MILLER v. WINSTEAD, District Judge
No. 8126
Supreme Court of Idaho
May 17, 1954
270 P.2d 1010
Respondents having notice that the property levied on did not in fact belong to the judgment debtor, could not have it sold.
We are not considering the rights or equities of an execution purchaser.
Appellants’ deed, therefore, prevailing as against respondents’ judgment, the judgment herein is reversed and the cause remanded with instructions to quiet title in appellants as against the Whitmer judgment assigned to respondents Casper.
Costs to appellants.
PORTER, C. J., and TAYLOR, THOMAS and KEETON, JJ., concur.
Thomas J. Jones, Jr., Francis H. Hicks, Farrel J. Tovey, Boise, for plaintiff.
THOMAS, Justice.
This is an original proceeding in this court for a writ of prohibition to restrain defendant from setting the case of State of Idaho v. Robert T. Miller for trial without a jury, and also for a writ of mandate to compel defendant, as District Judge of the District Court of the Third Judicial District of Idaho, Ada County, to grant the plaintiff, Robert T. Miller, a trial by jury.
The plaintiff was charged with and convicted on December 28, 1953, in the municipal court of Boise City, of driving a vehicle upon the streets of Boise City, Ada County, Idaho, in violation of
Plaintiff thereafter appealed said judgment of conviction to the above designated
Plaintiff has invoked appropriate procedure for submitting to this court for determination the question of his asserted right to a trial by jury in said district court. Farmer v. Loofbourrow, Idaho, 267 P.2d 113.
The city urges, among other things, that the violations of city ordinances are classified as “petty offenses” triable summarily without a jury and that the particular offense charged herein comes within such classification; it is also asserted that violation of a city ordinance is a violation of a local police regulation and does not constitute a crime against the peace and dignity of the state and hence the action is not a criminal action.
Further contention is made by the city that upon appeal to the district court from the conviction of a municipal ordinance the case should be tried anew as though tried in the police court, that is, summarily and without a jury, for the reason that the district court, for such purpose, is an appellate municipal court.
Again, it is urged that
The city has fully, ably and somewhat exhaustively briefed each contention urged and has submitted substantial authority from other jurisdictions to support its position. These same contentions were urged and some of the authorities were cited in support thereof in the case of State v. Romich, 67 Idaho 229, 176 P.2d 204, and the companion cases of State v. Leonard, 67 Idaho 242, 176 P.2d 214, and State v. Brunello, 67 Idaho 242, 176 P.2d 212, all decided by this court in December, 1946, and later the case of State v. White, 67 Idaho 309, 177 P.2d 472, decided on February 11, 1947; each of these cases arose under a violation of a city ordinance of Boise City. This court then rejected each and every contention advanced by the city; however it is now suggested and urged that the opinions rendered therein be modified and that this court hold that on appeal to the district court from a municipal court wherein a conviction was had for a violation of a municipal ordinance, the district court try the case summarily and without a jury as provided for in such a trial before the police judge under the designated provisions of the Boise City Code hereinafter set forth.
Both the State and Boise City have legislated upon the subject matter of operating a motor vehicle upon the public highways while under the influence of intoxicating liquor.
“Driving While Intoxicated. It shall be unlawful for any person who is an habitual user of narcotic drugs, or any person who is intoxicated or under the influence of intoxicating liquor, or narcotic drugs, or any stimulant, to drive any vehicle upon any street or highway within Boise City.”
The City Code provides that all criminal cases in which the city magistrate has jurisdiction shall be tried in a summary manner without the intervention of a jury.
The statute provides that in cities of the first class the trial of all actions by the police judge brought for violation of an ordinance thereof, shall be by the court without a jury.
The only provision of the Boise City Code regulating appeals from the police court is
On appeal from a justice court to the district court in a criminal case, the case must be tried anew.
In the cases of State v. Romich, State v. Leonard, State v. Brunello and State v. White, supra, this court held that on appeal from a judgment of conviction for the violation of a city ordinance the appellant was entitled to a jury trial where demand therefor was made. We adhere to the pronouncement set forth in each of these cases in this respect.
It follows from the conclusions reached herein that the alternative writ of prohibition and the alternative writ of mandate must be and hereby are made permanent.
PORTER, C. J., and GIVENS and KEETON, JJ., concur.
TAYLOR, Justice (concurring specially).
The right to trial by jury in the district court on appeal from the police court should be recognized only in cases where the act charged as a violation of the city ordinance is also made a crime by the state legislature and is punishable under the general law. In such cases the right to trial by jury would be the same as though the case came to the district court, for trial de novo, from a justice or probate court. I would not extend the right to cases involving violations of purely local police regulations, where no such right existed at the time our constitution was adopted.