Talbot v. Collins

• Decision Date: 30 June 1920
• Citation: Talbot v. Collins, 33 Idaho 169, 191 P. 354 (Idaho 1920)
• Parties: SAMUEL TALBOT, Respondent, v. W. E. COLLINS, LIZZIE S. COLLINS, His Wife, C. E. CROWLEY, A. S. DICKINSON, LULA K. LINDSAY, and CITY OF IDAHO FALLS, Respondents, and WILLIAM LINDSAY and LINDSAY & COMPANY, a Corporation, Appellants
• Court: Idaho Supreme Court

191 P. 354

33 Idaho 169

SAMUEL TALBOT, Respondent, v. W. E. COLLINS, LIZZIE S. COLLINS, His Wife, C. E. CROWLEY, A. S. DICKINSON, LULA K. LINDSAY, and CITY OF IDAHO FALLS, Respondents, and WILLIAM LINDSAY and LINDSAY & COMPANY, a Corporation, Appellants

Supreme Court of Idaho

June 30, 1920

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. James G. Gwinn, Judge.

Action for foreclosure of mortgages, in which judgment was rendered in favor of certain cross-complainants. Modified.

Judgment awarded in favor of cross-complainants W. E Collins, Lizzie S. Collins and A. S. Dickinson reversed. Judgment awarded in favor of cross-complainant C. E. Crowley modified. Costs awarded to appellants as against respondents W. E. Collins, C. E. Crowley and A. S. Dickinson.

Peterson and Coffin, for Appellants.

"The prevailing doctrine is that a guardian has no power to make a contract binding upon the ward or upon his estate, however proper and beneficial the contract may be; but that contracts made by him impose a personal liability upon himself, and his protection from loss lies in his right to charge the expenditures to the ward's estate in his account." (15 Am. & Eng. Ency. of Law, 70; Hunt v. Maldonado, 89 Cal. 636, 27 P. 56; Fish v. McCarthy, 96 Cal 484, 31 Am. St. 237, 31 P. 529; 21 Cyc. 115; Morse v Hinckley, 124 Cal. 154, 56 P. 896; Wright v. Byrne, 129 Cal. 614, 62 P. 176.)

W. A. Beakley, for Respondent.

Under sec. 6451, C. S., and the case of Mahoney v. Elliott, 8 Idaho 190, 67 P. 317, the supreme court has not the authority nor discretion to change the place of trial, unless by agreement of counsel.

"On exceptions by a ward to the final report of his guardian, the court had authority to indemnify the guardian for expenses of accounting, and for reasonable expenses, including counsel fees." (Nagle v. Robins, 9 Wyo. 211, 62 P. 154, 796.)

In this case the amounts were incurred and allowed by the probate court, and when they are allowed against the estate, they thereby become a lien, and if payment is not made, as in this case, then suit may be brought to enforce the payment. (15 Am. & Eng. Ency. of Law, 70.)

The claims were allowed against the estate and suit brought on the judgment or allowed claims, and this is in the nature of a claim that has been allowed from the ward's estate as permitted in Hunt v. Maldonado, 89 Cal. 636, 27 P. 56.

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

Upon application of appellants, and on good cause shown, it was ordered that this cause be transferred from the Pocatello to the Boise calendar for immediate hearing. The respondents objected to the jurisdiction of the court to hear this cause at Boise without consent of all parties to the action, and moved that it be retransferred to the Pocatello calendar.

The constitutional and statutory provisions bearing upon this question are the following:

"The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted." (Const., art. 2, sec. 1.)

"At least four terms of the supreme court shall be held annually; two terms at the seat of the state government, and two terms at the city of Lewiston, in Nez Perce county. In case of epidemic, pestilence, or destruction of courthouses, the justices may hold the terms of the supreme court provided by this section at other convenient places, to be fixed by a majority of said justices. After six years the legislature may alter the provisions of this section." (Art. 5, sec. 8.)

"The supreme court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof. The supreme court shall also have original jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction." (Const., art. 5, sec. 9.)

"The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate department of the government; but the legislature shall provide a proper system of appeals and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the supreme court, so far as the same may be done without conflict with this constitution." (Const., art. 5, sec. 13.)

"The supreme court or any two justices thereof may by order fix the times and terms of the supreme court, which shall not be changed oftener than once in each year, except as herein provided. At least five terms shall be held annually; two terms at the seat of the state government, one term at Lewiston in Nez Perce county, one term at Coeur d'Alene in Kootenai county, and one term at Pocatello in Bannock county." (C. S., sec. 6449.)

"Unless by agreement of parties, causes in which writs or appeals are taken to the supreme court: . . .

"(3) From the counties of . . . Bingham, Bonneville . . . shall be heard at Pocatello." (C. S., sec. 6451.)

Rule 36 of the rules of this court provides that causes arising in the territory comprising the counties of Bingham, Bonneville and certain other counties of the state shall be heard either at Boise or Pocatello, as the parties may agree or the court may order.

It is apparent that Rule 36 cannot be reconciled with the provisions of C. S., section 6451, above quoted.

In the case of Mahoney v. Elliott, 8 Idaho 190, 67 P. 317, it was held that the place of hearing an appeal from an action or special proceeding is determined by the statute, and that there is no discretion with the court to require a hearing on the application of one of the parties alone at a place other than that designated by the statute.

By providing that the legislature may regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all courts below the supreme court, power to regulate the methods of proceeding in the supreme court is denied the legislature.

The place where and the time when the supreme court shall hear arguments upon an appeal is purely a matter of procedure. After the supreme court has acquired jurisdiction of a cause on appeal, and after the record upon which the appeal is to be heard has been filed, the court has exclusive control of the case. Any other body or department of government cannot prescribe where and when the court shall proceed in the exercise of its jurisdiction without regulating the methods of proceeding in the supreme court.

It will be observed that art. 5, sec. 8, of the constitution provides only for the terms of the supreme court, and where they shall be held. It makes no provision as to the causes which shall be considered at the various terms, nor does it intimate that the jurisdiction of the court does not continually extend throughout the entire state. It provides that after six years the legislature may alter the provisions of that section, which has been done in C. S., sec. 6451, above referred to, but the legislature has attempted to go further and limit the place at which a cause may be heard, except upon agreement of the parties. We are satisfied the legislature has no power to create such a limitation.

The case of Mahoney v. Elliott, supra, is overruled.

This is an action for the foreclosure of certain mortgages upon real estate. Respondents W. E. Collins, Lizzie S. Collins, Crowley, Dickinson and others, were made parties defendant. The complaint alleges that the respondents named above claim an interest in or lien on the property described in the mortgages. Respondents above named answered and filed cross-complaints. Judgment was entered foreclosing the mortgages and directing a sale of the property to pay the mortgage debts, and also giving a personal judgment for certain sums of money to respondents W. E. Collins, Lizzie S. Collins, Crowley and Dickinson.

The appeal is from that portion of the judgment in favor of the respondents and cross-complainants above named.

The respondent Crowley in his cross-complaint sets up two causes of action. In the first it is shown that on June 3, 1918, appellant Lindsay was duly adjudged an incompetent, and a guardian of his person and estate was appointed; that the cross-complainant, in proceedings leading up to the decree declaring Lindsay an incompetent, acted as attorney and counselor for Lula K. Lindsay, wife of the incompetent, and her guardian ad litem, and assisted in said proceedings, and that the court, in the rendition of the decree, ordered that the cross-complainant be paid a reasonable fee for his services; that thereafter the cross-complainant presented his duly verified claim for the services so rendered for the sum of $ 794.20, and that the claim was duly allowed by the guardian and by the probate court which had jurisdiction of the matter; that appellant Lindsay was restored to competency by order of the probate court on or about June 1, 1919.

In his second cause of action respondent Crowley alleges that prior to the adjudication of incompetency of appellant Lindsay, there was due him the sum of $ 210.24 for services rendered and money advanced by the cross-complainant; that claim for this sum was presented to the guardian and allowed by the guardian and the probate court.

The cause of action alleged in the cross-complaint of respondent Dickinson is similar in all respects, except as to amount, to that found in respondent Crowley's first cause of...