White v. Young, No. 9611

CourtIdaho Supreme Court
Writing for the CourtSMITH; KNUDSON
Citation88 Idaho 188,397 P.2d 756
PartiesWilliam W. WHITE, Plaintiff, v. Merlin S. YOUNG, Judge of the District Court of the Third Judicial District for the State of Idaho in and for the County of Boise, Defendant.
Decision Date23 December 1964
Docket NumberNo. 9611

Page 756

397 P.2d 756
88 Idaho 188
William W. WHITE, Plaintiff,
v.
Merlin S. YOUNG, Judge of the District Court of the Third Judicial District for the State of Idaho in and for the County of Boise, Defendant.
No. 9611.
Supreme Court of Idaho.
Dec. 23, 1964.

[88 Idaho 189] Elam, Burke, Jeppesen & Evans, Boise, for plaintiff.

Ariel L. Crowley, Idaho City, for defendant.

SMITH, Justice.

This proceeding presents the issue whether plaintiff William W. White or Ariel L. Crowley is the probate judge of Boise County for the period from the date of the general election, November 3, 1964, to the second Monday of January 1965.

[88 Idaho 190] The proceeding in effect is both for review (certiorari) and for writ of mandate. In form it is for a writ of mandate to compel defendant, district judge, to vacate an order issued by him directing William W. White to surrender the books and papers of the office of probate judge of Boise County, Idaho, to Ariel L. Crowley, and a subsequent order placing those records in the custody of the county recorder of said county.

Plaintiff ever since June 17, 1963, has served continuously in the official capacity as probate judge of Boise County, by virtue of his appointment by the board of county commissioners of that county, to

Page 757

fill a vacancy in that office created by the resignation of the then duly elected and qualified probate judge. That appointment is evidenced by the minutes of the board of county commissioners.

Mr. Crowley was duly elected to that office at the general election held November 3, 1964, as shown by the canvass of the votes had on November 9, 1964. Upon receipt of certificate of election he took and filed the oath of office; also furnished and filed the requisite bond, and claimed that he was entitled to the records pertaining to the office, which Mr. White refused to surrender. On November 12, 1964, Mr. Crowley, as plaintiff, commenced an action in the district court to compel delivery to him, as the alleged incumbent, of the records of said office. I.C. § 59-1002. The district judge, after hearing the cause, determined that Mr. Crowley was entitled to the records of said office and ordered Mr. White to surrender the same forthwith. On the same date of the order, Mr. White, as the defendant, filed a notice of appeal, but as appeared from the oral argument, the court denied supersedeas to White in stay of the order pending appeal; and while the court stayed such order for ten days, it ordered the probate court records to be turned over to the custody and possession of the county recorder of Boise County.

The issue of the title to the office of probate judge was not raised in that action, and no determination was made whether Mr. White or Mr. Crowley was the probate judge of the county for the balance of the term from the time of the November 1964 election to the second Monday of January, 1965. Suffice it to say that since it was determined that Mr. Crowley was entitled to the records of the probate court, it logically follows that such ruling was grounded upon Mr. Crowley's incumbency of that office.

November 23, 1964, Mr. White petitioned this Court to assume original jurisdiction for the issuance of a writ of mandate directing defendant district judge to order the return of the records of said probate court to White, and to show cause why the writ should not be made permanent. An alternative[88 Idaho 191] writ issued, to which defendant made return.

Defendant argued that Crowley was entitled to the records of that office, having been elected at the November 1964 general election, to fill the balance of the term of probate judge from the date of the general election to the second Monday of January, 1965, as well as thereafter to occupy that office for the ensuing two-year term.

Defendant contends that this Court lacks jurisdiction to rule upon the issues herein presented, urging several defenses, inter alia, that mandate may be sought only to compel the performance of a ministerial duty, and not a judicial duty as herein appears to be sought; that the determination in the district court was of both law and fact, and that, therefore, plaintiff's remedy is by appeal rather than by mandate to compel defendant judge to act; that this Court should not readjudicate the controversy, brought under the provisions of I.C. § 59-1002, inasmuch as the district court has adjudicated it; and that error, if committed, can be corrected only by appeal; that the district court action, in effect, determined that Crowley was entitled to the office of probate judge by determining that he was entitled to the records of the office, and that any redertermination of that issue in the present proceeding would constitute a collateral attack upon the judgment of the district judge, whereas the interested parties are Mr. White and Mr. Crowley, and that plaintiff's petition for writ of mandate has 'failed to state facts sufficient to justify the writ of mandate.'

Plaintiff's pleadings, being his verified petition and supporting affidavit, in effect allege that the other of defendant judge unlawfully deprives plaintiff, as probate judge, of the records, files and documents of the probate court of Boise County, being the court over which he lawfully presides, and that plaintiff has been unlawfully deprived of the right to carry out the duties of the office of probate judge. The context of

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plaintiff's pleadings is to the effect that defendant district judge and the district court, in entering the order, acted in excess of, and beyond the jurisdiction of, said court. Plaintiff additionally seeks an order of this Court restoring him to possession of the office and its records.

Appellant's pleadings being verified and supported by affidavit conform to the requirements of both an application for writ of review I.C. § 7-203, and writ of mandate I.C. §§ 7-302 and 7-303.

I.C. § 7-202, relating to the granting of the writ of review, reads:

'A writ of review may be granted by...

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6 practice notes
  • State v. Armstrong, No. 33868.
    • United States
    • Court of Appeals of Idaho
    • August 15, 2008
    ...v. Miller, 144 Idaho 142, 145, 158 P.3d 305, 308 (2007); Sierra Life Ins. Co., 99 Idaho at 628-29, 586 P.2d at 1072-73; White v. Young, 88 Idaho 188, 192-93, 397 P.2d 756, 758 (1964); Rich v. Williams, 81 Idaho 311, 327, 341 P.2d 432, 441 (1959); Boughton v. Price, 70 Idaho 243, 249, 215 P.......
  • Muench v. Paine, No. 139
    • United States
    • United States State Supreme Court of Idaho
    • January 16, 1970
    ...deemed essential in the interests of the welfare of this state. See Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959); White v. Young, 88 Idaho 188, 397 P.2d 756 (1964). It is the conclusion of the court that the petition for a writ of prohibition is the proper procedure for challenging t......
  • Sierra Life Ins. Co. v. Granata, No. 13007
    • United States
    • United States State Supreme Court of Idaho
    • November 22, 1978
    ...the trial.' That basic definition of the concept of subject-matter has been followed and applied in the later cases of White v. Young, 88 Idaho 188, 397 P.2d 756 (1964); Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959); Boughton v. Price, 70 Idaho 243, 215 P.2d [99 Idaho 629] Page 1073 2......
  • City of Huetter v. Keene, No. 35470-2008.
    • United States
    • United States State Supreme Court of Idaho
    • November 24, 2010
    ...usually means taking the oath of office. In some cases, it may also mean doing something else, such as posting a bond. In White v. Young, 88 Idaho 188, 397 P.2d 756 (1964), we stated what it means to "qualify." Crowley was elected as a probate judge on November 3, 1964, and on November 9th ......
  • Request a trial to view additional results
6 cases
  • State v. Armstrong, No. 33868.
    • United States
    • Court of Appeals of Idaho
    • August 15, 2008
    ...v. Miller, 144 Idaho 142, 145, 158 P.3d 305, 308 (2007); Sierra Life Ins. Co., 99 Idaho at 628-29, 586 P.2d at 1072-73; White v. Young, 88 Idaho 188, 192-93, 397 P.2d 756, 758 (1964); Rich v. Williams, 81 Idaho 311, 327, 341 P.2d 432, 441 (1959); Boughton v. Price, 70 Idaho 243, 249, 215 P.......
  • Muench v. Paine, No. 139
    • United States
    • United States State Supreme Court of Idaho
    • January 16, 1970
    ...deemed essential in the interests of the welfare of this state. See Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959); White v. Young, 88 Idaho 188, 397 P.2d 756 (1964). It is the conclusion of the court that the petition for a writ of prohibition is the proper procedure for challenging t......
  • Sierra Life Ins. Co. v. Granata, No. 13007
    • United States
    • United States State Supreme Court of Idaho
    • November 22, 1978
    ...the trial.' That basic definition of the concept of subject-matter has been followed and applied in the later cases of White v. Young, 88 Idaho 188, 397 P.2d 756 (1964); Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959); Boughton v. Price, 70 Idaho 243, 215 P.2d [99 Idaho 629] Page 1073 2......
  • City of Huetter v. Keene, No. 35470-2008.
    • United States
    • United States State Supreme Court of Idaho
    • November 24, 2010
    ...usually means taking the oath of office. In some cases, it may also mean doing something else, such as posting a bond. In White v. Young, 88 Idaho 188, 397 P.2d 756 (1964), we stated what it means to "qualify." Crowley was elected as a probate judge on November 3, 1964, and on November 9th ......
  • Request a trial to view additional results

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