(dissenting).
Before discussing the reasons why I believe the majority to be in error, I would like to dispose of the question of whether the issue of the finality of the judgment appealed from in this case is properly before this Court. The reference to the question of finality being raised “sua sponte” in the majority opinion at least implies that the issue is not properly before us.
Although it is at least arguable that respondents addressed themselves to the issue on oral argument (“We submit that the plaintiffs in this action have * * * sought the simultaneous jurisdiction of the Supreme Court and the District Court of the State of Idaho to their own benefit * * *.”), that is of no matter. The finality of a judgment sought to be appealed to us is a prerequisite of our jurisdiction. State ex rel. State Board of Medicine v. Smith, 80 Idaho 267, 269, 328 P.2d 581 (1958); Evans State Bank v. Skeen, 30 Idaho 703, 704, 167 P. 1165 (1917) ; accord Studer v. Moore, 153 F.2d 902 (2nd Cir. 1946). And, because it is jurisdictional, it not only may be, but must be raised and determined by this Court before any further action on the purported appeal can be taken by us. Studer v. Moore, supra; McEwen v. McEwen, 203 Or. 460, 280 P.2d 402, 407 (1955); Sheridan County Electric Co-op v. Anhalt, 127 Mont. 71, 257 P.2d 889, 891 (1953) ; Pulliam v. Pulliam, 163 Kan. 497, 183 P.2d 220 1 A.L.R.2d 418 (1947). We can not be relieved of this duty by any failure, waiver, or agreement of the parties; we must determine whether or not we have jurisdiction, even when the parties do not expressly question it. McEwen v. McEwen, supra; Sheridan County Electric Co-op v. Anhalt, supra; 4 Am. Jur.2d, Appeal and Error § 10; 4 C.J.S. Appeal and Error §§ 43, 45.
The judgment from which petitioners attempted to appeal on May 9, was not final, because of the intervention of the motions which they filed on May 5, and May 7. We must hold that those motions destroyed the finality of the judgment filed by Judge Cogswell on May 5, 1969.
The rule in this state, as enacted by the legislature and regularly restated by this Court, is that, with a very few discreet exceptions, in order for a judgment or order to be appealable it must be final. I.C. § 13-201; e.g. State ex rel. State Board of Medicine v. Smith, supra; Hunter v. Merger Mines Corp., 66 Idaho 438, 160 P.2d 455 (1945). Despite statements such'as that in Dolbeer v. Harten, 91 Idaho 141 at 148, 417 P.2d 407 (1966), it is not true that the legislature has sole and final authority to determine this Court’s appellate jurisdiction. The separation of powers clause of our constitution precludes that result.
“The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government; but the legislature shall provide a proper system of appeals * * * so far as the same may be done without conflict with this Constitution.” Idaho Const, art. 5 § 13. Jones v. Jones, 91 Idaho 578, 582, 428 P.2d 497 (1967) (Taylor, C. J., concurring); State ex rel. State Board of Medicine v. Smith, supra, at 268-269, 328 P.2d 581.
The rule that judgments and orders must be final before they may be appealed to this Court is not, however, an unconstitutional restriction on our jurisdiction.
*332“It is a recognition by the legislature of a truism inherent in a proper system of appeals; namely, to permit an appeal from all intermediate orders and decisions of the district courts would result in such vexatious and intolerable confusion and delay as to render impossible an orderly and expeditious administration of justice by the courts of the state. Evans State Bank v. Skeen, 30 Idaho 703, 167 P. 1165 [1917].” State ex rel. State Board of Medicine v. Smith, supra, at 269, 328 P.2d at 581.
There are several purposes served by an adherence to the rule that judgments must be final before an appellate court may take cognizance of them. They include the avoidance of harassing and costly delays in the prosecution of just claims, the establishment of clear, certain, and stable boundaries of jurisdiction between courts So that parties and the public may, without confusion, know which court has the power to act on a cause, and the determination of as many issues of fact and law as completely and as economically as possible in the trial court. State ex rel. State Board of Medicine v. Smith, supra; Evans State Bank v. Skeen, supra; Utah Assn. of Credit Men v. Budge, 16 Idaho 751, 757-758, 102 P. 691 (1909); Hill v. Hawes, 320 U.S. 520, 524-525, 64 S.Ct. 334, 88 L.Ed. 283 (1944) (Stone, C. J., dissenting) ; Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940) (Frankfurter, J.). This Court, in service of these goals of avoiding protracted litigation and of maintaining the power and responsibility of the trial court to settle the entire case, has repeatedly affirmed our inability to review, on appeal, cases in which something remains “to be done in the adjudication of substantial rights * * * by the court entertaining jurisdiction.” Evans State Bank v. Skeen, supra, at 705, 167 P. at 1166; accord, e.g., Gerry v. Johnston, 85 Idaho 226, 378 P.2d 198 (1963) (judgment defective as to finality because “subject to revision”); Hunter v. Merger Mines Corp., supra. These same considerations apply to the case before us.
If this case were' to occur in a federal jurisdiction it is clear that the appeal of May 9, 1969 would be premature, because the Rule 59(e) motions of petitioners would have destroyed the finality of the judgment of May 5, 1969 before the appeal was filed. See Fed.R.Civ.P. 59(e), 73(a). Leishman v. Associated Wholesale Electric Co., 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714 (1943); Turner v. HMH Publishing Co., 328 F.2d 136 (5th Cir. 1964); Reconstruction Finance Corp. v. Mouat, 184 F.2d 44, 48 (9th Cir. 1950); Healy v. Pennsylvania R. Co., 181 F.2d 934 (3rd Cir. 1950).
There are two bases for this federal rule. The first was the language of Rule 73(a), set out in the majority opinion, which provided that the running of the time for appeal was terminated by the timely filing of any one of several post-trial motions. A Rule 59(e) motion was one of these. This language was based on two United States Supreme Court decisions, Leishman v. Associated Electric Co., supra, and United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160 (1944). These cases distinguished motions which would toll the time for appealing from those which would not according to whether or not they were addressed to questions of substance or mere matters of form. 318 U.S. 203, 205, 63 S. Ct. 543, 87 L.Ed. 714; 323 U.S. 173, 177, 65 S.Ct. 254, 89 L.Ed. 160. When the language of Rule 73 was adopted, however, this distinction was wisely dropped, because the time for making the motions after judgment is only ten days long and the distinction between substance and form was felt to be too uncertain and promotive of confusion and litigation to be useful. 9 Moore’s Federal Practice, Appeals to Court of Appeals 72.03 [4], 73.09 [4] (2nd ed., J. Moore and B. Ward, 1969).
The second basis for the rule appears to be the same purpose which animates the final judgment rule. That is to avoid protracted and confused litigation by maintaining jurisdiction in the trial court to wind up as much of the cause as is possible, including the correction of the trial *333court’s own error. See Stevens v. Turner, 222 F.2d 352 (7th Cir. 1955); cf. Turner v. HMH Publishing Co., supra; Foman v. Davis, 292 F.2d 85, 87 (1st Cir. 1961) (reversed on other grounds 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 [1962]).
This Court should at least follow the federal rule in these cases. That is that we should at least hold today that the filing of Rule 59(e) motions should render the appeal which petitioners filed on May 9, 1969, premature because they destroyed the judgment’s finality. Both bases of the federal rule are available to support such a holding.
It is true that when we adopted the federal rules as our own we “reserved” adoption of Rules 73(a) through 76, and that we are, thus in no way bound by federal decisions interpreting those rules. A comparison of the language in Rule 73(a) with that in our I.C. § 13-201, however, would lead one to suppose that the legislature did not reserve adoption of Rule 73(a), but, as is proper under our Constitution, art. 5 § 13, enacted substantially all of federal Rule 73(a) into law. A comparison of the dates of our adoption of the rules and the passage of the relevant amendment to § 13-201 reinforces that supposition. 1957 Idaho Session Laws, chapter 105; Idaho Code Idaho R.Civ.P., Publisher's Note, iii (1958). In any event, Rule 73(a) and § 13-201(1) are substantially the same in pertinent part. I.C. § 13-201(1) does not distinguish Rule 59(e) motions on the basis of “merely formal” versus “substantial” or “gratuitous” versus “nongratuitous” subject-matter. The reasons for not making such distinctions which were felt to be important in the federal system ought to be as important to us, and the reasons which support the federal rule in these matters ought to support a similar rule for us.
Prior to the adoption of the Idaho Rules of Civil Procedure in 1958 there were two lines of cases which served the general purpose of avoiding protracted litigation by allowing the lower courts to close up actions and to correct their own errors without recourse to this Court. The first we have already examined; it embraces the cases announcing the final judgment rule. The other line of decisions includes those which affirm a jurisdiction in the trial court to correct errors negligently made, or which are merely clerical to vacate judgments which are void, and to entertain motions for a new trial. A distinction is drawn in these opinions between the cases involving relief from mere mistakes and those containing errors of law, not involving the validity of the judgment. The former, lesser sorts of error could be corrected at any reasonable time at the discretion of the court, the latter could be corrected only by appeal or on a timely motion for a new trial. E.g., Baldwin v. Anderson, 50 Idaho 606, 299 P. 341 (1931); Fall River Irr. Co. v. Swendsen, 41 Idaho 686, 241 P. 1021 (1925) ; Wyllie v. Kent, 28 Idaho 16, 152 P. 194 (1915). (See also Baldwin v. Anderson, 51 Idaho 614, 8 P.2d 461 (1932); and Occidental Life Ins. Co. v. Niendorf, 55 Idaho 521, 44 P.2d 1099 (1935) on the inherent power of the court to vacate void judgments at any time). This distinction is still made under our rules of civil procedure. Compare Idaho R.Civ.P. Rule 59, with Rule 60.
A motion for new trial, if timely made, and an appeal are two different remedies, and, therefore, an appeal will not cut off the trial court’s jurisdiction to entertain a motion for a new trial. Angleton v. Angleton, 84 Idaho 184, 199, 370 P.2d 788 (1962); cf. Clark v. Foster, 87 Idaho 134, 391 P.2d 853 (1964); Gerry v. Johnston, supra. All of these rules are designed to allow trial courts, even after judgment, to correct their own errors. A new trial motion may, thus, produce the same desirable result, with greater simplicity and less cost, as would an appeal. The principal difference which the codification of the law of these cases in our Rules 59 and 60 makes is that Rule 59 now permits errors to be corrected even more efficiently on a Rule 59(e) motion to alter or amend a judgment, thereby obviating the necessity of an appeal and a new trial. I would, following these cases, apply the rule which we have *334long had and reaffirmed with respect to new trial motions, Angleton v. Angleton, supra, to all Rule 59 motions including those under 59(e) in this case and to the other remedial post trial motions specified in I.C. § 13-201. I would, therefore permit litigants to make any of the motions specified in I.C. § 13-201 during the period in which they are timely (10 days if under Rule 59), whether or not an appeal has been filed. Such a rule seems to be compelled by the explicit language of I.C. § 13-201:
“* * * [T]he running of the time for appeal is terminated by a timely motion for a new trial; a timely motion for a judgment notwithstanding the verdict, following a timely motion for a directed verdict; a timely motion to amend or make additional findings of fact, whether or not alteration of the judgment is required if the motion is granted, or a timely motion to alter or amend the judgment * * *,” (emphasis added)
and by the explicit language of Rule 59 which makes no provision for denying a party’s right to make such a motion if an appeal might be filed.
If we adopt such a rule we will best serve the interests involved in “finalizing,” in finishing up, litigation before an appeal is perfected to this Court. Such would preclude the race to file motions and/or appeals which may be inspired by the majority’s opinion in this case and the decision in Dolbeer v. Harten, supra, which I would overrule. And the rule which is here proposed is most in harmony with this Court’s previous treatment of remedial motions, especially new trial motions under Idaho R.Civ.P., Rule 59(a).
Dolbeer is something of an anomoly in our jurisprudence; it is not in harmony with our general policy guarding the trial court’s inherent power to correct his own errors. I believe that the potentiality of a race which lies in the Dolbeer rule is too undesirable to stand in the face of the language of the statute.
But, even if we are unwilling to operate within our modern civil procedure and our statutes, we need not deny them as the majority would have us do today. Dolbeer does not compel such a step. I.C. § 13-201 (l)’s language does not either. The authority which the majority cites in support of their decision, two per curiam intermediate court decisions in Florida and one per curiam federal decision is not so compelling. Indeed the Florida rule appears to be that parties who both appeal and make motions of the sort specified in I.C. § 13-201(1) are not barred' from their appeal by the final judgment rule, while persons who appeal while others have made such motions are.. Scott-Whitaker Co. v. Joyce Properties, Inc., 155 So.2d 661 (Dist.Ct.App., Fla. 1963). This discontinuity is achieved by-deeming the appellant in the first instance to have “waived” his motions, State ex rel. Owens v. Pearson, Fla. 156 So.2d 4 (1963).
Nor are the parties in this case in a posture which would appeal to our sense of equity or which would lend itself to the fashioning of an exception to the more normal, federal rule of finality. The plaintiff in the action on the merits has not attempted to deprive the petitioners of their right to appeal by stalling with spurious Rule 59(e) motions. It is, rather, the-petitioners who would enjoy the jurisdiction of both courts at once. Nor is it entirely clear that the 59(e) motion which petitioners made was to amend so “gratuitous” a part of the judgment as to be severable. For one thing, motions can be amended, and, for another, the part of the judgment sought to be amended was on an issue important enough to the plaintiffs below that they raised it in their complaint and important enough to petitioners that they sought its deletion. Nor was the procedure of Idaho R.Civ.P. Rule 54(b) resorted to by petitioners and there has not been an express determination by the trial court which that rule requires in order to-suspend the final judgment rule.
*335This case is also not one which would be suitable for application of an exception to the final judgment rule designed to avoid potential irreparable injury to the appellants. See Forgay et al. v. Conrad, 6 How. (47 U.S.) 201, 12 L.Ed. 404 (1848); Craighead v. Wilson, 18 How. (59 U.S.) 199, 201, 15 L.Ed. 332, 333 (1856); 6 Moore’s Federal Practice ¶ 54.13 (2nd ed. 1966). While petitioners claim that they are threatened with irreparable injury, the only “harm” of which they complain is one which follows from the operation of a statute. They apparently fear that, unless this Court permits their premature appeal, they will be forced by I.C. § 13-207 to post a bond or vacate the premises which the court below declared them to be occupying unlawfully. But this “hardship” which they fear is one which was designed by the legislature to protect litigants in actions for possession of real property. This Court ought not to fashion new rules of jurisdiction on equitable grounds in order to aid parties to avoid duties which are imposed by law. See Catlin v. United States, 324 U.S. 229, 236-243, 65 S.Ct. 631, 89 L.Ed. 911 (1945); sec also Cohen v. Beneficial Loan Corp, 337 U.S. 541, 546-547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
We should dismiss petitioner’s appeal of May 9, 1969, as premature, because the motions of May 5, and May 7, under I.C. § 13-201(1), should have terminated the time for taking appeals from, and destroyed the finality of, the judgment of May 5, 1969. This Court should overrule Dolbeer and, in order that trial courts may correct all errors before appeal and in the interests of economy and good order in litigation, declare the rule that any of the I.C. § 13-201(1) motions, if timely filed within ten days, will suspend the finality of the judgment. This Court should at least follow the federal rule and hold that I.C. § 13-201(1) motions which are timely filed before a party files a notice of appeal will suspend the finality of the judgment or order previously entered in the case. These rules will serve to advance the interests of complete adjudication on the trial level, economy of litigation on the appellate level, and clear delineation of the boundary between the two jurisdictions. These are the interests normally served by a sound final judgment rule.
The judgment of May 5, 1969 is one which is covered by I.C. § 13-207, and, therefore, it may not be suspended from execution by an appeal unless the bond requirements of that section are met. I.C. § 13-207 reads in pertinent part as follows:
“Stay of proceedings — Judgment in ejectment. — If the judgment or order appealed from direct the sale or delivery of possession of real property the execution of the same can not be stayed unless a written undertaking be executed on the part of the appellant with two or more sureties, to the effect that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed or the appeal dismissed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or order made, and which must be specified in the undertaking. * * * “[C.C.P. 1881, § 647; R.S., R.C., & C.L., § 4812; C.S. § 7158; I.C.A. § 11-207.]”
It should be noted that this section dates back to 1881, nearly nine-tenths of a century.
The judgment of May 5, was, as the plaintiffs below asked in their complaint, paragraph XII, 1, in the form of a declaration. The declaratory judgment chapter of Title 10 of the Idaho Code substantially post-dates I.C. § 13-207. 1933 Session Laws of Idaho, chapter 70, §§ 1-15, p. 113. The concept of a declaratory judgment was not current at the time I.C. § 13-207 was drafted, and its language, therefore, more clearly applies to the traditional judgments in actions involving real property. But in terms of consequence, a declar*336atory judgment binds the parties as firmly as did more regular actions at law. See Sweeney v. American National Bank et al., 62 Idaho 544, 115 P.2d 109 (1941); cf. Petition of Kariher, 284 Pa. 455, 131 A. 265 (1925); Sloan v. Longcope, 288 Pa. 196, 135 A. 717 (1927); see also Restatement, Judgments § 77; Borchard, Declaratory Judgments 439-441 (2nd ed. 1941). Relief on a show cause order under I.C. § 10-1208 is not, therefore a new' action, but merely an execution to give effect to the judgment which settled all of the rights of the parties, and, therefore, delineated their future lawful conduct. Great Northern Ry. Co. v. Mustad, 76 N.D. 84, 33 N.W.2d 436 (1948). In fact, under our cases, it might be error for a court not to give affirmative relief where it was necessary to make the declaratory judgment effective. Sweeney v. American National Bank, supra; accord Mayor, Councilmen, Etc. v. Dealers Transport Co., 343 S.W.2d 40 (Missouri, 1961). And I.C. § 13-207 is not, excepting for its title in the Idaho Code, limited by its terms to the classical “judgment in ejectment.”
We'must;1 therefore,'Construe I.C. § 13-207 in terms' of its purpose, see generally H. M: Hart & A. Sacks, The Legal Process, Basic'Problems in the Making and Application of .Law 1393-1417 (tent. ed. 1958), and include declaratory judgments within its purview. •
The sort of construction which is urged, that is one cognizant of the age of the section’s language and sympathetic with its purpose to protect winning plaintiffs from winning the battle but losing the res, was held to be a correct interpretation in Berding v. Varian, 34 Idaho 587, 202 P. 567 (1921). This ..Court said in that case:
“The judgment as entered was final, but it did not in terms direct the delivery of possession of real property. The right to recovery of possession, however, follows as an incident to the judgment to the same extent as if expressly contained therein. * * . * The only thing to be done in execution of the judgment is the placing of Berding in possession of the premises. In other respects the judgment is self-executing.
“If appellants desired to stay the execution of this judgment, it was their duty to give an undertaking for that purpose in conformity with C.S., § 7158 [I.C. § 13-207], No such undertaking having been given, the respondent is entitled to-the possession of the property pending the appeal.” 34 Idaho 587, at 593-594, 202 P. at 569 (1921).
I cannot imagine a case which more precisely fits that language than this declaratory judgment, if it is actually final. Under our cases, if it is a final judgment from which an appeal may be taken, all the questions of substantial rights — here, rights to possession — of the parties must have been determined, and all that remains is “the mere ministerial execution of such judgment,” the power to supervise which may be reserved in the trial court. Lamberton v. McCarthy, 30 Idaho 707, 713, 168 P. 11 (1917) ; accord Doolittle v. Morley, 76 Idaho 138, 278 P.2d 998 (1955). And it seems to have been the opinion of both sides below that the declaratory judgment did determine all rights to possession. The petitioners, even after judgment and in response to the order to show cause continued to claim a possessory right only under the lease declared a nullity by the judgment. They claimed no other right. Affidavit of Donald MacDonald, an officer of Coeur d’Alene Turf Club, Inc., at 1 and 3 (May 8, 1969). Following Berding v.. Varían, supra, therefore, I would, if the declaration of May 5 is held to be a final and appealable judgment and the appeal of' May 9 is thereby proper, still hold that petitioners had to comply with the requirements of I.C. § 13-207 if they were to stay the enforcement of the rights declared by the judgment. Because they did not Judge Cogswell was properly within his jurisdiction when he ordered the Turf Club out of possession, and the County into posséssion of the fairgrounds on May 13, 1969.
*337For the foregoing reasons, I believe that the alternative writ was improvidently granted on May 19, and that we, in our rush to move to the merits of this troublesome case, compound that error by making the writ permanent today.
SCOGGIN, D. J., concurs in the dissent.