*1 care, skill, carefully degree of We examined the highest other cise receiving convey- assignments by appellant. diligence in error made overlap of them ing their destination and Most passengers to those heretofore safely as the discussed. We find no setting them down as reversible error. conveyance and circumstan- means Judgment respondent. Costs to affirmed. appropriate permit, with caution ces circumspection negli- and without J.,C. KEETON, POR- obligation extends and such gence, SMITH, TER and JJ., concur. convey- any substituted busses and all the conduct of its busi- ance used in
ness.” opinion this are Instruction
We Tarr,
correctly
Clark
states
law. See
1016,supra.
Idaho
270 P.2d
Fell, in that could be a guest paying passenger appel to Fell and a as to' Lytel WRIGHT, Charles Defendant- lant, they different Appellant. thus owed duties respondent. relationships These are No. 8229.
inconsistent under the facts of this case Supreme Court of Idaho. and the given, instructions based on the May 11, 1955.
guest statute and the highest law as Rehearing Denied June degree required of care of common carriers in conveying passengers, were correct.
In addition to assigning error given, appellant instructions assigns as
error the refusal of the court give cer
tain of requested instructions. areWe opinion
of the given instructions
sufficient to cover all the matters involved
in this case and no error was committed
such refusal.
89Í *2 Pocatello, respond-
Gee Hargraves, & ent. Anderson, Pocatello, ap-
Anderson &
pellant.
KEETON, Justice. Appellant respondent and were married 5, December, 1936, October divorced custody child, Wright, 1945. The a Neil of. awarded, the issue the marriage t© mother, the respondent, and fa- appellant, ther, to ordered month for pay the $50 support of the by appellant child. A motion modify 28, the decree was filed on July 1947, asking support that the pay- child’s ment month, be per reduced from to $25 $50 and appellant custody that of the child during summer vacations and that he be paying per relieved from the month $50 n custody.- such while he had 18, 1947, September the On court made modifying original an order the decree wages appellant’s custody issued, the child ment was and- the the terms which garnisheed. appellant during the sum- was awarded to when child year mer months -of each 1954, .the March, initiated school; appellant that attending was not further praying that proceeding, a month paying he from relieved $50 prohibited be executions the decree custody. The such during time he had required to cause respondent that show be proceeding found in this in con- why she should not be was never original decree modifying the tempt complying with of court not for she she testified respondent and served on modifying September, 1947. order of Appellant never knowledge of it. had no proceedings were Thereafter numerous sum- custody of the child secured motions, had, counter-charges charges, lived at all times mer and the child months fees, made a motion including for Respond- step-father. with mother having joined, been resisted. Issues found, that the contends, and the court ent matter was heard is void. original decree modifying fact, law and Findings of conclusions order, decree, were entered. designated an had original After decree so 1948, modified, 3, appellant, on went to that The court found and decreed June respondent and child where Winnemucca September modification order of living, respondent having re- then void; invalid married, permit- that he be and demanded appellant prohibit issuing of execu- child to Pocatello for the ted to take the denied, set tions on the decree vacation, respond- which demand summer directing, allowed former so aside a Thereafter made ent refused. expenses respondent attorney support payments for the no further from Winnemucca to Pocatello travel attempt child, again he nor did se- held that appellant’s petition; resist Appellant’s custody. alleged cure reason money by the provision support allowed payments making valid; of December he was advised ordered is that an at- for failure appellant is in of court make no torney in Winnemucca decree; respondent with comply said complied until payments appeal this contempt. is from is not in *4 18, 1947, September of and de- the order decree. custody of the child to him as or- livered he appellant’s assignments of error In dered. sup- fact as not findings the challenges evidence; complains December, 1953, respondent ported by the demand- In the certain other-find- for failure make sums arrears the child court’s that the ed conclusions; ings on contends that paid judg- and execution supported subsequent to Nevada child at times of the child from Idaho removal all. child; June, right deprived him of to visit respondent should have been that By original the terms court; contempt attorney that no December, 1945, appellant made in re was expense money should have been fees quired provide support for the child. allowed; September the order of attempt prior No was made 1947, is a order and should valid have proceedings to secure an order of the court complied respondent; appel- relieving support payments him from such not in lant was and that because the child was not delivered to him trial court should have restrained the period specified of time in the issuing clerk of the court from on execution order; nor, stated, amended as above did original decree. attempt June, 1948, he after to secure cus tody. Hence is not relieved from of September making payments ordered in origi
here attacked at a time when was entered nal decree. respondent, pres although personally
ent, represented by was counsel. No find prohibit The decree did not ings fact or conclusions of law to sustain taking from the child with her to Nevada it were showing, made and there no if was payment the order for of. $50 resisted, the motion were to sus sufficient month was not conditioned the child tain the however modification. This would being domiciled in Idaho. not render subject the order void attorney Appellant contends no fees . collateral could, attack. The order or expense should allowance be awarded re- or should, appeal been attacked or spondent in defense of his in the
appropriate proceeding in the district court. reason, contends, he district court voidable, It However, was but not void. Ap- action pending. was no divorce there we question consider importance. of no proceeding pellant asking initiated this September 18, at against certain relief entered and tacked sup- this proceeding and set himself relieved of the child’s aside to have also, port, prevent enforcement of the the trial did not have decree, and for other relief. custody of the during child the summer vacation at subsequent time origi to the is the moving Where the husband decree; nal specifi modified order relating on matters to modification provided cally that he should be relieved decree, the court has of a divorce discre from paying the a month he $50 while jurisdiction authority and to allow tionary custody. Respondent had such expenses others the wife nec- *5 398 Wen was correct in his conclusion of the action.
essary in the defense 485; —, contempt. P.2d -is Wenzel, 276 in zel Idaho 76 517, P. Gifford, 297 50 Idaho Gifford v. Respondent having never Bradstreet, Ariz. 1100; 34 Bradstreet v. alleged modifying order served 32-704, For 717; I.C. 271 P. Sec. September, no having of knowl motion the petition or purpose it, pro in edge of and the trial court this pending. action is still aside, ceeding re having set the same necessary it was In situation contempt spondent was not for an al Winnemucca, travel from to leged violation said order. appellant’s Nevada, to defend to Pocatello testimony The at show- the trial and the vested with dis- petition was and the court supports ing by respondent fully made and nec- her cretion allow by findings and made the trial conclusions expenses. essary September, While power to had void, or not court Whether is set aside it is grounds judgment stay temporarily execution on the grounds there were sufficient other discretion, if it not decide. The we do why the order should not now be enforced. exist, matter be- was exercised does question Further who should have contrary appellant’s contention. custody fore us subsequent for summer months was no abuse of discretion. There June, is moot. error. The decree no reversible findWe stay grounds to No sufficient to re- affirmed. court is Costs trial of the judgment alleged were on the
execution spondent. could judgment be enforced or shown. proceed contempt or execution by either PORTER, AN- J., and C. otherwise, would rule it If the ings. SMITH, JJ., concur. DERSON court to make for a an gesture a useless perform requiring the father to order Rehearing Petition for On upon per him law to incumbent dutiés form. KEÉTON, Justice. rehearing, pay to make
Having refused things, that disobe- is no defense that he contends required, among it other ments' any modifying a de- make an order divorce attorney not to some dience advised child, custody of a payments. advice, Such if were relative to it cree against party nullify upon the whom the set aside a de 'could not or served given, directed, party such when has district court. cree of
399 P.2d modi- knowledge ho actual of the otherwise, never- fication service or WARNER, Carmen Plaintiff-Appellant, C. court;- further, theless ascer- duty it is such WARNER, Buell Defendant-Respondent. *6 every done, tain what is be and that No. 8249. charged with proceeding to such filed; every knowledge of order that Supreme Court of Idaho. knowledge service or absence of May 11, 1955. modifying con- contempt proceed- in stitutes no defense Hence,
ing. appellant contends, in
court should court; a rehearing should granted.
be petition rehearing
states: court, course,
“The does cite opinions opin- or authorities for its
ion, simple reason there are
none.” following authorities The
. Hay Hay,
opinion as written: 40 Idaho 895, syl. 11; Trullinger
159, 232 P. 4; syl.
Howe, 113 P. 3 58 Or. Contempt, 18, page C.J.S., cases § 72; 17, 22, Contempt,
cited note § C.J. Many other authorities could
note principles of law announced
cited. basic and opinion are so axiomatic that only review of authorities would
a further established, long recognized
emphasize well principles.
legal rehearing is denied. J., PORTER, AN- C. SMITH, JJ., concur.
DERSON