Felton v. Prather
| Decision Date | 28 February 1973 |
| Docket Number | No. 11120,11120 |
| Citation | 506 P.2d 1353,95 Idaho 280 |
| Parties | Jean FELTON, Plaintiff, v. Watt E. PRATHER, Judge of the District Court of the First Judicial District of the State of Idaho, Defendant. |
| Court | Idaho Supreme Court |
J. H. Felton, Lewiston, for plaintiff.
Watt E. Prather, pro se.
This is an original proceeding seeking a writ of mandate directed to a district judge requiring him to take all steps necessary to enter final judgment in a pending matter, and further commanding the district judge to refrain from enforcing an order employing an engineer to make a survey in connection with that case. An alternative writ was improvidently granted and is hereby quashed.
There is now pending in the District Court of the First Judicial District, . benewah County, the case of Felton v. Drainage District #1, Number 3859, which is a quiet title action involving a boundary dispute. District Judge Watt E. Prather entered a memorandum opinion ordering a survey to locate the boundary between the property of plaintiff Felton and the Drainage District. The Judge directed the parties to agree upon a surveyor within ten days and, absent such agreement, the court stated it would appoint a surveyor. On July 4, 1970, plaintiff's counsel advised the court that the parties had agreed that one Maher should perform the survey. Maher purportedly completed the survey.
After the case was reopened for additional evidence Judge Prather issued a second memorandum opinion on July 19, 1971, affirming his original opinion and concluding that Maher's survey was incomplete because Maher had failed to describe the location of a certain ditch. The court directed plaintiff to complete the survey to include location of the ditch, and to show the boundary as the south edge of that ditch.
On September 9, 1971, plaintiff's counsel advised the court that Maher refused to complete the survey. The court then ordered that the parties had ten days to agree upon a new surveyor and, in the absence of such agreement, the court would appoint a surveyor. Plaintiff's counsel thereafter proposed one Rudd as surveyor, but the defendant advised the court that he would not accept Rudd as a surveyor. Nevertheless, plaintiff obtained a survey by Rudd which was submitted to the court on October 15, 1971. Defendant objected to Rudd's survey on the grounds that the court had never expressly or impliedly authorized the Rudd survey, and that the defendant had never accepted Rudd as surveyor.
A hearing was held on defendant's objections to the survey and the court determined that the Rudd survey was not conducted in compliance with the court's orders. The court further found that the Rudd survey was based on the center line of the aforesaid ditch when the court had expressly ordered the survey to be based upon the south side of the ditch. Accordingly, on March 9, 1972, Judge Prather appointed Bovay Engineers, of Spokane, Washington, to carry out the survey in conformity with the court's memorandum opinions.
Plaintiff objected to the order appointing Bovay Engineers and obtained a stay of that order pending her application to this Court for a writ of mandate. On May 26, 1972 this Court issued an alternative writ of mandate directing Judge Prather to take all steps toward entering final judgment in the cause and further ordering the judge not to enforce his order appointing Bovay Engineers as surveyors, or to show cause why the alternative writ should not be made permanent.
The law of Idaho governing the issuance of writs of mandate directed to district judges is clear:
'Section 7-302, I.C. in providing when a writ of mandate may be issued, reads in its material part as follows:
"It may be issued by any court except a justice's or probate court, to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station;'
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David Steed and Associates, Inc. v. Young
...should only be used when the party seeking the writ has a "clear legal right" to have the petitioned act performed. Felton v. Prather, 95 Idaho 280, 506 P.2d 1353 (1973). In those instances in which a party is entitled to a trial by jury, no discretion lies in the court to deny a "clear leg......
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Cowles Pub. Co. v. Magistrate Court of the First Judicial Dist. of State, County of Kootenai
...520 (1983). A writ of mandate will not lie to control discretionary acts of courts acting within their jurisdiction. Felton v. Prather, 95 Idaho 280, 506 P.2d 1353 (1973). We note that the preliminary hearing in the underlying criminal case has already been concluded. To turn back the clock......
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Thompson v. Engelking
...duty. Vandenberg v. Welker, 74 Idaho 508, 264 P.2d 1029 (1953); Allen v. Smylie, 92 Idaho 846, 452 P.2d 343 (1969); Felton v. Prather, 95 Idaho 280, 506 P.2d 1353 (1973). As clearly recognized by the trial court, it is within the plenary power of the legislature, and the legislature alone, ......
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