Washington County Abstract Co. v. Stewart

• Decision Date: 30 December 1903
• Citation: 9 Idaho 376,74 P. 955
• Parties: WASHINGTON COUNTY ABSTRACT COMPANY v. STEWART, JUDGE
• Court: Idaho Supreme Court

74 P. 955

9 Idaho 376

WASHINGTON COUNTY ABSTRACT COMPANY v. STEWART, JUDGE

Supreme Court of Idaho

December 30, 1903

WRIT OF REVIEW-PARTY TO ACTION.

1. To entitle one to a writ of review he must have been a party to the suit or matter in controversy.

(Syllabus by the court.)

ORIGINAL application for writ of review denied.

Writ denied. Costs are awarded to defendants.

Lot L Feltham, for Plaintiff, upon a petition for a rehearing cites the following authorities:

1. That the judgment of the district court complained of by plaintiff is void for want of jurisdiction over the person of the plaintiff. "The court cannot act upon persons who are not legally before it, upon one who is not a party to the suit, upon a plaintiff who has not invoked its arbitrament or upon a defendant who has never been notified, upon a subject which does not fall within the province as defined or limited by law. Neither can it go beyond the issues and pass upon a matter which the parties neither submitted nor intended to submit for its determination." (1 Black on Judgment, 1891 ed., p. 261, sec. 215, p. 262, sec. 216, p. 267, secs. 219, 220, p. 328, sec. 270, also p. 347, sec. 278, and cases cited in notes 186-189; Ford v. Doyle, 37 Cal. 346; McCoy v. Allen, 16 W.Va. 731; Shinn v. Board of Education, 39 W.Va. 506, 20 S.E. 604; Freeman on Void Judicial Sales, pp. 8-12, secs. 3, 5.) All who are neither parties to a judgment nor privies to such parties are not bound by such judgment. (Stocker v. Kirtley, 6 Idaho 795, 892; Horner v. Doe, 1 Smith (Ind.), 10; Frankel v. Satterfield, 9 Houst. (Del.) 201, 19 A. 898.) "A judgment is absolutely void if it appear that there was a want of jurisdiction in the court rendering it either of the subject matter or of the person of the defendant. It may be collaterally attacked upon the ground that the court by which it was rendered had no jurisdiction, either of the subject matter or of the person of the defendant, or both." (Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742.) Certiorari is the proper and legal means of reviewing and canceling a void judgment. (Orr v. State Board of Equalization, 3 Idaho 190, 28 P. 416; Harris on Certiorari, pp. 37, 44, 45, secs. 44, 49, note 2, citing authorities; Keys v. Marion County, 42 Cal. 252; Central P. R. Co. v. Placer County, 46 Cal. 670; People v. San Francisco F. D. Delegates, 14 Cal. 479; People v. Dwinelle, 29 Cal. 632; People v. Burney, 29 Cal. 459; Winter v. Fitzpatrick, 35 Cal. 269; Morley v. Elkins, 37 Cal. 454; People v. Elkins, 40 Cal. 642.) "It is proper to reverse a void judgment by certiorari." (Matter of Bracket, 27 Hun (N. Y.), 605; 4 Ency. of Pl. & Pr. , p. 49, note 2; People ex rel. Whitney v. Board of Delegates etc., 14 Cal. 479; Lowe v. Alexander, 15 Cal. 301; Henshaw v. Board of Supervisors of Butte Co., 19 Cal. 150; Morley v. Elkins, 37 Cal. 454; Central P. R. R. Co. v. Placer Co., 46 Cal. 670; In re Stuttmeister, 71 Cal. 322, 12 P. 271; Schwartz v. Superior Court, 111 Cal. 106, 43 P. 580; City of Los Angeles v. Young, 118 Cal. 295, 62 Am. St. Rep. 234, 50 P. 535; Madison v. Piper, 6 Idaho 137, 53 P. 395; Adleman v. Pierce, 6 Idaho 294, 55 P. 658; Nuckolds v. Lyle, 8 Idaho 589, 70 P. 401; Sweeny et al. v. Mayhew, 6 Idaho 455, 56 P. 85; Ah Fong v. McCalla et al., 7 Idaho 20, 59 P. 930; McNamee v. Steele, 8 Idaho 539, 69 P. 319; Goode v. Steele, 8 Idaho 538, 69 P. 319.) There is no other plain, speedy and adequate remedy by appeal, writ of error, or mandamus. (Ganz v. Steele, 7 Idaho 143, 61 P. 287; Porter v. Steele, 7 Idaho 414, 63 P. 187; Rust et al. v. Stewart, 7 Idaho 558, 64 P. 223; Nordyke & Marmon Co. v. McConkey, 7 Idaho 562, 64 P. 893.) Injunction is not a plain, speedy and adequate remedy, and does not lie to restrain a void judgment. (California P. R. Co. v. Central P. R. Co., 47 Cal. 528; Sanchez v. Carriaga, 31 Cal. 170; State v. Napton, 24 Mont. 450, 62 P. 686; 21 Ency. of Pl. & Pr. 451, 452, and notes; Lewis v. Bishop et al., 19 Wash. 312, 53 P. 166.)

George P. Rhea, for Defendant, files no brief.

SULLIVAN, C. J., AILSHIE, J. Stockslager, Ailshie, JJ., and Sullivan, C. J., Concurring.

OPINION

The facts are stated in the opinion.

SULLIVAN, C. J.

This is an original application for a writ of review to the judge of the district court of the third judicial district of the state of Idaho in and for Washington county. The facts of the case are substantially as follows: The said abstract company is a corporation doing a general abstract business in the said county of Washington; that in the year 1903, the assessor and tax collector of said county assessed, for general taxation purposes, the abstract-books belonging to said company at the valuation of $ 1,000; that thereafter and on or about the eighteenth day of July, 1903, said abstract company, by its officers and stockholders, filed its application with the board of county commissioners of said county, which was then sitting as a board of equalization, to reduce and strike said assessment from the tax-roll of said county, for the reason that said abstract-books composed a private library and that as such they were exempt from taxation under the laws of this state; thereafter said board sitting as a board of equalization ordered said assessment stricken from the assessment-roll for said year, and further ordered that the capital stock of said abstract company be assessed to the individual stockholders at the sum of $ 1,000; thereafter, said stockholders, through the president of said corporation, made application to strike the assessment of said capital stock from the assessment-roll of said county on certain grounds not necessary to state here, which application was denied by the board. Thereafter an appeal was taken from said order to the district court by the stockholders of said corporation, and upon a trial in the district court it was held that said orders of the board of county commissioners sitting as a board of equalization be set aside and held for naught, and that the original assessment of said abstract-books of said Washington County Abstract Company be reinstated as the assessment against said company.

Upon that state of facts said Washington County Abstract Company through its proper officer made the application for a writ of review. In said application and affidavit the said affiant "alleges that it [the said abstract company] was not, and is not, a party to said action in which said judgment was so rendered against it."

It is thus shown that said abstract company, at least in the opinion of the affiant, was not a party to the appeal from the order of said board. If that be true, which we concede for the purpose of this case, under the well-established rule in the Gold Hunter Mining and Smelting Co. v. Holleman, 3 Idaho 99, 27 P. 413, the application for the writ must be denied. In that case it was held that to entitle a petitioner to a writ of review, he must be a party to the suit or controversy. In Starkweather v. Seeley, 45 Barb. 164, it was held that a person not a party to a summary proceeding could not sue out a writ of certiorari to review the proceedings. Said abstract company not having been a party to the proceedings before the district court, on the authority of said cited cases the writ must be denied, and it is so ordered. Costs are awarded to defendants.

Stockslager and Ailshie, JJ., concur.

ON PETITION FOR REHEARING.

(January 12, 1904.)

AILSHIE J.--Plaintiff has filed its petition for a rehearing in this case and accompanied the same with an extended brief reviewing the decisions of this court and those from the courts of California on the question as to when the writ of certiorari will be issued. It is not the practice to consider petitions for rehearing in original proceedings in this court, but owing to the peculiar position taken in this case we have concluded to pass upon this application. The position taken by plaintiff in this petition seems to greatly simplify the matter presented for our consideration. The application for a writ in the first instance, as stated in the original opinion, seems to have been made upon the grounds that the plaintiff was not a party to the proceeding in the district court and the opinion of this court was announced on that theory. It is now contended that although the plaintiff was not a party to the action or proceeding in which the judgment was entered in the trial court, nevertheless "the court, by rendering and entering judgment against it, has made it a party to the matter in controversy." And in closing the brief accompanying this petition for rehearing, counsel says: "In other words, it has never been a party to said action until the district judge, without warrant or authority, arbitrarily rendered a judgment against...