Northwestern & Pacific Hypotheekbank v. Sutphen, 5749

CourtUnited States State Supreme Court of Idaho
Writing for the CourtMCNAUGHTON, J.
PartiesNORTHWESTERN & PACIFIC HYPOTHEEKBANK, a Corporation, Plaintiff, v. D. H. SUTPHEN, Judge of the District Court of the Fourth Judicial District of the State of Idaho, in and for Blaine County, and B. P. THAMM, Clerk of the District Court, Fourth Judicial District, State of Idaho, County of Blaine, Defendants
Docket Number5749
Decision Date27 May 1931

300 P. 496

50 Idaho 720

NORTHWESTERN & PACIFIC HYPOTHEEKBANK, a Corporation, Plaintiff,
v.

D. H. SUTPHEN, Judge of the District Court of the Fourth Judicial District of the State of Idaho, in and for Blaine County, and B. P. THAMM, Clerk of the District Court, Fourth Judicial District, State of Idaho, County of Blaine, Defendants

No. 5749

Supreme Court of Idaho

May 27, 1931


EMINENT DOMAIN-CONDEMNATION-RIGHT OF APPEAL-WRIT OF REVIEW.

1. Right to certiorari is purely statutory (C. S., sec. 7243).

2. In condemnation proceeding, order adjudging necessity for taking land and appointing commissioners to view and value premises held "final order," which was appealable, and hence not reviewable upon certiorari (C. S., sec. 7243).

3. Applicant for certiorari to review order could not contend that appealing order would amount to appearance, where court had acquired jurisdiction of action and parties before entering order complained of (C. S., sec. 7243).

APPLICATION for writ of review. Denied.

Application for a writ of review denied, with costs to defendant. Petition for rehearing denied.

A. F. James, for Plaintiff.

W. A. Brodhead, for Defendants.

MCNAUGHTON, J. Budge, Givens and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

This is an application for writ of certiorari in a condemnation proceeding. The application is pursuant to C. S., sec. 7243, for review of the order of the defendant district judge finding necessity for the taking of the land sought to be condemned and appointing commissioners to view the premises, hear the testimony and [50 Idaho 721] assess the value and damages resulting from taking and appropriating the land to a highway use.

The right to a writ of certiorari in this state is statutory and lies only when authorized by C. S., sec. 7243, which provides:

"A writ of review may be granted by any court except a probate or justice's court, when an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy."

The petition here is upon the ground that the district judge was without jurisdiction to make an order in the premises for want of statutory notice to the bank. It is claimed appeal does not lie directly from the order but that the order is subject to review only upon appeal from the final judgment entered at the final...

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