Gaffney v. Piper

• Decision Date: 11 November 1897
• Citation: 5 Idaho 490,51 P. 99
• Parties: GAFFNEY, ASSIGNEE, v. PIPER, JUDGE
• Court: Idaho Supreme Court

51 P. 99

5 Idaho 490

GAFFNEY, ASSIGNEE, v. PIPER, JUDGE

Supreme Court of Idaho

November 11, 1897

JURISDICTION-JUDGE AT CHAMBERS.-The district judge at chambers has not jurisdiction to pass upon and make an order allowing claims for attorney's fees against an insolvent state.

(Syllabus by the court.)

Original proceeding by writ of review.

Action annulled. Costs of this proceeding awarded to plaintiff.

J. T Morgan and R. T. Morgan, for Plaintiff.

The Bank of Genesee was, on November 27, 1895, duly adjudged an insolvent debtor. On January 23, 1896, the plaintiff herein was elected assignee of said insolvent, and on April 23 1896, was confirmed as such assignee and duly qualified on April 29, 1896. From the time the plaintiff herein took charge of said estate and up to June 10, 1897, S. S. Denning acted as attorney for the assignee. This case coming up on certiorari, the inquiry should be confined to the consideration of the authority of a judge at chambers to make original orders wherein a question of fact arises as to whether or not certain sums of money are claimed to be due from one party to another. In short, the question to be determined is, Did the judge exceed his jurisdiction? (Rev Stats., sec. 3890.) The orders made by the honorable judge at chambers in this pretended hearing are for the payment of money on an implied contract, and as to whether or not amounts are due or the charges reasonable are questions which a jury might determine. The orders or findings are in the nature of judgments in payment of services alleged to have been rendered, and the remedy for recovery is by assumpsit or on quantum meruit. In actions for recovery of money, as upon contract, an issue of fact must be tried by a jury unless expressly waived by the parties thereto in writing. (Idaho Rev. Stats., sec. 4369; Bond v. Pacheco, 30 Cal. 553; Norwood v. Kenfield, 34 Cal. 331; Wicks v. Ludwig, 9 Cal. 175.)

S. S. Denning and Warren Truitt, for Defendants.

The case having been commenced in court, and the parties having stipulated in open court to try the same before the judge at chambers, the entry is not void. (People v. Lindsay, 1 Idaho 394; Ex parte Burnett, 44 Cal. 84; City of San Jose v. Shaw, 45 Cal. 178; Densmore v. Smith, 17 Wis. 24; Walwarth County v. Farmers' etc. Co., 22 Wis. 231; Andrews v. Eldrerkin, 24 Wis. 521.) The same rule also applies in the United States court. (Doggett v. Emerson, F. Cas. No. 3962; Beach v. Beckworth, 13 Wis. 21; Lewis v. Lewis, 1 Minor (Ala.), 35; King v. Green, 2 Stew. (Ala.), 133, 19 Am. Dec. 46; New Orleans v. Gauthoreaux, 32 La. Ann. 1126; Rust v. Faust, 15 La. Ann. 477; Morrison v. Citizens' Bank, 27 La. Ann. 401; Green v. Reagan, 32 La. Ann. 974.) Appeal is the remedy, and not certiorari, in the state of Idaho. (People v. Lindsay, 1 Idaho 394; Idaho Const., art. 5, sec. 9.) This was neither a trial nor a hearing of an order proper, but was simply a summary proceeding in the nature of costs, and which the judge of the court had at chambers as well as in court. (Branch v. American Nat. Bank, 57 Kan. 282, 46 P. 305.)

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

Gaffney was appointed assignee of the Bank of Genesee, an insolvent debtor, under the statutes of Idaho. S. S. Denning, Esq., and Warren Truitt, Esq., it would seem by the request of the assignee appeared in certain matters before the courts on behalf of said assignee and the estate of insolvent. No regular appointment seems to have been made of an attorney by the assignee; but that certain services were rendered by Denning and Truitt is conceded. But it...