Evans v. District Court of Fifth Judicial District

• Decision Date: 31 January 1929
• Docket Number: 5318
• Citation: 47 Idaho 267,275 P. 99
• Parties: J. PAUL EVANS and GEORGE E. BECKSTEAD, Plaintiffs, v. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT and HON.C. J. TAYLOR, as Judge Presiding of Said Court, Defendants
• Court: Idaho Supreme Court

275 P. 99

47 Idaho 267

J. PAUL EVANS and GEORGE E. BECKSTEAD, Plaintiffs, v. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT and HON.C. J. TAYLOR, as Judge Presiding of Said Court, Defendants

No. 5318

Supreme Court of Idaho

January 31, 1929

MANDATORY INJUNCTION-PROHIBITION-CONTEMPT PROCEEDINGS-ADEQUACY OF REMEDY BY APPEAL-HABEAS CORPUS-WHEN LIES.

1. Writ of prohibition will issue to arrest the proceeding of inferior tribunal, when it is acting in excess of its jurisdiction and there is no other plain, speedy, adequate remedy in the ordinary course of law.

2. Mandatory injunction, defined under C. S., sec. 6768, as writ or order requiring a person to refrain from a particular act is granted only in extreme cases where right is very clear and it appears that irreparable injury will flow from its refusal.

3. Where lower court acted in excess of its jurisdiction in issuing injunction, writ of prohibition will issue, since there was no plain, speedy, and adequate remedy in ordinary course of law.

4. Citation for contempt or rule to show cause is not such a final order that an appeal will lie therefrom.

5. Habeas corpus does not lie after judgment for contempt until after inconvenience of imprisonment is actually suffered.

Original proceeding for a writ of prohibition. Alternative writ heretofore issued modified, and so modified, made permanent.

Demurrer to the petition overruled. No costs allowed. Petition for rehearing denied.

F. M Bistline, for Plaintiffs.

During the pendency of a suit involving title to real estate a court has no authority to order a party to the suit to harvest the wheat raised on said real estate and store it in a warehouse, in the name of the clerk of said court. The only authorities we can submit upon this point go to the jurisdiction of courts generally. (18 C. J. 693; 15 C. J. 797, secs. 92 and 93; 13 C. J. 801, sec. 100.)

Bissell & Bird and A. Humphrey, for Defendants.

The second ground of the demurrer is that it does not appear that the plaintiffs do not have an adequate remedy in the usual course of law. Plaintiffs do not seem to have considered this requirement, which is specified by C. S., sec. 7268. The applicable rule is fully stated in this court's opinion in the case of Olden v. Paxton, 27 Idaho 597, 150 P. 40. This rule was approved by this court in the case of Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348.

It must be assumed that the district court will proceed in proper manner in passing upon the questions involved in its rule to show cause, and the plaintiffs have no right to anticipate that the district court is going to punish either of them for contempt of court unless it has complete jurisdiction so to do and unless such punishment is merited. The rule upon this phase of the argument and upon the entire question is stated in the case of Gropp v. Huyette, 35 Idaho 683, at pp. 688, 689, 208 P. 848.

GIVENS, J. Budge, C. J., Taylor and Wm. E. Lee, JJ., and Hartson, D. J., concur.

OPINION

GIVENS, J.

Under executions issued on certain judgments obtained by the city of American Falls and other municipal corporations in that vicinity against L. L. Evans and others, certain real property was sold and certificates of sale issued to one Humphrey acting as trustee for said judgment and execution creditors. Some of the lands in question had been leased by J. Paul Evans to petitioner Beckstead. After the execution sale petitioner Evans instituted an action contesting the sale and secured an injunction restraining the issuance of a sheriff's deed. In that suit the city of American Falls, the sheriff and Humphrey as trustee, defendants in this action, filed a cross-complaint, making Beckstead cross-defendant, setting up such leases and alleging their terms in substance, in part, as follows:

That Evans and Beckstead were each to have one-half of the crop raised on said premises, the wheat to be delivered by said tenant at the Michaud warehouse at Michaud siding in Power county, all the other crops to be divided one-half and one-half on the ranch.

The cross-complaint asked for the appointment of a receiver or as an alternative that the court order Beckstead to harvest the crops and store them in the name of the clerk of the court.

Among a number of motions and orders, the only order we believe to be material at this time is the last, of August 21st, as follows:

"It is hereby ordered, adjudged and decreed by the Court that one-half of all wheat now in said warehouse at Michaud, Idaho, delivered thereby (sic) by said Beckstead, from either the premises described in Paragraph IV of the amended complaint herein and the Southwest Quarter of Section Fourteen, Township Six South, Range Thirty Three East of the Boise Meridian in Power County, Idaho, and one-half of all wheat yet to be delivered to said warehouse by said Beckstead from said premises be stored in the name of C. A. Coon, Clerk of this Court, until the further order of this Court, the said wheat yet to be delivered to be so stored as delivered, and that the warehouse receipts for said wheat be issued in the name of and delivered to said C. A. Coon, Clerk of this Court.

"It is further ordered, adjudged and decreed by the Court that the said J. Paul Evans and said Beckstead notify said Warehouse Company at once and request said Warehouse Company to so store said one-half of said wheat and to issue warehouse receipts therefor in compliance with this order and that they and each of them refrain from interference with said warehouse company's full compliance with this order. Provided plaintiff may procure the release of the wheat by order of the Court by furnishing additional injunction bond herein to a total of $ 3000.00 to be approved by the Court."

Thereafter, on August 29th, the trial court entered an order, returnable September 6th, requiring the petitioners herein to show cause why they should not be punished for contempt for their failure or refusal to comply with the order of August 21st.

Petitioners thereupon sued out an alternative writ of prohibition restraining the trial court from proceeding further with the rule to show cause or making any disposition of the crops raised on the lands, the title to which was involved in the action referred to above brought by petitioner J. Paul Evans, pending the final determination of that action. Defendants, ordered to show cause why the alternative writ should not be made permanent, have filed a demurrer and answer to the petition...