Canadian Bank of Commerce v. Wood

• Decision Date: 31 December 1907
• Citation: 93 P. 257,13 Idaho 794
• Parties: THE CANADIAN BANK OF COMMERCE, a Corporation, Plaintiff, v. FREMONT WOOD, as Judge of the Third Judicial District of the State of Idaho Sitting at Chambers at Wallace, Shoshone County, Idaho within the First Judicial District of the State of Idaho Defendant
• Court: Idaho Supreme Court

93 P. 257

13 Idaho 794

THE CANADIAN BANK OF COMMERCE, a Corporation, Plaintiff, v. FREMONT WOOD, as Judge of the Third Judicial District of the State of Idaho Sitting at Chambers at Wallace, Shoshone County, Idaho within the First Judicial District of the State of Idaho Defendant

Supreme Court of Idaho

December 31, 1907

CERTIORARI-APPEALABLE ORDER-FINAL JUDGMENT-ORDER DIRECTING RECEIVER TO PAY MONEY.

1. Under the provisions of Revised Statutes, section 4962, a writ of review may be granted by any court except a probate or justice's court, when an inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain speedy or adequate remedy.

2. Under this statute, two things must be shown to exist before a writ of review will be issued: First, that an inferior tribunal, board or officer, exercising judicial functions has exceeded its jurisdiction; and, second, that there is no appeal, nor, in the judgment of the court, any plain, speedy or adequate remedy.

3. An order made by a judge allowing claims, and disallowing others, against an estate, and directing a receiver to pay out of the funds in his hands, such claims as the judge has allowed, and distribute the funds in the hands of the receiver, according to the order and judgment of the judge is an appealable order or judgment, and certiorari will not lie to review such order.

4. An allegation in a petition for writ of certiorari, that if an appeal be taken, the expense will be heavy and disproportionate to the amount the plaintiff will recover, is not a reason why the appeal will not be a plain, speedy and adequate remedy, and does not warrant this court in reviewing the judgment by writ of certiorari.

(Syllabus by the court.)

PETITION for writ of certiorari to review an order or judgment of the judge of the district court of Shoshone County. Hon. Fremont Wood, Judge of the Third Judicial District, sitting at chambers in the First Judicial District in and for Shoshone County. Motion to quash sustained.

Motion to quash the writ sustained. Costs awarded to the defendant.

John M. Gearin, Ezra R. Whitla, J. N. Smith, and Samuel R. Stern, for Plaintiff.

Counsel for defendant insists that we have the right to appeal, because section 9, article 5 of the constitution of Idaho provides in effect that every decision or order of a district court or judge is appealable, but that is not the point.

The question of whether any party has the right of an appeal which would preclude a writ of certiorari resolves itself into one whether the statute provides the judicial machinery--the adversary process to bring the estate to this court. If it has not made such provision, then there is no appeal within the meaning of the rule that a writ of certiorari will not be granted where there is an appeal. This court, construing section 9, article 5, in the case of State v. Reed, 3 Idaho 554-556, 32 P. 202, says: "If there is no provision in the statute by which a defendant in a criminal case may have the order of the district court overruling his motion for a change of place of trial 'reviewed on appeal,' then, under the provisions of section 9, article 5 of the constitution, he may have his writ of error or such other proper writ as this court may see fit to issue to reach that end." (See, also, Nez Perce County v. Latah County, 2 Idaho 1131, 31 P. 800; Rupert v. Board, 2 Idaho 21, 2 P. 718.) Counsel relies upon the case of Dahlstrom v. Portland Min. Co., 12 Idaho 87, 85 P. 916, but that case does not sustain his contention, because the order sought to be reviewed upon certiorari was a special order made after final judgment, and from such an order there is an appeal provided by statute. In this case, this order of Judge Wood was not a special order made after final judgment. It purports to be a final judgment of itself, and is in contravention of the judgment of Judge Morgan, and not subsidiary to it, nor can it be construed as a provisional remedy to enforce that judgment. The decision of this court in the Dahlstrom case supports our contention, because in that case the court held that where the statutes provide a remedy by appeal, a writ of certiorari could not be sustained. In the oral argument of this case, counsel for defendant admitted there is no statute providing for a direct appeal.

The plaintiffs herein rely upon the following cases from the supreme court of Idaho as showing our right to certiorari herein: Dahlstrom v. Portland Min. Co., 12 Idaho 87, 85 P. 916; Gaffney v. Piper, 5 Idaho 490, 51 P. 99; Madison v. Piper, 6 Idaho 137, 53 P. 395; Cummings v. Steele, 6 Idaho 666, 59 P. 15; and we contend that there is no right of appeal given by statute from this order of Judge Wood within the meaning of State v. Reed, 3 Idaho 554, 556, 32 P. 202; Nez Perce Co. v. Latah Co., 2 Idaho 1131, 31 P. 800; Rupert v. Board, 2 Idaho 21, 2 P. 718. Counsel for defendant in this case has no right to insist that the Canadian Bank of Commerce shall hazard its litigation upon a questionable right to appeal, but before the right to appeal shall deprive it of the writ of certiorari, such right must be clearly provided by statute and applicable to the case at hand.

If the conduct of the defendant judge in assuming jurisdiction at the request of the attorneys for either the receiver or creditors was such as to justify the application for and the granting of this writ, then the consequences and the expense of preparing the record should be upon those who have made this sort of proceeding necessary. If we had rights which either the receiver or creditors were bound to respect and such rights were attempted to be violated, we are not to blame, and we should not be visited with the expense of correcting the error.

John P. Gray and J. H. Forney, for Defendant.

The judgment entered by Judge Wood was a final judgment in that action, and appealable under the statutes and the constitution of the state of Idaho. (Idaho Const., art. 5, sec. 9; Chemung Min. Co. v. Hanley, 11 Idaho 302, 81 P. 619; Patterson v. Ward, 6 N. Dak. 359, 71 N.W. 543.)

Plaintiff has shown no circumstances of an extraordinary character that have intervened to prevent the prosecution of the appeal from Judge Wood's decision. (Dahlstrom v. Portland Min. Co., 12 Idaho 87, 85 P. 916, and cases there cited.)

In this case the plaintiff has attempted to perfect his appeal, and states in his petition "that to attempt to take this appeal means the expenditure of almost a prohibitory sum of money." The remarkable reason advanced by the petitioner as a justification of his application for a writ of review would be equally applicable to any other appeal. It is apparent from the petition itself that the only object in the application for a writ of review in this case is to shift the burden of the expense of preparing the record from itself to this defendant.

By its own petition the plaintiff shows that it is at the present time prosecuting an appeal, upon the consideration of which, if properly perfected, this court can review all questions which plaintiff attempts to raise in its application for a writ of review.

A writ of review does not lie where there is a remedy by appeal. ( People v. Lindsay, 1 Idaho 394; Graham v. Superior Court, 74 Cal. 217, 15 P. 746; Hayes v. District Court, 11 Mont. 225, 28 P. 259; Rogers v. Hayes, 3 Idaho 597, 32 P. 259; Noble v. Superior Court, 109 Cal. 523, 42 P. 155; State v. District Court, 27 Mont. 179, 70 P. 516; State v. Justice Court, 31 Mont. 258, 78 P. 498.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

On August 3, 1907, Judge Fremont Wood, judge of the third judicial district of the state of Idaho sitting at chambers at Wallace, Shoshone county, Idaho and within the first judicial district of the state of Idaho filed in said court the following order or judgment:

"In the District Court of the First Judicial District of the State of Idaho in and for the County of Shoshone.

"GEORGE B. MCAULEY, and VAN B. DELASHMUTT, Plaintiffs, v. THE COEUR d'ALENE BANK, a Corporation, Defendant.

"DECREE.

"Be it remembered, That the above-entitled action came on to be heard before the judge of the above-entitled court, sitting at chambers in Wallace, Idaho on the 20th day of April, 1907 the Honorable Fremont Wood, Judge of the Third Judicial District of the state of Idaho presiding at the request of the Honorable W. W. Woods, Judge of the above-entitled court said judge of the above-entitled court, being disqualified by reason of the fact that he had been attorney for the Receiver of the said bank and the said receiver, Abner G. Kerns, being personally present and represented by his attorney, J. H. Forney, John P. Gray and Henry S. Gregory; and Joseph P. Keane, claiming to be a creditor of the said bank being personally present and represented by his attorney, Albert H. Featherstone, and the Canadian Bank of Commerce, claiming to be a creditor of said bank and being represented by its attorney, Samuel R. Stern, and George Stewart, claiming to be a creditor of said bank being represented by his attorney, A. H. Conner, and John Reedy, Alexander E. Mayhew, Mrs. E. J. Jackson and Edward Doyle, claiming to be creditors of said bank being represented by their attorneys, A. H. Conner, Walter H. Hanson and James A. Wayne; and all of the persons so interested or claiming to be interested thereupon consented to the hearing of all matters in connection with the said action before the said court and the said judge sitting in chambers on the said day, and no objection being made, the court proceeded to hear the said cause on the report of the...