Van Camp v. Board of Commissioners of Custer County

• Decision Date: 25 January 1884
• Citation: 2 P. 721,2 Idaho 29
• Parties: VAN CAMP v. BOARD OF COMMISSIONERS OF CUSTER COUNTY
• Court: Idaho Supreme Court

2 P. 721

2 Idaho 29

VAN CAMP v. BOARD OF COMMISSIONERS OF CUSTER COUNTY

Supreme Court of Idaho

January 25, 1884

APPEALABLE ORDERS.-An appeal will not lie from a judgment of the district court, in common-law actions or proceedings, unless it is expressly allowed by statute.

WRIT OF ERROR-PARTIES ARE PRIVIES.-No one can sue out and maintain a writ of error unless he is a party or privy to the record, or is prejudiced by the judgment.

APPEAL-CONTINUATION OF CASE-CHANGE OF COURT.-An appeal is not the commencement of a new action or proceeding, but a continuation of the same case, action or proceeding, being only transferred from one court or tribunal or body to another, for final trial and judgment.

TITLE OF ACTION-INTERESTED PARTIES.-Courts will look beyond the mere title of an action or proceeding for the purpose of determining who are interested and affected as parties.

(Syllabus by the court.)

Original proceeding. Motion to dismiss appeal and writ of error.

Motion to dismiss the writ of error is denied.

James H. Hawley, M. Kirkpatrick and E. P. Johnson, for Plaintiff in Error.

No brief on file.

Thomas J. Galbraith and Huston & Gray, for Defendant in Error.

The right of appeal is clearly given by sections 25 to 28 inclusive, page 529, Compiled Laws of Idaho. (Rupert v Board of Commissioners of Alturas County, 2 Idaho (West Pub Co. ed.), 21, 2 P. 718; Waitz v. Ormsby County, 1 Nev. 370.) Van Camp, defendant in error, was a proper party to take the appeal from the order of board of commissioners. (Idaho Comp. Laws, sec. 25, p. 529; Rupert v. Board of Commrs., 2 Idaho (West Pub. Co. ed.), 21, 2 P. 718; 1 Pomeroy's Equity Jurisprudence, 259, 360; 2 High on Injunctions, 853; 2 Dillon on Municipal Corporations, 914 et seq.; Newmeyer v. Missouri etc. R. R. Co., 52 Mo. 81, 14 Am. Rep. 394, and note on page 700; Cooley on Taxation, 548; Foster v. Coleman, 10 Cal. 278.)

PRICKETT, J. Buck, J., concurred. Morgan, C. J., did not sit in this case.

OPINION

PRICKETT, J.

It appears from the transcript in this cause that the assessor of Custer county assessed the property of the General Custer Mining Company for the year 1881 as follows: Its mill and appurtenances at $ 70,000, and bullion produced by them and in their possession, $ 170,000; that at the regular meeting of the board of equalization of that county, held in August, 1881, the superintendent of the company appeared, and complained that such assessment was too high, and asked a reduction; that, upon such complaint, the board reduced the assessment and valuation of the mill and appurtenances to $ 35,000, and of the bullion to $ 25,000; that from such order James H. Van Camp, a citizen and taxpayer of the county, appealed to the district court of the third judicial district, held in and for Custer county; that the notice of such appeal was addressed and directed to the board of commissioners of Custer county and the General Custer Mining Company, and was served by mail upon the superintendent of the company; that the commissioners appeared by counsel in the district and moved to dismiss the appeal, on the ground that no appeal lies from the order of the board of equalization, and that, if it does lie in this case, that James H. Van Camp is not authorized or qualified by law to take such appeal, which motion was denied by the court. Such proceedings were afterward had in the district court as resulted in a judgment, rendered June 17, 1882, modifying the decision of the board of commissioners, and fixing the value of the mill and appurtenances at $ 35,000 (as previously ordered by them), and of the bullion at $ 170,000, and requiring the board of commissioners, the county auditor, and the assessor and collector of taxes to proceed, and to adjust and collect the proper taxes upon such valuation, in manner and form, now for then, as if the appeal to the district court had not been taken. It was further ordered that a copy of the judgment be served upon the board of commissioners, the county auditor, the assessor, and tax collector of the county, and upon the General Custer Mining Company or its attorney.

On the fourteenth day of September, 1882, the General Custer Mining Company filed in the office of the clerk of the district court, and served, a notice of appeal from said judgment to this court, and on the next day gave an undertaking on said appeal, and on the sixteenth day of November 1883, the said company sued out, and caused to be issued from this court, a writ of error to said district court. The respondent in this appeal and the defendant in error, James H. Van Camp, now moves to dismiss both the appeal and the writ of error--the former on the ground that no appeal is allowed by law in the cause, and the latter because the General Custer Mining Company is not a party to the record or judgment in the district court; that it does not appear from the record that the commissioners of Custer county authorized or consented to the suing out of the writ; that it does not appear from the writ of error herein that the board of commissioners or the General Custer Mining Company are injured or prejudiced by the judgment of the district court; that the said company has no standing in this court, because it does not appear by the record that it has paid or tendered the tax on its property upon the valuation thereof as fixed by the board of commissioners; and on the further ground that there is no statement of the case or bill of exceptions in the transcript in support of the writ of error. At the last term of this court, in the case of Rupert v. Board of commissioners, etc., 2 Idaho 19, 2 P. 718, it was decided that no appeal would lie to this court from a judgment of the district court rendered upon an appeal from an order of a board of county commissioners, because such cases, although somewhat anomalous in character do not partake of the nature of suits in chancery, which can be transferred from one court to another in that manner, but were proceedings at law,...