Mahoney v. Elliott

67 P. 317 | Idaho | 1902

Per CHRIAM.

— The appellant filed a complaint in the district court of the first judicial district, in and for Shoshone county, seeking to remove John M. Elliott, Moses S. Simmons, and Israel B. Cowen, the respondents, from the offices of county commissioners of said county. The respondents interposed a demurrer to the complaint, which was sustained, and the cause was by a judgment in the district court dismissed. From the judgment of dismissal, the appellant has appealed.

The appellant moves that the cause be put upon the calendar and heard at the present January term at Boise City. The appellant argues that this is a special proceeding, and that the statute regulating the place of hearing appeals to this court has 'no application to this appeal. Section 3 of the statute is as follows: “Unless by agreement of parties causes in which writs of error or appeals are taken to the supreme court of the state of Idaho from the counties of Kootenai, Shoshone, Latah, Nez Perees and Idaho or counties hereafter created therefrom, shall be heard at Lewiston; and causes in which writs of error or appeals are taken to said supreme court, from the counties of Ada, Boise, Owyhee, Elmore, Cassia, Logan, Alturas, Oneida, Bear Lake, Bingham, Lemhi, Washington, Custer and Canyon or counties hereafter created therefrom, shall be heard at Boise City; provided, that in criminal eases, writs of error, habeas tor pus, certiorari and appeals, may on motion of defendant be heard before the supreme court either at the city of Lewiston or at Boise City.” (Act Feb. 2, 1899, Sess. Laws 1899, p. 6.) Under our view of the statute, the respondents are entitled to a hearing of this appeal at the Lewiston term; and, inasmuch as that term will meet within ninety days from now, no hardship results from the refusal of this court to hear the appeal at this term. The term “cause,” as used in the statute, is sufficiently broad to include, and does include, special proceedings. We do not think this a matter of discretion in this court, as argued by counsel for appellant. The constitution provides for terms of the court at Lewiston, in the northern part of the state, and for terms at 'Boise City. The constitution does not designate the particular causes to be heard at Lewiston. The legislature, in the statute quoted supra, have properly, and without interfering with the juris-diction of this court, provided that appeals from the five northern counties should be heard at Lewiston, and from the remaining fifteen counties at Boise City. This cause does not come within the provision contained in the statute quoted — a. provision that was made by the legislature in order to expedite the hearing of appeals in criminal eases when the defendant might desire a speedier hearing than he would otherwise-obtain.

For these reasons the motion is denied.