Dahlstrom v. Portland Min. Co.

• Citation: 12 Idaho 87,85 P. 916
• Parties: CLORA MARKLE DAHLSTROM et al., Plaintiffs, v. THE PORTLAND MINING COMPANY et al., Defendants
• Decision Date: 23 February 1906
• Court: Idaho Supreme Court

85 P. 916

12 Idaho 87

CLORA MARKLE DAHLSTROM et al., Plaintiffs, v. THE PORTLAND MINING COMPANY et al., Defendants

Supreme Court of Idaho

February 23, 1906

WRIT OF REVIEW-WHEN ISSUES-MOTION TO QUASH-APPEAL-ORDER-APPEALABLE ORDER.

1. Under the provisions of section 4962 of the Revised Statutes a writ of review will be issued upon proper application 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 and adequate remedy.

2. Under the provisions of said section two things must appear before a writ of review will be issued: 1. That such tribunal, board or officer has exceeded its jurisdiction; and 2. That there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.

3. Under the provisions of section 9, article 5 of the constitution, the supreme court is empowered to review, upon appeal, any decision of the district court or the judges thereof. Some orders, however, are only reviewable on an appeal from the judgment or order granting or denying a new trial.

4. The order of the court sought to be reviewed was made after judgment, and plaintiffs had an appeal therefrom.

5. Under the provisions of section 4880 of the Revised Statutes an "order" is defined to be every direction of a court or judge made or entered in writing and not included in a judgment.

6. When it appears that the plaintiff has an appeal that is adequate from an order, a writ of review on motion will be quashed.

(Syllabus by the court.)

ORIGINAL application in this court for writ of review. Motion to quash. Sustained.

Motion to quash the writ granted, with costs in favor of A. H. Featherstone.

John P. Gray, for A. H. Featherstone.

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. First Judicial Dist. 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.)

The writ of review will not lie because the time limit for taking an appeal has expired. (McCue v. Superior Court, 71 Cal. 545, 12 P. 615; In re Stuttmeister, 71 Cal. 322, 12 P. 270; Bennett v. Wallace, 43 Cal. 25; Faut v. Mason, 47 Cal. 8.)

Certiorari will not lie to review a judgment after the expiration of the time limit for appeal, unless circumstances of an extraordinary character intervene. (Keyes v. Marin County, 42 Cal. 256; Reynolds v. Superior Court, 64 Cal. 372, 28 P. 121; Smith v. Superior Court of Los Angeles, 97 Cal. 348, 32 P. 322; Ramsey v. Pettengill, 14 Or. 207, 12 P. 439.)

The special order after final judgment is appealable; therefore a writ of review will not lie to review such an order of the court. (Slavoncia Assn. v. Superior Court of Santa Clara, 65 Cal. 500, 4 P. 500; Ramsey v. Pettengill, 14 Or. 207, 12 P. 439; Hayes v. First Judicial District Court, 11 Mont. 225, 28 P. 259; Stoddard v. Superior Court, 108 Cal. 303, 41 P. 278; White v. Superior Court, 110 Cal. 54, 42 P. 471; Tucker v. Justice Court, 120 Cal. 512, 52 P. 808; Southern California Ry. Co. v. Superior Court, 127 Cal. 417, 59 P. 789.)

W. W. Woods, for Clora Markle Dahlstrom.

The original jurisdiction granted by the constitution to this court to issue writs of certiorari cannot be either devested or abridged by the legislature.

The granting of this writ is discretionary. (Harris v. Barber, 129 U.S. 366, 32 L.Ed. 697, 9 S.Ct. 314.)

Since the issuing of the writ is discretionary, a motion to quash is addressed to the discretion of the court, and will be granted or denied accordingly. (4 Ency. of Pl. & Pr. 234, citing Flourney v. Payne, 28 Ark. 87; Ex parte Pearce, 44 Ark. 509; State v. Hudson City, 29 N.J.L. 115; State v. Street Commrs., 38 N.J.L. 320; State v. Manning, 40 N.J.L. 461; White v. Wager, 185 Ill. 195, 57 N.E. 26, 50 L. R. A. 60.)

Where an inferior court or tribunal exceeds its jurisdiction, certiorari lies, even though there is a right of appeal. ( State ex rel. Hamilton v. Guniette, 156 Mo. 513, 57 S.W. 281; Hyslop v. Finch, 99 Ill. 171.)

The remedy by certiorari could not be taken away without some clear legislative enactment to that effect. (Ritter v. Kunkle, 39 N.J.L. 259; State v. Falkinburge, 15 N.J.L. 320.)

Even though appeal can be taken, certiorari not inhibited. ( People v. Donahue, 15 Hun, 418.)

In Georgia and Delaware it is held that appeal and certiorari are cumulative remedies. (Roser v. Marlow, R. M. Charlt. (Ga.) 542; Williams v. Buichinal, 3 Harr. 83.)

A. G. Kerns, for Portland Mining Company.

The language, "special order made after final judgment," in the statute naming appealable orders, does not include action by a judge wholly in excess of his jurisdiction after the satisfaction of a judgment of record. The phrase means some special order of the court made after final judgment affecting the rights of the parties, plaintiffs or defendants, before the entry of satisfaction, on a motion by one of the parties, plaintiffs or defendants.

An order can only be made in a cause then pending. (Idaho Rev. Stats., sec. 4881.)

The jurisdiction of the court over the controversy and over the parties, acquired in the primary action by service of process, continued until its judgment is satisfied. ( Phelps v. Mutual etc. Ins. Co., 112 F. 453, 50 C. C. A. 339; Freeman on Judgments, 121, 466.)

Under a statute similar to our own, it has been held certiorari will lie, even in a case where an appeal is given, if the latter be ineffectual as a remedy. (Paul v. Armstrong, 1 Nev. 82.)

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an original application in this court for a writ of review. It is set forth in the complaint or petition for the writ that on September 2, 1895, the Portland Mining Company executed promissory notes aggregating $ 49,338.64 to Clora Markle Dahlstrom, and notes aggregating $ 39,476.26 to Alvin Markle, and secured all of said promissory notes by mortgages on property in Shoshone county, Idaho the mortgage being given to the Markle Banking and Trust Company of Hazleton, state of Pennsylvania, as trustee; that on December 5, 1902, a judgment decreeing the foreclosure of said mortgages to satisfy the amount due thereon was duly rendered by the district court of the first judicial district of the state of Idaho in Shoshone county; that on January 10, 1905 the said Clora Markle Dahlstrom and Alvin Markle made, executed and delivered to the said Portland Mining Company a satisfaction in writing of the said judgment and decree of foreclosure, and in consideration thereof and a stay of proceedings, the Portland Mining Company on said date executed, acknowledged and delivered to said Clora Markle Dahlstrom a confession of judgment in writing for $ 49,338.64, principal, $ 28,616.41, interest, $ 7,795.50, attorney's fees, and $ 49.55, costs, aggregating $ 85,800.20, to bear interest at seven per cent from December 5, 1902, and at the same time delivered a like confession of judgment to Alvin Markle for $ 39,476.26, principal; $ 22,896.23, interest, $ 6,237.24, attorney's fees, and $ 10.30, costs, aggregating $ 68,620.03, to bear interest at seven per cent from December 5, 1902; that on April 11, 1905, said satisfaction of judgment was filed in said district court and the decree of foreclosure was satisfied of record, and on the same date several confessions of judgment were duly and regularly filed and entered of record in said court; that on July 1, 1905, Honorable R. T. Morgan, judge of the said district court, acting wholly without jurisdiction and in excess of the jurisdiction of the said district court, without service of process on the part of the Portland Mining Company or the Markle Banking and Trust Company, or Clora Markle Dahlstrom or Alvin Markle, and upon a petition by one Albert H. Featherstone, who was not a party to said suit, made a pretended order vacating and setting aside the satisfaction of decree of foreclosure of December 5, 1902, and at the same time and with a lack of jurisdiction, pretended to make and did make and sign as such judge and cause to be entered on the records of said court, a pretended order decreeing said Featherstone to be the equitable assignee of the decree of foreclosure of December 5, 1902, to the extent of $ 5,987.24, with interest at seven per cent from December 5, 1902, and declared the claim of the said Featherstone a lien upon said judgment and directed the sale of the mortgaged premises to satisfy said claim; that on September 20, 1905, execution issued out of the said district court on said pretended order of July 1,...