Kiefer v. City of Idaho Falls

• Decision Date: 23 March 1928
• Docket Number: 5139
• Citation: Kiefer v. City of Idaho Falls, 265 P. 701, 46 Idaho 1 (Idaho 1928)
• Parties: H. W. KIEFER et al., Appellants, v. THE CITY OF IDAHO FALLS et al., Respondents
• Court: Idaho Supreme Court

265 P. 701

46 Idaho 1

H. W. KIEFER et al., Appellants, v. THE CITY OF IDAHO FALLS et al., Respondents

No. 5139

Supreme Court of Idaho

March 23, 1928

APPEAL AND ERROR-SUPERSEDEAS-WHEN GRANTED-JURISDICTION OF APPELLATE COURT-APPEAL FROM FINAL JUDGMENT-ORDERS REVIEWED.

1. Orders of court sustaining demurrer to plaintiff's complaint and dissolving temporary restraining order were reviewable on appeal from final judgment of dismissal, making it immaterial whether appeal which was taken from such orders was perfected.

2. Lower court's dissolution of temporary injunction restraining payments by city under alleged void contract held not to render question of restraining payments of warrants moot, on appeal after dismissal of taxpayers' action where warrants had not in fact all been paid, and reversal of case would thus be operative on rights of parties.

3. Where it appears necessary to preserve status quo to do complete justice, appellate court will grant a stay of proceedings in furtherance of its appellate powers.

4. Exercise of complete appellate jurisdiction by supreme court does not depend on what some other court, whether subordinate or otherwise may do, since action of the other court is beyond the supreme court's immediate control.

5. In action by taxpapers against city to restrain further proceedings under alleged void contract for drilling of well in which certain city warrants under the contract remained unpaid, plaintiffs, on appeal from judgment of dismissal held entitled to supersedeas to retain status quo where refusal to grant stay would make question of granting injunction moot, notwithstanding pendency of another action to restrain payment of warrants in which a temporary restraining order against city treasurer was outstanding.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. George W. Edgington and Hon. C. J Taylor, Judges.

Petition for supersedeas. Granted.

W. P. Hanson, A. D. Erickson, O. A. Johannesen and Otto E. McCutcheon, for Respondents.

An order sustaining the demurrer to a pleading is not a final judgment. Neither is an order vacating and dissolving a temporary restraining order which was issued on an order to show cause such a final order or judgment as may be appealed from. (Rowland v. Kellogg Power & Water Co., 40 Idaho 216, 233 P. 869; Crane v. City of Harrison, 40 Idaho 229, 232 P. 578.)

On the settlement of a disputed or doubtful claim after a full disclosure of all the facts and no fraud or duress appearing, the case presented only a moot question which justified the lower court in entering its judgment of dismissal. Courts will not consider such a case. (Detweiler Mercantile Co. v. Babcock, 44 Idaho 777, 260 P. 162; Porter v. Speno, 13 Idaho 600, 92 P. 367; Abels v. Turner Trust Co., 31 Idaho 777, 176 P. 884; 1 C. J. 973.)

Supersedeas is substituted for the writ of audita querela, and the same rules which govern the one must regulate the other. ( Jesse French Piano Co. v. Bradley, 143 Ala. 530, 39 So. 47.)

This writ and the proceedings on which it was founded were in the nature of a bill in equity and jurisdiction to award it is grounded on the power and duty of all courts to prevent the abuse of their process when an improper or unjust use is attempted to be made of it. (Jesse French Piano Co. v. Bradley, supra.)

A. H. Wilkie and D. E. Rathbun, for Appellants.

This court as a court of last resort has a constitutional as well as an inherent right to make whatever order is necessary or proper to preserve the status quo and protect the rights of the parties pending the appeal. (Const., art. 5, sec. 9; Rogers v. Superior Court of Santa Cruz County, 158 Cal. 467, 111 P. 357; Reed Orchard Co. v. Superior Court, etc., 19 Cal.App. 648, 128 P. 9, 18; Isom v. Rex Crude Oil Co., 147 Cal. 663, 82 P. 319; Southern Pacific Co. v. Superior Court, 167 Cal. 250, 139 P. 69.)

"The appellant who cannot obtain a stay of proceedings upon his appeal is not without remedy in case he secures a reversal or modification of the judgment." (Southern Pacific Co. v. Superior Court, supra.)

We submit that the record in this case shows that the appellants have a meritorious case and that without an order of this court preserving the status quo so as to prevent payment of the said warrants, pending appeal, such payment will be made and this appeal rendered useless, and that a denial of appellants' application will, in all probability, be equivalent to a denial of the right to appeal.

GIVENS, J. Wm. E. Lee, C. J., and Budge, Taylor and T. Bailey Lee, JJ., concur.

OPINION

GIVENS, J.

Idaho Falls entered into a contract with the Layne-Bowler Company of Chicago whereby the latter was to drill a well and furnish a pump producing not less than 600 gallons of water per minute. The company was to be paid $ 39 per gallon for the first 600 gallons and $ 35 per gallon for all in excess of that amount; or, at the option of the city, the city and the company were to operate the well jointly, the company taking title to all the water produced in excess of 600 gallons which it would lease to the city at an agreed rental over a period of thirty years. At the end of that time the city would acquire the company's interest. The well was drilled and furnished daily approximately 4,000 minute gallons.

Plaintiffs, who are taxpayers, commenced an action to have this contract declared void and asked that payment be restricted to the amount of $ 23,400, which had already been paid and which was the amount called for under the contract for the first 600 gallons. The Layne-Bowler Company was asserting its rights to the whole amount due it under the contract, and after some negotiations the city agreed to a compromise settlement, which the company accepted, of $ 50,000. Plaintiffs immediately filed a supplemental complaint, setting forth the fact of this compromise, and asking for an order requiring the city to show cause why it should not be restrained from proceeding further with it. Pending the hearing on this order to show cause, a temporary restraining order was issued against the city.

The city filed a demurrer to this supplemental complaint which was sustained. The temporary restraining order was dissolved and the court refused to issue a temporary injunction. The plaintiffs then filed an appeal to this court from the order denying a temporary injunction.

As soon as the restraining order was dissolved, the city issued its warrants to the Layne-Bowler Company for $ 50,000, the amount of the compromise, including the $ 23,400 previously paid. Apparently all of these warrants have been paid except about $ 11,000.

All of these various preliminary moves had not disposed of the main case. When this came on to be heard, the trial court granted the city's motion to dismiss it on the ground that it had become moot. Plaintiffs filed another appeal from this judgment of dismissal.

It therefore appears that there are two appeals in this action: one from the order dissolving the restraining order and sustaining the demurrer, and one from the judgment of dismissal. Neither of these appeals are to be heard at this term, however. The question before the court now concerns only a petition for a supersedeas which has been filed by the plaintiffs.

While the petition...