31 P. 800 | Idaho | 1892
This action was brought by Nez Perces county against Latah county for a ratable proportion of the salaries of the sheriff, clerk of the district court, and prosecuting attorney of the county of Nez Perces. The salaries were for official services rendered by these officers for both counties from June 1, 1888, to December 31, 1888, inclusive. Nez Perces county was divided by act of Congress entitled “An act to create and organize the county of Latah,” approved May 14, 1888 (1st Sess. Laws 1888-89, p. 147), and Latah county was attached to Nez Perces county for judicial purposes until thirty days after the next meeting of the judges of the supreme court, which was December 1, 1888. The claim or account for the proportion of said salaries, to wit, for the sum of $1,783.44, Being four-sevenths of the salaries of said officers from June 1, 1888, to December 31, 1888, and which had been paid by Nez Perces county, duly verified, was presented to the board of county commissioners of Latah county for allowance, and on June 1, 1889, was by said board rejected or disallowed. From the decision of said board an appeal was taken to the district court
[“Title of the Court and Cause.]
“Now, at this time, the motion for new trial having been overruled, it is hereby stipulated by the parties to the above-entitled action, E. O’Neill and J. W. Poe appearing for the plaintiff, and A. J. Green and D. C. Mitchell for the defendant, that on an appeal from the said order overruling the motion for a new trial therein, the appeal from the judgment heretofore taken, and the appeal from the said order overruling the motion for new trial, shall be considered as one case in the supreme court, by and with the consent of said court, and that one brief shall be prepared for both appeals, and both be argued at the same time and as one case.
“Dated at Moscow, Latah county, Idaho, this fifth day of February, A. D. 1892.
“E. O’NEILL and “J. W. POE,
“Attorneys for Plaintiff.
“D. C. MITCHELL and ' “A. J. GEEEN,
“Attys. for Defendant.”
On the tenth day of October, 1892, it being the first day of the October term of the supreme court, and at the time said cause came on for hearing, the attorneys for respondent filed their motion to dismiss this action on the following grounds, to-wit: “The record herein discloses the fact that this cause came
In the case of Rupert v. Board, 2 Idaho, 19, 2 Pac. 718, cited by counsel, this court decided that matters decided by the district court on appeal from the orders of the board of county commissioners can only be brought to the supreme court for review by writ of error. This results from the fact that the statute provides no method of bringing such cases to the supreme court by appeal, and not from want of jurisdiction when the case is once in court. The supreme court has jurisdiction of such causes when once brought in, as it has jurisdiction of both the parties and the subject matter. The bringing of this cause into this court in this manner is irregular and unauthorized, and, if no general appearance had been entered by respondent’s attorneys, and no such stipulation as now appears on file had been made, the respondent might have procured a dismissal of the appeal by appearing specially for that purpose, as was done in Rupert v. Board, supra. But in this cause the attorneys for the respondent, after an appeal from the judgment had been taken, and on the same day on which the order overruling the motion for a new trial had been entered by the district judge, entered into a stipulation with the attorneys for the appellant, by which they agreed that the appeal from the judgment, and the appeal from the order overruling the motion for new trial, should be considered as one case in the supreme court, and that one brief should be prepared for both appeals, and both be argued at the same time, and as one case. By this stipulation the attorneys did not mean that they would argue a motion to dismiss the appeal, or the “case,” as is the word used in the motion, as the motion to dismiss was not then made, and was not in fact placed on file until eight months thereafter. We must conclude that the attorneys intended to and did stipulate that the said appeals should be heard on their merits.
The method of bringing said appeal being an irregularity which may be waived by the parties, either by a general appearance, joinder in error, or by stipulation, we are constrained to hold that the right to move for dismissal of the appeal was waived by the stipulation, (Bonner v. State, 40 Ill. App. 629; 1 Am. & Eng. Ency. of Law, 183, and other authorities there