Mills v. Board of County Com'rs of Minidoka County

• Decision Date: 11 February 1922
• Citation: 35 Idaho 47,204 P. 876
• Parties: HOMER C. MILLS, Respondent, v. BOARD OF COUNTY COMMISSIONERS OF MINIDOKA COUNTY, IDAHO, and MINIDOKA COUNTY, IDAHO, Appellants
• Court: Idaho Supreme Court

204 P. 876

35 Idaho 47

HOMER C. MILLS, Respondent, v. BOARD OF COUNTY COMMISSIONERS OF MINIDOKA COUNTY, IDAHO, and MINIDOKA COUNTY, IDAHO, Appellants

Supreme Court of Idaho

February 11, 1922

DISMISSAL OF APPEAL - APPOINTMENT OF SPECIAL PROSECUTOR - CHAMBERS APPOINTMENT VOID-JUDICIAL DETERMINATION OF DISQUALIFICATION-UNAUTHORIZED STIPULATION OF FACTS.

1. Where a notice of appeal from a judgment is served and filed more than ninety days after the rendition of the judgment the appeal therefrom must be dismissed.

2. Under the provisions of C. S., sec. 3654, the district court may appoint, under the circumstances and in the manner specified, a suitable person to perform for the time being or for the trial of an accused person, the duties of the duly elected and qualified prosecuting attorney, and while in the performance of such duties the one so appointed may exercise all the powers of the prosecuting attorney.

3. Under the provisions of C. S., sec. 3655, subd. 2, no duty rests upon a county prosecuting attorney to prosecute criminal actions before a probate or justice's court unless called upon by said court, or to conduct criminal examinations before a committing magistrate unless requested so to do by the magistrate.

4. Under the provisions of C. S., sec. 6493, the district judge at chambers has no power to appoint a special prosecuting attorney, and such order so made is void. The appointment must be the act of the court.

5. Where the district court under the provisions of C. S., sec 3654, appoints a special prosecutor, there must be a judicial determination of the disqualification of the prosecuting attorney, and a minute entry thereof, reciting the reasons therefor, must be made in open court.

6. On appeal from the probate to the district court the county prosecuting attorney has no power to enter into a stipulation of facts, the effect of which is to limit the jurisdiction of the district court, when under the law the action must be tried anew in said court.

APPEAL from the District Court of the Fourth Judicial District, for Minidoka County. Hon. Wm. A. Babcock, Judge.

Action to recover for services as special prosecuting attorney. Judgment for plaintiff. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellants.

Roy L. Black, Attorney General, Jas. L. Boone, Assistant, and H. A. Baker, for Appellants.

A district court has no power to appoint a special prosecuting attorney to appear and prosecute criminal actions pending in a justice's court, or to appear in any action or proceeding not pending in or before such district court. (18 C. J. 1340; Sayles v. Genesee Circuit Judge, 82 Mich. 84, 46 N.W. 29.)

A district court has no power to appoint special prosecuting attorney at chambers or in any other manner than in open court. (Sec. 3654, C. S.; Joyner v. State, 78 Ala. 448.)

It is essential to the validity of an order appointing special prosecuting attorney that the order recite the reasons therefor and be entered in the minutes of the court. (Sec. 3654, C. S.; State v. Barber, 13 Idaho 65, 88 P. 418; Joyner v. State, supra.)

The contingencies upon which special prosecuting attorney may be appointed and the manner of procedure being prescribed by statute, a court has no power to appoint for other reasons or in any other manner. (18 C. J. 1340; Mahaffey v. Territory, 11 Okla. 213, 66 P. 342; Gray v. District Court, 42 Colo. 298, 94 P. 287; Toland v. Ventura County, 135 Cal. 412, 67 P. 498; State v. Brown, 63 Kan. 262, 65 P. 213; Moore v. State, 56 Tex. Cr. 300, 119 S.W. 858; State v. Flavin, 35 S.D. 530, Ann. Cas. 1918A, 713, 153 N.W. 296.)

The prosecuting attorney had no power to enter into the stipulation of facts dated October 21, 1918, with counsel for plaintiff or to bind the county by such stipulation, but it was necessary that said action be tried anew in the district court on appeal from the probate court. (Sec. 7181, C. S.; Clyne v. Bingham County, 7 Idaho 75, 60 P. 76; Connett v. City of Chicago, 114 Ill. 233, 29 N.E. 280.)

Dampier & Codding and Mills & Adams, for Respondent.

The order of appointment was entered in the minutes of the court within the meaning of the law, upon being filed with the clerk and entered in the register of actions. (Sec. 7232, C. S.; Von Schmidt v. Widber, 99 Cal. 511, 34 P. 109.)

The prosecuting attorney had authority to enter into the stipulation, dated October 21, 1918. (1 Thompson on Trials, secs. 194-198; Board of Commrs. of Logan County v. State Capital Co., 16 Okla. 625, 86 P. 518.)

BUDGE, J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

This action was brought by respondent in the probate court for Minidoka county, to recover the sum of $ 500 for services rendered by him as special prosecuting attorney.

It is alleged in the complaint that respondent was at all times therein mentioned an attorney at law; that Minidoka county was and is a legal subdivision of the state, and E. C. Maynard, W. J. Flake and A. B. Rice the commissioners of said county; that on April 9, 1918, there were certain criminal proceedings pending in said county in which W. W. Mattinson, the then prosecuting attorney, was disqualified to act; that on said day Hon. Wm. A. Babcock, one of the judges of the fourth judicial district, in and for said county, appointed respondent to prosecute said causes; that respondent took the oath of office of special prosecuting attorney, and immediately entered upon the duties of said office connected with the prosecution of said cases; that the services rendered by him pursuant to said appointment were reasonably worth $ 500; that about May 10, 1918, respondent filed his verified claim in said sum with the appellant commissioners; and that said board failed, neglected and refused to allow or pay said claim.

In the answer it is denied that W. W. Mattinson, as prosecuting attorney, was on April 9, 1918, or at any time, disqualified to prosecute any criminal proceedings pending in the courts of Minidoka county, during the year 1918; that respondent was on April 9, 1918, or at any other time, lawfully appointed special prosecuting attorney, that he has performed any services as such, and that there is now due or owing from appellants to respondent the sum of $ 500 or any other sum.

Judgment was rendered in the probate court in favor of respondent on October 18, 1918, in the sum of $ 500 and costs.

The cause was thereafter appealed to the district court, and tried to the court, without a jury, upon a stipulation of facts entered into between said Mattinson and counsel for respondent on October 21, 1918, which incorporated the order appointing respondent as special prosecuting attorney and was otherwise substantially the same as the complaint theretofore filed in the probate court. The district court thereafter, on January 14, 1919, filed its findings of fact, identical with the stipulation of facts above referred to, and its conclusions of law based thereon, and entered judgment in favor of respondent in the sum of $ 500, with interest at 7 per cent from October 18, 1918, and costs.

On February 14, 1919, Hugh A. Baker, successor to Mattinson as prosecuting attorney, filed a motion for new trial, upon the ground that Mattinson was without authority to enter into stipulation of facts above referred to, and that the action, though on appeal from the probate court, was not tried anew, but was submitted and determined solely upon said stipulation of facts, and that the court erred in deciding the case upon such stipulation, and in finding as facts the various matters set forth therein, and basing its conclusions thereon. Affidavits were filed in support of and against the motion for new trial, and the court on May 21, 1919, overruled the motion.

This appeal is from the judgment and from the order denying the motion for new trial.

The notice of appeal was served and filed June 18, 1919, more than 90 days after the rendition of the judgment, and the appeal from the judgment must, therefore, be dismissed. However, the errors assigned may be considered upon the motion for new trial.

Appellant makes thirteen assignments of error, under which it is urged, among other things:

1. That a district court has no power to appoint a special prosecuting attorney to appear and prosecute criminal actions pending in a justice's court or to appear in any action or proceeding not pending in or before such district court.

2. That if the district court has such power, it must appear that the justice or probate judge requested the prosecuting attorney to appear and prosecute such action in such court.

3. That a district judge has no power to appoint a special prosecuting attorney at chambers or in any other manner than in open court.

4. That it is essential to the validity of an order appointing a special prosecuting attorney that the order recite the reasons therefor and be entered in the minutes of the court; and

5. That the prosecuting attorney had no power to enter into the stipulation of facts dated October 21, 1918, with counsel for plaintiff, or to bind the county by such stipulation, but it was necessary that said action be tried anew in the district court on appeal from the probate court.

C S., sec. 3654, provides: "When there is no prosecuting attorney for the county, or when he is absent from the court, or when he has acted as counsel or attorney for a party accused in relation to the matter of which the accused stands charged, and for which he is to be tried on a criminal charge, or when he is near of kin to the party to be tried on a criminal charge, or when he is unable to attend to his duties, the district court may, by an order entered in its minutes, stating the cause therefor,...