| Idaho | Jan 15, 1866
delivered tbe opinion of tbe court,
This action was brought to compel tbe defendant by mandamus to perform an official act which plaintiff alleges be bad failed and neglected to do. Tbe case was determined by tbe district court of tbe first judicial district, in favor of tbe plaintiff, and tbe judge thereafter, upon bis own motion, ordered bis clerk to transmit tbe papers and record to this court.
Tbe plaintiff Beacby, and one H. B. Lane, who claims to
This motion must be denied. The case is not in this court at the instance of the parties, and while the court would, on an intimation that the merits of the case were no longer in issue, probably dismiss it, the parties have not, as in other cases brought here on their own motion, the right to have it dismissed. But the objection to the motion is conclusive in another point of issue.
Mr. Lane, even if he were the successor in office of Mr. Lamkin, would not be a proper party to this record. The proceeding was against Lamkin for neglect of duty, and, being a personal default, would by no means involve his successor. Lamkin was proceeded against for a personal failure to perform a duty charged as required by law. Mr. Lane, who has been guilty of no such neglect of duty, could not be made responsible for the faults, however grievous, of his predecessor. In no event could this court render a judgment against the territory for costs. We have no means of enforcing it, there being no process by which it could be made effective.
If the territory is liable for costs, the account must be presented in the usual way and the liability discharged as all others are. An execution could not issue, and the judgment would be entirely nugatory and void.
Motion denied.