Blackwell Lumber Co. v. Flynn

• Decision Date: 09 July 1915
• Citation: 150 P. 42,27 Idaho 632
• Parties: BLACKWELL LUMBER COMPANY, a Corporation, Plaintiff, v. JOHN M. FLYNN, Acting Judge of the District Court of the First Judicial District of the State of Idaho, in and for the County of Shoshone, Defendant
• Court: Idaho Supreme Court

150 P. 42

27 Idaho 632

BLACKWELL LUMBER COMPANY, a Corporation, Plaintiff, v. JOHN M. FLYNN, Acting Judge of the District Court of the First Judicial District of the State of Idaho, in and for the County of Shoshone, Defendant

Supreme Court of Idaho

July 9, 1915

MANDAMUS-WILL NOT ISSUE WHEN REMEDY BY APPEAL IS PLAIN, SPEEDY AND ADEQUATE.

1. A writ of mandamus may be issued from this court to any inferior tribunal to compel the performance of an act which the law especially enjoins upon such tribunal as a duty.

2. In this case the acts which the law especially enjoined upon the district judge were performed when he ruled upon the demurrer and entered a judgment, and if error was committed in the performance of such duty the plaintiff herein has its remedy by appeal to this court.

3. The facts alleged in the petition examined and held to be insufficient to invoke relief by mandamus.

Petition for writ of mandamus. Demurrer sustained alternative writ quashed, and peremptory writ denied.

Demurrer to the petition sustained, alternative writ quashed and the peremptory writ denied. Costs awarded to the defendant.

John P Gray and W. F. McNaughton, for Plaintiff.

Mandamus is a proper remedy where the judge of the inferior court refuses to proceed because of an erroneous determination by him that he has no jurisdiction. (Hill v. Morgan, 9 Idaho 718, 76 P. 323; State ex rel. Miss. River & B. T. R. Co. v. Dearing, Judge, 173 Mo. 492, 73 S.W. 485.)

"Where a court declines jurisdiction by mistake of law, erroneously deciding as a matter of law and not as a decision upon the facts that it has no jurisdiction, and either declines to proceed or disposes of the case, the general rule is that a mandamus to proceed will lie from any higher court having supervisory jurisdiction." (26 Cyc. 190.)

In practically all of the states sustaining the text in Cyc., appeal or writ of error would lie to correct error of the lower court, but the remedy by writ of error or appeal in all cases delayed the exercise of a right far beyond the delay that would result by mandamus proceeding, and on those grounds in all the cases was held to be inadequate. (State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 S.W. 281, 50 L. R. A. 787.)

C. W. Beale, for Defendant.

"It is not the function of mandamus to reverse the orders of inferior courts or tribunals of which they had jurisdiction, but if they had jurisdiction and refused to act, then they may be compelled to act by mandate." (Connolly v. Woods, 13 Idaho 591. 92 P. 573; Board of Commrs. v. Mayhew, 5 Idaho 572, 51 P. 411.)

The grievance of the Blackwell Lumber Company is not that Judge Flynn did not act, but that he did not act as it wanted him to act. This court in the case of State v. Whelan, 6 Idaho 78, 53 P. 2, held that writ of mandate would not issue where there was an appeal from the order complained of.

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This case was commenced by filing a petition for writ of mandate to compel the above-named defendant, John M. Flynn, acting judge of the district court of the first judicial district in and for the county of Shoshone, to enter an order in an action which, it is alleged in the petition, is now pending in said court appointing commissioners to assess and determine the damages which will be suffered by the Empire Mill Company, the defendant in said action, by reason of the appropriation and condemnation of a right of way across its land for a logging railroad which the plaintiff above named desires to procure. The prayer of the petition is as follows:

"Wherefore, affiant prays this honorable court for a writ of mandate; that the proceedings hereinbefore referred to may be certified to this honorable court at such time and place as may be determined by the court; that upon the hearing of this matter a peremptory writ of mandamus issue, directing the said defendant to hold that the plaintiff has the right to condemn the lands sought in said action and to appoint commissioners to assess and determine the damages to be suffered by reason of the taking."

The petition is supported by the affidavit of one R. M. Hart, and attached to the affidavit as exhibits and made a part thereof appear a copy of the following papers: The complaint in the condemnation suit, the demurrer to the complaint, the order of the court sustaining the demurrer, the judgment dismissing the action and the refusal of the judge to appoint commissioners to assess and determine the damages. The order sustaining the demurrer, the judgment and the refusal to appoint commissioners are, omitting the title of the court and cause, as follows:

"ORDER SUSTAINING DEMURRER TO THE COMPLAINT.

"The demurrer of the defendant to the complaint of the plaintiff in the above-entitled action came on to be heard before the judge of the above-entitled court under agreement of the parties at Coeur d'Alene, Idaho, on Wednesday, the 9th day of June, 1915, plaintiff being represented by Messrs. John P. Gray and W. F. McNaughton, and the defendant being represented by Mr. Charles W. Beale; the matter was argued, submitted and taken under advisement, and the judge of the above-entitled court announced that in his opinion the lumber company cannot condemn a right of way for a logging road, whether the road is to be permanent or simply temporary, as in this case, and that the demurrer would therefore be sustained upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

"Wherefore, it is ordered that the said demurrer be and the same hereby is sustained.

"Dated this 22d day of June, 1915.

"JOHN M. FLYNN,

"Judge."

"JUDGMENT.

"The demurrer of the defendant to the complaint of the plaintiff herein having been heretofore sustained now the plaintiff announces in court that it will decline to amend and stands upon its said complaint, it is therefore

"Ordered and adjudged that the above cause be dismissed at plaintiff's cost.

"Dated this 23d day of June, 1915.

"JOHN M. FLYNN,

"Judge."

"The demurrer to plaintiff's complaint in the above-entitled action having been sustained, I refuse to appoint commissioners to assess and determine the damage which defendant would sustain by reason of the condemnation and appropriation of the lands mentioned in the complaint in said action sought to be condemned.

"Dated this 23d day of June, 1915.

"JOHN M. FLYNN,

"Judge."

An alternative writ of mandate was issued and the defendant demurred to the petition and moved to quash the writ.

We are asked, practically, to direct Judge Flynn to set aside the judgment which he has entered, overrule the demurrer which he has sustained and to grant the order appointing commissioners which he has denied.

With respect to the writ of mandate sec. 4977, Rev. Codes provides: "It may be issued...