Bentley v. Lucky Friday Extension Min. Co.
| Decision Date | 10 November 1950 |
| Docket Number | No. 7676,7676 |
| Parties | BENTLEY et al. v. LUCKY FRIDAY EXTENSION MINING CO. et al. |
| Court | Idaho Supreme Court |
McNaughton & Sanderson, Wm. S. Hawkins, Coeur d'Alene, Cullen & Etter, Spokane, Wash., for appellants.
H. J. Hull & Sons, Wallace, Brown & Peacock, Kellogg, for respondents.
Respondents commenced this action in Shoshone County by filing a petition for a writ of mandamus. It is alleged in such petition that respondents were duly elected as directors and officers of the appellant, Lucky Friday Extension Mining Company, to succeed appellant, James A. Allen, and associates as such directors and officers. The question for determination under the petition is the validity of such election. Respondents seek to gain possession from appellant Allen of the books, records and property of appellant mining company and to have and enjoy the right to manage the affairs of the company.
Upon the filing of such petition, an alternative writ of mandamus was issued returnable on March 27, 1950. Appellants appeared in the action and filed a demurrer and a motion for change of venue to Kootenai County, supported by the affidavit of appellant Allen. The motion for change of venue is predicated upon three grounds, (1), that defendants have reason to believe, and there is reason to believe, that a fair and impartial trial cannot be had in Shoshone County; (2), that the convenience of witnesses and the ends of justice would be promoted by the change; (3), that the District Judge, Honorable Albert H. Featherstone, is disqualified from acting.
It appears from the supporting affidavit of appellant Allen that more than two-thirds of the stockholders of the Lucky Friday Extension Mining Company are non-residents of Shoshone County; that the officers of the company reside in Spokane, Washington, and the managing agent of the company in Kootenai County; that respondents have composed and circulated false and accusatory writings concerning the Lucky Friday Extension Mining Company and James A. Allen, which have been given wide circulation in Shoshone County; that affiant believes and, therefore, states that the accusations against these defendants, because of their general publicity, have been called to the attention of the Honorable Albert H. Featherstone; that there is on file and pending in Shoshone County, an action wherein the Lucky Friday Extension Mining Company is plaintiff and the Lucky Friday Silver-Lead Mines Company is defendant, involving substantial rights between these two companies and moneys in excess of $87,000; that such lawsuit is one of the principal assets of the Lucky Friday Extension Mining Company; that the officers and stockholders of the Lucky Friday Silver-Lead Mines Company generally are residents of Shoshone County; that the Honorable Albert H. Featherstone is a director and a large stockholder in the Lucky Friday Silver-Lead Mines Company; and that, therefore, the affiant states that the said Honorable Albert H. Featherstone is disqualified from acting in this suit.
Neither respondents nor Judge Featherstone filed any affidavits or other showing in opposition to such motion for change of venue. A hearing was had on the motion for change of venue on March 25, 1950. At the conclusion of the hearing, the court entered an order denying the motion. At the same time, the court entered a further order reciting that an affidavit of bias and prejudice having been filed, 'the Honorable Leo McCarty, Judge of the Tenth Judicial District of the State of Idaho, be and he is hereby requested and called in to this judicial district to sit and act in the above entitled action.' From the order denying the motion for change of venue, appellants have duly appealed to this court.
Respondents contend that appellants have waived their right to appeal from the order denying the motion for change of venue. To support such contention, resondents have brought to this court by way of augmentation of the record, a so-called Certificate of Proceedings, signed by Judge Featherstone under date of September 18, 1950. After reciting the alleged proceedings at the time of the hearing on the motion for change of venue, such certificate of proceedings states:
'Counsel was thereupon advised that the Motion for Change of Venue was not well taken, but that, nevertheless, I would deem myself disqualified of my own volition and call in an outside Judge if counsel wished to dispose of the matter in the manner, and counsel were thereupon asked if they could agree upon an outside Judge to be called in to hear the cause.
'Thereupon counsel for defendants and plaintiffs discussed the matter and orally stipulated that the Honorable Leo McCarty, Judge of the Tenth Judicial District of the State of Idaho, be called in to hear the cause.'
On the same day, the court entered an order that the Clerk of the Court file such certificate of proceedings as part of the records in this action and certify the same to the Supreme Court.
The minutes of a court may be corrected or amended to set out the true facts, upon proper application and hearing, by an order nunc pro tunc. This certificate of proceedings does not pretend to be an amendment or correction of the minutes. It is an instrument not authorized by statute and unknown to our practice. The minutes of the court are not before us.
However, if this certificate of proceedings should be construed to be a correction of the minutes, it is not sufficient to show that appellants waived their right to appeal. An appeal from an order denying a motion for change of venue does not stay proceedings in the case. Section 13-211 I.C.; Hay v. Hay, 40 Idaho 627, 235 P. 900; Shultz v. Flynn Transportation Co., 44 Idaho 155, 255 P. 644. After the court had announced that the motion for change of venue would be denied, that he would deem himself disqualified and requested counsel to agree upon a Judge to hear the cause, appellants did not waive their right to appeal by stipulating that Judge McCarty be called in to hear the case. Their motion for change of venue having been denied, they were entitled to and could do no less than protect their interests in all further proceedings.
By their first assignment of error, appellants urge that it was error for the...
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Hayes v. Kingston
...Dist., 89 Idaho 506, 406 P.2d 802 (1965): Our venue statutes are couched in mandatory language. Bentley v. Lucky Friday Extension Mining Co., 70 Idaho 511, 223 P.2d 947 (1950); McCarty v. Herrick, 41 Idaho 529, 240 P. 192 (1925). Determination of venue is within the discretion of the court ......
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State v. Ruddell
...supply deficiencies in records of their proceedings to the end that they will conform to the actual facts. Bently v. Lucky Friday Extension Min. Co., 70 Idaho 511, 223 P.2d 947 (1950); Pac. Finance Corp. of Cal. v. LaMonte, 64 Idaho 438, 133 P.2d 921 (1943); Haddock v. Jackson, 51 Idaho 560......
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Lawson v. Lawson
...resided in Benewah county, the trial should have been held in that county, for reasons of convenience. Bentley v. Lucky Friday Extension Mining Co., 70 Idaho 511, 223 P.2d 947 (1950). The trial court was correct in overruling such motion, and in regarding it as improper procedure in seeking......
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Banning v. Minidoka Irr. Dist.
...venue is within the discretion of the trial court. Our venue statutes are couched in mandatory language. Bentley v. Lucky Friday Extension Mining Co., 70 Idaho 511, 223 P.2d 947 (1950); McCarty v. Herrick, 41 Idaho 529, 240 P. 192 (1925). Determination of venue is within the discretion of t......