Carson v. Thews

• Decision Date: 08 February 1886
• Citation: 2 Idaho 176,9 P. 605
• Parties: CARSON ET AL. v. THEWS
• Court: Idaho Supreme Court

9 P. 605

2 Idaho 176

CARSON ET AL. v. THEWS

Supreme Court of Idaho

February 8, 1886

FINDINGS-CONCLUSIONS OF LAW-IF NOT RESPONSIVE TO ISSUES WILL NOT SUPPORT JUDGMENT.-By this appeal two questions are presented for consideration here: 1. Are the findings of fact responsive to the issues? 2. Are the conclusions of law supported by the findings of fact? Findings of fact must be responsive to all the material issues raised by the pleadings. Conclusions of law based upon findings of fact outside the issues raised by the pleadings cannot be sustained, and will not support a judgment.

Reversed and remanded.

Kimball & Heywood, for Appellants.

Mandamus is the proper remedy to enforce the performance of this duty by the auditor, where, as is the case under the law of this territory, the duty is purely ministerial. (High on Extraordinary Legal Remedies, sec 104, note 1, and sec. 17; Turner v. Melony, 13 Cal. 621; Babcock v Goodrich, 47 Cal. 488.) The facts admitted by respondent's answer must be considered in connection with facts found by the court, and given the same weight as the findings. (Hayne on New Trial and Appeal, sec. 240; Sift v. Muygride, 8 Cal. 445; Fox v. Fox, 25 Cal 590; Burnett v. Stears, 33 Cal. 473; Bradbury v. Crouise, 46 Cal. 289; McDonald v. M. V. H. Assn., 51 Cal. 210; Teachy v. Craig, 55 Cal. 93.) Counties are created for the purpose of government and the administration of justice, and are charged with civil and political duties, and hence, on grounds of public policy, are not liable to garnishment. (Divine v. Harvie, 7 T. B. Mon. 439, 18 Am. Dec. 194, and notes at p. 200; Merrill v. Campbell, 69 Wis. 535, 5 N.W. 912; Merwin v. Chicago, 45 Ill. 133, 92 Am. Dec. 204.)

D. P. B. Pride, Attorney General, for Respondent.

No brief on file.

BRODERICK J. Hays, C. J., and Buck, J., concurring.

OPINION

BRODERICK, J.

In the court below judgment was rendered against the plaintiffs, and they appealed from the judgment. The complaint alleges in substance that the plaintiffs were copartners; that on and prior to December 22, 1882, they had a contract with the county of Oneida to construct a courthouse for said county; that in pursuance of the contract they constructed the building; that on the twenty-seventh day of February, 1883, the board of county commissioners accepted said building from plaintiffs; that on the first day of March, 1883, the said board held a meeting, and the plaintiffs presented their account to the commissioners for the construction of the building; that the commissioners passed upon and allowed said account of plaintiffs, and found due thereon the sum of $ 3,060.25, and made and entered an order that warrants be issued to the plaintiffs for the amount allowed.

It is further alleged that the plaintiffs, on the first day of March, 1883, presented said order to the defendant, the auditor of said county, and demanded the issue of the warrants, and that the auditor refused, and still refuses, to issue the same. The complaint demanded the issuance of a writ of mandate commanding the defendant to issue and deliver to the plaintiffs the warrants described in the complaint, and an alternative writ was issued.

The defendant answered, and denied that the plaintiffs were copartners, and denied that they contracted with the county for the construction of a courthouse; and further answering averred, in substance, that immediately upon the completion of said contract and its acceptance by said board of county commissioners there was served upon defendant a garnishment by the sheriff of Oneida county in a cause then pending in the district court of said county, wherein the Salmon River Mining and Smelting Company was plaintiff and Charles Carson was defendant, whereby defendant was prohibited and prevented from drawing and delivering the warrants in favor of the said Charles Carson & Co., and was directed and commanded to deliver said warrants to said sheriff; that the garnishment was served before the presentation of the order of the board of commissioners by Charles Carson, and before he requested defendant to issue and deliver the warrants to him.

Upon the issue thus joined the cause was tried, and the court found the following facts and conclusions of law: "1. That the defendant William B. Thews was, on or about the twenty-fourth day of February, 1883, served with a writ of attachment in the case of Salmon River Min. etc. Co. v Carson, and the warrants mentioned in the complaint in this action were attached in his hands...