Horne v. Beaton
| Decision Date | 21 July 1928 |
| Docket Number | 5110 |
| Citation | 269 P. 89,46 Idaho 541 |
| Parties | IRA B. HORNE, Appellant, v. E. J. BEATON, Respondent |
| Court | Idaho Supreme Court |
APPEAL AND ERROR-JUDGMENTS-ORDER OF DISMISSAL.
On court's entering final judgment, dismissing election contest, it was divested of any further jurisdiction, except to enforce such judgment and certify necessary papers on appeal therefrom, and it was without authority to enter a second and subsequent judgment of dismissal, and an appeal from latter judgment will be dismissed.
APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. Chas. L. Heitman, Judge.
Motion to dismiss appeal. Appeal dismissed.
Appeal dismissed. Costs to respondent.
J. Ward Arney and N.D. Wernette, for Appellant, cite no authority on points decided.
Ezra R Whitla and Wm. D. Keeton, for Respondent.
"An order dismissing an action is in effect a final judgment and appealable under C. S., sec. 7152." (Marshall v. Enns 39 Idaho 744, 230 P. 46; citing 2 Hayne on New Trial and Appeal, sec. 184; 1 Black on Judgments, 2d ed., secs. 21, 26 27, and Zoller v. McDonald, 23 Cal. 136; Marks v Keenan, 140 Cal. 33, 73 P. 751.)
This court, in conformity with all courts, has held that when a final judgment has been entered the court cannot change the same except to correct some clerical mistake, and that the only method provided by law to make any change or to affect the judgment in any way is by motion for new trial or by appeal. (Wyllie v. Kent, 28 Idaho 16, 152 P. 194.)
At a general election held November 2, 1926, appellant and respondent were candidates for the office of sheriff of Benewah county. After the votes were canvassed and respondent was found to have received a majority, appellant filed a complaint contesting the election and setting forth numerous grounds of contest. Coincident with the filing of his complaint, appellant presented to the clerk of the court a bond purporting to be in compliance with C. S., sec. 7281, requiring that:
"The contestant must also file a bond, with security to be approved by the clerk of the court or district judge, as the case may be, conditioned to pay all costs in case the election be confirmed, the complaint dismissed, or the prosecution fail."
The bond was deemed by the clerk to be insufficient, and he suggested that it be presented to the district judge but appellant declined to do so. Thereafter, respondent filed a motion to dismiss the proceedings, claiming that no good and sufficient bond had been filed as required by statute, and that the bond filed was not approved by anyone but was distinctly disapproved. The motion to dismiss was set for hearing at the courthouse in Coeur d'Alene, Kootenai county, on December 18, 1926, but appellant objected to its being heard outside of Benewah county, and after a continuance of the hearing to December 20, the court sustained appellant's objection to the...
To continue reading
Request your trial
-
Lyon v. State
...judgment dismissing the case a second time on other grounds, the first judgment of dismissal being a final judgment. Horne v. Beaton, 46 Idaho 541, 269 P. 89. The judgments appealed from are reversed and the cause remanded with instructions to the trial court to reinstate the cause, overrul......
- Dennis v. Co-operative Pub. Co.