Specialty Sales v. Graf

• Decision Date: 26 June 1952
• Docket Number: No. 7874,7874
• Citation: 245 P.2d 820,73 Idaho 113
• Parties: SPECIALTY SALES, Inc. v. GRAF, Judge.
• Court: Idaho Supreme Court

Page 820

245 P.2d 820

73 Idaho 113

SPECIALTY SALES, Inc. v. GRAF, Judge.

No. 7874.

Supreme Court of Idaho.

June 26, 1952.

T. P. Wormward, Kellogg, and Frank Langley, Boise, for plaintiff.

James G. Towles, Kellogg, for defendant.

PORTER, Justice.

Upon application and affidavit of counsel for plaintiff, a writ of review was granted herein. The writ required defendant and the clerk of the district court to certify and transmit to the Supreme Court the record in an action pending in the District Court in Shoshone County entitled Specialty Sales, Inc., a corporation, plaintiff, v. Frank Prendergast and Lylia Prendergast, defendants. The writ states that the matter for review is the order of defendant district judge made on February 15, 1952, sustaining a demurrer to the amended complaint and vacating his order made on March 30, 1951, overruling such demurrer.

A return on said writ of review has been duly made. Defendant has filed answer to the affidavit of counsel for plaintiff; plaintiff has filed a reply to the answer; and the cause has been orally presented to the court and is now for determination.

The transcript of the record in the district court shows that the following proceedings were had: Plaintiff filed an amended complaint seeking to recover the purchase price of goods, wares and merchandise. It is alleged therein 'That during all the times mentioned herein plaintiff was and now is a corporation organized under the laws of the State of Minnesota.' Defendant, Frank Prendergast filed a demurrer wherein, among other things, it is alleged: 'That the plaintiff has not the legal capacity to prosecute this action, for the reason there is no allegation showing compliance, on behalf of the plaintiff corporation, with the laws of the State of Idaho.' On March 30, 1951, the herein defendant district judge made and entered an order overruling such demurrer together with other motions and demurrers before him. Thereafter, the defendants filed their answer to the amended complaint and the plaintiff filed a motion to strike such answer. On February 15, 1952, while such motion to strike was under consideration, the court made the following order:

'Order Vacating And Setting Aside Previous Order

'This matter having come on regularly for hearing on the 15th day of February, 1952, and it appearing to this court that defendants herein filed a demurrer to plaintiff's amended complaint on the ground that plaintiff did not have the legal capacity to prosecute this action, for the reason that there was no allegation contained in the amended complaint, showing compliance on behalf of the plaintiff corporation, with the laws of the State of Idaho; it further appearing that this court entered an order overruling the above mentioned demurrer together with certain motions to strike on the 30th day of March, 1951; and it further appearing to this court, after hearing arguments and having briefs submitted to it, that this court erred in overruling the demurrer above mentioned,

'Now, Therefore, It Is Ordered, Adjudged And Decreed that said order of March 30, 1951, be, and the same is hereby, vacated and set aside. It is further ordered, adjudged and decreed that defendants' demurrer, above mentioned, by, an the same hereby is sustained.

'Dated this 15th day of February, 1952.

'Albert J. Graf

'District Judge'

It appears and is admitted in these proceedings that the district judge made such order on his own motion and without further notice and hearing.

It is the contention of plaintiff herein that the defendant district judge, having on March 30, 1951, overruled the demurrer in question, was without jurisdiction to vacate and set aside his original order and to sustain such demurrer by his order of February 15, 1952; and particularly on his own motion without notice to the plaintiff and without a hearing.

Section R 7-208 I.C., provides:

'The review upon this writ can not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.'

In accordance with such section, under a writ of review we are only concerned with whether or not the defendant herein exceeded his jurisdiction in making the questioned order. We are not concerned with and are not called upon to determine whether the district judge erred in overruling the demurrer in the first instance or in sustaining the demurrer thereafter. The sole question is whether the district judge had jurisdiction to make the order of February 15, 1952. State Insurance Fund v. Hunt, 52 Idaho 639, 17 P.2d 354; Beus v. Terrell, 46 Idaho 635, 269 P. 593; Vaught v. District Court, 46 Idaho 642, 269 P. 595; Weiser Nat. Bank v. Washington County, 30 Idaho 332, 164 P. 1014; Coeur D'Alene Min. Co. v. Woods, 15 Idaho 26, 96 P. 210.

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