The People v. Lindsay

• Decision Date: 01 January 1871
• Citation: 1 Idaho 394
• Parties: The People ex rel. J. W. Huston, v. L. B. Lindsay And William Bryon.
• Court: Idaho Supreme Court

1 Idaho 394

The People ex rel. J. W. Huston, v. L. B. Lindsay And William Bryon.

Supreme Court of Idaho

January 1, 1871

CERTIORARI.-Three things are necessary to be shown to warrant the granting of a writ of certiorari to the district judge: 1. That the judge exceeded his jurisdiction; 2. That there is no appeal; 3. That there is no other plain, speedy, and adequate remedy.

IDEM-DISMISSING WRIT.-A writ of certiorari improperly granted will be dismissed on motion.

DISTRICT COURT-JUDGE AT CHAMBERS-JURISDICTION-QUO WARRANTO.-The district court has jurisdiction on quo warranto to determine the rights of several parties who claim to be entitled to the office of sheriff; and the judge of that court may properly decide, in such case, whether it is necessary to allege in the complaint that there has been an actual usurpation of the office; and if there be error in the ruling, such error may be corrected on appeal.

APPEAL-JUDGE AT CHAMBERS.-An appeal lies from the judgment of a district judge at chambers.

JUDGE AT CHAMBERS-JURISDICTION.-A judge of a district court does not exceed his jurisdiction by issuing an order or writ to enforce a judgment rendered by him at chambers.

CERTIORARI.-Certiorari will not lie until the case has been finally disposed of in the inferior court.

CERTIORARI to the Judge of the District Court of Ada County.

H. E Prickett, for the Defendant, William Bryon, moved to quash and dismiss the writ.

This is a proceeding by writ of certiorari, to review the proceedings and judgment of the judge of the district court at chambers. The jurisdiction of a judge at chambers is sustained, at common law, by the following authorities Doe v. Mullarkey, 39 Eng. Com. L. 333; Buller v. Stoveheld, 8 Id. 552; Slack v. Clifton, 55 Id. 523; King v. York, 28 Id. 195; Tomlinson v. Ballard, 45 Id. 642; Thompson v. Breck, Id. 757; De Forest v. Wall, 58 Id. 598; Low v. Ridley, 59 Id. 478; Padwick v. Turner, 63 Id. 124.

We refer to the following decisions as sustaining the jurisdiction, when conferred by statute: United States v. Nourse, 6 Pet. 470; Walker v. Rogan, 1 Wis. 623-625; People v. Wilcox, 22 Barb. 194, 195; Beach v. Beckwith, 13 Wis. 21. This cause was tried at chambers by stipulation: Held, that the court had jurisdiction of the subject matter and parties, and that the judge might so try it. (Rogan v. Walker, 1 Wis. 597.) This is a well-considered case, full of pith, point, and law, completely covering the whole question. (See, also, Brewster v. Hartley, 37 Cal. 15, 99 Am. Dec. 237.) The case has not been finally determined by the judge of the court below. It is now pending on a motion for a new trial. Certiorari will not lie to an inferior tribunal, until the subject matter has been finally adjudged. If the district judge has erred in judgment, the case can be brought to this court for review, after a final judgment has been rendered, by appeal or writ of error; therefore certiorari will not lie. J. Brumback, for Defendant Lindsay, opposing the motion:

We have three things to establish: 1. That the district judge has exceeded his jurisdiction. 2. That there is no appeal. 3. That there is no other plain, speedy, and adequate remedy. The district court has no jurisdiction of the subject matter, because an action of this kind will not lie except where there is a user of the office. (Saunders v. Haynes, 13 Cal. 148, 149; Angell & Ames on Corp., secs. 764, 765; Wheat. Sel. 1163-1190; People

v. Conover, 6 Abb. Pr. 220.) The very words quo warranto imply possession-a user.

The proceeding attempted in this case is special, therefore the jurisdiction can only be exercised by the tribunal upon which it is conferred by statute. (Reed v. Omnibus R. R. Co., 33 Cal. 212.) The judge at chambers had no jurisdiction to try the case. He can do nothing at chambers that he is not expressly authorized to do. (Smith v. Chichester, 1 Cal. 409; Wicks v. Ludwig, 9 Cal. 175; Hegeler v. Henschkell, 27 Cal. 495; Bond v. Pacheco, 30 Cal. 532; Norwood v. Kenfield, 34 Cal. 330; Reyburn v. Bassett, McCahon (Kan.), 86.) The organic act confines the judicial power to courts. (Sec. 9.) No judicial business, therefore, can be done out of court. The statutes only provide for an appeal from the judgments of a court; therefore, there is no appeal in this case. The right of appeal is statutory. (Tierney v. Dodge, 9 Minn. 166.) When a court attempts to exercise powers beyond its jurisdiction, its proceedings are coram non judice, and are not reviewable by appeal. (Weeks v. Ludwig, 9 Cal. 175; People v. Jones, 20 Cal. 55; Stone v. Elkins, 24 Cal. 125; People v. The Judges, 24 Wend. 251.) Lastly, there is no other plain, speedy, and adequate remedy.

LEWIS, J.,

delivered the opinion.

WHITSON, J., concurred, and NOGGLE, C. J., dissented.

The plaintiff, upon the information of the district attorney commenced an action in the court below against defendants, alleging that both defendants claimed to be entitled to the office of sheriff of Ada county, for the term of two years from the second day of January, 1871, and asking that the respective rights of defendants be determined. At the November term of said court for 1870, each of the defendants filed separate answers admitting that they made such claim, and setting up the facts upon which they based their claims. The cause being at issue at the November term of said court, upon the complaint and separate answers of the defendants, and set down for trial, by an agreement of the parties the following order was made of record on the 21st of November, 1870, being the thirteenth day of the term:

"Now, on this day, the attorneys for the several parties file their stipulation that said cause be continued beyond the term, and that the same be tried before the judge of this court, at chambers, upon five days' notice to the several parties; whereupon the court ordered that said cause be continued, as asked by counsel in said stipulation filed."

On the 14th of December, Bryon served notice upon the other parties, that he would bring the case to trial on the 20th of December, 1870, at 10 o'clock A. M., before the judge at chambers. On the 20th the case was called for trial at chambers, all of the parties being present by counsel, whereupon defendant Lindsay filed his motion to dismiss, because the complaint did not set forth facts sufficient to constitute a cause of action. This motion was overruled, to which Lindsay excepted. The judge thereupon proceeded to hear and determine the case.-J. W. Huston, attorney for the people; Prickett & McBride, for Bryon; Roseborough, Brumback, Heed & Miller, for Lindsay.

After hearing the evidence and arguments of counsel, judgment was rendered that Bryon was entitled to such office, on the facts found for two years, from the 2d of January, 1871, and that Lindsay was not; and adjudging the right to said office to Bryon, precluding Lindsay therefrom. On the 30th of December, Lindsay filed his notice of motion for a new trial. On the 3d of January, 1871, Bryon filed his affidavit stating that notwithstanding the judgment, the defendant, Lindsay, on the third day of January, entered and took possession of said office, jail, etc., and prevents him from taking possession in accordance with said judgment. An order was then issued by the judge, to Orlando Robbins as elisor, commanding him to put Bryon in possession, which he did.

On the 4th of January, 1871, Lindsay filed his motion and statement for a new trial, before the court below, which was noticed for hearing on the 7th of January, at 10 o'clock, and before said judge. The points raised upon said motion being: 1. Insufficiency of the evidence to justify the findings and decision; 2. Error of law occurring at the trial duly excepted to; 3. Newly discovered evidence.

This being the condition of the cause, upon the 7th of January, 1871, defendant, Lindsay, made application to this court for a writ of certiorari, which was issued, and the record being now before this court.

The defendant, Bryon, files herein his motion to quash the writ of certiorari herein issued because it appears upon the face of the record that certiorari will not lie in this case. Section 414, of the Civil Practice Act, provides in what cases a writ of ceritorari will be granted; it is declared therein that the writ may be granted by any court of the territory, except a justice's court. That it will be granted in all cases where 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 other plain, speedy, and adequate remedy.

It has been urged by counsel that as this court, by the provisions of the laws of the territory, has only appellate jurisdiction, it cannot issue a writ of certiorari except in aid of such jurisdiction; that the language of the statute giving to any court of the territory the right to issue the writ, must be held to mean any court of original jurisdiction. The supreme court of California, under a statute similar to ours, held that the supreme court of that state was only authorized to issue the writ in aid of its appellate jurisdiction, and that the provisions of the act granting to any court the authority to issue it must be held to mean any court of original jurisdiction. (Miliken v Huber, 21 Cal. 166.) And it seems to be the practice of the supreme court of the United States to issue this writ only in aid of its appellate jurisdiction. (Fowler v. Lindsey, 3 Dall. 411.) The argument of counsel on this point is entitled to much consideration, but as we can dispose of the case without determining that question, we will not now decide as to that point, suggesting that there is...