Opinion
No. 5470.
October 8, 1929.
PETITION for Writ of Mandamus. Temporary writ heretofore issued quashed.
E.H. Casterlin and E.W. Whitcomb for Plaintiffs.
It is the province of the appellate court to construe its own mandate if it finds: (a) That it has been misconstrued, or (b) that the court has acted beyond its power to enforce obedience thereto. ( American Hyd. Placer Co. v. Rich, 8 Idaho 570, 69 Pac. 280.)
In this case after remittitur was filed the trial court permitted an amended pleading to be filed and continued the cause for trial The supreme court held that a writ of mandate was proper. ( Lawrence v. Terrell, 41 Idaho 205, 238 P. 1072.)
In this case it was held that the entry of a judgment is a ministerial act when the same is directed by the appellate court.
L.E. Glennon, for Defendant.
A proceeding of this kind cannot be utilized for the purpose of passing upon any error which may have been committed by the trial court in the entry of the judgment complained of, or to compel that court to enter a particular judgment where there was at the time of the entry of the judgment any judicial power or discretion vested in the trial judge.
In Blackwell Lumber Co. v. Flynn, 27 Idaho 632, 150 P. 42, this court said. "In this case the acts which the law especially enjoined as a duty upon the district judge were performed when he ruled upon the demurrer and entered the judgment, and if error was committed in the performance the plaintiff has its remedy by appeal to this court."
In the same case this court quoted with approval from the decision in Lindsey v. Carlton, 44 Colo. 42, 96 P. 997, as follows: "It is a fundamental principle that mandamus lies to compel the performance of a purely ministerial duty, involving no discretionary right and not requiring the exercise of judgment. It does not lie where performance of a trust is sought which is discretionary, or involves the exercise of judgment. It is also elementary that the writ cannot usurp the functions of a writ of error, or take the place of an appeal, nor will it lie against the court unless it be clearly shown that such court has refused to perform some manifest duty."
Plaintiffs sued for a writ of mandate to compel the district court, wherein was pending an action between Don C. Richards and Samuel W. Jarvis et al., to strike a certain portion of a judgment there entered, as follows:
"That there should be stricken from the judgment finally entered by the court below, a copy of which is marked 'Exhibit B' the following words appearing in the second paragraph thereof, to wit:
" 'E.W. Porter in his official capacity as Commissioner of Finance of the State of Idaho and Lloyd Adams in his official capacity as Liquidating Agent of the Department of Finance of the State of Idaho' and that there should be stricken from the third paragraph of the same instrument the words 'all the defendants' and substituted therefor the words 'said defendant' and that the word 'defendants' appearing in the second paragraph of said instrument should be made to read 'defendant' and that there should be added to said judgment an order dismissing said action as to these petitioners."
Defendant resists the writ, urging that mandate will not lie and that the judgment as entered was correct.
Mandate will lie to a judge of the district court to compel the entry of a judgment as a ministerial act, not requiring the exercise of judicial discretion. ( Lawrence v. Terrell, 41 Idaho 205, 238 P. 1072.)
From the previous opinions rendered in this cause ( Richards v. Jarvis, 41 Idaho 237, 238 P. 887; Id., 44 Idaho 403, 258 P. 370), it is apparent that the Lemhi Valley Bank was merely a stakeholder. In Richards v. Jarvis, 41 Idaho 237, 238 P. 887, the court said:
"It is also insisted on behalf of the appellant Lemhi Valley Bank that the court erred in awarding judgment for costs in favor of the respondent against it and the sellers, jointly. The latter parties defended jointly against the plaintiff in this, a case where the escrow holder had no personal interest in the money deposited with it, and no right to withhold the same as against the party, whether buyer or sellers, lawfully entitled thereto. Under such circumstances we are not inclined to hold that the court committed error in rendering judgment for costs against the sellers and the escrow holder jointly."
The judgment from which the appeal was taken in Richards v. Jarvis, 44 Idaho 403, 258 P. 370, provided (so far as material) as follows:
"That the plaintiff have and recover from the defendant, the Lemhi Valley Bank, the sum of Three Thousand Dollars, together with interest on said sum at the rate of seven per cent per annum from the 28th day of April, 1921; and that the same is a preferred claim against said Bank and the defendants, E.W. Porter and Lloyd Adams, acting in their respective official capacities, and their successors in office be, and they are hereby required to allow and pay the same as a preferred claim in class two as defined by Section 77, Chapter 133, Session Laws 1925."
This judgment except as to the amount thereof against the Bank was affirmed ( Richards v. Jarvis, 44 Idaho 403, 258 Pac. 370) as follows:
"Except as modified herein, the judgment is affirmed, and the court is directed to amend its findings and judgment in accordance with the views herein expressed. No costs allowed either of the parties on this appeal."
The only act remaining to be done by the trial court was therefore to do as he has done herein, that is, enter the proper amount of the judgment.
The temporary writ heretofore issued is quashed.
Costs awarded to defendant.
Budge, C.J., and T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.