Whether the order involved in this case is an appealable order, quære. 4. DEMURRER PROPERLY SUSTAINED. Held, that the demurrer to the complaint must be sustained on the ground that the complaint does not state a cause of action warranting the issuance of the writs prayed for. Proceedings by Charles Waters against Robert N. Dunn for a writ of prohibition and writ of mandate. Demurrer to the petition sustained. Kerns & Ryan, for plaintiff. Chas. L. Heitman and Gray & Knight, for defendant. This amusement is not per se unlawful or 13. QUÆRE. criminal nor is it immoral or dangerous or detrimental to the public health. It is apparently a wholesome, innocent outdoor amusement. In order to prohibit such an amusement we ought to find the prohibition within the statute either in positive terms or by clear implication. No such means of amusement existed in this state at the time of the passage of this act, and if this is to be prohibited under the statute it must be by reason of it being "such a place of amusement" as some one of those specifically enumerated. We do not feel that we would be justified in extending the statute to cover this means of amusement, and thereby make its maintenance and operation a crime. If we should do so it would only be a short step to include the automobile or street car that is operated on Sunday for the accommodation of those who desire a pleasure ride. If the Legislature should see fit to close such places of amusement as this on Sunday it may do so, but until that time we think no serious harm can be done to the morals or health of the people by permitting an amusement like the one in question to keep open on Sunday. The chief objection to most of the public amusements and resorts is not to the amusement feature itself, but to the habit of the proprietors of such places adding to them immoral, corrupting, or boisterous features or attendants until the public conscience rebels against them and demands a total cessation. That will be the result with this amusement if it is not run orderly and decently. We conclude that a "scenic railway" such as that described in the record in this case does not come within the prohibition of the statute. The petitioner should be discharged, and it is so ordered. SULLIVAN, C. J., concurs. (18 Idaho, 450) WATERS v. DUNN. (Supreme Court of Idaho. July 30, 1910.) (Syllabus by the Court.) 1. APPEAL AND ERROR (8 458*)-INJUNCTION -SUSPENSION DURING APPEAL. The court may in its sound discretion suspend the operation of an injunction during an appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2223, 2224; Dec. Dig. 8 458; Injunction, Cent. Dig. § 413.] 2. APPEAL AND ERROR (§ 458*)-INJUNCTION SUSPENSION DURING APPEAL. Held that, on an application to enforce an injunction, a court has the authority to deny such application and make an order suspending the operation of the injunction pending an appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2223, 2224; Dec. Dig. g 458;* Injunction, Cent. Dig. § 413.] SULLIVAN, C. J. This is an original application to this court for a writ of prohibition prohibiting the defendant judge from arresting the operation of an injunction and for a writ of mandate commanding him to enforce said writ of injunction or to enter an order dissolving the same. To the petition or complaint the defendant interposed a demurrer on the grounds (1) that the petition does not state facts sufficient to warrant the issuance of either of the writs prayed for; (2) that the court had jurisdiction of the subject-matter and the parties; that the order made was an exercise of judicial discretion, and therefore the trial court had jurisdiction to make said order; and (3) that several causes of action are improperly united, to wit, one for a writ of prohibition and one for a writ of mandate. The matter was presented and heard on the complaint and demurrer. This application arose from the following facts: An action was brought by the plaintiff in this proceeding, Charles Waters, as plaintiff, against the Washington Water Power Co., defendant, in the district court of Kootenai county. In that action, Hon. Robert N. Dunn, judge of the Eighth judical district, on December 30, 1909, entered judgment in favor of the plaintiff in the last-mentioned case, enjoining and restraining said defendant from flooding and overflowing certain lands of the plaintiff, which flooding was by means of obstructions constructed and maintained by said defendant in the Spokane River at Spokane Falls in Kootenai county. It is alleged in the complaint or petition for said writs of prohibition and mandate, that on the 4th of June, 1910, the said Washington Water Power Company commenced, and at all times since said date, has continued to violate said injunction by causing the waters to be held back upon the lands of plaintiff; that on June 8, 1910, the plaintiff petitioned the defendant in this proceeding, as such judge, to enforce obedience to said injunction, and counsel for the water power company at the same time moved for a modification of said order and judgment of December 30, 1909, which motion was denied, 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 appeal 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. İt fendant, the Washington Water Power Company, be enjoined and restrained during the pendency of this action from maintaining that certain mechanical contrivance known as a bear trap on its dam at Post Falls, Idaho; that defendant cease and desist from flooding and overflowing any portion of plaintiff's said land, said injunction and restraining order to take effect on the 1st day of February, 1910, unless said defendant shall in the meantime commence proceedings in the proper court to condemn the right and power to flood and overflow the lands of the plaintiff described in the pleadings herein and prosecute said proceedings diligently in accordance with the provisions of the statute in such case made and provided, to wit, sections 5210 to 5229, both inclusive, and cause three disinterested persons to be appointed as commissioners to assess and determine the damages that said plaintiff may sustain by reason of the condemnation and appropriation of the property described in the pleadings herein, and it is further or dered that upon the payment by the defendant prior to said 1st day of February, 1910, of the amount of damages, so assessed and determined by said commissioners, to the plaintiff, or if the plaintiff refuse to accept the same, then after such amount shall be deposited with the clerk of the court to abide the result of said condemnation action, said defendant may enter upon and take possession of and use said property of plaintiff until the final conclusion of the litigation concerning the same." is further ordered that the defendant the Washington Water Power Company pay to the clerk of this court within three days from and after the date hereof the sum of six hundred dollars, to be retained by the said clerk until final determination and decision by the Supreme Court of the state of Idaho of the question of the right of the said defendant the Washington Water Power Company to condemn the lands of the defendant Charles Waters in said action so pending in the Supreme Court of the state of Idaho. It is further ordered that in case the judgment of this court in said condemnation case shall be affirmed by the Supreme Court of the state of Idaho that the said sum of six hundred dollars be paid to the defendant Waters in full for all damages to his said lands done by the said defendant the Washington Water Power Company for the year 1910 upon presentation to the clerk of this court of the order of this court directing such payment, provided said Waters will accept the same in full payment and satisfaction of said damages, and if the said Waters shall refuse to accept the said sum of six hundred dollars in full settlement of all damages as aforesaid the said sum of six hun dred dollars shall be returned to the said defendant the Washington Water Power Company, on demand, and the determination of the damages which the said plaintiff shall have sustained during the year 1910, by reason of the maintenance of the said dams of the defendant company shall be ascertained 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 dollars shall be returned, on demand, to the defendant in this action, the Washington Water Power Company. Done in open court this 18th day of June, 1910. [Signed] R. N. Dunn, District Judge. Filed June 18, 1910." The matter was presented to this court on the complaint and the demurrer thereto. It is contended by counsel for the plaintiff that the court had no jurisdiction to make said order of June 18, 1910, and counsel asked for a writ of prohibition, prohibiting the judge or court from enforcing said order, and in the same petition asks for a writ of mandate to compel the judge or court to enforce said injunctive order of December 30, 1909, or to dissolve the same. The question then is: Did the court have jurisdiction to suspend the operation of said injunctive judgment pending an appeal to the Supreme Court? We find no express authority in the statutes granting such jurisdiction; but where the rights of the parties ought in justice to be preserved in statu quo until the issue between them is finally determined on appeal, the court has the inherent power to and may in its sound discretion suspend the operation of an injunction during the appeal. Home Fire Ins. Co. v. Dutcher et al., 48 Neb. 755, 67 N. W. 766. To the same effect is Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888; Genet v. Del. & H. Canal Co., 113 N. Y. 472, 21 N. E. 390; Carson et al. v. Jansen et al., 65 Neb. 423, 91 N. W. 398. In State ex rel. Burrows v. Superior Court, 43 Wash. 225, 86 Pac. 632, a case somewhat similar to the case at bar, the court in the course of the opinion said: "If the decree is enforced pending the appeal, defendants may be required to suspend a profitable business at great loss. No bond has been given by relators, and none can be required in order to place the permanent injunction in effect. If the relators are successful on the appeal, there is no security for their loss; while, on the other hand, if defendants are successful and the judgment of the lower court should be affirmed, their loss may be recovered, because the trial court will make provision therefor." In Genet v. Canal Co., supra, referring to the power of the court to suspend the operation of a judgment during an appeal, the court said: "It merely suspends the operation of the judgment until the appellate court shall pass upon the law. While it may be said that the order in some sense interfered with the judgment, by postponing its enforcement, we think this was within the competency of the special term in the exercise of its equitable jurisdiction. The incidental operation of the order in this way does not, we think, work any modification in the judgment, in the sense which precludes the jurisdiction exercised by the special term." In Hovey v. McDonald, supra, the court said: "It was decided that neither a decree for an injunction nor a decree dissolving an injunction was suspended in its effect by the writ of error, though all the requisites for a supersedeas were complied with. It was not decided that the court below had no power, if the purposes of justice required it, to order a continuance of the status quo until a decision should be made by the appellate court, or until that court should order the contrary. This power undoubtedly exists, and should always be exercised when any irremediable injury may result from the effect of the decree as rendered; but it is a discretionary power, and its exercise or nonexercise is not an appealable matter." It is there held that the order made by the trial court in the Hovey-McDonald Case would not be an appealable order under the federal practice and statutes. In 22 Cyc., at page 970, the author says: "The court may in its discretion suspend the operation of an injunction. And it is within the discretion of the court to stay the operation of the decree pending an appeal therefrom until the hearing of the appeal on the merits"-and cites in support of that proposition some of the authorities above cited. There is no doubt but that the trial court has the power and jurisdiction to suspend | the operation of a judgment during the pendency of an appeal, and we think the court had discretionary power in the case at bar to decline to enforce said injunctive judgment and to suspend its operation pending said appeal. In this proceeding, however, the question whether there was an abuse of discretion in said matter cannot be reviewed, as the question here is whether the court had the power or jurisdiction to commit the error, if one were committed. But it is contended by counsel that it is necessary to have some proceeding begun before a court or judge before its jurisdiction can be set in motion, or before it has any jurisdiction to act, and that, in the matter referred to, no application had been made to suspend the operation of said injunction pending the appeal. Counsel made application for the enforcement of said injunction, and the judge denied said application, but entered an order suspending the same pending the appeal. That application was sufficient on which to base the order that is questioned in this action. That was a sufficient proceeding to set the jurisdiction of the court in motion to make the order complained of. Counsel for plaintiff asked this court to decide whether the order involved in this proceeding is an appealable order. The court has not been able to arrive at a definite conclusion upon that matter. One of the Justices is clearly of the opinion that it is an appealable order; the other entertains grave doubts as to whether it is or not; and the third member of the court did not sit at the hear- I 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. AILSHIE, J., concurs. (18 Idaho, 458) MORBECK et al. v. BRADFORD-KENNEDY (Supreme Court of Idaho. Aug. 1, 1910.) (Syllabus by the Court.) ing other relief. The judgment, among other things, provides as follows: "And it is further ordered, adjudged, and decreed that a receiver be appointed for the Kidd Island Lumber Company, a corporation, to take charge of all of its assets and property, real, personal and mixed, and to manage and control all of the assets and property, real, personal or mixed, of the Kidd Island Lumber Co., a corporation, under the direction of and until the further order of this court herein." 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 property fraudulent and void, and a receiver siderable real estate, over 2,000,000 feet of 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 $300 was filed, the court has the jurisdiction and power to continue the receivership for the preservation of such property pending the appeal. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 448.*] a cash bond for $300 and now contends under the provisions of section 4817 of the Revised Codes of Idaho that said judgment is superseded and all proceedings are stayed and that appellant is entitled to have possession of said sawmill plant, lumber and other propApplication by Arthur C. Morbeck and oth-erty claimed to have been purchased by it ers against the Bradford-Kennedy Company from the said Kidd Island Lumber Company, and others for a supersedeas. Application to manage and control, pending the appeal. denied. McBee & LaVeine and Wm. T. Stoll, for applicants. Robert H. Elder, J. L. McClear, and R. E. McFarland, for respondents. Said section 4817 is as follows: "In cases not provided for in sections 4810, 4811, 4812 and 4813, the perfecting of an appeal by giving the undertaking, or making the deposit mentioned in section 4809, stays proceedings in the court below, upon the judgment or the order appealed from, except where it directs the sale of perishable property; in which case the court below may order the property to be sold and the proceeds thereof to be deposited, to abide the judgment of the appellate court; and except, also, where it adjudges the defendant guilty of usurping or intruding into, or unlawfully holding, a pub SULLIVAN, C. J. This is an application to this court for an order declaring that the judgment and order appealed from in the above-entitled case were superseded by the taking of an appeal, and giving a bond on appeal in the sum of $300. The action was brought by respondents as minority stockholders of the Kidd Island Lumber Company to procure the appointment of a receiver for the appellant, the Kidd Island Lumber Co., up-lic office, civil or military, within this state; on the ground that its affairs are being mismanaged, and to cancel a conveyance of a large amount of timber land from said lumber company to the appellant, the BradfordKennedy Company, upon the ground that the sale was made without any consideration therefor, and was fraudulent and void. and except, also, where the order grants, or refuses to grant, a change of the place of trial of an action." The court by its judgment found that the sale and transfer of said property by the Kidd Island Lumber Company to the Bradford-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, and that the receiver's functions should not be suspended, especially so far as the preservation of said property pending the appeal was concerned. Section 949 of the Code of Civil Procedure of California was substantially the same as said section 4817 of our Revised Codes. In the Matter of Real Estate Associates, 58 Cal. 356, where it was contended that all actions in or under insolvency proceedings were stayed by the appeal and therefore the receiver had no right to prosecute any suit as such receiver, and that the giving of a $300 appeal bond stayed all proceedings pending the appeal, the court decided against that contention and held that the functions of the receiver were not suspended during the appeal. The Legislature of California has since the date of said decision amended section 943, Code Civ. Proc., so as to provide for the suspension of an order appointing a receiver, pending an appeal, by giving a proper undertaking on appeal. However, we have no such provision in our statutes. We think the rule laid down in the above-cited case is applicable to the case here and that the court did not err in holding that the giving of said $300 bond did not suspend or supersede the appointment of a receiver. From the record in the case it clearly appears that it is necessary that the property should be preserved in statu quo as nearly as may be pending the appeal, in order to protect the interests of the parties. In Charles Waters v. Robert N. Dunn, Judge, 110 Pac. 258, just decided by this court, in discussing the question whether the trial court had jurisdiction to suspend the operation of an injunctive judgment pending an appeal to the Supreme Court, it was said: "We find no express authority in the statutes granting such jurisdiction; but where the rights of the parties ought in justice to be preserved in statu quo until the issue between them is finally determined on appeal, the court has the inherent power to and may in its sound discretion suspend the operation of an injunction during the appeal"-and in support of that proposition certain authorities are there cited. See, also, 17 Enc. P. & P., p. 872. We think that the court has the inherent power to preserve the property in litigation pending an appeal, and, if necessity requires it, may place the same in the hands of a receiver for that purpose. The trial court no doubt will see that the property is preserved by the receiver; therefore the motion of appellant in this court asking for an order declaring that the judgment and order appealed from was superseded by the taking of said appeal must be denied, and it is so ordered. Costs in this court are awarded to the respondents. AILSHIE, J., concurs. (18 Idaho, 335) NADEL V. CAMPBELL. (Supreme Court of Idaho. June 17, 1910.) (Syllabus by the Court.) 1. EVIDENCE (§ 348*) - DOCUMENTARY EVIDENCE FOREIGN JUDGMENT SUFFICIENCY OF CERTIFICATION. Held, under the facts of this case, that a foreign judgment has been certified in substantial conformity with the requirements of secof the Revised Statutes of the United States tions 5980, 5981, Rev. Codes, and section 905 (U. S. Comp. St. 1901. p. 677), and was entitled to be admitted in evidence. [Ed. Note. For other cases, see Evidence, Dec. Dig. 348.*] 2. JUSTICES OF THE PEACE (§ 54*)—JURISDICTION-LOSS BY CONTINUANCE. Where a summons was duly and regularly served on the defendant, and June 12th was named therein as the return date, and the defendant failed to appear on the date fixed in the summons for the trial, and his default was thereupon entered and no further action was taken in the case until December 14th following, upon which latter date evidence was introduced and judgment was rendered and entered against the defendant, held, that the error committed in continuing the case from June to December was not jurisdictional, and did not oust the justice of jurisdiction to hear the proofs and render and enter judgment. [Ed. Note.-For other cases, see Justices of the Peace, Dec. Dig. § 54.*] 3. JUSTICES OF THE PEACE (8 54*)-JURISDIC TION-LOSS BY CONTINUANCE. Sections 4701-4704, Rev. Codes, of this state prescribe the duties of justices of the peace, and provide the practice to be pursued in the granting of continuances; and while it would be error to grant a continuance different from or in any other manner than provided by these provisions of the statute, such error must be corrected by appeal or direct attack upon the judgment, and is not jurisdictional and does not devest the justice of jurisdiction to proceed further in the case. [Ed. Note.-For other cases, see Justices of the Peace, Dec. Dig. § 54.*] Appeal from District Court, Blaine County; Edward A. Walters, Judge. Action by Martin Nadel against Neil Campbell. Judgment for plaintiff, and defendant appeals. Affirmed. R. F. Buller, for appellant. T. Bailey Lee, for respondent. AILSHIE, J. This action was instituted in Blaine county to recover a judgment on a judgment that had been rendered on the 14th day of December, 1901, in the justice's court of Salt Lake county, Utah, for the sum of $226.80 and costs. Judgment was entered for the plaintiff, and the defendant has appealed. Two questions have been presented by this appeal, first, the sufficiency of the certification of the original judgment entered in Utah, and, second, the jurisdiction of the justice to enter the Utah judgment. As to the first question the record shows that the transcript of the judgment was certified by J. B. Moreton, as clerk of the city 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 |
