Kootenai County v. White

• Decision Date: 14 December 1933
• Docket Number: 6025
• Citation: 53 Idaho 804,27 P.2d 977
• Parties: KOOTENAI COUNTY, Appellant, v. HAROLD G. WHITE, Respondent
• Court: Idaho Supreme Court

27 P.2d 977

53 Idaho 804

KOOTENAI COUNTY, Appellant, v. HAROLD G. WHITE, Respondent

No. 6025

Supreme Court of Idaho

December 14, 1933

APPEAL AND ERROR-WHO MAY APPEAL-AGGRIEVED PARTY.

1. Where court annulled contract employing county physician, and county executed new contract employing same physician, appeal from order annulling first contract was dismissed as involving moot question, since county was not "aggrieved," in that it would not be affected by affirmance or reversal of judgment (I. C. A., secs. 11-103, 30-1111).

2. Party appealing must be aggrieved; otherwise appeal will be dismissed (I. C. A., secs. 11-103, 30-1111).

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, District Judge.

Appeal by Kootenai County from a judgment of the District Court annulling an order of the Board of County Commissioners, of said county, employing a county physician. Appeal dismissed.

Appeal dismissed. Costs awarded to respondent.

J. Ward Arney, for Appellant.

A case on appeal is presumed to be active and not moot, and clear and convincing proof is necessary to classify the question as moot. (Graves v. Berry, 35 Idaho 498, 207 P. 718.)

The judgment appealed from is final. (I. C. A., sec. 11-201.)

On appeal, the " Court may reverse, affirm, or modify any order or judgment appealed from and may direct the proper judgment or order to be entered or direct a new trial or further proceedings to be had." (I. C. A., sec. 1-205.)

This statutory grant of power and imposition of duty is to be liberally construed. (Boise City v. Artesian H. & C. W Co., 4 Idaho 392, 39 P. 566; Maryland Casualty Co v. Boise Street Car Co., 52 Idaho 133, 11 P.2d 1090.)

Miles F. Egbers, for Respondent.

It would be an idle act to either affirm or reverse the order and judgment of the district court in this case.

The county, having subsequent to the judgment appealed from entered into another contract for the remainder of the unexpired term of the original contract and dealing with the same service, subject matter and questions as were covered by the original contract, any action the court may now take upon this appeal can be of no benefit to either appellant or respondent.

"Any party aggrieved may appeal in the case prescribed in this code. . . . " (Sec. 11-103, I. C. A. 1932.)

"Party aggrieved has been defined as person injuriously affected by judgment, irrespective of whether or not he is named as plaintiff, defendant or intervenor." (Oatman v Hampton, 43 Idaho 675, 256 P. 529; Washington County Abstract Co. v. Stewart, 9 Idaho 376, 74 P. 955.)

"Party not aggrieved by judgment is not entitled to appeal." (Northern Pacific Ry. Co. v. Idaho County, 34 Idaho 191, 200 P. 128.)

GIVENS, J. Budge, C. J., and Morgan and Holden, JJ., concur.

OPINION

GIVENS, J.

In response to a call therefor by the board of county commissioners of Kootenai county, Drs. Spohn, Henson and Sturges, respectively, submitted bids for the position of county physician, which were all rejected; thereafter the board by appropriate order entered into a contract with Dr. Spohn.

Harold J. White, taxpayer of the county, appealed to the district court, which set aside the order of the board on the theory that having initiated the matter of the employment of a county physician by calling for bids, it was unfair to the other bidders and the county, to abandon competitive bidding and make the contract without regard to such bidding.

After the appeal to the district court herein and its decision, a new contract, practically identical with the original, was made between the county and Dr. Spohn; no bids in connection therewith having been called for or received, which on appeal to, was affirmed by, the district court. The appeal herein is by the county, from the judgment of the district court, reversing the order authorizing the first contract.

Respondent taxpayer moves to dismiss the appeal on the ground that it raises only a moot question: first, that because of the new contract the county is no longer interested in the old; and second, reversal of the judgment would not benefit the county, and in fact be detrimental because now relieved from any obligation to pay thereunder and the only party aggrieved is Dr. Spohn, who has not appealed.

The subject matter of the appeal from the order of the board to the district court was the right of the board to make such a contract, and not directly payment thereof. By making the new contract, which has been approved by the district court, and no appeal having been taken therein, the county commissioners are not now under any restriction, imposed by the judgment herein as to the appointment of a physician.

Payment for the period when the old contract was in existence (Ada County v. Gess, 4 Idaho 611, 43 P. 71) or recovery back if payment has been made (Ada County v. Gess, supra; Fremont County v. Brandon, 6 Idaho 482, 56 P. 264), though undetermined, are not so directly involved in the subject matter of the appeal to, and judgment by, the district court, as to require in this proceeding a determination thereof.

If the judgment were reversed, the county nevertheless now has a county physician, and if the judgment were affirmed, the same man who was employed under the first contract is now county physician, and under the same terms thereof, therefore, the county would not be affected, hence is not, at the present time, aggrieved by the judgment of the district court, consequently the present appeal presents a moot question. (Detweiler Mercantile Co. v. Babcock, 44 Idaho 777, 260 P. 162.)

"'It thus appears that the parties to the...