Holt v. Gridley

• Decision Date: 15 December 1900
• Citation: 63 P. 188,7 Idaho 416
• Parties: HOLT v. GRIDLEY
• Court: Idaho Supreme Court

63 P. 188

7 Idaho 416

HOLT v. GRIDLEY

Supreme Court of Idaho

December 15, 1900

JURISDICTION-UNWARRANTED POSTPONEMENT OF TRIAL.-The postponement of a trial is in the sound discretion of the court, and if a postponement is erroneously granted, the court does not lose jurisdiction of the case.

APPEAL-NEW TRIAL.-Under the provisions of section 4844 of the Revised Statutes, upon an appeal from the probate court on questions of law alone, the court, upon sufficient showing, may, if necessary and proper, order a new trial in the district court.

SAME-PRESUMPTIONS.-When the record fails to show the grounds of the necessity for ordering a new trial in the district court when an appeal is taken from a justice or probate court on questions of law alone, the presumption is that such necessity was shown, as the district court is a court of general jurisdiction.

UNCERTAINTY-VOID JUDGMENT.-Where there are two defendants, and the judgment is against only one, and fails to designate which one, the judgment is void for uncertainty.

SEPARATE PROPERTY OF MARRIED WOMAN.-When it is sought to make the separate property of a married woman liable for debt, it must be alleged and proved that the debt is her own, or incurred for the benefit of her separate property. Her separate property is not liable for the debts of the husband.

(Syllabus by the court.)

APPEAL from District Court, Lincoln County.

Judgment set aside, and remanded. Costs of this appeal awarded to appellant.

Guy C Barnum, for Appellants.

The court below having no jurisdiction of the case, and the appeal being upon questions of law alone, and the district court having annulled and set aside the judgment of the court below, had no power or jurisdiction to retain the case for further hearing, but should have dismissed the same and denied further proceedings in the premises. (Holbrook Merrill & Stetson v. Superior Court of Sacramento County, 106 Cal. 589, 39 P. 936; Chase v Hagood, 3 Idaho 682, 34 P. 811.) Where the trial court has no jurisdiction of the subject matter of a cause, the appellate court has none, except to annul by reversal the illegal proceedings below. It cannot remand the cause to the trial court nor retain the same for further hearing. (2 Ency. of Pl. & Pr., p. 23, sec. 6; Board of Commrs, of Otero Co. v. Hoffmire, 9 Colo. App. 526, 49 P. 375.) The judgment of the district court setting aside and annulling the judgment of the probate court as a necessary consequence dissolved the attachment and garnishee proceedings connected with and dependent on said judgment. The fact of an improper and unlawful continuance having been granted by the lower court acted as a dismissal of the action, and left the parties as if no action had been brought; therefore it is manifest error in the district court to award that the attachment and garnishee proceedings heretofore had in the case should be pursued in support of plaintiff's claim and judgment rendered. (Drake on Attachment, sec. 415.) An unwarranted continuance amounts to a discontinuance. (5 Ency. of Law, 1st ed., 675, note; Christion v. Beebee, 7 Ill.App. 272; State v. Board of Health, 46 N.J.L. 99; Gamage v. Law, 2 Johns (N. Y.) 192; Paddleford v. Bancroft, 22 Vt. 529; Amis v. Krager, 7 Leigh (Va.), 221; 1 Estee's, 4th ed., 36.) The court erred in permitting the plaintiff to answer the defendant, Mrs. Sam Gridley's, cross-complaint, thereby creating a new issue that did not exist at the trial, in the probate court. (Myrick v. Court of Contra Costa Co., 68 Cal. 98, 8 P. 648; Ketchum v. Superior Court of San Joaquin Co., 65 Cal. 494, 4 P. 492; Jenkins v. Powe, 19 Wash. 113, 52 P. 520; State v. Superior Court of Pierce Co., 19 Wash. 114, 52 P. 522, 67 Am. St. Rep. 739; Ostrom v. Tarver, (Tex. Civ. App.), 28 S.W. 701.) A judgment rendered against persons jointly liable is an entirety, and if void as to one defendant is void as to all. (Freeman on Judgments, 2d ed., sec. 136.)

N. M. Ruick, for Respondent.

Whether the granting of the continuance upon the showing made by plaintiff was erroneous or otherwise it cannot be said to have been in excess of the jurisdiction of the court to grant. (Rev. Stats., sec. 4704.) This appeal from the probate court was on questions of law alone. On such an appeal "the district court may review all orders affecting the judgment appealed from, and may set aside or confirm or modify any or all of the proceedings subsequent to and dependent upon such judgment, and may, if necessary or proper, order a new trial in the district court." (Rev. Stats., sec. 4844.)

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

OPINION

SULLIVAN, J.

This action was brought in the probate court of Lincoln county to recover for goods, wares and merchandise alleged to have been sold to the defendants, who are shown by the record to be husband and wife. The husband failed to appear, but the wife appeared, and demurred to the complaint. The demurrer was overruled, and thereupon she answered, denying the material allegations of the complaint as to herself, and by way of what her counsel terms a cross-complaint alleges that $ 140 that had been attached in said suit in the hands of one S. C. Frost, was a part of her separate estate and not liable for the payment of the debt sued on. On the return day the plaintiff appeared, and moved for a postponement of the trial, which motion was based on the affidavit of plaintiff. Regardless of the opposition of counsel for said defendant, the court granted said motion. Thereafter such proceedings were had as resulted in a judgment against the defendant, whereupon the defendant Mrs. Samuel Gridley, who is appellant here, appealed to the district court on questions of law alone. On a hearing in the district court the contentions of a...