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This amusement is not per se unlawful or 3. QUÆRE. criminal nor is it immoral or dangerous or

Whether the order involved in this case is detrimental to the public health.

It is ap

an appealable order, quære.

4. DEMURRER PROPERLY SUSTAINED. parently a wholesome, innocent outdoor

Held, that the demurrer to the complaint amusement. In order to prohibit such an must be sustained on the ground that the comamusement we ought to find the prohibition plaint does not state a cause of action warrantwithin the statute either in positive termsing the issuance of the writs prayed for. or by clear implication. No such means of Proceedings by Charles Waters against amusement existed in this state at the time Robert N. Dunn for a writ of prohibition of the passage of this act, and if this is to and writ of mandate. Demurrer to the pebe prohibited under the statute it must be tition sustained. by reason of it being “such a place of amuse- Kerns & Ryan, for plaintiff. Chas. L. ment” as some one of those specifically Heitman and Gray & Knight, for defendenumerated. We do not feel that we would ant. be justified in extending the statute to cover this means of amusement, and thereby make SULLIVAN, C. J. This is an original ap. its maintenance and operation a crime. If plication to this court for a writ of probibiwe should do so it would only be a short tion prohibiting the defendant judge from step to include the automobile or street car arresting the operation of an injunction and that is operated on Sunday for the accom- for a writ of mandate commanding him to modation of those who desire a pleasure ride. enforce said writ of injunction or to enter If the Legislature should see fit to close an order dissolving the same. To the petisuch places of amusement as this on Sunday tion or complaint the defendant interposed it may do so, but until that time we think a demurrer on the grounds (1) that the petino serious harm can be done to the morals tion does not state facts sufficient to waror health of the people by permitting aurant the issuance of either of the writs prayamusement like the one in question to keep ed for; (2) that the court had jurisdiction open on Sunday. The chief objection to most of the subject

matter and the parties; that of the public amusements and resorts is not the order made was an exercise of judicial to the amusement feature itself, but to the discretion, and therefore the trial court had habit of the proprietors of such places add- jurisdiction to make said order; and (3) that ing to them immoral, corrupting, or boister- several causes of action are improperly unitous features or attendants until the public ed, to wit, one for a writ of probibition and conscience rebels against them and demands one for a writ of mandate. The matter was a total cessation. That will be the result presented and heard on the complaint and with this amusement if it is not run orderly demurrer. This application arose from the and decently.

following facts: We conclude that a “scenic railway" such An action was brought by the plaintiff in as that described in the record in this case this proceeding, Charles Waters, as plaintiff, does not come within the prohibition of the against the Washington Water Power Co., statute. The petitioner should be discharged, defendant, in the district court of Kootenai and it is so ordered.

county. In that action, Hon. Robert N.

Dunn, judge of the Eighth judical district, SULLIVAN, C. J., concurs.

on December 30, 1909, entered judgment in favor of the plaintiff in the last-mentioned

case, enjoining and restraining said defend(18 Idaho, 450)

ant from flooding and overflowing certain WATERS V. DUNN.

lands of the plaintiff, which flooding was (Supreme Court of Idaho. July 30, 1910.)

by means of obstructions constructed and

maintained by said defendant in the Spokane (Syllabus by the Court.)

River at Spokane Falls in Kootenai county. 1. APPEAL AND ERROR (8 458*)-INJUNCTION It is alleged in the complaint or petition for -SUSPENSION DURING APPEAL. The court may in its sound discretion sus.

said writs of prohibition and mandate, that pend the operation of an injunction during an on the 4th of June, 1910, the said Washingappeal.

ton Water Power Company commenced, and [Ed. Note.-For other cases, see Appeal and at all times since said date, has continued Error, Cent. Dig. $$_2223, 2224; Dec. Dig. 8 to violate said injunction by causing the 458;* Injunction, Cent. Dig. $ 413.]

waters to be held back upon the lands of 2. APPEAL AND ERROR (8 458*)-INJUNCTION, plaintiff; that on June 8, 1910, the plaintiff SUSPENSION DURING APPEAL.

Held that, on an application to enforce an petitioned the defendant in this proceeding, injunction, a court has the authority to deny as such judge, to enforce obedience to said such application and make an order suspend- injunction, and counsel for the water power ing the operation of the injunction pending an

company at the same time moved for a modappeal.

[Ed. Note.-For other cases, see Appeal and ification of said order and judgment of DeError, Cent. Dig. $82223, 2224; Dec. Dig. & cember 30, 1909, which motion was denied, 458;* Injunction, Cent. Dig. § 413.]

and by an order dated June 18, 1910, the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

judge refused to enforce obedience to said | land; that after certain proceedings were injunction and denied said application of taken in that matter, it was held by the plaintiff Waters, and did then and there trial court that said water power company make an order to the effect that said injunc- had not the right or authority to exercise tion should not take effect until after the the right of eminent domain in the condemdetermination by; the Supreme Court of this nation of said land, and judgment was enstate of an åppeal which was then pending tered against said water power company, in said court, wherein said Washington Wa- from which judgment an appeal was taken ter Power Company was plaintiff and the to this court. Thereafter the plaintiff, Wasaid Charles Waters and others were defend- ters, made the application above mentioned ants.

to said court for the enforcement of said It is contended by counsel for petitioner injunctive order, and denied said order and that said order of June 18, 1910, refusing refused to enforce said injunction during to enforce obedience to said injunction, was the pendency of said appeal and made the and is in excess of the jurisdiction of said following order: “Orders that the said apdefendant judge, in that it deprives the plain- plication of the plaintiff for the enforcement tiff of his lawful right of protection for his of the order heretofore, to wit, on the 30th property, and that plaintiff has no appeal day of December, 1909, entered herein, the from said order. It is also contended that operation of which said order had been subit is necessary for the protection of the sequently suspended, be and the same is rights of said plaintiff that said defendant, hereby denied pending the final determinaas such judge, should either enforce said in- tion of the right of the defendant company junction or enter an order dissolving the to condemn for overflow purposes the lands same so as to permit the plaintiff to perfect of the plaintiff, which said condemnation an appeal from the order dissolving said in- suit is now pending in the Supreme Court junction. Said injunctive order was made of the state of Idaho, and entitled The on December 30, 1909, and after a recitation Washington Water Power Company, plainof the facts, the order is as follows: “Now, tiff, and Charles Waters, et al., defendants, therefore, it is hereby ordered that the de- or until the further order of this court. It fendant, the Washington Water Power Com- is further ordered that the defendant the pany, be enjoined and restrained during the Washington Water Power Company pay to pendency of this action from maintaining the clerk of this court within three days that certain mechanical contrivance known from and after the date hereof the sum of as a bear trap on its dam at Post Falls, six hundred dollars, to be retained by the Idabo; that defendant cease and desist from said clerk until final determination and de flooding and overflowing any portion of cision by the Supreme Court of the state of plaintiff's said land, said injunction and re-Idaho of the question of the right of the straining order to take effect on the 1st day said defendant the Washington Water Power of February, 1910, unless said defendant Company to condemn the lands of the deshall in the meantime commence proceedings fendant Charles Waters in said action so in the proper court to condemn the right and pending in the Supreme Court of the state power to flood and overflow the lands of the of Idaho. It is further ordered that in case plaintiff described in the pleadings herein the judgment of this court in said condemnaand prosecute said proceedings diligently in tion case shall be affirmed by the Supreme accordance with the provisions of the stat. Court of the state of Idaho that the said ute in such case made and provided, to wit, sum of six hundred dollars be paid to the sections 5210 to 5229, both inclusive, and defendant Waters in full for all damages to cause three disinterested persons to be ap- his said lands done by the said defendant pointed as commissioners to assess and de- the Washington Water Power Company for termine the damages that said plaintiff may the year 1910 upon presentation to the clerk sustain by reason of the condemnation and of this court of the order of this court diappropriation of the property described in recting such payment, provided said Waters the pleadings herein, and it is further or- will accept the same in full payment and satdered that upon the payment by the defend-isfaction of said damages, and if the said Waant prior to said 1st day of February, 1910, ters shall refuse to accept the said sum of six of the amount of damages, so assessed and hundred dollars in full settlement of all damdetermined by said commissioners, to the ages as aforesaid the said sum of six hun. plaintiff, or if the plaintiff refuse to accept dred dollars shall be returned to the said the same, then after such amount shall be defendant the Washington Water Power deposited with the clerk of the court to abide Company, on demand, and the determination the result of said condemnation action, said of the damages which the said plaintiff shall defendant may enter upon and take posses- have sustained during the year 1910, by sion of and use said property of plaintiff reason of the maintenance of the said dams until the final conclusion of the litigation of the defendant company shall be ascerconcerning the same."

tained in due course of law. It is further It appears that after said order was made ordered that in the event the decision of action was commenced by said water power this court in said condemnation suit shall

state of Idaho that said sum of six hundred In Hovey v. McDonald, supra, the court dollars shall be returned, on demand, to the said: "It was decided that neither a decree defendant in this action, the Washington for an injunction nor a decree dissolving an Water Power Company. Done in open court injunction was suspended in its effect by the this 18th day of June, 1910. [Signed] R. writ of error, though all the requisites for N. Dunn, District Judge. Filed June 18, a supersedeas were complied with. It was 1910." The matter was presented to this not decided that the court below had no pow. court on the complaint and the demurrerer, if the purposes of justice required it, to thereto.

order a continuance of the status quo until It is contended by counsel for the plain- a decision should be made by the appellate tiff that the court had no jurisdiction to court, or until that court should order the make said order of June 18, 1910, and coun- contrary. This power undoubtedly exists, sel asked for a writ of prohibition, prohibit- and should always be exercised when any ing the judge or court from enforcing said irremediable injury may result from the eforder, and in the same petition asks for a fect of the decree as rendered; but it is a writ of mandate to compel the judge or discretionary power, and its exercise or noncourt to enforce said injunctive order of De- exercise is not an appealable matter.” It cember 30, 1909, or to dissolve the same. is there held that the order made by the The question then is: Did the court have trial court in the Hovey-McDonald Case jurisdiction to suspend the operation of said would not be an appealable order under the injunctive judgment pending an appeal to federal practice and statutes. the Supreme Court? We find no express au In 22 Cyc., at page 970, the author says: thority in the statutes granting such juris. "The court may in its discretion suspend the diction; but where the rights of the parties operation of an injunction.

And ought in justice to be preserved in statu quo it is within the discretion of the court to until the issue between them is finally de- stay the operation of the decree pending an termined on appeal, the court has the inher- appeal therefrom until the hearing of the ent power to and may in its sound discre- appeal on the merits" -and cites in support tion suspend the operation of an injunction of that proposition some of the authorities during the appeal. Home Fire Ins. Co. v. above cited. Dutcher et al., 48 Neb. 755, 67 V. W. 766. There is no doubt but that the trial court To the same effect is Hovey v. McDonald, has the power and jurisdiction to suspend 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888; the operation of a judgment during the pendGenet v. Del. & H. Canal Co., 113 N. Y. 472, ency of an appeal, and we think the court 21. N. E. 390; Carson et al. v. Jansen et al., had discretionary power in the case at bar 65 Neb. 423, 91 N. W. 398.

to decline to enforce said injunctive judg. In State ex rel. Burrows v. Superior Court, ment and to suspend its operation pending 43 Wash. 225, 86 Pac. 632, a case somewhat said appeal. In this proceeding, however, similar to the case at bar, the court in the the question whether there was an abuse of course of the opinion said: "If the decree discretion in said matter cannot be reviewis enforced pending the appeal, defendants ed, as the question here is whether the court may be required to suspend a profitable busi- had the power or jurisdiction to commit the ness at great loss. No bond has been giv- error, if one were committed. en by relators, and none can be required in But it is contended by counsel that it is order to place the permanent injunction in necessary to have some proceeding begun beeffect. If the relators are successful on the fore a court or judge before its jurisdiction appeal, there is no security for their loss; can be set in motion, or before it has any while, on the other hand, if defendants are jurisdiction to act, and that, in the matter successful and the judgment of the lower referred to, no application had been made court should be affirmed, their loss may be to suspend the operation of said injunction recovered, because the trial court will make pending the appeal. Counsel made applicaprovision therefor.”

tion for the enforcement of said injunction, In Genet v. Canal Co., supra, referring to and the judge denied said application, but the power of the court to suspend the opera- entered an order suspending the same pendtion of a judgment during an appeal, the ing the appeal. That application was sufcourt said: “It merely suspends the opera- ficient on which to base the order that is tion of the judgment until the appellate court questioned in this action. That was a sufshall pass upon the law. While it may be ficient proceeding to set the jurisdiction of said that the order in some sense interfer- the court in motion to make the order com. ed with the judgment, by postponing its en- plained of. forcement, we think this was within the Counsel for plaintiff asked this court to competency of the special term in the exer- decide whether the order involved in this cise of its equitable jurisdiction. The inci- proceeding is an appealable order. The court dental operation of the order in this way has not been able to arrive at a definite condoes not, we think, work any modification clusion upon that matter. One of the Justices in the judgment, in the sense which pre is clearly of the opinion that it is an appealcludes the jurisdiction exercised by the speable order; the other entertains grave doubts cial term."

as to whether it is or not; and the third

member of the court did not sit at the hear- | that effect, from which order, as well as from ing.

the judgment, an appeal was taken. A cash The demurrer to the petition must be sus bond of $300 was given on said appeal. The tained and it is so ordered, and the writs judgment provided for the appointing of a prayed for are denied. Costs of this proceed- receiver, canceling said conveyance and granting are awarded to the defendants.

ing other relief. The judgment, among oth

er things, provides as follows: “And it is AILSHIE, J., concurs.

further ordered, adjudged, and decreed that

a receiver be appointed for the Kidd Island (18 Idaho, 458)

Lumber Company, a corporation, to take MORBECK et al. v. BRADFORD-KENNEDY charge of all of its assets and property, real, CO. et al.

personal and mixed, and to manage and con(Supreme Court of Idaho. Aug. 1, 1910.) trol all of the assets and property, real, per

sonal or mixed, of the Kidd Island Lumber (Syllabus by thc Court.)

Co., a corporation, under the direction of and APPEAL AND ERROR (8 448*)-APPOINTMENT OF RECEIVER-CONTINUANCE OF RECEIVER- until the further order of this court herein." SHIP PENDING APPEAL.

It appears from the transcript on the apWhere a judgment was entered holding peal that the property involved includes concertain sales and transfers of personal and other siderable real estate, over 2,000,000 feet of property fraudulent and void, and a receiver was appointed to take charge of such property, lumber, sawmill, and much other personal and an appeal was taken by the defendants, property. The appellant on said appeal gave and an undertaking on appeal in the sum of a cash bond for $300 and now contends under $300 was filed, the court has the jurisdiction and power to continue the receivership for the the provisions of section 4817 of the Revised preservation of such property pending the ap- Codes of Idaho that said judgment is superpeal.

seded and all proceedings are stayed and (Ed. Note.-For other cases, see Appeal and that appellant is entitled to have possession Error, Dec. Dig. $ 448.*]

of said sawmill plant, lumber and other propApplication by Arthur C. Morbeck and otherty claimed to have been purchased by it ers against the Bradford-Kennedy Company from the said Kid Island Lumber Company, and others for a supersedeas. Application to manage and control, pending the appeal. denied.

Said section 4817 is as follows: “In cases McBee & LaVeine and Wm. T. Stoll, for not provided for in sections 4810, 4811, 4812 applicants. Robert H. Elder, J. L. McClear, and 4813, the perfecting of an appeal by givand R. E. McFarland, for respondents. ing the undertaking, or making the deposit

mentioned in section 4809, stays proceedings SULLIVAN, C. J. This is an application in the court below, upon the judgment or the to this court for an order declaring that the order appealed from, except where it directs judgment and order appealed from in the the sale of perishable property; in which above-entitled case were superseded by the case the court below may order the property taking of an appeal, and giving a bond on to be sold and the proceeds thereof to be deappeal in the sum of $300. The action was posited, to abide the judgment of the appelbrought by respondents as minority stockhold- late court; and except, also, where it aders of the Kidd Island Lumber Company to judges the defendant guilty of usurping or procure the appointment of a receiver for the intruding into, or unlawfully holding, a pubappellant, the Kidd Island Lumber Co., up-lic office, civil or military, within this state; on the ground that its affairs are being mis- and except, also, where the order grants, or managed, and to cancel a conveyance of a refuses to grant, a change of the place of large amount of timber land from said lum- trial of an action.” ber company to the appellant, the Bradford- The court by its judgment found that the Kennedy Company, upon the ground that the sale and travsfer of said property by the sale was made without any consideration Kidd Island Lumber Company to the Bradtherefor, and was fraudulent and void. ford-Kennedy Company was fraudulent and

It appears from the record that summons void, and now it is contended that the Bradwas served on the Kidd Island Lumber Com-ford-Kennedy Company is entitled to the pospany, the Bradford-Kennedy Company and session of all of said property pending the J. N. Ashburn, on the 26th of March, 1910. appeal upon giving a bond of $300. AppliThe other defendants were not served and cation was made to the trial court for an ordid not appear. It also appears that default der directing the receiver to relinquish poswas entered against the appellants, and find session of all of said property to the appelings of fact and conclusions of law and a de lants, which application was denied. The cree granting all the relief prayed for were trial court evidently concluded that it would made and entered. Appellants thereafter on endanger the interests of respondents to turn the 18th of May made a motion to vacate all of said property to the appellants pending and set aside the default and judgment on the appeal, on the giving of a $300 bond ; certain specific grounds. The motion was that it was imperatively necessary to the heard and overruled, and an order entered to preservation of said property in statu quo,

(18 Idaho, 335) and that the receiver's functions should not

NADEL V. CAMPBELL. be suspended, especially so far as the preser

(Supreme Court of Idaho. June 17, 1910.) vation of said property pending the appeal was concerned.

(Syllabus by the Court.) Section 949 of the Code of Civil Procedure 1. EVIDENCE (8 348*) – DOCUMENTARY Evi. of California was substantially the same as


OF CERTIFICATION. said section 4817 of our Revised Codes. In

Held, under the facts of this case, that a the Matter of Real Estate Associates, 58 Cal. foreign judgment has been certified in substan356, where it was contended that all actions tial conformity with the requirements of secin or under insolvency proceedings were stay-of the Revised Statutes of the United States

tions 5980, 5981, Rev. Codes, and section 905 ed by the appeal and therefore the receiver (U. S. Comp. St. 1901, p. 677), and was entitled bad no right to prosecute any suit as such to be admitted in evidence. receiver, and that the giving of a $300 appeal (Ed. Note. For other cases, see Evidence, bond stayed all proceedings pending the ap- Dec. Dig. § 348.* ] peal, the court decided against that conten- 2. JUSTICES OF THE PEACE (8 54*)–JURISDICtion and held that the functions of the re

TION-LOSS BY CONTINUANCE. ceiver were not suspended during the appeal. served on the defendant, and June 12th was

Where a summons was duly and regularly The Legislature of California has since the named therein as the return date, and the dedate of said decision amended section 943, fendant failed to appear on the date fixed in Code Civ. Proc., so as to provide for the sus

the summons for the trial, and his default was

thereupon entered and no further action was pension of an order appointing a receiver, taken in the case until December 14th followpending an appeal, by giving a proper under-ing, upon which latter date evidence was intaking on appeal. However, we have no such troduced and judgment was rendered and enter

ed against the defendant, held, that the error provision in our statutes. We think the rule committed in continuing the case from June to laid down in the above-cited case is applica- December was not jurisdictional, and did not ble to the case here and that the court did oust the justice of jurisdiction to hear the not err in holding that the giving of said proofs and render and enter judgment. $300 bond did not suspend or supersede the the Peace, Dec. Dig. § 54.*]

(Ed. Note. For other cases, see Justices of appointment of a receiver. From the record 3. JUSTICES OF THE Peace (8 54*)—JURISDICin the case it clearly appears that it is nec TION-LOSS BY CONTINUANCE. essary that the property should be preserved Sections 4701-4704, Rev. Codes, of this in statu quo as nearly as may be pending the state prescribe the duties of justices of the appeal, in order to protect the interests of the in the granting of continuances; and while it

peace, and provide the practice to be pursued parties.

would be error to grant a continuance different In Oharles Waters . Robert N. Dunn, from or in any other manner than provided Judge, 110 Pac. 258, just decided by this by these provisions of the statute, such error court, in discussing the question whether the upon the judgment, and is not jurisdictional

must be corrected by appeal or direct attack trial court had jurisdiction to suspend the and does not devest the justice of jurisdiction operation of an injunctive judgment pending to proceed further in the case. an appeal to the Supreme Court, it was said:

[Ed. Note.--For other cases, see Justices of "We find no express authority in the statutes the Peace, Dec. Dig. $ 54.*] granting such jurisdiction; but where the

Appeal from District Court, Blaine County; rights of the parties ought in justice to be Edward A. Walters, Judge. preserved in statu quo until the issue be Action by Martin Nadel against Neil Camptween them is finally determined on appeal, bell. Judgment for plaintiff, and defendant the court has the inherent power to and may appeals. Affirmed. in its sound discretion suspend the operation

R. F. Buller, for appellant. T. Bailey Lee, of an injunction during the appeal”—and in

for respondent. support of that proposition certain authorities are there cited. See, also, 17 Enc. P. & P., p. 872.

AILSHIE, J. This action was instituted We think that the court has the inherent in Blaine county to recover a judgment on power to preserve the property in litigation a judgment that had been rendered on the pending an appeal, and, if necessity requires it, 14th day of December, 1901, in the justice's may place the same in the hands of a receivo court of Salt Lake county, Utah, for the sum er for that purpose.

of $226.80 and costs. Judgment was entered The trial court no doubt will see that the for the plaintiff, and the defendant has approperty is preserved by the receiver; there pealed. Two questions have been presented fore the motion of appellant in this court ask- by this appeal, first, the sufficiency of the ing for an order declaring that the judgment certification of the original judgment entered and order appealed from was superseded by in Utah, and, second, the jurisdiction of the the taking of said appeal must be denied, and justice to enter the Utah judgment. it is so ordered. Costs in this court are

As to the first question the record shows awarded to the respondents.

that the transcript of the judgment was cer

tified by J. B. Moreton, as clerk of the city AILSHIE, J., concurs.

court of Salt Lake City. This in turn is •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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