Johnson v. Ensign

• Decision Date: 25 February 1924
• Citation: 224 P. 73,38 Idaho 615
• Parties: NELLIE PAYNE JOHNSON, Plaintiff, v. H. F. ENSIGN, Judge of the District Court of the Fourth Judicial District, Defendant
• Court: Idaho Supreme Court

224 P. 73

38 Idaho 615

NELLIE PAYNE JOHNSON, Plaintiff, v. H. F. ENSIGN, Judge of the District Court of the Fourth Judicial District, Defendant

Supreme Court of Idaho

February 25, 1924

WRIT OF REVIEW-ISSUANCE-EFFECT OF-PETITION FOR WRIT-ALLEGATIONS-RECORD-ORDER TO SHOW CAUSE-HEARING ON RETURN-GROUNDS OF RESISTANCE TO ISSUANCE OF WRIT.

1. The issuance of a writ of review merely requires the furnishing to this court of the record in the lower court.

2. The validity of the order complained of in the petition for the issuance of the writ of review is not determined on the allegations contained in the petition for the writ, but on the record of the lower court furnished in response to the issuance of the writ.

3. Upon the hearing on the return to an order to show cause why a writ of review should not issue, the allegations of the petition are taken to be true.

4. The issuance of a writ of review may be resisted upon the ground that the allegations of the petition are insufficient, or that the court about to issue the writ lacks jurisdiction, or that the question sought to be determined could be heard on appeal, or that there is a plain, speedy and adequate remedy.

Application for writ of review. Writ granted.

Writ issued.

Richards & Haga and Hawley & Hawley, for Plaintiff.

The petition requires no answer; it has served its purpose when the writ is issued, and its allegations are not taken as tendering an issue of fact. The petition is inspected and taken to be true for the purpose of issuing the writ. Counter-affidavits, or even records of the inferior tribunal are not considered. (Morefield v. Koehn, 153 Colo 367, 127 P. 234; State Board of Medical Examiners v. Brown 70 Colo. 116, 198 P. 274.)

C. S., sec. 7249, takes away the right of appeal in contempt cases, and writ of review is the proper procedure for purposes of review. (Tymer v. Connelly, 65 Cal. 30, 2 P. 414; Gale v. Tuolumne etc. Co., 169 Cal. 46, 145 P. 532; Abbott v. Abbott, 24 Cal.App. 475, 141 P. 939; Herald etc. Co. v. Lewis, 42 Utah 188, 129 P. 625, 633; McClatchy v. Superior Court, 119 Cal. 413, 51 P. 696, 39 L. R. A. 691; Rymert v. Smith, 5 Cal.App. 380, 90 P. 470.)

Johnson & Nixon, for Defendant.

The writ of review does not lie to review facts, except in so far as the facts are essential to determine the jurisdictional question. (First Nat. Bank of Weiser v. Washington Co., 17 Idaho 306, 105 P. 1053; Lansdon v. State Board of Canvassers, 18 Idaho 596, 111 P. 133; Utah Assn. of Credit Men v. Budge, 16 Idaho 751; Neil v. Public Utilities Commission, 32 Idaho 44, 178 P. 271.)

WM. E. LEE, J. McCarthy, C. J., and Dunn, J., concur.

OPINION

WM. E. LEE, J.

--Plaintiff filed herein her petition alleging, among other things, that heretofore the defendant directed her to pay over certain moneys to the receiver in the case of Bedal v. Johnson, 37 Idaho 359, 218 P. 641, that defendant ordered that she be imprisoned until such payment be made, and that defendant exceeded his jurisdiction in making and entering the order, and praying this court to issue a writ of review and determine the question presented in the petition.

Upon the filing of the petition, this court issued an order requiring defendant to show cause why a writ of review should not be issued. In response to the order to show cause, defendant filed herein his answer to the petition, in which the material allegations contained in the petition were denied and certain affirmative matter was pleaded. Plaintiff thereupon made and filed a motion to strike the answer of the defendant for the reason that it attempts to raise issues of fact, and that it does not purport to set up the entire record in the cause.

C. S., sec. 7244, provides that this court may issue the writ outright, or may require notice of the application to be given to the adverse party, or may grant an order to show cause why the writ should not be allowed. The plaintiff contends that defendant has suggested no valid reason why the writ should not issue, and that the denials and allegations of fact set forth in the answer of defendant are not material to the consideration of the question of whether the writ should issue.

The position of plaintiff is well taken. The motion to strike the answer is granted, and the writ will issue. Rule 61 of this court provides that writs of habeas corpus and peremptory writs of...