Gans v. Steele

• Citation: 61 P. 286,7 Idaho 143
• Parties: GANS v. STEELE, JUDGE
• Decision Date: 19 May 1900
• Court: Idaho Supreme Court

61 P. 286

7 Idaho 143

GANS v. STEELE, JUDGE

Supreme Court of Idaho

May 19, 1900

WRIT OF REVIEW-JURISDICTION-FILING OF PETITION.-Application and affidavit were presented to the district judge at chambers for writ of review. Writ was issued on November 21, 1899. Application filed December 6, 1899. Held, sufficient, as there is nothing in the statute requiring the application to be filed before the writ is granted.

COURTS OF RECORD.-The law does not confine the issuance of writs of review to courts of record, but that a writ may issue to any inferior tribunal, board or officer exercising judicial functions upon proper showing in cases where there is no plain and speedy remedy.

APPEAL FROM ORDER OF PROBATE COURT.-The statute does not provide an appeal from an order of a probate court made in a proceeding supplemental to execution, and the only means of reviewing such order is by writ of review.

JURISDICTION-SECTION 3890 OF THE REVISED STATUTES.-Section 3890 of the Revised Statutes gives a district judge, at chambers, jurisdiction to issue writs of review.

DEFECTIVE WRIT-DEMURRER.-A writ issued, defective upon its face, does not affect the jurisdiction of the judge and such defect must be reached by demurrer or motion to quash.

(Syllabus by the court.)

Original proceeding for writ of review.

Action affirmed, and the writ quashed. Costs awarded to defendant.

George W. Tannahill and Isham N. Smith, for Plaintiff.

A writ of error is process of the appellate court, issuing it. (Knight v. Weiksdorf, 21 Fla. 157; Guarantee Trust Co. v. Buddington, 23 Fla. 514, 2 So. 885; Lessee of Taylor v. Boyd, 3 Ohio St. 354.) An action is commenced in Idaho when the complaint is filed with the clerk of the proper court. (Idaho Rev. Stats., secs. 4068, 4138, 4139; Gold Hunter Smelting Co. v. Holleman, 3 Idaho 99, 27 P. 413.) In the order sought to be reviewed, the probate court of Nez Perces county was a justice's court and hence not a court of record, and therefore there would be no record within the meaning of the law to be certified to the district court. (7 Ency. of Pl. & Pr., p. 828, note 2; Idaho Rev. Stats., sec. 3842. But compare this with article 5, section 21, Idaho Constitution, as there is possibly a difference.) The remedy to review any matter in the justice court is by appeal to the district court. (Idaho Rev. Stats sec. 3830, subd. 7.) A writ of error will not lie where there is a remedy by appeal. (7 Ency. of Pl. & Pr. , p. 852, point 3, note 3.)

James W. Reid, for Defendant.

Writ of error issues only when there is not a plain, speedy and adequate remedy at law. (Rev. Stats., sec. 4978; People v. Lindsey, 1 Idaho 400, 401.) Plaintiff should have moved to quash the writ of error issued by Judge Steele, and if refused, then appeal to this court. (People v. Lindsey, 1 Idaho 401.)

SULLIVAN J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This is an application for a writ of review to review the action of the district judge of the second judicial district of this state in the issuance of a writ of review to review the action of the probate court of Nez Perces county in a matter wherein said probate judge made an order directing a garnishee to pay into court or to the sheriff holding an execution certain money in the hands of such garnishee belonging to the execution debtor. It appears that said execution debtor claimed said money as exempt under the provisions of subdivision 7, section 4480 of the Revised Statutes, and acts amendatory thereof. The question of said exemption was tried some time after judgment had been entered in the action, which trial or proceeding was supplemental to execution. The judge held that said money was not exempt, and ordered the garnishee to pay it over to the sheriff, to be applied in satisfaction of said execution. The writ of review issued by the judge of the district court was to review said action of the probate judge, and it is contended that the district judge had no jurisdiction to issue the same:

1. For the reason that there was no proceeding pending upon which the issuance of the writ could be predicated, as the writ was issued November 21, 1899, and the petition therefor not filed until December 6, 1899. There is nothing in the law requiring the petition or affidavit to be filed before the writ shall issue. The application was made to the judge. He examined it, issued the writ, and the application was filed thereafter. That was sufficient.

2. It is contended that the district judge had no jurisdiction to issue the writ of review to the probate court, as that cour...