Saint Michael's Monastery v. Steele, 167 P. 349

Saint Michael's Monastery v. Steele

167 P. 349 | Idaho | 1917

MORGAN, J.

This is an original proceeding wherein was sought and procured an alternative writ of mandate directed *611to the defendant commanding him to make, sign and file findings of fact, conclusions of law and decree in case of Cottonwood Water & Light Company, Limited, a Corporation, v. Saint Michael’s Monastery, a Corporation, heretofore decided by this court, 29 Ida. 761, 162 Pac. 242,.and remanded with instructions to make findings and conclusions and enter a decree in conformity to the views therein expressed, or that he show cause, at a time and place stated in the- writ, why he should not have done so. The defendant made answer and the case was submitted to the court upon the complaint, the answer and the affidavit of defendant’s counsel.

It appears that after receiving our remittitur, in the case above mentioned, the defendant, as judge of the district court of the second judicial district, made findings of fact, conclusions of law and entered a decree in all particulars satisfactory to the plaintiff herein, except that no costs accruing in the district court were awarded. The purpose of this proceeding is to procure a correction of the decree in that particular.

The writ of mandate may be employed to require a court to enter a judgment in the exercise of its jurisdiction, but not to control its discretion or direct its decision. (Board of Commrs. v. Mayhew, 5 Ida. 572, 51 Pac. 411; Pyke v. Steunenberg, 5 Ida. 614, 51 Pac. 614; Connolly v. Woods, 13 Ida. 591, 92 Pac. 573; Olden v. Paxton, 27 Ida. 597, 150 Pac. 40; Blackwell Lumber Co. v. Flynn, 27 Ida. 632, 150 Pac. 42.)

A party considering himself aggrieved by the final judgment of a district court has his plain, speedy and adequate remedy at law by appeal to this court (Rev. Codes, sec. 4807, as amended by Sess. Laws 1915, p. 193), and where there is such remedy, the writ of mandate is not available. (Rev. Codes, sec. 4978; Wright v. Kelley, 4 Ida. 624, 43 Pac. 565; Bellevue Water Co. v. Stockslager, 4 Ida. 636, 43 Pac. 568; State v. Whelan, 6 Ida. 78, 53 Pac. 2; Fraser v. Davis, 29 Ida. 70, 156 Pac. 913, 158 Pac. 233; People v. Judges of Ulster, 1 Coleman’s Cases (N. Y.), 118, State v. Judge of Kenosha Circuit Court, 3 Wis. 809; Haney v. Muskegon County Circuit Judge, 101 Mich. 392, 59 N. W. 662.)

*612The .alternative writ is quashed and the peremptory writ denied. Costs are awarded to defendant,

Rice, J., concurs. Budge, C. J., dissents.

Petition for rehearing denied.