La Salle Extension University v. The District Court of First Judicial District of State

• Decision Date: 10 December 1932
• Docket Number: 5962
• Citation: 16 P.2d 1064,52 Idaho 559
• Parties: LA SALLE EXTENSION UNIVERSITY, a Corporation, Plaintiff, v. THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF IDAHO and GEORGE PAUL KRANCHES, Defendants
• Court: Idaho Supreme Court

16 P.2d 1064

52 Idaho 559

LA SALLE EXTENSION UNIVERSITY, a Corporation, Plaintiff, v. THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF IDAHO and GEORGE PAUL KRANCHES, Defendants

No. 5962

Supreme Court of Idaho

December 10, 1932

APPEAL AND ERROR-APPEALABLE ORDERS-JUSTICE COURT-APPEAL BOND-FAILURE TO FILE-DISMISSAL-WRIT OF REVIEW, WHEN GRANTED.

1. Order of justice of peace sustaining demurrer is not appealable and can be reviewed only by appeal from final judgment (I. C. A., sec. 11-301).

2. Appeal from justice court without filing of appeal bond held of no effect (I. C. A., sec. 11-305).

3. District court orders denying motion to dismiss appeal from justice court and overruling demurrer are not appealable (I C. A., sec. 11-201).

4. Writ of review may be invoked to review district court orders denying motion to dismiss appeal from justice court and overruling plaintiff's demurrer where such orders were not appealable and plaintiff had no other adequate remedy (I C. A., sec. 11-201).

Original application for Writ of Review. Granted.

Writ of review granted and order of the district court overruling the demurrer reversed. Case remanded, with instructions. Costs awarded to plaintiff.

Frank Griffin, for Plaintiff.

The district court has no jurisdiction of this cause of action on appeal, and its order overruling plaintiff's demurrer was without and in excess of the jurisdiction conferred upon it by law. The right to appeal is purely statutory. ( Reberger v. Johanson, 38 Idaho 618, 223 P. 1079; Weiser Irr. Dist. v. Middle Valley Irrigation Ditch Co., 28 Idaho 548, 155 P. 484.)

No appeal can be taken to the district court until a final judgment has been rendered and entered in the justice court. (Haddock v. Jackson, 51 Idaho 560, 8 P.2d 279; Dalton v. Abercrombie, 35 Idaho 290, 206 P. 1051.)

An undertaking on appeal where required by statute is a condition precedent to the right of appeal and essential to the jurisdiction of the appellate court. (Village of Hailey v. Riley, 13 Idaho 749, 92 P. 756; Foresman v. Board of Commrs., 11 Idaho 11, 80 P. 1131; McCoy v Oldham, 1 Idaho 465.)

Compliance with such requirement is jurisdictional. (Melquist v. Board of Commrs., 45 Idaho 296, 298, 261 P. 774, and cases cited.)

James A. Wayne, for Defendants.

The district court had jurisdiction to entertain and determine the motion to dismiss the appeal herein; hence its decision cannot be reviewed by writ of review. (Gunderson v. District Court, 14 Idaho 478, 94 P. 166.)

In such case, where the appeal is on questions of law alone, the district court should not try the action anew, but should determine the questions of law presented on the appeal and remand the case to the justice court for further action in conformity with its decision. (Smith v. Clyne, 15 Idaho 254, 97 P. 40.)

LEEPER, J. Lee, C. J., and Budge, Givens and Varian, JJ., concur.

OPINION

LEEPER, J.

This is an application for a writ of review directed to the order of the district court overruling a demurrer and remanding the case to the justice's court in which it originated for trial. The appeal to the district court was taken by the defendant Kranches from an order of the justice of the peace sustaining a demurrer of the plaintiff to the answer of the defendant. No trial was ever had in the justice's court and no judgment was ever rendered in the action. No bond upon appeal was ever filed. The La Salle Extension University, plaintiff here and respondent below, moved to dismiss the appeal in the district court for want of jurisdiction. The motion was denied and the court entered the order complained of.

The order was absolutely void because the court had no jurisdiction for two reasons: (1) The order of the justice of the peace sustaining a demurrer is not appealable and can be reviewed only by appeal from a final judgment. (I. C. A., sec. 11-301; Smith v. Peterson, 31 Idaho 34, 169 P. 290; Dalton v. Abercrombie, 35 Idaho 290, 206 P. 1051; Haddock v. Jackson, 51 Idaho 560, 8 P.2d 279.) (2) No appeal bond was ever filed. (I. C. A., sec. 11-305; Melquist v. Board of Comm'rs., 45 Idaho 296, 261 P. 774.)

Plaintiff has no remedy by appeal, because neither the order denying motion to dismiss nor the order overruling the demurrer are appealable. (I. C. A., sec. 11-201; Swinehart v Turner, 36 Idaho 450, 211 P. 558; Crane v. City of Harrison, 40 Idaho 229, 38 A. L. R. 15, 232 P. 578; Blaine County Nat. Bank v. Jones, 45 Idaho 358, 262 P. 509.) Under the circumstances no final judgment could have been entered by the district court from which an appeal would lie to this court and in which the orders complained of might be reviewed as interlocutory orders. Plaintiff has no other plain, speedy and adequate remedy by prohibition or otherwise, since the illegal action...