Ariel L. Crowley, Idaho City, for defendant. Plaintiff is unlawfully deprived of the books, records, papers and documents of his office as Probate Judge of Boise County, Idaho. Tway v. Williams, 81 Idaho 1, 336 P.2d 115; Clark v. Wonnacott, 30 Idaho 98, 162 P. 1074; Winter v. Davis, 65 Idaho 696, 152 P.2d 249; Budge v. Gifford, 26 Idaho 521, 144 P. 333. No vacancy existed between November 3, 1964 and the second Monday in January, 1965, for which the plaintiff below could be elected.
The next succeeding term of the office of State Treasurer is fixed by Article IV, Section 1, Constitution of Idaho. That term will commence on the first Monday of January, 1955. Constitution of Idaho, Article IV, § 1; Keenan v. Price, 1948, 68 Idaho 423, 195 P.2d 662. There is no vacancy in the office of State Treasurer to be filled at the elections which will be held in the year 1952. Constitution of Idaho, Article IV, §§ 1 and 6; Budge v. Gifford, 1914, 26 Idaho 521, 530, 144 P. 333; Winter v. Davis, 65 Idaho 696, 152 P.2d 249; Joy v. Gifford, 1912, 22 Idaho 301, 306, 125 P. 181; Knight v. Trigg, 1909, 16 Idaho 256, 100 P. 1060; Answer and Return, Paragraph X. THOMAS, Justice.
This is a ministerial act as opposed to a discretionary or judicial one. See Wyckoff v. Board of County Commrs. of Ada County, 101 Idaho 12, 14, 607 P.2d 1066, 1068 (1980); Saviers v. Richey, 96 Idaho 413, 415, 529 P.2d 1285, 1287 (1974); Winter v. Davis, 65 Idaho 696, 709-10, 152 P.2d 249, 254 (1944). In contrast, I.R.C.P. 60(b)(1) is a general rule of civil procedure by which a court, upon motion and such terms that are just, exercises its discretion to relieve a party of a judgment for either mistake, inadvertence, surprise, or excusable neglect. It is not specific as to what kinds of mistake, inadvertence, surprise or excusable neglect must be shown in order for the moving party to be granted relief by the court.
The foregoing mentioned case has been repeatedly discussed and cited with approval and is controlling in this case. Winter v. Davis, 65 Idaho 696, 152 P.2d 249; Moon v. Masters, 73 Idaho 146, 247 P.2d 158. It is urged by plaintiff that by virtue of his election on August 12, 1958 and in the absence of an appointment filling the office, he was entitled to file his oath and take office. Plaintiff predicates such right upon the provisions of sec. 59-909, I.C., which provides: