Thompson v. Adair

• Decision Date: 17 March 1923
• Citation: 36 Idaho 790,214 P. 214
• Parties: JOSEPH THOMPSON, Plaintiff, v. RALPH W. ADAIR, Judge of the District Court of the Sixth Judicial District, for the County of Butte, Defendant
• Court: Idaho Supreme Court

214 P. 214

36 Idaho 790

JOSEPH THOMPSON, Plaintiff, v. RALPH W. ADAIR, Judge of the District Court of the Sixth Judicial District, for the County of Butte, Defendant

Supreme Court of Idaho

March 17, 1923

CRIMINAL PROCEDURE-INFORMATION QUASHED-RESUBMISSION-PROCEDURE IN MAGISTRATE'S COURT-NOT A NEW PROCEEDING-EFFECT ON BAIL-WRIT OF PROHIBITION-WHEN NOT ALLOWED.

1. Where an information is quashed under C. S., sec. 8863, and "the prosecuting attorney is ordered to resubmit said matter according to law," under the provisions of C. S sec. 8865, the defendant, if in custody, must so remain unless he is admitted to bail; or if admitted to bail, or money is deposited instead thereof, the bail or money is answerable for his appearance to answer a new information under the provisions of C. S., sec. 8866.

2. If the information be quashed by reason of defects in such instrument, the district court may direct a new one to be filed in that court; but if such defects arise by reason of irregularities in the preliminary proceedings, the cause should be remanded to the magistrate's court for correction of such errors.

3. Upon being so remanded, proceedings may be had de novo to the extent of filing a new complaint and again taking the testimony, if the offense charged be the same. Such proceedings do not constitute a new action and the defendant if in custody, so remains, or if he has been admitted to bail, it is still answerable for his appearance.

4. It is not necessary upon resubmission that a new warrant of arrest be issued, or that a new arrest be made, or new bail given; but if any or all of these things are done, it does not constitute a new action or vitiate the former bail, or violate the district court's order of resubmission, or deprive such court of jurisdiction after a recommitment.

5. Where the affidavit for a writ of prohibition or for any of the extraordinary writs is made to this court which presents a question that may be heard and determined upon an appeal from a final judgment in the cause, this court will not ordinarily entertain jurisdiction in such special proceedings, unless it clearly appears that the remedy at law is so inadequate as to result in a denial of substantial justice.

Original proceedings for Writ of Mandate. Writ denied.

Alternative writ denied and the proceedings dismissed, with costs to the defendant.

Whitcomb, Cowen & Clark, for Plaintiff.

The first proceedings against petitioner are still pending on the order of the court to resubmit the same, under the provisions of C. S., secs. 8865 and 8866, and the second proceedings commenced Mar. 23, 1922, were not commenced in the mode prescribed by law, and neither the probate court nor the district court, in which the second proceedings are pending, had or have any jurisdiction to try petitioner. (State v. Raaf, 16 Idaho 411, at 417, 101 P. 747.)

A. H. Conner, Attorney General, J. G. Martin and E. J. Dockery, for Defendant.

When a trial court's jurisdiction is questioned it is for that court to pass upon the question of its jurisdiction. Otherwise the mere raising of the question would ipso facto disqualify the court from acting. The court might be in error in taking jurisdiction, but that would not justify applying for a writ of prohibition. That error would be correctable by appeal. (State ex rel. Missouri P. R. Co. v. Seay, 23 Mo.App. 623; Olden v. Paxton, 27 Idaho 597, 150 P. 40.)

The fact that a trial will be expensive and troublesome will not justify the writ. (Lindley v. Superior Court, 141 Cal. 220, 74 P. 765; Blackwell Lumber Co. v. Flynn, 27 Idaho 632, 150 P. 42; Richardson v. Ruddy, 15 Idaho 488, 98 P. 842; Wayne v. Allspach, 20 Idaho 144, 116 P. 1033; In re Hatch, 9 Cal.App. 333, 99 P. 398; Zinn v. District Court, 17 N.D. 128, 114 N.W. 475; State v. Roberts, 33 Idaho 96, 178 P. 80; Willman v. District Court, 4 Idaho 11, 35 P. 692; Fraser v. Davis, 29 Idaho 70, 156 P. 913; Little v. Broxon, 30 Idaho 303, 170 P. 918; Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348.)

WILLIAM A. LEE, J. Budge, C. J., and McCarthy and Dunn, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This is an original proceeding in this court, praying that a writ of prohibition be issued, directed to the Honorable Ralph W. Adair, as judge of the district court of the sixth judicial district, in and for the county of Butte, to restrain and prohibit said judge from proceeding to try the petitioner upon an information filed by the prosecuting attorney of such county, charging him with having committed a public offense. An alternative writ was issued, to which the defendant makes return by motion to quash, on the ground that it does not state facts sufficient to constitute a cause of action, nor to entitle petitioner to the relief prayed for, or any relief.

It appears that on December 21, 1921, a criminal complaint was filed in the probate court of Butte county, charging plaintiff herein with having committed a public offense, and a warrant of arrest was issued thereon; that he was arrested and brought before said examining magistrate, and after examination was committed to answer said charge in the district court; that on the 21st day of March, 1922, the prosecuting attorney of Butte county filed an information against plaintiff, which was set aside for some irregularity in the proceedings, the character of which does not appear, the order in part being: " . . . . on the motion to quash the information on file against the said defendant. Motion granted by the Court and the prosecuting attorney ordered to re-submit said matter in accordance with law."

Thereafter the cause was remanded to said examining magistrate, and a new complaint was filed against defendant plaintiff herein, on March 23, 1922, which charged the same offense for which he had been previously held in the former proceedings before said magistrate. A new warrant was issued thereon and he was taken into custody, and in order to secure his release was required to give a new bail bond. On March 24th thereafter he was examined by said committing magistrate, over his objection that the proceeding was not in accordance with the order of resubmission of the district court, and after such examination he was held to answer this charge in the district court. On the 5th day of September thereafter another information was filed against him upon the same charge upon which he had been last examined on the 24th of March preceding, and upon the filing of this second information he moved to quash the same, which motion was denied. Thereupon this proceeding was commenced to prohibit and restrain said trial judge from proceeding to try petitioner upon said last-mentioned information or proceeding further in said action, upon the ground that all proceedings had after the order of resubmission are void and in violation of C. S., secs. 8865 and 8866, and contrary to the order of resubmission; that the said committing magistrate was without jurisdiction to issue said warrant or to examine petitioner or commit him; that said prosecuting attorney of Butte county was without authority in law to file an information in said district court based upon the second preliminary examination and order of commitment; that the judge of the district court is without jurisdiction to try said petitioner upon the information filed in said district court September 5,...