Boise Grocery Co. v. Stevenson
| Citation | 73 P.2d 947,58 Idaho 344 |
| Decision Date | 29 October 1937 |
| Docket Number | 6449 |
| Parties | BOISE GROCERY COMPANY, a Corporation, Respondent, v. R. D. STEVENSON, Appellant, ALVIN HALVERSON, LOCAL No. 483, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA, R. D. STEVENSON, as Manager and Executive Secretary of Said Local No. 483, ALVIN HALVERSON, as President of Said Local No. 483, J. LEE BYBEE, WM. NYE, DEAN HOLT, FRANK H. WOODFORD, JOHN LLOYD, JOHN DOE CHANNING, ARNETT BROWN, HAROLD CLAYBOURNE and JAS. CLUCAS, Defendants |
| Court | United States State Supreme Court of Idaho |
"LABOR LAW"-APPEAL AND ERROR-REVIEW OF TEMPORARY RESTRAINING ORDER-JURISDICTION-RECORD ON APPEAL.
1. It is duty of judge or clerk of trial court to certify papers used on hearing of motion, ruling on which is appealable, in order to have it reviewed on appeal. (I. C. A., secs. 7-607, 11-213; Supreme Court Rules, Rule 23.)
2. The Supreme Court has no jurisdiction of proceeding to review temporary restraining order against officer of local labor union on ex parte affidavits and certified copy of records and files used on hearing below, where trial judge refused to certify proceedings as involving labor dispute. (Sess. Laws 1933, chap. 215, sec. 9; I. C. A., secs. 6-411, 7-607, 11-213; Supreme Court Rules, Rule 23.)
On certified record from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch Judge.
Plaintiff (respondent herein) commenced an action praying for an injunction and after notice and hearing on affidavits procured a temporary restraining order. Certified copy of the records and files used on the hearing was filed in this court by one of the defendants, who is styled appellant here, on which a review of the proceedings as if on appeal is sought. Respondent moved to dismiss proceedings in this court. Motion granted, and cause remanded.
Proceeding dismissed and cause remanded. No costs awarded.
Oppenheim & Lampert, for Appellant.
Cases involving labor disputes are specified in section 12 of chapter 215, supra, and are such as at issue here.
In a case involving or growing out of a labor dispute, these defendants are a party to that dispute against whom relief is sought, and the courts of this state are without jurisdiction to issue a temporary injunction in such case unless the testimony of witnesses is heard in open court with opportunity for cross-examination.
A preliminary injunction is never granted where the pleadings and affidavits disclose that the plaintiff's contention in fact and in law are seriously disputed. (United States v. Weirton Steel Co., supra; Lare v. Harper Bros., 86 F. 481, 30 C. C. A. 373; United States v. Zukauckas, (D. C.) 293 F. 756; General Talking Pictures Corp. v. Stanley Co., (D. C.) 42 F.2d 904.)
Richards & Haga, for Respondent.
Pursuant to section 13 of article 5 of the constitution of the state of Idaho, the legislature enacted a system of appeals, and section 9 of chapter 215, Idaho Session Laws, 1933, is not a proper amendment or repeal of the same and is uncertain, ambiguous and incomplete, without process or notice, and insufficient to give the supreme court jurisdiction, and where any act is taken by an appellant inconsistent with his appeal, the same must be dismissed. (Idaho Const., art. 5, sec. 13; secs. 11-202 to 11-221, I. C. A.; Sonleitner v. McLaren, 52 Idaho 791, 20 P.2d 1014; Richardson v. Banbury, 39 Idaho 1, 225 P. 1023; 4 R. C. L., sec. 43, p. 61; 4 C. J., sec. 2437.)
Budge, J., expresses no opinion.
--This action was instituted by respondent, a corporation doing a general wholesale grocery business, against appellant, Stevenson, as manager and executive secretary of "Local No. 483," commonly known as "Teamsters Union" (an association composed of teamsters, chauffeurs, stablemen and helpers, generally known as a "Labor Union"), Local No. 483, its president and others. Stevenson is the only one here complaining of the action of the trial court and he is called appellant merely by order of court, for purposes of designation, not by reason of having taken an appeal. An order to show cause was issued out of the trial court and on the return day affidavits and counter affidavits were filed, and the motion for temporary restraining order was heard and determined on the pleadings and affidavits alone. After the hearing the court ordered the issuance of a temporary restraining order and thereupon Stevenson, designated as appellant herein, presented a motion to the trial judge for an order certifying the entire record of the case to this court, under the provisions of sec. 9 of chapter 215, 1933 Session Laws, page 452, as a "labor dispute." The trial judge declined to so certify the record. The order recites:
(Here files are listed)
were submitted to me as Judge of the above entitled Court, and used and considered by me on the hearing on plaintiff's application for temporary injunction and the order to show cause why such temporary injunction should not issue, and constitute and are all of the records, papers and files used or considered by me on said application and order to show cause, and the entire record of the above entitled cause." (Italics ours.)
From the foregoing order it appears that the trial judge declined and refused to certify the proceedings to this court under the provisions of the Labor Disputes Act (chap. 215 of 1933 Sess. Laws) because he had already found and held that the case did not involve a "labor dispute" as defined by the act. He did, however, certify to the papers used by him on the hearing. It is made his duty or that of his clerk, under sections 7-607 and 11-213, I. C. A., and Rule 23 of this court, to certify to the papers used on the hearing of a motion, the ruling on which is appealable, in order to have the same reviewed on appeal. (Hall v. Jensen, 14 Idaho 165, 93 P. 962; Dudacek v. Vaught, 28 Idaho 442, 154 P. 995; Spencer v. John, 33 Idaho 717, 721, 197 P. 827; Leland v. Twin Falls Canal Co., 51 Idaho 204, 3 P.2d 1105.)
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