Ellis v. Bingham County

Decision Date08 February 1900
PartiesELLIS v. BINGHAM COUNTY
CourtIdaho Supreme Court

CLAIMS AGAINST A COUNTY-ALLOWANCE IN PART-APPEAL FROM BOARDS OF COMMISSIONERS.-Claimants, whose claims against the county are allowed in part, must accept or reject the action of the board of commissioners as a whole, and cannot appeal from a portion of the action of the board. Affirming Eakins v. Nez Perces County, 4 Idaho 131, 36 P. 702, and Clyne v. Bingham County, ante, p. 75, 60 P. 76.

SAME-CLAIM FOR SERVICES, WHAT TO CONTAIN.-An item in a constable's claim or account against a county, for services in serving process in a criminal case, must specify the court in which the action is pending, name the offense, the party served and place of service, so that the correctness of the item shall prima facie appear from the claim itself.

STATUTE CONSTRUED.-Act of March 13, 1891, does not amend sections 2126 and 2136 of the Revised Statutes in so far as said sections relate to constables' fees and mileage.

CONSTABLES' FEES AND MILEAGE.-Constables are entitled to mileage at the rate of twenty cents per mile for each mile necessarily traveled in going only, from place where the court is held to serve process.

ATTORNEYS-STIPULATION.-Briefs that are signed and filed by persons claiming to be attorneys, but who are not licensed to practice in the appellate court, will be stricken from the files on order of the court.

BOARDS OF COMMISSIONERS.-Boards of commissioners are not a law unto themselves, but must be guided by and obey the provisions of statutes relating to the allowance of claims against a county.

DISMISSAL OF APPEAL.-When there is no judgment or order from which an appeal will lie shown by the transcript, the appellate court should, on its own motion, dismiss the appeal. Affirming Potter v. Talkington, 5 Idaho 317, 49 P. 14, and Clyne v Bingham County, ante, p. 75, 60 P. 76.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Appeal dismissed. Costs awarded to neither party.

N, H Clark, for Appellant, cites no authorities on the points decided.

No attorney for Respondent.

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

The respondent, W. G. Ellis, is a constable in Idaho Falls precinct, in Bingham county, and, as such constable, presented nine bills or claims against said county to the board of commissioners for allowance, aggregating $ 648.95. The commissioners allowed a portion of each bill or claim, aggregating in all the sum of $ 449.50, and disallowed a portion of each bill, the amounts disallowed amounting in the aggregate to the sum of $ 199.49. The respondent appealed to the district court from the action of the board in disallowing said portions of his claims, and from the action of the district court the county appeals to this court.

The record before us, touching the transcript on appeal to the district court, and from the district court to this court, is substantially in the same condition as the transcript in the case of Clyne v. Bingham Co. (decided at this term), ante, p. 75, 60 P. 76, and what is said in the opinion in that case as to the transcript applies here. The order or orders of the board of commissioners is not in the record before us. The notice of appeal of respondent from the order of the board to the district court, after being directed to the members of the board, clerk of the board, and county attorney is as follows: "You, and each of you, will please take notice that W. G. Ellis, who is constable of Idaho Falls precinct, Bingham county, Idaho and who is the claimant on the bill hereinafter described, hereby appeals from the order of the board of county commissioners of Bingham county, made on the twelfth day of October, 1899, disallowing $ 204 of the amount of said bill, to the district court of the fifth judicial district of Idaho in and for the county of Bingham. This appeal is taken from the order whereby the following bill was disallowed, to wit: The bill of W. G. Ellis, for $ 204, filed with said board on the eleventh day of October, 1899: This appeal is taken on questions of both law and fact. Dated this nineteenth day of October, 1899. Clark & Holden, Attorneys for Appellant." From this notice and the transcript, it appears that the respondent constable appealed from the action of the board in disallowing parts of his claims, and that he must have accepted a warrant or warrants for those parts allowed. Acceptance of a warrant for part of a claim allowed by the board of commissioners against the county bars the claimant from appealing from the order, or from asserting a claim to that part of the claim disallowed. (See Rev. Stats., sec. 1775, and Clyne v. Bingham Co., cited, supra.

We find in the record before us two stipulations, in words and figures as follows:

"This cause having come on regularly to be heard before the court, sitting without a jury, whereupon it was stipulated and agreed in open court by the counsel for the respective parties that each, all, and every of the items, of the bills in controversy in this appeal are true and correct, and the mileage as charged in said bill was actually traveled to execute regular criminal process from the justice court of Idaho Falls precinct, Bingham county, Idaho and in removing prisoners from said courts after conviction, upon a regular commitment, to the county jail at Blackfoot, Idaho. It is further stipulated and agreed that the only question involved in this appeal is (1) how much the constable may charge and collect per mile for each and every mile traveled in going to execute regular criminal process. (2) how much per mile the constable may charge and receive per mile in returning a prisoner from the place of arrest to the court or magistrate who issued the warrant; (3) how much per mile the constable may charge and receive for taking a prisoner committed to his charge after conviction, upon a regular commitment to the county jail, the place where he is directed to be confined. It is further stipulated and agreed that, the services having been actually rendered, the constable duly presented his bill, in regular form, to the board of county commissioners of Bingham county, which bill claimed thirty-five cents per mile for each mile actually and necessarily traveled, and thirty-five cents per mile for each mile traveled in returning a prisoner to court or to jail, which bill was by said board allowed at the rate of twenty cents per mile, as shown by the mileage on the bill, from which order reducing the mileage to twenty cents per mile the said constable duly appealed to this court, whereupon it was further stipulated that the only question to be tried was the amount per mile the constable was allowed for the services rendered as set forth in the bill on file herein.

"N. H. CLARK,

"Attorney for Bingham County.

"CLARK & HOLDEN,

"Attorneys for W. G. Ellis, Constable.

"STIPULATION.

"It is hereby stipulated and agreed by and between the counsel for the respective parties that the foregoing is a full, true, and correct copy of the judgment-roll in the above-entitled cause, and that the only questions to be determined in this appeal to the supreme court of Idaho are those stipulated and agreed upon in the district court, which stipulation is in writing, and made a part of the judgment-roll in this action.

"N. H. CLARK,

"Attorney for Bingham County.

"CLARK & HOLDEN,

"Attorneys for W. G. Ellis, Constable."

These stipulations attempt to limit the jurisdiction of the court--tend to confine its duties to one question of law--i. e., the mileage to which a constable is entitled in criminal cases. What we said in Clyne v. Bingham Co., supra, in regard to such stipulations and the duties of the courts applies to these stipulations.

Folios 62 to 64 of the transcript are as follows:

"FINDING AND DECREE OF COURT.

"This cause came regularly on for trial on the tenth day of November, A. D. 1899, before the court without a jury; a jury trial having been duly waived in open court by the parties and Clark & Holden, Esqs., appearing as attorneys for plaintiff, and N. H. Clark. Esq., county attorney, for defendant; and, from the evidence introduced, the court finds the facts as follows, to wit: That the charge of thirty-five cents per mile made by W. G. Ellis as mileage in criminal cases for his services as constable of Idaho Falls precinct is the amount of mileage that he is entitled to receive under the statute, said constable being allowed the same mileage as sheriffs. That thirty-five cents per mile is...

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