Pond v. Babcock
| Decision Date | 26 February 1931 |
| Docket Number | 5670 |
| Parties | W. C. POND, Plaintiff, v. WM. A. BABCOCK, a Judge of the District Court of the Eleventh Judicial District of the State of Idaho, Defendant |
| Court | Idaho Supreme Court |
MANDAMUS-PROCESS-APPEAL AND ERROR-DISCRETION OF TRIAL COURT.
1. In mandamus to compel judge to issue writ of execution, merits of judge's finding and order are not before court.
2. Every court of record has power to control its own process.
3. Exercise of discretion by court in controlling own process is not reviewable except for patent abuse.
4. Where fund of debtor was sought to be prorated among creditors, denial of motion for order to issue writ of execution for judgment creditor was matter involving discretion, not ministerial duty, performance of which could be enforced by mandamus (C. S., sec. 7152).
5. Questions of jurisdiction and merit can be presented to supreme court only by certiorari or appeal, not by mandamus (C. S., sec. 7152).
Original proceeding for a writ of mandate. Writ denied.
Writ denied; costs to defendant.
J. H Barnes, for Plaintiff.
The district court, on its equity side, had no power to entertain the suit, for the reason that the matter is regulated by statute. (C. S., secs. 6591, 6653; 34 C. J. 434, sec. 682; Coleman v. Jaggers, 12 Idaho 125, 118 Am. St. 207 85 P. 894.)
The district court ought not to have entertained this suit because the complaint does not state facts sufficient to warrant the interposition of a court of equity. (21 C. J. 85, sec. 58; 34 C. J. 432, secs. 680, 681; 444, sec. 698; Bernhard v. Idaho Bank & Trust Co., 21 Idaho 598, at 608, Ann. Cas. 1913E, 120, 123 P. 481; New York Life Ins. Co. v. Bangs, 103 U.S. 780, 26 L.Ed. 608.)
Defendant in the common-law action had an adequate remedy at law by an appeal to this court. (34 C. J. 436, sec. 685; 15 Cal. Jur. 13, 26; LeMesnager v. Variel, 144 Cal. 463, 103 Am. St. 91, 77 P. 988; L. Bucki & Son Lumber Co. v. Atlantic Lbr. Co., 116 F. 1, at 11, 53 C. C. A. 513; Nesson v. Gilson, 224 Mass. 212, 112 N.E. 870.)
Frank L. Stephan, for Defendant.
A judge of a common-law court has inherent supervisory powers over its process, whereby he may control and temporarily stay an execution, whenever necessary to accomplish the ends of justice, and it is proper to temporarily stay a writ of execution, when there is pending another proceeding whereby the amount due thereunder may be diminished.
A writ of mandate will not lie to compel review on a ruling in the progress of a cause nor to compel a subordinate judicial officer to reverse a conclusion already reached and enter an order contrary in effect, nor to correct an alleged erroneous decision. (Board of Commrs. v. Mayhew, 5 Idaho 572, 51 P. 411, and cases cited; United States ex rel. Alaska Smokeless Coal Co. v. Lane, 250 U.S. 549, 40 S.Ct. 33, 63 L.Ed. 1135; Ex parte Perry, 102 U.S. 183, 26 L.Ed. 43; Re Morrison, 147 U.S. 14, 37 L.Ed. 60, 13 S.Ct. 246; Ex parte Whitney, 13 Pet. (U. S.) 404, 10 L.Ed. 221; 38 C. J. 639, secs. 146B, 590 et seq.; 18 R. C. L. 299, sec. 232, and cases cited; 297, sec. 230, and cases cited; annotation 29 L.Ed. 135, and principal case of Ex parte Morgan, 114 U.S. 174, 5 S.Ct. 825, 29 L.Ed. 135; Connolly v. Woods, 13 Idaho 591, 92 P. 573; Laird v. Terrell, 32 Idaho 734, 187 P. 1081; annotation, 98 Am. Dec. 375; Spelling on Extraordinary Legal Remedies, sec. 1389; Bailey on Habeas Corpus and Extraordinary Remedies, secs. 208a, 211.)
Petition for a writ of mandate. On May 24, 1930, there was docketed in the clerk's office of Twin Falls county a judgment in favor of W. C. Pond, petitioner herein, and against one Carl L. DeLong and the U.S. Fidelity & Guaranty Company for the sum of $ 1891.70 and costs. The judgment having become final, and DeLong having "taken bankruptcy," a writ of execution was duly issued directed to the sheriff of Ada county, commanding him to satisfy the judgment out of a deposit held by the state treasurer theretofore delivered him by said Guaranty Company "to answer any default of said company as surety upon any such obligation established by final judgment upon which execution may lawfully be issued against said company": the deposit had been made at DeLong's instance under the provisions of chap. 236, 1927 Sess. Laws as amended by chap. 180, Laws of 1929.
Just about the same time that DeLong incurred his liability to petitioner, he incurred similar liabilities to one C. D. Gallentine, and to E. C. Muir & Co., and Clarence Winegar, each of whom during the pendency of petitioner's action filed their respective actions against DeLong and his surety. Later, on July 22, 1930, Gallentine recovered judgment against DeLong for $ 1072 and on July 28th succeeding, Muir & Company and Clarence Winegar similarly scored for $ 716.
On July 9th previous, the surety company, anticipating the possibility of the two last-mentioned judgments, filed a suit in the district court of Twin Falls county against petitioner and the Ada county sheriff, praying the court to restrain the petitioner "from executing his said judgment until the matter could be adjudicated as to whether he, the said Pond, should receive pro rate with the other claimants whose cases were at that time pending, and praying that he, the said Pond, pro rate with the other claimants, to-wit: Muir & Company, Winegar and Gallentine." In this action, Gallentine having secured his judgment was permitted to intervene.
After hearing upon the restraining order, His Honor, District Judge, Wm. A. Babcock, on August 15th denied the order but directed the surety company to deposit in court the full amount of the bond, $ 2,500, and directed the Ada county sheriff to return into court, unsatisfied, the execution theretofore issued him, to await the further order of the court pending determination of the main suit. According to the return, this action "wherein the rights of the respective judgment creditors are to be determined is still pending and unfinished, and the said execution is still temporarily stayed, pending decision in the said matter under the above order,...
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