*1 629 P.2d OVERMAN,
Lillian A.
Plaintiff-Appellant, OVERMAN,
Steven G.
Defendant-Respondent.
No. 13337.
Supreme Court of Idaho.
Dec. 1980. Opinion
Dissenting Jan. *2 26, 1978, September
On respondent Ste- ven Overman moved for modification per- to obtain divorce decree enable him to couple’s manent children. Respondent sought temporary immediate hearing five and a custody of the children modify to the divorce decree his motion grant permanent custody. to him motion, respondent In of his support sub- affidavit of a social worker mitted an em- ployed by Department the Idaho of Health & was based on Welfare. The affidavit files that department alleged and department reports had received numerous complaints indicating appellant and that caring couple’s chil- improperly for the allegations Among dren. made affi- files, ant, department’s were upon the based age were not children the two school school; attending children regularly supervision; without proper were left often clothing in were need of and shoes; attempted appellant mother had home; place the children a foster appellant the affiant feared leaving the mother would soon be state children. 26, 1978, September On to notice to appellant proceedings and without a hearing, granted court re- spondent temporary father immediate cus- tody plenary pending the children hear- respondent’s for modification motion of the divorce decree. The district court’s it was temporary order stated that entered Chavez, Caldwell, plaintiff-ap- Ismael to maintain enable the court pellant. hearing until could over the children be Hearing respondent held. on the father’s Lew, Caldwell, for Gary H. defendant-re- 6,1978, ten days motion was set for October spondent. after entry of the court’s ex BAKES, granting respondent Justice. the children. Lillian appellant Overman
Plaintiff 6,1978, stipulat- On judgment parents of divorce October both a default obtained ed the matter until respondent Steven Over- a continuance of from defendant 2, 1978, January, agreed court November dis- in the district man respondent trict granting court’s order District. The divorce of the Third Judicial temporary custody Lillian of the children Overman appellant awarded should in effect until a full five minor remain couple’s in the pay matter could held. On October Overman respondent ordered Steven appel- granted the support, the district court child in child per per month $75 lant attorney property. mother’s leave withdraw couple’s divided the grounds appellant from the proceeding case on nature of and that failed had not heeded his advice and had they expressed satisfaction with home him. maintain her financial commitments environment created their natural father Sep- This order extended the effect of new stepmother. As a result of the hearing on tember until a evidence received at the hearing and the *3 respondent’s could motion for modification children, visits with the the district court 2, 1978, hearing be held. The November granted permanent of custody the children 8, was vacated and reset for December respondent to granted the father the 8, 1978, appellant 1978. On December the appellant specified mother rights. visitation mother to again moved a continuance Appellant appeal challenges pro- on the new The attorney prepare. allow her to priety entry Sep- of the district court’s on plenary hearing was held on Febru- finally 26,1978, of ex parte grant- tember an order ary parents with both present and ing respondent custody temporary represented by Testimony counsel. sev- by pending hearing respondent’s children a on and, agreement eral witnesses was heard motion for modification of divorce de- parties, the court visited with each cree’s custody provisions. Appellant child in child chambers. of Depart- contends that consideration Following plenary hearing, the dis- ment of Health & Welfare’s affidavit and trict court entered an order modifying deprived entry parte of the ex order her parties’ decree of grant divorce to re- right custody granted her to care, spondent permanent custody decree, process the divorce without due of the parties’ control five children. argues of law. also that the district She The district appellant court concluded that procedure court’s was in of I.R. violation neglected had the needs of the children and 6(cX3) requires C.P. which that the best interests the children would testimony shall hear the of interested by modifying be served original proceedings modify ties custody in to child grant permanent children’s father provisions of a decree unless the divorce custody subject children to visitation parties stipulated modification rights findings of the mother. In its of fact the decree. following made the hearing, the court noted question presented by ap this custody that while in their mother’s the two one, e., peal is a narrow i. whether the age school children’s school attendance had court, parent’s district on the non-custodial that, extremely sporadic despite modify custody decree, motion to the child several conferences between the mother erred in an entering granting tempo order problem, school authorities on the rary custody of the minor children’s attendance did improve. Nei- upon parent properly sup non-custodial a promoted ther child was with her class at ported parte pending motion a full hear the end 1977-78 year. school Both ing, to days. be held within ten It is our children had continued to miss substantial opinion that amounts of I.C. 32-7051 and § school time when I.R.C.P. 1978-79 year 65(g), together, permit school commenced until read custody was obtained their father court to enter an ex September granting on custody 1978. The court found a par that while in non-custodial their custody father’s ent children had if the record him regularly before indicates that attended case, school and had such an necessary received assistance order was in the with their school at work home. The court would be in the best interests of the chil found, dren, as a result of its interviews with the days by and is followed within ten a children, that the children hearing understood the full on the merits of the non-eusto- Subsequent district court’s now decision found at I.C. 32-717. Former I.C. § case, legislature 32-705, however, disposition § recodified and sub- controls the stantially § amended I.C. 32-705. 1980 Idaho this case. I.C. § 73-101. Sess.Laws ch. 3. The amended statute is parent’s motion. hold hearing
dial
We further
recipient
oppor-
when
has
adequate justification
for an ex
tunity
post
hearing
for a
termination
his
temporarily transferring custody to
benefits).
a
her right
to receive
parent
if a
non-custodial
is shown and
full
Questions regarding custody of
parent
question
minor children are
in the first
directed
in
pending
should maintain
motion
stance to
discretion of the trial court
with-
modify
provided
decree is
and unless such
is abused
discretion
days,
ap-
in ten
no
violation
process
due
judgment
respect
court’s
will
pears.2
appeal. Blakely
not be disturbed on
process
Due
concept
is not a fixed
Blakely,
(1979);
100 Idaho
P.2d 145
requiring
specific procedural
course in
Koester,
Koester v.
99 Idaho
586 P.2d
*4
every
process
situation.
is flexible
(1978);
Strain,
904,
“[D]ue
1370
Strain v.
95 Idaho
procedural protections
and calls for such
as
(1974);
Tomlinson,
The himself with simply armed Mr. Overman findings of fact court’s that hearsay- conclusory and totally the almost at produced evidence supported were not en- employee, of a state affidavit ridden motion to modi- respondent’s chambers, on hearing departed the and the court’s tered That custody. The district court’s changing divorce decree. fy the with an order misgivings Lodge divorce decree to himself had some modify Judge the decision to the order changes in reflected in the permanent respondent award the But, be that as it made. which he himself and to minor children of his five study this who may, believe that those I visita- wife reasonable grant appellant the of the will, be less critical myself, like case rights is affirmed. tion unprece- and judge’s precipitate trial rather respondent. Affirmed. Costs of this decision than of the dented actions day, especially given In a appeal. Court judges are J., trial, day, and trial DONALDSON, and or on law C. SHEPARD at quick multitude of upon to make a McFADDEN, JJ., called concur. subject they to modification that are Although respondent dis- sense contends that the change proof following plenary upon allegation of circum- of the and trict court’s decision Nonetheless, awarding arguments appellant’s cus- hearing a makes moot stances. aspects many of concerning prehearing tody of the usual the does have argument order, will finality being a habeas is that such an it will sustain the fact —one state, nearly always present short where a be- corpus proceeding in cases another in another plenary and, bar, plea I operate ex followed as term hearing. as a in that it will Hence, the merits we have addressed say, completely custo- of the it is definitive that rights process appellant’s contentions. due parents of in ac- until modified dial long statu- established with well and cordance tory provisions pertaining to matters not unaware that 1. I am this Court. decisions of and final, is, entirely in the not are important but opinion decisions. On the other unacceptable Court’s has two hand, Court, (1) misapplies the of this in flaws: the Court the facts of members the repose offices, adopted, of this case to the rule has now their secluded are so (2) time, approves of the actions of the pressed input for Court of counsel although trial has judge he shown his parties, collegial for both and the advice who— being, giving ap- own awareness of justices, experience of four other not to pearance of being, prejudiced issuing of law help representing mention clerks ex parte changing custody proceed- profes- some new in of finest talent — ed thereupon to the full decid- sion. Judge Kilkenny As observed in Rob- ed the had merits of case he Hollandsworth, erts v. 582 F.2d already placed position pre- in the (9th level, 1978), appeal at Cir. “[w]e judging. our atmosphere, somewhat cloistered have a substantially opportunity study better I. analyze problem such as here present- ed.’’ A.
Today
opinion
the Court announces an
The district
issuance of
court’s
euphe-
which subverts Due Process to the
solely
order was based
the affida
mistical “Best
Interests of
Child” —with
Neher,
employee
vit of
one Mike
an
agree. Only
which I
years ago
cannot
two
Idaho, Department
State
Health &
recognized,
Pincock,
the Court
in Mitchell v.
Although
Welfare.2
affidavit runs on
(1978),
99 Idaho
trial court had before factu- allegations allegations moving party. imminent harm to the wel- of the Ex- al hear- they ceptions requirement prior fare of the children were to be left in of a only where there is a the court-decreed of the mother have been found “countervailing overriding interest of until a full could be held. Nonethe- state Connecticut, less, parte significance.” court the ex Boddie v. issued 780, 785, temporary custody to the 28 L.Ed.2d granting order U.S. S.Ct. Tribe, (1971). American Consti- defaulting father. See L. (1978). tutional Law 544-45 by the trial The reason advanced law, was that it was parte Having court for this ex recited the correct rule of maintaining however, purpose majority issued then announces that “for jurisdiction Apparently in this Court.” in an affidavit an uncorroborated assertion reasoning following on the alle- moving party provide was based submitted can affidavit, gation surmising in Neher’s “compelling circumstances” under affiant’s fear that your it is further an ex be issued. “[t]hat leaving soon be position magnified by the natural mother shall The error of this is here, take the this state and shall children with the assertion the fact jurisdiction immediate beyond might jurisdiction her and lose if the mother court added.) state, How- (Emphasis plainly out of is incorrect as a of this Court.” moves ever, theoretically would have retained if it was the trial court matter of law. Even jurisdiction, even if the mother did leave the to lose jurisdiction possible for the continuing jur- the affida- The is a official who swore out state. the state Moreover, newly explain enacted I.C. from whence gave isdiction. vit no facts and five provides that a court shall retain the mother 5-1003 came his fear “(1) (i) is the home the state. jurisdiction if state children would flee [t]his at the time of commence- state of the child employee state The fears of a (ii) been the proceeding, or had ment children out of Ida- might take her mother (6) months home state within six child’s justification for a provides insufficient ho proceeding before commencement taking the children court order district this state be- and the child is absent from mother, temporarily. even away from the per- or retention cause of his removal will holding that such fears This Court’s claiming his or for other rea- son order, in circumstances an ex support sons, acting as parent person and a not allowed the where the mother is ” live in this state.... ent continues to heard, frightening to opportunity to be least, understood properly say the
B. longer no there simply states a custodial protection afforded process has failed to due majority of this Court his) having (or her parent from discussed facts of apply the above properly court, away snatched parte order of the they adopt- to the rule which this case *8 And parent. to the other given Proc- over is no Due The Court holds there ed. of the state holding spite is uttered in justification this adequate where ess violation would still being that the court of the law parte order and where for the ex exists children were if the jurisdiction have even a full within is made for provision hardly We should out of the state. states that such taken then days. ten Court in assumption that courts indulge in the only entered un- may properly an order mindful of the be less states would unques- It is other compelling circumstances. der rendering full obligation of party seeking an ex constitutional true that the tionably states of other credit to decrees of demon- faith and bears the burden parte should Pincock. We court in than was this reasons before the state strating compelling that assumption proper indulge in the party to aid one with- powers wield its powers will lend their states in other by such courts party the other affected giving out to aiding proper in our courts exercise their HEREBY GIVEN that “NOTICE IS jurisdiction. do provisions of this order not indi- judge cate believes that the whether the There in the balance of nothing is justi- defendant relief is sought enough justify affidavit compelling this great fied, order. There no such threat allegations was of the affida- or that the the health or of the children welfare that true; vit the decision of the are waiting a until a days few contested hear- judge only after both will be made ing could be would have made any held present opportunity ties an have had difference. was in The court effect decid- the hearing their evidence at above affidavit, ing, on the this one basis of scheduled; provisions of this or- response of a without the benefit from the der to such hear- which take effect person having actually custody of the chil- purpose of main- were made for the dren, material, been a per- there had taining of this court until manent change and substantial of circum- held; judge that the is hearing can be requiring stances immediate change an impartial....” (Emphasis added.) custody. every concept This offends of Due Process. That I think practic- which most experi- We have here an excellent and ing attorneys and constitutional scholars allowing enced judge inexplicably himself quite will find opin- offensive the Court’s to be precipitately moved into transfer of attempt ion is the equate facile a tempo- custody of five without hearing order, rary entered at the initiation of a mother,3 basing one whit from the his deci- action, divorce “tempo- so-called law, sion on an erroneous statement of rary” order after entered the action has vehemently protest- while at the same time gone to final decree. ing his lack of belief in Neher’s affida- holding today The Court’s is that Due vit and lack any opinion about the mer- met, Process is when even a final decree is its. If something orally urged upon the disregarded, allows the party judge presentation at the of Mr. opportunity victimized an within days ten judge Overman’s motion caused the to feel to attempt undo horrendous mischief compelled unique to issue such a and doubt- which has by removing been done a moth- order, least, then, ful at the he should have er’s children from without require- her required proceedings further to be heard opportunity ment of notice an or to be before Judge judge McClintick another contrary heard. This is which has in the Obviously, despite pro- district. practice forever in this state. order, Judge
testations in Lodge could II. not reasonably signed the order unless Obviously entertaining doubts as he rely upon allegations did of the Neh- propriety order, of issuing this ex er affidavit.
district judge was para- careful include a The language original opinion used in the graph avowing his own impartiality —some- (withdrawn in Farrow v. United States thing I have previously seen done replaced, change but of a because judge district at the same time declar- —but facts), (9th discovered F.2d 1339 Cir. ing that he extended no credibility to the 1978), appropriate: allegations appeared in Neher’s affi- davit. The order contained this “There are a of reasons most un- number for this usual caveat or notice: requirement which derive from the fun- worthy 3. It September only eight of note the mother herein filed months caring was faced with original (and the herculean task of after the entered one *9 ages 7; five children the remarried), between of 2'h week after the father had and that that the divorce apparently decree was a default decree the father was current on the January issued on when the support payments modest child which the di- summons; respond failed to obligated pay. that the motion vorce decree him establishing temporary custody for order was 244 precept uttered,
damental
even
judges,
like the
when later shown that
it
they sentence,
convicts
beings.
are human
wrong.”
(Hufsted-
was
fairness of the 2255 or aside, “temporary” set proceeding, requirement and the of a dif- aside, be set should be should view, judge, ferent in our does much to mother, further returned to their appearance.” restore that Goodrick v. assigned to one of the proceedings to be State, 124, 128-29, 559 P.2d 98 Idaho judges other in the district. J., (1977) (Bistline, dissenting) 307-08 Farrow) (footnotes omitted) (quoting added).
(emphasis
APPENDIX
The same
expressed
sentiments were
in a
MODIFICATION OF DI-
MOTION FOR
dissenting opinion in Wilson v. United
DECREE;
TEMPORARY
VORCE
States,
(9th
1976):
judges susceptible fraility are to that ald Dean judgment, human-kind to a held. to stick once ing may
DEFENDANT FURTHER MOVES the DEFENDANT FURTHER the restraining MOVES temporary Court for acting an whereby plaintiff, anyone Court for Order directed the Plaintiff the or for behalf, enjoined cause, has, or her restrained and why she the show molesting, threatening, or annoying, from Decree Divorce issued on of of Court using physical force and violence the day the 27th of not be January, should person the Defendant. as set modified hereinafter forth: 1. That the original Decree of Divorce DEFENDANT FURTHER the MOVES provides care, permanent the custo- restraining Court for a dy and control of the above mentioned Plaintiff, or whereby anyone acting the parties minor children of the is awarded behalf, her or on is restrained from remov- plaintiff until the children reach ing or attempting remove said minor respective ages their until majority, defendant, or from representative a further or or or contrary modifying order defendant. Court, preserving of this in the defendant upon This motion is based pleadings the right of visitation with the children at action, specifical- and files in this and more all normal and reasonable times and ly upon the of Mike affidavit Neher filed places. By change reason of material herewith, concurrently upon and the infor- plaintiff circumstances wherein the is mation and plaintiff belief is no longer no a fit proper person to have longer proper person fit and care, custody and control of the minor care, custody and control of said minor chil- paragraph said should modi- dren. fied read as follows: September, DATED this 26th day of ORDERED, “IT IS FURTHER AD- 1978.
JUDGED AND DECREED that BRAUNER, WM. J. P. A. permanent care, custody and control of (si Gary H. Lew By Overman, Stephanie Renae Kimberly GARY H. LEW Overman, Overman, Ann Dawn Erline Attorney for Defendant George Overman, Merle and Gerald Overman, Dean the minor children of hereby I certify that a true and correct parties hereto, hereby awarded to copy the foregoing Motion for Modifica- the defendant until said children Decree; tion of Divorce Temporary Custody reach their respective ages of majority, Children; of Minor Order Show or until a further or contrary or modi- Schiller, Cause mailed to Edwin G. fying order Schiller, of this Court.” Schiller, Williams & P.O. Box original 2. That the Decree of Divorce Nampa, mail, Idaho 88651 first class pay is to provides the defendant postage prepaid, this 26th day Septem- support, permanent as child plaintiff ber, per minor per month $75.00 sum (si Gary H. Lew child, children reach their until the said H. LEW GARY no ages majority, or are respective plaintiff, dependent upon longer AFFIDAVIT modifying contrary or until a further or NEHER, sworn, having duly MIKE been That of a this Court. reason order of deposes says: wherein change in circumstances material your That affiant is employed by longer proper a fit and plaintiff is no Department of Health and Welfare as a care, con- person to have the Social Worker Senior. and the defend- trol of minor children June, 1978, care, has, custo- seeking permanent since your ant is affiant That Overman, children, said A. minor with Lillian dy acquainted and control of the Overman, this ac- parties elimi- should be modified and G. paragraph Steven tion, children: and their minor entirety. nated in its *11 friends,
ten left with neighbors, and even short, Overman, Stephanie strangers, anyone Renae in who would have born 4-15-71 them; that the children’s source of Overman, Kimberly Ann born 8-13-72 cereal; food was often that the mother Overman, Dawn Erline born 3-8-74 children; prepared seldom meals for Overman, George Merle born 6-21-75 were in and that the children need of cloth- Overman, Gerald Dean born 6-21-75 ing and shoes. your That affiant has reviewed files 19, 1978, 5. That on or about June department upon of the and based said re- 26, 1978, department June received view, following states that the is a summa- complainant complaints. The stated that records, ry portions of said and that the had natural mother stated that she does following upon your is based affiant’s infor- place not children and will want the them mation and belief. your in a further foster home. It is affi- 19, 1977, December 1. That on or about natu- and belief that the ant’s information complaint with department received subsequently signed ral mother over custo- minor above-mentioned reference to the in dy to the Christian Childrens Home children; that it was believed that Boise, natural but that the father became children for leaving the minor mother was upset and obtained of the children sitters. The of time with periods prolonged your at that time. It is affiant’s further Stephanie that indicated complaint further information and belief that the natural attending regularly. school not reacquired custody mother of said minor 26, 1978, January 2. That on or about through trickery and deceit under department complaint received a pretext of a visitation. regards plaintiff. children and your 6. That it is affiant’s information complainant Stephanie The indicated that is and belief that one or more of the children special frequent education classes due to attending kindergarden were school absenses and does not need to be there. 21, 1978, by sent home September were complainant The stated that the children the nurse with lice. That natural moth- proper supervi- are left alone without often shampoo given er was instructions to said sion, Stephanie was often left them to school. That it children and return charge remaining children for sub- your affiant’s information and belief time, lengths of that the children stantial not said children have since returned to there were numerous were not clean and school. mother who came and male callers of the That recently September 7. as as went at all times. department complaint received a 14, 1978, February That on or about Stephanie and Kim have been retained department complaint received a from grade kindergarden, respective- in first Overman, the natural father. The Steven numerous It was fur- ly, due to absences. complainant reported that the children opinion complainant ther the that the being properly; were not looked after children should be removed from the moth- neighbors often left with children were custody. er’s time; periods for considerable that the affiant, 25, 1978, September Your vis- physically children were struck sitters ited residence of the natural mother at children; attending who were said Ste- Helena, Caldwell, Idaho. Your affiant phanie regularly attending was not school observed that the children were left attend- get due to the mother’s failure to rise and eighteen years a male approximately ed school; ready them and that the chil- age. your actually That affiant did dren were left a mentally often attended observe said but could hear them person. retarded within the residence. May 4. That on or about department complaint. received a your That it is affiant’s information complaint currently stated that the children were of- belief that the natural mother is your sayeth
Further affiant not. seeing frequently one Mark Fortick. That (si Mike Meher your affiant’s information and belief *12 MIKE MEHER day or September, that on about 23rd of AND SUBSCRIBED SWORN to before 1978, Helena, Caldwell, Idaho, at 1314 Mark me day September, this 26th of 1978. every Fortick broke window in his vehicle. your (si Gary That affiant has further observed H. Lew your what affiant believes to be numerous Public Notary for Idaho. parts nearby of said vehicle scattered Residing Nampa, at Idaho. residence. and your That is affiant’s information I hereby certify a true and correct mother belief a relative of the natural copy and foregoing of the above Affidavit recently was arrested at the residence at mailed, postage first duly prepaid, by Caldwell, Idaho, Helena, for mail, Schiller, class to Edwin G. firm of the robbery Icha- shotgun sawed-off armed of Schiller, Schiller, Williams & Attorneys for Caldwell, Idaho. bod’s in Plaintiff, P.O. Box Nampa, Idaho during the That immediately preceding day September, this 26th of 1978. weekend, your it is affiant’s information (si Gary H. Lew and belief that natural father one and GARY H. LEW Rodriguez Emma were married. That it is your affiant’s further information and he-
lief that
met
Steven
Emma
the natural
TEMPORARY ORDER FOR CUSTODY
mother and Mark Fortick in an establish-
CHILDREN;
OF MINOR
AND
ment
your
in Caldwell. That it is
affiant’s
ORDER TO SHOW CAUSE
information and belief that
Fortick
Mark
UPON
MOTION
Defendant and
waived and brandished a
That
firearm.
based
upon
Affidavit of MIKE NEHER
said fireman was removed and taken from
therewith;
Mark Fortick
the owner of the establish-
filed
believing
and the Court
ment.
that it
for
is
the best interest and welfare
Study
Evaluation has
That Home
of
parties,
the minor children of the
Department,
by the
been conducted
ORDERED,
IT
HEREBY
IS
AND THIS
chil-
placement of
minor
recommended
temporary custody
DOES ORDER That
been
with the natural
father has
dren
parties’
children,
Stephanie
minor
Re-
made.
Overman,
Overman,
nae
Kimberly Ann
your
personally
That
affiant has
Overman, George
Dawn Erline
Merle Over-
involved with the above-named individuals
man,
Overman,
hereby
and Gerald Dean
is
June,
since
and has
this
discussed
granted to the
until
Defendant
a show
your
superiors.
matter with
That
affiant’s
held;
hearing
cause
bemay
your
it is
affiant’s information
belief
is
natural father
not successful
cause,
appear
That the Plaintiff
and show
attempt
his
obtain
has,
October,
if any
day
she
6th
Department
shall
minor
1978 in
the Courtroom the above entitled
file an action under the Child Protective
Caldwell, Canyon County, Idaho,
Court in
your
Act. That further it is
affiant’s belief
at
m.
p.
day,
the hour of 1:30 o’clock
of said
the removal
the children
why the Decree
Divorce
entered herein
custody of the natural father is in conform-
day
January,
on the
27th
should not
being of
ance to the best interest and well
be modified as set forth in the Motion.
the minor children.
pending
That
on said Order
your
That it is further
affiant’s fear that
Cause,
Plaintiff,
anyone
to Show
or
the natural mother shall soon
leaving
behalf,
acting
hereby
or on
re-
her
this state and shall take the children with
enjoined
beyond
annoying,
her and
strained and
from
mo-
immediate
Court.
lesting, threatening,
using physical
or
force
Defendant the above named minor children.
NOTICE HEREBY IS GIVEN that the
provisions of this order do not indicate Judge
whether the believes that the relief
sought by justified, the Defendant is the allegations of the Affidavit are
true; Judge that the decision of the will parties be made after both have had an
opportunity present their evidence at the scheduled;
hearing above provi-
sions of this Order which take effect
to such hearing purpose were made for the maintaining in this Court held;
until a can Judge be that the impartial and a party any questions has
hereon, party then such shall contact an
attorney questions who will answer such
and take steps necessary present such
party’s provided by evidence as rules of any party and that who violates or
conspires provisions violate contempt Order will be held in of this punished by
court and fine or im- both,
prisonment, byor therefor. day September,
DATED this 26th
(s) Lodge Edward J. Judge
District Anderson, Burley,
Gleason D. for defend- ant-appellant. Gen., Leroy, Atty. Lynn
David H. E. Thomas, Gen., Boise, Deputy Atty. plaintiff-respondent.