Joslin v. Union Grain & Elevator Co.
| Decision Date | 02 October 1928 |
| Docket Number | 4969 |
| Court | Idaho Supreme Court |
| Parties | R. E. JOSLIN and H. K. LOVELAND, Copartners Doing Business Under the Firm Name and Style of JOSLIN & LOVELAND, Respondents, v. UNION GRAIN & ELEVATOR COMPANY, a Corporation, Appellant |
APPEAL AND ERROR-DIRECT APPEAL FROM PROBATE COURT-APPEAL FROM PROBATE COURT TO DISTRICT COURT-NEW ISSUES.
1. Supreme court will not directly review decision of probate or justice court in action appealed to district court, but decision of such courts will be reviewed only by reviewing decision of district court.
2. On appeal to district court from probate court on questions of both law and fact, action is tried anew under C. S., sec 7181, on issues made in probate court, and while defects in matters of form may be corrected by amendments in district court, new issues cannot be raised.
APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. Geo. W. Edgington, Judge.
Action to recover for services rendered. Judgment for plaintiffs. Affirmed.
Judgment affirmed, with costs to respondent.
Holden & Coffin, for Appellant.
When an affidavit is filed by either party in a civil action instituted in the probate court to the effect that that party cannot have a fair and impartial trial before the probate judge on account of the bias or prejudice or interest of such probate judge, under the provisions of subdivision 2 of section 7054, C. S., it becomes the imperative duty of the probate judge to comply with the provisions of section 6667 C. S., and transfer the cause to the district court in the same county, and if the probate judge refuses so to transfer the cause, he commits an error of law which can be remedied on appeal. (People v. Compton, 123 Cal. 403, 56 P 44, 48.)
James S. Byers, for Respondents.
There was no issue of fact presented to the probate court and, upon appeal, the district court acquired jurisdiction to review only the issues of law presented thereby. (Smith v. Peterson, 31 Idaho 38, 169 P. 290.)
There has been no trial of the facts of this case in the probate court, and a trial thereof, in the first instance, cannot be had in the district court upon appeal, but it must be remanded to the tribunal in which it originated. (Smith v. Clyne, 15 Idaho 254, 97 P. 40; Zimmerman v. Bradford-Kennedy Co., 14 Idaho 681, 95 P. 825; Gaiser v. Steele, 25 Idaho 412, 137 P. 889; Smith v. Superior Court, 2 Cal.App. 529, 84 P. 54; Smith v. Clyne, 16 Idaho 468, 101 P. 819.)
On appeal from the probate court to the district court defendant will not be allowed to file an answer in the district court raising new issues of fact. The trial in the district court is de novo, and where no issue of fact was previously raised, there is no issue of fact to try anew. (Zimmerman v. Bradford-Kennedy Co., supra; Albinola v. Horning, 39 Idaho 515, 227 P. 1054.)
Questions not raised or presented to the court below may not be considered on appeal. (Hurt v. Monumental Mercury Min. Co., 35 Idaho 295, 206 P. 184; Pedersen v. Moore, 32 Idaho 420, 184 P. 475.)
BAKER, Commissioner
The plaintiffs instituted this action in the probate court of Jefferson county to recover a sum alleged to be due to them for services rendered in purchasing wheat for the defendant. By answer filed on the date the suit was commenced the defendant denied generally the allegations of the complaint. On the date fixed for trial in the probate court defendant filed its demand and motion for change of venue and transfer of the cause to the district court of that county upon the ground that it could not have a fair and impartial trial by reason of the prejudice of the probate judge. There was no other appearance in the probate court by the defendant. The docket of the probate court recites that the defendant did not appear at the time fixed for the trial and after waiting one hour the motion for change of venue was disregarded for failure to prosecute, the default of the defendant for failure to appear at the trial was entered, followed by judgment in favor of the plaintiffs for the full amount claimed.
The defendant appealed, on questions of both law and fact, to the district court. In that court the decision of the probate court on the demand for change of place of trial was not complained of, presented to or considered by the court. Without questioning in any manner the ruling of the probate court and without calling the demand to the attention of the trial court and there obtaining a review of the decision of the probate court, the defendant filed its answer denying some of the allegations of the complaint and a cross-complaint by which it sought to recover judgment against plaintiffs for the value of wheat purchased by them with defendant's funds but which they had not delivered. Upon motion of plaintiffs the cross-complaint was stricken upon the ground that it presented issues differing from those made in the probate court. The trial proceeded upon the original complaint filed in the probate court and the answer filed in the district court. The defendant appeals from adverse judgment entered in that court.
In its assignments of error appellant contends the probate court erred in denying the motion for change of venue and that the district court on appeal should have reversed the judgment of the probate court on this question of law. The remaining assignments relate to the order striking the cross-complaint filed in the district court and the refusal of that court to permit defendant to make proof of the matters charged in the cross-complaint.
Two long established and consistently followed rules preclude...
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