unable to obtain further relief based on the judgment, and no other relief is sought in the action Wylie v. State, 151 Idaho 26, 253 P.3d 700 (2011).

Property owner’s declaratory complaint challenging a denial of access for a subdivision directly onto a state highway failed to present a justiciable issue under§ 10-1202 and this section, because a prior development agreement describing the subdivision’s access points unambiguously provided that there would be no direct access to the highway and the property owner acquired his interest from a voluntary party to that agreement. Wylie v. State, 151 Idaho 26, 253 P.3d 700 (2011).

Partnership.

Pleading and Practice.

In an action by surviving partners against the administratrix of deceased partner for a declaratory judgment and accounting, surviving partners were entitled to a declaratory judgment, where the complaint stated situation confronting the surviving partners and involving the partnership affairs, and the doubt, uncertainty, and controversy existing between them and the administratrix. Varkas v. Varkas, 64 Idaho 297, 130 P.2d 867 (1942). Pleading and Practice.

Plaintiffs were not prejudiced by the erroneous sustaining of demurrer to their complaint, where the defendant’s cross-complaint and answer thereto presented all issues that could have been presented by the original complaint, and the case was tried on those issues and finally submitted to the court, and the court decided the same. Varkas v. Varkas, 64 Idaho 297, 130 P.2d 867 (1942).

In a cause of action for declaratory judgment, a mere averment of a disagreement without pleading the facts disclosing the grounds for, and at least the basis of plaintiff’s claims in connection with the disagreement is insufficient. Ayers v. General Hosp., 67 Idaho 430, 182 P.2d 958 (1947).

Prematurity.

Provision of ordinance that village would require “tenant or occupant” to connect with sewer was merely a promise of future action on the part of the village for benefit of bondholders; hence it would not be passed on by the court in a declaratory judgment action on the ground of prematurity. Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (1953).

Public Importance.

An association which issued a policy of insurance insuring against loss resulting from the operation of an automobile covered thereby, and which did so as attorney in fact for an inter-insurance exchange was the “real party in interest” and entitled to bring, under the federal declaratory judgment act (28 USCS § 2201, 2202), an action for a decree to the effect that it was not liable under the policy, since the action was in reality in equity. Farmers Underwriters Ass’n v. Wanner, 30 F. Supp. 358 (D. Idaho 1938).

Supreme court does not have power to supplement legislative action by injecting into Declaratory Judgment Act a provision providing that “public importance” of a question as to constitutionality of a statute is sufficient to confer legal capacity. Thomas v. Riggs, 67 Idaho 223, 175 P.2d 404 (1946).

Real Party in Interest.

In an action, under the federal declaratory judgment act (28 USCS §§ 2201, 2202), by an association which had issued a policy of insurance against loss from the operation of an automobile as attorney in fact for an inter-insurance exchange, as authorized by law, the exchange was “a proper party in interest,” but was not “an indispensable party.” Farmers Underwriters Ass’n v. Wanner, 30 F. Supp. 358 (D. Idaho 1938).

Ripeness.

Neighboring landowner’s action for a declaration that a public road easement existed over a portion of an adjacent subdivision as shown on the plat of the subdivision was ripe because delaying the adjudication would have added nothing material to the litigation and a court would be in no better position to decide the existence of the easement and a declaration regarding the existence of an easement would afford the parties relief from uncertainty and controversy in the future. Schneider v. Howe, 142 Idaho 767, 133 P.3d 1232 (2006). In declaratory judgment action, district court erred by ruling that city was permitted to refuse to approve voters’ petition for a city initiative legalizing marijuana on the basis that it conflicted with the general laws of the state and, thus, exceeded the scope of a city initiative: the issue as to whether the initiative concerned matters outside the scope of such was not ripe for adjudication since it was a pre-election challenge. Davidson v. Wright, 143 Idaho 616, 151 P.3d 812 (2006).

Scope of Power.

While this section allows courts to declare legal relations, that power is inherently limited to the interpretation of previously established substantive law. Where the legislature has not seen fit to provide substantive legal grounds on which a court can base a requested declaration, then it is outside of the authority of that court to make said declaration, even when it would further the interests of all parties involved. Doe v. Doe (In re Declaration of Parentage & Termination of Parental Rights), 160 Idaho 360, 372 P.3d 1106 (2016).

Standing.

Corporate landowner had no standing to challenge the validity of an agreement between city and county establishing a city impact area where landowner neither alleged nor offered proof that inclusion of its property within the city impact area would inconvenience it, place new limitations upon its use or enjoyment of the land or cause economic injury. Student Loan Fund of Idaho, Inc. v. Payette County, 125 Idaho 824, 875 P.2d 236 (Ct. App. 1994).

Court did not err in denying homeowners’ motion for summary judgment and in granting declaratory judgment for a neighboring landowner in his action for a declaration that a public road easement existed over a portion of an adjacent subdivision as shown on the plat of the subdivision and the landowner had standing because he had demonstrated a future injury; he was seeking to subdivide his property and the easement offered the only possible access route for ingress and egress for a potential subdivision. Schneider v. Howe, 142 Idaho 767, 133 P.3d 1232 (2006).

Objecting landowners had standing under§ 10-1202 and this section to challenge a rezoning decision that allowed expansion of mining operations to adjacent property, because the objectors alleged specific harms resulting from the rezoning, rather than from the existing mining activities. Ciszek v. Kootenai County Bd. of Comm’rs, 151 Idaho 123, 254 P.3d 24 (2011).

Taxation.

Declaratory judgment action lies to determine the right of a state officer to collect tax from a distillery of another state where such distillery stores liquor in this state for sale to the state of Idaho. Century Distilling Co. v. Defenbach, 61 Idaho 192, 99 P.2d 56 (1940).

Where a taxpayer had paid the state income tax for 1939 without protest, he was not entitled to recover such payment, notwithstanding that he had paid the tax or given security for its payment before the institution of a suit for its recovery. Walker v. Wedgwood, 64 Idaho 285, 130 P.2d 856 (1942).

Where a taxpayer, seeking to recover state income taxes, has complied with the statute relating to review of the action of the commissioner, and the fact that a suit had been brought under the Declaratory Judgment Statute rather than a suit to review the action of the commissioner had not imposed an additional burden upon the commissioner, relief would not be denied on the ground that the taxpayer’s suit should have been one to review the action of the commissioner in refusing a refund. Walker v. Wedgwood, 64 Idaho 285, 130 P.2d 856 (1942). A taxpayer, having no special interest peculiar to himself that is not common to all other taxpayers, could not maintain action to declare annexation ordinance void. Greer v. Lewiston Golf & Country Club, 81 Idaho 393, 342 P.2d 719 (1959).

A justiciable controversy existed for purposes of the Declaratory Judgment Act where elected officials challenged whether a taxpayer coalition’s referendum and initiative were the proper means to reject an ad valorem tax levy and establish a budget process for a county. Weldon v. Bonner County Tax Coalition, 124 Idaho 31, 855 P.2d 868 (1993), overruled on other grounds, City of Boise City v. Keep the Commandments Coalition (In re Initiative Petition for a Ten Commandments Display), 143 Idaho 254, 141 P.3d 1123 (2006).

When Granted.

Generally, in determining whether to grant a declaratory judgment, the criteria is whether it will clarify and settle the legal relations in issue, and whether such a declaration will afford relief from the uncertainty and controversy giving rise to the proceeding. Sweeney v. American Nat’l Bank, 62 Idaho 544, 115 P.2d 109 (1941).

A declaratory judgment must clarify and settle the legal relations in issue and afford relief from the uncertainty and controversy which gave rise to the action. Harris v. Cassia County, 106 Idaho 513, 681 P.2d 988 (1984).

When Proper Remedy.

Declaratory judgment is not a proper remedy where main issue is determination of issue of fact. Ennis v. Casey, 72 Idaho 181, 238 P.2d 435 (1951).

Issue of whether warehouse was guilty of negligence in failing to move wheat from danger of flood could not be determined by declaratory judgment suit. Ennis v. Casey, 72 Idaho 181, 238 P.2d 435 (1951).

Declaratory judgment remedy can be used to determine and declare fixed legal rights, but it cannot be used to determine issues or questions which are uncertain or hypothetical. Ennis v. Casey, 72 Idaho 181, 238 P.2d 435 (1951).

Where the insurer acts with reasonable promptness in filing a cross claim so that the injured insured and injured third parties are not prejudiced, the insurer is entitled to have the question of the validity of its policy and its liability thereunder determined prior to the trial of an action against the insurer upon a liability alleged to be covered by the policy so that the insurer may know whether it is obligated to defend the insurer as provided by the policy. Temperance Ins. Exch. v. Carver, 83 Idaho 487, 365 P.2d 824 (1961).

Relief by way of a declaratory judgment is not available in a case where negligence of the defendant is the determinative issue due to the right of the parties to a jury trial in a negligence case. Temperance Ins. Exch. v. Carver, 83 Idaho 487, 365 P.2d 824 (1961).

Declaratory judgment action was an appropriate mechanism to validate a United States Revised Statute 2477 right-of-way, where the county failed to act on the owners’ validation petition, and, since the road provided access to the property they were trying to sell, the owners had standing to request a declaratory judgment. Nemeth v. Shoshone Cty., — Idaho —, 453 P.3d 844 (2019).

Writs of Prohibition.

The extraordinary writs of prohibition and mandamus are not available where an adequate remedy exists in the ordinary course of law, either legal or equitable; where lowest bid public works contractor had the remedies of the Uniform Declaratory Judgment Act available, the writ of prohibition was vacated. Agricultural Servs., Inc. v. City of Gooding, 120 Idaho 627, 818 P.2d 331 (Ct. App. 1991).

Zoning.

District court had authority to consider petitions for declaratory judgment in an action challenging the validity of a zoning ordinance because landowner was not seeking review of any administrative decision, but, rather, was seeking a determination of how his land was zoned. McCuskey v. Canyon County, 123 Idaho 657, 851 P.2d 953 (1993).

Am. Jur. 2d.

C.J.S.

ALR.

Availability and scope of declaratory judgment actions in determining rights of parties, or power and exercise thereof by arbitrators, under arbitration agreements. 12 A.L.R.3d 854.

Insured’s right to recover attorneys’ fees incurred in declaratory judgment action to determine existence of coverage under liability policy. 87 A.L.R.3d 429. Right to jury trial in action for declaratory relief in state court. 33 A.L.R.4th 146.

Relief other than by dissolution in cases of intracorporate deadlock or dissension. 34 A.L.R.4th 13.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

Exhaustion of Remedies.

In a breach of contract action relating to cottage site leases from the state, a trial court erred by finding that several lessees were unable to bring a declaratory judgment action due to a failure to exhaust administrative remedies. The case presented was one of contract interpretation, rather than a challenge to administrative action. Wasden v. State Bd. of Land Comm’n, 153 Idaho 190, 280 P.3d 693 (2012).

In General.

The circumstances under which a declaratory judgment can be properly granted are limited by this section. Nelson v. Whitesides, 103 Idaho 374, 647 P.2d 1246 (1982).

Insurers.

Where the subject matter of an action involved alleged proposed unlawful action on the part of the director of insurance which allegedly would cause an insurer irreparable harm, and resolution of the issues raised by the complaint required construction of applicable statutes and determination of the legal effect of a prior administrative decision and order and a prior order of a court of a sister state, the claims presented by the insurer in the district court action involved issues which could be appropriately determined in a declaratory judgment action. Sierra Life Ins. Co. v. Granata, 99 Idaho 624, 586 P.2d 1068 (1978).

Interested Party.

In action seeking declaration on the constitutionality of§§ 1-2311 to 1-2313 and Idaho R. Civ. P. 81 (l) , since plaintiff was an interested party under this section and since the district court clerk was a proper party defendant and there need be but one proper party, the case presented a justiciable controversy on the constitutionality of said statutes and rule. Frizzell v. Swafford, 104 Idaho 823, 663 P.2d 1125 (1983).

A developer lacked standing to bring an action for declaratory judgment where the developer failed to demonstrate that it suffered from a distinct palpable injury. Martin & Martin Custom Homes, LLC v. Camas County, 150 Idaho 508, 248 P.3d 1243 (2011).

Objecting landowners had standing under§ 10-1201 and this section to challenge a rezoning decision that allowed expansion of mining operations to adjacent property, because the objectors alleged specific harms resulting from the rezoning, rather than from the existing mining activities. Ciszek v. Kootenai County Bd. of Comm’rs, 151 Idaho 123, 254 P.3d 24 (2011).

Justiciable Controversy.

Property owner’s declaratory complaint challenging a denial of access for a subdivision directly onto a state highway failed to present a justiciable issue under§ 10-1201 and this section, because a prior development agreement describing the subdivision’s access points unambiguously provided that there would be no direct access to the highway and the property owner acquired his interest from a voluntary party to that agreement. Wylie v. State, 151 Idaho 26, 253 P.3d 700 (2011).

Property owner was not entitled to declaratory relief to define the process an irrigation district had to use when considering petitions for exclusion because the property owner failed to demonstrate the existence of an actual or justiciable controversy. Bettwieser v. New York Irrigation Dist., 154 Idaho 317, 297 P.3d 1134 (2013).

A declaratory judgment can only be rendered in a case where an actual or justiciable controversy exists. The controversy must be definite and concrete, touching the legal relations of the parties having adverse legal interests. City of Hailey v. Old Cutters, Inc. (In re Old Cutters, Inc), 2014 U.S. Dist. LEXIS 45787 (D. Idaho Mar. 31, 2014).

Bankruptcy court was not precluded by this section from reviewing an annexation fee and community housing obligations that a city required from a debtor/developer as a condition to annexation, where the question before the court was whether the city had the statutory authority to impose the fee and housing provisions as conditions precedent. City of Hailey v. Old Cutters, Inc. (In re Old Cutters, Inc), 2014 U.S. Dist. LEXIS 45787 (D. Idaho Mar. 31, 2014). Dismissing a petition for a declaratory judgment as to whether a Washington state conviction was substantially equivalent to an Idaho sex offense was error. where the petitioner alleged that he planned to work more frequently in Idaho, he was presently not working in Idaho as much as his job demands dictated, and the requested relief was likely to prevent injury. Doe v. State, 158 Idaho 778, 352 P.3d 500 (2015).

While the Idaho supreme court has previously stated that this section applies only in a case where an actual or justiciable controversy exists, precluding courts from deciding cases which are purely hypothetical or advisory, the justiciability requirement is a self-imposed constraint that may be relaxed in rare cases to guarantee important constitutional provisions. Westover v. Idaho Counties Risk Mgmt. Program, 164 Idaho 385, 430 P.3d 1284 (2018).

— Declaratory Judgment.

Declaratory judgment was an appropriate cause of action where the agency responsible for the sex offender registry did not have a process for providing advisory rulings. Doe v. State, 158 Idaho 778, 352 P.3d 500 (2015).

Prosecuting Attorney Suing.

Action by prosecuting attorney for himself and for his successor in office for a declaratory judgment as to validity of a village ordinance was an action in his official capacity and on behalf of the people of the county and not in his individual capacity. Potvin v. Chubbuck, 76 Idaho 453, 284 P.2d 414 (1955).

Where a village located in one county passes an ordinance annexing territory in another county, the prosecuting attorney of the county in which the land sought to be annexed was located, who filed an action for a declaratory judgment to determine validity of ordinance, was entitled to maintain same as a quo warranto proceeding, though quo warranto was not the exclusive remedy for testing validity of annexation. Potvin v. Chubbuck, 76 Idaho 453, 284 P.2d 414 (1955).

Plat.

In an action for declaratory judgment to determine whether a road was public or private, the district court correctly declared that the road was public, because the plat unambiguously dedicated the disputed road to the public. Kepler-Fleenor v. Fremont County, 152 Idaho 207, 268 P.3d 1159 (2012).

Retailer.

A retailer, who was prohibited from continuing to sell beer in kegs as a result of the passage of a county ordinance, was a proper party to bring a declaratory judgment action challenging the validity of a section of the ordinance that prohibited the sale of beer in kegs within the county. Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983).

Validity of Ordinance.

An applicant for a beer license was not precluded, by the existence of appellate procedure in the licensing laws, from seeking a declaratory judgment to determine the validity of the village ordinance under which his application was denied. Winther v. Village of Weippe, 91 Idaho 798, 430 P.2d 689 (1967).

Zoning.

Property owner acted reasonably on appeal in a zoning case, conceding arguments where a decision unfavorable to him was res judicata and by not making frivolous arguments. Thus, although the owner lacked standing under this section because the zoning of his land had not been changed, the county was not entitled to attorney fees on appeal. Martin v. Smith, 154 Idaho 161, 296 P.3d 367 (2013).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

Automobile Insurance Policies.

Any party involved in an automobile accident, whether it is the injured party, the insured, or the insurance carrier, may apply to the court for the determination of the rights and liabilities of the parties in advance of any suit being filed by the injured party against the insured. Farm Bureau Mut. Auto. Ins. Co. v. Daniel, 92 F.2d 838 (4th Cir. 1937).

Taxation.

Where a taxpayer, seeking to recover state income taxes, had complied with the statutes relating to review of the action of the commissioner, and the fact that suit had been brought under the declaratory judgment statute, rather than a suit to review the action of the commissioner, had not imposed an additional burden upon the commissioner, the relief would not be denied on the ground that the taxpayer had sought the wrong remedy. Walker v. Wedgwood, 64 Idaho 285, 130 P.2d 856 (1942).

Am. Jur. 2d.

C.J.S.

Amendments.

The 2010 amendment, by ch. 235, substituted “a person with a mental disability” for “lunatic” in the introductory paragraph.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

Jurisdiction.

Where, by the pleadings of the parties and the pre-trial order of the court, construction of the will was sought by all parties, the district court had before it the necessary parties and the will itself, as it is a court of general jurisdiction, under the circumstances, it properly could consider the question as one involving a petition for declaratory judgment, although the probate court did not attempt any construction of the will. Sawyer v. Huff, 86 Idaho 328, 386 P.2d 563 (1963).

Decisions Under Prior Law

Validity of Trust.

The validity or certainty of a trust may be determined in a declaratory action. Chicago Bank of Commerce v. McPherson, 62 F.2d 393 (6th Cir.), cert. denied, 289 U.S. 736, 53 S. Ct. 596, 77 L. Ed. 1484 (1932).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

The bracketed insertions were added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

The words “this act” refer to S.L. 1933, ch. 70, which is codified as§§ 10-1201 to 10-1216.

Appealable Order.

In personal injury action brought by passenger against minor driver in which minor’s father was named as codefendant on the basis of former§ 49-313 [now§ 49-310], where plaintiff moved for partial summary judgment against the father who countered with a pleading denominated a “petition for declaratory judgment” by which he sought determination of the extent of his liability under former§ 49-313 [now§ 49-310], trial court’s order purporting to determine the extent of such liability could not be considered a declaratory order or judgment under this section, nor was it in the nature of a final judgment or decree subject to review under Idaho App. R. 11(a)(1); rather, it remained subject to review and revision in the trial court so long as the jurisdiction of that court continued. Nelson v. Whitesides, 103 Idaho 374, 647 P.2d 1246 (1982).

C.J.S.

§ 10-1208. Further relief on petition — Showing by adverse party.

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

History.

1933, ch. 70, § 8, p. 113.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

Am. Jur. 2d.

C.J.S.

Cross References.

Trial of issues of fact, Idaho Civil Procedure Rules 38(a) to 38(d) and 39(a) to 39(c).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

The words “this act” refer to S.L. 1933, ch. 70, which is codified as§§ 10-1201 to 10-1216.

Declaratory Judgment on Cross-Complaint.

Failure to dismiss cross claim, in suit brought for the sole purpose of securing a declaration that an insurance policy had been obtained by fraudulent representations and concealment of facts, of the heirs of the people killed in an automobile collision with insured was error as insurance company was entitled to attack propriety of the cross-claim without waiving its right or the right of the insured to a jury trial on the issues raised thereby. Temperance Ins. Exch. v. Carver, 83 Idaho 487, 365 P.2d 824 (1961).

Issues for Jury.

Issue of negligence of warehouse in failing to move wheat from warehouse due to danger from flood was for the jury. Ennis v. Casey, 72 Idaho 181, 238 P.2d 435 (1951).

When Proper Remedy.

In the Declaratory Judgments Act itself, the legislature has undertaken to extend the right of jury trial to issues of fact arising in such cases only on a permissive basis. Temperance Ins. Exch. v. Carver, 83 Idaho 487, 365 P.2d 824 (1961). When Proper Remedy.

Declaratory judgment is not a proper remedy where main issue is determination of issue of fact. Ennis v. Casey, 72 Idaho 181, 238 P.2d 435 (1951).

Declaratory judgment proceeding was not the proper proceeding to determine the amount of damages that an insurance exchange owed to decedent’s estate because this was a factual issue, and there was no complicated question to answer with respect to a policy’s interpretation. Farmers Ins. Exch. v. Tucker, 142 Idaho 191, 125 P.3d 1067 (2005).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

The words “this act” refer to S.L. 1933, ch. 70, which is codified as§§ 10-1201 to 10-1216.

Costs Denied.

Where appellant insured’s claims for breach of an insurance contract and declaratory relief were dismissed, the insured was not the prevailing party and, thus, was not entitled to recover attorney fees under Idaho App. R. 40 or costs under this section. Villa Highlands, LLC v. Western Cmty. Ins. Co., 148 Idaho 598, 226 P.3d 540 (2010).

Novel Arguments.

Where a party chooses to pursue novel arguments and approaches to try to advance its interests and to relieve itself of its contractual obligations, equity and justice require that that party should bear the attributable court costs. Univ. of Idaho Found., Inc. v. Civic Partners, Inc. (In re Univ. Place/Idaho Water Ctr. Project), 146 Idaho 527, 199 P.3d 102 (2008).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

Corporations.

Determination, in proceeding between trustee under will of sole owner of corporation and employees of corporation as beneficiaries under will, that notes of corporation in favor of manager were an expense of corporation was not a bar to counterclaim by corporation for breach of trust in suit on notes by manager against corporation, since actions were not between the same parties, and issue raised by counterclaim was not before the court in the first action. Melgard v. Moscow Idaho Seed Co., 73 Idaho 265, 251 P.2d 546 (1952).

Necessary Parties.

In an action against the department of administration for an alleged violation of the state procurement process, the parties awarded the questioned contracts are necessary parties to the action. Syringa Networks, LLC v. Idaho Dep’t of Admin., 159 Idaho 813, 367 P.3d 208 (2016).

RESEARCH REFERENCES

C.J.S.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

The words “this act” refer to S.L. 1933, ch. 70, which is codified as§§ 10-1201 to 10-1216.

Determinable Issues.

Issue of whether warehouse was guilty of negligence in failing to move wheat from danger of flood could not be determined by declaratory judgment suit. Ennis v. Casey, 72 Idaho 181, 238 P.2d 435 (1951).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

The words “this act” refer to S.L. 1933, ch. 70, which is codified as§§ 10-1201 to 10-1216.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

The words “this act” refer to S.L. 1933, ch. 70, which is codified as§§ 10-1201 to 10-1216.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

The bracketed word “those” was inserted by the compiler.

The words “this act” refer to S.L. 1933, ch. 70, which is codified as§§ 10-1201 to 10-1216.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975. See Compiler’s Notes,§ 10-1201.

The words “this act” refer to S.L. 1933, ch. 70, which is codified as§§ 10-1201 to 10-1216.

Am. Jur. 2d.

Compiler’s Notes.

The words “this act” refer to S.L. 1974, ch. 64, which is codified as§§ 10-1301 to 10-1306, 10-1307, 10-1308.

Election of Remedies.

There is no basis for preventing a foreign judgment creditor from pursuing parallel methods of satisfying his or her entire judgment. A judgment filed under the Idaho Enforcement of Foreign Judgments Act (EFJA) creates a lien on only real property, but, if a judgment debtor has insufficient real property to pay the entire judgment, it may be necessary to reach the debtor’s other property; accordingly, a judgment creditor is not forced to elect between filing a foreign judgment under the EFJA and pursuing an action based on the foreign judgment. Grazer v. Jones, 154 Idaho 58, 294 P.3d 184 (2013).

Time Limitations.

Six-year statute of limitations in§ 5-215 does not affect the time in which a foreign judgment may be filed pursuant to the Idaho Enforcement of Foreign Judgments Act (EFJA). Section 5-215 applies only to an action upon a judgment requiring a judgment creditor to file a completely new case, but an EFJA filing does not involve initiating a new case; rather, under the EFJA, the foreign judgment is treated in the same manner as an Idaho judgment. Grazer v. Jones, 154 Idaho 58, 294 P.3d 184 (2013).

Cited Kressly v. Kressly, 99 Idaho 348, 581 P.2d 806 (1978); Schwilling v. Horne, 105 Idaho 294, 669 P.2d 183 (1983); Andre v. Morrow, 106 Idaho 455, 680 P.2d 1355 (1984); Crosby v. Rowand Mach. Co., 111 Idaho 939, 729 P.2d 414 (Ct. App. 1986); In re Millsap, 122 Bankr. 577 (Bankr. D. Idaho 1991); G & R Petro., Inc. v. Clements, 127 Idaho 119, 898 P.2d 50 (1995). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

ALR.

Res judicata or collateral estoppel effect, in state where real property is located, of foreign decree dealing with such property. 32 A.L.R.3d 1330.

Requirement of full faith and credit to foreign judgment for punitive damages. 44 A.L.R.3d 960.

Validity, construction, and application of Uniform Enforcement of Foreign Judgments Act. 31 A.L.R.4th 706.

Compiler’s Notes.

The bracketed insertion in subsection (1) was added by the compiler to correct the title of the named act.

Motion to Strike.

Perfecting a Foreign Judgment.

The Idaho district court’s denial of defendant’s motion to strike a foreign judgment, which denial was based upon the district court’s determination as a matter of law, that the Alaska court had personal jurisdiction over the defendant, was in error, where the evidence raised a substantial factual question as to whether the defendant had had sufficient minimum contacts with Alaska so as to support the assertion of in personam jurisdiction by the Alaska court. Schwilling v. Horne, 105 Idaho 294, 669 P.2d 183 (1983). Perfecting a Foreign Judgment.

A foreign judgment may be perfected in Idaho by the filing of a duly authenticated copy of the judgment in the office of the clerk of a court, pursuant to§ 10-1303, together with an affidavit containing the name and address of the judgment debtor and of the judgment creditor, and notice of that filing shall be mailed to the judgment debtor where, upon recording, that judgment becomes a lien upon real property. Westmark Fed. Credit Union v. Smith, 116 Idaho 474, 776 P.2d 1193 (1989).

Reversal of Foreign Judgment.

Where the Alaska supreme court reversed the order of the superior court of Alaska and set aside an Alaska judgment creditor’s Alaska money judgment, it was improper for an Idaho district county court to deny the Alaska judgment debtor’s Idaho R. Civ. P. 60(b) motion to set aside a judgment filed by the Alaska judgment creditor pursuant to this section. P & R Enters., Inc. v. Guard, 102 Idaho 671, 637 P.2d 1167 (1981).

Time Limitations.

Six-year statute of limitations in.§ 5-215 does not affect the time in which a foreign judgment may be filed pursuant to the Idaho Enforcement of Foreign Judgments Act (EFJA). Under the EFJA, the foreign judgment is merely treated in the same manner as an Idaho judgment by the clerk of the court in which the judgment is filed, and may be enforced or satisfied in like manner as an Idaho judgment, under§ 10-1302. Grazer v. Jones, 154 Idaho 58, 294 P.3d 184 (2013).

Writ of Execution.

Where a magistrate court, having before it a copy of a foreign judgment which had been filed in that court and recorded in the recorder’s office, issued a writ of execution with regard to said judgment, and where said magistrate court also had a copy of the requisite affidavit, a copy of the notice to the judgment creditors, and a copy of the clerk’s certificate indicating that the judgment had been recorded, and where the judgment debtors were not a party to a subsequent action concerning the issuance of said writ, with regard to that subsequent action, an irregularity in the writ or its issuance was not sufficient to render it void. Westmark Fed. Credit Union v. Smith, 116 Idaho 474, 776 P.2d 1193 (1989).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

As enacted, this section contained a heading which read, “Affidavit setting forth name and address of judgment debtor and creditor — Notice of filing — Execution, etc., not to issue until five days from filing of judgment.”

Irregularity in Writ of Execution.

Where a magistrate court, having before it a copy of a foreign judgment which had been filed in that court and recorded in the recorder’s office, issued a writ of execution with regard to said judgment, and where said magistrate court also had a copy of the requisite affidavit, a copy of the notice to the judgment creditors, and a copy of the clerk’s certificate indicating that the judgment had been recorded, and where the judgment debtors were not a party to a subsequent action concerning the issuance of said writ, with regard to that subsequent action, an irregularity in the writ or its issuance was not sufficient to render it void. Westmark Fed. Credit Union v. Smith, 116 Idaho 474, 776 P.2d 1193 (1989).

Lien on Real Property.

A foreign judgment may be perfected in Idaho by the filing of a duly authenticated copy of the judgment in the office of the clerk of a court, pursuant to this section, together with an affidavit containing the name and address of the judgment debtor and of the judgment creditor, and notice of that filing shall be mailed to the judgment debtor where, upon recording, that judgment becomes a lien upon real property. Westmark Fed. Credit Union v. Smith, 116 Idaho 474, 776 P.2d 1193 (1989).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

As enacted, this section contained a heading which read, “Stay of execution pending appeal, etc.”

Am. Jur. 2d.

C.J.S.

Cross References.

Fees of clerk of district court,§ 31-3201.

Court technology fund,§ 1-1623.

State treasurer,§ 67-1201 et seq.

Amendments.

The 2014 amendment, by ch. 190, substituted “twenty-seven dollars ($27.00)” for “seven dollars ($7.00)” in the first sentence and inserted the present second sentence in the section.

Effective Dates.

Section 7 of S.L. 1979, ch. 219 provided that the act should take effect July 1, 1979.

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The words “this act” refer to S.L. 1974, ch. 64, which is codified as§§ 10-1301 to 10-1306, 10-1307, 10-1308.

As enacted this section contained a headline which read, “Alternative remedy to bring action to enforce judgment.”

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The words “this act” refer to S.L. 1975, ch. 14 which is codified as this section.

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The words “this act” refer to S.L. 1974, ch. 64, which is codified as§§ 10-1301 to 10-1306, 10-1307, 10-1308.

Compiler’s Notes.

The words “this act” refer to S.L. 1974, ch. 64, which is codified as§§ 10-1301 to 10-1306, 10-1307, 10-1308.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act, develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Compiler’s Notes.

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” Compiler’s Notes.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Former chapter 14 of Title 10, which comprised the following sections, was repealed by S.L. 2007, ch. 46, § 1.

10-1401. Definitions. [I.C.,§ 10-1401, as added by 1990, ch. 408, § 1, p. 1134.]

10-1402. Applicability. [I.C.,§ 10-1402, as added by 1990, ch. 408, § 1, p. 1134.]

10-1403. Recognition and enforcement. [I.C.,§ 10-1403, as added by 1990, ch. 408, § 1, p. 1134.]

10-1404. Grounds for nonrecognition. [I.C.,§ 10-1404, as added by 1990, ch. 408, § 1, p. 1134.]

10-1405. Personal jurisdiction. [I.C.,§ 10-1405, as added by 1990, ch. 408, § 1, p. 1134.]

10-1406. Stay in case of appeal. [I.C.,§ 10-1406, as added by 1990, ch. 408, § 1, p. 1134.]

10-1407. Savings clause. [I.C.,§ 10-1407, as added by 1990, ch. 408, § 1, p. 1134.]

10-1408. Uniformity of interpretation. [I.C.,§ 10-1408, as added by 1990, ch. 408, § 1, p. 1134.]

10-1409. Short title. [I.C.,§ 10-1409, as added by 1990, ch. 408, § 1, p. 1134.]

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

Official Comment

Source:

Prior Laws.

Former§ 10-1402 was repealed. See Prior Laws,§ 10-1401.

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

Official Comment

Source:

1. The defined terms “foreign state” and “foreign judgment” in the 1962 Act have been changed to “foreign country” and “foreign-country judgment” in order to make it clear that the Act does not apply to recognition of sister-state judgments. Some courts have noted that the “foreign state” and “foreign judgment” definitions of the 1962 Act have caused confusion as to whether the Act should apply to sister-state judgments because “foreign state” and “foreign judgment” are terms of art generally used in connection with recognition and enforcement of sister-state judgments. See, e.g., Eagle Leasing v. Amandus , 476 N.W.2d 35 (Iowa 1991) (reversing lower court’s application of UFMJRA to a sister-state judgment, but noting lower court’s confusion was understandable as “foreign judgment” is term of art normally applied to sister-state judgments). See also, Uniform Enforcement of Foreign Judgments Act § 1 (defining “foreign judgment” as the judgment of a sister state or federal court).
2. The definition of “foreign-country judgment” in this Act differs significantly from the 1962 Act’s definition of “foreign judgment.” The 1962 Act’s definition served in large part as a scope provision for the Act. The part of the definition defining the scope of the Act has been moved to section 3 [§ 10-1403], which is the scope section.
3. The definition of “foreign-country judgment” in this Act refers to “a judgment” of “a court” of the foreign country. The foreign-country judgment need not take a particular form — any order or decree that meets the requirements of this section and comes within the scope of the Act under Section 3 [§ 10-1403] is subject to the Act. Similarly, any competent government tribunal that issues such a “judgment” comes within the term “court” for purposes of this Act. The judgment, however, must be a judgment of an adjudicative body of the foreign country, and not the result of an alternative dispute mechanism chosen by the parties. Thus, foreign arbitral awards and agreements to arbitrate are not covered by this Act. They are governed instead by federal law, Chapter 2 of the U.S. Arbitration Act, 9 U.S.C.§§ 201-208, implementing the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Chapter 3 of the U.S. Arbitration Act, 9 U.S.C.§§ 301-307, implementing the Inter-American Convention on International Commercial Arbitration. A judgment of a foreign court confirming or setting aside an arbitral award, however, would be covered by this Act. 4. The definition of “foreign-country judgment” does not limit foreign-country judgments to those rendered in litigation between private parties. Judgments in which a governmental entity is a party also are included, and are subject to this Act if they meet the requirements of this section and are within the scope of the Act under Section 3 [§ 10-1403].

The 1962 Act defines a “foreign state” as “any governmental unit other than the United States, or any state, district, commonwealth, territory, insular possession thereof, or the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryuku Islands.” Rather than simply updating the list in the 1962 Act’s definition of “foreign state,” the new definition of “foreign country” in this Act combines the “listing” approach of the 1962 Act’s “foreign state” definition with a provision that defines “foreign country” in terms of whether the judgments of the particular government’s courts are initially subject to the Full Faith and Credit Clause standards for determining whether those judgments will be recognized. Under this new definition, a governmental unit is a “foreign country” if it is (1) not the United States or a state, district, commonwealth, territory or insular possession of the United States; and (2) its judgments are not initially subject to Full Faith and Credit Clause standards. The Full Faith and Credit Clause, Art. IV, section 1, provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.” Whether the judgments of a governmental unit are subject to the Full Faith and Credit Clause may be determined by judicial interpretation of the Full Faith and Credit Clause or by statute, or by a combination of these two sources. For example, pursuant to the authority granted by the second sentence of the Full Faith and Credit Clause, Congress has passed 28 U.S.C. § 1738, which provides inter alia that court records from “any State, Territory, or Possession of the United States” are entitled to full faith and credit under the Full Faith and Credit Clause. In Stoll v. Gottlieb , 305 U.S. 165, 170 (1938), the United States Supreme Court held that this statute also requires that full faith and credit be given to judgments of federal courts. States also have made determinations as to whether certain types of judgments are subject to the Full Faith and Credit Clause. E.g. Day v. Montana Dept. of Social & Rehab. Servs. , 900 P.2d 296 (Mont. 1995) (tribal court judgment not subject to Full Faith and Credit, and should be treated with same deference shown foreign-country judgments). Under the definition of “foreign country” in this Act, the determination as to whether a governmental unit’s judgments are subject to full faith and credit standards should be made by reference to any relevant law, whether statutory or decisional, that is applicable “in this state.”

The definition of “foreign country” in terms of those judgments not subject to Full Faith and Credit standards also has the advantage of more effectively coordinating the Act with the Uniform Enforcement of Foreign Judgments Act. That Act, which establishes a registration procedure for the enforcement of sister state and equivalent judgments, defines a “foreign judgment” as “any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Uniform Enforcement of Foreign Judgments Act, § 1 (1964). By defining “foreign country” in the Recognition Act in terms of those judgments not subject to full faith and credit standards, this Act makes it clear that the Enforcement Act and the Recognition Act are mutually exclusive — if a foreign money judgment is subject to full faith and credit standards, then the Enforcement Act’s registration procedure is available with regard to its enforcement; if the foreign money judgment is not subject to full faith and credit standards, then the foreign money judgment may not be enforced until recognition of it has been obtained in accordance with the provisions of the Recognition Act.

Prior Laws.

Former§ 10-1403 was repealed. See Prior Laws,§ 10-1401.

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

Decisions Under Prior Law

Foreign Countries.

This section does not apply to judgments from sister states, only to judgments from foreign countries. LeaseFirst v. Burns, 131 Idaho 158, 953 P.2d 598 (1998).

ALR.

Official Comment

Source:

Source: This section is based on Section 2 of the 1962 Act. Subsection (b) [(2)] contains material that was included as part of the definition of “foreign judgment” in Section 1(2) of the 1962 Act. Subsection (c) [(3)] is new.

1. Like the 1962 Act, this Act sets out in subsection 3(a) [(1)] two basic requirements that a foreign-country judgment must meet before it comes within the scope of this Act — the foreign-country judgment must (1) grant or deny recovery of a sum of money and (2) be final, conclusive and enforceable under the law of the foreign country where it was rendered. Subsection 3(b) [(2)] then sets out three types of foreign-country judgments that are excluded from the coverage of this Act, even though they meet the criteria of subsection 3(a) [(1)] — judgments for taxes, judgments constituting fines and other penalties, and judgments in domestic relations matters. These exclusions are comparable to those contained in Section 1(2) of the 1962 Act.
2. This Act applies to a foreign-country judgment only to the extent the foreign-country judgment grants or denies recovery of a sum of money. If a foreign-country judgment both grants or denies recovery of a sum money and provides for some other form of relief, this Act would apply to the portion of the judgment that grants or denies monetary relief, but not to the portion that provides for some other form of relief. The U.S. court, however, would be left free to decide to recognize and enforce the non-monetary portion of the judgment under principles of comity or other applicable law. See Section 11 [§ 10-1411].
3. In order to come within the scope of this Act, a foreign-country judgment must be final, conclusive, and enforceable under the law of the foreign country in which it was rendered. This requirement contains three distinct, although inter-related concepts. A judgment is final when it is not subject to additional proceedings in the rendering court other than execution. A judgment is conclusive when it is given effect between the parties as a determination of their legal rights and obligations. A judgment is enforceable when the legal procedures of the state to ensure that the judgment debtor complies with the judgment are available to the judgment creditor to assist in collection of the judgment.
4. Subsection 3(b) [(2)] follows the 1962 Act by excluding three categories of foreign-country money judgments from the scope of the Act — judgments for taxes, judgments that constitute fines and penalties, and judgments in domestic relations matters. The domestic relations exclusion has been redrafted to make it clear that all judgments in domestic relations matters are excluded from the Act, not just judgments “for support” as provided in the 1962 Act. This is consistent with interpretation of the 1962 Act by the courts, which extended the “support” exclusion in the 1962 Act beyond its literal wording to exclude other money judgments in connection with domestic matters. E.g., Wolff v. Wolff , 389 A.2d 413 (Md. App. 1978) (“support” includes alimony).

While the first two of these requirements — finality and conclusiveness — will apply with regard to every foreign-country money judgment, the requirement of enforceability is only relevant when the judgment is one granting recovery of a sum of money. A judgment denying a sum of money obviously is not subject to enforcement procedures, as there is no monetary award to enforce. This Act, however, covers both judgments granting and those denying recovery of a sum of money. Thus, the fact that a foreign-country judgment denying recovery of a sum of money is not enforceable does not mean that such judgments are not within the scope of the Act. Instead, the requirement that the judgment be enforceable should be read to mean that, if the foreign-country judgment grants recovery of a sum of money, it must be enforceable in the foreign country in order to be within the scope of the Act.

Like the 1962 Act, subsection 3(b) [(2)] requires that the determinations as to finality, conclusiveness and enforceability be made using the law of the foreign country in which the judgment was rendered. Unless the foreign-country judgment is final, conclusive, and (to the extent it grants recovery of a sum of money) enforceable in the foreign country where it was rendered, it will not be within the scope of this Act.

Recognition and enforcement of domestic relations judgments traditionally has been treated differently from recognition and enforcement of other judgments. The considerations with regard to those judgments, particularly with regard to jurisdiction and finality, differ from those with regard to other money judgments. Further, national laws with regard to domestic relations vary widely, and recognition and enforcement of such judgments thus is more appropriately handled through comity than through use of this uniform Act. Finally, other statutes, such as the Uniform Interstate Family Support Act and the federal International Child Support Enforcement Act, 42 U.S.C. § 659a (1996), address various aspects of the recognition and enforcement of domestic relations awards. Under Section 11 [§ 10-1411] of this Act, courts are free to recognize money judgments in domestic relations matters under principles of comity or otherwise, and U.S. courts routinely enforce money judgments in domestic relations matters under comity principles.

Foreign-country judgments for taxes and judgments that constitute fines or penalties traditionally have not been recognized and enforced in U.S. courts. See, e.g., Restatement Third of the Foreign Relations Law of the United States § 483 (1986). Both the “revenue rule,” under which the courts of one country will not enforce the revenue laws of another country, and the prohibition on enforcement of penal judgments seem to be grounded in the idea that one country does not enforce the public laws of another. See id. Reporters’ Note 2. The exclusion of tax judgments and judgments constituting fines or penalties from the scope of the Act reflects this tradition. Under Section 11 [§ 10-1411], however, courts remain free to consider whether such judgments should be recognized and enforced under comity or other principles.

A judgment for taxes is a judgment in favor of a foreign country or one of its subdivisions based on a claim for an assessment of a tax. Thus, a judgment awarding a plaintiff restitution of the purchase price paid for an item would not be considered in any part a judgment for taxes, even though one element of the recovery was the sales tax paid by the plaintiff at the time of purchase. Such a judgment would not be one designed to enforce the revenue laws of the foreign country, but rather one designed to compensate the plaintiff. Courts generally hold that the test for whether a judgment is a fine or penalty is determined by whether its purpose is remedial in nature, with its benefits accruing to private individuals, or it is penal in nature, punishing an offense against public justice. E.g., Chase Manhattan Bank, N.A. v. Hoffman , 665 F. Supp 73 (D. Mass. 1987) (finding that Belgium judgment was not penal even though the proceeding forming the basis of the suit was primarily criminal where Belgium court considered damage petition a civil remedy, the judgment did not constitute punishment for an offense against public justice of Belgium, and benefit of the judgment accrued to private judgment creditor, not Belgium). Thus, a judgment that awards compensation or restitution for the benefit of private individuals should not automatically be considered penal in nature and therefore outside the scope of the Act simply because the action is brought on behalf of the private individuals by a government entity. Cf. U.S.-Australia Free Trade Agreement, art. 14.7.2, U.S.-Austl., May 18, 2004 (providing that when government agency obtains a civil monetary judgment for purpose of providing restitution to consumers, investors, or customers who suffered economic harm due to fraud, judgment generally should not be denied recognition and enforcement on ground that it is penal or revenue in nature, or based on other foreign public law). 5. Under subsection 3(b) [(2)], a foreign-country money judgment is not within the scope of this Act “to the extent” that it comes within one of the excluded categories. Therefore, if a foreign-country money judgment is only partially within one of the excluded categories, the non-excluded portion will be subject to this Act.

6. Subsection 3(c) [(3)] is new. The 1962 Act does not expressly allocate the burden of proof with regard to establishing whether a foreign-country judgment is within the scope of the Act. Courts applying the 1962 Act generally have held that the burden of proof is on the person seeking recognition to establish that the judgment is final, conclusive and enforceable where rendered. E.g., Mayekawa Mfg. Co. Ltd. v. Sasaki , 888 P.2d 183, 189 (Wash. App. 1995) (burden of proof on creditor to establish judgment is final, conclusive, and enforceable where rendered); Bridgeway Corp. v. Citibank , 45 F. Supp. 2d 276, 285 (S.D.N.Y. 1999) (party seeking recognition must establish that there is a final judgment, conclusive and enforceable where rendered); S.C. Chimexim S.A. v. Velco Enterprises, Ltd. , 36 F. Supp. 2d 206, 212 (S.D.N.Y. 1999) (Plaintiff has the burden of establishing conclusive effect). Subsection (3)(c) [(3)] places the burden of proof to establish whether a foreign-country judgment is within the scope of the Act on the party seeking recognition of the foreign-country judgment with regard to both subsection (a) [(1)] and subsection (b) [(2)].

Prior Laws.

Former§ 10-1404 was repealed. See Prior Laws,§ 10-1401.

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

CASE NOTES

Cited

Markin v. Grohmann, 153 Idaho 223, 280 P.3d 726 (2012).

Official Comment

Source:

1. This Section provides the standards for recognition of a foreign-country money judgment. Section 7 [§ 10-1407] sets out the effect of recognition of a foreign-country money judgment under this Act.
2. Recognition of a judgment means that the forum court accepts the determination of legal rights and obligations made by the rendering court in the foreign country. See, e.g. Restatement (Second) of Conflicts of Laws, Ch. 5, Topic 3, Introductory Note (recognition of foreign judgment occurs to the extent the forum court gives the judgment “the same effect with respect to the parties, the subject matter of the action and the issues involved that it has in the state where it was rendered.”) Recognition of a foreign-country judgment must be distinguished from enforcement of that judgment. Enforcement of the foreign-country judgment involves the application of the legal procedures of the state to ensure that the judgment debtor obeys the foreign-country judgment. Recognition of a foreign-country money judgment often is associated with enforcement of the judgment, as the judgment creditor usually seeks recognition of the foreign-country judgment primarily for the purpose of invoking the enforcement procedures of the forum state to assist the judgment creditor’s collection of the judgment from the judgment debtor. Because the forum court cannot enforce the foreign-country judgment until it has determined that the judgment will be given effect, recognition is a prerequisite to enforcement of the foreign-country judgment. Recognition, however, also has significance outside the enforcement context because a foreign-country judgment also must be recognized before it can be given preclusive effect under res judicata and collateral estoppel principles. The issue of whether a foreign-country judgment will be recognized is distinct from both the issue of whether the judgment will be enforced, and the issue of the extent to which it will be given preclusive effect.
3. Subsection 4(a) [(1)] places an affirmative duty on the forum court to recognize a foreign-country money judgment unless one of the grounds for nonrecognition stated in subsection (b) [(2)] or (c) [(3)] applies. Subsection (b) [(2)] states three mandatory grounds for denying recognition to a foreign-country money judgment. If the forum court finds that one of the grounds listed in subsection (b) [(2)] exists, then it must deny recognition to the foreign-country money judgment. Subsection (c) [(3)] states eight nonmandatory grounds for denying recognition. The forum court has discretion to decide whether or not to refuse recognition based on one of these grounds. Subsection (d) [(4)] places the burden of proof on the party resisting recognition of the foreign-country judgment to establish that one of the grounds for nonrecognition exists.
4. The mandatory grounds for nonrecognition stated in subsection (b) [(2)] are identical to the mandatory grounds stated in Section 4 of the 1962 Act. The discretionary grounds stated in subsection 4(c)(1) [(3)(a)] through (6) [(3)(f)] are based on subsection 4(b)(1) through (6) of the 1962 Act. The discretionary grounds stated in subsection 4(c)(7) [(3)(g)] and (8) [(3)(h)] are new.
5. Under subsection (b)(1) [(2)(a)], the forum court must deny recognition to the foreign-country money judgment if that judgment was “rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” The standard for this ground for nonrecognition “has been stated authoritatively by the Supreme Court of the United States in Hilton v. Guyot , 159 U.S. 113, 205 (1895). As indicated in that decision, a mere difference in the procedural system is not a sufficient basis for nonrecognition. A case of serious injustice must be involved.” Cmt § 4, Uniform Foreign Money-Judgment Recognition Act (1962). The focus of inquiry is not whether the procedure in the rendering country is similar to U.S. procedure, but rather on the basic fairness of the foreign-country procedure. Kam-Tech Systems, Ltd. V. Yardeni, 774 A.2d 644, 649 (N.J. App. 2001) (interpreting the comparable provision in the 1962 Act); accord, Society of Lloyd’s v. Ashenden , 233 F.3d 473 (7th Cir. 2000) (procedures need not meet all the intricacies of the complex concept of due process that has emerged from U.S. case law, but rather must be fair in the broader international sense) (interpreting comparable provision in the 1962 Act). Procedural differences, such as absence of jury trial or different evidentiary rules are not sufficient to justify denying recognition under subsection (b)(1) [(2)(a)], so long as the essential elements of impartial administration and basic procedural fairness have been provided in the foreign proceeding. As the U.S. Supreme Court stated in Hilton:
6. Under section 4(b)(2) [(2)(b)], the forum court must deny recognition to the foreign-country judgment if the foreign court did not have personal jurisdiction over the defendant. Section 5(a) [§ 10-1405(1)] lists six bases for personal jurisdiction that are adequate as a matter of law to establish that the foreign court had personal jurisdiction. Section 5(b) [§ 10-1405(2)] makes clear that other grounds for personal jurisdiction may be found sufficient.
7. Subsection 4(c)(2) [(3)(b)] limits the type of fraud that will serve as a ground for denying recognition to extrinsic fraud. This provision is consistent with the interpretation of the comparable provision in subsection 4(b)(2) of the 1962 Act by the courts, which have found that only extrinsic fraud — conduct of the prevailing party that deprived the losing party of an adequate opportunity to present its case — is sufficient under the 1962 Act. Examples of extrinsic fraud would be when the plaintiff deliberately had the initiating process served on the defendant at the wrong address, deliberately gave the defendant wrong information as to the time and place of the hearing, or obtained a default judgment against the defendant based on a forged confession of judgment. When this type of fraudulent action by the plaintiff deprives the defendant of an adequate opportunity to present its case, then it provides grounds for denying recognition of the foreign-country judgment. Extrinsic fraud should be distinguished from intrinsic fraud, such as false testimony of a witness or admission of a forged document into evidence during the foreign proceeding. Intrinsic fraud does not provide a basis for denying recognition under subsection 4(c)(2) [(3)(b)], as the assertion that intrinsic fraud has occurred should be raised and dealt with in the rendering court.
8. The public policy exception in subsection 4(c)(3) [(3)(c)] is based on the public policy exception in subsection 4(b)(3) of the 1962 Act, with one difference. The public policy exception in the 1962 Act states that the relevant inquiry is whether “the [cause of action] [claim for relief] on which the judgment is based” is repugnant to public policy. Based on this “cause of action” language, some courts interpreting the 1962 Act have refused to find that a public policy challenge based on something other than repugnancy of the foreign cause of action comes within this exception. E.g., Southwest Livestock & Trucking Co., Inc. v. Ramon , 169 F.3d 317 (5th Cir. 1999) (refusing to deny recognition to Mexican judgment on promissory note with interest rate of 48% because cause of action to collect on promissory note does not violate public policy); Guinness PLC v. Ward , 955 F.2d 875 (4th Cir. 1992) (challenge to recognition based on post-judgment settlement could not be asserted under public policy exception); The Society of Lloyd’s v. Turner , 303 F.3d 325 (5th Cir. 2002) (rejecting argument legal standards applied to establish elements of breach of contract violated public policy because cause of action for breach of contract itself is not contrary to state public policy); cf. Bachchan v. India Abroad Publications, Inc. , 585 N.Y.S.2d 661 (N.Y. Sup. Ct. 1992) (judgment creditor argued British libel judgment should be recognized despite argument it violated First Amendment because New York recognizes a cause of action for libel). Subsection 4(c)(3) [(3)(c)] rejects this narrow focus by providing that the forum court may deny recognition if either the cause of action or the judgment itself violates public policy. Cf. Restatement (Third) of the Foreign Relations Law of the United States, § 482(2)(d) (1986) (containing a similarly-worded public policy exception to recognition).
9. Subsection 4(c)(5) [(3)(e)] allows the forum court to refuse recognition of a foreign-country judgment when the parties had a valid agreement, such as a valid forum selection clause or agreement to arbitrate, providing that the relevant dispute would be resolved in a forum other than the forum issuing the foreign-country judgment. Under this provision, the forum court must find both the existence of a valid agreement and that the agreement covered the subject matter involved in the foreign litigation resulting in the foreign-country judgment.
10. Subsection 4(c)(6) [(3)(f)] authorizes the forum court to refuse recognition of a foreign-country judgment that was rendered in the foreign country solely on the basis of personal service when the forum court believes the original action should have been dismissed by the court in the foreign country on grounds of forum non conveniens. 11. Subsection 4(c)(7) [(3)(g)] is new. Under this subsection, the forum court may deny recognition to a foreign-country judgment if there are circumstances that raise substantial doubt about the integrity of the rendering court with respect to that judgment. It requires a showing of corruption in the particular case that had an impact on the judgment that was rendered. This provision may be contrasted with subsection 4(b)(1) [(2)(a)], which requires that the forum court refuse recognition to the foreign-country judgment if it was rendered under a judicial system that does not provide impartial tribunals. Like the comparable provision in subsection 4(a)(1) of the 1962 Act, subsection 4(b)(1) [(2)(a)] focuses on the judicial system of the foreign country as a whole, rather than on whether the particular judicial proceeding leading to the foreign-country judgment was impartial and fair. See, e.g., The Society of Lloyd’s v. Turner , 303 F.3d 325, 330 (5th Cir. 2002) (interpreting the 1962 Act); CIBC Mellon Trust Co. v. Mora Hotel Corp,. N.V. , 743 N.Y.S.2d 408, 415 (N.Y. App. 2002) (interpreting the 1962 Act); Society of Lloyd’s v. Ashenden , 233 F.3d 473, 477 (7th Cir. 2000) (interpreting the 1962 Act). On the other hand, subsection 4(c)(7) [(3)(g)] allows the court to deny recognition to the foreign-country judgment if it finds a lack of impartiality and fairness of the tribunal in the individual proceeding leading to the foreign- country judgment. Thus, the difference is that between showing, for example, that corruption and bribery is so prevalent throughout the judicial system of the foreign country as to make that entire judicial system one that does not provide impartial tribunals versus showing that bribery of the judge in the proceeding that resulted in the particular foreign-country judgment under consideration had a sufficient impact on the ultimate judgment as to call it into question.

[W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect [then a foreign-country judgment should be recognized.] Hilton , 159 U.S. at 202.

Although subsection 4(c)(3) [(3)(c)] of this Act rejects the narrow focus on the cause of action under the 1962 Act, it retains the stringent test for finding a public policy violation applied by courts interpreting the 1962 Act. Under that test, a difference in law, even a marked one, is not sufficient to raise a public policy issue. Nor is it relevant that the foreign law allows a recovery that the forum state would not allow. Public policy is violated only if recognition or enforcement of the foreign-country judgment would tend clearly to injure the public health, the public morals, or the public confidence in the administration of law, or would undermine “that sense of security for individual rights, whether of personal liberty or of private property, which any citizen ought to feel.” Hunt v. BP Exploration Co. (Libya) Ltd. , 492 F. Supp. 885, 901 (N.D. Tex. 1980).

The language “or of the United States” in subsection 4(c)(3) [(3)(c)], which does not appear in the 1962 Act provision, makes it clear that the relevant public policy is that of both the State in which recognition is sought and that of the United States. This is the position taken by the vast majority of cases interpreting the 1962 public policy provision. E.g., Bachchan v. India Abroad Publications, Inc. , 585 N.Y.S.2d 661 (Sup. Ct. N.Y. 1992) (British libel judgment denied recognition because it violates First Amendment).

12. Subsection 4(c)(8) [(3)(h)] also is new. It allows the forum court to deny recognition to the foreign-country judgment if the court finds that the specific proceeding in the foreign court was not compatible with the requirements of fundamental fairness. Like subsection 4(c)(7) [(3)(g)], it can be contrasted with subsection 4(b)(1) [(2)(a)], which requires the forum court to deny recognition to the foreign-country judgment if the forum court finds that the entire judicial system in the foreign country where the foreign-country judgment was rendered does not provide procedures compatible with the requirements of fundamental fairness. While the focus of subsection 4(b)(1) [(2)(a)] is on the foreign country’s judicial system as a whole, the focus of subsection 4(c)(8) [(3)(h)] is on the particular proceeding that resulted in the specific foreign-country judgment under consideration. Thus, the difference is that between showing, for example, that there has been such a breakdown of law and order in the particular foreign country that judgments are rendered on the basis of political decisions rather than the rule of law throughout the judicial system versus a showing that for political reasons the particular party against whom the foreign-country judgment was entered was denied fundamental fairness in the particular proceedings leading to the foreign-country judgment.

Subsections 4(c)(7) [(3)(g)] and (8) [(3)(h)] both are discretionary grounds for denying recognition, while subsection 4(b)(1) [(2)(a)] is mandatory. Obviously, if the entire judicial system in the foreign country fails to satisfy the requirements of impartiality and fundamental fairness, a judgment rendered in that foreign country would be so compromised that the forum court should refuse to recognize it as a matter of course. On the other hand, if the problem is evidence of a lack of integrity or fundamental fairness with regard to the particular proceeding leading to the foreign-country judgment, then there may or may not be other factors in the particular case that would cause the forum court to decide to recognize the foreign-country judgment. For example, a forum court might decide not to exercise its discretion to deny recognition despite evidence of corruption or procedural unfairness in a particular case because the party resisting recognition failed to raise the issue on appeal from the foreign-country judgment in the foreign country, and the evidence establishes that, if the party had done so, appeal would have been an adequate mechanism for correcting the transgressions of the lower court. 13. Under subsection 4(d) [(4)], the party opposing recognition of the foreign-country judgment has the burden of establishing that one of the grounds for nonrecognition set out in subsection 4(b) [(2)] or (c) [(3)] applies. The 1962 Act was silent as to who had the burden of proof to establish a ground for nonrecognition and courts applying the 1962 Act took different positions on the issue. Compare Bridgeway Corp. v. Citibank , 45 F. Supp. 2d 276, 285 (S.D.N.Y. 1999) (plaintiff has burden to show no mandatory basis under 4(a) for nonrecognition exists; defendant has burden regarding discretionary bases) with The Courage Co. LLC v. The ChemShare Corp. , 93 S.W.3d 323, 331 (Tex. App. 2002) (party seeking to avoid recognition has burden to prove ground for nonrecognition). Because the grounds for nonrecognition in Section 4 [§ 10-1404] are in the nature of defenses to recognition, the burden of proof is most appropriately allocated to the party opposing recognition of the foreign-country judgment.

Prior Laws.

Former§ 10-1405 was repealed. See Prior Laws,§ 10-1401.

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

Official Comment

Source:

Source: This provision is based on Section 5 of the 1962 Act. Its substance is the same as that of Section 5 of the 1962 Act, except as noted in Comment 2 below with regard to subsection 5(a)(4) [(1)(d)].

1. Under section 4(b)(2) [§ 10-1404(2)(b)], the forum court must deny recognition to the foreign-country judgment if the foreign court did not have personal jurisdiction over the defendant. Section 5(a) [(1)] lists six bases for personal jurisdiction that are adequate as a matter of law to establish that the foreign court had personal jurisdiction. Section 5(b) [(2)] makes it clear that these bases of personal jurisdiction are not exclusive. The forum court may find that the foreign court had personal jurisdiction over the defendant on some other basis.
2. Subsection 5(a)(4) of the 1962 Act provides that the foreign court had personal jurisdiction over the defendant if the defendant was “a body corporate” that “had its principal place of business, was incorporated, or had otherwise acquired corporate status, in the foreign state.” Subsection 5(a)(4) [(1)(d)] of this Act extends that concept to forms of business organization other than corporations.
3. Subsection 5(a)(3) [(1)(c)] provides that the foreign court has personal jurisdiction over the defendant if the defendant agreed before commencement of the proceeding leading to the foreign-country judgment to submit to the jurisdiction of the foreign court with regard to the subject matter involved. Under this provision, the forum court must find both the existence of a valid agreement to submit to the foreign court’s jurisdiction and that the agreement covered the subject matter involved in the foreign litigation resulting in the foreign-country judgment.

Prior Laws.

Former§ 10-1406 was repealed. See Prior Laws,§ 10-1401.

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

Official Comment

Source:

1. Unlike the 1962 Act, which was silent as to the proper procedure for seeking recognition of a foreign-country judgment, Section 6 [this section] of this Act expressly sets out the ways in which the issue of recognition may be raised. Under section 6 [this section], the issue of recognition always must be raised in a court proceeding. Thus, section 6 [this section] rejects decisions under the 1962 Act holding that the registration procedure found in the Uniform Enforcement of Foreign Judgments Act could be utilized with regard to recognition of a foreign-country judgment. E.g. Society of Lloyd’s v. Ashenden , 233 F.3d 473 (7th Cir. 2000). The Enforcement Act deals solely with the enforcement of sister-state judgments and other judgments entitled to full faith and credit, not with the recognition of foreign-country judgments.
2. This Section contemplates that the issue of recognition may be raised either as an original matter or in the context of a pending proceeding. Subsection 6(a) [(1)] provides that in order to raise the issue of recognition of a foreign-country judgment as an initial matter, the party seeking recognition must file an action for recognition of the foreign-country judgment. Subsection 6(b) [(2)] provides that when the recognition issue is raised in a pending proceeding, it may be raised by counterclaim, cross-claim or affirmative defense, depending on the context in which it is raised. These rules are consistent with the way the issue of recognition most often was raised in most states under the 1962 Act.
3. An action seeking recognition of a foreign-country judgment under this Section is an action on the foreign-country judgment itself, not an action on the underlying cause of action that gave rise to that judgment. The parties to an action under Section 6 [this section] may not relitigate the merits of the underlying dispute that gave rise to the foreign-country judgment.
4. While this Section sets out the ways in which the issue of recognition of a foreign-country judgment may be raised, it is not intended to create any new procedure not currently existing in the state or to otherwise effect existing state procedural requirements. The parties to an action in which recognition of a foreign-country judgment is sought under Section 6 [this section] must comply with all state procedural rules with regard to that type of action. Nor does this Act address the question of what constitutes a sufficient basis for jurisdiction to adjudicate with regard to an action under Section 6 [this section]. Courts have split over the issue of whether the presence of assets of the debtor in a state is a sufficient basis for jurisdiction in light of footnote 36 of the U.S. Supreme Court decision in Shaffer v. Heitner, 433 U.S. 186, 210 n.36 (1977). This Act takes no position on that issue. 5. In states that have adopted the Uniform Foreign-Money Claims Act, that Act will apply to the determination of the amount of a money judgment recognized under this Act.

More broadly, section 6 [this section] rejects the use of any registration procedure in the context of the foreign-country judgments covered by this Act. A registration procedure represents a balance between the interest of the judgment creditor in obtaining quick and efficient recognition and enforcement of a judgment when the judgment debtor has already been provided with an opportunity to litigate the underlying issues, and the interest of the judgment debtor in being provided an adequate opportunity to raise and litigate issues regarding whether the foreign-country judgment should be recognized. In the context of sister-state judgments, this balance favors use of a truncated procedure such as that found in the Enforcement Act. Recognition of sister-state judgments normally is mandated by the Full Faith and Credit Clause. Courts recognize only a very limited number of grounds for denying full faith and credit to a sister-state judgment — that the rendering court lacked jurisdiction, that the judgment was procured by fraud, that the judgment has been satisfied, or that the limitations period has expired. Thus, the judgment debtor with regard to a sister-state judgment normally does not have any grounds for opposing recognition and enforcement of the judgment. The extremely limited grounds for denying full faith and credit to a sister-state judgment reflect the fact such judgments will have been rendered by a court that is subject to the same due process limitations and the same overlap of federal statutory and constitutional law as the forum state’s courts, and, to a large extent, the same body of court precedent and socio-economic ideas as those shaping the law of the forum state. Therefore, there is a strong presumption of fairness and competence attached to a sister-state judgment that justifies use of a registration procedure. The balance between the benefits and costs of a registration procedure is significantly different, however, in the context of recognition and enforcement of foreign-country judgments. Unlike the limited grounds for denying full faith and credit to a sister-state judgment, this Act provides a number of grounds upon which recognition of a foreign-country judgment may be denied. Determination of whether these grounds apply requires the forum court to look behind the foreign-country judgment to evaluate the law and the judicial system under which the foreign- country judgment was rendered. The existence of these grounds for nonrecognition reflects the fact there is less expectation that foreign-country courts will follow procedures comporting with U.S. notions of fundamental fairness and jurisdiction or that those courts will apply laws viewed as substantively tolerable by U.S. standards than there is with regard to sister-state courts. In some situations, there also may be suspicions of corruption or fraud in the foreign-country proceedings. These differences between sister-state judgments and foreign-country judgments provide a justification for requiring judicial involvement in the decision whether to recognize a foreign- country judgment in all cases in which that issue is raised. Although the threshold for establishing that a foreign-country judgment is not entitled to recognition under Section 4 [§ 10-1404] is high, there is a sufficiently greater likelihood that significant recognition issues will be raised so as to require a judicial proceeding.

Prior Laws.

Former§ 10-1407 was repealed. See Prior Laws,§ 10-1401.

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

Official Comment

Source:

Source: The substance of subsection 7(1) is based on Section 3 of the 1962 Act. Subsection 7(2) is new.

1. Section 5 [§ 10-1405] of this Act sets out the standards for the recognition of foreign-country judgments within the scope of this Act, and places an affirmative duty on the forum court to recognize any foreign-country judgment that meets those standards. Section 6 [§ 10-1406] of this Act sets out the procedures by which the issue of recognition may be raised. This Section sets out the consequences of the decision by the forum court that the foreign-country judgment is entitled to recognition.
2. Under subsection 7(1), the first consequence of recognition of a foreign-country judgment is that it is treated as conclusive between the parties in the forum state. Section 7(1) does not attempt to establish directly the extent of that conclusiveness. Instead, it provides that the foreign-country judgment is treated as conclusive to the same extent that a judgment of a sister state that had been determined to be entitled to full faith and credit would be conclusive. This means that the foreign-country judgment generally will be given the same effect in the forum state that it has in the foreign country where it was rendered. Subsection 7(1), however, sets out the minimum effect that must be given to the foreign-country judgment once recognized. The forum court remains free to give the foreign-country judgment a greater preclusive effect in the forum state than the judgment would have in the foreign country where it was rendered. Cf. Restatement (Third) of the Foreign Relations Law of the United States, § 481 cmt c (1986).
3. Under subsection 7(2), the second consequence of recognition of a foreign-country judgment is that, to the extent it grants a sum of money, it is enforceable in the forum state in accordance with the procedures for enforcement in the forum state and to the same extent that a judgment of the forum state would be enforceable. Cf. Restatement (Third) of the Foreign Relations Law of the United States § 481 (1986) (judgment entitled to recognition is enforceable in accordance with the procedure for enforcement of judgments applicable where enforcement is sought). Thus, under subsection 7(2), once recognized, the foreign-country judgment has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying a judgment of a comparable court in the forum state, and can be enforced or satisfied in the same manner as such a judgment of the forum state.

Prior Laws.

Former§ 10-1408 was repealed. See Prior Laws,§ 10-1401.

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

Official Comment

Source:

1. Under Section 3 [§ 10-1403] of this Act, a foreign-country judgment is not within the scope of this Act unless it is conclusive and enforceable where rendered. Thus, if the effect of appeal under the law of the foreign country in which the judgment was rendered is to prevent it from being conclusive or enforceable between the parties, the existence of a pending appeal in the foreign country would prevent the application of this Act. Section 8 [this section] addresses a different situation. It deals with the situation in which either (1) the party seeking a stay has demonstrated that it intends to file an appeal in the foreign country, although the appeal has not yet been filed or (2) an appeal has been filed in the foreign country, but under the law of the foreign country filing of an appeal does not affect the conclusiveness or enforceability of the judgment. Section 8 [this section] allows the forum court in those situations to determine in its discretion that a stay of proceedings is appropriate.

Prior Laws.

Former§ 10-1409 was repealed. See Prior Laws,§ 10-1401.

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

Official Comment

Source:

Source: This Section is new. The 1962 Act did not contain a statute of limitations. Some courts applying the 1962 Act have used the state’s general statute of limitations, e.g., Vrozos v. Sarantopoulos, 552 N.E.2d 1053 (Ill. App. 1990) (as Recognition Act contains no statute of limitations, general five-year statute of limitations applies), while others have used the statute of limitations applicable with regard to enforcement of a domestic judgment, e.g., La Societe Anonyme Goro v. Conveyor Accessories, Inc., 677 N.E. 2d 30 (Ill. App. 1997).

1. Under Section 3 [§ 10-1403] of this Act, this Act only applies to foreign-country judgments that are conclusive, and if the judgment grants recovery of a sum of money, enforceable where rendered. Thus, if the period of effectiveness of the foreign-country judgment has expired in the foreign country where the judgment was rendered, the foreign-country judgment would not be subject to this Act. This means that the period of time during which a foreign-country judgment may be recognized under this Act normally is measured by the period of time during which that judgment is effective (that is, conclusive and, if applicable, enforceable) in the foreign country that rendered the judgment. If, however, the foreign-country judgment remains effective for more than fifteen years after the date on which it became effective in the foreign country, Section 9 [this section] places an additional time limit on recognition of a foreign-country judgment. It provides that, if the foreign-country judgment remains effective between the parties for more than fifteen years, then an action to recognize the foreign-country judgment under this Act must be commenced within that fifteen year period.
2. Section 9 [this section] does not address the issue of whether a foreign-country judgment that can no longer be the basis of a recognition action under this Act because of the application of the fifteen-year limitations period in Section 9 [this section] may be used for other purposes. For example, a common rule with regard to judgments barred by a statute of limitations is that they still may be used defensively for purposes of offset and for their preclusive effect. The extent to which a foreign-country judgment with regard to which a recognition action is barred by Section 9 [this section] may be used for these or other purposes is left to the other law of the forum state.

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

Official Comment

Source:

Effective Dates.

Section 3 of S.L. 2007, ch. 46 provided that the act should take effect on and after July 1, 2007, and shall apply to all actions commenced on or after July 1, 2007, in which the issue of recognition of a foreign country judgment is raised.

Official Comment

1. Section 3 [§ 10-1411] of this Act provides that this Act applies only to certain foreign-country judgments that grant or deny recovery of a sum of money. The purpose of this Act is to establish the minimum standards for recognition of those judgments. Section 11 [this section] makes clear that no negative implication should be read from the fact that this Act does not provide for recognition of other foreign-country judgments. Rather, this Act simply does not address the issue of whether foreign-country judgments not within its scope under Section 3 [§ 10-1411] should be recognized. Courts are free to recognize those foreign-country judgments not within the scope of this Act under common law principles of comity or other applicable law.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

1. “Action.” A suit or arbitration may be legal or equitable in nature, but it must be based on a pecuniary claim.
2. “Bank-offered spot rate” is the rate at which a bank will sell the requisite amount of foreign money for immediate or nearly immediate use by the buyer.
3. “Conversion date.” Exchange rates may fluctuate from day to day. A date must be picked for calculating the value of foreign money in terms of United States dollars. As used in the Act, “conversion date” means the day before a foreign-money claim is paid or set-off. The day refers to the time period of the place of the payor, not necessarily that of the recipient. The exchange rate prevailing at or near the close of business on the banking day before the day payment is made will be well known at the time of payment. See Comment 2 to Section 7 [§ 10-1507].
4. “Distribution proceeding.” In keeping with the concept underlying Section 2 [§ 10-1502], the coverage of this statute is limited to judicial actions and nonjudicial proceedings which involve the creation of a fund from which pro-rata distributions are made to claimants. As provided in Section 8 [§ 10-1508], a different conversion date is required where either input to or outgo from a fund involves two or more different moneys. Thus, the term includes a mortgage foreclosure proceeding, judicial or under a trust deed, distribution of property in divorce and child support proceedings, distributions in the administration of a trust or a decedent’s estate, an assignment for the benefit of creditors, an equity receivership, a liquidation by a statutory successor, a voluntary dissolution of a business or a nonprofit enterprise or the like when in each case a fund must be shared among claimants and where, usually, the fund will not satisfy all claimants of the same class. An asset or a liability of the fund must also involve one or more foreign-money claims, but not all of the claims can be in the same money.
5. “Foreign money.” Since only the federal government has the power to coin money and regulate the value thereof, the term “foreign” means a government other than that of the United States of America. Special Drawing Rights of the International Monetary Fund are foreign money even though the United States is a member of the Fund. Foreign governments included are all those whose moneys are, in the currency markets of the world, exchangeable for the money of other currencies even though the government is not recognized by the United States.
6. “Foreign-money claim.” The term “claim” is not limited to any one party to an action or a distribution proceeding and may be asserted by a plaintiff or a defendant or by a party to an arbitration or distribution proceeding. It may be based on a foreign judgment, or sound in contract, quasi-contract, or tort.
7. “Money.” The definition includes composite currencies such as European Currency Units created by agreement of the governments that are members of the European Monetary System or the Special Drawing Rights created under the auspices of the International Money Fund. These are ‘stores of value’ used to determine the quantity of payment in some international transactions.
8. “Money of the claim.” See Section 4 [§ 10-1504] and the Comment thereto.
9. “Party.” This combines the Uniform Commercial Code’s definitions of “person” and “organization,” but is limited to those who are parties to transactions or involved in events which could give rise to a foreign-money claim.
10. “Rate of Exchange.” A free market rate is to be used rather than an official rate if both exist. Some countries have transactional differences in exchange rates with slightly different rates; for example, in Belgium one rate prevails for commercial and another for financial transactions. Both rates are recognized in money market transactions. The last sentence of the definition indicates that the rate appropriate to the transaction is the rate to be used.
11. “Spot rate” is the term used in the financial markets of the United States for the rate of exchange for immediate or nearly immediate transfers from one money to another, as distinguished from the rates for future options or future deliveries.
12. “State.” The definition, as in other Uniform Laws, is extended to include areas given the same, or nearly the same, treatment in law as the states.

In the foreign exchange markets, as in the stock markets, quotations are either “bid” or “ask,” and the spread between is where the dealer makes a profit. An “offered spot rate” is the rate at which the offeror will sell the particular money. It is, of course, higher than the rate at which that person will buy the same money. “Spot” refers to the time the trade is made, not the time for settlement, which in spot transactions is often two days after the date of the trade.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

Under the rules of the conflict of laws, the determination of when a foreign money is converted to United States dollars is generally considered a procedural matter for the law of the forum. Subsection (b) removes any doubt.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

1. A basic policy of the Act is to preserve freedom of contract and to permit parties to resolve disputed matters by contract at any time, even as to choice of law problems. The parties may agree upon the date and time for conversion. After entry of judgment the parties may agree upon how the judgment is to be satisfied.
2. Subsection (b) covers cases where, for example, claims for petroleum may be settled in United States dollars but settlement for joint costs of exploration may be in pounds sterling. The parties also may agree on the money to be used for damages. The second sentence recognizes that a price stated in a particular money does not indicate, without more evidence, an intent that all damages from breach are to be in the same money. The principle of freedom of contract allows the parties to allocate the risks of currency fluctuations between foreign moneys as they desire. Sections 4 [§ 10-1504] and 5 [§ 10-1505] provide rules in the absence of special agreements by the parties for determining the money to be used. Parties may by agreement select a particular market or foreign exchange dealer to be used for exchange purposes.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

1. Subsection (a) uses “payment” in a broad sense not related to just the price, but to any obligation arising out of a contract to transfer money. See also Section 3(b) [§ 10-1503(b)].
2. Subsection (b) states rules to fill gaps in the agreement of the parties with rules as to the allocation of risks of fluctuations in exchange rates. The three rules will normally apply in the order stated. Prior dealings may indicate the desired money. If there are none, it is appropriate to use the money indicated by trade usage or custom for transactions of like kind. The final rule of subsection (a) is one established in English cases. See The Despina R and the Folias , (1979) A.C. 685. An example is the use of an operating account in United States dollars by a French company to buy Japanese yen for ship repairs; the loss is felt in the depletion of the dollar bank account. Appropriateness of a rule is to be determined by the judge from the facts of the case. See Section 6(d) [§ 10-1506(d)].

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

1. Subsections (a) and (b) cover different interpretation problems. One arises where the amount of the money to be paid is measured by another money, one of which is foreign. An example is “pay 5,000 Swiss francs in pounds sterling.” The issue is the time at which the rate of exchange into pounds sterling is to be applied. Subsection (a) says in a “measured by” situation with no rate specified, the rate of exchange that controls is the one prevailing at or near the close of business on the day before the day of payment. See Section 1(3) [§ 10-1501(3)], the definition of “conversion date.”
2. Another problem arises when an exchange rate in effect before a default is used, as in “pay on November 30, 1989, 5,000 Swiss francs in pounds sterling at the exchange rate prevailing on June 30, 1989.” In this case, the issue is how long does the specified exchange rate control in the absence of a clear expression of intent?
3. The most common application of subsection (c) will be found in international loan transactions. For example, a loan by a Japanese bank to an American company could be made with dollars purchased by yen for the purpose. The loan agreement could provide for repayment in dollars of an amount which, when received by the lender, would repurchase the amount of yen used to acquire the dollars advanced. An exemption is needed from the application of usury laws that may be interpreted to hold that the indexing of the principal amount creates additional interest. See Aztec Properties, Inc. v. Union Planters National Bank , 530 S.W.2d 756 (Tenn. Sup. Ct. 1975). The subsection removes all doubts as to the legal enforceability of such agreements under theories such as usury, merger in a judgment, unconscionability, or the like.

Inclusion of a fixed rate as of a date before default, under subsection (b), remains effective only if payment is made within a reasonable time after default, not to exceed 30 days. The 30-day limitation accords usually with the expectation of the parties. Parties may agree to a longer time.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

1. Subsection (a) covers not only the claim of a plaintiff but also the assertion by a defendant of a defense, set-off, or counterclaim. Subsection (b) provides that the money asserted as the money of its defenses by the defendant need not be the same as that of the plaintiff.
2. The money to be used as the money of the claim is a threshold issue to be determined, if contested, by the court after any factual issues as to expenditures, custom, usage, or course of dealing are decided. See subsection (b). If a payment is made or a debt incurred in a money other than that in which the loss was felt, the party asserting the foreign-money claim should establish the amount of the money of the claim used to procure the money of expenditure and the applicable exchange rate used.
3. Judgments may be entered in more than one money when dealings impact on more than one area. An inn-keeper in Mexico, for example, in taking in customers from many countries, should be held to foresee that treatment for injuries at the inn would occur not only in Mexico, but also in the native land of the injured party or in a third country.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001. Official Comment

1. Subsection (a) changes a number of statutes in the states which can be construed to require all values in legal proceedings to be expressed in United States dollars. Professor Brand, in his article in the Yale Journal of International Law, Vol. 11:139 at page 169, identified 18 states having statutes which could require all judgments to be entered in dollars. They are Arkansas, California, Idaho, Iowa, Louisiana, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, New York, South Carolina, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin. Brand, ibid. fn. 166. Hence, direct statutory authority must be given the courts in those states, and will be helpful in other states. In some states other statutes may need amendments. See, e.g., Wisc. Stats. §§ 138.01, 138.02, 138.03, and 779.05.
2. Subsection (d) gives defendants the option of paying in dollars which are, at the payment date, practically the economic equivalent of the foreign money awarded. The judgment creditor should be indifferent to whether the debtor exercises the right to pay in dollars as the only difference is a small bank charge for exchanging the dollars for the foreign money. The concept of the rate of the banking day next before the payment day is taken from Section 131 of the Province of Ontario, Canada, Courts of Justice Act (Ch. 11 Ont. Stats. (1984) as recently amended). It gives the defendant and the sheriff conducting the sale the necessary conversion rate comfortably ahead of its use. Newspaper quotations are usually said to be “at or near the close of business” on the stated date, so that phrase is used in this Act.
3. Subsection (e) provides for netting the affirmative recoveries of a defendant and plaintiff, whether in the same money or in different moneys, but preserving the quantum of each for appellate purposes. The theory is that when claims are reduced to money, they become mutual debts and should be set-off, so that a person’s exchange rate fluctuation risk continues only for the surplus in its money of the claim. The set-off is made by the judge or arbitrator.
4. The form of judgment in subsection (f) should be varied appropriately where the money to be paid is measured by a foreign money. See Section 5 [§ 10-1505].

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

All claims must be in the same money when determining aliquot shares in a distribution proceeding. The Act requires use of the date the proceeding was initiated for applying the exchange rate to convert foreign-money claims into United States dollars. See Re Lines Bros. Ltd. , (1982) 2 All E.R. 99. A claim may be amended to show the proper conversion rate and the proper amount of United States dollars.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

1. As to pre-judgment interest, the Act adopts the majority rule in the United States that pre-judgment interest follows the substantive law of the case under conflict of laws rules, both as to the right to recover and the rate. English courts use a different rule, i.e., the borrowing rate used by plaintiff or prevailing in the country issuing the money of the judgment. See Helmsing Schiffarts G.M.B.H. v. Malta Drydock Corp. (1977) 2 Lloyd’s Rep. 44 (Maltese money but borrowed in West Germany; German rate); Miliangos v. George Frank (Textiles) Ltd. (No. 2) (1976) 1 QB 487 at 489 (Swiss money, Swiss interest rate). Although pre-judgment interest is one form of damages, provision for pre-judgment interest is not to be taken as indicating that no other damages for delay in payment can be awarded under the substantive law applicable to the determination of damages. Cf. Isaac Naylor & Sons, Ltd. v. New Zealand Co-operative Wool Marketing Association, Ltd. (1981) 1 N.Z.L.R. 361 (exchange loss due to delay as additional damages).
2. Allowances of pre-judgment interest in some states depend upon a party’s conduct with respect to settlement or delay of the proceeding. Subsection (b) treats these state laws as either procedural in nature or expressions of a significant policy, in either case to be governed by the law of the forum state.
3. Interest on a judgment is considered to be procedural and also goes by the law of the forum. There is a problem here in that there is great discrepancy among the states in the rates for judgment interest. When a judgment is in a foreign money, United States interest rates may result in some overcompensation or undercompensation as compared to what would be awarded in the jurisdiction issuing the foreign money. But in both the United States and in foreign countries, most jurisdictions have fixed statutory rates that do not readily respond to the inflation or deflation of the value of their money in the world market. Hence it was decided to apply the usual rules of the conflict of laws.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

1. Some states have special acts that simply cover the recognition, entry, and enforcement of foreign judgments. Common law enforcement is by action. Subsection (a) refers to the common law method; it is subject to subsection (b) which refers to statutory procedures. Subsection (c) applies to both procedures.
2. Subsection (d) avoids constitutional issues under the full faith and credit clause by requiring that judgments of sister states be enforced as entered in the sister state.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

This section protects those who must determine how much should be held subject to a levy or other collection process or what the dollar amount of a supersedeas or other surety bond should be. If the judgment debtor is damaged by a gross overstatement of the dollar amount in the affidavit or certificate of counsel for the judgment creditor or the bank officer, recovery should be against that person.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

1. Subsection (a) refers to situations in which a country authorizes the issue of a new money to take the place of the old money at a stated ratio. An example is Brazil’s recent abolition of cruzieros for cruzados. The subsection mandates that foreign money claims should be subjected to the same ratio.
2. The Act takes no position on the effect of money repudiations or revalorizations so drastic as to be, in effect, confiscations. Remedy, if any, for these is usually found through diplomatic channels. Equally, the Act takes no position on the effect of exchange control laws. The effect, if any, on obligations to pay is left to other law.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Official Comment

The section is taken from Section 1-103 of the Uniform Commercial Code.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.

Effective Dates.

Section 2 of S.L. 2001, ch. 329 provided that the act should take effect on and after July 1, 2001.