McGary v. Steele

• Decision Date: 11 December 1911
• Citation: 119 P. 448,20 Idaho 753
• Parties: IRA MCGARY, Plaintiff, v. E. C. STEELE, Judge, Defendant
• Court: Idaho Supreme Court

119 P. 448

20 Idaho 753

IRA MCGARY, Plaintiff, v. E. C. STEELE, Judge, Defendant

Supreme Court of Idaho

December 11, 1911

WRIT OF MANDATE-DISTRICT COURT OR JUDGE-DECISION-DELAY IN RENDERING-STATUTE-CONSTITUTION.

(Syllabus by the court.)

1. Under the provisions of sec. 4406, Rev. Codes, upon a trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within twenty days after the cause is submitted for decision.

2. Under the provisions of sec. 17, art. 5, of the constitution no justice of the supreme court or district judge shall be paid his salary or any part thereof unless he shall have first taken and subscribed an oath that there is not in his hands any matter in controversy not decided by him which had been finally submitted to him for his consideration and determination thirty days prior to the taking and subscribing of such oath.

3. The failure of counsel to furnish the trial court with a brief is not a sufficient reason to justify the court in delaying a decision longer than the period prescribed by sec. 4406.

4. Held, under the facts of this case that a peremptory writ of mandate must issue as prayed for in the petition.

Original proceedings in this court for a writ of mandate to compel the Honorable Edgar C. Steele, as Judge of the District Court of the Second Judicial District, to decide a certain case tried and submitted to him for decision. Writ granted.

Peremptory writ issued, with costs in favor of the plaintiff.

W. H Casady, for Petitioner, files no brief.

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an original application for a writ of mandate to the Honorable Edgar C. Steele, as Judge of the Second Judicial District of the state of Idaho, requiring him to show cause, if any he may have, why he has not decided the case of Ira McGary vs. Steve Winchester, George D. Smith and P. F. Courtney, which cause was tried or heard and submitted to said court on the 19th day of September, 1911, for final decision and judgment.

The application for the writ shows the following facts: That on April 11, 1908, an action of claim and delivery was commenced in said district court, wherein the said Steve Winchester was plaintiff and Ira McGary, the plaintiff herein, was defendant; that in said action said Winchester filed his undertaking for the delivery to him of the possession of the personal property therein claimed by him in the sum of $ 3,000, with George D. Smith and P. F. Courtney as sureties thereon; that said action was heard without a jury before said district court, the Honorable Judge Steele presiding, on September 30, 1908, and after the evidence of both plaintiff and defendant had been submitted, the cause was taken under advisement by the court, and W. N. Scales, Esq., attorney for said plaintiff Winchester, was given until October 20th to file a brief, and W. H. Casady, Esq., attorney for the defendant McGary, was to have until November 10th thereafter in which to file a reply brief, which briefs were filed accordingly. Thus it appears that said case was fully submitted to the court for decision on November 10, 1908, and that said judge and court held said case under advisement until July 29, 1909, thus holding said cause under advisement for nearly nine months before a decision was rendered. Thereafter a new trial was granted in said cause on February 4, 1910, and on September 6, 1910, the plaintiff, through his attorney, W. N. Scales, Esq., dismissed said claim and delivery action and judgment was rendered in favor of the defendant for the return of said chattel property or the value thereof, found by the court to be the sum of $ 1,500. It also appears that said Winchester neglected and failed to return said chattel property to the defendant McGary or to pay him the value thereof, whereupon McGary took out execution therefor in said action and placed the same in the hands of the sheriff of Idaho county, which execution was by said sheriff returned satisfied in part only, with a further return that the balance of the chattel property referred to could not be found and that no property of said plaintiff Winchester could be found in said Idaho county from which to make the balance of said judgment and costs. Thereafter on the 11th of January, 1911, the said Ira McGary brought an action on said replevin bond against said Winchester and his said bondsmen, Smith and Courtney, to recover the balance due on said judgment, which was the sum of $ 1,029.10 and costs; that prior to the bringing of said last-mentioned action said Winchester left the state and went to Alaska and the summons in that case was not served on him and he made no appearance in said action. The summons was served on said Smith and Courtney, who appeared in said action by their attorney, W. N. Scales; that this action was continued upon the motion of the answering defendants over the January and June terms, 1911, of said court, and was brought to trial on the said 19th day of September, 1911; that prior to the hearing of said action the attorney for said defendants stated in the presence of the Honorable Edgar C. Steele and the attorney for said McGary that said defendants had no defense to said action and requested counsel for McGary to consent to waive a jury, which request was granted and the cause was tried by the court without a jury. The plaintiff introduced his evidence and the defendants introduced no evidence whatever and the cause was taken under advisement by the court on September 19, 1911. At the close of the trial the said W. N. Scales requested of the court that a stay of execution be granted therein for a period of sixty days, which application was opposed by the attorney for the plaintiff, "whereupon the court stated that a stay of sixty days would be too long; that thirty days would be enough"; that said judge had held said cause under advisement since said 19th day of September, 1911, until November 10, 1911, when this application was made; that on the 15th of October, 1911, the plaintiff, through his attorney, made a request and demand in writing upon the said judge that he take action at an early date in said cause and render some kind of a decision therein; that said judge failed to reply to said written request and neglects and fails to decide said case; that affiant believes that said judge has held and is now holding said case and neglecting to render any judgment or decision therein for the purpose of hindering and delaying the plaintiff from receiving the benefits of said judgment to which he is entitled; that the said delay in so rendering the judgment may take the place of the stay of execution as requested by the attorney for said defendants.

Upon that application an alternative writ of mandate was issued and served with a copy of the petition or complaint upon the Honorable Edgar C. Steele. The return to said writ is as follows:

"Comes now the defendant and states to the court that he is waiting for a brief in ...