Gunderson v. District Court Fourth Judicial District

• Decision Date: 11 March 1908
• Citation: 94 P. 166,14 Idaho 478
• Parties: GUST GUNDERSON, Plaintiff, v. DISTRICT COURT FOURTH JUDICIAL DISTRICT, and E. A. WALTERS, Defendants
• Court: Idaho Supreme Court

94 P. 166

14 Idaho 478

GUST GUNDERSON, Plaintiff, v. DISTRICT COURT FOURTH JUDICIAL DISTRICT, and E. A. WALTERS, Defendants

Supreme Court of Idaho

March 11, 1908

WRIT OF REVIEW-WHEN GRANTED-MOTION TO QUASH-JURISDICTION OF COURT.

1. Under the provisions of sec. 4962, Rev. Stat., the writ of review may be granted by any court except a probate or justice's court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain speedy and adequate remedy.

2. The district court has jurisdiction to hear and determine a motion to dismiss an appeal to that court from the probate court, and as it has jurisdiction to pass upon such motion its action therein cannot be reviewed by writ of review.

3. If a court undertakes to proceed in a matter without or in excess of its jurisdiction, its proceedings may be arrested by writ of prohibition.

(Syllabus by the court.)

An original proceeding in this court for a writ of review to review the action of the district court in overruling a motion to dismiss an appeal from the probate court. Motion to quash writ sustained.

Motion to quash the writ sustained with costs of this proceeding in favor of the defendant.

Daniel McLaughlin, for Plaintiff.

W. C Howie, for Defendants.

Counsel cite no authorities on points decided.

SULLIVAN J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This court issued a writ of review on the application of the plaintiff to review the action of the district court in overruling a motion of the plaintiff to dismiss an appeal which had been taken from the probate court to the district court in an action in which Gust Gunderson was plaintiff and A. A. Brothen was defendant. On return day, counsel for the defendants appeared and moved to quash the writ on three several grounds: (1) That it appears on the face of the petition that it is not a case in which a writ of review will issue, for the reason that the petitioner has an adequate remedy by appeal; (2) That said petition does not state facts sufficient to warrant the issue of the writ; (3) That it appears on the face of the petition that the district court did not exceed its jurisdiction.

It appears from the petition that said Gunderson obtained a judgment in the probate court against said Brothen, and thereafter said Brothen prosecuted an appeal to the district court. Thereupon Gunderson moved the district court to dismiss said appeal on the ground that no sufficient undertaking had been filed. The...