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+"{\"id\": \"1001163\", \"name\": \"Chris HYTA, Plaintiff-Appellant, v. Lloyd FINLEY, individually, d/b/a Kopper Keg, Defendant-Respondent\", \"name_abbreviation\": \"Hyta v. Finley\", \"decision_date\": \"2002-08-13\", \"docket_number\": \"No. 25906\", \"first_page\": \"755\", \"last_page\": \"758\", \"citations\": \"137 Idaho 755\", \"volume\": \"137\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:30:17.035492+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice TROUT, Justices WALTERS, KIDWELL and EISMANN concur.\", \"parties\": \"Chris HYTA, Plaintiff-Appellant, v. Lloyd FINLEY, individually, d/b/a Kopper Keg, Defendant-Respondent.\", \"head_matter\": \"53 P.3d 338\\nChris HYTA, Plaintiff-Appellant, v. Lloyd FINLEY, individually, d/b/a Kopper Keg, Defendant-Respondent.\\nNo. 25906.\\nSupreme Court of Idaho, Boise,\\nMarch 2002 Term.\\nAug. 13, 2002.\\nFlammia & Solomon, Coeur d\\u2019Alene, for appellant.\\nFred W. Gabourie Jr., Post Falls, for respondent.\", \"word_count\": \"1545\", \"char_count\": \"9306\", \"text\": \"SCHROEDER, Justice\\nON THE BRIEFS\\nThis is an action on the dissolution of a partnership. Chris Hyta (Hyta) seeks damages in the dissolution, winding up, accounting and termination of an alleged partnership with Lloyd Finley (Finley).\\nI.\\nFACTUAL BACKGROUND\\nHyta received an inheritance in 1984 which he wanted to invest. Finley, who was an acquaintance, was the sole owner of the Kopper Keg in Kellogg. Hyta and Finley signed an agreement whereby Finley agreed to sell Hyta a \\\"one-half interest\\\" in the Kopper Keg for $50,000. An attorney drafted the agreement, although both Hyta and Finley say that the attorney did not represent either one of them. Hyta paid Finley $18,000 that day, and the remaining $32,000 on December 19 of that year. Finley made regular payments to Hyta from 1984 through 1991.\\nAccording to Finley, the Kopper Keg was a bar, but its primary profits came from the illegal gaming machines it was running. Other establishments in the county were allegedly running the same unauthorized gambling devices and poker machines until June, 1991, when the FBI raided 58 of these taverns. This, according to Finley, \\\"marked a sudden end\\\" to profits from the Kopper Keg. Finley states that since there were no more profits, the object of their \\\"Partnership\\\" ended. Therefore, in June, 1991, Finley informed Hyta that he would no longer be paying any share of the proceeds from the gambling devices, because they had been seized by the FBI in the raid. Hyta made demands for Finley to resume payments, but Finley refused. This case followed.\\nII.\\nPROCEDURAL BACKGROUND\\nHyta filed a complaint in district court on October 12, 1993, alleging that he owned an undivided one-half interest in the Kopper Keg. He asked the court to dissolve the partnership and order payment of profits and assets, costs and attorney fees. Finley counterclaimed, alleging that the money was a personal loan. The district court denied Hyta's motion for partial summary judgment and Finley's motion for summary judgment. In late 1995 both parties filed for partial summary judgment. The district court denied Hyta's motion and granted Finley's motion which requested that Finley's real property not be considered a partnership asset. The court bifurcated the trial: the jury would determine the nature of the business/legal relationship between the parties. If the jury found that there was a partnership, the court would hold an accounting phase.\\nSeveral procedural difficulties delayed the trial. The most notable is a hearing in June of 1996 on a motion for sanctions against Finley's attorney, who did not attend, although he was served with notice. Hyta's attorney alleged that she was not receiving the information she needed to prepare adequately for the trial; that she had not yet received a list of witnesses; that Finley had not provided any receipts or invoices from the operations (both legitimate and illegal) from the Kopper Keg. The court set an order with a 30 day deadline. Finley missed the deadline by more than a month, and at a hearing on July 30, 1996, requested clarification of the specific documents requested. He had provided Hyta with some pre-trial documents the day before but still had not provided the others contained in the order. The court granted Finley an extension to produce all requested documents by September 1, 1996.\\nA jury trial was finally held in February, 1997. The jury found that 1) there was a legally binding contract; 2) Hyta did not make all the required payments on time; and 3) Hyta and Finley did not enter into a partnership known as the Kopper Keg, wherein Finley would be managing partner. The court entered a JNOV on February 20, 1998, finding that Hyta did make the requisite payments and that a partnership did exist. A special master was appointed for the accounting, and the court ordered Finley to disclose all financial records and transactions that the special master required, or it would consider sanctions. Finley's attorney was not present at that hearing.\\nOn May 13,1999, a bench trial was held to account for the assets and profits of the partnership. The special master presented his findings. The special master concluded that the Kopper Keg operated at a profit from 1992-1998, totaling $205,094.53. Finley testified that the Kopper Keg had not turned a profit since 1991. The only written records he had were his personal income tax returns. The district court issued an opinion holding that 1) the partnership ceased to exist after 1991, and 2) that insufficient evidence prevented an equitable accounting to wind up the partnership. Hyta appealed.\\nIII.\\nTHE DISTRICT COURT ERRED IN DETERMINING THE PARTNERSHIP TERMINATED IN 1991\\nDissolution does not result in the termination of a partnership. Uniform Partnership Law, Title 53, Chapter 3. This Court analyzed the process of terminating a partnership relationship in Mays v. Davis, 132 Idaho 73, 75, 967 P.2d 275, 277 (1998), noting the following:\\nThe dissolution of a partnership \\\"is the change in the relation of the parties caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.\\\" Kelly v. Silverwood Estates, 127 Idaho 624, 628, 903 P.2d 1321, 1325 (1995) (citing I.C. \\u00a7 53-329). A partnership is not terminated upon dissolution, but continues until the winding up of the partnership affairs is completed. Arnold v. Burgess, 113 Idaho 786, 790, 747 P.2d 1315, 1319 (Ct.App.1987) (citing I.C. \\u00a7 53-330; Heileson v. Cook, 108 Idaho 236, 697 P.2d 1250 (Ct.App.1985)). Winding up is the process of settling partnership affairs after dissolution, and generally involves an accounting and liquidation of the partnership's assets.\\nThe change in relationship that resulted in dissolution happened when Finley stopped making payments to Hyta in 1991. However, a partnership does not end upon dissolution but \\\"continues until the winding up of the partnership affairs is completed.\\\" Id. at 75, 967 P.2d at 277.\\nWinding up includes an accounting and liquidation of the partnership's assets. Ramseyer v. Ramseyer, 98 Idaho 47, 51, 558 P.2d 76, 80 (1976), states that \\\"a partnership relationship is legally ended and its affairs completed when the three steps of 1) dissolution, 2) winding up or liquidation, and 3) termination are finished.\\\" The district court did not have the authority to make the determination that the partnership was terminated until an accounting and asset liquidation had been done. An accounting and liquidation still have not been done. The district court erred in finding that the partnership terminated in 1991.\\nIV.\\nTHE LEGALITY OF THE CONTRACT\\nA question not raised by the parties or addressed by the district court is whether the partnership between Hyta and Finley was an illegal contract. Neither party suggests that the contract might be void as against public policy if the parties entered into it with the intention of sharing profits from the illegal gaming activities. In Quiring v. Quiring, 130 Idaho 560, 944 P.2d 695 (1997), this Court said that:\\nWhether a contract is against public policy is a question of law for the court to determine from all the facts and circumstances of each case. Stearns v. Williams, 72 Idaho 276, 283, 240 P.2d 833, 840 (1952). Public policy may be found and set forth in the statutes, judicial decisions or the constitution. Id. at 287, 240 P.2d at 842. An illegal contract is one that rests on illegal consideration consisting of any act or forbearance which is contrary to law or public policy. 17A AM.JUR.2D CONTRACTS \\u00a7 239; see Miller v. Haller, 129 Idaho 345, 924 P.2d 607 (1996). A contract prohibited by law is illegal and hence unenforceable. Miller, 129 Idaho at 351, 924 P.2d at 613. Although not clearly argued below or addressed in either the magistrate's decision or the district court, in Idaho a court may not only raise the issue of whether a contract is illegal sua sponte, Nab v. Hills, 92 Idaho 877, 882, 452 P.2d 981, 986 (1969); Belt v. Belt, 106 Idaho 426, 430 n. 2, 679 P.2d 1144, 1148 n. 2 (Ct.App.1984), but it has a duty to raise the issue of illegality, whether pled or otherwise, at any stage in the litigation. Stearns, 72 Idaho at 290, 240 P.2d at 842.\\nId. at 566-67, 944 P.2d 701-02.\\nThe courts will not enforce the agreement if it is illegal or contrary to public policy. In this case the contract may have been entered into for some legal and some illegal purposes. The evidence of the potential illegal intentions of the parties in this case comes from the district judge, who deemed the FBI raid to have terminated the purposes of the partnership, and from Finley who argues that when the gaming came to an end, so did the profits and purposes of the partnership. This is an issue that should be addressed by the district court upon remand.\\nV.\\nCONCLUSION\\nThe judgment of the district court is vacated and the case is remanded for further proceedings. Costs are awarded to Hyta.\\nChief Justice TROUT, Justices WALTERS, KIDWELL and EISMANN concur.\"}"
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+"{\"id\": \"11862968\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Audie Keithley HELMS, III, Defendant-Appellant\", \"name_abbreviation\": \"State v. Helms\", \"decision_date\": \"1997-04-11\", \"docket_number\": \"Nos. 23111, 23133\", \"first_page\": \"32\", \"last_page\": \"36\", \"citations\": \"130 Idaho 32\", \"volume\": \"130\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:08:21.955233+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C.J., and LANSING, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Audie Keithley HELMS, III, Defendant-Appellant.\", \"head_matter\": \"936 P.2d 230\\nSTATE of Idaho, Plaintiff-Respondent, v. Audie Keithley HELMS, III, Defendant-Appellant.\\nNos. 23111, 23133.\\nCourt of Appeals of Idaho.\\nApril 11, 1997.\\nStewart A. Morris, Boise, for defendant-appellant.\\nAlan G. Lance, Attorney General, Myrna A.I. Stahman, Deputy Attorney General, Boise, for respondent.\", \"word_count\": \"1678\", \"char_count\": \"10600\", \"text\": \"PERRY, Judge.\\nAudie Keithley Helms, III, received consecutive sentences in two separate cases. In these consolidated appeals, Helms argues that the sentences should be served concurrently. We affirm.\\nI.\\nFACTS AND BACKGROUND\\nAlthough the issue in this case is a simple one, the unusual facts and procedural background merit discussion. In August 1995, Helms was charged with possession of a controlled substance, methamphetamine, with the intent to deliver. I.C. \\u00a7 37-2732(a). Helms was released from custody on his own recognizance.\\nWhile awaiting trial on the possession offense, Helms was charged with grand theft, I.C. \\u00a7 18-2403(4); burglary, I.C. \\u00a7 18-1401; and second degree kidnapping, I.C. \\u00a7 18-4501, \\u2014 4503. These charges arose out of an incident wherein three men battered and murdered Travis Jon Mclntier. Although he did not beat Mclntier, Helms was present during the incident. The state claimed that Helms assisted in transporting Mclntier to the site where he was killed, was found in the possession of certain items of Mclntier's property after Mclntier's death, and entered Mclntier's residence after the murder with the intent to commit theft.\\nPursuant to a plea agreement, Helms pled guilty to grand theft and burglary. In exchange for the pleas, the state dismissed the kidnapping charge and agreed to recommend concurrent unified terms of ten years, with minimum periods of confinement of four years. As a part of the same agreement, the state reduced the possession with intent to deliver charge to possession of a controlled substance. I.C. \\u00a7 37-2732(e). Helms pled guilty, and the state recommended a sentence of seven years, with a four-year determinate term.\\nA presentence investigation (PSI) report and a psychological evaluation were prepared. The district court reviewed the record, the PSI report, the psychological evaluation, as well as Helms' prior criminal record and troubled personal history. The district court imposed concurrent seven-year unified sentences, with minimum periods of confinement of two years, for grand theft and burglary. The district court ordered that Helms receive credit for 183 days already served.\\nThe possession charge then proceeded to sentencing before another district judge. In sentencing Helms for the possession charge, the district court considered the grand theft and burglary offenses. The district court also reviewed the PSI report, the psychological evaluation, and Helms' character. The district court initially imposed a seven-year sentence, with a minimum term of four years, which was to run consecutively with the sentences ordered for grand theft and burglary. The district court later amended the sentence and imposed a minimum term of two years, with a maximum term of seven years, to run consecutively with the other sentences.\\nHelms initially appealed from the sentences imposed for grand theft and burglary. That appeal was consolidated with Helms' subsequent appeal from the sentence for the possession conviction. On appeal, Helms acknowledges that the sentences for grand theft and burglary were reasonable. The only issue before this Court, therefore, is the reasonableness of the sentence imposed on the possession charge.\\nII.\\nANALYSIS\\nAn appellate review of a sentence is based on an abuse of discretion standard. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 645 P.2d 323 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary \\\"to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case.\\\" State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence we conduct an independent review of the record, having regard for the nature of the offense the character of the offender and the protection of public interest. State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App.1982).\\nHelms' arguments include various references to the probable period of incarceration to be served for the possession offense. Where a unified sentence has been imposed, we examine the minimum period of confinement established by the sentencing court as the probable measure of confinement. State v. Hyde, 127 Idaho 140, 150, 898 P.2d 71, 81 (Ct.App.1995); State v. Heer, 116 Idaho 969, 971, 783 P.2d 308, 310 (Ct.App.1989); State v. Sanchez, 115 Idaho 776, 777, 769 P.2d 1148, 1149 (Ct.App.1989). Here, our review will focus on the two-year determinate portion of the sentence for possession.\\nHelms argues that the district court should not have considered the Mclntier incident in sentencing him on the possession charge. We disagree. It is well established that sentencing courts are entitled to consider a wide range of information about the defendant. State v. Johnson, 101 Idaho 581, 584, 618 P.2d 759, 762 (1980). The district court may review evidence of other crimes, even those that have not been charged. State v. Roberts, 129 Idaho 194, 200, 92B P.2d 489, 445 (1996). A crime committed in the interval between the commission of the charged offense and sentencing for that offense is clearly relevant and is a proper consideration in sentencing.\\nHelms further argues that the district court, in the possession case, gave too much weight to the psychological evaluation and the PSI report, particularly in light of the fact that these documents were considered during the sentencing for grand theft and burglary. A PSI report is intended to provide information on the defendant's family history, educational background, social history, sense of values and outlook on life in general. Hyde, 127 Idaho at 150, 898 P.2d at 81. The decision to order a PSI report and a psychological evaluation are matters of discretion for the trial court. Id. In felony cases, the trial court may forgo a PSI report only where the record affirmatively establishes a valid reason and where there is sufficient information from another source. Id. Use of a PSI report prepared in connection with an earlier offense is not error absent a showing of some material change in circumstances. Id.; State v. Powers, 100 Idaho 614, 616, 603 P.2d 569, 571 (1979). The psychological evaluation and the PSI report did not become less relevant because they were considered in the prior sentencing. The PSI report and attendant psychological evaluation were properly considered in this case.\\nHelms claims that, during sentencing on the possession charge, the prosecution incorrectly indicated that Helms had a juvenile record in Idaho. The prosecuting attorney stated, \\\"I'm familiar with Mr. Helms because I was the prosecutor out at juvenile, and I saw some of his eases.\\\" Helms notes on appeal that he has no record of juvenile offenses in Idaho and argues that the prosecutor's statement was therefore inappropriate. The district court carefully reviewed the PSI report which indicated that Helms lacked a juvenile record. Hence, the district court had adequate information before it to evaluate the prosecutor's statement. The district court discussed Helms' background at length and did not indicate that the prosecutor's allusion to a juvenile record was a factor in sentencing.\\nHelms does not claim that the unified term of seven years, with a minimum period of incarceration of two years, is unreasonable. Helms actually requests the same sentence on remand, but argues that it should be imposed to run concurrently with his two unified seven-year terms, with minimum periods of confinement of two years, for grand theft and burglary. A consecutive sentence is authorized as a discretionary decision by I.C. \\u00a7 18-308. Pursuant to both statutory and case law, the decision of whether to impose sentences concurrently or consecutively is within the sound discretion of the trial court. State v. Elliott, 121 Idaho 48, 52, 822 P.2d 567, 571 (Ct.App.1991); State v. Lloyd, 104 Idaho 397, 401, 659 P.2d 151, 155 (Ct.App.1983). The standard established in Toohill are applicable to this issue as well.\\nThe record in this case indicates that Helms has extensive psychological problems, a tendency towards violence, and an unwillingness to accept treatment. The psychological profile indicates that Helms currently presents a risk to society. Although the possession charge in this case was a nonviolent offense, Helms admitted that he enjoys hurting other people, and the psychologist found that Helms has little capacity for empathy.\\nIn sentencing Helms for the possession charge, the district court considered this offense \\\"in the context of the broader course of Mr. Helms' life and conduct and the risk that he is to society.\\\" The district court considered the appropriate goals of sentencing and properly considered the psychological evaluation, the PSI report and the facts underlying Helms' other criminal charges.\\nThe sentence imposed by the district court for the possession charge is well within the legal maximum. After a thorough review of the record, we conclude that the district court did not abuse its discretion in imposing a minimum term of two years to run consecutively to Helms' other sentences.\\nIII.\\nCONCLUSION\\nThe sentences imposed by the district court are well within the statutory m\\u00e1xi-mums. Helms has failed to establish that the sentences are unreasonable. The district court properly exercised its discretion in deciding that the sentence for possession of a controlled substance should be served consecutively to the sentences for grand theft and burglary. The judgments of conviction, and the concurrent sentences of seven years, with minimum periods of confinement of two years, for grand theft and burglary, and the consecutive sentence of seven years, with a minimum period of conf\\u00ednem\\u00e9nt of two years, for possession of a controlled substance are affirmed.\\nWALTERS, C.J., and LANSING, J., concur.\"}"
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diff --git a/idaho/11873173.json b/idaho/11873173.json
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+"{\"id\": \"11873173\", \"name\": \"Lacey SIVAK, Petitioner-Appellant, v. STATE of Idaho, James Spalding, Joseph Klauser, Pam Sonnen, James Barker and John Weirum, Respondents\", \"name_abbreviation\": \"Sivak v. State\", \"decision_date\": \"1997-11-17\", \"docket_number\": \"No. 23724\", \"first_page\": \"885\", \"last_page\": \"890\", \"citations\": \"130 Idaho 885\", \"volume\": \"130\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:08:21.955233+00:00\", \"provenance\": \"CAP\", \"judges\": \"LANSING, C.J., and PERRY, J., concur.\", \"parties\": \"Lacey SIVAK, Petitioner\\u2014Appellant, v. STATE of Idaho, James Spalding, Joseph Klauser, Pam Sonnen, James Barker and John Weirum, Respondents.\", \"head_matter\": \"950 P.2d 257\\nLacey SIVAK, Petitioner\\u2014Appellant, v. STATE of Idaho, James Spalding, Joseph Klauser, Pam Sonnen, James Barker and John Weirum, Respondents.\\nNo. 23724.\\nCourt of Appeals of Idaho.\\nNov. 17, 1997.\\nLacey Sivak, Boise, pro se appellant.\\nAlan G. Lance, Attorney General; Timothy R. McNeese, Deputy Attorney General, Boise, for respondent.\", \"word_count\": \"2864\", \"char_count\": \"17635\", \"text\": \"SCHWARTZMAN, Judge.\\nLacey Sivak appeals from a decision of the district court which dismissed his appeal from an order by the magistrate granting summary judgment in favor of the state on his petition for a writ of habeas corpus. The magistrate also imposed sanctions upon Si-vak for his continual abuse of the court processes and dismissed three other stayed ha-beas corpus proceedings. Sivak was given thirty days to respond to this judgment and order. Thereafter, the magistrate issued a final order reaffirming its prior decision in all respects on October 21, 1996. For the reasons stated below, we affirm.\\nI\\nFACTS AND PROCEDURAL BACKGROUND\\nSivak has been in the custody of the Idaho Department of Corrections since 1981, and is currently incarcerated on death row for several crimes, including first degree murder. Sivak has a long history of litigation in state and federal courts, having filed numerous habeas corpus petitions in both venues. Twelve such cases are contained in the Idaho Reports after consideration by the court of appeals. In a federal case, Sivak v. Wilson, CV 93-081-S-EJL (Idaho D.C.1993), Sivak was denied the right to file any more cases with that court without first obtaining its leave, following twenty-six previous pro se filings.\\nSivak filed a petition for habeas corpus relief on May 14, 1996, asserting, inter alia, that personal items were taken from his cell, that a blanket of his was returned soiled with juice, that his disciplinary hearings were conducted improperly, that \\\"off the wall comments\\\" regarding women's clothing found in his cell were made in his presence and that there were other violations of Department of Corrections policies and procedures. Sivak requested a hearing, compensation for the allegedly stolen/missing personal items, and a further determination that his continued incarceration is unconstitutional.\\nOn May 21, 1996, the magistrate, entered a conditional order of dismissal unless, within twenty days, Sivak could demonstrate \\\"that the facts alleged, even if true, lead to any colorable constitutional claim.\\\" On May 24, 1996, the state filed a motion to dismiss, or alternatively, a motion for summary judgment.\\nThe magistrate entered its initial order granting summary judgment and imposing sanctions on August 21,1996. This summary judgment order found, generally: (1) that Sivak's vague allegations of retaliation were not sufficient to require a hearing; (2) that ordinary instances of prison discipline cited by Sivak do not create constitutional due process issues; (3) that Sivak's allegations regarding missing personal property were not proper habeas corpus issues; and (4) that all other issues raised by Sivak were not significant enough to require a response. In its order of dismissal, the magistrate also quoted from one of the Ninth Circuit's unpublished opinions, Sivak v. Murphy, 995 F.2d 233 (9th Cir.1993):\\nLacey Mark Sivak has appealed orders and decisions of the district court to the Ninth Circuit no less than ten times prior to this appeal. See Sivak v. Butler, No. 92-36570, 1993 WL 51833 (9th Cir. Mar. 1, 1993) (unpublished); Sivak v. Cluney, No. 91-35236, 1992 WL 259239 (9th Cir. Oct. 5, 1992) (unpublished); Sivak v. Gilmore, Nos. 91-35230, 91-35602, 1992 WL 246038 (9th Cir. Sep. 24, 1992) (unpublished); Sivak v. Dennard, No. 90-35824, 1991 WL 275338 (9th Cir. Dec. 24, 1991) (unpublished); Sivak v. Kienzle, No. 88-3895, 1989 WL 106658 (9th Cir. Sep. 5, 1989) (unpublished); Sivak v. Smith, No. 88-4051, 1989 WL 106671 (9th Cir. Sep. 5, 1989) (unpublished); Sivak v. Gilmore, No. 87-4426, 1989 WL 69387 (9th Cir. Jun. 22, 1989) (unpublished); Sivak v. Murphy, No. 87-3992, 1988 WL 141364 (9th Cir. Dec. 19, 1988) (unpublished); Sivak v. Castiglione, No. 85-4365, 1988 WL 40560 (9th Cir. Apr. 26, 1988) (unpublished); Sivak v. Castiglione, No. 85-4365 (9th Cir. Mar. 1, 1993) (unpublished). If Sivak suffers a serious deprivation of his constitutional rights in prison some day, he may not be able to convince the magistrate, the district court, or this court of this fact because of his incessant litigation over relatively trivial matters. Cf. Aesop's Fables, \\\"The Boy Who Cried Wolf.\\\"\\n1993 WL 188334, at *2, n. 1 (emphasis added). Sivak was given thirty days to respond to the magistrate's proposed order and sanctions.\\nOn October 21, 1996, the magistrate entered its \\\"Final Orders In Pending Cases,\\\" noting that, in the interim, Sivak had filed: (1) a motion for witnesses and evidence to be subpoenaed for a hearing, (2) a response and opposition to the court's summary judgment order and (3) a first supplement to response and opposition which \\\"consisted mostly of veiled threats of retaliation if the court awarded attorney fees and costs as sanctions in this case.\\\" There were also filings attempted by Sivak in three other cases which had been stayed pending the court's decision in the instant case. Finally, Sivak attempted to file yet another new habeas eorpus case. The magistrate approved its earlier decision and reiterated its order restricting any further filings by Sivak:\\nLacey Sivak will not be able to file, nor shall the clerk of the court have any authority to accept for filing petitions or lawsuits for habeas relief, however they are described, unless or until Sivak obtains prior leave of this court. In seeking leave of this court, Sivak must certify that the claims he wishes to present are brought in good faith, and have not been raised before. Upon false certification, petitioner may be found in contempt of court and punished accordingly.\\nSivak filed his notice of appeal and appeal brief to the district court on February 21, 1997. The district court entered its decision dismissing Sivak's appeal on March 11, 1997, noting that, regardless of which order of the magistrate was counted as the final order, Sivak's notice of appeal was untimely because it was filed more than forty-two days from either order. Furthermore, the district court noted that Sivak raised no issues on appeal which merited a review of the magistrate's orders nor necessitated a response from the state. Sivak timely appealed the district court's dismissal of his appeal.\\nII\\nANALYSIS\\nA. Standard Of Review.\\nOn appeal from a decision made in a habeas corpus ease by the district court in its appellate capacity, this Court examines the magistrate's decision independently of, but with due regard for, the district court's decision. State v. Bitt, 118 Idaho 584, 585 n. 1, 798 P.2d 43, 44 n. 1 (1990); Craig v. State, 128 Idaho 121, 123, 844 P.2d 1371, 1378 (Ct.App.1992).\\nB. The District Court Erred In Dismissing Sivak's Appeal For Untimeliness.\\nBecause the filing of a timely appeal is jurisdictional, we must first address the district court's holding that Sivak did not file his appeal to the district court in a timely fashion. The district court found that Sivak's notice of appeal from the final order of October 21, 1996, was not filed until February 21, 1997, well past the forty-two day jurisdictional time period. Accordingly, the district court held the appeal was untimely as a matter of law and must be dismissed.\\nClearly, Sivak's notice of appeal comes well past the forty-two day deadline for appeals provided in Idaho Appellate Rule 14(a). However, Sivak has alleged that he did not receive a copy of the magistrate's final order from which he could file a timely appeal. The record reveals that there was no clerk's certificate of mailing verifying that the October 21, 1996, final order was properly and timely mailed to Sivak. In the absence of evidence to the contrary, we must accept as true Sivak's allegation that he did not receive the October 21 order in time to file an appeal. In light of this finding, Sivak's appeal was not untimely and the district court erred in dismissing it on this ground.\\nWe will now address the \\\"merits\\\" of Si-vak's appeal.\\nC. The Magistrate Court Did Not Err In Dismissing Sivak's Petitions Without Requiring The State To File A Return.\\nIt is well settled that a court may dispose of a petition for a writ of habeas corpus \\\"as the justice of the case may require.\\\" Brennan v. State, 122 Idaho 911, 917, 841 P.2d 441, 447 (Ct.App.1992), quoting Mahaffey v. State, 87 Idaho 228, 231, 392 P.2d 279, 280 (1964). It is not an abuse of discretion for a magistrate court to dismiss a petition for habeas corpus without requiring the state to file a return. Brennan at 917, 841 P.2d at 447. The magistrate considered all pleadings filed by Sivak in this case and did not abuse his discretion by dismissing the petitions without requiring a formal return by the state.\\nD. Sivak Does Not Raise Any Issues That Justify Habeas Corpus Relief (Or,\\\"Much Ado About Almost Nothing\\\").\\nThe Magistrate granted summary judgment to the state on Sivak's petition for a writ of habeas corpus. On appeal we adhere to the standard of review applicable to summary judgments generally. See Lopez v. State, 128 Idaho 826, 919 P.2d 355 (Ct.App.1996).\\nSivak appears to have roughly four distinct habeas claims, all of which are trivial and/or fail to form the basis for legitimate habeas corpus relief:\\n(1) Offensive comments by a correctional officer regarding, inter alia, women's clothing found in Sivak's cell;\\n(2) An unjustified laundry bill Sivak received after a disciplinary hearing;\\n(3) Vague threats of retaliation whenever Sivak attempts to report allegedly improper conduct of the prison staff, verbal altercations, confrontations, etc.\\n(4) Personal property loss totaling $49.01, and consisting of clothing, washcloths and a laundry bag.\\nIndeed, Sivak's claims are a paradigm of the doctrine de minimus non curat lex, that the law does not care for or take notice of very small or trifling matters. See, e.g., Sivak v. State, 111 Idaho 118, 121, 721 P.2d 218, 221 (Ct.App.1986) (holding that the Department of Corrections' retention, pursuant to new departmental rules, of Sivak's gym trunks, deck of playing cards, photograph albums, rubber ball, pair of sweat pants and, perhaps, other items did not rise to constitutional dimensions and thus did not violate inmate's due process rights.)\\nSivak's first and third claims allege that a correctional officer made offensive comments regarding items found in Sivak's cell, and that Sivak received some vague threats of retaliation from the prison warden anytime he attempted to report allegedly improper actions of prison staff. Sivak does not allege that he suffered any specific, tangible harm, nor does he claim that the alleged threats or comments have ever ripened into actual retaliation or had a chilling effect upon his access to the courts. Furthermore, it is well settled that the allegations of verbal harassment and embarrassment are not constitutional violations. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.1987) (\\\"[vjerbal harassment or abuse [of a prisoner]...is not sufficient to state a constitutional deprivation under 42 U.S.C. \\u00a7 1983.\\\"); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987) (holding that prisoner's allegations of threats allegedly made by guards failed to state a cause of action); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1353 (9th Cir.1981), aff'd sum nom., Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983) (holding that prisoner's allegations of harassment, embarrassment, and defamation fail to state a claim cognizable under 42 U.S.C. \\u00a7 1983). Sivak's claim that these so-called threats and allegedly offensive comments justify an evidentiary hearing and appropriate relief is without merit.\\nNext, regarding Sivak's second and fourth claims that go to the issue of property loss, this Court has previously established in Sivak v. State, 111 Idaho 118, 721 P.2d 218 (1986), that although the appellate and lower courts possess jurisdiction to determine the property rights of inmates, \\\"a writ of habeas corpus is not the remedy for the return of property.\\\" Sivak at 120, 721 P.2d at 220.\\nIn addition to the aforementioned case precedent compelling dismissal of Sivak's claims, we also note that the United States Supreme Court's opinion in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), sets forth the standard in determining whether an inmate has a protected liberty interest under the Fourteenth Amendment of the United States Constitution, such that the inmate is then entitled to Fourteenth Amendment due process protections:\\n[W]e recognize that States may under certain circumstances create certain liberty interests which are protected by the Due Process Clause. But these intez'ests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.\\n515 U.S. at 483-84, 115 S.Ct. at 2300, (emphasis added.)\\nThe Idaho Supreme Court has recently addressed the question of what is the proper test to be applied in determining whether a prisoner has a liberty interest protected by the due process clause in Article I, Section 13 of the Idaho Constitution. In Schevers v. State, 129 Idaho 573, 930 P.2d 603 (1996), the Court stated: \\\"[W]e hold that the 'atypical and significant hardship' standard used for Fourteenth Amendment Due Process Clause also applies to the Due Process Clause contained in Article I, Section 13 of the Idaho Constitution.\\\" Schevers at 578, 930 P.2d at 608. Accordingly, it ruled that Shevers did not have a protected liberty interest in remaining free from disciplinary segregation.\\nBy a parity of reasoning, we find that none of Sivak's claims rise to the level of imposing on him an \\\"atypical and significant hardship\\\" sufficient to trigger a protected liberty interest under the Fourteenth Amendment of the United States Constitution or the Idaho Constitution's Due Process Clause. Sivak is not entitled to have his own personal ombudsman in the form of a sitting magistrate to review, second-guess and correct every alleged inconvenience, petty slight or subjectively perceived injury relative to the ordinary incidents of prison live. Our court system has far more important and pressing issues to resolve with its finite resources.\\nE. The State Is Not Entitled to Attorney Fees On Appeal.\\nThe State requests that this Court award reasonable attorney fees on appeal pursuant to I.C. \\u00a7 12-122, which permits attorney fees to be awarded to the respondent in a habeas corpus action if the court finds that the action was brought frivolously by the petitioner. The magistrate declined to award such fees and so does this Court.\\nThe order of the magistrate granting summary judgment is hereby affirmed.\\nLANSING, C.J., and PERRY, J., concur.\\n. See Sivak v. State, 119 Idaho 211, 804 P.2d 940 (Ct.App.1991); Sivak v. Ada County, 118 Idaho 193, 795 P.2d 898 (Ct.App.1990); Sivak v. Ada County, 115 Idaho 766, 769 P.2d 1138 (Ct.App.1989); Sivak v. State, 115 Idaho 765, 769 P.2d 1137 (Ct.App.1989); Sivak v. Ada County, 115 Idaho 762, 769 P.2d 1134 (Ct.App.1989); Sivak v. State, 115 Idaho 760, 769 P.2d 1132 (Ct.App.1989); Sivak v. State, 115 Idaho 757, 769 P.2d 1129 (Ct.App.1989); Sivak v. Ada County, 115 Idaho 759, 769 P.2d 1131 (Ct.App.1989); Sivak v. Ada County, 115 Idaho 760, 769 P.2d 1132 (Ct.App.1989); Sivak v. State, 114 Idaho 271, 755 P.2d 1309 (Ct.App.1988); Sivak v. State, 112 Idaho 127, 730 P.2d 1047 (Ct.App.1986); Sivak v. State, 111 Idaho 118, 721 P.2d 218 (Ct.App.1986).\\n. We note that, not surprisingly, since Sivak v. Murphy, Sivak has appealed three more cases to the Ninth Circuit Court of Appeals. See Sivak v. Mutch, No. 93-36014, 1995 WL 566933 (9th Cir. Sep. 25, 1995) (unpublished) (Holding that Si-vak's general allegations that \\\"there wasn't much care given\\\" and that \\\"care given was inadequate\\\" do not present a genuine issue regarding the medical care administered); Sivak v. Wilson, No. 95-35118, 1995 WL 696460 (9th Cir. Nov. 24, 1995) (unpublished) (holding that Sivak failed to state a claim when he alleged that he was denied access to a photocopier, and that Sivak's claim concerning access to a typewriter was barred by res judicata); Sivak v. Wilson, No. 93-36105, 1995 WL 697197 (9th Cir. Nov. 24, 1995) (unpublished) (holding that Sivak's allegations about lost legal property were properly dismissed as precluded by res judicata, and that Sivak's claims regarding access to the courts were properly dismissed as frivolous). This gives Sivak the ignominious distinction of having presented a grand total of 14 habeas corpus appeals before the Ninth Circuit.\\nWe pause here to acknowledge Ada County Magistrate Charles Hay for his thorough and well-documented decision on this issue, adopting the federal court's procedures used in Sivak v. Wilson cited on page 258 of this opinion, and the criteria set forth in De Long v. Hennessey, 912 F.2d 1144 (9th Cir.1990). However, since the propriety of these sanctions has not been raised or briefed on appeal, we need not address that issue herein.\\n. Because Sivak's disjunctive and disordered briefs are written in a stream-of-consciousness style, it is impossible to delineate with exact specificity what his claims are.\"}"
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+"{\"id\": \"11922657\", \"name\": \"BOUNDARY BACKPACKERS, an unincorporated association; North Idaho Audubon Society, Inc., an Idaho corporation; Bonners Ferry Forest Watch, an unincorporated association; Jerry Pavia; Paul R. Sieracki; Will Venard; Jan Wathen; Allen H. Rose and Jan Rose, husband and wife; Laurel McGuire; Lew Langness and Linda Langness, husband and wife; John O'Connor; Shaela Conner; Cherie Bronstein; Robert Moir; David W. Bodner and Meeche Bodner, husband and wife; Dan J. Misciagna; Daniel Krmpotich and Michael S. Powers, Plaintiffs-Respondents, v. BOUNDARY COUNTY, a governmental subdivision; Ronald Smith, Merle Dinning and Orrin Everhart, in their official capacities as members of the Boundary County Board of Commissioners, Defendants-Appellants\", \"name_abbreviation\": \"Boundary Backpackers v. Boundary County\", \"decision_date\": \"1996-03-18\", \"docket_number\": \"No. 21287\", \"first_page\": \"371\", \"last_page\": \"387\", \"citations\": \"128 Idaho 371\", \"volume\": \"128\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:11:09.800147+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDEVITT, C.J., and TROUT, J., concur.\", \"parties\": \"BOUNDARY BACKPACKERS, an unincorporated association; North Idaho Audubon Society, Inc., an Idaho corporation; Bonners Ferry Forest Watch, an unincorporated association; Jerry Pavia; Paul R. Sieracki; Will Venard; Jan Wathen; Allen H. Rose and Jan Rose, husband and wife; Laurel McGuire; Lew Langness and Linda Langness, husband and wife; John O\\u2019Connor; Shaela Conner; Cherie Bronstein; Robert Moir; David W. Bodner and Meeche Bodner, husband and wife; Dan J. Misciagna; Daniel Krmpotich and Michael S. Powers, Plaintiffs-Respondents, v. BOUNDARY COUNTY, a governmental subdivision; Ronald Smith, Merle Dinning and Orrin Everhart, in their official capacities as members of the Boundary County Board of Commissioners, Defendants-Appellants.\", \"head_matter\": \"913 P.2d 1141\\nBOUNDARY BACKPACKERS, an unincorporated association; North Idaho Audubon Society, Inc., an Idaho corporation; Bonners Ferry Forest Watch, an unincorporated association; Jerry Pavia; Paul R. Sieracki; Will Venard; Jan Wathen; Allen H. Rose and Jan Rose, husband and wife; Laurel McGuire; Lew Langness and Linda Langness, husband and wife; John O\\u2019Connor; Shaela Conner; Cherie Bronstein; Robert Moir; David W. Bodner and Meeche Bodner, husband and wife; Dan J. Misciagna; Daniel Krmpotich and Michael S. Powers, Plaintiffs-Respondents, v. BOUNDARY COUNTY, a governmental subdivision; Ronald Smith, Merle Dinning and Orrin Everhart, in their official capacities as members of the Boundary County Board of Commissioners, Defendants-Appellants.\\nNo. 21287.\\nSupreme Court of Idaho, Coeur d\\u2019Alene,\\nApril 1995 Term.\\nMarch 18, 1996.\\nRehearing Denied April 18, 1996.\\nRandall W. Day, Bonners Ferry, for appellants.\\nScott Reed, Coeur d\\u2019Alene, for respondents.\\nPeter D. Coppelman, Washington, DC, for Amicus Curiae United States.\", \"word_count\": \"9015\", \"char_count\": \"55821\", \"text\": \"JOHNSON, Justice.\\nThis case concerns a county ordinance that requires all federal and state agencies to comply with a county land use policy plan. We conclude that the ordinance violates the U.S. Constitution because federal law preempts portions of the ordinance and that the entire ordinance is invalid because these portions are not severable. We also conclude that the one individual who has standing to challenge the ordinance is not entitled to attorney fees under the private attorney general doctrine.\\nI.\\nTHE BACKGROUND AND PRIOR PROCEEDINGS\\nIn 1992, the Boundary County Board of Commissioners (the board) enacted an ordinance (the ordinance), entitled Boundary County Interim Land Use Policy Plan (the plan). The ordinance declares that the scope and purpose of the plan is \\\"to guide the use of public lands and public resources in Boundary County and to protect the rights of private landowners.\\\" The ordinance directs that \\\"all federal and state agencies shall comply with\\\" the plan. The plan contains the following edicts to state and federal agencies:\\nFederal and state agencies proposing actions that will impact [the plan] shall prepare and submit in writing, and in a timely manner, report(s) on the purposes, objectives and estimated impacts of such actions, including economic, to [the board]. These report(s) shall be provided to [the board] for review and coordination prior to federal or state initiation of action.\\nFederal land agencies shall not acquire any private lands or rights in private lands within Boundary County without first assuring:\\na. That as a minimum, parity in land ownership status is maintained; and\\nb. That private property interests are protected and enhanced.\\n. Federally managed lands that are difficult to manage or which lie in isolated tracts shall be targeted for disposal.\\n. Boundary County concurrence shall be required prior to any [federal and state land] adjustments.\\nBoundary County shall determine land withdrawals for hazardous and nonhazardous waste storage as well as the types and points of origin of such waste.\\n. Before federal and state land agencies can change land use, adverse impact studies on uses shall be conducted and mitigation measures adopted with concurrence from Boundary County.\\n. Any federally proposed designation of Wild and Scenic Rivers and all federal policies regarding riparian management in Boundary County shall be coordinated with [the board] and shall comply with any County water use plan.\\n. Boundary County may develop Wild and Scenic River Designations of its own design and shall require full federal compliance in the acceptance and enforcement of such designations.\\n. No wilderness areas shall be designated in Boundary County.\\nThe ordinance directs enforcement of the plan: \\\"Boundary County shall enforce compliance with [the plan] and shall monitor consistency between federal and state actions and activities and the land use requirements enumerated herein.\\\"\\nThe board sent copies of the plan to all federal, state, and local governmental agencies, together with a form letter requesting that each agency give the board ninety days notice prior to taking any proposed actions that would affect the economic stability, custom, or culture of Boundary County (the county).\\nBoundary Backpackers, the North Idaho Audubon Society, and Bonners Ferry Forest Watch (the organizations) are non-profit membership groups located in the county. In 1993, the organizations and eighteen individuals (the individuals) who are residents of the county sued the county and the members of the board, seeking (1) a declaratory judgment that the ordinance is unconstitutional and void, (2) an injunction enjoining the board members from enforcing the ordinance and directing that they repeal the ordinance, (3) damages, and (4) attorney fees and costs. The organizations and the individuals alleged that the ordinance threatens their individual and collective environmental, aesthetic, and recreational interests in the state and federal lands, waters, and natural resources in the county.\\nThe organizations and the individuals moved for summary judgment. The county and the board moved to dismiss the suit. The board members submitted an affidavit in which they stated that the board \\\"deemed that it would not be proper to seek enforcement of the ordinance by fines or penalties.\\\" The organizations and several of the individuals submitted affidavits stating the effect the ordinance has on them.\\nThe trial court granted summary judgment to the organizations and the individuals, ruling that one or more of them had standing and that the issues presented were ripe for review. The trial court concluded that the ordinance requires the federal government to maintain ownership parity in the disposition and acquisition of federal properties and, consequently, conflicts with article I, section 8, clause 17 of the U.S. Constitution (the Property Clause), as well as the Federal Land Policy Management Act of 1976, 43 U.S.C. \\u00a7 1715(a) (1986). The trial court ruled that under article VI, clause 2 of the U.S. Constitution (the Supremacy Clause), the ordinance is preempted by federal law. The trial court also concluded that the board exceeded its authority in enacting the ordinance based upon article IX, sections 7 and 8 of the Idaho Constitution and related statutes which vest the state board of land commissioners with management authority over state lands. The trial court declared the entire ordinance void on the basis that the invalid provisions were pervasive and awarded the organizations and the individuals attorney fees under the private attorney general doctrine.\\nThe county and the board members appealed.\\nII.\\nONE OF THE INDIVIDUALS HAS STANDING.\\nThe county and the board members assert that the trial court incorrectly determined that one or more of the organizations and individuals had standing. We disagree.\\nIn Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989), the Court stated three basic propositions concerning standing that guide our decision here:\\n1. \\\"The doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated.\\\"\\n2. \\\"[T]o satisfy the case or controversy requirement of standing, litigants generally must allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury.\\\"\\n3. \\\"[A] citizen and taxpayer may not challenge a governmental enactment where the injury is one suffered alike by all citizens and taxpayers of the jurisdiction.\\\"\\nId. at 641, 778 P.2d at 763.\\nIn the present case, the county and the board members objected to various portions of the affidavits submitted by the organizations and the individuals concerning their standing to bring this action. The trial court sustained most of these objections, overruling only a few. We review those portions of the affidavits to which the county and the board members objected to determine whether they are admissible as required by I.R.C.P. 56(e). Hecla Mining Co. v. Star-Morning Mining Co., 122 Idaho 778, 782-87, 839 P.2d 1192, 1196-1201 (1992). We agree with the trial court in sustaining most of the county's and the board members' objections. Therefore, we do not consider these portions of the affidavits in determining whether the organizations and the individuals have standing.\\nConsidering the remaining portions of the affidavits submitted on behalf of the organizations and all but one of the individuals, they do not demonstrate an injury in fact or a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury. Likewise, with regard to the organizations and all but one of the individuals, we do not find an injury that is not suffered alike by all citizens of the county.\\nThe affidavit of Dan Krmpotich, a commercial guide in the county, contains the following statement that establishes his standing to challenge the ordinance: \\\"If Boundary County succeeds in enforcing the ordinance ., I shall lose a very substantial portion of my existing available open space usable for high quality recreation related to wildlife and wild lands.\\\" The county and the board members objected on the grounds that this statement lacked foundation, was an inadmissible opinion, and constituted speculation. There are other portions of the affidavit to which the county and the board members did not object, except to say that they were self-serving. So far as we can understand this objection, it does not render these statements inadmissible. These statements provide an ample foundation to support Krmpotich's concluding statement of the injury he will suffer from the enforcement of the ordinance. They reveal Krmpotich's reliance since 1982 on the federal and state public lands in the county as a site for professionally guiding for compensation over 200 clients. His opinion that if the counfy enforces the ordinance he will lose a very substantial portion of the existing available open space for this purpose qualifies as an expert opinion admissible pursuant to I.R.E. 702 and, therefore, does not constitute speculation. Krmpotich has demonstrated an injury in fact that is not one suffered alike by all citizens and taxpayers of the county and a substantial likelihood that a declaration of the uneonstitutionality of the ordinance will prevent or redress the claimed injury. Therefore, he has standing.\\nIII.\\nTHIS CASE IS RIPE FOR JUDICIAL REVIEW.\\nThe county and the board members assert that this case is not ripe for judicial review. We disagree.\\nIn Miles, the Court pointed out that \\\"a declaratory judgment action must raise issues that are definite and concrete, and must involve a real and substantial controversy as opposed to an advisory opinion based upon hypothetical facts. Ripeness asks whether there is any need for court action at the present time.\\\" 116 Idaho at 642, 778 P.2d at 764. All of these conditions are met in this case. The ordinance is in place. It contains several edicts concerning the compliance of federal and state agencies with the plan and announces that \\\"[n]o wilderness areas shall be designated in Boundary County.\\\" The ordinance proclaims: \\\"Boundary County shall enforce compliance with [the plan]....\\\" The affidavit of the board members who enacted the ordinance stating that they \\\"deemed that it would not be proper to seek enforcement of the ordinance by fines or penalties\\\" does not override the terms of the ordinance requiring enforcement. We will not speculate whether the board members will choose another form of enforcement or whether a new board will choose to enforce the ordinance by fines or penalties. The ordinance requires the plan to be enforced.\\nIn Harris v. Cassia County, 106 Idaho 513, 681 P.2d 988 (1984), the Court noted that\\nthe right sought to be protected by a de-elaratoiy judgment \\\"may invoke either remedial or preventative relief; it may relate to a right that has either been breached or is only yet in dispute or a status undisturbed but threatened or endangered; but, in either or any event, it must involve actual and existing facts.\\\"\\nId. at 516-17, 681 P.2d at 991-92 (quoting State ex rel. Miller v. State Bd. of Educ., 56 Idaho 210, 217, 52 P.2d 141, 144 (1935)). In the present case, the ordinance threatens to disturb the status and management of federal and state public lands in Boundary County. The issues are definite and concrete and there is a real and substantial controversy.\\nIV.\\nCONGRESS HAS PREEMPTED PORTIONS OF THE ORDINANCE PLACING REQUIREMENTS ON FEDERAL AGENCIES.\\nThe county and the board members assert that the none of the provisions of the ordinance is preempted by federal law. We disagree.\\nThe power over federal land granted to Congress in the Property Clause is plenary and without limitations. California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 580, 107 S.Ct. 1419, 1424-25, 94 L.Ed.2d 577 (1987). The Supremacy Clause invalidates state laws or local ordinances that \\\" 'interfere with, or are contrary to,' federal law.\\\" Hillsborough County, Fla v. Automated Medical Labs. Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 2374-75, 85 L.Ed.2d 714 (1985) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.)).\\nThe question we must address in this case is whether Congress has enacted legislation that preempts any portions of the ordinance. Granite Rock, 480 U.S. at 581, 107 S.Ct. at 1425. In Granite Rock, the Supreme Court delineated the elements of preemption:\\n\\\"[S]tate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.\\\"\\nId. (citations omitted) (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 616, 621, 78 L.Ed.2d 443 (1984)).\\nCongress has enacted numerous laws (federal land laws) that provide for the management and preservation of federal land and the resources on federal land. See, e.g., the Multiple-Use Sustained-Yield Act of 1960,16 U.S.C. \\u00a7 528-531 (1985); the Wilderness Act, 16 U.S.C. \\u00a7 1131-1136 (1985 & Supp. 1995); the Wild and Scenic Rivers Act, 16 U.S.C. \\u00a7 1271-1287 (1985 & Supp.1995); the Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C. \\u00a7 1600-1687 (1985 and Supp.1995); and the Federal Land Policy and Management Act of 1976, 43 U.S.C. \\u00a7 1701-1783 (1986 & Supp. 1995). Several portions of the ordinance that place requirements on federal agencies conflict with federal land laws.\\nThe ordinance requires that \\\"[flederal land agencies shall not acquire any private lands or rights in private lands within Boundary County without first ensuring . parity in land ownership status is maintained; and . private properly interests are protected and enhanced.\\\" This imposes restrictions on federal agencies that are inconsistent with federal laws authorizing acquisition of land. See, e.g., 16 U.S.C. \\u00a7 1277 (authorizing the Secretary of the Interior and the Secretary of Agriculture to acquire land within the boundaries of any component of the wild and scenic rivers system); 43 U.S.C. \\u00a7 1715(a) (authorizing the Secretary of the Interior to \\\"acquire pursuant to [the Federal Land Policy and Management Act of 1976], by purchase, exchange, donation or eminent domain, lands or interests therein\\\"); 7 U.S.C. \\u00a7 428a (1980) (authorizing the Department of Agriculture to \\\"acquire land, or interest therein, by purchase, exchange or otherwise, as may be necessary to carry out its authorized work\\\"). The provisions of the ordinance limiting the acquisition of land by federal agencies stand as obstacles to the full accomplishment of the purpose Congress evidenced in these laws.\\nThe ordinance requires that \\\"Boundary County shall determine land withdrawals for hazardous and non-hazardous waste storage as well as the types and points of origin of such waste.\\\" This conflicts with the authority of federal agencies and Congress itself concerning the withdrawal of federal land. See, e.g., 43 U.S.C. \\u00a7 1714(a), (d) (authorizing the Secretary of the Interior to make, modify, extend or revoke withdrawals of less than five thousand acres); 43 U.S.C. \\u00a7 1714(e) (requiring congressional review process for withdrawals of greater than five thousand acres).\\nThe ordinance requires that \\\"Boundary County concurrence shall be required prior to any [federal] land adjustments,\\\" \\\"whether it be by proposed disposal, exchange or proposed change in use,\\\" and that \\\"[b]efore federal . land agencies can change land use, adverse impact studies on uses shall be conducted and mitigation measure adopted with concurrence from Boundary County.\\\" The ordinance states that \\\"[t]his shall specifically include, but is not limited to any proposed changes in wildlife habitat, wildlife recovery plans, timber sales volume projections, restricted access, road closures, and primitive or wilderness designation.\\\" None of the federal land laws give local governmental units this type of veto power over decisions by federal agencies charged with managing federal land. In addition, this veto power is contrary to the provisions of the Endangered Species Act of 1973, 16 U.S.C. \\u00a7 1531-1543 (1985 & Supp. 1995), which authorizes the Secretary of the Interior, the Secretary of Commerce, and the Secretary of Agriculture to acquire land to carry out the purposes of the Act. 16 U.S.C. \\u00a7 1584. It is also contrary to the portion of the Endangered Species Act which requires the Secretary of the Interior and the Secretary of Commerce to develop and implement recovery plans for endangered species. 16 U.S.C. \\u00a7 1533(f). This veto power stands as an obstacle to the accomplishment of the full purposes and objectives Congress evidenced in these federal laws. The ordinance requires that \\\"[a]ny federally proposed designation of Wild and Scenic Rivers . shall comply with any County water use plan.\\\" The ordinance also requires \\\"full federal compliance in the acceptance and enforcement of' wild and scenic rivers designations by the county. These provisions are con trary to the process for the designation of wild and scenic rivers in the Wild and Scenic Rivers Act. 16 U.S.C. \\u00a7 1275-1276. The requirement stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.\\nThe ordinance commands that \\\"[n]o wilderness areas shall be designated in Boundary County.\\\" This conflicts with the process for the establishment of wilderness areas contained in the Wilderness Act. 16 U.S.C. \\u00a7 1132.\\nThe foregoing portions of the ordinance are preempted by federal law and are therefore unconstitutional.\\nV.\\nTHE PORTIONS OF THE ORDINANCE THAT ARE PREEMPTED BY FEDERAL LAW ARE NOT SEVERABLE.\\nThe county and the board members assert that any portions of the ordinance that are unconstitutional because they are preempted by federal law are severable. We disagree.\\nIf an unconstitutional portion of a statute or ordinance is integral or indispensable, it is not severable, and the entire measure must fall, although the Court will, when possible, recognize and give effect to a sever-ability clause. Idaho Dep't of Water Resources v. United States, 128 Idaho 246, 912 P.2d 614 (1995).\\nThe ordinance does contain a severability clause:\\nIf any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional by a federal or state court, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof.\\nDespite th\\u00e9 obvious intent of the board to preserve the remainder of the ordinance if portions are declared unconstitutional, the portions of the ordinance that are preempted by federal law are so integral and indispensable to the ordinance, we conclude the entire ordinance must fall. Some of the edicts contained in the ordinance apply to both federal and state agencies, but many are directed only at federal agencies. It is clear to us that the board did not intend to attempt to regulate only state land, but instead intended to regulate the use of all public land in the county. To sever the portions that attempt to restrict federal agencies and leave those that attempt to restrict state agencies emasculates the obvious purpose of the ordinance. Therefore, we conclude that the entire ordinance is invalid. Because of this ruling, it is unnecessary for us to address the claim that the ordinance violates the provisions of the Idaho Constitution concerning the management of state lands by the state board of land commissioners. Idaho Const, art. IX, \\u00a7 7, 8.\\nVI.\\nTHERE IS NO SUBSTANTIAL AND COMPETENT EVIDENCE TO SUPPORT A FINDING OF NECESSITY FOR THIS ACTION, ONE OF THE PREREQUISITES FOR THE AWARD OF ATTORNEY FEES PURSUANT TO THE PRIVATE ATTORNEY GENERAL DOCTRINE.\\nThe county and the board members assert that the trial court should not have awarded attorney fees pursuant to the private attorney general doctrine. We agree.\\nWe will overturn an award of attorney fees under the private attorney general doctrine only if the trial court has abused its discretion. Miller v. Echo Hawk, 126 Idaho 47, 49, 878 P.2d 746, 748 (1994). Whether the three-part test for determining to award attorney fees pursuant to the private attorney general doctrine is met requires a factual determination by the trial court. Id. We review factual findings that are the basis for an exercise of discretion in awarding fees to determine if the findings are clearly erroneous, that is, whether there is substantial and competent evidence to sustain them. Id.\\nOne part of the test to determine whether to award attorney fees under the private attorney general doctrine is the necessity for private enforcement. Id. The trial court resolved this part of the test by an oral ruling that \\\"[n]umerous agencies who are very much aware of this ordinance and for their own purposes . chose not to seek . public enforcement of it perhaps because they would wait for a more direct threat than was presented on the facts.\\\" To the extent this constitutes a finding of fact that there was the necessity for private enforcement, we review the record to see if there is any substantial and competent evidence to support this finding.\\nThe complaint alleges that neither the prosecuting attorney nor the attorney general would bring this action on behalf of the public. Also, there is some indication in the record that federal and state agencies were aware of the ordinance. The only other information in the record before us concerning the necessity for private enforcement is contained in comments of counsel for the parties during the hearing on the county's objections to the organizations' and the individuals' cost bill, which included attorney fees. Counsel for the organizations and individuals made the following comments:\\n\\\"The necessity for private enforcement.\\\" I don't think there's any question about that. As I point out, the Federal Government wasn't about to sue anybody. The state had sent back a letter with its \\u2014 with its Benewah County opinion saying Boundary County, you can't regulate our \\u2014 you can't regulate our state laws or state lands. This was ignored but the State wasn't about to do something until its finger got caught in the vice until somebody tried to do something which they had not done at the time we filed the lawsuit.\\nIn response, counsel for the county made the following comments:\\nWhat necessitated, what truly necessitated private enforcement. As [counsel for the organizations and the individuals] indicated, and if we take the position of [counsel for the organizations and the individuals] and just take it as the gospel, all the agencies that this policy applied to said we aren't going to worry about it, we'll take care of it when and if the question arises. After making these comments, counsel for the county went on to argue that there was no necessity for the organizations and the individuals to bring the action. These comments of counsel are not evidence, nor do they constitute a stipulation that neither the federal nor state agencies had taken any action to challenge the ordinance. There is no evidence to support the trial court's finding that these agencies chose not to seek to have the ordinance declared invalid. Therefore, there is no basis for the award of attorney fees pursuant to the private attorney general doctrine.\\nVIL\\nCONCLUSION\\nWe affirm the trial court's grant of summary judgment declaring the ordinance in violation of the U.S. Constitution and therefore null, void, and unenforceable in its entirety. We find it unnecessary to address the state constitutional implications of the ordinance. We reverse the trial court's award of attorney fees.\\nWe award Daniel Krmpotieh costs, but not attorney fees, on appeal.\\nMcDEVITT, C.J., and TROUT, J., concur.\"}"
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+"{\"id\": \"11922987\", \"name\": \"John HOWARD, Petitioner-Appellant on Appeal, v. CANYON COUNTY BOARD OF COMMISSIONERS, Respondent-Respondent on Appeal\", \"name_abbreviation\": \"Howard v. Canyon County Board of Commissioners\", \"decision_date\": \"1996-04-19\", \"docket_number\": \"No. 21879\", \"first_page\": \"479\", \"last_page\": \"482\", \"citations\": \"128 Idaho 479\", \"volume\": \"128\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:11:09.800147+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDEVITT, C.J., and JOHNSON, TROUT and SCHROEDER, JJ., concur.\", \"parties\": \"John HOWARD, Petitioner-Appellant on Appeal, v. CANYON COUNTY BOARD OF COMMISSIONERS, Respondent-Respondent on Appeal.\", \"head_matter\": \"915 P.2d 709\\nJohn HOWARD, Petitioner-Appellant on Appeal, v. CANYON COUNTY BOARD OF COMMISSIONERS, Respondent-Respondent on Appeal.\\nNo. 21879.\\nSupreme Court of Idaho, Boise,\\nFebruary 1996 Term.\\nApril 19, 1996.\\nEberle, Berlin, Fading, Tumbow & McKlveen, Chtd., Boise, for appellant. Warren E. Jones argued.\\nDavid L. Young, Canyon County Prosecutor; Charles L. Saari, Deputy Prosecutor, Caldwell, for respondent. Charles L. Saari argued.\", \"word_count\": \"1835\", \"char_count\": \"11910\", \"text\": \"SILAK, Justice.\\nJohn Howard (Howard) petitioned the Canyon County Planning and Zoning Commission (the Planning and Zoning Commission) for a conditional use permit to place a residential subdivision on 28 acres of land zoned agricultural. The Planning and Zoning Commission and, on appeal, the Canyon County Board of Commissioners (the Commissioners) denied the petition because Howard's proposed use would adversely impact the area's agricultural character. Howard appealed arguing that he had satisfied all conditions and requirements for a conditional use permit and therefore the Commissioners lacked the authority to deny his permit. We affirm.\\nI.\\nFACTS AND PROCEDURAL BACKGROUND\\nHoward owns approximately 78 acres of land in an area of Canyon County zoned agricultural. Howard petitioned the Planning and Zoning Commission for a conditional use permit to use 28 acres for a residential subdivision. The Planning and Zoning Commission viewed the site of the proposed subdivision and denied Howard's petition finding that the planned use would adversely impact the agricultural character of the area.\\nHoward appealed to the Commissioners. He presented evidence that the land in question was unsuitable for agricultural use, that the Nampa Highway District found no traffic problems which would result from the proposed subdivision, and that the fire district believed the subdivision would increase available water for adjacent subdivisions. At the public hearing, a number of interested property owners expressed various objections to Howard's planned use. The Commissioners denied the permit because (1) the subdivision would require the relocation of a main irrigation line, (2) two other subdivisions to the north were almost totally vacant, (3) the subdivision would add problems to the current traffic system, (4) no evidence was presented that the use would be essential or desirable to the public welfare or convenience, and (5) the subdivision would cumulatively change the character of the area in conflict with the Canyon County Comprehensive Plan (the Comprehensive Plan).\\nHoward appealed to the district court. The district court found that the record did not support a denial of the permit because of traffic concerns or the relocation of a main irrigation line. However, the court found that substantial evidence supported the Commissioners' conclusion that Howard's proposed subdivision would substantially and adversely affect the agricultural character of the area. As a result, it affirmed the Commissioners' denial of Howard's petition for a conditional use permit.\\nHoward appealed.\\nII.\\nISSUES ON APPEAL\\n1. Whether the Commissioners erred in denying issuance of Howard's conditional use permit.\\n2. Whether the Planning and Zoning Commission and the Commissioners have authority to deny a conditional use permit, expressly recognized in the Comprehensive Plan, when all reasonable conditions and restrictions upon such use have been satisfied by an applicant for a conditional use permit.\\nIII.\\nSTANDARD OF REVIEW\\nIn a case such as this, the Idaho Supreme Court reviews the record independently of the district court's appellate decision. South Fork Coalition v. Bd. of Comm'rs, 117 Idaho 857, 860, 792 P.2d 882, 885 (1990). Nonetheless, this Court's review is limited to a determination whether the zoning authority's findings and conclusions are supported by substantial, competent evidence. I.C. \\u00a7 67-5279; Butters v. Hauser, 125 Idaho 79, 81, 867 P.2d 953, 955 (1993). In addition, there is a strong presumption of validity favoring the actions of zoning authorities when applying and interpreting their own zoning ordinances. South Fork Coalition, 117 Idaho at 860, 792 P.2d at 885.\\nIV.\\nANALYSIS\\nA. The Commissioners Did Not Err in Denying Howard's Petition for a Conditional Use Permit.\\nHoward asserts that his petition satisfies all reasonable conditions and restrictions for the issuance of a conditional use permit. As such, he argues that the Com missioners must issue him a conditional use permit. We disagree.\\nPursuant to the Local Land Use Planning Act of 1975, I.C. \\u00a7 67-6501, et seq., Canyon County adopted the Comprehensive Plan and the Canyon County Zoning Ordinance No. 93-002 (the Ordinance). The Ordinance states:\\nThe purpose of the \\\"A\\\" (Agricultural) Zone is to have productive agricultural land areas set aside by zoning procedures. Productive and economically viable agricultural lands shall be preserved and protected in accordance with the Comprehensive Plan. Development compatible with agricultural uses may be permitted only in strict compliance with the . other provisions of this Ordinance and the Comprehensive Plan. Where the Commission and/or Board is satisfied that land is not suited for reasonable functioning agricultural uses because of size or other factors, . the Commission and/or Board may permit uses compatible to bona fide agricultural uses . when not in conflict with the Comprehensive Plan.\\nOrdinance, Section 12.3(A). In the case of petitions for a parcel split such as Howard's, the Commission \\\"may . permit the . uses where such uses are deemed essential or desirable to the public convenience or welfare.\\\" Ordinance, Section 12.3(C).\\nWhen deciding whether to grant a conditional use permit, the Ordinance requires the Commissioners to consider:\\n(1) Whether the Ordinance permits the use by Conditional Use Permit;\\n(2) Reasons for the application;\\n(3) Whether the proposed use is harmonious with and in accordance with the Comprehensive Plan.\\n(4) Whether the proposed use will be injurious to other property in the immediate vicinity and/or will change the essential character of the area;\\n(5) Whether adequate sewer, water and drainage facilities, and utility systems are to be provided to accommodate said use;\\n(6) Whether measures will be taken to provide adequate access to and from subject property so that there will be no undue interference with existing or future traffic patterns;\\n(7) Whether essential public services such as, but not limited to, school facilities, police and fire protection, emergency medical services and irrigation facilities, will be negatively impacted by such use or will require additional public funding in order to meet the needs created by the requested change.\\n(8) Whether the proposed use is essential or desirable to the public convenience or welfare.\\nOrdinance, Section 6.1(F).\\nFurther, the Ordinance states that \\\"the person or persons requesting relief under the Zoning Ordinance shall have the burden of persuasion.\\\" Ordinance, Section 3.5(A)(8). Thus, the burden of persuasion was upon Howard to show that all of the above requirements were satisfied. After a public hearing, the Commissioners concluded that Howard's use would not be desirable of the public welfare or convenience and the additional lots would cumulatively change the character of the area in conflict with the Comprehensive Plan. We agree.\\nHoward does not dispute that the area surrounding his land has a pervasively agricultural character. Rather, he argues that his use is compatible with this agricultural character. Indeed, a residential area may be compatible with an existing agricultural use and the Ordinance recognizes this fact. Ordinance, Section 12.3(A), (C). However, the recognition of this fact does not lead to the conclusion that every proposal to build a residential development in an agricultural area must be granted. As the above mentioned criteria indicate, whether to grant a conditional use permit is fact specific. One or two residential areas in an agricultural zone may have only a de minimis effect, but a third development may cumulatively affect the overall character of the area. The Commissioners found that to be the case here.\\nBy his permit, Howard attempts to change the use of approximately a third of his land from agricultural to residential in an area with a pervasive agricultural character. Howard's proposed use would be the third residential subdivision in that area. In addition, the preliminary plat for Howard's subdivision shows that the subdivision is to be built in the middle of his 78 acre property, thus splitting the remaining agricultural area of the land in half. The Commissioners' conclusion that approval of such use would cumulatively change the agricultural character of the area is not clearly erroneous.\\nMoreover, we also affirm the decision that Howard's proposal is in conflict with the Comprehensive Plan. The Comprehensive Plan explicitly seeks to \\\"relieve farm areas of the adverse effects of scattered nonfarm uses\\\" and \\\"eliminate divisions of agriculture parcels for purposes other than bona fide agricultural activities.\\\" Comprehensive Plan, pgs. 18-19. Substantial and competent evidence supports the Commissioners' conclusion that approval of Howard's subdivision in the middle of a large agricultural tract would be the \\\"scattered nonfarm\\\" use prohibited by the Comprehensive Plan and would cumulatively affect the area's character in conflict with the Comprehensive Plan.\\nFinally, we also note that no evidence was presented before the Commission that Howard's use was essential or desirable to the public convenience or welfare. Howard cites authorities from other jurisdictions for the proposition that the challengers to a proposed use bear the burden of proving that the use is violative of the general welfare. This argument lacks merit. The Ordinance specifically places the burden of persuasion upon the applicant to prove that all conditions, including whether the proposed use is essential or desirable to the public welfare, are satisfied. Ordinance, Section 3.5(A)(8). Howard's failure to present any evidence in this regard is further grounds for the denial of his conditional use permit.\\nThus, we conclude that Howard has failed to carry his burden of showing that all the conditions for the issuance of a conditional use permit have been met. Accordingly, we affirm the Commissioners' denial of Howard's petition for a conditional use permit.\\nB. Because Howard Failed to Satisfy All Requirements For the Issuance of a Conditional Use Permit, We Do Not Address Whether Zoning Authorities Have Authority to Deny a Conditional Use Permit When All Requirements for Its Issuance Have Been Satisfied.\\nHoward argues that since the Ordinance specifically allows the granting of conditional use permits in agricultural zones, it is tantamount to a legislative approval of such conditional use and the Canyon County zoning authorities have no discretion to deny the conditional use when the conditions for such use are met. However, because we find that Howard's petition did not meet all the requirements for the issuance of a conditional use permit, we do not address Howard's contention that had he met all such conditions the Commissioners would have lacked the authority to deny his petition.\\nY.\\nCONCLUSION\\nThe Ordinance places the burden of persuasion upon an applicant to prove that all conditions for the granting of a permit have been satisfied, including proof that the proposed use is consistent with the Comprehensive Plan, that the use will not change the essential character of the area, and that the use is essential or desirable to the public convenience or welfare. Howard has failed to carry his burden in this regard and we affirm the Commissioners' denial of his conditional use permit.\\nCosts on appeal to respondent.\\nMcDEVITT, C.J., and JOHNSON, TROUT and SCHROEDER, JJ., concur.\"}"
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+"{\"id\": \"12173188\", \"name\": \"In the MATTER OF the Declaration of Parentage and Termination of Parental Rights of: Jane DOE II, A Minor Child (2015-25). Jane Doe, Married Gestational Carrier, and John Doe, Husband of Gestational Carrier, Petitioners-Appellants, v. John Doe I, Married Intended Father, and Jane Doe I, Married Intended Mother, Respondents\", \"name_abbreviation\": \"Doe v. Doe\", \"decision_date\": \"2016-06-02\", \"docket_number\": \"Docket No. 43796\", \"first_page\": \"360\", \"last_page\": \"362\", \"citations\": \"160 Idaho 360\", \"volume\": \"160\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:01:01.283414+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice J. JONES and Justices EISMANN, BURDICK and HORTON concur.\", \"parties\": \"In the MATTER OF the Declaration of Parentage and Termination of Parental Rights of: Jane DOE II, A Minor Child (2015-25). Jane Doe, Married Gestational Carrier, and John Doe, Husband of Gestational Carrier, Petitioners-Appellants, v. John Doe I, Married Intended Father, and Jane Doe I, Married Intended Mother, Respondents.\", \"head_matter\": \"372 P.3d 1106\\nIn the MATTER OF the Declaration of Parentage and Termination of Parental Rights of: Jane DOE II, A Minor Child (2015-25). Jane Doe, Married Gestational Carrier, and John Doe, Husband of Gestational Carrier, Petitioners-Appellants, v. John Doe I, Married Intended Father, and Jane Doe I, Married Intended Mother, Respondents.\\nDocket No. 43796\\nSupreme Court of Idaho, Boise, April 2016 Term.\\nFiled: June 2, 2016\\nJones, Gledhill, Fuhrman, Gourley, PA, Boise, attorneys for appellant. Steven Meade argued.\\nCoekerille Law Office, Idaho City, attorneys for respondent. Monica Coekerille argued.\", \"word_count\": \"1352\", \"char_count\": \"8573\", \"text\": \"W. JONES, Justice\\nI. Nature of the Case\\nRespondents, Jane Doe I (\\\"Intended Mother\\\") and John Doe I (\\\"Intended Father\\\" and collectively with Intended Mother, \\\"Intended Parents\\\") are a married couple living in Alaska. In May, 2014, Intended Parents contracted with Jane Doe (\\\"Gestational Carrier\\\"), a gestational surrogate living in Idaho, to carry an embryo made from Intended Father's sperm and a donor egg. After the baby was born, Gestational Carrier and her husband, John Doe (\\\"Husband\\\"), moved for a declaratory judgment that Intended Parents are the parents of the resulting child (\\\"Child\\\"). The district court refused. It reasoned that declaratory judgment was not available to determine the parentage of Child because Idaho law already provides a statutory means by which parties can become parents when using a gestational surrogate\\u2014 the termination of that gestational surrogate's parental rights and the adoption of the child. The district court also found that the surrogacy agreement entered into between the parties was void as against public policy to the extent that it sought to contractually assign parentage.\\nII. Factual and PROCEDURAL Background\\nIntended Parents are a married couple living in Alaska. In May, 2014, Intended Parents entered into a contract (the \\\"Surrogacy Contract\\\") with Gestational Carrier and Husband, a couple living in Idaho. The Surrogacy Contract provided that a donor egg possessed by Intended Parents, which had been fertilized with Intended Father's sperm, would be implanted in Gestational Carrier, who would carry the resulting fetus to term. Once Child was born, Gestational Carrier and Husband would take whatever steps were necessary under Idaho law to ensure that: (1) Intended Parents be named the legal parents of Child; (2) Intended Parents be listed as parents on Child's birth certificate; and (3) Intended Parents obtain immediate sole legal and physical custody of Child.\\nOn July 17, 2015, Gestational Carrier gave birth to Child at St. Alphonsus Hospital in Boise, Idaho. Immediately after Child's birth, Child was placed in the care and custody of Intended Parents, where she has remained throughout this case.\\nOn July 18, 2015, Intended Father, Gestational Carrier and Husband, each signed an affidavit stating that Intended Father, and not Husband, is the biological father of child and should be listed on the birth certificate.\\nOn August 25, 2015, Gestational Carrier and Husband filed an amended petition for declaration of parentage (the \\\"Amended Petition\\\") with the district court. By the Amended Petition, Gestational Carrier and Husband moved for a declaratory judgment that Intended Parents are the biological, legal, and lawful parents of Child, and that Gestational Carrier and Husband are not the legal parents of Child.\\nOn November 9, 2015, the district court issued its decision on the Amended Petition. The district court held, inter alia, that: (1) it is not appropriate for the district court to issue declaratory judgments under Idaho Code section 10-1201 where statutory procedures already address the circumstances at issue\\u2014specifically, a gestational surrogate can terminate her parental rights through a termination proceeding under Idaho Code, Title 16, Chapter 20, and an intended mother can adopt a child under Idaho Code, Title 16, Chapter 15; (2) the fact that a six month residency requirement prevents out of state couples from adopting in Idaho is immaterial, because Intended Mother could presumably adopt Child under Alaska law; and (3) \\\"the terms of the contract sought to be enforced are against public policy, to the extent they are said to establish the parental rights and responsibilities concerning the child . [s]uch contract terms would be in contravention to the Idaho adoption and termination of parental rights statutory schemes.\\\"\\nOn January 14, 2016, the district court entered a judgment denying the request for declaratory relief.\\nGestational Carrier and Husband now appeal.\\nIII. Issues on Appeal\\n1. Did the district court err in refusing to grant declaratory judgment under Idaho Code section 10-1201?\\n2. Did the district court err in finding that the terms of the Surrogacy Contract were against public policy?\\nIV.STANDARD OP REVIEW\\nWhen this Court reviews a trial court's findings of fact and conclusions of law after a bench trial, the review is \\\"limited to ascertaining whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions of law.\\\" Borah v. McCandless, 147 Idaho 73, 77, 205 P.3d 1209, 1213 (2009) (citing Benninger v. Derifield, 142 Idaho 486, 488-89, 129 P.3d 1235, 1237-38 (2006)). Because \\\"it is the province of the trial court to weigh conflicting evidence and testimony and to judge the credibility of the witnesses,\\\" this Court liberally construes the trial court's findings of fact in favor of the judgment. Id. (citing Rowley v. Fuhrman, 133 Idaho 105, 107, 982 P.2d 940, 942 (1999)).... \\\"This Court exercises free review over matters of law.\\\" Id. (citing Bolger v. Lance, 137 Idaho 792, 794, 53 P.3d 1211, 1213 (2002)).\\nBettwieser v. New York Irrigation Dist., 154 Idaho 317, 322, 297 P.3d 1134, 1139 (2013).\\nV.Analysis\\nA. The district court did not err in refusing to grant a declaratory judgment, because there is no legal basis on which it could have done so.\\nIdaho Code section 10-1201 empowers Idaho courts to \\\"declare rights, status, and other legal relations, whether or not further relief is or could be claimed.\\\" I.C. \\u00a7 10-1201.\\nThe parties in this case assert that: because (1) Idaho Code section 10-1201, et. seq. allows Idaho courts to make judicial declarations of the \\\"legal relations\\\" of parties; and (2) the parent-child relationship is a legal relationship under Idaho law; that (3) Idaho courts have the power to establish parent-child relationships by entering declaratory judgments.\\nWe disagree. Although the parties are correct that as a procedural matter Idaho Code section 10-1201, et. seq. does allow courts to declare legal relations, that power is inherently limited to the interpretation of previously established substantive law. Idaho Code section 10-1201, et. seq. does not give this Court, or any other Idaho court, the power to create law. \\\"The legislature and the legislature only, under our constitution, has power to legislate.\\\" Thomas v. Riggs, 67 Idaho 223, 228, 175 P.2d 404, 407 (1946). Where the legislature has not seen fit to provide substantive legal grounds on which a court can base a requested declaration, then it is outside of the authority of that court to make said declaration, even when it would further the interests of all parties involved (as here).\\nHere, there is no previously established legal basis on which this Court can declare the parental rights of Intended Parents. The legislature has provided only the currently existing termination and adoption regimes, which give no special consideration to intended parents who have obtained the services of a surrogate. Unless and until the legislature chooses to enact legislation specifically addressing surrogacy, Intended Parents must proceed within the legal avenues available to them to establish legal parenthood. The fact that Idaho law does not allow non-residents to utilize its adoption statutes is of no import here. Intended Mother is viewed under Idaho law exactly as any other mother wishing to adopt in Idaho.\\nB. We need not address whether surrogacy agreements are against public policy.\\nBecause we have already held that the district court did not err in refusing to grant declaratory relief there is no need at this time for us to address whether the underlying surrogacy contract was in violation of public policy.\\nVI.Conclusion\\nThe judgment of the district court is affirmed.\\nChief Justice J. JONES and Justices EISMANN, BURDICK and HORTON concur.\\n. Intended Parents supported this motion and, though listed as Respondents, are fully in support of this appeal.\"}"
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diff --git a/idaho/12314119.json b/idaho/12314119.json
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+"{\"id\": \"12314119\", \"name\": \"PORTFOLIO RECOVERY ASSOCIATES, LLC., Plaintiff-Respondent, v. Lloyd MACDONALD, Defendant-Appellant\", \"name_abbreviation\": \"Portfolio Recovery Associates, LLC v. MacDonald\", \"decision_date\": \"2017-06-01\", \"docket_number\": \"Docket No. 43346\", \"first_page\": \"228\", \"last_page\": \"236\", \"citations\": \"162 Idaho 228\", \"volume\": \"162\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:25:00.116853+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice BURDICK, and Justices EISMANN, JONES and HORTON concur.\", \"parties\": \"PORTFOLIO RECOVERY ASSOCIATES, LLC., Plaintiff-Respondent, v. Lloyd MACDONALD, Defendant-Appellant.\", \"head_matter\": \"395 P.3d 1261\\nPORTFOLIO RECOVERY ASSOCIATES, LLC., Plaintiff-Respondent, v. Lloyd MACDONALD, Defendant-Appellant.\\nDocket No. 43346\\nSupreme Court of Idaho, Boise, January 2017 Term.\\nFiled: June 1, 2017\\nBallard Law, PLLC, Rexburg, for appellant.\\nJohnson Mark, LLC, Meridian, for respondent.\", \"word_count\": \"3737\", \"char_count\": \"23185\", \"text\": \"ON THE BRIEFS\\nBRODY, Justice.\\nThis is a debt collection matter. Plaintiff Portfolio Recovery Associates, LLC (\\\"PRA\\\") sued Defendant Lloyd MacDonald for the amount owed on a Citibank credit card account. MacDonald filed a motion for summary judgment, arguing that PRA did not have standing to bring this action because it could not prove that the debt had been assigned by Citibank to PRA. PRA filed a cross-motion for summary judgment. MacDonald objected to the evidence PRA submitted to support its position, arguing that the evidence was inadmissible hearsay and lacked adequate foundation. The magistrate court overruled MacDonald's objections and granted summary judgment in favor of PRA. MacDonald appealed to the district court. The district court affirmed the magistrate court's decision. We reverse.\\nI.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nPRA purchases charged-off credit card accounts and then attempts to collect the debts. PRA claims to own a Citibank credit card account for Lloyd MacDonald. PRA sued MacDonald in magistrate court alleging he failed to pay $3,776.29 owed on the account. MacDonald filed a motion for summary judgment, arguing that PRA did not have standing to bring the suit because PRA could not prove that the account had been assigned to it. PRA filed an objection to MacDonald's motion and a cross-motion for summary judgment. PRA attached the following exhibits to its objection and cross-motion:\\nExhibit 1 Affidavit of Chad Robertson, a Citibank Document Control Officer (\\\"Robertson Affidavit\\\"). No exhibits are attached to the affidavit itself.\\nExhibit 2 Affidavit of Sale of Account by Original Creditor signed by Patricia Hall, a Citibank Financial Account Manager, dated July 16, 2013 (\\\"Hall Affidavit\\\").\\nExhibit 3 Bill of Sale and Assignment from Citibank to PRA\\nExhibit 4 Missing (it is not part of the Clerk's Record and is not part of the record below).\\nExhibit 5 Sears credit card statements in MacDonald's name.\\nMacDonald objected to the consideration of these exhibits, arguing that they are inadmissible hearsay and that the statements contained in the Robertson Affidavit lack foundation. The magistrate court overruled MacDonald's evidentiary objections and granted summary judgment in favor of PRA. MacDonald appealed the magistrate court's decision to the district court. The district court, sitting as an intermediate appellate 00\\u2122.% affirmed the magistrate court's decision. MacDonald appeals the district court's decision, arguing that the Robertson Affidavit and credit card statements are inadmissible and should not have been considered when deciding the parties' cross-motions for summary judgment.\\nII.\\nSTANDARD OF REVIEW\\nWhen reviewing the decision of a district court sitting in its capacity as an appellate court\\n[t]he Supreme Court reviews the trial court (magistrate) record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure.\\nBailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012) (quoting Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008)). \\\"Thus, this Court does not review the decision of the magistrate court.\\\" Pelayo v. Pelayo, 154 Idaho 855, 859, 303 P.3d 214, 218 (2013). \\\"Rather, we are 'proeedurally bound to affirm or reverse the decisions of the district court.' \\\" Id. (quoting State v. Korn, 148 Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009)).\\nIII.\\nANALYSIS\\nA. The Robertson Affidavit does not contain adequate foundation and is not admissible under the business records exception to the hearsay rule.\\nMacDonald challenged the admissibility of the Robertson Affidavit, arguing that the statements contained in the affidavit are hearsay and lack adequate foundation. He argued that the affidavit should not be considered when deciding the cross-motions for summary judgment based on the 2014 version of Idaho Rule of Civil Procedure 56(e) which provided that assertions of fact must be properly supported by admissible evidence. Rule 56(e) stated:\\nSupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.\\nWe have held that these requirements \\\"are not satisfied by an affidavit that is eoneluso-ry, based on hearsay, and not supported by personal knowledge.\\\" State v. Shama Res. Ltd. P'ship, 127 Idaho 267, 271, 899 P.2d 977, 981 (1995).\\nTo determine the admissibility of the Robertson Affidavit it is necessary to look at the actual text of the document. The Robertson Affidavit stated in relevant part:\\nAFFIDAVIT\\nSTATE OF MISSOURI )\\n) ss,\\nCOUNTY OF PLATIE )\\nAccount Holder: LLOYD MACDONALD SSN/FTN7TIN \\u00a7: xxx-xx-xxxx\\nAccount # ending in xxxx\\nThe undersigned, Chad Robertson, being duly sworn, states and deposes as follows:\\n1. I am an employee of Citibank, N.A. (\\\"Citibank\\\"), a national bank located in Sioux Falls, South Dakota, and I am authorized to make this Affidavit. My job title is Document Control Officer. My job responsibilities include reviewing and obtaining account information in Citibank's records as it relates to credit card accounts owned or previously owned by Citibank. This includes accounts previously owned by Citibank (South Dakota), N.A., which merged into Citibank in or about July 2011. The statements set forth in this affidavit are true and correct to the best of my knowledge, information and belief based on either personal knowledge or review of the business records of Citibank.\\n2. My duties include having knowledge of, and access to, business records relating to the Citibank account referenced above. These recoi-ds are kept by Citibank in the regular course of business and it was in the regular course of business of Citibank for an employee or representative with personal knowledge of the act, event, condition, or opinion recorded to make memorandum or records or to transmit information thereof to be included in such memorandum or records; and that the records were made at or near the time of the act and/or event recorded or reasonably soon thereafter.\\n3. Citibank's records reflect that a credit card account ending in account number 2766 (the \\\"Account\\\") was sold to Portfolio Recovery Associates, LLC on or about 6/27/2013. At the time the Account was sold, Citibank prepared and forwarded to Portfolio Recovery Associates, LLC a spreadsheet reflecting Account information as of the sale date based on Citibank's records, including, among other things, the Account number, Account balance, the date of the last payment, the Account holder's name, and Social Security number (the \\\"Account Information\\\"). The Account Information reflects that the Account was opened on 10/4/2005, The Account Information reflects that the Account holder's name at time of the sale was LLOYD MACDONALD, with a Social Security number ending: xxx-xx-xxxx.\\n4. The Account Information indicates that, as of the date the Account was sold, there was due and payable on the Account $3,776.29.\\n5. The Account Information reflects that, as of the date the Account was sold, the last Account payment received by Citibank posted to the Account on 10/2/2012.\\n(emphasis added).\\nThe district court examined MacDonald's objections to the Robertson Affidavit under Idaho Rule of Evidence 803(6)\\u2014the business records exception to the hearsay rule. Rule 803(6) sets forth the foundational requirements for the admission of business records. It states:\\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\\n(6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with 902(11), unless the opponent shows the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term \\\"business\\\" as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit.\\nI.R.E. 803(6) (emphasis added).\\nThis Court has made it clear that Rule 803(6) does not require the testimony of the person who created the document in order to admit it as a business record. \\\"The general requirement for admission under I.R.E. 803(6) is that the document be 'produced in the ordinary course of business, at or near the time of occurrence and not in anticipation of trial.' \\\" Large v. Cafferty Realty, Inc., 123 Idaho 676, 683, 851 P.2d 972, 979 (1993) (citing Beco Corp. v. Roberts & Sons Const. Co., 114 Idaho 704, 711, 760 P.2d 1120, 1127 (1988)). The Court has also noted:\\nBecause records of regularly conducted activity are not normally self proving, as public records may be under Rule 803(8), the testimony of the custodian or other person who can explain the record keeping of the organization is ordinarily essential. The custodian need not have personal knowledge of the actual creation of the document nor need [the custodian] have been an employee of the business when the record was made. The test is whether [the custodian] has knowledge of the system used to make the record and not whether [the custodian] has knowledge of the contents of the record.\\nId. (quoting Report of the Idaho State Bar Evidence Committee, C 803, p. 10 (4th Supp. 1985) (emphasis added)).\\nMacDonald argued that the statements contained in the Robertson Affidavit are likely based on information contained on a computer screen. We agree. The fact that Robertson's statements are based on electronic information, however, still implicates Rule 803(6). The Rule makes it clear that a business record can be in any format. In other words, a paper printout is not required to fall under the Rule. Having said that, however, we recognize that electronic information raises heightened concerns about accuracy and authenticity. This is where the foundation for Robertson's statements falls apart.\\nRobertson stated in his affidavit that Citibank records showed that the account linked to MacDonald was sold to PRA. He did not identify the records he examined and did not explain when or how the information was entered into the Citibank records. Robertson also stated that Citibank prepared and delivered a spreadsheet to PRA reflecting account information as of the sale date. Robertson does not explain, however, how that spreadsheet was made or the procedural safeguards that were used to make sure that the information taken from Citibank records and put on the spreadsheet was accurate. His affidavit also does not contain any statement verifying that the information on the spreadsheet was still accurate at the time of his affidavit. The reality is that consumers do not always know or understand when accounts are sold and may make payments to their credit card company that are not reflected on a spreadsheet created at the time of the sale of the debt. For these reasons we find that the foundation for the statements contained in the Robertson Affidavit was not adequate under Rule 803(6).\\nThe magistrate court ruled on MacDonald's objection to the Robertson Affidavit from the bench. Unfortunately, the court did not go through a detailed analysis of the affidavit itself on the record. Instead, the court ruled that it was persuaded to admit the affidavit based on another trial court opinion that MacDonald submitted. We have reviewed that opinion and do not find that it addresses the issues raised in this case. The magistrate court also stated that it would more fully articulate the basis for its decision in two cases that were under advisement in another county. Those decisions are not part of this record, and we cannot use them to evaluate the magistrate court's reasoning. There is not an adequate record to support the magistrate court's decision to admit the Robertson Affidavit, and as such, we find that the magistrate court abused its discretion. The district court erred when it affirmed the magistrate court's decision.\\nB. The Sears Credit Card Statements were inadmissible because they lacked certification.\\nMacDonald also challenged the admissibility of the Sears credit card statements that were submitted by PRA. He contends that the credit card statements are hearsay and do not fall under the business records exception in Rule 803(6). The magistrate court ruled that the credit card statements were admissible. The district court affirmed the decision, finding that the Robertson Affidavit satisfied the certification requirements of Idaho Rule of Evidence 902(11). Rule 902(11) allows the admission of certified records of regularly conducted activity without extrinsic evidence of authenticity. Under the rule, the custodian of the record, or another qualified person, must certify that the record: (1) was made, at or near the time of the occurrence of the matters in the record to be admitted, by a person who has knowledge of those events; (2) is kept in the course of regularly conducted activity; and (3) was made as a regular practice. Because we have ruled that the Robertson Affidavit is inadmissible, there is no certification for the Sears credit card statements. As such, it was an abuse of discretion for the magistrate court to consider the credit card statements, and the district court erred when it affirmed that decision.\\nC. The catch-all exception to the hearsay rule cannot be used to admit the Robertson Affidavit or Sears Credit Card Statements.\\nPRA contends that the \\\"catch-all\\\" exception to the hearsay rule can be used to admit the Robertson Affidavit and Sears credit card statements. Rule 803(24) of the Idaho Rules of Evidence is the catch-all exception. The rule states in relevant part:\\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness.\\n(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general pm^poses of these rules and the interests of justice will best be served by admission of the statement into evidence.\\nI.R.E. 803(24). To allow PRA to use the catch-all exception in this case would render the foundational requirements in 803(6) and the certification requirements in 902(11) meaningless. We addressed this type of argument in Fragnella v. Petrovich, 153 Idaho 266, 281 P.3d 103 (2012). In Fragnella, the Court declined to use the catch-all exception to admit a police report where the Idaho Rules of Evidence specifically stated that a police report is not admissible as a public record. See id. at 275, 281 P.3d at 112 (discussing I.R.E. 803(8)). Although Rule 803(6) and Rule 902(11) do not prohibit the introduction of the Robertson Affidavit or the Sears credit card statements, these rules lay out basic foundation requirements that simply were not satisfied in this case. We recognize that the magistrate court did not consider whether the \\\"catch-all\\\" provision could be used to admit the evidence at issue. Because we find that the catch-all exception does not apply, no findings by the magistrate court on remand are necessary.\\nD.Summary judgment could not be properly granted in MacDonald's favor.\\nMacDonald argues that PRA lacks standing to bring suit because the company has not proven that it owns the Citibank account. The district court rejected this argument, finding that the Robertson Affidavit when accompanied by the Bill of Sale and credit card statements shows that an assignment took place. While we generally do not review denials of motions for summary judgment, we find that MacDonald did not adequately marshal PRA's evidence regarding the existence of an assignment, and therefore, summary judgment could not be granted in his favor on this issue.\\nStanding is not a mere pleading requirement, \\\" 'but rather an indispensable part of the plaintiffs ease.'\\\" Camp Easton Forever, Inc. v. Inland Nw. Council Boy Scouts of Am., 156 Idaho 893, 898, 332 P.3d 805, 810 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).\\n\\\" '[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation,'\\\" Id. (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130). Thus, PRA ultimately bears the burden of proving that MacDonald had a contractual obligation to pay money to Citibank and that PRA is the assignee of that obligation.\\nBecause PRA bears this burden of proof, MacDonald's burden in support of his motion for summary judgment could \\\"be satisfied by showing the absence of material fact with regard to\\\" PRA's claim to be the assignee of MacDonald's obligation. Bromley v. Garey, 132 Idaho 807, 810, 979 P.2d 1165, 1168 (1999). If the materials that MacDonald submitted in support of his motion for summary judgment satisfied this threshold burden, then the burden shifted to PRA to demonstrate by way of admissible evidence that a genuine issue of material fact exists as to this issue. Sherer v. Pocatello Sch. Dist. No. 25, 143 Idaho 486, 489-90, 148 P.3d 1232, 1235-36 (2006).\\nMacDonald failed to meet this initial burden. Consequently, PRA was not required to present admissible evidence to resist MacDonald's motion for summary judgment. MacDonald could have shown the absence of evidence of an assignment \\\"either by an affirmative showing with [his] own evidence or by a review of all [PRA's] evidence and the contention that such proof of an element is lacking.\\\" Holdaway v. Broulim's Supermarket, 158 Idaho 606, 611, 349 P.3d 1197, 1202 (2015) (citing Antim v. Fred Meyer Stores, Inc., 150 Idaho 774, 776, 251 P.3d 602, 604 (Ct. App. 2011)).\\nApparently, because MacDonald had no personal knowledge as to whether Citibank assigned its interest in his account to PRA, he made no effort to make an affirmative showing that there was no assignment to PRA. Instead, under Rule of Civil Procedure 56 as it then existed, the only basis upon which summary judgment could have been granted to MacDonald due to PRA's lack of standing was if MacDonald presented the trial court with a review of all of PRA's evidence of an assignment coupled with the contention that the assembled evidence failed to demonstrate the existence of an assignment. This did not occur. It is important to note that after the summary judgment proceedings were complete before the trial court, Rule 56 was amended, and the amendments took effect on July 1, 2016. We address Rule 56 as it existed at the time of the trial court's decision.\\nThe only affidavit that MacDonald offered in support of his motion for summary judgment was that of his attorney. The affidavit represented that PRA had responded to the unspecified discovery requests and produced the Bill of Sale, the Affidavit of Patricia Hall, and thirteen account statements that were appended to counsel's affidavits as exhibits. Counsel's affidavit did not assert that the appended documents were the entirety of the evidence produced in response to the discovery request.\\nMacDonald's brief in support of his motion does represent that \\\"Plaintiff has provided all the documents it will be able to produce to prove the validity of the debt it claims Defendant owes, as well as its evidence it owns the alleged debt.\\\" There are two difficulties with this representation. The brief is silent as to whether counsel's affidavit contained all documents PRA provided in response to the discovery requests. The greater difficulty with this representation is that the factual assertions in a party's brief in support of a motion for summary judgment were not a basis for granting a motion for summary judgment at the time of the trial court's ruling. Idaho Rule of Civil Produce 56(c) provided that summary judgment decisions were to be based upon \\\"the pleadings, depositions, and admissions on file, together with the affidavits, if any\\\" offered in support of the motion. A representation contained in a brief is not among the items upon which summary judgment could have been properly granted.\\nBecause MacDonald did not adequately marshal PRA's evidence regarding the existence of an assignment, PRA did not ever have a burden of responsive production to show its standing to pursue its claim, and so summary judgment could not properly be granted in MacDonald's favor.\\nIV.\\nATTORNEY'S FEES\\nMacDonald requests an award of attorney's fees on appeal pursuant to Idaho Code section 12-120(1), which allows reasonable attorney's fees to the prevailing party. Because the case is not yet resolved, there is no prevailing party. Where there is no present prevailing party, this Court has refused to award attorney's fees. Howard v. Perry, 141 Idaho 139, 143, 106 P.3d 465, 469 (2005). If MacDonald is ultimately the prevailing party, then the trial court may award him attorney's fees for this appeal.\\nV.\\nCONCLUSION\\nWe reverse the decision of the district court. We remand with instructions to the district court to remand this case to the magistrate court with instructions to vacate the judgment entered in favor of PRA and conduct further proceedings. Costs to MacDonald.\\nChief Justice BURDICK, and Justices EISMANN, JONES and HORTON concur.\"}"
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+"{\"id\": \"12314445\", \"name\": \"Geralyn GALLAGHER, Plaintiff-Appellant, v. BEST WESTERN COTTONTREE INN, Snake River Petersen Properties, LLC, a Wyoming Close Limited Liability, and Does 1 through 10 inclusively, Defendants-Respondents\", \"name_abbreviation\": \"Gallagher v. Best Western Cottontree Inn\", \"decision_date\": \"2017-01-19\", \"docket_number\": \"Docket No. 43695\", \"first_page\": \"542\", \"last_page\": \"546\", \"citations\": \"161 Idaho 542\", \"volume\": \"161\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:28:25.623372+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice J. JONES and Justices EISMANN, BURDICK and W. JONES concur.\", \"parties\": \"Geralyn GALLAGHER, Plaintiff-Appellant, v. BEST WESTERN COTTONTREE INN, Snake River Petersen Properties, LLC, a Wyoming Close Limited Liability, and Does 1 through 10 inclusively, Defendants-Respondents.\", \"head_matter\": \"388 P.3d 57\\nGeralyn GALLAGHER, Plaintiff-Appellant, v. BEST WESTERN COTTONTREE INN, Snake River Petersen Properties, LLC, a Wyoming Close Limited Liability, and Does 1 through 10 inclusively, Defendants-Respondents.\\nDocket No. 43695\\nSupreme Court of Idaho, Twin Falls, November 2016 Term.\\nFiled: January 19, 2017\\nBrowning Law, Idaho Palls, for appellant. Alan Browning argued.\\nMoore & Elia, LLP, Boise, for respondent. Steven R. Kraft argued.\", \"word_count\": \"2355\", \"char_count\": \"13937\", \"text\": \"HORTON, Justice.\\nThis is an appeal from the district court's order granting summary judgment and dismissing Geralyn Gallagher's (Gallagher) lawsuit against the Best Western Cottontree Inn (the Hotel) and Snake River Peterson Properties LLC (Snake River). The district court held that the amended complaint did not relate back to the date of the original filing and that the statute of limitations was not tolled by Snake River's failure to file a certificate of assumed business name. We vacate and remand.\\nI.FACTUAL AND PROCEDURAL BACKGROUND\\nGallagher was injured when she fell on a wet floor at the Hotel on July 10,2012. There is only one Best Western Cottontree Inn in Idaho. The Hotel was owned and operated at that time by Snake River. In preparing to file this suit, Gallagher searched the Secretary of State's database to determine who owned the Hotel. According to the database, the Hotel was owned by L & L Legacy Limited Partnership (L & L) and the certificate of assumed business name was current. Snake River acquired the Hotel before Gallagher's injury but failed to file a certificate of assumed business name with the Secretary of State's office.\\nOn July 9, 2014, Gallagher filed this suit. After filing the complaint, Gallagher attempted to serve Scott Eskelson, who was authorized to accept service on behalf of L & L. The record does not show when Gallagher attempted to serve Eskelson. Mr. Eskelson refused to accept service and informed Gallagher that the Hotel had been sold to Snake River and that Snake River owned the Hotel at the time Gallagher was injured. Gallagher filed a motion to extend the time for service on January 8, 2015. The motion was granted on January 14, 2015. On April 9, 2015, an amended complaint and summons was served on Snake River. Gallagher and Snake River filed a stipulation to dismiss L & L. On June 4, 2015, L & L was dismissed from the case with prejudice.\\nSnake River filed a motion for summary judgment in which it argued that it had not been timely joined in the case and that the amended complaint should not relate back to the time the first complaint was filed. Following a hearing, the district court granted Snake River's motion for summary judgment and dismissed the case. Gallagher filed a motion to reconsider, which the district court denied. Gallagher timely appealed.\\nII.STANDARD OF REVIEW\\n\\\"When reviewing an order for summary judgment, the standard of review for this Court is the same standard used by the district court in ruling on the motion.\\\" Winn v. Campbell, 145 Idaho 727, 729, 184 P.3d 852, 854 (2008) (citing Watson v. Weick, 141 Idaho 500, 504, 112 P.3d 788, 792 (2005)). Summary judgment is proper when, \\\"the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\\\" I.R.C.P. 56(c). \\\"If there is no genuine issue of material fact, 'only a question of law remains, over which this Court exercises free review.' \\\" Winn, 145 Idaho at 729, 184 P.3d at 854 (quoting Watson, 141 Idaho at 504, 112 P.3d at 792).\\nIII.ANALYSIS\\nThe facts of this case as they relate to the issues on appeal are not in dispute. Neither party disputes that Snake River failed to file a certificate of assumed business name with the Secretary of State's office. Additionally, it is undisputed that Snake River did not receive notice of this claim until it was served with the amended complaint on April 9, 2015. The only questions presented by this appeal are whether the amended complaint relates back to the date of the original complaint and whether the statute of limitations should be tolled due to Snake River's failure to file the certificate of assumed business name. These issues will be discussed in turn.\\nA. Relation back under Idaho Rule of Civil Procedure 15(c).\\nGallagher contends that the amended complaint should relate back to the date that she filed the original complaint. Gallagher argues that because complaints can be amended at any time, and because the original complaint was filed within the statute of limitations, the amended complaint should relate back to that time. The district court found that because Gallagher was amending her complaint to name a new defendant, Idaho Rule of Civil Procedure 15(c) applied. Because Snake River did not have notice of the suit within the statute of limitations, the district court held that the amended complaint could not relate back. The district court's conclusion was correct.\\nIdaho Rule of CM Procedure 15(c) states, [a]n amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) know or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against that party.\\nI.R.C.P. 15(c). This Court has found the phrase, \\\"within the period provided by law for commencing the action\\\" to mean within the statute of limitations. Wait v. Leavell Cattle Inc., 136 Idaho 792, 795, 41 P.3d 220, 223 (2001) (citing Hoopes v. Deere & Co., 117 Idaho 386, 389, 788 P.2d 201, 204 (1990)). In Wait, the plaintiff attempted to amend her complaint to name a new party. Id. at 794, 41 P.3d at 222. The district court found that the amended complaint did not relate back to the filing date of the original complaint because, while the defendant had notice of the suit within the time allowed for service of process, the plaintiff was unable to show that the defendant had notice of the suit before the statute of limitations expired. Id. at 795, 41 P.3d at 223.\\nIn this case, it is undisputed that Snake River did not receive notice of the suit until it was served with the amended complaint on April 9, 2015. The statute of limitations for personal injury claims is 2 years. I.C. \\u00a7 5-219. As Gallagher was injured on July 10, 2012, the statute of limitations expired on July 10, 2014. Because Snake River did not receive notice of the suit before July 10, 2014, Gallagher failed to meet the requirements of Idaho Rule of Civil Procedure 15(c) and the amended complaint does not relate back to the date the original complaint was filed.\\nB. Tolling the Statute of Limitations.\\nGallagher next asserts that the statute of limitations should be tolled because Snake River failed to file a certificate of assumed business name with the Secretary of State. The district court found that because Gallagher's only search was of the Secretary of State's database, Gallagher did not exercise reasonable diligence in ascertaining the proper party. Because Gallagher did not exercise reasonable diligence in ascertaining the correct party to sue, the district court declined to toll the statute of limitations.\\nIdaho Code section 53-504 provides that \\\"[a]ny person who proposes to or intends to transact business in Idaho under an assumed business name shall before beginning to transact business, file with the secretary of state a certificate of assumed business name in a form proscribed by the secretary of state.\\\" I.C. \\u00a7 53-504(1). The purpose of the statute \\\"is to ensure disclosure on the public record of the true names of persons who transact business in Idaho.\\\" I.C. \\u00a7 53-502. The consequences of failing to file a certificate are provided by Idaho Code section 53-509. Section 53-509 provides that a business may not maintain a legal action in Idaho until it complies with the statute. I.C. \\u00a7 53-509(1). It further provides that \\\"[a]ny person who suffers a loss because of another person's noncompliance with the requirements of this chapter shall be entitled to recover damages in the amount of the loss, and attorney fees and costs incurred in connection with recovery of damages.\\\" I.C. \\u00a7 53-509(2). While this Court has previously suggested that we would consider tolling that statute of limitations where a party failed to file a certificate of assumed business name, we have never been presented facts that would warrant a tolling. See Winn v. Campbell, 145 Idaho 727, 184 P.3d 852 (2008); see also Ketterling v. Burger King Corp., 152 Idaho 555, 272 P.3d 527 (2012). The facts of this case are readily distinguishable from both Winn and Ketter-ling and would likely qualify under the standard announced in those cases, however we find that the statutory remedy is adequate and so decline to apply an equitable remedy in this ease. By so holding, we depart from our previous indication in Winn and Ketter-ling that we might find circumstances justifying tolling the statute of limitations when a defendant has failed to file a certificate of assumed business name.\\nAs footnote 1 indicates, although the parties and the Court have referred to the remedy sought in this case as tolling the statute of limitations, it is more accurate to say that Gallagher seeks to apply the doctrine of equitable estoppel. It is a fundamental principle that equitable remedies are only available when \\\"there is no adequate remedy at law and if sufficient grounds to invoke equity, such as mutual mistake, fraud, or impossibility, are present.\\\" AED, Inc. v. KDC Investments, LLC., 155 Idaho 159, 166, 307 P.3d 176, 183 (2013). In eases where a business fails to file a certificate of assumed business name and another party suffers damage, we hold that there is an adequate statutory remedy at law. Thus, there is no reason to apply the equitable remedy of tolling the statute of limitations.\\nIdaho Code section 53-509(2) provides a cause of action for parties who suffer damages as a result of a party's failure to file a certificate of assumed business name. In a case where the plaintiff has been misled to his or her prejudice resulting in the failure to timely name the proper defendant before the expiration of the statute of limitations, the plaintiffs damages will include the lost opportunity for recovery in the original action. Thus, in order to recover in a case such as this, the plaintiff must show that she would have prevailed in her personal injury action and the amount of damages she would have recovered, in addition to any other damages that may have been proximately caused by the defendant's breach of its statutory duty. As this is a statutory remedy, a party must bring this action within 3 year's of the accrual of the cause of action. I.C. \\u00a7 5-218,\\nHere, although Idaho Code section 63-509(2) was at the heart of the issue before the district court, because of our previous statements the parties and the district court understandably directed their attention to the question whether the statute of limitations should be tolled without consideration of the available legal remedy. Although we find that the district court correctly dismissed Gallagher's personal injury action due to the expiration of the statute of limitations, we remand this case in order to give the district court the opportunity to entertain a motion to amend the complaint to assert a cause of action against Snake River under Idaho Code section 63-509(2). In view of this result, we find that there is no prevailing party.\\nIV. CONCLUSION\\nWe vacate the judgment of the district court dismissing Gallagher's complaint and remand for further proceedings consistent with this opinion.\\nChief Justice J. JONES and Justices EISMANN, BURDICK and W. JONES concur.\\n. The district court and the parties have used variations of the verb \\\"toll\\\" in their analysis of the effect of Snake River's failure to file a certificate of assumed business name with the Secretary of State. This Court has recently used the term in this context in Winn and Ketterling v. Burger King Corp., 152 Idaho 555, 272 P.3d 527 (2012). In doing so, we have been using a convenient shorthand.\\n\\\"[E]stoppel does not eliminate, toll, or extend the statute of limitations.\\\" City of McCall v. Buxton, 146 Idaho 656, 664, 201 P.3d 629, 637 (2009); Ferro v. Soc'y of Saint Pius X, 143 Idaho 538, 540, 149 P.3d 813, 815 (2006). Rather, estoppel \\\"bars a party from asserting the statute of limitations as a defense for a reasonable time after the party asserting estoppel discovers or reasonably could have discovered the truth.\\\" Id. Our use of various forms of \\\"toll\\\" in this opinion refers to whether Snake River is estopped from asserting the statute of limitations as a defense.\\n. Chapter 5, Title 53 of the Idaho Code was repealed effective July 1, 2015, 2015 Idaho Sess. L. ch. 251, \\u00a7 3, p. 1047. Idaho Code section 53- 504 was replaced by Idaho Code section 30-21-805. 2015 Idaho Sess. L. ch. 243, \\u00a7 14, p. 784. The new statute imposes similar requirements upon those who operate under assumed business names. The newly enacted statute provides:\\n(a) Any person who proposes to or intends to transact business in Idaho under an assumed business name shall, before beginning to transact business, deliver to the secretary of state for filing a certificate of assumed business name in a form prescribed by the secretary of state.\\n(b) A separate certificate of assumed business name must be filed for each assumed business name a person uses.\\nI.C. \\u00a7 30-21-805. This opinion will address the operation of the provisions of Chapter 5, Title 53, Idaho Code which were in effect at the relevant time.\"}"
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+"{\"id\": \"130622\", \"name\": \"SAGEWILLOW, INC. Petitioner-Appellant, v. IDAHO DEPARTMENT OF WATER RESOURCES, James Mays, Mays Land and Livestock, and Blaine County Canal Company, Respondents\", \"name_abbreviation\": \"Sagewillow, Inc. v. Idaho Department of Water Resources\", \"decision_date\": \"2000-09-06\", \"docket_number\": \"No. 24431\", \"first_page\": \"24\", \"last_page\": \"26\", \"citations\": \"135 Idaho 24\", \"volume\": \"135\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:39:15.939834+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SAGEWILLOW, INC. Petitioner-Appellant, v. IDAHO DEPARTMENT OF WATER RESOURCES, James Mays, Mays Land and Livestock, and Blaine County Canal Company, Respondents.\", \"head_matter\": \"13 P.3d 855\\nSAGEWILLOW, INC. Petitioner-Appellant, v. IDAHO DEPARTMENT OF WATER RESOURCES, James Mays, Mays Land and Livestock, and Blaine County Canal Company, Respondents.\\nNo. 24431.\\nSupreme Court of Idaho, Twin Falls, November 1999 Term.\\nSept. 6, 2000.\\nRehearing Denied Nov. 28, 2000.\\nHolden, Kidwell, Hahn & Crapo, Idaho Falls; Rosholt, Robinson & Tucker, Twin Falls, for appellant. Kent W. Foster and Norman M. Semanko argued.\\nHon. Alan G. Lance, Attorney General; Phillip J. Rassier, Deputy Attorney General, for respondent Department of Water Resources. Phillip J. Rassier argued.\\nGivens Pursley, LLC, Boise, for respondents James Mays, Mays Land and Livestock, and Blaine County Canal Company. Michael C. Creamer argued.\", \"word_count\": \"1390\", \"char_count\": \"8477\", \"text\": \"PER CURIAM.\\nThis is an appeal from the district court's review of a decision issued by the Idaho Department of Water Resources (IDWR), ruling that certain water rights belonging to Sagewillow, Inc. (Sagewillow) were partially forfeited. We remand the ease to the Snake River Basin Adjudication district court.\\nI.\\nFACTS AND PROCEDURAL BACKGROUND\\nA. Facts\\nIn 1989, Sagewillow purchased real property in Butte County, known locally as the Knollin Ranch. The property included appurtenant surface and ground water rights. In 1993, Sagewillow acquired additional property northeast of the Knollin Ranch. Six of Sagewillow's water rights, which originally authorized the irrigation of a total of 2,383 acres, are involved in this appeal. Most of the water rights have priority dates ranging from 1950 to 1960. One of the water rights has a 1972 priority date.\\nIn October 1990, Sagewillow filed an application for transfer, seeking to transfer the place of use and point of diversion for water right number 33-02091. No protests were filed to the transfer, which was formally approved in October 1992. In 1993, Sagewillow filed seven additional applications for transfer with the IDWR, proposing a change in the place of use for its water rights. Protests to several of the applications were submitted by respondents James Mays, Mays Land and Livestock, and Blaine County Canal Company. A recommended order was issued by the IDWR on May 22,1995.\\nNear the end of 1995, Sagewillow filed several exceptions to the order, and on April 8, 1996, the IDWR entered an amended order, ruling that a portion of Sagewillow's water rights had been forfeited because some of the land had not been irrigated for approximately 20 years. Additionally, the order voided the previously approved transfer of water right number 33-02091, which Sagewillow had been using to irrigate 320 acres of its property, and stated that as a result of the forfeitures, no more than 1,412 acres could be irrigated under Sagewillow's water right.\\nB.Procedural Background\\nSagewillow sought judicial review of the IDWR's decision in the district court of the seventh judicial district in May 1996. In December 1996, Sagewillow filed a motion to dismiss the IDWR as a party and to limit the IDWR's involvement in the review proceedings. The district court denied the motion to dismiss, ruling that the IDWR was a necessary party to the dispute.\\nIn a memorandum decision issued in December 1997, the district court affirmed the IDWR's order, lading that Sagewillow's resumption of use was not a valid defense to forfeiture under the facts of the ease. Sagewillow appeals the district court's decision.\\nII.\\nISSUES ON APPEAL\\nThe following issues are presented on appeal:\\nA. Whether the district court and the IDWR erred in concluding that resumption of use was not available as a defense to forfeiture under the circumstances.\\nB. Whether the district court erred in affirming the IDWR's conclusion that Sagewillow's water rights were forfeited.\\nC. Whether the district court erred in affirming the IDWR's decision to void Sagewillow's previously approved transfer.\\nD. Whether the district court erred in allowing the IDWR to participate as a party during judicial review of the IDWR's own decision.\\nIII.\\nANALYSIS\\nThe District Court Lacked Jurisdiction To Review The IDWR Decision.\\nSagewillow sought judicial review of the IDWR's decision in the district court of the seventh judicial district. For the reasons discussed below, the district court lacked jurisdiction to review the IDWR decision and accordingly, the district court's decision is vacated and the case is remanded to the Snake River Basin Adjudication (SRBA) district court for further review.\\nThe Idaho Legislature has created a procedural framework by which disputes over the rights and use of water in this state are to be determined. See Walker v. Big Lost River Irr. Dist., 124 Idaho 78, 80, 856 P.2d 868, 870 (1993). When a person with an established water right, by permit or otherwise, seeks to change the point of diversion, place of use, period of use, or nature of use of water, an application to do so must first be made to the IDWR. See I.C. \\u00a7 42-222(1). After examination, the IDWR may grant or deny such application. See id. All rights to the use of water are lost or forfeited by a failure for the term of five (5) years to apply it to beneficial use for which it was appropriated. See I.C. \\u00a7 42-222(2). Any person or persons aggrieved by the determination of the IDWR in approving or rejecting an application to change the point of diversion, place, period of use or nature of use of water under an established right may seek judicial review. See I.C. \\u00a7 42-222(3). The judicial review shall be had in accordance with the provisions and standards set forth in chapter 52, title 67, Idaho Code. See I.C. \\u00a7 42-1701A(4). Section 67-5272(1) of the Idaho Code states:\\nExcept when required by other provision of law, proceedings for review or declaratory judgment are instituted by filing a petition in the district court of the county in which:\\n(a) the hearing was held; or\\n(b) the final agency action was taken; or\\n(c) the aggrieved party resides .; or\\n(d) the real property or personal property . is located.\\nI.C. \\u00a7 67-5272(1) (emphasis added). Therefore, legislatively defined procedures for review of an IDWR decision allow filing in various district courts \\\"except where required by other provision of law.\\\" I.C. \\u00a7 67-5272(1).\\nIn 1987, the SRBA was commenced, precluding all private actions for adjudication of water rights within the Snake River Basin water system. See I.C. \\u00a7 42-1404(1); Walker, 124 Idaho at 81, 856 P.2d at 871. In response to the commencement of the SRBA, this Court issued an order designating the district court of the fifth judicial district, Twin Falls County, as the county and venue for the SRBA. See Walker, 124 Idaho at 80, 856 P.2d at 870. This Court has since held that resolution of all claims arising within the scope of the SRBA are within the exclusive jurisdiction of the SRBA district court. See id. at 81, 856 P.2d at 871. Furthermore, the adjudication statutes provide that any supplemental adjudication of water rights within the scope of the SRBA must be filed in the district court that originally heard the general adjudication. See I.C. \\u00a7 42-1424(3).\\nSagewillow's claim falls clearly within the exclusive jurisdiction of the SRBA district court. The waters involved are within the scope of the SRBA because they are part of the Snake River water system. See generally, In re Snake River Basin Water System, 115 Idaho 1, 764 P.2d 78 (1988). The IDWR decision involved a contest to Sagewillow's water right and transfer of the same. Under the facts of this case, I.C. \\u00a7 67-5272(1) provides that review of the IDWR decision may be sought generally in the district court of the seventh judicial district. However, because the requirements of I.C. \\u00a7 42-1424(3) constitute \\\"another provision of law,\\\" the statutes governing the SRBA adjudication and this Court's holding in Walker preclude Sagewillow from filing its petition for review of the IDWR decision in a court other than the SRBA district court.\\nAccordingly, because Sagewillow's request for review of the IDWR decision falls within the exclusive jurisdiction of the SRBA district court, we hold that the district court below lacked jurisdiction to review the decision of the IDWR.\\nIV.\\nCONCLUSION\\nWe hold that the SRBA district court has exclusive jurisdiction over this matter and that the district court lacked jurisdiction to review the IDWR decision. Accordingly, we vacate the district court's decision and remand the ease to the SRBA district court for review. No costs or attorney fees are awarded on appeal.\"}"
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+"{\"id\": \"1359145\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Gerald Michael ANDERSON, Defendant-Appellant; State of Idaho, Plaintiff-Respondent, v. Elberteen Louise Pearson-Anderson, Defendant-Appellant\", \"name_abbreviation\": \"State v. Anderson\", \"decision_date\": \"2004-07-23\", \"docket_number\": \"Nos. 27670, 27671\", \"first_page\": \"484\", \"last_page\": \"488\", \"citations\": \"140 Idaho 484\", \"volume\": \"140\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:13:25.703756+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice TROUT, Justices KIDWELL, EISMANN and BURDICK concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Gerald Michael ANDERSON, Defendant-Appellant. State of Idaho, Plaintiff-Respondent, v. Elberteen Louise Pearson-Anderson, Defendant-Appellant.\", \"head_matter\": \"95 P.3d 635\\nSTATE of Idaho, Plaintiff-Respondent, v. Gerald Michael ANDERSON, Defendant-Appellant. State of Idaho, Plaintiff-Respondent, v. Elberteen Louise Pearson-Anderson, Defendant-Appellant.\\nNos. 27670, 27671.\\nSupreme Court of Idaho, Boise,\\nApril 2004 Term.\\nJuly 23, 2004.\\nWatson Law Offices, Coeur d\\u2019Alene, for appellant Gerald Michael Anderson. Roland D. Watson argued.\\nMolly J. Huskey, State Appellate Public Defender, Boise, for appellant Elberteen Louise Pearson-Anderson. Sara B. Thomas argued.\\nHon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.\", \"word_count\": \"2113\", \"char_count\": \"13317\", \"text\": \"SCHROEDER, Justice.\\nGerald Michael Anderson (\\\"Michael\\\") and Elberteen L. Pearson-Anderson (\\\"Tina\\\") (together referred to as the \\\"Andersons\\\") appeal from the judgment of conviction entered upon conditional guilty pleas to trafficking in methamphetamine. The Andersons challenge the use of evidence obtained in a warrantless search of them home. The State asserts that the search was authorized under conditions of release on bail contained in a district court order entered in a prior case. The district court denied the Andersons' motion to suppress evidence of methamphetamine manufacturing found during the search and Michael's motion to suppress statements made during an interrogation. The Andersons appeal.\\nI.\\nFACTS AND PROCEDURAL HISTORY\\nMichael entered a conditional guilty plea to a charge of trafficking in methamphetamine by manufacture on March 6, 2000. Tina was found guilty of the same charge at the conclusion of a jury trial. Both were sentenced on April 19, 2000, and both appealed the district court's denial of motions to suppress filed in each case. They were released on bail pending appeal, subject to the condition that they were subject to warrantless searches of their home and personal property. The order granting release containing the condition was written by the Andersons' attorney but was not signed by the Andersons before it was entered by the district court.\\nOn January 9, 2001, seven law enforcement officers led by Detective Elizabeth Bradbury of the Idaho State Police arrived at the Anderson home in Spirit Lake. The police had received tips from a neighbor who had detected the odor of what she suspected to be a methamphetamine lab. The parties dispute whether the officers first smelled the odor of methamphetamine production before or after entering the home; however, the district court found that it was not until after entry that the police confirmed the existence of drug production. When Detective Bradbury and the other officers entered the Andersons' home to investigate, Tina came out of the bathroom area. Detective Bradbury asked her if she knew why they were there. According to Detective Bradbury's testimony, Tina answered affirmatively. Inside the home the police observed material which they suspected was being used to manufacture methamphetamine. They also detected an odor which they associated with a methamphetamine laboratory.\\nFollowing the initial entry into the trailer, but before seizing the methamphetamine manufacture materials, officer Terry Morgan sought and received a search warrant based largely on the observations of the officers made during the January 9, 2001, incursion into the Anderson home. Prior to seeking a search warrant, Michael was arrested, read his Miranda rights, and interviewed by Morgan at the Kootenai County Jail. Mike admitted to the manufacture of methamphetamine. Under the search warrant, the officers returned to the Andersons' home and the manufacturing materials were seized.\\nThe Andersons entered conditional guilty pleas under the stipulation that they would have the right to appeal the district court's denial of the motion to suppress the evidence found during the January 9, 2001 search and interrogation. The events leading to and issues involved in this appeal concerning the search are identical. The Andersons' cases were combined, and the decisions on that issue are the same as to each. Michael presents a separate issue concerning his interrogation.\\nII.\\nTHE POLICE HAD REASONABLE SUSPICION JUSTIFYING THE SEARCH\\nA. Standard of Review\\nIn all eases when questions of law are presented, this Court is not bound by the district court's findings, but is free to draw its own conclusions from evidence presented. Auto. Club Ins. Co. v. Jackson, 124 Idaho 874, 876, 865 P.2d 965, 967 (1993).\\nWarrantless searches are presumptively unreasonable. State v. Woolery, 116 Idaho 368, 370, 775 P.2d 1210, 1212 (1989), cert. denied 511 U.S. 1057, 114 S.Ct. 1623, 128 L.Ed.2d 348 (1994). The burden of proof rests with the State to demonstrate that the search either fell within a well-recognized exception to the warrant requirement or was otherwise reasonable under the circumstances. Id.\\nB. The search conducted on January 9, 2001, was reasonable under the circumstances.\\nIdaho has not defined the extent of privacy rights held by a person who has been convicted, sentenced, and released on bail pending appeal. In a related area, nonconsensual warrantless searches of probationers and their property by probation or parole officers constitute an exception to the warrant requirement independent of consent. State v. Pinson, 104 Idaho 227, 657 P.2d 1095 (Ct.App.1983). Under limited circumstances, a probationer's home may be searched without a warrant and without probable cause. Griffin v. Wisconsin, 483 U.S. 868, 872-73, 107 S.Ct. 3164, 3167-68, 97 L.Ed.2d 709, 716-17 (1987). The reasonable grounds standard for a warrantless parole search requires less proof than the standard of probable cause. Pinson, 104 Idaho at 232-33, 657 P.2d at 1100-01. Recently, the United States Supreme Court held:\\nWhen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable.\\nUnited States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).\\nIdaho has not determined whether an individual released after conviction, but not yet on probation or parole, has a reduced expectation of privacy. Other courts that have addressed the issue have concluded that such individuals are to be treated similarly to probationers and parolees. In State v. Fisher, 145 Wash.2d 209, 35 P.3d 366 (2001), the Washington Supreme Court held that a bench warrant for the arrest of a convicted felon who had been released subject to conditions set by the court was correctly based upon reasonable suspicion, rather than probable cause. Id. at 376. The court explained that the convicted defendant had a diminished expectation of privacy because of the State's continued interest in supervising convicted defendants. Id.\\nSimilarly, the Washington Court of Appeals concluded that the state has a continued interest in convicted felons who are released pending appeal. In State v. Lucas, 56 Wash.App. 236, 783 P.2d 121 (1991), the court explained:\\nLucas has been convicted but execution of the judgment and sentence has only been stayed due to his appeal____ While the stay of execution acts to preserve the status quo, it does not release him from his obligation to serve the full penalty imposed by the sentence____The stay merely suspends the power of the trial court to issue execution of the judgment and sentence.\\nId. at 241, 783 P.2d at 124-25. (Citations omitted). The court concluded Lucas should expect close scrutiny by the State. Id. at 241, 783 P.2d at 125.\\nIn United States v. Kills Enemy, 3 F.3d 1201 (8th Cir.1993), the defendant contended that because, upon his conviction, the court continued his pretrial release, he was not subject to the same abridgment of his Fourth Amendment rights as a probationer or parolee. The Eighth Circuit Court of Appeals rejected the argument:\\nA convicted person awaiting sentence is no longer entitled to a presumption of innocence or presumptively entitled to his freedom____As with the parole and probation cases, there is a heightened need for close supervision of the convicted person's activities to protect society and the releasee himself, and the releasee is entitled only to conditional liberty---- In particular, in cases involving drugs, authorities supervising the convict \\\"must be able to act based on a lesser degree of certainty that the Fourth Amendment would otherwise require in order to intervene before [the person] does damage to himself or society.\\\" Griffin, 483 U.S. at 879, 107 S.Ct. at 3171, 97 L.Ed.2d at 721.\\nId. at 1203.\\nIn Idaho a convicted felon admitted to bail pending appeal is subject to conditions ordered by the trial court. I.C.R. 46(b) and (d). Thus, the Andersons had a lesser degree of liberty and a resulting reduced expectation of privacy. Because their convictions were for drug crimes, a heightened need of supervision was necessary to protect them and society. Because of the Andersons' reduced expectation of privacy, the police needed only a reasonable basis to conduct a warrantless search of them home.\\nIn its opinion, the district court stated:\\n[W]hile the unconfirmed tips from a neighbor of the Andersons and from Spirit Lake police would not, by themselves, be sufficient to establish probable cause for the issuance of a search warrant, I find that they are sufficient to give the officers reasonable grounds to conduct the search in this case. I also find that because the initial search of the Anderson residence consisted of a visual sweep to determine whether any controlled substances were present, it was reasonably related to disclosure or confirmation of the presence of controlled substances within the residence.\\nAlthough reputation alone is insufficient to establish reasonable grounds, the Andersons' convictions and past drug history, combined with the rumors and reports of both the Spirit Lake police and the Andersons' neighbor are sufficient to establish reasonable grounds for the search.\\nIII.\\nMICHAEL ANDERSON'S SIXTH AMENDMENT RIGHTS WERE NOT VIOLATED\\nA. Standard of Review\\nWhen a violation of a constitutional right is challenged through a motion to suppress, the proper appellate response is one of deference to factual findings unless they are clearly erroneous. However, this Court exercises free review over the trial court's determination as to whether constitutional requirements have been satisfied in light of the facts found. State v. Weber, 116 Idaho 449, 776 P.2d 458 (1989).\\nB. The right to counsel on the new charge was not violated.\\nAnderson maintains that his Sixth Amendment right to counsel was violated when Officer Terry Morgan interviewed him at the jail. He argues that since the new offense about which he was interviewed also constituted a violation of his conditions of release on the prior case being appealed, the interview violated his Sixth Amendment right to counsel.\\nAnderson had invoked his right to counsel in the prior case which was on appeal at the time he was arrested on the charge in this case. He was properly advised of his right to counsel on the new charge. Although a waiver of counsel following Miranda warnings is sufficient under both the Fifth and Sixth Amendments during the postindictment, custodial interrogation of a defendant, Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), such waiver is not valid under the Sixth Amendment once the defendant has requested counsel. When a defendant has invoked his right to counsel, a waiver of that right in a police-initiated interrogation is invalid, even if the waiver was voluntary, knowing, and intelligent under the traditional standard. Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990); Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). There is no showing that Anderson waived the right to counsel in the prior charge. However, Anderson's Sixth Amendment right to counsel in the prior case on appeal did not apply to the new offense even if the new offense would constitute a violation of the conditions of his release in the earlier case. \\\"The Sixth Amendment right [to counsel], however, is offense-specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced____\\\" McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158, 166-67 (1991). It does not apply to other offenses, even if they are closely related factually to the offense charged, unless those other offenses would be the same offense under the test in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). There is no contention that the offense charged in Anderson's case that was on appeal was the same offense as the one about which he was questioned in the jail. Thus, although the Sixth Amendment may prevent the State from using Anderson's statements in the prior case on appeal (e.g., in proceedings to revoke his release), it does not bar the use of those statements in this case.\\nIV.\\nCONCLUSION\\nThe decision of the district court is affirmed.\\nChief Justice TROUT, Justices KIDWELL, EISMANN and BURDICK concur.\\n. See State v. Devore, 134 Idaho 344, 2 P.3d 153 (Ct.App.2000)\"}"
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diff --git a/idaho/1565786.json b/idaho/1565786.json
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+"{\"id\": \"1565786\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Billie Lou DAVIS, Defendant-Appellant; State of Idaho, Plaintiff-Appellant, v. Billie Lou Davis, Defendant-Respondent\", \"name_abbreviation\": \"State v. Davis\", \"decision_date\": \"2005-06-08\", \"docket_number\": \"Nos. 30626, 31000\", \"first_page\": \"828\", \"last_page\": \"843\", \"citations\": \"141 Idaho 828\", \"volume\": \"141\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:23:49.667643+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge LANSING and Judge Pro Tem WALTERS concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Billie Lou DAVIS, Defendant-Appellant. State of Idaho, Plaintiff-Appellant, v. Billie Lou Davis, Defendant-Respondent.\", \"head_matter\": \"118 P.3d 160\\nSTATE of Idaho, Plaintiff-Respondent, v. Billie Lou DAVIS, Defendant-Appellant. State of Idaho, Plaintiff-Appellant, v. Billie Lou Davis, Defendant-Respondent.\\nNos. 30626, 31000.\\nCourt of Appeals of Idaho.\\nJune 8, 2005.\\nReview Denied Aug. 24, 2005.\\nMatthews Law Offices and Griffard Law Offices, Boise, for Davis. Leo N. Griffard, Jr. argued.\\nHon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for State of Idaho. Kenneth K. Jorgensen argued.\", \"word_count\": \"6787\", \"char_count\": \"40931\", \"text\": \"PERRY, Chief Judge.\\nIn Docket No. 30626, Billie Lou Davis appeals from the district judge's order granting the state's motion to dismiss without prejudice a criminal charge of operating a motor vehicle while under the influence of alcohol or drugs (DUI). In Docket No. 31000, the state appeals from a different district judge's order granting Davis's motion to dismiss with prejudice a subsequent felony DUI charge alleging the same conduct as the original charge, which was refiled following its dismissal. We affirm the order dismissing the original DUI charge without prejudice and reverse the order dismissing the subsequent DUI charge.\\nI.\\nFACTS AND PROCEDURE\\nFollowing a traffic stop on October 26, 2002, Davis was arrested for DUI. The state filed a criminal complaint against Davis, charging her with felony DUI. I.C. \\u00a7 18-8004, 18-8005(5). On October 28, Davis was released on bond. On January 21, 2003, the magistrate ordered that Davis be held to answer on the DUI charge. On January 23, the state filed an information, and trial was scheduled for June.\\nOn May 27,2003, the trial was rescheduled for August 5 because one of the state's witnesses was scheduled for vacation on the June trial date. On July 2, the state filed a motion to again continue the trial, asserting that two of its witnesses were scheduled for vacation on the August trial date. On July 21, at the hearing held on the state's motion, Davis refused to waive her right to a speedy trial. The district court then denied the state's motion to continue, finding that the state's reasons for delaying Davis's trial were based on \\\"pure convenience\\\" and did not rise to the level of good cause.\\nOn August 4, 2003, the state orally moved to dismiss the case without prejudice. Davis requested that the dismissal be with prejudice. The district court orally granted the state's motion. On August 18, Davis filed a motion asking the district court to reconsider the terms of its oral dismissal of the DUI charge and that the dismissal be with prejudice. The state filed a written motion to dismiss without prejudice on September 4. On September 5, the state filed a subsequent criminal complaint charging Davis with the same DUI offense and requested that a warrant for Davis's arrest be issued. A hearing was held to determine whether the complaint established probable cause. The magistrate signed the complaint, a warrant was issued, and Davis was arrested and released on the second DUI charge. This subsequent DUI charge was thereafter assigned to a different district judge.\\nOn September 10, 2003, the district court entered a written order dismissing the original DUI charge without prejudice. Davis filed a motion to reconsider the written order on September 15. In her motion, Davis argued that the dismissal of the original charge should be with prejudice because allowing the state to refile another charge for the same conduct as the dismissed charge violated her right to due process of law. On October 14, the parties presented oral argument to the district court on Davis's motion to reconsider. However, the district court did not render its decision on Davis's motion until five months later in March 2004. In its decision, the district court found that Idaho law permits the dismissal of a felony charge without prejudice, and that no evidence had been presented which demonstrated a motive by the state to delay Davis's prosecution in a substantial fashion, to harass, or to forum-shop. The district court also found that, weighing the severity of the crime charged and Davis's lack of prejudice against the state's weak rationale for being unable to proceed, warranted dismissal without prejudice. The district court denied Davis's motion to reconsider in a memorandum decision and order on March 5 and entered an amended order and decision on March 8. Davis appeals in Docket No. 30626.\\nOn April 19, 2004, the state filed its information in the second DUI case. On April 20, the magistrate signed a commitment and Davis was released on her own recognizance. On May 4, Davis moved to stay the proceedings pending the outcome of her appeal in Docket No. 30626. On May 10, at Davis's request, the hearing to enter her plea and argue her motion was continued until May 24, at which time the district court entered a plea of not guilty and denied Davis's motion to stay. On June 1, Davis filed a motion to dismiss the second DUI charge with prejudice, on the grounds that her right to due process had been violated. The district court granted Davis's motion, finding that the state had violated Davis's right to a speedy trial, and dismissed the second DUI charge with prejudice. The state appeals in Docket No. 31000. Davis's and the state's appeals have been consolidated.\\nII.\\nANAYLSIS\\nA. Speedy Trial\\nIn Docket No. 31000, the state argues that district court erred in finding that Davis's constitutional right to a speedy trial was violated in the second DUI action. Whether there was an infringement of a defendant's right to speedy trial presents a mixed question of law and fact. State v. Clark, 135 Idaho 255, 257, 16 P.3d 931, 933 (2000). We will defer to the trial court's findings of fact if supported by substantial and competent evidence; however, we will exercise free review of the trial court's conclusions of law. Id. The state contends that the district court incorrectly applied the law to the facts of this case.\\nThe Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a speedy trial. This right is applicable to the states through the Fourteenth Amendment. State v. Young, 136 Idaho 113, 117, 29 P.3d 949, 953 (2001). Additionally, the Idaho Constitution guarantees that a person accused of a crime has the right \\\"to a speedy and public trial.\\\" IDAHO CONST, art. I, \\u00a7 13. The speedy trial guarantee is designed to minimize the possi bility of lengthy incarceration prior to trial; to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail; and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. United States v. Loud Hawk, 474 U.S. 302, 311, 106 S.Ct. 648, 654, 88 L.Ed.2d 640, 651-52 (1986); United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696, 703-04 (1982).\\nTo determine whether a defendant's constitutional right to a speedy trial was violated under both the United States and Idaho Constitutions, we employ the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See Young, 136 Idaho at 117, 29 P.3d at 953. In Barker, the United States Supreme Court identified four factors that are weighed to determine whether there has been a constitutional violation. Those factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his or her right to a speedy trial; and (4) the prejudice occasioned by the delay. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-17.\\n1. Length of Delay\\nThe first factor, the length of the delay, is a triggering mechanism. Young, 136 Idaho at 117, 29 P.3d at 953. Until there is some delay which is presumptively prejudicial, it is unnecessary to inquire into the other three factors. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-17; Young, 136 Idaho at 117, 29 P.3d at 953. The constitutional right of the accused to a speedy trial has no application beyond the confines of a formal criminal prosecution. Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 2692-93 120 L.Ed.2d 520, 530-31 (1992). Thus, the right to a speedy trial does not apply to the period before a defendant is indicted, arrested, or otherwise formally accused. MacDonald, 456 U.S. at 6, 102 S.Ct. at 1500-01, 71 L.Ed.2d at 702 . Similarly, the right to a speedy trial has no application after the government, acting in good faith, formally dismisses charges. Id. at 7, 102 S.Ct. at 1501, 71 L.Ed.2d at 702-03. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause and not under a speedy trial analysis. Id.\\nIn the second DUI case, the district court found that the delay of over one year was presumptively prejudicial. The state asserts that whether there was a violation of the Idaho Constitution was not addressed by the district court and, therefore, no speedy trial issue based on the Idaho Constitution is before this Court on appeal. The state contends that, although Davis's right to a speedy trial under the Idaho Constitution arose upon the filing of the subsequent criminal complaint in September 2003, Davis's right to a speedy trial under the Sixth Amendment to the United States Constitution was not triggered until the filing of the subsequent information in April 2004. The state argues that, because the district court was applying only the federal constitution, it erred in considering the length of the delay between the dismissal of the original DUI charge and the filing of the information in the subsequent action.\\nIdaho courts have recognized that the state guarantee is not necessarily identical to the federal guarantee. See State v. Hobson, 99 Idaho 200, 201, 579 P.2d 697, 698 (1978); State v. Mason, 111 Idaho 660, 663, 726 P.2d 772, 775 (Ct.App.1986). The Idaho Supreme Court indicated:\\nUnder the Sixth Amendment, the period of delay is measured from the date there is \\\"a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.\\\" United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 479 (1971). Under the Idaho Constitution, the period of delay is measured from the date formal charges are filed or the defendant is arrested, whichever occurs first.\\nYoung, 136 Idaho at 117, 29 P.3d at 953.\\nIn this case, the district court found that \\\"the right to a speedy trial has two separate sources: a state statutory basis, I.C. \\u00a7 19-3501 et. seq., and a constitutional basis provided by both the United States Constitution and the Idaho Constitution.\\\" In determining that Davis's right to a speedy trial was violat ed, the district court applied the Barker test, which the district court recognized is utilized when determining whether the Idaho Constitution has been violated. We conclude that the district court addressed whether Davis's right to a speedy trial under both the United States and Idaho Constitutions was violated and that, therefore, the issue of whether the Idaho Constitution was violated is properly before us on appeal. Accordingly, in determining when Davis's speedy trial right arose in this case, we apply the stricter standard found in our state constitution.\\nDavis was initially arrested in October 2002 and faced charges in the original DUI action for a period of approximately ten months. On September 5, 2003, the state filed the subsequent criminal complaint, the magistrate found probable cause, and Davis was arrested and released. Davis was an \\\"accused\\\" in the subsequent DUI action for a period of approximately eight months. Accordingly, Davis faced criminal charges for the same alleged offense for a period of eighteen months.\\nThe speedy trial analysis set forth in Barker compels courts to approach speedy trial cases on an ad hoc basis. See Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at at 116-17. The Court reasoned that, because of the imprecision of the right to a speedy trial, the length of delay that will provoke an inquiry into whether those rights have been violated is necessarily dependent upon the peculiar circumstances of the case. Id. at 530-31, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-17. The nature of the case is also of import as to the period of delay that can be tolerated. State v. McNew, 131 Idaho 268, 271-73, 954 P.2d 686, 689-91 (Ct.App.1998). Delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; McNew, 131 Idaho at 272, 954 P.2d at 690.\\nThe nature of the charge Davis was facing, a DUI arising out of a traffic stop, cannot be characterized as complex, which would justify a protracted period to allow the state to prepare its case against Davis. The period of time that Davis faced criminal charges was presumptively prejudicial and necessitates our inquiry into the remaining Barker factors. See also State v. RodriquezPerez, 129 Idaho 29, 33-37, 921 P.2d 206, 210-14 (Ct.App.1996) (A delay of over thirteen months was sufficient to trigger judicial scrutiny for complex conspiracy charge.).\\n2. Reason for Delay\\nIn evaluating the reason for the delay, different weights are assigned to different reasons. Loud Hawk, 474 U.S. at 315, 106 S.Ct. at 656, 88 L.Ed.2d at 654. Our speedy trial standards recognize that pretrial delay is often both inevitable and wholly justifiable. Doggett, 505 U.S. at 656, 112 S.Ct. at 2693, 120 L.Ed.2d at 531. We attach great weight to considerations such as the state's need for time to collect witnesses, oppose pretrial motions, or locate the defendant in the event that the he or she goes into hiding. Id. A valid reason, such as a missing witness, should serve to justify appropriate delay. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. However, there is an enormous difference between being inconvenienced and being unavailable. Clark, 135 Idaho at 260, 16 P.3d at 936. True unavailability suggests an unqualified inability to attend, while inconvenience merely implies that attendance at trial would be burdensome. Id.\\nA deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the state. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. A more neutral reason, such as negligence or overcrowded courts, should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the state rather than with the defendant. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Wavrick, 123 Idaho 83, 89, 844 P.2d 712, 718 (Ct.App.1992). While not compelling relief in every case where a bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him or her. Doggett, 505 U.S. at 657, 112 S.Ct. at 2693-94, 120 L.Ed.2d at 531-32. Although negligence is weighed more lightly than a deliberate intent to harm the accused's defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution. Id.\\nIn Davis's original prosecution, the district court found that the reason for the delay in bringing Davis to trial was based on the convenience of the witnesses, was weak, and reflected poor communication between the state and its witnesses. However, the district court found that there was no evidence that the state held a motive to delay in a substantial fashion, harass, or forum-shop by failing to promptly prosecute Davis. We conclude that there was no justification to excuse the ten-month lapse between Davis's arrest and the dismissal of the original charge but that the reason for that delay gravitates towards negligence. Thus, although not weighed as heavily against the state as a bad-faith delay, the delay in the original prosecution is attributable to the state.\\nIn the subsequent DUI action, the explanation for the delay in bringing Davis to trial is apparent from the record. The state filed the second criminal complaint on September 5, 2003. The district court did not enter its written order dismissing the original DUI charge until September 10. Davis filed her motion to reconsider that order on September 15 and the parties presented argument on October 14. No ruling was forthcoming, however, until March 2004. In April 2004, approximately one month after the district court entered its decision denying Davis's motion to reconsider the dismissal of the original DUI charge, the state filed its information in the subsequent DUI charge. Thus, the delay between the filing of the criminal complaint and the information in the second action corresponds with the time that Davis's motion to reconsider was pending. Had the first district judge granted Davis's motion to reconsider, the state would have been barred from prosecuting the subsequent DUI charge. Accordingly, it would have been unreasonable for the state to vigorously pursue Davis's second prosecution and to put Davis and the public to the expense of preparing for trial when the disposition of Davis's motion to reconsider the without prejudice dismissal of the first case might have required that the subsequent charge be dismissed.\\nNevertheless, the district court in the second prosecution attributed the delay to the state, finding that it had failed to offer an explanation for the delay. In the absence of an affirmative explanation for a delay, such delay might be attributable to the state because the duty to bring a defendant to trial lies with the state, not the defendant. See Barker, 407 U.S. at 527, 92 S.Ct. at 2190, 33 L.Ed.2d at 114-15. However, this is not a case in which an explanation for the delay was lacking. In its memorandum decision granting Davis's motion to dismiss the subsequent charge, the district court noted that the other district judge's order denying Davis's motion to reconsider the original charge was before it and that Davis had appealed to the Supreme Court from that order. Despite being aware of the case's procedural history, the district court failed to recognize the explanation for the delay on the face of the record and, thus, erroneously attributed that delay to the state. Some of that delay also must be placed upon the first district judge's failure to rule on Davis's motion for five months. We conclude that Davis's trial on the subsequent DUI charge was delayed because Davis's motion to reconsider in the original action was pending.\\nAlthough there is no indication that Davis filed her motion for a bad-faith purpose, the delay that ensued while Davis's motion was pending must be attributed to her. The period of delay attributable to the defendant will not be weighed against the state. McNew, 131 Idaho at 272, 954 P.2d at 690. In Loud Hawk, the United States Supreme Court evaluated what weight should be attributed to delay occasioned by the defendant's interlocutory appeals. Delays from such appeals will not ordinarily weigh in favor of a defendant's speedy trial claims. Loud Hawk, 474 U.S. at 316, 106 S.Ct. at 656-57, 88 L.Ed.2d at 654-55. A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal or a wholly unjustifiable delay by the appellate court. Id. A defendant, who resorts to an interlocutory appeal, normally should not be able to return to the district court and reap the reward of dismissal for failure to receive a speedy trial. Id. Having sought the aid of judicial process and realizing the deliberateness that a court employs in reaching a decision, defendants are not then able to criticize the very process which they called upon. Id. at 316-17, 106 S.Ct. at 656-57, 88 L.Ed.2d at 654-56.\\nSimilar to an interlocutory appeal, the disposition of Davis's motion to reconsider was necessary to determine whether her prosecution in the subsequent action could continue. Although Davis is not to be faulted for filing that motion, neither can she receive the dual benefit of having her motion heard and then claim that the delay that ensued while that motion was pending gave rise to a speedy trial violation necessitating the dismissal of her prosecution. Thus, the delay that occurred while Davis's motion to reconsider was pending must be attributed to her and weighs against finding a speedy trial violation.\\nOn April 19, 2004, approximately a month following the district court's denial of Davis's motion to reconsider, the state filed its information in the subsequent case. On May 4, Davis filed a motion to stay the subsequent prosecution pending the outcome of her appeal in the original action. On May 10, Davis requested that the hearing to enter her plea and argue her motion be continued. On May 24, the district court entered a not guilty plea and denied Davis's motion to stay. Davis filed a motion to dismiss the subsequent charge on June 1, and that motion was granted on June 23. Any delay in prosecuting Davis following the district court's denial of Davis's motion to reconsider the dismissal of the original charge is also attributable to Davis's actions in filing the motion to stay, requesting a continuance, and filing the motion to dismiss.\\nThe delay beyond the original trial date for the first DUI charge was caused by the state's negligence, a reason that is weighed against the state. However, Davis must bear responsibility for the delay in her subsequent prosecution and, thus, the district court erred by attributing that delay to the state. The eight-month period in which Davis faced charges in the subsequent action weighs against finding a speedy trial violation.\\n3. Assertion of Right to Speedy Trial\\nThe defendant's assertion of his or her right to a speedy trial is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. Barker, 407 U.S. at 531-32, 92 S.Ct.at 2192-93, 33 L.Ed.2d at 117-18. Failure to assert the right will make it difficult for a defendant to prove that he or she was denied a speedy trial. Id. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 117-18. In Barker, the Court indicated that the circumstances surrounding the defendant's failure to assert his right to a speedy trial demonstrated that the defendant did not want a speedy trial. The Court concluded that \\\"the record strongly suggests that while [the defendant] hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a dismissal of the charges, he definitely did not want to be tried.\\\" Id. at 535, 92 S.Ct. at 2194, 33 L.Ed.2d at 119-20.\\nIn July 2003, Davis refused to waive her right to a speedy trial in the original action leading to its eventual dismissal without prejudice. However, Davis's subsequent prosecution was delayed because Davis's motion to reconsider the dismissal was pending before the district court. Davis failed to reassert her right to a speedy trial at any time in the subsequent action while that motion was pending. Additionally, after Davis's motion to reconsider was denied, Davis filed a motion to stay the second prosecution pending the outcome of her appeal in the original action. As in Barker, the record in this case demonstrates that Davis did not want a speedy trial on the subsequent charge but, instead, acquiesced to the delay in her prosecution in hopes that her motion to reconsider would be granted and the subsequent DUI charge would also be dismissed. Thus, Davis's failure to reassert her right to a speedy trial while facing the charge in second action diminished the strength to which Davis's earlier assertion of her right to a speedy trial would otherwise be entitled. The third factor does not weigh in favor of finding a speedy trial violation.\\n4. Prejudice\\nThe fourth factor in the Barker analysis is prejudice to the accused caused by the delay. The nature and extent of prejudice arising out of a delay in bringing a criminal action to trial is the most important of the Barker factors. McNew, 131 Idaho at 273, 954 P.2d at 691. Prejudice is to be assessed in light of the interests of defendants, which the right to a speedy trial is designed to protect. Young, 136 Idaho at 118, 29 P.3d at 954. Those interests are: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 117-18; Young, 136 Idaho at 118, 29 P.3d at 954. Infringement on the third interest is the most serious form of prejudice because the inability of the defendant to adequately prepare his or her case skews the fairness of the entire system. State v. Hernandez, 133 Idaho 576, 583, 990 P.2d 742, 749 (Ct.App.1999).\\nFollowing Davis's release from custody after her initial arrest, she was either released on bond or her own recognizance at all times during both criminal actions. Thus, oppressive pretrial incarceration is not at issue in this case. Neither have there been any specific allegations, which demonstrate that Davis's ability to prepare her defense has been impaired. In addressing the fourth factor, the district court in the second DUI case concluded that \\\"the length of the delay, over one year, is presumptively prejudicial.\\\" The district court found that there was no evidence that Davis faced any unusual anxiety or concern regarding the charge pending against her but that' it would be natural to expect some anxiety when facing a felony DUI charge. The district court found that the case against Davis did not involve any blood alcohol concentration testing and, thus, relied heavily on the memory of the officers. The district court found that, given the length of time that the ease had been pending and that \\\"officers who arrest drivers for suspicion of DUI arrest hundreds of drivers a year,\\\" confusion and loss of ability to recall detail were of concern. The district court then held that the state had failed to overcome the presumption of prejudice.\\nThe presumptive prejudice, which necessitated our inquiry into the Barker factors, did not place a burden on the state to prove that Davis suffered no prejudice. Impairment of an accused's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony can rarely be shown. Doggett, 505 U.S. at 655, 112 S.Ct. at 2692-93, 120 L.Ed.2d at 530-31 . Courts cannot be sure which of the parties the delay has prejudiced more severely and, therefore, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways neither party can prove or, for that matter, identify. Id. Nevertheless, such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other criteria. Id. at 655-56, 112 S.Ct. at 2692-93, 120 L.Ed.2d at 530-31. Rather, it is part of the mix of relevant facts and its importance increases with the length of the delay. Id. at 656, 112 S.Ct. at 2693, 120 L.Ed.2d at 531. To warrant granting relief, pretrial delay caused by negligence that is unaccompanied by a showing of particularized trial prejudice must have lasted longer than a delay caused by negligence that demonstrably caused such prejudice. Id. at 657, 112 S.Ct. at 2693-94, 120 L.Ed.2d at 531-32. In Doggett, the Court granted the defendant relief despite his inability to demonstrate actual prejudice, where the government's egregious failure to prosecute spanned more than eight years. The Court held that, when negligence causes a delay six times as long as generally sufficient to trigger judicial review and when the presumption of prejudice is neither extenuated or rebutted, the defendant is entitled to relief. Id. at 658, 112 S.Ct. at 2694, 120 L.Ed.2d at 532-33.\\nIn this case, the district court erred by placing a burden on the state to prove that Davis was not prejudiced by the delay in her prosecution. Instead, the presumption of prejudice occasioned by the length of the delay, the ordinary nature of the case, and Davis's anxiety are to be balanced against the reason for the delay and Davis's assertion of her right to a speedy trial.\\n5. Balancing\\nThe four foregoing factors, together with such other circumstances as may be relevant, must be weighed to determine whether there has been a violation of constitutional right to a speedy trial. Rodriquez-Perez, 129 Idaho at 37, 921 P.2d at 214. In this case, the delay in prosecuting the original DUI charge arose from neutral reasons, which must be weighed against the state. However, the delay in the subsequent DUI action occurred because Davis's motion to reconsider was pending before the district court and, thus, was in part attributable to Davis. Any additional lapse would be attributed to the five-month period the district court held Davis's motion under advisement. Additionally, the record demonstrates that although Davis asserted her right to a speedy trial when facing the original DUI charge, Davis acquiesced in the delay in prosecuting the subsequent DUI charge. Davis may have faced anxiety and concern while facing charges, but she has not demonstrated any impairment to her defense and was released on bond or her own recognizance while both DUI actions were pending.\\nAlthough the length of the delay gives rise to some presumed prejudice, that prejudice is of limited significance when weighed with the other factors in this case. Nearly half the delay was attributable to Davis, the length of the delay was not extraordinary, and there was no bad faith conduct on the part of the state. Additionally, Davis failed to reassert her right to a speedy trial while facing the subsequent DUI charge, she faced no oppressive pretrial incarceration, and has demonstrated no facts showing that her defense has been impaired. Weighing the conduct of Davis with that of the state, we conclude that Davis's constitutional right to a speedy trial was not violated here. Accordingly, the district court erred in granting Davis's motion to dismiss the subsequent DUI charge on speedy trial grounds.\\nB. Due Process\\nIn Docket No. 31000, Davis argues that, even if the district court erred in finding that her right to a speedy trial was violated, this Court should affirm the district court's order granting her motion to dismiss on due process grounds. Where a ruling in a criminal case is correct, though based upon an incorrect reason, it still may be sustained upon the proper legal theory. State v. Pierce, 107 Idaho 96, 102, 685 P.2d 837, 843 (Ct.App.1984).\\nIn Docket No. 30626, Davis argues that the district court erred in denying her motion to reconsider its order dismissing the original DUI charge without prejudice. Davis contends that the original DUI charge was dismissed for the purpose of delaying the trial longer than what is allowed by statute and to permit the state to accommodate its witnesses' vacations. Davis asserts that, allowing the state to refile the DUI charge against her under those circumstances violated her right to due process of law and, therefore, the dismissal of the original DUI charge should have been with prejudice.\\nWhere a defendant claims that his or her right to due process was violated, we defer to the trial court's findings of fact, if supported by substantial evidence. State v. Smith, 135 Idaho 712, 720, 23 P.3d 786, 794 (Ct.App.2001). However, we freely review the application of constitutional principles to those facts found. Id. In Idaho, the constitutional right to a speedy trial has been supplemented by legislation that sets specific time limits within which a criminal defendant must be brought to trial. Clark, 135 Idaho at 257, 16 P.3d at 933. Idaho Code Section 19-3501 requires a court to order that a prosecution be dismissed, unless good cause is shown, when a defendant, whose trial has not been postponed upon his or her application, is not brought to trial six months after the information is filed before the court. A dismissal granted under Section 19-3501 is not a bar to any other prosecution for the same offense if the offense is a felony. I.C. \\u00a7 19-3506.\\nIn Docket No. 30626, the state concedes that there was no good cause to justify the delay in Davis's original prosecution and that I.C. \\u00a7 19-3501 required the dismissal of the original DUI charge. Davis contends that, contrary to the provisions of Section 19-3506, the failure to demonstrate good cause to delay her trial longer than provided for by statute requires that the dismissal of the charge be with prejudice. Davis alleges that dismissing the charge without prejudice allowed the state to intentionally circumvent her right to a speedy trial. Thus, Davis contends that Section 19-3501 was enacted to enforce her constitutional right to a speedy trial and, because delaying her prosecution longer than permitted by statute infringed on that fundamental right, allowing the state to refile the DUI charge violated her right to due process of law.\\nThe constitutional right to a speedy trial is a fundamental right. State v. Avelar, 129 Idaho 700, 703, 931 P.2d 1218, 1221 (1997). Section 19-3501 expands that right in three circumstances and provides a speedy trial guarantee above and beyond that provided by the state and federal constitutions. Id. As a statutory expansion of a fundamental constitutional right, the statutory right to a speedy trial is not fundamental. Id. Davis's statutory right to a speedy trial was implicated when the state attempted to delay her trial beyond the six-month time limit without good cause. Davis received the relief provided under Section 19-3501 and the case was dismissed. The state may have elected to not refile the charge at all or only after a period of time had passed. The constitutional speedy trial guarantee does not protect any delay in refiling criminal charges after charges have been dismissed. See MacDonald, 456 U.S. at 8, 102 S.Ct. at 1502, 71 L.Ed.2d at 703-04. Further, in Barker, the United States Supreme Court recognized that many jurisdictions establish procedural rules which dictate the time in which a defendant must be brought to trial. Barker, 407 U.S. at 523, 92 S.Ct. at 2188, 33 L.Ed.2d at 112-13. Nevertheless, the Court adopted a balancing test because it found \\\"no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.\\\" Id. Accordingly, a violation of Section 19-3501 does not necessarily implicate the constitutional right to a speedy trial. Davis's contention that dismissing the charge without prejudice following a violation of Section 19-3501 necessarily infringed on her fundamental right to a speedy trial is without merit.\\nFurther, Davis's contention that allowing the state to refile a charge alleging the same offense as the dismissed charge violated her right to due process is without support in the record. Statutes of limitation, which provide predictable, legislatively-enacted limits on prosecutorial delay, provide the primary guarantee against bringing overly stale criminal charges. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, 758-59 (1977). Nonetheless, statutes of limitation do not fully define a defendant's right with respect to the events occurring prior to filing criminal charges. Id. The Due Process Clause has a limited role to play in protecting against oppressive delay. Id. The filing of a subsequent criminal action following dismissal of the original criminal action after preliminary proceedings is not a per se violation of due process. Stockwell v. State, 98 Idaho 797, 805, 573 P.2d 116, 124 (1977). However, the dismissal and refiling of criminal complaints by the prosecutor, when done for the purpose of harassment, delay, or forum-shopping, can violate a defendant's right to due process. State v. Bacon, 117 Idaho 679, 683, 791 P.2d 429, 433 (1990); Stockwell, 98 Idaho at 806, 573 P.2d at 125. Before a due process violation can be found, the defendant must show that the preaccusation delay caused substantial prejudice to the defendant's right to a fair trial and that the delay was a deliberate device to gain an advantage over the accused. State v. Kruse, 100 Idaho 877, 879, 606 P.2d 981, 983 (1980); State v. Burchard, 123 Idaho 382, 386, 848 P.2d 440, 444 (Ct.App.1993).\\nDavis attempts to equate the absence of good cause for the delay in her original prosecution with the type of conduct that would support a due process claim. However, grounding a due process violation on the basis of a delay that was caused by conduct that was in good faith, but that was caused by inadequate, ineffective, or insufficient personnel or management, runs counter to two basic constitutional principles. United States v. Crouch, 84 F.3d 1497, 1512-13 (5th Cir.1996). Historically, the guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. Id. at 1513. Thus, the Due Process Clause is not implicated by an official's lack of due care that causes unintended injury. Id. The court in Crouch held that, for a delay in prosecution to violate the Due Process Clause, the delay must have been deliberately undertaken by the government for the purpose of gaining a tactical advantage over the accused or for another bad-faith purpose. Id. at 1514.\\nIn Docket No. 30626, the district court found no evidence that the prosecution acted with a motive to delay in a substantial fashion, harass, or forum-shop. The district court indicated that the state's \\\"rationale of 'unavailability of witnesses' under these circumstances was at best weak, is unacceptable practice and does not give rise to what this Court would consider 'good cause.'\\\" Although the state intended to delay Davis's prosecution so that it could schedule trial for when its witnesses would not be on vacation, the state did not act with the improper motive to delay in order to gain a tactical advantage over Davis. The state's conduct in this case can be characterized as negligent or the result of poor management and falls significantly short of the type of deliberate bad-faith conduct necessary to support a due process claim.\\nFurther, even if the state's actions had risen to the level necessary to implicate due process concerns, the district court found that Davis had not been prejudiced by the delay in her prosecution. Davis has cited to no facts that suggest that the delay in prosecuting the original DUI charge caused substantial prejudice. Thus, the district court's order dismissing the original DUI charge in Docket No. 30626 without prejudice was not error.\\nIn Docket No. 31000, Davis's claim that her right to due process was violated parallels her argument that her due process right was violated in Docket No. 30626. However, as in the original action, the district court found that there was no evidence that the state delayed in order to gain a tactical advantage, harass, or forum-shop. Rather, the record demonstrates that the subsequent prosecution was delayed pending resolution of Davis's motion to reconsider. Additionally, to support a due process claim, it is incumbent upon a defendant to affirmatively show actual prejudice and the effect of that prejudice upon his or her ability to present a defense. State v. Murphy, 99 Idaho 511, 514, 584 P.2d 1236, 1239 (1978). The proof of this prejudice must be definite and not speculative. Id. The record in this case demonstrates no actual prejudice; any prejudice suffered by Davis would be speculative in nature. Accordingly, the district court's order granting Davis's motion to dismiss in Docket No. 31000 cannot be affirmed on the alternate theory that Davis's right to due process was violated in the subsequent DUI action.\\nIII.\\nCONCLUSION\\nThe district court did not err by ordering that the original DUI charge be dismissed without prejudice and, therefore, the district court's order dismissing that charge is affirmed. The district court erred when it concluded that Davis's right to a speedy trial was violated in the subsequent DUI action. We also conclude that Davis's right to due process was not violated. Therefore, the order of the district court granting Davis's motion to dismiss with prejudice is reversed.\\nJudge LANSING and Judge Pro Tem WALTERS concur.\\n. In Docket No. 31000, the six-month time limit to bring Davis to trial was renewed upon the filing of the subsequent information in April 2004. See State v. Horsley, 117 Idaho 920, 926, 792 P.2d 945, 951 (1990). The district court granted Davis's motion to dismiss in June 2004. Accordingly, Davis's statutory right to a speedy trial was not implicated in Docket No. 31000.\"}"
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+"{\"id\": \"1601641\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Emiliano Tino RIVERA, Defendant-Appellant\", \"name_abbreviation\": \"State v. Rivera\", \"decision_date\": \"1998-01-06\", \"docket_number\": \"No. 23371\", \"first_page\": \"8\", \"last_page\": \"11\", \"citations\": \"131 Idaho 8\", \"volume\": \"131\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:12:44.551333+00:00\", \"provenance\": \"CAP\", \"judges\": \"LANSING, C.J., and SCHWARTZMAN, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Emiliano Tino RIVERA, Defendant-Appellant.\", \"head_matter\": \"951 P.2d 528\\nSTATE of Idaho, Plaintiff-Respondent, v. Emiliano Tino RIVERA, Defendant-Appellant.\\nNo. 23371.\\nCourt of Appeals of Idaho.\\nJan. 6, 1998.\\nAan E. Trimming, Ada County Public Defender, John C. DeFranco, Deputy Public Defender, Boise, for defendant-appellant.\\nAan G. Lance, Attorney General, Margaret R. Hughes, Deputy Attorney General, Boise, for plaintiff-respondent.\", \"word_count\": \"1621\", \"char_count\": \"10000\", \"text\": \"PERRY, Judge.\\nEmiliano Tino Rivera appeals from his judgment of conviction for the unlawful exercise of the functions of a peace officer. I.C. \\u00a7 18-711. We affirm.\\nI.\\nFACTS AND PROCEDURE\\nAccording to the evidence elicited at trial, a fight broke out on January 16, 1996. A group of young men attacked another young man and beat him severely. The victim's girlfriend came to his aid after the group ended its attack. Rivera was in a nearby house when he saw what had been happening. Rivera approached the victim's girlfriend, flashed a badge from the Ada County Sheriffs Department and indicated he would handle the situation. Rivera then crossed the street with his cousin, Casey Spiegel, and they both got into Rivera's vehicle.\\nAbout this time, a police officer arrived at the scene. As he approached in his patrol car, he saw the victim's girlfriend waving frantically toward Rivera's vehicle, so the officer pursued the vehicle. The officer turned on his lights and Rivera's vehicle accelerated, turned down an alley and continued accelerating. Eventually, Rivera's vehicle came to a skidding stop and hit a chain link fence. Rivera and Spiegel jumped out of the vehicle and began to run away, but came back after the officer yelled at them to stop. After receiving further information regarding the events which had taken place, the officer inquired of Rivera whether he had a badge. Rivera produced a badge from the Ada County Sheriffs Department.\\nRivera was charged with five crimes: unlawful exercise of the functions of a police officer, reckless driving, driving without obtaining a driver's license, fictitious display of a registration card or license plate and illegal consumption of alcohol. The prosecutor dismissed the last three charges before trial.\\nA jury trial was held on August 6 and 7, 1996. The jury found Rivera guilty of the unlawful exercise of the functions of a police officer, but acquitted him of the reckless driving charge. At a sentencing hearing, the district court imposed a two-year sentence, with six months fixed. The district court further ordered Rivera to pay a $1,000 fine. Rivera appeals.\\nII.\\nANALYSIS\\nRivera submits two issues on appeal. Rivera claims that the district court erred when it admitted into evidence a photograph depicting injuries to the victim of the battery. Rivera also claims that the prosecution failed to establish all of the elements of Rivera's charge under I.C. \\u00a7 18-711, and therefore, failed to prove Rivera violated the statute.\\nA. Photograph\\nAt trial, the prosecution moved to admit a photograph depicting the battered face of the young man who was beaten. Rivera's counsel objected arguing that the photograph was unfairly prejudicial. The district court overruled the objection and allowed the admission of the photograph.\\nIdaho Rule of Evidence 403 reads, in pertinent part: \\\"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice____\\\" A district court's determination that the probative value of the evidence is not outweighed by its unfair prejudice is reviewed under an abuse of discretion standard. State v. Matthews, 124 Idaho 806, 809, 864 P.2d 644, 647 (Ct.App.1993). Under that standard, we inquire: (1) whether the district court perceived the issue as one of discretion; (2) whether the district court acted within the boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the district court reached its discretion by an exercise of reason. Id.\\nIn the instant case, Rivera concedes in his appellate brief that the photograph was relevant evidence, stating \\\"the photo has evidentiary value because it tends to make Rivera's actions, flashing the badge, understandable.\\\" Rivera further concedes in his brief:\\nThe State's responsibility is to show [Rivera's] intent was to hold himself out as a police officer. The occurrence of the battery coupled with Rivera's actions may help explain his intent. The existence of the exciting event, a battery, makes it more likely his intent .was to convince [the victim's girlfriend] he really was an officer. Also his statement to [the girlfriend] \\\"I'll take care of everything\\\" may show he intended to exercise an officer's functions---- The contention bubbles forth from the form of the State's evidence to prove the battery.\\nThus, Rivera concedes that the evidence was relevant to explain the circumstances surrounding his decision to present the badge. However, Rivera contends that the prejudicial effect of the photograph substantially outweighed its probative value because it was offered to link Rivera to the battery and incite juror hostility toward Rivera. We disagree.\\nRivera was not charged with the battery of the young man. Further, the prosecution did not suggest that Rivera took part in the battery. There is no support in the record for Rivera's contention that the jury's motivation for finding Rivera guilty was retribution for the battery. It would be speculative to conclude that the jury assumed Rivera battered the young man and was somehow biased because of its assumption. Therefore, we conclude that Rivera has failed to show that the district court abused its discretion by admitting the photograph into evidence.\\nB. Elements of I.C.\\u00a7 18-711\\nRivera requests that we review the elements of I.C. \\u00a7 18-711. Statutory interpretation is a question of law over which we exercise free review. State v. Martinez, 126 Idaho 801, 803, 891 P.2d 1061, 1063 (Ct.App. 1995). Generally, \\\"[w]ords and phrases are construed according to the context and the approved usage of the language____\\\" I.C. \\u00a7 73-113. We are required to give effect to every word and clause of a statute. Martinez, 126 Idaho at 803, 891 P.2d at 1063. However, it is a well-established rule that an ambiguous criminal statute must be construed in favor of the accused. Id.\\nRivera contends that in order to violate I.C. \\u00a7 18-711 a defendant must not only unlawfully exercise the functions of a police officer, but must also bring an armed police force into the state. Idaho Code Section 18-711 provides, in part:\\n1. Any person who shall in this state unlawfully exercise or attempt t.o exercise the functions of, or hold himself out to anyone as, a deputy sheriff, marshal, policeman, constable or peace officer, or any person, whether acting in his oto behalf or an officer of the law, or as the authorized or unauthorized agent or representative of another, or of any association, corporation or company, who shall bring or cause to be brought, or aid in bringing into this state any armed or unarmed police force or detective agency or force, or any armed or unarmed body of men for the suppression of domestic violence, shall be guilty of a felony----\\n(emphasis added). Rivera contends that any person who \\\"unlawfully exercise[s] . the functions of . [a] peace officer\\\" must also \\\"bring or cause to be brought . any armed or unarmed police force\\\" to be \\\"guilty of a felony----\\\" We .disagree.\\nThe word \\\"or\\\" is defined as \\\"a function word to indicate (1) an alternative between different or unlike things, states, or actions .; (2) [a] choice between alternative things, states, or courses____\\\" WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993). Further, the Idaho Supreme Court has concluded that the word \\\"or\\\" should be given its normal disjunctive meaning, unless that meaning would result in absurdity or produce an unreasonable result. Filer Mutual Telephone Co. v. Idaho State Tax Commission, 76 Idaho 256, 261, 281 P.2d 478, 481 (1955).\\nThe statute here is unambiguous when the word \\\"or\\\" is given its disjunctive meaning. The statute can. be violated by \\\"any person who shall . unlawfully exercise or attempt to exercise the functions of . a policeman, . or any person . who shall bring or cause to be brought . into this state any armed or unarmed police force____\\\" I.C. \\u00a7 18-711 (emphasis added). The bolded \\\"or\\\" separates the two primary manners in which this statute can be violated. Under the first part, a person can violate the statute by exercising or attempting to exercise the functions of or holding himself or herself out to anyone as one of the delineated law officials. Under the second part, the statute is violated when a person, acting on his or her own behalf, or as an officer, or as an agent for another or a company, brings or aids in bringing an armed or unarmed police force or body of men into the state.\\nThe district court was correct when it concluded that bringing police forces into the state is not a necessary element of Rivera's charge under I.C. \\u00a7 18-711. We conclude that the district court did not err when it concluded that the statute is violated when a defendant unlawfully exercises or attempts to exercise the functions of a police officer.\\nIII.\\nCONCLUSION\\nWe hold that the district court did not abuse its discretion when it admitted into evidence the photograph of the victim of the underlying battery. Further, the district court did not err when it concluded I.C. \\u00a7 18-711 is violated when a defendant unlawfully exercises the functions of a police officer. Therefore, we affirm Rivera's judgment of conviction.\\nLANSING, C.J., and SCHWARTZMAN, J., concur.\\n. According to Rivera's testimony at trial, he was just joking around. However, in pronouncing sentence, the district court indicated that, contrary to Rivera's claim, the district court believed that Rivera was attempting to help Casey Spiegel escape from the scene of the crime.\\n. Spiegel was eventually arrested for the battery of the young man.\"}"
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+"{\"id\": \"1601725\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. James J. JOHNSON, Defendant-Appellant\", \"name_abbreviation\": \"State v. Johnson\", \"decision_date\": \"1998-09-24\", \"docket_number\": \"No. 24332\", \"first_page\": \"808\", \"last_page\": \"811\", \"citations\": \"131 Idaho 808\", \"volume\": \"131\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:12:44.551333+00:00\", \"provenance\": \"CAP\", \"judges\": \"LANSING, C.J., concurs.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. James J. JOHNSON, Defendant-Appellant.\", \"head_matter\": \"964 P.2d 675\\nSTATE of Idaho, Plaintiff-Respondent, v. James J. JOHNSON, Defendant-Appellant.\\nNo. 24332.\\nCourt of Appeals of Idaho.\\nSept. 24, 1998.\\nJoseph J. Allegria, II, Boise, for Defendant-Appellant.\\nHon. Alan G. Lance, Attorney General; Kimberly A. Coster, Deputy Attorney General, Boise, for Plaintiff-Respondent. Kimberly A. Coster argued.\", \"word_count\": \"1610\", \"char_count\": \"9831\", \"text\": \"PERRY, Judge.\\nJames J. Johnson appeals from the district court's memorandum decision affirming the magistrate's order requiring Johnson to undergo testing for HIV antibodies or antigens and hepatitis B virus, pursuant to I.C. \\u00a7 39-604(4). Johnson contends that there was insufficient evidence to support the magistrate's finding that the crime charged was one where body fluid would likely be transmitted. We reverse the order requiring Johnson to undergo testing.\\nI.\\nFACTS AND PROCEDURE\\nJohnson bit a police officer on the leg. The officer was wearing duty pants with long johns underneath. Johnson was charged with battery on a police officer, I.C. \\u00a7 18-904, -915, and pledguilty.\\nThe state requested that the magistrate order Johnson to be tested for the presence of HIV and for hepatitis B, pursuant to I.C. \\u00a7 39-604(4). A hearing was held and two witnesses testified, Deputy Trauvel, the officer who was bit, and Pam Marcum, who is a forensic scientist with the Department of Law Enforcement. The magistrate found that body fluids had likely been transmitted and ordered that Johnson be tested at his own expense. The testing was stayed, however, pending appeal.\\nJohnson appealed, and the district court affirmed. Johnson further appealed to this Court, and we, in an unpublished opinion, remanded the case for a determination whether the district court had jurisdiction to hear the initial appeal. State v. Johnson, Docket No. 24332 (Ct.App. Feb. 24, 1997). The district court, on remand, determined that it had jurisdiction to hear the appeal and reinstated its original decision, affirming the magistrate's order requiring Johnson to submit to testing. Johnson has again appealed.\\nII.\\nDISCUSSION\\nA.Arguments\\nJohnson asserts that Marcum's testimony was insufficient to establish that it was likely body fluids were transmitted when Johnson bit Deputy Trauvel's leg. Johnson argues that Marcum testified at times that it was likely fluids were transmitted, but then retreated from that position.. Johnson contends that Marcum only affirmatively opined that it was possible fluid was transmitted, but never unequivocally stated that it was likely fluid was transferred.\\nThe state contends that \\\"[a]s a matter of common sense and everyday experience, the inescapable inference is that at least some saliva was likely transmitted.\\\" The state claims that expert witness testimony was not necessary. However, the state maintains, even if expert testimony was necessary, the testimony in this case was sufficient to uphold the magistrate's findings.\\nB. Standard of Review\\nThis is a sufficiency of the evidence case and our appellate review is limited in scope. Findings of fact supported by substantial and competent evidence will not be set aside on appeal. Kootenai Elec. Co-op. v. Washington Water Power Co., 127 Idaho 432, 435, 901 P.2d 1333, 1336 (1995). The magistrate's factual findings will be liberally construed in favor of the judgment, and will not be set aside unless clearly erroneous. Id., 127 Idaho at 435, 901 P.2d at 1336. For evidence to be substantial, it must be of sufficient quality that reasonable minds could reach the same conclusion. Bott v. Idaho State Bldg. Auth., 128 Idaho 580, 586, 917 P.2d 737, 743 (1996).\\nC. Authority\\nIdaho Code Section 39-604(4) reads:\\nAll persons who are charged with any crime in which body fluid as defined in this chapter has likely been transmitted to another shall be tested for the presence of HIV antibodies or antigens and for hepatitis B virus.\\n(Emphasis added). We construe a statute by giving effect to the legislative intent, which, if possible, is determined by the plain language of a statute. State v. Nunes, 131 Idaho 408, 409, 958 P.2d 34, 35 (Ct.App.1998).\\nD. Analysis\\n1. Common knowledge\\nThe state's first contention, that it is common knowledge this particular bite would transmit body fluids, is not persuasive. The state called an expert witness, who at times testified that she was not qualified to give an opinion on the matter, stating that the questions were beyond her expertise. Moreover, in this case, the bite was made over duty pants and long johns. Although the skin was broken, there was no testimony that the pants or the long johns were torn, and no tear in the pants appears in the pictures entered as exhibits. We disagree with the state's position that it is apparent to the average person that body fluids likely would have passed through the clothing. Thus, we must decide whether the expert's testimony provided sufficient evidence that it was likely that body fluids were transmitted when Johnson bit the officer's leg.\\n2. Sufficiency of expert testimony\\nMarcum stated several times during her testimony that it was possible that body fluids were transmitted when Johnson bit Deputy Trauvel's leg. However, Marcum always wavered and refused, ultimately, to affirmatively assert that it was more likely than not that body fluid was transferred. When initially asked if it was likely that the bite transmitted body fluids, the following colloquy took place:\\n[Marcum]: Your Honor, I can't answer that yes or no. Could I elaborate?\\n[Court]: Yes.\\n[Marcum]: Okay. Likely, I guess I'd have to have a definition. It's possible. Likely gives more of a preponderance that it was for sure. It's theoretically possible that body fluids were transferred. And there would be a risk of picking up Hepatitis B or AIDS from a physical trauma like this. But, likely \\u2014 I guess you're getting into percentages there. And I don't testify to percentages. I would like to prefer to say there is a small risk. It's theoretically possible that infectious agents could have been transferred.\\nMarcum went on to testify several times that it was likely the body fluids could be transmitted by a bite of this nature. However, when defense counsel and the magistrate questioned Marcum, trying to pin down exactly what she intended to say, she responded:\\nThat's right [I can't quantify whether or not body fluid was transmitted]. I don't know anything in the literature that\\u2014 where they've done studies on whether\\u2014 the likelihood of it happening. There have been pin pricks where there's been a transfer and infections caused. We're getting beyond my area of expertise here, also. So I'm getting a little uncomfortable on talking about the likelihood of it happening. I know, from my reading and talk to doc \\u2014 talking to Dr. Jessy Greenblat about this. But I don't know the percentages that you're trying to get from me. I don't know if anybody knows those.\\nMarcum also expressed that she was unsure whether the bite would likely transmit body fluid.\\n[Prosecutor]: [H]e's tried to couch in terms of being likely, meaning 51 percent or more is more likely than less likely. And the question, I think, he has for you is: Under that definition of \\\"likely\\\", at 51 percent meaning likely; is it likely that a bite that breaks the skin would pass a body fluid?\\n[Marcum]: I don't know. And I don't know anybody who knows the answer to that. I don't know.\\nLater, Marcum admitted that she was not a physician and then said \\\"I would like to get Dr. Greenblat in here to testify as the medical person. I don't know if he would give percentages either. I don't know if anybody knows that definition.\\\" As we noted earlier, no other expert witnesses testified.\\nAfter reviewing all of the evidence presented, and viewing it in the light most favorable to the prosecution, we conclude that the evidence does not establish that it was likely that body fluids were transmitted by the bite under the facts of this case. The definition of likely requires that the event \\\"make something probable and [have a] better chance of existing or occurring than not.\\\" BLACK'S LAW DICTIONARY 925 (6th ed.1990). Al though Marcum testified at times that it was likely, she failed to support those statements with meaningful reasoning or analysis. In fact, she said on different occasions that she was unqualified to respond and that nobody would know the answer. Marcum finally testified that it was likely that body fluid could be transferred, but \\\"[n]ot more likely.\\\"\\nUnder Kootenai Elec. Co-op., findings should be upheld if they are supported by substantial and competent evidence. 127 Idaho at 435, 901 P.2d at 1336. However, upon review, we hold that the evidence presented by Marcum is not substantial or competent. As noted, Marcum refused to stand by her initial statements that the bite was likely to transmit body fluids. Thus, the evidence is deficient; she never declared, without qualification, that the bite, under the facts as presented in this case, was likely to transmit bodily fluid. Therefore, the evidence presented was insufficient to uphold the magistrate's finding, and the order requiring Johnson to undergo testing is hereby reversed.\\nLANSING, C.J., concurs.\"}"
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+"{\"id\": \"2306079\", \"name\": \"In the Matter of the Application of JEROME F. JACOBS for a Writ of Habeas Corpus\", \"name_abbreviation\": \"In re Jacobs\", \"decision_date\": \"1907-12-11\", \"docket_number\": \"\", \"first_page\": \"720\", \"last_page\": \"720\", \"citations\": \"13 Idaho 720\", \"volume\": \"13\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:49:07.169981+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Application of JEROME F. JACOBS for a Writ of Habeas Corpus.\", \"head_matter\": \"(December 11, 1907.)\\nIn the Matter of the Application of JEROME F. JACOBS for a Writ of Habeas Corpus.\\n[92 Pac. 1003.]\\nORIGINAL application for a writ of habeas corpus. Motion to quash writ.\\nMotion sustained.\\nPrisoner remanded to custody of officer.\\nC. C. Cavanah, J. J. Blake, J. P. Gray, Henry P. Knight, H. E. Worstell, and A. H. Conner,, for Petitioner.\\nJ. J. Guheen, Attorney General, Edwin Snow, J. H. Peterson and B. S. Crow, of the Attorney General\\u2019s office, Charles E. Koelseh, Prosecuting Attorney, Ada County, Walter H. Hanson, Prosecuting Attorney, Shoshone County, for the State, and R. P. Quarles, amicus 'curiae.\\nSubmitted upon the same briefs as were presented in State v. Dolan, ante, p. 693, 92 Pac. 995.\", \"word_count\": \"278\", \"char_count\": \"1572\", \"text\": \"Per CURIAM.\\nThe petitioner was arrested upon a warrant issued by the probate court of the county of Shoshone in the state of Idaho, for the violation of section 3 of an act approved March 12, 1907, known as the Sunday rest law (Laws 1907, p. 223), and after trial was convicted. He petitions this court for a writ of habeas corpus, alleging the unconstitutionality of the act above referred to. The state moves to quash the writ.- The same questions were argued and presented in this case, and by the same counsel, as were argued and presented in the ease of State v. Dolan, ante, p. 693, 92 Pae. 995, just decided by this court, and upon the authority of that case, and for the reasons therein stated, the motion to quash the writ of habeas corpus is sustained, and the prisoner is remanded to the custody of the sheriff of Shoshone county, Idaho.\"}"
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+"{\"id\": \"2325691\", \"name\": \"H. MELGARD, Treasurer of the BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO, Plaintiff, v. JOHN W. EAGLESON, Treasurer of the State of Idaho, and CLARENCE VAN DEUSEN, Auditor of the State of Idaho, Defendants\", \"name_abbreviation\": \"Melgard v. Eagleson\", \"decision_date\": \"1918-04-30\", \"docket_number\": \"\", \"first_page\": \"411\", \"last_page\": \"415\", \"citations\": \"31 Idaho 411\", \"volume\": \"31\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:29:22.664398+00:00\", \"provenance\": \"CAP\", \"judges\": \"Morgan and Rice, JJ., concur.\", \"parties\": \"H. MELGARD, Treasurer of the BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO, Plaintiff, v. JOHN W. EAGLESON, Treasurer of the State of Idaho, and CLARENCE VAN DEUSEN, Auditor of the State of Idaho, Defendants.\", \"head_matter\": \"(April 30, 1918.)\\nH. MELGARD, Treasurer of the BOARD OF REGENTS OF THE UNIVERSITY OF IDAHO, Plaintiff, v. JOHN W. EAGLESON, Treasurer of the State of Idaho, and CLARENCE VAN DEUSEN, Auditor of the State of Idaho, Defendants.\\n[172 Pac. 655.]\\nAgricultural College Fund \\u2014 Ministerial Duty of State Treasurer \\u2014State Auditor \\u2014 Void Acts of State Officers.\\n1. By^ certain acts of Congress $50,000 is appropriated annually for the use and benefit of agricultural and mechanical colleges in each state and territory, the beneficiary institutions to be selected by the several states and territories. These acts provide that this sum shall be paid by the secretary of the treasury of the United States to the state treasurer, who shall, upon the order of the trustees of the college, immediately pay it over to the treasurers of the respective colleges or other institutions entitled to receive it. (U. S. Comp. Stats. 1916, sec. 8872.) This money cannot properly be placed, when received by the state treasurer, in the general fund of the state, as its exclusive supervision is vested in the trustees of the institution designated by the state legislature as the beneficiary entitled to receive it.\\n2. The state treasurer, to whom the fund is transmitted by the secretary of the treasury, is charged with the ministerial duty of immediately paying it over to the treasurer of the board of regents of the University of Idaho, upon its order, and the state auditor has no authority over, and no duty to perform with respeet to it.\\n3. The acts of the defendants, state auditor and state treasurer, in attempting to place the money in the general fund of the state treasury, by making entries upon their books to that end, were mere nullities and did not affect its legal status.\\nOriginal proceeding to procure a Writ of Mandate,\\nWrit granted.\\nWm, Healy and J. R. Sinead, for Plaintiff.\\nThe fund in question is special and impressed with a trust, and neither it nor its income is a part of the general fund of the state. (Yale College v. Sanger, 62 Fed. 177.)\\nThe control of the fund is vested in the supervisors of the institution and not in the legislature, which may not interfere in any way with the fund granted by Congress to a beneficiary which has been designated. (State Board of Agriculture v. Auditor General, 180 Mich. 349, 147 N. W. 529.)\\nThe state treasurer could not change this trust fund into part of the general fund of the state by a mere bookkeeping transaction, and the state auditor has no function whatever to perform in the handling of the fund. (Blaine County v. Fuld, ante, p. 358, 171 Pac. 1138.)\\nT. A. Walters, Attorney General, and A. C. Hindman and J. P. Pope, Assistant Attorneys General, for Defendants, cite no authorities.\", \"word_count\": \"1468\", \"char_count\": \"8335\", \"text\": \"BUDGE, C. J.\\nThis is an original proceeding for a writ of mandate to compel the defendants to pay over to the plaintiff the sum of $50,000 for the use and benefit of the University of Idaho and to compel them to correct the boobs and records of their respective offices by canceling thereon all entries showing the aforesaid sum to be a part of the general fund of the state of Idaho, and for general relief. The petition alleges in substance that the fund in question was paid by the United States to the defendant Eagleson, as state treasurer, on July 10, 1917, under the provisions of the act of Congress August 30, 1890, 26 Stat. 417, as amended by the act of Congress March 4, 1907, 34 Stat. 1256, providing for the appropriation from the public treasury of the United States of the sum of $50,000 annually for the more complete endowment and maintenance of each of certain designated classes of colleges, of which the University of Idaho is one. That thereafter the board of regents duly made an order upon the treasurer that this sum be paid .over to plaintiff in his official capacity. That on July 10, 1917, the defendant Yan Deusen, as auditor, issued his certificate directing that the sum be deposited in the general fund; that the defendant state treasurer issued his official receipt for the sum and purported to deposit it in the general fund, and that, the state auditor and treasurer respectively have carried the sum on their books as part of the general fund. That they have refused to pay the sum to the plaintiff or to correct their books in this respect and still carry the sum as a part of the general fund. That unless the fund be turned over to plaintiff as provided by the acts of Congress, the University will be unable to obtain any use or benefit of the same to its great and irreparable injury and detriment, and that plaintiff will be unable to report to the Secretary of Agriculture and the Secretary of the Interior a detailed statement of the disbursements of said- sum as he is required to do by the acts of Congress.\\nDefendants have demurred to the petition on the grounds:\\n1st. That it does not state facts sufficient to entitle the plaintiff to the relief prayed;\\n2d. That it appears from the petition that the sum in question has been deposited in the general fund and that to grant the relief prayed for would be a violation of sec. 13, art. 7 of the constitution of the state of Idaho, which provides that no money shall be drawn from the treasury but in pursuance of appropriations made by law, and that it does not appear from the petition that any appropriation has been made therefor.\\n3d. That the petitioner has a plain, speedy and adequate remedy at law, in that if defendant Eagleson is withholding funds properly belonging to petitioner the same can be recovered in an action at law.\\nBy three acts of Congress, namely: Act of July 2, 1862, U. S. Compiled Statutes 1916, sec. 8870; act of August 30, 1890, Id., sees. 8871 to 8876, inclusive; act of March'4, 1907, Id., sec. 8877, the sum of $50,000 is appropriated for the use and benefit in each state and territory of agricultural and mechanical colleges, the beneficiary institutions to be selected by the several states. These acts provide that this sum shall be paid by the Secretary of the Treasury of the United States to the state treasurer \\\" . . . . who shall, upon the order of the trustees of the college, . immediately pay over said sums to the treasurers of the respective colleges or other institutions. entitled to receive the same, and such treasurers shall be required to report to the Secretary of Agriculture and to the Secretary of the Interior, on or before the first day of September of each year, a detailed statement of the amount so received and of its disbursement.\\\" (Act of August 30, 1890, c. 841, sec. 2; U. S. Compiled Stats. 1916, sec. 8872.)\\nOur state legislature by IT. B. 192, Sess. Laws 1909, p. 38, approved the action of the board of regents in establishing and maintaining a college of agriculture in accordance with the foregoing acts of Congress.\\nIt is apparent that the fund in question cannot properly be placed in the general fund of the state of Idaho. (Yale College v. Sanger, 62 Fed. 177.) The exclusive supervision of the fund is vested by the act of Congress in the trustees of the institution designated by the state legislature as the beneficiary entitled to receive the fund. (State Board of Agriculture v. Auditor General, 180 Mich. 349, 147 N. W. 529.) Under the acts of Congress, the state treasurer, to whom the fund is transmitted by the Secretary of the treasury, has, with reference to this fund, a mere clerical or ministerial duty to perform, that is, to pay over the fund immediately to the treasurer of the board of trustees, in this case the board of regents, upon their order. The acts of the defendants, state treasurer and state auditor, in this instance, of placing this fund in the general fund by making appropriate entries upon their books to that end were mere nullities. (Blaine County v. Fuld, ante, p. 358, 171 Pac. 1138.) Under the acts of Congress in question the state auditor has no duty whatever to perform with respect to this fund and no authority over it. It is therefore apparent that the de fendant, state treasurer, has but one duty to perform in the premises, and that is to pay over the sum in controversy immediately to the plaintiff, as treasurer of the board of *regents. The writ of mandate should issue directing him to do so, and it is so ordered. No costs awarded.\\nMorgan and Rice, JJ., concur.\"}"
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+"{\"id\": \"2328104\", \"name\": \"SAM CUROE, Respondent, v. SPOKANE AND INLAND EMPIRE RAILROAD COMPANY, a Corporation, Appellant\", \"name_abbreviation\": \"Curoe v. Spokane & Inland Empire Railroad\", \"decision_date\": \"1920-01-10\", \"docket_number\": \"\", \"first_page\": \"643\", \"last_page\": \"650\", \"citations\": \"32 Idaho 643\", \"volume\": \"32\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:00:13.608535+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rice, J., concurs.\", \"parties\": \"SAM CUROE, Respondent, v. SPOKANE AND INLAND EMPIRE RAILROAD COMPANY, a Corporation, Appellant.\", \"head_matter\": \"(January 10, 1920.)\\nSAM CUROE, Respondent, v. SPOKANE AND INLAND EMPIRE RAILROAD COMPANY, a Corporation, Appellant.\\n[186 Pac. 1101.]\\nStatutory Construction \\u2014 Constitutional Law \\u2014 Title op Act\\u2014 Railroads \\u2014 Fire Spreading prom RigSt op Way \\u2014 Negligence.\\n1. The rule which permits reading the title of an act in aid of statutory construction applies only in cases where the legislative meaning .is left in doubt by failure to clearly express it in the law.\\n[As to the effect of the invalidity of title to statutes, see note in Ann. Cas. 1916D, 26.]\\n2. After the codification, by the legislature, of the laws of the state, it is too late to .question the validity of one of them on the ground that the title in the bill by which it was originally enaeted was insufficient to conform to art'. 3, sec. 16, of the constitution.\\n3. A railroad company which, in violation of the law, permit\\u00bb combustible material, not necessary for the maintenance or operation of the road, to accumulate on its right of way and to'remain therein sufficient quantity to communicate fire, when started therein, to contiguous property of another, which is injured or destroyed thereby, is guilty of actionable negligence.\\n[As to the liability of railroad companies for fires, see notes in 38 Am. Dec. 70; 78 Am. Dec. 185; 6 Am. Rep. 597.]\\nAPPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.\\nAction for damages. Judgment for plaintiff.\\nAffirmed.\\nEzra R. Whitla and Graves, Kizer & Graves, for Appellant.\\nThe court will construe the statute in the light of the fact that it was enacted for the preservation of .timber land and that the legislative body could not. have had in contemplation any law applicable generally to railroads. {Rural High School v. School District, 32 Ida. 325, 182 Pae. 859.)\\n\\u25a0\\u201cThe constitution has made the title the conclusive index to the legislative intent as to what shall have operation.\\u201d {Gerding v. Board of County Cornmrs., 13 Ida. 444, 90 Pac. 357; State v. Butterfield Live Stock Co., 17 Ida. 441, 134 Am. St. 263, 106 Pac. 455, 26 L. R. A., N. S., 1224; Hailey v. State Historical Soc. {Huston), 25 Ida. 165, 136 Pac. 212.)\\n\\u201cIt is yiot per se negligence for railway companies to permit combustible materials, such as stalks, grass[ grain or stubble, to grow or remain on its right of way in considerable quantities.\\u201d {Union Pac. By. Co. v. Gilland, 4 Wyo. 395, 34 Pac. 953; St. Louis & S. P. By. Co. v. Jones, 59 Ark. 105, 26 S. W. 5.95.)\\nBlack & Wemette, for Respondent.\\nWhere the act is clear upon its face, and when standing alone is fairly susceptible of but one construction, that construction must be given to it. The prior acts may be resorted to to solve, but not to create, an ambiguity. (Lewis\\u2019 Sutherland on Statutory Construction, 2d ed., sec. 450.)\\nWhere the language of the section clearly conveys the intention of the legislature, and no doubt arises as to such intention, the court is not required to resort to the title to aseer tain such intention. \\u2022 (State v. Paulsen, 21 Ida. 686, 123 Pac. 588.)\\nSee. 1610, Rev. Codes, is broad, and must be held to apply to all railroads, no matter where they are located as to being near or distant from forests or timber lands.\\nHere we have a 'statute making it negligence for the company to have its right of way contain combustible material; that is the gist of the negligence of the defendant in this case, and it must be held that any fire started in the operation or as a result of the operation of appellant\\u2019s trains must make appellant liable for the resulting damage. (Terre Haute & L. B. Go. v. Walsh, 11 Ind. App. 13, 38 N. E. 534; Chicago & E. I. B. Co. v. Goyette, 133 111. 21, 24 N. E. 549, 550; Jones v. Michigan Central B. Co., 59 Mich. 437, 26 N. W. 662, 664.)\\nA leading ease where a statutory provision similar to the Idaho statute is involved is Diamond v. Northern Pac. By. Co., 6 Mont. 580, 13 Pac. 367, 370.\", \"word_count\": \"2740\", \"char_count\": \"15451\", \"text\": \"MORGAN, C. J.\\nOn July 23, 1917, fire started in dry weeds and grass on appellant's right of way and spread to respondent's adjoining land and consumed grass in his pasture and wheat in his field. Immediately before the fire one of appellant's trains, propelled by electricity, passed the point where it occurred. The evidence does not disclose what caused the fire, and no negligence is charged against appellant other than its failure to keep its right of way free from the combustible material by means of which it was communicated to respondent's property.\\nRespondent relies upon C. S., secs. 2948 and 8346, and the trial court appears to have adopted the theory that these sections are applicable to the case. They contain the following provisions:\\nSec. 2948. \\\"Every person, firm or corporation operating a railroad shall keep the ground for 50 feet on each side of the center of the track, or such portion thereof as may be owned or controlled by such person, firm or corporation, clear of combustible materials, except ties and other materials necessary for the maintenance and operation of the road, from June 1 to October 1 of each year.....Any person, firm or corporation violating any provisions of this section shall be guilty of a misdemeanor and shall be subjected to a penalty of not more than $100 for each offense.\\nSec. 8346. \\u2022\\\".... any railway company which shall permit any fire to spread from its right of way to the adjoining lands, is guilty of a misdemeanor. ' '\\nAppellant insists that sec. 2948 applies only .to railroads in timbered lands and that the title of the bill, when it was first, enacted in 1907, shows it to have been the legislative intent to thereby protect the forests; that to construe it otherwise would be to make it violative of the constitution, art. 3, sec. 16, which provides: \\\"Every act shall embrace but one subject, and matters properly connected therewith, Which subject shall be expressed in the title; . \\\"\\nThe rule which permits reading the title of an act in aid of statutory construction applies only in eases where the legislative meaning is left in doubt by failure to clearly and completely express it in the law. (State v. Paulsen, 21 Ida. 686, 123 Pac. 588.) It is said in Lewis' Sutherland on Statutory Construction, 2d ed., vol. 2, sec. 450, p. 856, quoting from Hamilton v. Rathbone, 175 U. S. 414, 20 Sup. Ct. 155, 44 L. ed. 219, see, also, Rose's U. S. Notes: \\\"The whole doctrine applicable to the subject may be summed up in the single observation that prior acts may be resorted to, to solve, but not to create, an ambiguity. ' ' The 'meaning of the legislature is so clearly expressed in the section under consideration as to prohibit search for it elsewhere.\\nThe act of 1907 was incorporated in the Revised Codes of 1909 as sec. 1610, was amended by the 1909 legislature and, as amended, became sec. 2948, supra. This court, in Anderson v. Great Northern Ry. Co., 25 Ida. 433, Ann. Cas. 1916C, 191, 138 Pac. 127, held that after the codification, by the legislature, of the laws of the state, it is too late to question the validity of one of them on the ground that the title in the bill by which it was originally enacted was insufficient to conform to the above-mentioned section of the constitution.\\nThe title to the act of 1909, in addition to referring to the repeal of see. 1612 and the amendment of other sections of the Eevised Codes, including 1610, indicates the purpose of the act to be the prevention of forest fires. The regulation of railroads to the end that fires be prevented and the prevention of fires in forested areas constitute but a single subject, and matters properly connected therewith, within the meaning of art. 3, see. 16, above quoted. If the 1909 act should be held to be obnoxious to the constitution, in that it embraces more than one subject, it would avail appellant nothing, because, in that event, the act would be void and the section would remain as found in the Eevised Codes, which differs from the amended law only in that what is therein referred to as the \\\"closed season\\\" is made to commence May 1st instead of June 1st of each year.\\nIt is contended respondent should not be permitted to recover damages for the loss of his grass and grain because of his failure to show appellant was responsible for starting the fire.\\nIt is clear the legislature intended by sees. 2948 and 8346 to require owners of railroads to prevent fire from spreading from their rights of way on to contiguous lands. As a means to that end the provision first quoted was placed in the former section. Appellant's liability arises from a violation of its duty in that it permitted an accumulation of combustible material to remain on its right of way in sufficient quantity, during the season when it was unlawful to do so, to communicate fire, when started therein, to the property of respondent. This was a violation of law enacted for the protection of respondent, and others like situated, and constituted negligence resulting in damage for which this action is maintainable. (1 C. J. 954 and 957; 20 R. C. L. 38; Denton v. Missouri, K. & T. Ry. Co., 90 Kan. 51, Ann. Cas. 1915B, 639, 133 Pac. 558, 47 L. R. A., N. S., 820; Evers v. Davis, 86 N. J. L. 196, 90 Atl. 677; Cheek v. Prudential Ins. Co. (Mo.), 192 S. W. 387, L. R. A. 1918A, 166; Klatt v. N. C. Foster Lumber Co., 97 Wis. 641, 73 N. W. 563.)\\nThe judgment is affirmed. Costs are awarded to respondent.\\nRice, J., concurs.\"}"
\ No newline at end of file
diff --git a/idaho/2334831.json b/idaho/2334831.json
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+"{\"id\": \"2334831\", \"name\": \"A. J. HARKER, Respondent, v. LESTER C. SEAWELL, Appellant\", \"name_abbreviation\": \"Harker v. Seawell\", \"decision_date\": \"1922-04-29\", \"docket_number\": \"\", \"first_page\": \"457\", \"last_page\": \"458\", \"citations\": \"35 Idaho 457\", \"volume\": \"35\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:25:30.334526+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rice, C. J., and McCarthy, J., concur.\", \"parties\": \"A. J. HARKER, Respondent, v. LESTER C. SEAWELL, Appellant.\", \"head_matter\": \"(April 29, 1922.)\\nA. J. HARKER, Respondent, v. LESTER C. SEAWELL, Appellant.\\n[206 Pac. 812.]\\nTrefass \\u2014 Injury to Growing Grass \\u2014 Action\\u2014Party in Possession Dnder Claim of Eight \\u2014 Verdict not Supported by Evidence.\\n1. As against a mere tort-feasor, actual possession of land, under a claim of right, is sufficient to maintain an aetion of trespass for injury to growing grass and crops.\\n2. On appeal from a judgment, if the evidence is insufficient to support the verdiet, judgment will be reversed.\\nPublisher\\u2019s Note.\\n1. Possession of land under color of title as giving one right to maintain action against mere trespasser, see notes in 4 Ann. Cas. 190; Ann. Cas. 1915D, 37; 30 L. E. A., N. S., 243.\\nAPPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Var\\u00edan, Judge.\\nAetion for trespass. From judgment for plaintiff, defendant appeals.\\nReversed.\\nO. M. Van Duyn and Frank T. Wyman, for Appellant. The measure of damages for trespass upon plaintiff\\u2019s close by livestock that ate the grass and pasturage is the value of the grass and pasturage at the time of the trespass. (17 C. J. 893; Risse v. Collins, 12 Ida. 689, 87 Pae. 1006; Coa> v. Creme Creek Sheep Co., 34 Ida. 327, 200 Pae. 678.)\\nF. H. Lyons and E. R. Coulter, for Respondent, file no brief.\", \"word_count\": \"433\", \"char_count\": \"2512\", \"text\": \"DUNN, J.\\nThis action was brought by respondent to recover damages resulting from a trespass by appellant in grazing certain sheep on the land of respondent and to ob tain an injunction restraining appellant from further trespass.\\nAlthough shown to be in actual possession of the lands in controversy, respondent failed to show that, as to all of the land in controversy, he was either the owner or entitled to the possession thereof. Appellant \\u00e9ontends that there can be no right of recovery unless respondent shbws either ownership or right of possession of the land. In this appellant is in error. He is a trespasser and as against him simple possession under a claim of right is sufficient to support the action. In the case of Sanson v. Seawell, ante, p. 92, 204 Pac. 660, this court said: \\\"As against a mere tort-feasor, actual possession of land, under a claim of right is sufficient to maintain trespass,\\\" citing numerous cases.\\nWe have' examined the record with care and while we find respondent to have suffered damage at the hands of appellant, the evidence is insufficient to support the verdict for $600. The judgment is therefore reversed, with costs to appellant.\\nRice, C. J., and McCarthy, J., concur.\"}"
\ No newline at end of file
diff --git a/idaho/2338616.json b/idaho/2338616.json
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index 0000000000000000000000000000000000000000..32d1d6d987b99b0c77e503e9deb6e4ed835b4dbf
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+"{\"id\": \"2338616\", \"name\": \"JOHN URIOLA, Appellant, v. TWIN FALLS BANK & TRUST COMPANY, a Corporation, Respondent\", \"name_abbreviation\": \"Uriola v. Twin Falls Bank & Trust Co.\", \"decision_date\": \"1923-06-02\", \"docket_number\": \"\", \"first_page\": \"332\", \"last_page\": \"348\", \"citations\": \"37 Idaho 332\", \"volume\": \"37\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:49:55.443127+00:00\", \"provenance\": \"CAP\", \"judges\": \"McCarthy and Wm. E. Lee, JJ., concur.\", \"parties\": \"JOHN URIOLA, Appellant, v. TWIN FALLS BANK & TRUST COMPANY, a Corporation, Respondent.\", \"head_matter\": \"(June 2, 1923.)\\nJOHN URIOLA, Appellant, v. TWIN FALLS BANK & TRUST COMPANY, a Corporation, Respondent.\\n[215 Pac. 1080.]\\nNegotiable Instruments \\u2014 Intent of Drawer \\u2014 Liability of Indorser\\u2014 Innocent Holders \\u2014- Impostor as Payee \\u2014 Negligence oe Drawer \\u2014 Liability.\\n1. Where a party purchases a draft from a bank made payable to a designated payee, the intent of the purchaser as to the payee becomes the intent of the bank.\\n0. A bank is not liable for the payment of a draft on a forged indorsement, where the person committing the forgery and receiving the money was in fact the person to whom the drawer delivered the instrument, whom he believed to be the payee named, and who was the individual intended to receive the same.\\nPublisher\\u2019s Note.\\n2. Who must bear loss when check or bill is issued or indorsed to impostor, see notes 22 A. L. R. 1228; 50 L. R. A. 75; 17 1. R. A., N. S.. 514: 38 L. R. A.. N. S.. 1111.\\n3. Where the drawer of a cheek delivers it, for a consideration which turns out to be fraudulent, to an impostor under the belief that he is the person whose name he has assumed and to whose order the cheek is made payable, a bona fide holder for a valuable consideration who paid the imposter upon his indorsement of the payee\\u2019s name is entitled to recover from the drawer; it appearing that the person to whom the check was delivered was the very person whom the drawer intended should indorse it and receive the money, and that the drawer made no inquiry concerning the identity or credit of the named payee, who was unknown to the drawer.\\nAPPEAL from tbe District Court of the Eleventh Judicial District, for Twin Falls County. Hon. 'Win. A. Babcock, Judge.\\nAction by plaintiff to recover money charged against his account by defendant bank. From judgment for defendant, plaintiff appeals.\\nReversed and remanded, with instructions.\\nE. M. Wolfe and J. F. Martin, for Appellant.\\nWhen a draft is made payable, and delivered to an impostor by the drawer of such draft, and the draft comes into the hands of an innocent purchaser for value and without notice, the drawer must stand the loss as between it and the innocent purchaser. (Hoffman v. American Exchange Nat. Bank, 2 Neb. (Unof.) 217, 96 N. W. 112; Montgomery Garage Co. v. Manufacturers\\u2019 Liability Co., 94 N. J. L. 152, 109 Atl. 296, 22 A. L. R. 1224, and cases cited; Robertson v. Coleman, 141 Mass. 231, 55 Am. Rep. 471, 4 N. E. 619; McHenry v. Old Citizens\\u2019 Nat. Bank, 85 Ohio St. 203, 97 N. E. 395, 38 L. R. A., N. S., 1111; see notes, 50 L. R. A. 75; 17 L. R. A., N. S., 514; 38 L. R. A., N. S., 1111; Bran-non\\u2019s Negotiable Instrument Law, 3d ed., pp. 87-89, 468-471, 498-504.),\\nThe indorsement of an impostor upon a cheek passes good title to the check to an innocent purchaser. (Robertson v. Coleman, supra; Land Title & Trust Co. u. Northwestern Nat. Bank, 196 Pa. St. 230, 79 Am. St. 717, 46 Atl. 420, 50 L. B. A. 75, and eases cited.)\\nFrank L. Stephan, for Respondent.\\nRespondent bank had the right as a matter of law to cancel the credit and charge back to the account of the appellant the amount of its loss. (3 R. C. L. 522; 7 C. J. 633; Bailie v. Augusta Savings Bank, 95 G-a. 277, 51 Am. St. 74, 21 S. E. 717; Blake v. Hamilton Dime Sav. Bank Co., 79 Ohio St. 189, 128 Am. St. 684, 16 Ann. Cas. 210, 87 N. E. 73, 20 L. R. A., N. S., 290; National Gold Bank & Trust Co. v. McDonald, 51 Cal. 64, 21 Am. Rep. 697; Ocean Park Bank v. Rogers, 6 Cal. App. 678, 92 Pac. 879; Lyon County State Bank v. Schaffer, 102 Kan. 868, 171 Pac. 1159; Belsheim v. First Nat. Bank of White Salmon, 77 Wash. 552, 137 Pac. 1055.)\\nAppellant\\u2019s right to recover the credit given him by respondent bank is defeated by the forged indorsement of the payee\\u2019s name. (C. S., sec. 5890; 7 C. J. 636; 5 R. C. L. 564; Crawford on Negotiable Instruments, p. 57; First Nat. Bank of Chicago v. Northwestern Nat. Bank, 152 111. 276, 43 Am. St. 247, 38 N. E. 739, 26 L. R. A. 289; People\\u2019s Bank v. Franklin Bank, 88 Tenn. 299, 17 Am. St. 884, 12 S. W. 716, 6 L. R. A. 724; 3 R. C. L. 1296.)\\nAs between appellant and respondent, appellant was the less diligent and should bear the loss resulting from his negligence. (Heim v. Neubert, 48 Wash. 587, 94 Pac. 104; People\\u2019s Bank v. Franklin Bank, supra.)\\nA forged indorsement is wholly inoperative and does not convey title to the instrument. (Tolman v. American Nat. Bank, 22 R. I. 462, 84 Am. St. 850, 48 Atl. 480, 52 L. R. A. 877; Shipman v. Bank of State of New York, 126 N. Y. 318, 22 Am. St. 821, 27 N. E. 371, 12 L. R. A. 791; Armstrong v. Pomeroy Nat. Bank, 46 Ohio St. 512; Jordan Marsh Co. v. Shawmut Nat. Bank, 201 Mass. 397, 87 N. E. 740, 22 L. R. A., N. S., 250; First Nat. Bank of Chicago v. Pease, 168 111. 40, 48 N. E. 160; Seaboard Nat. Bank v. National Bank of America, 193 N. Y. 26, 85 N. E. 829, 22 L. R. A., N. S., 499.)\", \"word_count\": \"6031\", \"char_count\": \"32886\", \"text\": \"GIVENS, Commissioner.\\n\\u2014 This case was submitted upon stipulated facts found in the findings of fact and conclusions of law, as follows:\\n\\\"That prior to the 20th day of August, 1920, J. Kawai stole from U. Watanabe, of Shoshone, Idaho, a certain time certificate of deposit, of the approximate value of $500. That thereafter the said J. Kawai assumed the name of U. Watanabe and held himself out as the owner of said certificate of deposit. That under such assumed name, he rented a room at the Plaintiff's rooming house, registering as U. Watanabe, and was known to the plaintiff by said name. That he rented a post-office box, number 298, at the Twin Falls Post Office under the said name of U. Watanabe, and received his mail through said post-office box under said name.\\n\\\"That thereafter the said J. Kawai wrote one Henry Betsun, of Salt Lake City, Utah, who was engaged in the business of loaning money, enclosing said certificate of deposit which he had stolen from U. Watanabe, and requesting a loan thereon, and signed the same 'U. Watanabe,' and sending for the return address the post office box number 298, which he had rented under* said name at the Twin Falls Post Office. That the said Henry Betsun, answering said letter, addressing the same to the address as directed, as stated above, returned the said certificate of deposit, and also enclosed a blank application for a loan to be filled out by the applicant. That J. Kawai filled out said application and signed same 'U. Watanabe,' and returned it to the said Henry Betsun, in Salt Lake City, together with the said certificate of deposit; and upon receipt thereof the said Henry Betsun purchased from the Utah State National Bank, of Salt Lake City, Utah, a Cashier's check made payable to U. Watanabe, for the sum of $400, a copy of which is attached to defendant's answer herein, and forwarded the same to the said J. Kawai by mail, addressed to U. Watanabe, in care of the said post office box rented by the said J. Kawai under the name of U. Watanabe.\\n\\\"That after the said J. Kawai received the said cashier's check he endorsed thereon the name of U. Watanabe and delivered the same to the plaintiff. That thereafter the plaintiff endorsed said cashier's check and deposited the same with the defendant bank; that the same was paid on the 25th day of August, 1920, by the Utah State National Bank, of Salt Lake City, the maker thereof. That it was later discovered that the said J. Kawai was not the owner of said time certificate of deposit, but that he had stolen the same; whereupon, on the 24th day of September, 1920, the defendant bank charged the plaintiff's account with $400, without his consent and against his will. That the said bank immediately notified the said plaintiff of such charge.\\n\\\"That neither the plaintiff nor the defendant had any notice or knowledge of any of the wrongful acts of the said J. Kawai, and that the plaintiff, Uriola, was an innocent purchaser of the said cashier's check.....\\n\\\"That the said J. Kawai was charged with the crime of forgery, and more particularly, with forging the name of U. Watanabe upon the back of the said cashier's cheek, and was convicted of the said crime.\\\"\\nPlaintiff, appellant, sued the bank, respondent, for the-$400 thus charged against his account. While it might appear from the stipulation that- the issues were '-ctween appellant and respondent only, two innocent holders, nevertheless we must go further in order to find the facts upon which the bank based its right to charge the $400 against appellant's account.\\nThe bank must have paid the $400 to the Utah State National Bank, the maker of the cashier's cheek in question, and the Salt Lake Bank must have in turn reimbursed Betsun for the $400 paid by him to the Salt Lake bank in the purchase of said check, before the respondent would have been in a position to demand tbe return of the money paid to appellant. If respondent has not thus repaid Betsun, it has sustained no loss and had no right to charge the $400 to appellant, and hence has no defense at all.\\nThe return of the money through these channels to Betsun would be based upon the conclusion that the indorsement by Kawai, impersonating Watanabe, on the cashier's check sent Kawai by Betsun, payable to U. Watanabe, and cashed by appellant for Kawai, was a forgery. Unless Betsun had a valid claim against the Utah State National Bank for the return of his money, the Salt Lake bank had no valid claim against the Twin Falls bank, and the Twin Falls bank had no right to make a charge therefor against appellant's account. The rights of Betsun and Uriola are the determinative factors.\\n\\\"Generally a bank is not bound to know the signature of the indorser of a cheek, and, if it pays a check on a forged indorsement, it can recover the money of the party to whom it was paid, if it proceeds promptly on discovery of the fraud. This is upon the principle that the indorsement of a check is an implied warranty of the genuineness of the previous indorsements. But, in order that a bank may recover, it must appear that it has sustained a loss. If it can charge the payment to the account of the depositor, it has lost nothing, and has no cause of action. The question is, then, the same, whether we consider the check as having been drawn by an ordinary depositor in the trust company, or as having been drawn, as it was, by the real estate department of the company, on the banking department. While, as between the bank and the trust company, as a banker the former is bound by its implied warranty of the indorsement, still there is no cause of action unless the payment of the check was not, as against the drawer of the cheek, a good payment. The reason of the rule that when a bank pays a depositor's check on a forged indorsement, or a raised check, it is held to have paid it out of its own funds, and cannot charge the payment to the depositor's account, is that there is an implied agreement by the bank with its depositor, that it will not disburse the money stand ing to his credit, except on his order. The rule applies, where a check has been lost or stolen and the payee's name has afterwards been forged; but it does not protect a depositor who is in fault, as in intrusting a check to one who he has reason to suppose will make a fraudulent use of it, or in so carelessly filling up a cheek that it may readily be altered, or in issuing a cheek to a fictitious person. It is confined to cases in which the depositor has done nothing to increase the risk of the bank. It. should not apply when the check is issued to one whom the drawer intends to designate as the payee; First, because in such a case the risk is not the ordinary risk assumed by the bank in its implied contract with its depositor, but a largely increased risk, as it follows that a check thus fraudulently obtained will be fraudulently used. The bank is deprived of .the protection afforded by the fact that a tona fide holder of a check will exercise care to preserve it from loss or theft, which are the ordinary risks. There is thrown on the bank the risk of antecedent fraud practiced upon the drawer of the check, of which it has neither knowledge nor means of knowledge; secondly, because in such a case the intention with which the drawer issued the cheek has been carried out; the person has been paid to whom he intended payment should be made; there has been no mistake of fact, except the mistake which he made when he issued the check, and the loss is due, not to the bank's error in failing to carry out his intention, but primarily to his own error, into which he was led by the deception previously practiced upon him.\\\" (Land Title & Trust Co. v. Northwestern Nat. Bank, 196 Pa. St. 230, 79 Am. St. 717, 46 Atl. 420, 50 L. R. A. 75, at 79, 80, and eases cited in the notes in the last two citations.)\\nThe real issue, then, is upon the following question, namely: Where an impostor assumed the name of another person (Kawai assuming the name of Watanabe) and thereby induces a third party (Betsun) to believe that he is the person whose name is assumed, and acting on such belief, such third person (Betsun) purchases a draft designating the payee by the name assumed by the impostor (Watanabe, assumed by Kawai) and delivers it to such impostor (Kawai, by mail from Salt Lake City), intending to deal with tbe impostor, not knowing there is a real person as distinguished from the impostor, and the impostor (Kawai) indorses the draft (which was done by Kawai when Uriola cashed it for him), using such assumed name, and transfers it to an innocent purchaser (Uriola), must the loss fall on the maker or the indorser, as purchaser, both maker and indorser being innocent of the imposition at the time of the transaction?\\nIn this proposition two questions are involved: First, the relative responsibilities of Betsun and Uriola; second, the right of the Twin Falls bank to recover the money from Uriola, dependent upon the relative legal rights of Betsun and Uriola.\\nAs to the first proposition, respondent cites the case of Tolman v. American Nat. Bank, 22 R. I. 462, 84 Am. St. 850, 48 Atl. 480, 52 L. R. A. 877, to the effect that Uriola must bear the loss. The facts in that case and this are different in two particulars: first, in the ease at bar, the indorsement by Uriola to the Twin Falls Bank; second, in the above-mentioned case the court comes to its conclusion adverse to appellant herein upon the following fact not in the case at bar, namely: \\\"The plaintiff made inquiry, and finding that Haskell was employed, and was living as represented, he agreed to make the loan. Potter, under the name of Haskell, gave his note to the plaintiff, and the plaintiff gave him a check on the defendant payable to the order of Haskell, delivering it to Potter, supposing him to be Haskell, ' ' which fact controlled the decision, for the court said: \\\"In this case the money was intended for Haskell, because his was the only name suggested. He had been looked up, and found to be responsible. It is a perversion of words to say that it was intended for Potter simply because he had fraudulently impersonated Haskell, and led the plaintiff to believe that he was Haskell. The plaintiff did not intend to let Potter have money. Plis check showed who was to have it, because it was made payable to Haskell. When, therefore, Potter fraudulently endorsed Haskell's name on the cheek, it was a typical case of forgery. It was a false signature, with intent to deceive.\\\"\\nTo make the Tolman v. American Nat. Bank case applicable here, it would have been necessary for Betsun to investigate and ascertain that there was a true \\\"Watanabe and thereafter have dealt with Kawai under the belief that he was dealing with Watanabe.\\nIn commenting upon the Tolman case, in connection with similar situations, and differentiating its applicability to the situation under discussion here, other courts have held that the intent of the maker as to the correct payee is to govern.\\n\\\"Intent of the drawer is the test, and this intention must necessarily arise from knowledge and exist as an affirmative fact in the mind of the drawer at the time of the delivery of the paper.\\\" (American Express Co. v. People's Savings Bank, 192 Iowa, 366, 369, 181 N. W. 701, at 703; Seaboard Nat. Bank v. National Bank of America, 193 N. Y. 26, 85 N. E. 829, 22 L. R. A., N. S., 499; Grand Lodge etc. v. Emporia Nat. Bank, 101 Kan. 369, 166 Pac. 490.)\\nThe rule is recognized as the controlling criterion by Shipman v. Bank of State of New York, 126 N. Y. 318, 22 Am. St. 821, 27 N. E. 371, 12 L. R. A. 791, cited by respondent.\\nTolman v. American Exchange Bank, supra, is shown to be entirely inapplicable to the facts as they exist in the case at bar, by numerous authorities in line with the present decision, among others the following: Jamieson v. Heim, 43 Wash. 153, 86 Pac. 165; Heavy v. Bank, 27 Utah, 222, 101 Am. St. 966, 75 Pac. 727; Boatsman v. Stockmen's Nat. Bank, 56 Colo. 495, 138 Pac. 764, 50 L. R. A., N. S., 107; McHenry v. National Bank, 85 Ohio St. 203, 97 N. E. 395, 38 L. R. A., N. S., 1111; Sherman v. Corn Exch. Nat. Bank, 91 App. Div. 84, 86 N. Y. Supp. 341. In Brannan's Negotiable Instruments Law, page 87, after construing these cases, the author makes the following analysis of the situation involved (p. 89) :\\n\\\"In these fraudulent impersonation cases, the maker or drawer of the instrument may be said to have a double in tent. First, lie intends to make the instrument payable to the person before him or to the person writing at the other end of the line, in case the negotiation is by correspondence. Second, he intends to make the instrument payable to the person whom he believes the stranger to be. The courts have almost unanimously held that the first is the controlling intent except where the named payee was already known to the maker or drawer, . or was more particularly identified in some manner, e. g., by some designation, description or title . in which cases the courts treat the second as the controlling intent.\\\"\\nThere are also collated in said volume learned discussions upon the principle herein involved by Professor Ames, Judge Brewster and Mr. MeKeehan, at pp. 468-471 and 498-504, the conclusion as herein indicated being reached.\\nWhile it is true that the maker of the draft in question was the Utah State National Bank, it was Betsun's intent that must govern, because the bank made the draft payable to the party designated by Betsun. The Salt Lake bank's intent was to make the draft payable to the party that Betsun intended it to be payable to. (First Nat. Bank of Fort Worth, Tex., v. American Exch. Nat. Bank, 49 App. Div. 349, 63 N. Y. Supp. 58; Id., 170 N. Y. 88, 62 N. E. 1089; 14 Harvard Law Rev. 60.) What was Betsun's intent? It was to have the money paid to Kawai, under the name of Watanabe; the name Watanabe, but the person or individual Kawai. Uriola, by his indorsement, identified the individual Kawai as Watanabe, in perfect accord with Betsun's intention, because the individual identified as Watanabe by Uriola was the individual Betsun intended should receive the money. Betsun had no knowledge of any other person than Kawai as being Watanabe, and intended nothing so far as anyone except Kawai was concerned.\\nAs stated in United States v. Chase Nat. Bank, 241 Fed. 535: \\\"If the maker really intends to make the forger payee, even under a false name, his indorsement (the impostor's) is good.\\\"\\nThe strongest rule in favor of respondent is that payment was to be made only to the person authorized to receive the same under the language of the check: Jordan Marsh. Co. v. Shawmut Nat. Bank, 201 Mass. 397, 87 N. E. 740, 22 L. R. A., N. S., 250. The real Watanabe was clearly not entitled to receive or cash the check. True, the original security upon which the cheek was based belonged to the real Watanabe, but so far as the transaction between the Twin Falls bank and Uriola, between Betsun, the two banks and Uriola, and as to Betsun purchasing and sending the check to Hawai, the real Watanabe was a stranger, and no more entitled to receive or cash the draft. So far as the real intention of Betsun and the Salt Lake bank was concerned, if Uriola had indorsed the draft upon the signature of the real Watanabe, it would have been a false indorsement, because he would not have been indorsing payment to the party contemplated by Betsun and the Salt Lake bank as their payee. The indorsement by appellant of the check sent by Betsun was regular in every way, except that Hawai had previously deceived Betsun. If Hawai indorsed the name of Watanabe on the $500 sent Betsun as security, that was a forgery, but the most that can be said if the two transactions -are considered together, and unless they are there can be no taint of fraud or forgery in the second, is that Betsun's security for the loan was worthless, but appellant was in no way responsible for this.\\nHeim v. Neubert, 48 Wash. 587, 94 Pac. 104, Jordan Marsh Co. v. Shawmut Nat. Bank, supra, and similar authorities cited in respondent's brief are to be distinguished on the question of a difference of intent as to payee. This distinction is clearly elucidated in the following:\\n\\\"The plaintiff, in support of his contention that the defendant, 'having permitted the cheeks by mistake to come into the hands of the impostors,' who wrongfully received them, and without authority and by forgery indorsed them 'to a bona fide holder, is liable to such holder for the payment of the same' \\u2014 cites: United States v. National Exch. Bank (C. C.), 45 Fed. 163; National Bank v. Shotwell, 35 Kan. 360, 11 Pac. 141; Crippen Lawrence & Co. v. American Nat. Bank, 51 Mo. App. 508; Meridian Nat. Bank etc. v. First Nat. Bank, 7 Ind. App. 322, 52 Am. St. 450, 33 N. E. 247, 34 N. E. 608; Robertson v. Coleman, 141 Mass. 231, 55 Am. Rep. 471, 4 N. E. 619; Maloney v. Clark, 6 Kan. 83 ; E. S. Karoly Co. v. Globe Savings Bank, 64 Ill. App. 225; Famous Shoe & Clothing Co. v. Crosswhite, 124 Mo. 34, 46 Am. St. 424, 27 S. W. 397, 26 L. R. A. 568; Fiore v. Ladd & Tilton, 22 Or. 202, 29 Pac. 435, and McHenry v. Old Citizen's Nat. Bank, 85 Ohio St. 203, 97 N. E. 395, 38 L. R. A., N. S., 1111. We think the cases are not applicable for the principal reason that in nearly all of them the person to whom the check or instrument was delivered was the very person whom the drawer intended should present and indorse it and receive the money evidenced by it, or with whom the transaction was had with respect to which the check was given, or where recovery was permitted on the ground of negligence or an estoppel. These elements are not here present.\\\" (Simpson v. Denver & R. G. R. Co., 43 Utah, 105, 134 Pac. 883, 46 L. R. A., N. S., 1164.)\\nIt is a pure fiction to contend that Betsun and the Twin Falls bank intended to deal with the man who was the legal owner of the original certificate of deposit, as distinguished from Kawai, they did not know that Kawai was not such legal owner, and Betsun set in motion the machinery which resulted in the loss, and Betsun and the Salt Lake bank were dealing with Kawai as an individual and payee, and as to them, and their intent with regard to the instrument in question, Uriola's indorsement was absolutely correct, and hence as between Uriola and the Twin Falls bank, his indorsement was correct.\\nAs we have indicated above, Betsun is the real drawer, and where a draft is made payable and delivered to an impostor by the drawer of such draft, the drawer intending it to be paid to such impostor, and it is so paid, and the draft comes into the hands of an innocent purchaser for value and without notice, the drawer must stand the loss as between him and the innocent purchaser. First Nat. Bank of Chicago v. Pease, 168 Ill. 40, 48 N. E. 160, is not in point because the party was dealing with an agent, knowing him to be an agent, but thinking he was authorized by his principal, who in fact knew nothing of the transaction. Also Seaboard Nat. Bank v. Bank of America, 193 N. Y. 26, 85 N. E. 829, 22 L. R. A., N. S., 499.\\nRespondent urges with great vigor the applicability of C. S., sec 5390, which section in the Uniform Negotiable Instruments Act has been considered apropos to similar situations in many of the eases quoted herein.\\nThe following case, on facts substantially the same as the case at bar, thus clearly distinguishes the Rhode Island authority, supra, on this point:\\n\\\"The trial court found, first, that the plaintiff intended the draft to be paid to the individual who received the money from defendant, and that defendant was not guilty of any negligence in paying it; second, that the defendant was led and induced to pay the draft by acts of plaintiff, and plaintiff's negligence prompted its payment; .\\n\\\"The liability of defendant is asserted on the grounds set forth in section 42 of the negotiable instruments act of New York, which has been enacted in effect in 14 other states, and is claimed to be declaratory of the common law. Said section 42 reads as follows: 'Where a signature is forged or made without authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.' It is claimed that this signature is a forgery, and the defendant therefore liable.....But it also seems clear that the plaintiff is not entitled to set up this claim. A recent case in Rhode Island (Tolman v. American Nat. Bank, 22 R. I. 462, 84 Am. St. 850, 48 Atl. 480, 52 L. R. A. 877) seems to sustain plaintiff's contention. Its syllabus has the follow ing: 'A cheek drawn payable to the order of A. was procured by representations that the person to whom it was given was A., and the indorsement of the latter was forged thereto, and it was paid by the bank. Held, that the bank was liable to the drawer for such sum, both at the common law, and under the statute.' Rhode Island has adopted the statute above cited. The weight of authority, however, seems to be decidedly in favor of the doctrine that where a check or draft is drawn or indorsed and delivered to a party, to be cashed by him under the name in which it is made out or indorsed, that his signature by way of indorsement in that name is valid as between an innocent holder and the party delivering it to him. This is commonly put on the ground that the prayer of the draft or the purchaser of it is simply carrying out innocently the intention of the maker or indorser. Emporia Nat. Bank v. Shotwell, 35 Kan. 360, 57 Am. Rep. 171, 11 Pac. 141; Meridian Nat. Bank v. First Nat. Bank, 7 Ind. App. 322, 52 Am. St. 150, 33 N. E. 217, 34 N. E. 608; Robertson v. Coleman, 141 Mass. 235, 55 Am. Rep. 471, 4 N. E. 619; Levy v. Bank of America, 24 La. Ann. 220, 13 Am. Rep. 124; Land etc. Co. v. Northwestern Nat. Bank, 196 Pa. St. 230, 79 Am. St. 717, 46 Atl. 420, 50 L. R. A. 75. It is also placed sometimes, as was done in a measure in this instance, by the trial court, on the ground of negligence on the part of the maker. It is-sometimes held that the payee is a fictitious person, and the check or draft therefore payable to bearer.\\\" (Hoffman v. American Exch. Nat. Bank, 2 Neb. (Unof.) 217, 96 N. W. 112.)\\nUpon a similar state of facts, New Jersey has the following well-considered case:\\n\\\"We do not rest the plaintiff's right to recover upon section 9 of the Negotiable Instruments Act (C. S., p. 3736). The cheek cannot be said to have been payable to bearer by force of that section declaring that 'the instrument is payable to bearer . when it is payable to the order of fictitious or non-existing persons and such fact was known to the person making it so payable,' because it does not appear that such fact was known to the drawer.\\n\\\"But we think that the rule is, where (as here), the drawer of a check delivers it, for a consideration which turns out to be fraudulent, to an imposter under the belief that he is the person whose name he has assumed and to whose order the check is made payable, a bona fide holder for a valuable consideration, paid to the imposter upon his indorsement of the payee's name, is entitled to recover from the drawer; it appearing that the person to whom the check was delivered was the very person whom the drawer intended should indorse it and receive the money, and that the drawer made no inquiry before issuing the check concerning the identity or credit of the named payee who was unknown to the drawer. (Citing cases.)\\n\\\"And see Meridian Bank v. First Bank, 7 Ind. App. 322, 52 Am. St. 450, 33 N. E. 247, 34 N. E. 608; Elliott v. Smitherman, 19 N. C. 338; Forbes v. Espey, 21 Ohio St. 474, in which, though the name adopted by the swindler appears to have been really fictitious, the loss is thrown on the drawer for the same reason.\\n\\\"In the present case the plaintiff has merely carried out the drawer's intent. In other cases of fraudulent impersonation the drawer is sometimes said to have a double intent: First, to make the check payable to the person before him, and, secondly, to make it payable to the person whom he believes the stranger to be. But the courts have almost unanimously held that the first is the controlling intent, except where the named payee was already known to the drawer, as in Cundy v. Landsay, 3 A. C. 459, and Rossi v. National Bcmk, 71 Mo. App. 150, or was more particularly identified in some manner; e. g., by some designation, description, or title, as in the case of Mercantile Nat. Bank v. Silverman, 148 App. Div. 1, 132 N. Y. Supp. 1017, none of which factors are present in the case at bar. A man's name is the verbal designation by which he is known, but the man's visible presence is a surer means of identification. In the case at bar, if the plaintiff, -before cashing the check, had sent for and asked the drawer whether or not the person presenting the check was the person 'to whom it was intended to be paid, the answer would have been in the affirmative. Of course the drawer was deceived as to the name of the man it was dealing with, but it dealt with, and intended to deal with, the visible man who stood before it, identified by sight and hearing. Thinking this man's name was N. K. Turner, it drew a check to N. K. Turner's order, intending thereby to designate the person standing before it. Clearly, therefore, the plaintiff has simply paid the money to the person to whom the drawer intended it should be paid. Now either the plaintiff or the defendant must suffer the loss. Both were innocent parties, and the loss justly falls upon the defendant whose mistake in issuing the check facilitated the fraud and primarily made such loss possible. Such was undoubtedly the law prior to the Negotiable Instruments Act. By section 23 of that act (C. S., p. 3738) 'where a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative,' except as against a party who 'is precluded from setting up the forgery or want of authority.' If we assume that the indorsement in the present ease was a forgery or without authority, within the meaning of that section, still in the light of the cases herein referred to the drawer 'is precluded from setting up the forgery or want of authority, and so the signature is not inoperative as to him, and the law remains unchanged.' \\\" (Montgomery Garage Co. v. Manufacturers' Liability Co., 94 N. J. L. 52, 22 A. L. R. 1224, 109 Atl. 296.)\\nAs between Betsun and Uriola, Betsun is therefore the party that must stand the loss.\\nConceding the right of a bank to cancel credit given a depositor when a check is deposited by 'such depositor and entered on the books of the bank, and charge back to the account of the depositor the amount of its loss because the check is a forgery (Bailie v. Augusta Savings Bank, 95 Ga. 277, 51 Am. St. 74, 21 S. E. 717; Blake v. Hamilton Dime Savings Bank Co., 79 Ohio St. 189, 128 Am. St. 684, 16 Ann. Cas. 210, 87 N. E. 73, 20 L. R. A., N. S., 290; National Gold Bank & Trust Co. v. McDonald, 51 Cal. 64, 21 Am. Rep. 697; Ocean Park Bank v. Rogers, 6 Cal. App. 678, 92 Pac. 879; Lyon Cownty State Bank v. Schaffer, 102 Kan. 868, 171 Pac. 1159; Belsheim v. First Nat. Bank of White Salmon, 77 Wash. 552, 137 Pac. 1055; 3 R. C. L. 522; 7 C. J. 633, 636); such right as we have indicated rests on the right of the drawer to demand payment from the indorser, and there was no such right herein.\\nMcCarthy and Wm. E. Lee, JJ., concur.\\nDunn, J., concurs in the conclusion reached.\\nPER CURIAM.\\n\\u2014 The foregoing opinion is hereby approved as the opinion of the court and the judgment of the lower court is reversed and the cause remanded, with instructions to enter judgment in favor of appellant. Costs are awarded to appellant.\"}"
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+"{\"id\": \"2341926\", \"name\": \"JOHN W. MORTON, Respondent, v. MORTON REALTY COMPANY, a Corporation, FOSTER CRANE and F. R. GOODING, Appellants\", \"name_abbreviation\": \"Morton v. Morton Realty Co.\", \"decision_date\": \"1925-12-10\", \"docket_number\": \"\", \"first_page\": \"729\", \"last_page\": \"746\", \"citations\": \"41 Idaho 729\", \"volume\": \"41\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:16:11.831389+00:00\", \"provenance\": \"CAP\", \"judges\": \"William A. Lee, C. J., and Budge, J., concur.\", \"parties\": \"JOHN W. MORTON, Respondent, v. MORTON REALTY COMPANY, a Corporation, FOSTER CRANE and F. R. GOODING, Appellants.\", \"head_matter\": \"(December 10, 1925.)\\nJOHN W. MORTON, Respondent, v. MORTON REALTY COMPANY, a Corporation, FOSTER CRANE and F. R. GOODING, Appellants.\\n[241 Pac. 1014.]\\nBissell & Bird and W. T. Stafford, for Appellants.\\nJ. G-. Watts and James & Ryan, for Respondent.\", \"word_count\": \"4702\", \"char_count\": \"26928\", \"text\": \"GIVENS, J.\\n\\u2014 Respondent, John W. Morton, a stockholder of the Morton Realty Company, an Idaho corporation, commenced this action in February, 1919, against the corporation and Foster Crane and Frank R. Gooding, the latter two with respondent being the directors of the corporation, following the sale of the Buckeye ranch and all chattels on the same, owned by said company, to restrain appellant Foster Crane, also a stockholder, and president, treasurer and general manager, from disbursing the $105,000 or any part thereof, received as the purchase price of such ranch, until appellant made a complete accounting of all receipts and disbursements during his management and operation of the company's property. Appellant Crane had distributed $79,000 of the purchase price according to the several holdings of stock, and retained $26,000 of said purchase price upon a claim that the company was indebted to him in this amount for advances he had made during his management of the property. The complaint further alleges that the total stock of the corporation was 2,000 shares, that the defendant Foster Crane owned a majority of said stock, that the defendant Frank R. Gooding owned 500 shares and that respondent was the owner of 469 shares, and alleges that due to this fact the company had failed and refused to demand an accounting of defendant Foster Crane and because of that reason this respondent instituted this action.\\nRespondent alleged that no accounting had ever been made to the company during Crane's incumbency as treasurer and general manager; that appellant was not authorized to incur the expenditures of $26,000 on behalf of the corporation; that he had agreed his expenditures in carrying on the business of the corporation should not exceed the income and profits derived from the operation of the Buckeye ra'neh; that by reason of these facts the entire purchase price received from the sale of the ranch should be distributed to the stockholders in proportion to their holdings of stock; denied this indebtedness of $26,000 or any other amount from the corporation to appellant Crane, asked for an accounting and restraining order and that the moneys retained by Crane be distributed.\\nAppellant Crane filed his separate answer, admitting the sale of the property, alleging -such sale was made with the consent of respondent; denying that he had failed to make an accounting; and alleged he had made full, complete and itemized statements of all his financial transactions, which were audited and found correct by an auditor employed by the corporation.\\n. Upon the issues thus presented respondent moved for the appointment of a referee \\\"to take an accounting of the defendant corporation,\\\" whereupon the court allowed a reference, naming Frank Croner, Esquire, of Fairfield, Idaho, as such referee for taking* such accounting with full power to require the parties and witnesses to appear before him to give testimony and produce documentary evidence concerning any and all matters involved and the taking of such account, further providing, \\\"and said referee may direct the taking of depositions, hearing testimony of witnesses, and examination of such books, papers and accounts as in his judgment is necessary to determine what amount, if any, is due from the said Foster Crane to the Morton Realty Company, a corporation, and to this plaintiff and report his findings to this court not later than the 29th day of October, 1921.\\\"\\nThe appellant Frank R. Gooding, was joined as a party defendant but did not appear further, no claim was made against him and evidently he sought no relief, hence the only stockholder in the action seeking relief was the respondent Morton.\\nA hearing was had before the referee after which he reported to the court his findings of fact and conclusions, and upon reconsideration, a supplemental report was made; thereafter upon respondent's motion, judgment was entered against the appellant Foster Crane in favor of respondent, for his share of the corporate funds retained by Crane in the sum of $5,305.52, from which judgment and all of the proceedings leading up to the same this appeal is taken.\\nAppellant's first assignment of error is as follows:\\n\\\"That the judgment in this ease is erroneous because the appellant was not afforded a trial by jury as guaranteed by the Constitution of the State of Idaho.\\\"\\nArticle 1, section 7 of the Idaho constitution, guaranteeing the right to trial by jury, does not refer to equitable actions. In Christensen v. Hollingsworth, 6 Ida. 87, 96 Am. St. 256, 53 Pac. 211, this court stated:\\n\\\"It is the settled doctrine in a number of states having constitutional provisions similar to those above cited that those provisions must be read in the light of the law <ysnstin<r at the time of the adoption of the constitution. Said pro visions were not intended or designed to extend the right of trial by jury, simply to secure that right as it existed at the date of the adoption of the constitution. (Citing numerous authorities.) The guaranty that 'the right to trial by jury shall remain inviolate' has no reference to equitable cases.\\\" (Citing authorities.) (Brady v. Yost, 6 Ida. 273, 55 Pac. 542; Shields v. Johnson, 10 Ida. 476, 79 Pac. 391; Clark v. Paddock, 24 Ida. 142, 132 Pac. 795, 46 L. R. A., N. S., 475; Rees v. Gorham, 30 Ida. 207, 164 Pac. 88; People v. Burnham, 35 Ida. 522, 207 Pac. 589.)\\nCrane was the general manager and president of the Morton Realty Company during a period of approximately three years, over which period of time this accounting was prayed for, and to determine whether or not Crane had a legal set-off required an examination of the expenditures incurred and the revenue derived from the operation of the ranch during this time. The claim itself is not for any specific sum and must be determined by an accounting between the parties.\\nWhere the relation between the parties to an action is a fiduciary one, an action for an accounting is an equitable action.\\n\\\"When majority stockholders dispose of the property of the corporation which they control in such a manner as to deprive the minority of their just rights in it, there is a breach of trust, and a court of equity is the tribunal and the only tribunal to provide an effective remedy.\\\" (Backus v. Brooks, 195 Fed. 452, 115 C. C. A. 354; Hirsch v. Jones, 56 Fed. 137.)\\n\\\"If the corporation being in control of the defaulting officers or for other insufficient reasons remains inactive, nevertheless equity will afford relief on a bill brought by one or more of the stockholders for its benefit and to which it must be made a party. Smith v. Hurd, 12 Met. (Mass.) 371, 385, 46 Am. Dec. 690; Von Arnim v. American Tube Works, 188 Mass. 515, 74 N. E. 680.\\\" (Corey v. Independent Ice Co., 226 Mass. 391, 115 N. E. 488.)\\n\\\"Since the officers of a corporation are trustees, a court of general equitable jurisdiction would at the instance of any stockholder prevent a wilful misappropriation of its funds and waste of its assets, and compel the officers to account for their misconduct. Davis v. Gemmel, 70 Md. 356, 376, 17 Atl. 259; Byrne v. Schuyler El. Mfg. Co., 65 Conn. 336, 351, 352, 31 Atl. 833, 28 L. R. A. 304; Pratt v. Pratt Read Co., 33 Conn. 446, 457; Scofield v. Eighth School Dist., 27 Conn. 499, 504; Sears v. Hotchkiss, 25 Conn. 170, 176, 65 Am. Dec. 557; Dodge v. Woolsey, 18 How. (U. S.) 331, 15 L. ed. 401; Hawes v. Oakland, 104 U. S. 450, 26 L. ed. 827.\\\" (Sheelvy v. Barry, 87 Conn. 656, 89 Atl. 259; Davis v. Hofer, 38 Or. 150, 63 Pac. 56; Skeen v. Warren Irr. Co., 42 Utah, 602, 132 Pac. 1162; 1 Pomeroy's Equity Jurisprudence, 4th ed., p.. 254; 4 Pomeroy's Equity Jurisprudence, 3d ed., sec. 1421.)\\nFox v. Hall, 164 Cal. 1287, 128 Pac. 749, follows this rule and says: \\\"The contract between the plaintiffs and L. J. Hall, followed by his possession of their property and the management thereof, entitled them to an accounting from him of such management, and of the receipts and disbursements, to the end that they might then demand the payment of any net income which should have been applied , to the reduction of the mortgage debt. The facts alleged and proved showed the existence of fiduciary relation sufficient to invoke the jurisdiction of a court of equity to compel an accounting, which as the evidence shows, had been demanded of the defendant L. J. Hall. (1 Cyc. 427; Wooster v. Nevills, 73 Cal. 58, 14 Pac. 390; Green v. Brooks, 81 Cal. 328, 22 Pac. 849; San Pedro Lumber Co. v. Reynolds, 111 Cal. 588, 44 Pac. 309; Coward v. Clanton, 122 Cal. 451, 55 Pac. 147.) Upon such accounting, the burden would probably be upon the said defendant to establish any expenditures or credits upon which he might rely as offsets to the gross income shown to have been received by him.\\\" (1 C. J. 621, sec. 68; Frankfort Marine A. & M. Co. v. California A. M. & W. Co., 28 Cal. App. 74, 151 Pac. 176; Anderson v. Watson, 141 Md. 217, 118 Atl. 569.)\\nThe relation between a corporation and its president or general manager is a fiduciary relationship. (Port v. Russell, 36 Ind. 60, 10 Am. Rep. 5; Pratt v. Luther, 45 Ind. 250; Dury v. M. & S. R. R. Co., 7 Wall. (U. S.) 299, 19 L. ed. 40; Wayne Pike Co. v. Hammons, 129 Ind. 368, 27 N. E. 487; Pomeroy's Equity Jurisprudence, secs. 147, 881, 964.)\\n\\\"Equity has jurisdiction of a suit by a corporation against its managing agent to require an accounting in respect to his management of its property even though the ultimate object sought is to obtain a money judgment.\\\" (Providence M. & M. Co. v. Nicholson, 178 Fed. 29.)\\nIn Fowle v. Lareson, 5 Pet. (U. S.) 495, 8 L. ed. 204, Chief Justice Marshall said:\\n\\\"In all cases in which the action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a court of equity is undoubted. It is the proper tribunal.\\\" (Jones v. Gardner, 57 Cal. 641, 19 Pac. 641; First Sav. Bank & Trust Co. v. Greenledf, 294 Fed. 467. See, also, National Bank of Commerce v. Equitable Trust Co., 227 Fed. 526, 142 C. C. A. 158; George v. Wallace, 135 Fed. 286, 68 C. C. A. 40; Kilbourn v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594, 32 L. ed. 1005; Bailey v. Kirby Lumber Co. (Tex. Civ. App.), 195 S. W. 221.)\\nPrimarily the corporation is the party to proceed in such eases to redress wrongs to the corporation, but a stockholder may institute such an action without demand on the corporation where such demand would be futile or useless, on the theory that the offending parties would be unlikely to start proceedings against themselves. (Ryan v. Old Veteran Min. Co., 37 Ida. 625, 218 Pac. 381; Just v. Idaho Canal etc. Co., 16 Ida. 639, 133 Am. St. 140, 102 Pac. 381; Forbes v. Wilson, 243 Fed. 264; Robinson v. De Luxe Motor Car. Co., 170 Mich. 163, 135 N. W. 897; Matthews v. Headly Chocolate Co., 130 Md. 523, 100 Atl. 645; Tasler v. Peerless Tire Co., 144 Minn. 150, 174 N. W. 731; Heath v. Erie Ry. Co., 11 Fed. Cas. 976; Glenn v. Kittaning Brewing Co., 259 Pa. 510, Ann. Cas. 1918D, 340, 103 Atl. 340, L. R. A. 1918D, 738; Columbia Nat. Sand D. Co. v. Washed Bar Sand D. Co., 136 Fed. 710; Hughes Mfg. & Lumber Co. v. Culver, 127 Ark. 72, 189 S. W. 850; Magle v. Fomby, 132 Ark. 289, 201 S. W. 278; Reed v. Hollingsworth, 157 Iowa, 94, 135 N. W. 37; Grout v. First Nat. Bank of Grand Junction, 48 Colo. 557, 21 Ann. Cas. 418, 111 Pac. 556; Wayne Pike Co. v. Hammons, 129 Ind. 368, 27 N. E. 487; Smith v. Rader, 31 Ida. 423, 173 Pac. 970; Alabama Fidelity Mtg. & Bond Co. v. Dubberly, 198 Ala. 545, 73 So. 911; Gosewisch v. Doran, 161 Cal. 511, Ann. Cas. 1913D, 442, 119 Pac. 656; Davis v. Gemmel, 70 Md. 356, 17 Atl. 259.)\\nAppellant complains in his second assignment of error because the referee made findings upon the issues of fact, saying that he was not authorized so to do under the order of reference. While there may be some question as to whether the referee was authorized to make such findings, it appears that appellant's objection came too late, since the objection was made for the first time in this court and after the findings and conclusions had been confirmed and judgment entered thereon in the trial court.\\n\\\"Where a case was tried before a referee on the theory that he was authorized to report findings of fact, and he did so, and no objection to his so doing wa-s filed in the trial court, any objection to the findings of the referee, on the ground that he was not so authorized by the order-, was waived.\\\" (Moghanson v. Zubler, 36 Colo. 235, 84 Pac. 981; First Nat. Bank v. McClellan, 9 N. M. 636, 58 Pac. 347; Field v. Romero, 7 N. M. 630, 41 Pac. 517; De Cordova v. Korte, 7 N. M. 678, 41 Pac. 526; Express Co. v. Walker, 9 N. M. 456, 54 Pac. 875; Clark, Wise Co. v. Hauschildt, 28 Cal. App. 47, 151 Pac. 149.)\\nThe only objection made in the lower court to the confirmation of the referee's findings and conclusions was on the ground that appellant was entitled to a jury trial; therefore, the question of whether or not the referee exceeded his authority or went beyond the order of reference in making findings and conclusions was under the above authorities deemed waived. (Walker v. Campbell, 3 Ida. 13, 26 Pac. 23.)\\nAppellant's third assignment, of error was that the judgment, report and supplemental report and findings of the referee are contrary to the law and evidence and not supported by the evidence. Bespondent urges that .to authorize a review of a judgment based upon the report of a referee and to attack the findings, a motion for new trial should have been made.\\nC. S., see. 6876, provides as follows: \\\"The findings of the referee upon the whole issue must stand as the finding of the court, and upon filing the finding with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court.\\\"\\nAnd C. S., see. 6877, provides: \\\"The finding of the referee upon the whole issue may be excepted to and reviewed in like manner as if made by the court. When the reference is to report the facts, the finding reported has the effect of a special verdict.\\\"\\nThe findings of a referee having the effect of a special verdict are to be governed by the statute regarding special verdicts. C. S., sec. 6861, together with C. S., sec. 6864, provide that the court must enter judgment upon the special verdict, and C. S., sec. 7170, states that on appeal from the judgment the court may review the verdict or decision and any intermediate order or decision, if excepted to, which involves the merits or necessarily affects the judgment, except a decision or order from which an appeal might have been taken, and C. S., see. 6879, among other things, provides that any interlocutory order, ruling or decision appearing in the record or files or minutes of the court, and rulings, orders or. decisions upon objections to the evidence or any contested proceedings upon a trial are deemed excepted to and if they appear upon the record need not be incorporated in a special bill of particulars. The trial judge who appointed the referee and who confirmed the referee's report settled the transcript of the evidence and allowed the same as a bill of exceptions upon this appeal, and it was further stipulated between the parties that the transcript of the testimony as taken before the referee should be a part of the record on the appeal in this case. It is therefore apparent that the parties intended to treat the transcript of the evidence as though the evidence had been taken before the court and a transcript thereof prepared in compliance with C. S., see. 6886, and consequently is to be governed by such statute. It therefore appears that the sufficiency of the evidence and all adverse rulings made by the referee may be reviewed the same as if such proceedings had taken place before the trial court and to seeure a review of such question on appeal in this court it is unnecessary to have moved for a new trial, and that such motion is only necessary in case the party desired the trial court to review the referee's actions and the evidence and its sufficiency.\\n\\\"Hence, if the evidence is insufficient to support the referee's findings they may be set aside and a new trial granted, upon proper motion, seasonably made, for a new trial in the District Court, or, by the Supreme Court, on appeal.....In short it is too clear for argument that the statutory modes of reviewing verdicts of juries and the findings of a court are applicable to the_ findings of fact of a referee upon the whole issue.....\\\" (United States v. Ramsey, 158 Fed. 488, 492.)\\nAmong others, Northrup Nat. Bank v. Webster Refining Co., 89 Kan. 738, 132 Pac. 832; Tribal Development Co. v. White Bros. (Okl.), 111 Pac. 195, cited by respondent, and similar cases holding that before the sufficiency of the evidence may be reviewed in the appellate court a motion for a new trial must have been presented to the trial court, are not in point, because in this state the sufficiency of the evidence may be reviewed on appeal from the judgment and a motion for new trial is not a condition precedent to such right of review. (Alder v. Edenborn, 198 Fed. 928.)\\nAppellant complains that the referee's report is contrary to law and the evidence because certain evidence was upon objection excluded.\\nThe first objection referred to was made by counsel for appellant, consequently so far as appellant is concerned no error can be predicated thereon.\\nC. S., sec. 8035, by virtue of which this examination was being conducted, provides:\\n\\\"A party to the record of any civil action or proceedings, . may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses.....\\\"\\nThis section subjects such cross-examination to the rules applicable to the examination of other witnesses.\\nC. S., sec. 8034, defines general cross-examinations:\\n\\\"The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith, and in so doing may put leading questions; but if he examine him as to other matters such examination is to be subject to the same rules as a direct examination.\\\"\\nThe limitation therein contained cannot apply to cross-examinations under the statute, because there having been no previous examination in chief, there would be no facts previously stated or matters connected therewith to cross-examine about. The limitation on cross-examination under the statute, since the witness is a party, would therefore be the material issues of the case.\\n\\\" 'The main purpose of this statute is to permit an adverse party to be called as a witness to prove, or to be interrogated concerning, facts material to the ease of the party calling him, and that such witness may be called to prove a single material fact, or any number of material facts, even the whole case. The facts as to which the party calling such witness may desire to examine him are wholly within his discretion.....A witness who is a party to the action is therefore called the same as any other witness to prove certain facts, and not for cross-examination.'\\n\\\"But because he is deemed an adverse witness, the statute provides that the mode in which he is examined may be that ordinarily employed in cross-examination.....If the evidence sought to be elicited from the witness Hauff was material, it was clearly erroneous to sustain the objection on the ground that it was not proper cross-examination. Is the evidence sought to be elicited by this question competent or material?\\\" (Hauff & Storma v. South Dakota Cent. Ry. Co., 34 S. D. 183, 147 N. W. 986; Symes v. Fletcher, 95 Vt. 431, 115 Atl. 502; First State Bank v. Anderson, 46 S. D. 104, 191 N. W. 339; Waller v. Sloan, 225 Mich. 600, 196 N. W. 347; Kuitula v. Abbott, 229 Mich. 84, 201 N. W. 186.)\\nThe witness was the plaintiff in the action and had demanded an accounting, and had alleged in his complaint that the amount claimed by Foster Crane as due him from the company was excessive and therefore that there was a larger amount due him, Morton, from Foster Crane than was admitted to be due by Foster Crane. The defendant Foster Crane had denied such situation and had submitted a report and had testified in connection therewith. The main issue then was whether or not the accounting and settlement as offered by Crane was correct.\\nIt does not appear that Morton was testifying as an expert in connection with the statement so as to bring him within the inhibition of Osborn v. Carey, 24 Ida. 158, 132 Pac. 967. The question of the correctness of charging these items against the company was in issue and the questions were material to such issues, and in the absence of further or more explicit objection, or a showing that the information sought to be elicited came within the restriction of Boeck v. Boeck, 29 Ida. 639, 161 Pac. 576, the answers should have been allowed, and while not sufficiently prejudicial to authorize a reversal, because the witness had stated that he did not know anything about any of these cheeks, the refusal of the court to permit an answer to be given to a further question asked is of a more serious nature.\\n\\\"Q. You don't know of your own knowledge whether Mr. Crane's accounting that he has filed is correct or not do you ?\\n\\\"A. Well, I don't believe it is correct.\\n\\\"Q. That isn't what I asked you. I asked you if you knew, of your own personal knowledge whether the accounting was correct or incorrect?\\n\\\"A, I know the accounting isn't correct as far as we have investigated.\\n\\\"Q. Now, will you designate to the Court that portion of the total that is incorrect?\\n\\\"Mr. James: Same objection.\\n\\\"The Referee: Same ruling.\\\"\\nThe objection being \\\"same objection,\\\" evidently refers back to the objection by Mr. Watts that it was not proper cross-examination, irrelevant, incompetent and immaterial, and the ruling being, \\\"same ruling\\\" evidently refers back to the ruling of the referee sustaining this objection.\\nIf this question had been answered and by the answer or by subsequent answers the appellant could have shown that the witness' statement, \\\"I know the accounting isn't correct as far as we have investigated,\\\" was erroneous in any particular, such answers would have had at least some bearing upon the conclusion which the referee was to ultimately reach. If the witness could not have indicated the portion that was incorrect it would have weakened his statement that so far as he had investigated it was incorrect. If he had pointed out the particulars in which it was incorrect, then the opposition would have had an opportunity to adduce additional testimony on these items and perhaps have proved them correct, at least have tried to meet the witness' statement that the account was incorrect in the particulars designated by him. Thus no matter what the answer of the witness might have been it would have had a direct bearing upon the material issues of the case and the denial of the answers was erroneous. Appellant should have been permitted to investigate the source of Morton's information and the details of his investigation and the items which led him to the conclusion that the account was incorrect (Park v. Johnson, 20 Ida. 548, 119 Pac. 52), and since the referee in his finding did not follow the statement as rendered by appellant, it is not unreasonable to suppose Morton's conclusion influenced the decision and the objection was thus an undue restriction of the cross-examination on a material issue and probably affected the result and therefore was prejudicial. (Henry v. State (Ind.), 146 N. E. 822; Alabama Machinery & Supply Co. v. Roquemore, 205 Ala. 244, 87 So. 435.)\\nThe other assignments of error deal with the sufficiency of the evidence and the correctness of the referee's conclusions, and since upon a re-examination of the issues the same evidence may not be again introduced or additional evidence may be introduced, we will not comment further upon such assignments except to say that where an accounting is applied for from one occupying a fiduciary relationship, the burden is on him to furnish a full, complete and accurate accounting and to establish any expenditures or credits upon which he relies as offsets to the amounts he admits he has received. (Fox v. Hall, supra; McManus v. Sawyer, 231 Fed. 231; Hobbs v. Monarch Refrigerating Co., 277 Ill. 326, 115 N. E. 534), and the record was in this respect far from satisfactory, and -this court can well appreciate the difficulties the referee was laboring under in endeavoring to find a true and correct account between the parties.\\nThe judgment of the lower court is therefore reversed, and it is so ordered. Costs awarded to appellant.\\nWilliam A. Lee, C. J., and Budge, J., concur.\"}"
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+"{\"id\": \"2345308\", \"name\": \"THE FEDERAL LAND BANK OF SPOKANE, a Corporation, Appellant, v. A. F. McCLOUD and LULU S. McCLOUD, Husband and Wife, and JAS. H. SHIELDS, Jr., and JAMES GANNON, Partners Doing Business Under the Trade Name and Style of BUHL SEED & GRAIN CO., Respondents\", \"name_abbreviation\": \"Federal Land Bank v. McCloud\", \"decision_date\": \"1933-02-14\", \"docket_number\": \"No. 5787\", \"first_page\": \"694\", \"last_page\": \"712\", \"citations\": \"52 Idaho 694\", \"volume\": \"52\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:12:58.997370+00:00\", \"provenance\": \"CAP\", \"judges\": \"Givens and Holden, JJ., and Koelsch, D. J., concur.\", \"parties\": \"THE FEDERAL LAND BANK OF SPOKANE, a Corporation, Appellant, v. A. F. McCLOUD and LULU S. McCLOUD, Husband and Wife, and JAS. H. SHIELDS, Jr., and JAMES GANNON, Partners Doing Business Under the Trade Name and Style of BUHL SEED & GRAIN CO., Respondents.\", \"head_matter\": \"(No. 5787.\\nFebruary 14, 1933.)\\nTHE FEDERAL LAND BANK OF SPOKANE, a Corporation, Appellant, v. A. F. McCLOUD and LULU S. McCLOUD, Husband and Wife, and JAS. H. SHIELDS, Jr., and JAMES GANNON, Partners Doing Business Under the Trade Name and Style of BUHL SEED & GRAIN CO., Respondents.\\n[20 Pac. (2d) 201.]\\nBissell & Bird and Dana E. Brinck, for Appellant.\\nFrank L. Stephan, for Respondents Shields and Gannon, and E. D. Reynolds, for Respondents A. F. and Lulu S. McCloud.\", \"word_count\": \"6062\", \"char_count\": \"33974\", \"text\": \"BUDGE, C. J. \\u2014\\nThis action was brought by appellant to recover from respondents certain specific crops or their value in case delivery could not be had. From the record it appears that on October 15, 1926, appellant and respondents, A. F. McCloud and Lulu S. McCloud, entered into a written contract whereby the former agreed to sell to the latter certain real- property in Gooding county, at a price fixed therein. Title to the land remained in appellant at all times herein, although provision was made in the contract whereby title might be transferred to the purchasers at the end of four years from date of the contract. The following provisions, among others, were contained in the contract:\\n\\\"The parties of the second part (McClouds) . further covenant and agree to turn over to the party of the first part (appellant) each year on account of said purchase price one-half (%) of all grain and other crops raised on all of the above described land, except for the year 1927, and for that year one-third (%) of said crops. The proceeds from the sale of the grain and other crops so turned over to the party of the first part shall be applied, first, to the payment of interest; and second, to the payment of the-principal . The parties of the second part further covenant and agree to deliver the grain and other crops hereinbefore covenanted to be turned over to the paxty of the first part, in the elevator or other place at Wendell, Idaho, or at some other convenient point, as the party of the first part shall direct, within a reasonable time after threshing and harvesting the same, and free from all expense or charge to the party of the first part, said grain and other crops to be delivered in the name of the party of the first part. If any of the alfalfa or clover grown on said land shall be cut for hay, the same shall be stacked on said land and divided by such agent of the party of the first part.\\n\\\"It is further covenanted and agreed that, until the delivery of the grain and other crops to the party of the first part as aforesaid, during the continuance of this contract, the legal title to, and ownership and possession of all of the grain raised during each and every year shall be and remain in the party of the first part.\\\"\\nThe McClouds went into possession and farmed the premises thereafter. Certain hay, clover seed and alfalfa seed raised upon the premises in 1930 were not divided. McCloud sold the hay and delivered the clover and alfalfa seed to respondents Shields and Gannon, at the latter's warehouse, and took a warehouse receipt therefor in his own name. Appellant thereupon commenced this action, the complaint alleging facts substantially as above set forth, and praying judgment for the division and delivery to it of its share of the crops in question, and in the event that the same could not be divided or delivered, that it have judgment against McCloud and wife for the value of its share, and further, that in the event Shields and Gannon have appropriated any portion of appellant's share of such crops, it be given judgment against them for the value of the crops so appropriated.\\nShields and Gannon answered, denying generally the allegations of the complaint, and alleging affirmatively the delivery of the seed to them and the issuance of warehouse receipt therefor; the pledge of the warehouse receipt by McCloud as security for the repayment of $1,471.70 advanced by them to McCloud; their subsequent purchase of the seed from McCloud; and that such transactions were made in good faith and without knowledge or notice, actual or constructive, that appellant owned or claimed any interest in said seed. McCloud and wife answered denying generally the allegations of the complaint.\\nUpon the issues so framed, the cause was tried by the court, a jury being waived. At the close of plaintiff's evidence and at the close of all the evidence motions for non-suit made by Shields and Gannon were denied. However, the trial court in its conclusions concluded that their motion for nonsuit should be granted. Findings of fact and conclusions of law were made and filed and judgment was entered dismissing the action, from which judgment this appeal is taken.\\nAppellant specifies five assignments of error. The controlling question raised thereby is whether or not the crops in question were owned by appellant and the McClouds as tenants in common under the terms of the contract above referred to. In support of its contention that a tenancy in common in the crop was created by the contract, appellant relies principally upon the case of Devereaux Mortgage Co. v. Walker, 46 Ida. 431, 268 Pac. 37, 38, which involved the interpretation and construction of language similar to that of the contract here in question. In that case the language was contained in a lease, creating the relationship of landlord and tenant, while the relationship of vendor and purchaser was created by the contract of sale here. The trial court held that the difference in the relationships distinguished the two cases and that the rule applied in the former was not applicable to the latter. We are unable to see any logical distinction calling for the application of a different rule, especially in view of the remarks of the court in Lynch v. Sprague Roller Mills, 51 Wash. 535, 99 Pac. 578, 580, namely:\\n\\\" . the construction which courts have uniformly placed on contracts between landlord and tenant is a safe rule to follow in construing similar contracts between vendor and purchaser.\\\"\\nand in view of the rule announced in 38 Cyc. 6, where it is said:\\n\\\"Thus a tenancy in common springs up whenever an estate in real or personal property is owned concurrently by two or more persons under a conveyance or under circumstances which do not either expressly or by necessary implication call for some other form of cotenancy. It is held that a tenancy in common may be created by will, by descent, and the relation may be brought into existence by purchase, sale or conveyance. It is not the form of the instrument which determines the existence of the relation, but the concurrent rights in the same property at the same time, and the tenancy can arise by pledge or mortgage, by legislative grant, by prescription, by judgment or decree, by levy or execution, or by confusion or intermingling of goods, by consent, or with the owner's fault.\\\"\\nThe language used in the Devereaux Mortgage Co. case, supra, is broad enough to include and cover any contract by which a tenancy in common is created.\\nIn the Devereaux Mortgage Co. case, supra, the lessees covenanted: \\\"to pay as rental for said premises one-third of all crops planted and grown upon said premises . to be delivered at the warehouse in Rexburg free of cost to The Devereaux Mortgage Company.\\\" and the lease further provided that upon default of the lessees, the lessor might terminate the agreement and in that event the lease should \\\"become a lien on any crops that may be at that time in the ground or on the premises for any unpaid rental or any share due or to become due as rental.\\\"\\n. After an exhaustive review of the -authorities construing similar provisions and holding that the same created a tenancy in common in such crops, the court said:\\n\\\"In the contract in question the Walkers (lessees) covenanted to deliver to the respondent (lessor) at an agreed place one-third of the products of the land, not to pay a sum equal to the value of that share of the crops. They were not given the right to elect whether they would deliver crops or pay value or given authority to sell and then make division. Their contract was to deliver a share of the crops and nothing else. It simply was that the respondent should furnish the land and the Walkers should do and furnish all other things necessary to the production of a crop and that the compensation to the respondent for the use of its land and the compensation to the Walkers for their labor would be in crops in the proportion agreed upon. Contracts of this character are common and there would seem to be much in them to commend then to land owners and producers of crops. Each has the assurance that the abundance of the crops and the prosperity of the season will be controlling elements in determining the profits he will realize from the season's operations. To hold that each party has at all times an ownership in the growing crops proportionate to the share he will ultimately receive, though the right to the possession be in the producer until harvested, will best effectuate the intention of the parties, and to ascertain intention rather than classify relations created should, it would seem, be the principal concern of the court.\\n\\\"If it be held that the land owner has no interest in the crops and that his only remedy is to recover a. personal judgment against the occupier for a sum equal to the value of a share of the crops, the essential agreement of the parties is defeated, a dishonest tenant is enabled to dispose of the entire crop, his creditors can seize and sell the entire crop for the payment of their debts. The land owner is obliged to stand by, without right to process, though he may have full knowledge that the property which the other had agreed to deliver was being dissipated by him or converted by others. To construe such a contract as investing the grower with complete title and denying the land owner any title not only ignores the very purpose and intention of the parties but substitutes a different contract in the place of the contract the parties have made.\\n\\\"The majority rule protects each party, assures him of his right to receive the identical property the other agreed he should have and denies the right of the other to dispose of, and his creditors to reach, more than the share to which he is justly entitled.\\\"\\nIn the contract before us the purchasers agreed \\\"to turn over\\\" to appellant \\\"one half % of all the grain and other crops raised on all of the above described land\\\" in 1930; that \\\"the proceeds from the sale of the grain and other crops so turned over\\\" to appellant should be applied in payment of the purchase price and interest; that they would \\\"deliver the grain and other crops hereinbefore covenanted to he turned over\\\" to appellant at an agreed place, \\\"said grain and other crops to he delivered\\\" in the name of appellant; that alfalfa and clover cut for hay should he stacked on the land and divided by the agent of appellant; that appellant should have and retain title to all the grain each year \\\"until the delivery of the grain and other crops\\\" to it; that no portion of said crops shall be removed from said land until division thereof; and that the agreement shall be void if \\\"default be made in the delivery of said several payments of grain a/nd other crops to be grown on said land.\\\" From these provisions we think it is clear beyond controversy that the parties to the contract provided and intended that it was a certain definite part of the crops themselves that was to be delivered or turned over to appellant, in specie, and not the proceeds of the sale of such crops, and, in the language of the Devereaux Mortgage Co. case, supra, the purchasers \\\"were not given the right to elect whether they would deliver crops or pay value or given authority to sell and then make division. Their contract was to deliver a share of the crops and nothing else.\\\"\\nRespondents, in support of their contention that the proceeds of the crops and not the crops themselves were to be divided, place reliance upon Yakoobian v. Johnson, 102 Cal. App. 10, 282 Pac. 522, where it was held that in the absence of stipulation to the contrary, a purchaser let into possession is entitled to crops raised by him; and also on First Nat. Bank v. Montana Emporium Co., 59 Mont. 584, 197 Pac. 994, holding to similar effect. These cases are clearly distinguishable for the reason that in the contract before us there are express stipulations to the contrary. Lynch v. Sprague Roller Mills, supra, Moen v. Lillestal, 5 N. D. 327, 65 N. W. 694, and First Nat. Bank v. Andreas, 92 Cal. App. 62, 267 Pac. 937, relied on by respondents, are also distinguishable as in those cases the contracts provided for a division of the proceeds arising from the sale of the crops and not, as here, for a division of the crops themselves. Respondents further contend that inasmuch as the contract contained the following provision:\\n\\\"It is further covenanted and agreed that until the delivery of the grain and other crops to the party of the first part as aforesaid, during the continuance of this contract, the legal title to, and ownership and possession of all of the grain raised during each and every year shall be and remain in the party of the first part.\\\"\\na distinction was made between the grain and other crops, and that the title to the grain only having been expressly reserved, no title was reserved as to the other crops. However, it is to be noted that the title to all of the grain raised is reserved until the delivery of the grain and other crops as provided in the contract. This reservation of title to all of the grain was evidently intended to be in the nature of security to compel a proper division of the crops and continued only until the crops were divided, and in no way modified or limited the provisions for division of the crops, and is not subject to the construction sought to be placed on it by respondents.\\nThe following conclusions are justified from the foregoing: Appellant was a tenant in common with the McClouds of the crops raised on the premises in 1930- the relationship created was therefore not in the nature of an equitable chattel mortgage as contended by respondents and as found by the trial court; appellant, under the circumstances of this case, was entitled to maintain an action for the recovery of its share of the specific crops or the value thereof against the McClouds or any person to whom they had attempted to sell the same (38 Cyc. 89; note, 26 A. L. R. 1021; Adams v. Thornton, 5 Cal. App. 455, 90 Pac. 713), and was not limited to an action for damages.\\nAppellant being the owner of one-half of the crop in question, the McClouds attempted to sell property in which they had no title. The principle is well settled that a seller of personal property can convey no greater title than he had, and it makes no difference that the purchaser has no notice and is ignorant of the existence of other parties in interest. (7 R. C. L. 886; Klundt v. Bachtold, 110 Wash. 594, 188 Pac. 924; Tuttle v. Campbell, 74 Mich. 652, 42 N. W. 384, 16 Am. St. 652; Trustees v. Williams, 102 Wis. 223, 75 N. W. 954, 69 Am. St. 912; Waterford Irr. Dist. v. Turlock Irr. Dist., 50 Cal. App. 213, 194 Pac. 757.) One who buys property must, at his peril, ascertain the ownership; and if he buys of one having no authority to sell, his taking possession in denial of the owner's right is a conversion. (2 Cooley on Torts, p. 506; 7 R. C. L. 879, 887. See, also, I. C. A., sec. 62-207, to the same effect.) While it therefore becomes unnecessary to determine whether Shields and Gannon, in purchasing the seed in question, had either actual or constructive notice of the interest of appellant therein, the record furnishes sufficient evidence to warrant the conclusion that they did have notice of appel lant's ownership of the property and furthermore that they had sufficient information to put them on notice.\\nWe are in accord with appellant's contention that the trial court erred in not awarding judgment against McCloud for the value of appellant's share of the crops. Regardless of the liability of Shields and Gannon, it is logical that if the share of the crops themselves cannot be recovered, the McClouds, having converted it to their own use, are answerable to appellant for its value, and this is true not only as to the seed but also as to the other crops converted. In view of what has been said, wre are likewise of the opinion that the trial court erred in granting the motion of Shields and Gannon for nonsuit, and in dismissing the action.\\nThe judgment is reversed and the cause remanded, with instructions to enter judgment against Shields and Gannon and McCloud requiring them to deliver one-half of the seed raised upon the premises in 1930, or in the event delivery cannot be had, that a joint and several judgment be entered against them for the market value thereof; and to enter judgment against McCloud individually for one-half of the market value of the hay grown on the premises in 1930. Costs awarded to appellant.\\nGivens and Holden, JJ., and Koelsch, D. J., concur.\\nPetition for rehearing denied.\"}"
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+"{\"id\": \"2348309\", \"name\": \"BENEWAH COUNTY CATTLEMEN'S ASSOCIATION, INC., an Idaho corporation, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF BENEWAH COUNTY, Jack A. Buell, County Commissioner; Norman L. \\\"Bud\\\" McCall, County Commissioner; George Mills, Jr., County Commissioner; Robert M. Baltz, Sheriff of Benewah County, and Peter J. Hutchinson, Prosecutor for Benewah County, Defendants-Respondents\", \"name_abbreviation\": \"Benewah County Cattlemen's Ass'n v. Board of County Commissioners\", \"decision_date\": \"1983-05-26\", \"docket_number\": \"No. 13516\", \"first_page\": \"209\", \"last_page\": \"220\", \"citations\": \"105 Idaho 209\", \"volume\": \"105\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:14:18.441663+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONALDSON, C.J., BAKES, J., and McFADDEN, J. (Ret.), concur.\", \"parties\": \"BENEWAH COUNTY CATTLEMEN\\u2019S ASSOCIATION, INC., an Idaho corporation, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF BENEWAH COUNTY, Jack A. Buell, County Commissioner; Norman L. \\u201cBud\\u201d McCall, County Commissioner; George Mills, Jr., County Commissioner; Robert M. Baltz, Sheriff of Benewah County, and Peter J. Hutchinson, Prosecutor for Benewah County, Defendants-Respondents.\", \"head_matter\": \"668 P.2d 85\\nBENEWAH COUNTY CATTLEMEN\\u2019S ASSOCIATION, INC., an Idaho corporation, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF BENEWAH COUNTY, Jack A. Buell, County Commissioner; Norman L. \\u201cBud\\u201d McCall, County Commissioner; George Mills, Jr., County Commissioner; Robert M. Baltz, Sheriff of Benewah County, and Peter J. Hutchinson, Prosecutor for Benewah County, Defendants-Respondents.\\nNo. 13516.\\nSupreme Court of Idaho.\\nMay 26, 1983.\\nRehearing Denied Sept. 8, 1983.\\nJerrold E. Park, St. Maries, William H. O\\u2019Riordan, Boise, for plaintiff-appellant.\\nThomas C. Morris, St. Maries, for defendants-respondents.\", \"word_count\": \"6355\", \"char_count\": \"38634\", \"text\": \"SHEPARD, Justice.\\nThis is an appeal from a judgment in an action brought in the nature of a declaratory judgment seeking to have declared invalid a county ordinance which prohibited livestock from running at large, from grazing on property other than that of the owner, and requiring the erection and maintenance of fences by owners of livestock. The magistrate court found the ordinance to be valid, which holding was affirmed on appeal to the district court. Likewise, we affirm.\\nThe facts of this action are largely agreed upon and the only issues presented are questions of law. For at least 60 years, cattle and other livestock have freely roamed and grazed on unenclosed lands within Benewah County. At the initiation of this action there were some 57 cattle ranchers in Benewah County; many never fenced their lands and have allowed their cattle and livestock to freely graze and roam, although some ranchers have fenced their lands and allowed their livestock to graze only within their own fenced lands. Apparently, prior to the enactment of the ordinance in question, no ordinance prohibited livestock from running at large.\\nIn 1976 and 1977, drought conditions and a large addition to the number of cattle within Benewah County combined to aggravate already existing problems of stock running at large. The lower court found:\\n\\\"that livestock running at large in Benewah County create serious and persistent problems to the county and its inhabitants, including: (1) pollution of water sources, (2) damage or destruction of crops, hay, fences and gardens, (3) injury to persons and vehicles on roads and highways, (4) damage to cut banks, earthfills on timber harvest roads which have been closed and seeded to reduce soil erosion and damage, (5) damage to cleared planting lines where tree seed has been planted . .\\\"\\nIn August 1977, the Board of County Commissioners of Benewah County enacted the ordinance in question here (No. 13) entitled \\\"Benewah County Livestock Control Ordinance,\\\" which applies throughout Benewah County. The ordinance essentially prohibits the running at large of livestock, requires fencing around property upon which livestock is grazed, and provides criminal sanctions for violations. The ordinance expressly leaves unaffected civil liability arising from trespassing livestock. On this appeal, no question is raised as to the procedural validity of the adoption of the ordinance.\\nPlaintiff-appellant Benewah County Cattlemen's Association instituted the action, seeking a declaratory judgment that the ordinance was invalid and seeking an injunction against its enforcement. The cause was assigned to Magistrate Richard McFadden; in a well-reasoned opinion he upheld the validity of the ordinance and entered judgment accordingly. That judgment was affirmed on appeal to the district court.\\nOn appeal to this Court, appellant cattlemen assert that the county has no authority to prohibit \\\"open range grazing\\\" through out the county, except and unless herd districts are created pursuant to I.C. \\u00a7 25-2401 through 25 \\u2014 2409; that the area of control of free roaming livestock has been preempted by legislative enactments, hence the ordinance conflicts with the general law of the state in violation of Idaho Constitution, art. 12, \\u00a7 2; that the ordinance is invalid as purporting to extend its effect beyond the geographic limits of the county, and finally, that the ordinance is unfair, arbitrary and unreasonable in its application to the cattlemen.\\nThe Idaho Constitution, art. 12, \\u00a7 2 provides, in pertinent part: \\\"Any county . . may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.\\\" The legislature in I.C. \\u00a7 31-714 has elaborated on the constitutional grant of police power to counties, stating:\\n\\\"[t]he board of county commissioners may pass all ordinances . not repugnant to law . such as are necessary or proper to provide for the safety, promote the health and prosperity, improve the morals, peace and good order, comfort and convenience of the county and the inhabitants thereof, and for the protection of property therein, and may enforce obedience to such ordinances with such fines or penalties as the board may deem proper .\\\"\\nThis Court, in interpreting the broad statutory and constitutional powers granted to county commissioners to enact ordinances in furtherance of police powers, stated in State v. Clark, 88 Idaho 365, 399 P.2d 955 (1965), that:\\n\\\"there are three general restrictions which apply to legislation under the authority conferred by [ID. CONST, art. XII, \\u00a7 2]: (1) the ordinance or regulation must be confined to the limits of the governmental body enacting the same, (2) it must not be in conflict with other general laws of the state, and (3) it must not be an unreasonable or arbitrary enactment.\\\"\\nAs noted above, appellant cattlemen argue that the ordinance in question is invalid under the language of State v. Clark, id., in that it purports to extend application of the ordinance beyond the geographical limits of the county. We disagree. The ordinance does not purport to, nor can it affect or regulate matters occurring outside Benewah County. Should livestock from outside the county wander into lands within the county, they would then come under the jurisdiction of Benewah County and be subject to its valid ordinances. The fact that their owners may reside outside the county will not alter the result. Although the appellant cattlemen argue that a county must comply with herd district statute I.C. \\u00a7 25-2402 by enclosing itself with fences before enacting an ordinance such as the one at issue here, we disagree for the reasons stated below in our discussion relating to the non-application of the herd district statutes.\\nAppellant cattlemen argue that since the ordinance does not expressly exempt the areas of incorporated cities within the boundaries of the county and does mention city police officers as officials charged with the enforcement of the ordinance, it constitutes an attempt by the county to exercise authority over lands located within incorporated cities and is thus void. We agree with appellants to the extent that the ordinance is without force and effect within the limits of the incorporated municipalities located in Benewah County. However, as noted in this Court's recent decision in Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983), such does not invalidate the ordinance nor make it ineffective in the balance of the county. See also Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949).\\nWe turn now to appellant's assertion that the ordinance is invalid in that it conflicts with the general laws of the state. The principal argument is that the legislature, by the enactment of herd district statutes, I.C. \\u00a7 25-2401 through 25-2409, has preempted the field of control of free roaming livestock. Hence the county is prohibited from attempting to legislate on the same subject matter. At bottom appellant's position is that since livestock have for many years freely ranged and roamed within Benewah County regardless of the ownership or nature of the lands, the county may not protect its citizens and their lands and property against such livestock through the exercise of the police power. We emphatically disagree. We hold first that the legislature has not preempted the field of livestock control as asserted by the appellants; secondly, even assuming some legislative exercise of livestock control, we hold that extension or amplification of that control by county ordinance is not prohibited in the absence of constitutional or statutory provisions clearly evidencing intent on a statewide basis to permit livestock to freely roam and graze regardless of the ownership or the character of lands. We are cited to and find no such specific constitutional or legislative intent. We refrain from speculating upon the constitutional problems which might arise from the enactment of such legislation and \\u00e1 claim that it unconstitutionally deprived an owner of his property in violation of the due process clause.\\nAppellants' contention that the ordinance conflicts with the general laws of the state, particularly the herd district statutes, I.C. \\u00a7 25-2401 through 25-2409, is largely answered by the recent opinion of this Court in Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978). In Yanke, this Court exhaustively examined the law relating to herd districts and held that since 1963 the herd district statutes have not applied to \\\"open range,\\\" i.e., \\\"all uninclosed lands outside cities and villages upon which by custom, license or otherwise, livestock, excepting swine, are grazed or permitted to roam.\\\" I.C. \\u00a7 25-2402. The Court in Yanke stated:\\n\\\"Prior to 1963, I.C. \\u00a7 25-2402 contained no definition of 'open range.' Herd districts were allowed to be created in any part of this state . In 1963, as was previously discussed, the legislature inserted a definition of 'open range' in I.C. \\u00a7 25-2402 and stated that herd districts could not be created in such area . It is clear the amendment of I.C. \\u00a7 25-2402 by the inserting of a definition of 'open range' was designed to protect the rights of livestock owners by prohibiting herd districts in areas where they historically grazed stock, rather than limiting the area where livestock owners were free to let their stock roam at large. Under our decision, herd districts may still be created in any area not within 'open range' as defined in I.C. \\u00a7 25-2402.\\\"\\nIn the instant case the unenclosed lands within Benewah County but outside cities and villages clearly fall within the definition of \\\"open range.\\\" The magistrate so found and the evidence supports that finding; indeed it is uncontroverted. Hence, the county had no authority to create a herd district.\\nAppellant argues, nevertheless, that requiring livestock owners to fence in their livestock creates a de facto herd district. We disagree. Herd districts may not be created sua sponte by a county but only in response to a petition of a majority of the landowners within a certain area. The creation of a herd district imposes civil liability upon livestock owners when their stock trespasses on the land of another. In contrast, the ordinance here expressly provides that it shall not apply to the resolution of any civil liability, stating:\\n\\\"Nothing in this ordinance is to be construed as imposing strict liability in tort against a violator. Any civil action arising from livestock running at large is to be determined on the basis of the laws pertaining to civil actions and not on the basis of a violation of this ordinance; anything contained in this ordinance to the contrary notwithstanding.\\\"\\nHence, we hold that the purpose and effect of the ordinance in question here are different from the purpose and effect of a herd district; we therefore reject appellants' assertion that the ordinance constituted the de facto creation of a herd district.\\nWe hold that the herd district statutes were not intended to preempt, and do not preempt, the field of livestock regulation so as to preclude local regulation. Herd district statutes which by their own terms are inapplicable to \\\"open range\\\" areas do not preempt the field of livestock control in such areas. Cf. Turnage v. Gibson, 211 Ark. 268, 200 S.W.2d 92 (Ark.1947); Smith v. Plant, 179 Ark. 1024, 19 S.W.2d 1022 (Ark.1929); Sheridan v. Washington Parish Police Jury, 67 So.2d 110 (La.Ct.App. 1953). As noted by the Court in Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978), the creation of a herd district provides \\\"an alternative to landowners who wish to protect their land from damage caused by roaming stock . \\\" Within the legislative contemplation was a process whereby a majority of the landowners in an area could compel the county to create herd districts and thereby place upon livestock owners within such districts the duty to fence in their stock. We find nothing in that statutory scheme indicating counties may not exercise their police power to control roaming livestock, but rather must ignore any problems and wait until action is forced upon the county by the presentation of a petition for the formation of a herd district.\\nWe further note that, even if it be assumed for the purpose of discussion that the herd district statutes in some degree addressed the same problems as those addressed by the county ordinance, local enactments which merely extend the state law by way of additional restrictions or limitations are not invalid. State v. Clark, 88 Idaho 365, 399 P.2d 955 (1965); Gartland v. Talbott, 72 Idaho 125, 237 P.2d 1067 (1951); State v. Poynter, 70 Idaho 438, 220 P.2d 386 (1950); Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949).\\nAlthough appellant claims that the ordinance contravenes I.C. \\u00a7 40-702, which allows counties to create trails for cattle drives and simultaneously close highways to use for such drives, we disagree. We find nothing in the language of the ordinance which prohibits cattle drives since it proscribes allowing livestock to run \\\"at large\\\" and under the terms of the ordinance livestock are not \\\"at large\\\" if they are under the \\\"immediate effective control\\\" of their \\\"custodian.\\\" Appellant also argues that the ordinance conflicts with I.C. \\u00a7 25-2118, which provides that owners of animals in open range areas are not liable for damages when such animals are struck by vehicles operating on public highways. Again, we disagree since the ordinance expressly disclaims any intention to effect tort liability-\\nIn conclusion, we hold: in the absence of a state legislative enactment clearly indicating that livestock must be free to roam the lands of Idaho uninhibited by the ownership or character of the lands, counties and municipalities may validly exercise their police powers to prohibit such free roaming livestock. As was well stated by Bakes, J., dissenting in Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978):\\n\\\"The open range laws resulted from the unique conditions existing during the early days of the western development when vast areas of grazing land and the sparse population then living in the area made it more practical to fence animals out of the relatively small sections of land devoted to farming than to fence cattle in on the larger grazing ranges. However, conditions in Idaho have changed substantially. This Court should not expand liability rules tailored for nineteenth century open range practices . when the conditions for which they were developed have substantially passed.\\\"\\nFinally, appellants argue that compliance with the ordinance would be burdensome in that appellants would be required to spend large sums of money in fencing their lands. For that reason, it is argued, the ordinance is unreasonable and arbitrary. See State v. Clark, 88 Idaho 365, 399 P.2d 955 (1965). The policy determinations of legislative bodies as to how best to solve problems is best left with the discretion of the legislative body and should not be interfered with by the judiciary. We find nothing arbitrary, capricious or unreasonable in the effect of the ordinance such as to make the county commissioners' exercise of discretion subject to judicial review. Local authorities exercise their police power almost daily in the enactment of ordinances which may cast a financial burden on some of their constituents when it is perceived that such will rebound to the general welfare. Ordinances against outhouses or the maintenance of septic tanks may result in financial burdens upon householders. But if such actions are for the benefit of the general welfare, the mere fact of casting financial burdens upon some who must comply does not necessarily render such ordinances unreasonable or arbitrary. The decision as to imposing financial burdens and upon whom they shall fall is one involving policy and the exercise of our political form of government. The solution lies at the ballot box rather than with the courts.\\nThe judgments of the lower courts are affirmed and the cause is remanded for the dissolving and termination of the restraining orders and stays entered by the lower courts. Costs to respondents. No attorney fees for this appeal.\\nDONALDSON, C.J., BAKES, J., and McFADDEN, J. (Ret.), concur.\\n. In the event that the ordinance did not apply equally to livestock owned by Benewah County residents and livestock owned by nonresidents of Benewah County, it has been held that such unequal treatment constitutes a violation of the equal protection clause of the fourteenth amendment. Ramsey v. Martin, 111 Fla. 798, 150 So. 256 (Fla.1933); Motes v. Hagan, 101 Fla. 995, 132 So. 676 (Fla.1931); Teuton v. Thomas, 100 Fla. 78, 129 So. 330 (Fla.1930).\"}"
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+"{\"id\": \"2350461\", \"name\": \"Dorothy BODINE, Plaintiff-Appellant, v. Loren BODINE, Defendant-Respondent\", \"name_abbreviation\": \"Bodine v. Bodine\", \"decision_date\": \"1983-10-03\", \"docket_number\": \"No. 14625\", \"first_page\": \"477\", \"last_page\": \"486\", \"citations\": \"105 Idaho 477\", \"volume\": \"105\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:14:18.441663+00:00\", \"provenance\": \"CAP\", \"judges\": \"BISTLINE and HUNTLEY, JJ., concur.\", \"parties\": \"Dorothy BODINE, Plaintiff-Appellant, v. Loren BODINE, Defendant-Respondent.\", \"head_matter\": \"670 P.2d 884\\nDorothy BODINE, Plaintiff-Appellant, v. Loren BODINE, Defendant-Respondent.\\nNo. 14625.\\nSupreme Court of Idaho.\\nOct. 3, 1983.\\nE. Don Copple of Davison, Copple, Copple & Copple, Boise, for plaintiff-appellant.\\nStanley W. Welsh of Clemons, Cosho & Humphrey, Boise, for defendant-respondent.\", \"word_count\": \"5977\", \"char_count\": \"35722\", \"text\": \"DONALDSON, Chief Justice.\\nThe parties were separated in 1975 and at the time of the divorce in March of 1976, they entered into a property settlement agreement. Following the divorce, the wife, Dorothy Bodine, brought this suit as an independent action. She contends that in the course of their negotiations her husband, Loren Bodine, misrepresented the value of their property.\\nThe trial court granted summary judgment in favor of the husband. In the district court's written opinion and order granting the summary judgment, the court stated that while there was no genuine issue as to the identity and disclosure of the property owned by the parties at the time of the negotiations, an issue did exist as to whether the property values given by the husband were fair and accurate. While discussing the possibility of fraud the trial judge found that \\\"a claim by the wife under circumstances existing in the instant case that the property values provided by the husband were not accurate does not justify setting aside the property-settlement agreement.... I conclude, therefore, that on the present record there is no genuine issue as to any material fact and the Defendant is entitled to Summary Judgment.\\\" The plaintiff-wife appealed this decision.\\nThe Court of Appeals reversed the trial judge's decision and remanded the case in light of the recent Idaho Supreme Court case of Compton v. Compton, 101 Idaho 328, 612 P.2d 1175 (1980), which was released two months after the district court granted summary judgment in favor of the husband-defendant. The Court of Appeals held that the district court was too restrictive when it concluded that relief from a property settlement agreement must be denied by summary judgment when parties occupy adversary positions and are represented by legal counsel. The Court of Appeals then directed the trial court to consider other factors that were addressed in Compton in order to determine whether summary judgment should be granted.\\nThe parties in this action have treated the property settlement agreement as though it were merged into the divorce decree. Therefore, in order for the wife to attack the judgment, since the time limitations have run for other avenues of review, she must show an extreme degree of fraud. Compton, supra. As stated in Compton, \\\"[t]here is no expressed time limit . with respect to the independent action to relieve a party from judgment.\\\" 101 Idaho at 334, 612 P.2d at 1181. This Court in Compton also stated, however, that an independent action \\\"will lie only in the presence of an extreme degree of fraud,\\\" 101 Idaho at 335, 612 P.2d at 1182, and that \\\"to survive husband's motion for summary judgment the burden rests with wife, as challenging party in this case, to allege such fraud as to support an independent action for relief from judgment.\\\" 101 Idaho at 336, 612 P.2d at 1183.\\nOn a motion for summary judgment the trial court and an appellate court must construe all facts and inferences most favorably toward the party opposing the motion. If a genuine issue of material fact remains unsolved, summary judgment is improper. Taylor v. Choules, 102 Idaho 222, 628 P.2d 1056 (1981). Neither the district nor an appellate court can weigh the facts to determine the issues.\\nAs stated, the trial judge found that \\\"a claim . that the property values provided by the husband were not accurate does not justify setting aside the property-settlement agreement.\\\" However, an examination of the evidence in a light most favorable towards the wife shows that she did more than claim that the value the husband attached to the property was inaccurate. Rather, she stated in an affidavit that she discovered the fair market value of the property at the time the agreement was entered into was $1,650,000.00 and that her husband, Mr. Bodine, had represented to her attorney that the community property was valued at $446,000.00 and that the representation of $446,000.00 \\\"was totally false and made by the Defendant with the intent to deceive and defraud me.\\\" Also, at the time of the divorce she allegedly was under the care of a psychiatrist and, with her husband's knowledge, she was taking medication prescribed by her psychiatrist to sedate her. This evidence is all relevant to the fraud issue.\\nThe Court of Appeals reversed and remanded for the trial court to reconsider the motion for summary judgment in light of Compton. However, an examination of this evidence in a light most favorable to the wife indicates that as a matter of law a genuine issue of material fact does exist, thus precluding the granting of a summary judgment motion. Therefore, we reverse the trial court's decision and remand for a trial on the issue.\\nCosts to appellant Dorothy Bodine.\\nNo attorney fees on appeal.\\nBISTLINE and HUNTLEY, JJ., concur.\"}"
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+"{\"id\": \"2350786\", \"name\": \"Roy Dean HOLLOWAY, Plaintiff-Appellant, v. E.C. PALMER, individually, and as Sheriff of Ada County, Idaho, and R.W. Christensen, Dick Chastain, Hugh Brady, Dave Sarvis, and Matt O'Rourke, Jr., individually and as Commissioners of the Ada County Sheriff's Deputies Merit System, Defendants-Respondents\", \"name_abbreviation\": \"Holloway v. Palmer\", \"decision_date\": \"1983-06-03\", \"docket_number\": \"No. 14031\", \"first_page\": \"220\", \"last_page\": \"233\", \"citations\": \"105 Idaho 220\", \"volume\": \"105\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:14:18.441663+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONALDSON, C.J., and HUNTLEY, J., concur.\", \"parties\": \"Roy Dean HOLLOWAY, Plaintiff-Appellant, v. E.C. PALMER, individually, and as Sheriff of Ada County, Idaho, and R.W. Christensen, Dick Chastain, Hugh Brady, Dave Sarvis, and Matt O\\u2019Rourke, Jr., individually and as Commissioners of the Ada County Sheriff's Deputies Merit System, Defendants-Respondents.\", \"head_matter\": \"668 P.2d 96\\nRoy Dean HOLLOWAY, Plaintiff-Appellant, v. E.C. PALMER, individually, and as Sheriff of Ada County, Idaho, and R.W. Christensen, Dick Chastain, Hugh Brady, Dave Sarvis, and Matt O\\u2019Rourke, Jr., individually and as Commissioners of the Ada County Sheriff's Deputies Merit System, Defendants-Respondents.\\nNo. 14031.\\nSupreme Court of Idaho.\\nJune 3, 1983.\\nRehearing Denied Sept. 8, 1983.\\nFrank W. Stoppello, Boise, for plaintiff-appellant.\\nGreg Bower, Pros. Atty., and Scott L. Campbell, Deputy Pros. Atty., James J. Davis, of Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, for defendants-respondents.\", \"word_count\": \"7850\", \"char_count\": \"49124\", \"text\": \"BISTLINE, Justice.\\nOn September 14, 1978, Roy Dean Holloway was terminated from his position as sergeant with the Ada County Sheriff's Department (hereafter Department). Sgt. Holloway had been a member of the Department for four and one-half years prior to his termination and was undisputedly considered an officer in good standing prior to that time. In addition to being an officer with the Department, Sgt. Holloway had also been elected President of the Ada County Deputy Sheriff's Union in December of 1977, which Union consisted of fifty- five members of the Department. The events which culminated in Sgt. Holloway's dismissal began with the Union's decision to sponsor a fund raiser, the proceeds of which were to be used to establish a fund to assist law enforcement officers who had suffered personal losses and to donate to local organizations dealing with deterrence, correction and rehabilitation of juvenile offenders.\\nOn August 15, 1978, the Union decided to sponsor a western show at the Western Idaho Fairgrounds called the Merle Haggard-Marty Robbins Western Show. On or about March 28, 1978, the Union, through Sgt. Holloway, sent a letter to Sheriff Palmer notifying him of its intent to sponsor a fund raiser, similar to fund raisers which had been sponsored by other groups in the Sheriff's office in earlier years. The letter informed Sheriff Palmer that telephone solicitation would be used as the means of promoting the fund raiser.\\nReceipt of this letter by Sheriff Palmer prompted a meeting between the Sheriff and Sgt. Holloway. At this meeting the Sheriff informed Sgt. Holloway of his dislike of telephone solicitations and of past problems involving adverse public reaction to telephone solicitations. The Sheriff made it clear to Sgt. Holloway that he did not agree with the proposed solicitation, that he would not permit it, and that he would use any means to stop it, even to the extent of going to the news media. The Sheriff did not warn Sgt. Holloway about any possibility of termination or other punishment which would result from proceeding with the proposed fund raiser.\\nIn August, the Union contracted with Wildwood Productions, Inc. (Wildwood), a known and reputable firm, which agreed to promote the show. The promoter, as an independent contractor, agreed to be solely responsible for the promotion and production of the show, which was to include the sale of advertising space in a souvenir booklet to businesses in the area, and the free distribution of the souvenir booklet to persons who attended the show. The contract required Wildwood to comply with all requests of the Union pertaining to the sales pitch used in the advertising solicitation and also required Wildwood to comply with all Boise City, Ada County, and State of Idaho laws, ordinances and regulations which applied to the sale of advertising and tickets and to the presentation of the show. Ticket and advertising sales were the source of revenue anticipated under the contract to finance the show and benefit the Union. Neither Sgt. Holloway nor any other Union deputy took any direct part in the promotion of the show or sale of advertising, other than to account for receipts.\\nOn or about August 25, 1978, Wildwood began contacting local businesses. No local solicitation license had been obtained at that time.\\nOn August 30, 1978, Sgt. Holloway was called to the Sheriff's office to discuss the promotion and the sales pitch used by Wild-wood. The Sheriff told Sgt. Holloway that citizens had complained about the sales pitch and that the solicitors were representing that the funds were to be used for a \\\"burnout fund\\\" and were making other inaccurate statements. Although not entirely clear from the record, it appears that the Sheriff also told Sgt. Holloway at that time that Wildwood had been operating in violation of the Boise City Code by soliciting without a license. The Sheriff told Sgt. Holloway that if the Union was going to go around him and proceed with the solicitation, it had to be legal, and that the solicitors could not use the Department's name. The Sheriff told Sgt. Holloway to take county time, if necessary, but to get the thing straightened out. That same day, in compliance with the Sheriff's request, Sgt. Holloway notified Wildwood of the Sheriff's problems and criticisms and asked that the problems be corrected. That day, Wild-wood made its application for a license to the Boise City License Commission. The following evening, August 31, 1978, a hearing was held before Mr. Keith Kendall of the License Commission. No decision on the requirement of a license was made at that time and Wildwood was not asked to discontinue its promotion until a decision was made thereon.\\nOn September 7, 1978, Sgt. Holloway again met with Sheriff Palmer. The Sheriff criticized the sales pitch used by Wild-wood. The Sheriff asked one of his officers to call and record the exact language being used to sell the advertising. The Wildwood employee who responded to this telephone call stated \\\"Pm calling for the Sheriff's Department and the Sheriff's Deputies Union . \\\"\\nImmediately thereafter, Sgt. Holloway contacted the principals of Wildwood and again asked that Wildwood not make any reference to the Sheriff himself or to the Department. In addition, he composed a letter which again spelled out a proper format which would comply with Sheriff Palmer's wishes.\\nThe next day, September 8, 1978, Wild-wood was informed that the License Commission had approved its application for a license but that a $5,000 cash bond would have to be posted. Because the Union could not immediately supply such a bond, Wildwood immediately terminated its solicitation campaign.\\nSix days later on September 14, 1978, Sgt. Holloway was on duty when he was called to the office of Sheriff Palmer. As he stepped into the office, Sgt. Holloway was handed his \\\"termination\\\" letter notifying him of his dismissal, \\\"effective immediately.\\\" The letter recited that Sgt. Holloway had violated a direct order to stop the promotion of the show, was continuing to engage in illegal solicitations, had been found to be in violation of a state statute, and was bringing the Department into disrepute. Sgt. Holloway responded that the solicitation by Wildwood had ended on September 8, and that no orders had ever been given regarding Wildwood's actions. The Sheriff then took back the letter and stated he would redraft it, but that Sgt. Holloway remained fired. Sheriff Palmer testified that he tore up the original termination letter and sent Sgt. Holloway a termination letter which deleted language referring to continuing solicitations.\\nShortly after Sgt. Holloway was fired, Greg Cornwall, vice-president of the Union, was approached by Personnel Director Larry Richards, and was told he would also have been fired if he had signed the contract executed between the Union and Wildwood.\\nSheriff Palmer admitted at the hearing that after the termination he had joked in front of some Boise City police officers that he could not find anyone to assume the presidency of the Union after he fired Sgt. Holloway.\\nAs required to preserve his rights under Ada County Ordinance Number 60, Sgt. Holloway appealed his termination to the Ada County Sheriff's Deputies Merit System Commission (hereafter Commission). Subsequent to the filing of that appeal and before the hearing before the Commission, Sgt. Holloway brought an action in the district court against the Commission and Sheriff Palmer, alleging violation of his constitutional rights by the termination and requesting a preliminary injunction to prohibit the Commission from hearing the case. The district court refused to enjoin the hearing before the Commission, but ruled that the complaint would not be dismissed and that the court would later hear the complaint if Sgt. Holloway was not satisfied with the outcome of the hearing before the Commission.\\nAfter a hearing on November 14 and 15, 1978, the Commission issued its decision. Three members of the five member Commission upheld the termination of Sgt. Holloway, one member dissented and one member was absent from the hearing. Sgt. Holloway then filed an amended complaint in the district court which included a second count requesting a review of the Commission's decision, attorney's fees, and damages. Pursuant to a stipulation of the parties, the district court heard the second count as a writ of review. In its decision of July 7,1980, the district court remanded the matter to the Commission for additional findings:\\n\\\"I am unable to determine whether there is substantial evidence to support the findings of the Commission, and whether reasonable minds might accept the evidence as adequate to support the same, because I conclude that the findings of the Commission are not sufficiently clear and concise. There is not, in my opinion, a sufficient adjudication of exactly what activity of the petitioner was objectionable, nor what statute, ordinance, established policy, rule or regulation, (whether Sec. 48-603(a) of the Idaho Code, and/or others) proscribed such activity. I must conclude as a matter of law that the findings are not sufficiently extensive and exacting to support the Commission's conclusions that the Plaintiff's employment was terminated in good faith and for cause. The findings leave open to speculation the question of the nature of the 'involvement of the Plaintiff'; the nature of the 'activity which the Plaintiff was so involved in'; the nature of the 'public criticism' resulting therefrom; etc.\\\"\\nA motion to amend this order was immediately filed by Sgt. Holloway on the basis that the \\\"Merit Commission is no longer in existence and therefore without authority to enter additional findings of fact.\\\" On October 6, 1980, the district court found that a remand would indeed be ineffective because the Commission was no longer in existence.\\nOn December 22, 1980, the district court substituted its own findings of fact for those of the Commission and concluded as a matter of law that Sgt. Holloway had been terminated for cause and in good faith. The district court thereby affirmed the Merit Commission decision.\\nI. SCOPE OF REVIEW\\nIn Local 1494 v. City of Coeur d'Alene, 99 Idaho 630, 586 P.2d 1346 (1978), this Court determined the scope of district courts' judicial review of agency decisions. That case involved a dispute between the City of Coeur d'Alene and Local 1494 of the International Association of Firefighters, the collective bargaining agent for seventeen firefighters who were terminated for their participation in a strike against the City. The Civil Service Commission held a public hearing and issued a decision finding that the strike was illegal and that the discharge of the firefighters was justified. The Commission's decision was conclusory and incomplete in form setting forth no factual basis to support its ultimate conclusion that the City acted in good faith and for cause. The district court on appeal entered its own findings of fact and conclusions of law. This Court reviewed the district court procedure under the substantial evidence rule which \\\"is said to be a 'middle position' which precludes a de novo hearing but which nonetheless requires a serious review which goes beyond the mere ascertainment of procedural regularity.\\\" Id. at 633, 586 P.2d at 1349 (emphasis added). \\\"[T]he substantial evidence rule requires a court to determine 'whether [the agency's] findings of fact are reasonable.'\\\" Id. at 634, 586 P.2d at 1350 (citing 4 Davis, Administrative Law Text \\u00a7 29.01-02 at 525-530). In Local 1494, we held that this substantial evidence standard is flexible with its application depending on such factors as: (1) the character of the administrative agency \\u2014 which in that case differed significantly from that of the major commissions having statewide jurisdiction; (2) the structural make-up and function of the agency, i.e., the degree of impartiality and disinterested justice which could be exercised by the agency; (3) the character of the agency, the roles committed to it by statute and the manner in which it functioned; and (4) the nature of the issue being reviewed. Applying these factors, we upheld the district court's liberal application of the substantial evidence rule in conducting a full and thorough review of the civil service determination. We held that the district court's substitution of findings of fact and conclusions of law for that of the Commission was proper:\\n\\\"On judicial review of a civil service commission determination, the district court is required to conduct a full review of the whole record and, where the commission's conclusions are unsupported by substantial evidence, its function encompasses stating, both for the benefit of the parties and this Court, its reasoning and conclusions which very well may but need not take the form of findings and conclusions. That is exactly what the trial court did in the present case. That the trial court, in rendering its appellate decision, did so by way of enumerated conclusions and enumerated findings, rather than in appellate opinion form, is without significance.\\\"\\nId. at 638, 586 P.2d at 1354 (emphasis in original).\\nThe district court in the present case properly exercised the type of appellate review contemplated in Local 1494. Applying the rule set forth in Local 1494, we hold that it was necessary for the district court to liberally apply the substantial evidence rule in conducting a full and thorough review of the agency record: (1) Like the Civil Service Commission in Local 1494, the agency here involved was a local commission unaccustomed to addressing problems of the magnitude of an alleged dismissal of a classified employee for union activities; (2) although the Commission had outward indices of impartiality, it was alleged by Sgt. Holloway that the Commission had failed to exercise or assume jurisdiction; that the Commission had delegated its authority to Sheriff Palmer; and that the Commission had failed to perform its obligation to adopt and publish rules and regulations. These allegations were at no time controverted by either the Merit Commission or Sheriff Palmer; (3) The nature of the issue involved in this case is one not within the expertise of the Commission. As we stated in Local 1494:\\n\\\"In the present case, the concern is not with an administrative/legislative type decision . within the expertise of a specialized agency but rather with . 'the right to a continual employment' . We have recently stated that such a right is a constitutionally protected property interest.\\\"\\nId. at 636, 586 P.2d at 1352.\\nAn additional factor in the present case is that, unlike in Local 1494, the district court did not have the opportunity to remand to the agency for more specific findings, the Commission becoming, defunct during the pendency of Sgt. Holloway's appeal to the district court.\\nLocal 1494 also established the scope of this Court's review of an agency decision. \\\"On appeal, it is our task to make the same review of the commission's action as did the district court in order to determine whether, on the whole record, the commission's decision was substantially supported by the evidence and by applicable law.\\\" 99 Idaho at 638, 586 P.2d at 1354. Under this standard, this Court is empowered to exercise the same type of appellate review as the district court is authorized to exercise over agency decisions. Accordingly, we must here make a full and thorough review of the Commission record to determine if there is substantial evidence to support the Commission's conclusion that Sgt. Holloway's dismissal was made for cause and in good faith.\\nII. REVIEW OF THE COMMISSION'S DECISION\\nThe Commission, in its Letter Memorandum Opinion dated November 17, 1978, determined that Sgt. Holloway was dismissed for cause and in good faith on the basis that:\\n\\\"Roy D. Holloway was employed and promoted by the Ada County Sheriff and functioned as a satisfactory employee until Mr. Holloway involved himself in an activity which created a condition of public criticism of the Ada County Sheriff's Department of which Mr. Holloway maintained control and responsibility.\\n\\\"The Ada County Sheriff is responsible for the conduct and integrity of the operations of the Ada County Sheriff's Department and a Manual of Conduct and Ethics sets forth required conditions of employee conduct. The Ada County Sheriff counseled and directed Mr. Holloway regarding the adverse effects and requested corrective measures of Mr. Holloway's action on multiple occasions. Contrary to the proper conduct of a prudent employee, Mr. Holloway failed to act in a proper manner in order to avoid conditions which would generate public criticism directed toward the Ada County Sheriff's Department and further failed to exert necessary and timely efforts within his authority, to terminate conditions generating aforementioned criticisms when identified and instructed by the Ada County Sheriff.\\n\\\"Mr. Holloway, the employee, had the responsibility to conduct himself in an appropriate manner as identified in the Manual of Conduct and Ethics. Mr. Holloway was the responsible individual for an adverse condition unacceptable to the proper conduct of the Ada County Sheriff's Department of which E.C. Palmer, Sheriff, is the responsible authority for such proper conduct. Mr. Holloway was advised to correct the identified cause of criticism. He failed to do so and was terminated, an action within, and appropriate of the authority of the Ada County Sheriff.\\n\\\"From the foregoing it is concluded as a matter of law that the dismissal was in good faith and for cause.\\\"\\nIn determining what constitutes cause within the meaning of Ada County Ordinance No. 60 \\u00a7 11, the Commission is constrained by the protections afforded an individual by the first amendment. Sgt. Holloway contends that he was terminated without cause for \\\"union activity\\\" in violation of his fundamental rights of free assembly and association guaranteed under the United States and Idaho Constitutions. If Sgt. Holloway was indeed terminated for union activities protected under the first amendment, his termination could not have been made with cause and must be reversed.\\nThe United States Constitution, Amendment 1, provides that:\\n\\\"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.\\\"\\nThe first amendment has been interpreted to protect individuals' rights to form and join labor unions and associations without fear of retaliation. Smith v. Arkansas State Highway Employers, Local 1315, 441 U.S. 463, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979); Arkansas State Highway Employees Local 1315 v. Kell, 628 F.2d 1099 (8th Cir.1980); New Orleans Steamship Ass'n v. General Longshore Workers, 626 F.2d 455 (5th Cir.1980), affirmed sub nom, Jackson Bulk Terminals, Inc. v. International Longshoremen's Ass'n, 457 U.S. 702, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982).\\n\\\"[T]he courts . have accepted a general proposition that public employees cannot be discharged for engaging in 'union activities.' Thus, if there is a discharge because of union membership, the general constitutional right of free association . and the free speech right . are correctly applied to invalidate the discharge, since there is no reason to distinguish a union from any other \\u2022 association.\\\"\\nHanover Township Federation of Teachers Local 1954 v. Hanover Community School Corp., 457 F.2d 456, 460 (7th Cir.1972).\\nIt has been established that \\\"[a]ll speech, press, and associational relationships are presumptively protected by the first amendment; the burden rests on the government to establish that the particular expressions or relationships are outside its reach.\\\" Bursey v. United States, 466 F.2d 1059, 1082 (9th Cir.1972). \\\"[FJreedoms of speech and of press, of assembly, and of worship may not be infringed on [rational basis] grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests the state may lawfully protect.\\\" West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943) (emphasis added).\\nIt is this Court's duty to examine the record before the Commission to determine whether there is substantial evidence to support the Commission's determination that the Sheriff terminated Sgt. Holloway for cause and in good faith. In so doing, we must determine if the Sheriff met his burden of demonstrating that the actions of Sgt. Holloway presented such a \\\"grave and immediate danger\\\" to legitimate state interests as to constitute cause for his dismissal.\\nA. Public Criticism\\nOne of the grounds stated by the Commission for upholding Sgt. Holloway's dismissal was that \\\"Mr. Holloway involved himself in an activity which created a condition of public criticism of the Ada County Sheriff's Department . \\\" The Sheriff testified before the Commission that he received complaints from citizens that they were confused by the solicitation and did not know whether the Union was sponsoring the fund raiser or whether the Department was sponsoring it. However, it is uncontroverted that the Sheriff had received similar citizen complaints when fund raisers were previously sponsored by the Deputy Sheriff's Association and the Sheriff's Reserve, both of which are non-union organizations connected with the Sheriff's Department. All of the businesses contacted which ultimately purchased advertising space accurately made their checks payable to the Union rather than to the Sheriff's Department. Additionally, at least some of the controversy engendered by the solicitation was the result of erroneous statements made by the Sheriff himself. The following testimony was received at the Merit Commission hearing:\\n\\\"MR. O'ROURKE [Commissioner]: [I]t was reported in the news media, evidently at the time of this controversy, that the promoter did, in fact, leave town with the receipts and the show was cancelled and that somehow people were bilked out of funds. I don't know if that is something that was alluded to in the media or whether it was actually fact. Do you have any knowledge of that?\\n\\\"THE WITNESS [Sgt. Holloway]: I saw a television broadcast in that Sheriff Palmer said that these people had left town with $18,000....\\n\\\"MR. O'ROURKE: Do you think that Sheriff Palmer's statement there had impugned the character of the people in Wildwood Productions?\\n\\\"THE WITNESS: I believe so, yes.\\n\\\"MR. O'ROURKE: Do you also think that possibly some of the complaints were generated by Sheriff Palmer's comments?\\n\\\"THE WITNESS: I believe so....\\\" Sheriff Palmer admitted making such a comment:\\n\\\"Q. [By Mr. Stoppello to Sheriff Palmer] Well, did you not in fact, in front of Channel 7 news, make a statement after this promotion began in August that you understood that the proceeds from the advertising sales had left town? Did you ever make that statement?\\n\\\"A. [Sheriff Palmer] Yes.\\\"\\nIt is uncontroverted that Wildwood did not leave town with the funds and that the Union received all funds rightfully belonging to it from the fund raiser.\\nAlthough outwardly concerned with public criticism engendered by the solicitation, Sheriff Palmer never notified Sgt. Holloway that he would be disciplined or terminated if the source of the criticism continued. In fact he did not terminate Sgt. Holloway until six days after Wildwood had, on its own initiative, stopped the solicitation, thereby removing any grounds for any further public criticism of the Department. Sheriff Palmer originally handed Sgt. Holloway a termination letter which stated that Sgt. Holloway had failed to obey three direct orders and that to that date, September 14, 1978, the solicitation was continuing. Sgt. Holloway testified that:\\n\\\"I, you know, explained to him that no, the solicitation had been stopped last Friday, which was the 8th of September, was the last day that there was soliciting.\\n\\\"And he lined that out and said that if that's so, you know, I'll just redraft the letter and make it correct.\\\"\\nThe Sheriff failed to offer sufficient evidence to show that there had been any public criticism differing from that received when other non-union departmental organizations had previously sponsored fund raisers. There was insufficient evidence to show that the Sheriff was indeed concerned about unfavorable public criticism, having himself engaged in actions guaranteed to result in such criticisms. There was also insufficient evidence offered to support a finding that the Sheriff acted in response to the public criticism engendered by the fund raiser when he neither took action nor threatened Sgt. Holloway with any action during the course of the solicitation. Sheriff Palmer did not terminate Sgt. Holloway until six days after the solicitation had been stopped by Wildwood on its own initiative. It is thus clear that there is not substantial evidence to support a finding that any public criticism engendered by the solicitation constituted such a \\\"grave and immediate danger\\\" to a legitimate state interest that Sheriff Palmer had \\\"cause\\\" to terminate Sgt. Holloway.\\nB. Necessary and Timely Efforts\\nThe Commission upheld Sgt. Holloway's dismissal on the further ground that Sgt. Holloway \\\"failed to exert necessary and timely efforts within his authority, to terminate conditions generating aforementioned criticisms when identified and instructed by the Ada County Sheriff.\\\"\\nThere was no evidence presented to the Commission that Sgt. Holloway did not immediately act on each and every one of the Sheriff's requests or orders. There were three meetings at which the Sheriff voiced opposition to some facet of the solicitation scheme. At the first meeting, the Sheriff essentially told Sgt. Holloway not to go through with the telephone solicitation at all. However, this order or request was rescinded by the Sheriff at later meetings at which he told Sgt. Holloway that \\\"[i]f he was going to do it, he had to be legal.\\\" In response to the question by counsel for Sgt. Holloway: \\\"But he could go ahead with the promotion as long as it was legal?\\\" Sheriff Palmer answered, \\\"Yes, I guess he could. I couldn't stop him.\\\" After the second meeting on August 30,1978, Sgt. Holloway notified Wildwood of the Sheriff's complaints and requested that the cause of the complaints be rectified. It was at this time that Wildwood applied for a solicitation license with the Boise City License Commission. After the third meeting on September 7, 1978, Sgt. Holloway contacted Wild-wood and again asked that no reference be made in the solicitation to the Sheriff or the Department. In addition, he composed a letter which again spelled out a proper solicitation format which would comply with the Sheriff's wishes. The following day, the solicitation was discontinued by Wild-wood on its own initiative after it was notified that a $5,000 bond would have to be posted in order to obtain a license from the Boise City License Commission.\\nSix days after the solicitation was discontinued, on September 14, 1978, Sgt. Holloway was on duty when he was called to the office of Sheriff Palmer. As he. stepped into the office, Sgt. Holloway was handed his \\\"termination\\\" letter notifying him of his dismissal, \\\"effective immediately.\\\" The record clearly demonstrates that Sgt. Holloway did everything within his power to comply with the Sheriff's wishes and to not bring either the Sheriff or the Sheriff's Department into any disrepute. Thus, we hold that there is not substantial evidence to support the Commission's finding that Sgt. Holloway \\\"failed to exert necessary and timely efforts . to terminate conditions generating aforementioned criticisms when identified and instructed by the Ada County Sheriff.\\\" Therefore, the record cannot support a determination that there existed such a \\\"grave and immediate danger\\\" to legitimate state interests as to constitute \\\"cause\\\" for Sgt. Holloway's dismissal.\\nIII. INDEPENDENT REVIEW\\nUnder the rule established in Local 1494 this Court, upon a determination that an agency's decision is not supported by applicable law or by substantial evidence, must independently review the agency record to determine if there is any basis in law and fact to support its ultimate decision. If there is, we must uphold the Commission's decision and set forth the basis for so doing.\\nSheriff Palmer, in his termination letter of September 14,1978, gave Sgt. Holloway three reasons for his dismissal: (1) failure to obey a direct order; (2) violation of a state statute; and (3) conduct unbecoming an officer that brings the department into disrepute. It is unnecessary to readdress the first and third stated reasons, based on our foregoing determination that these reasons did not provide an adequate basis for Sgt. Holloway's dismissal.\\nThe letter apprising Sgt. Holloway of his termination stated:\\n\\\" Violation of state statute. Via your telephone solicitation scheme you have been found by the Idaho State Attorney General's Office to be in violation of certain sections of the Consumer Protection Act. Additionally you have been found to be in violation of the Boise City Municipal Code regarding licensing requirements for telephone solicitation.\\\"\\nOn September 15, 1978, one day after Sgt. Holloway's termination, the Idaho Attorney General's office wrote Sheriff Palmer a letter informing him that Wildwood had apparently violated the Consumer Protection Act:\\n\\\"Based upon information we have recently received, it appears that there are violations of the Idaho Consumer Protection Act in the solicitation of Wild-wood Productions, Inc., .\\n\\\"It would appear that Wildwood Productions, Inc., has unlawfully attempted to use the name of the sheriff's department to promote its solicitation, without stating who the real principals are. Please be advised that our office will continue to pursue this matter, and to seek restitution.\\\"\\nRespondent's Exhibit 11 \\u2014 Letter from Attorney General Wayne Kidwell to C.E. Palmer (September 15, 1978) (emphasis added).\\nAlthough this letter shows that Wildwood was apparently acting in violation of the Idaho Consumer Protection Act, it does not charge Sgt. Holloway or any other Union member with such violations. The record reflects that neither Sgt. Holloway nor any other Union member ever directly engaged in the solicitation themselves. The contract signed by Wildwood also provided that Wildwood would comply with all state laws relating to the sale of advertising. Sgt. Holloway never authorized Wildwood to implicate the Sheriff's Department in the fund raising. The evidence previously summarized in this opinion reflects that Sgt. Holloway, far from authorizing the sales pitch used by Wildwood, did everything in his power to ensure that Wildwood would represent that it was acting only on the behalf of the Union.\\nSgt. Holloway was never found to be in violation of the Boise City licensing requirements. On August 30, 1978, Sgt. Holloway was informed by the Sheriff that Wild-wood, by not having obtained a solicitation license, was probably acting in violation of the City's licensing requirements. That same day Wildwood applied for a license with the Boise City Licensing Commission. No decision on the license requirement was made at the time of the application and no request was made of Wildwood to discontinue its promotion until such time as a decision was made. On September 8, 1978, Wildwood was informed that a license was required together with a $5,000 bond. Un able to raise the $5,000 bond, Wildwood immediately discontinued the solicitation.\\nThere is no substantial evidence in the record to demonstrate that Sgt. Holloway violated either the Idaho Consumer Protection Act or the Boise City Code licensing requirements. Accordingly, the record cannot support a determination that there existed such a \\\"grave and immediate danger\\\" to legitimate state interests as to constitute \\\"cause\\\" for Sgt. Holloway's dismissal.\\nFor the foregoing reasons, we hold that there is not sufficient evidence in the record to uphold the Commission's ultimate determination that Sgt. Holloway was dismissed for cause and in good faith.\\nIV.\\nSgt. Holloway additionally argues that (1) the district court erred in not granting his petition to enjoin the Commission from determining the validity of his dismissal; (2) there was not a quorum of the Commission present to determine the validity of his dismissal; and (3) his dismissal without pretermination notice or an opportunity to respond violated his constitutional rights to due process. Given our holding in this case, we find it unnecessary to address these additional allegations.\\nThe judgment is reversed and remanded to the district court for entry of judgment of reinstatement with rank, seniority, benefits, privileges, and back pay (after taking into consideration any income earned in mitigation).\\nCosts to appellant.\\nDONALDSON, C.J., and HUNTLEY, J., concur.\\n. On or about August 25, 1978, Sgt. Holloway, as President of the Union, distributed a newsletter informing the Union membership that the Union intended to produce a fund raising concert. The letter also set forth the general sales pitch to be used by the promoter's sales personnel which specified that said personnel would state that they were \\\"calling for the Ada County Deputy Sheriff's Union.\\\" A copy of this newsletter was also given to Gary Allen of Wildwood Productions.\\n. Testimony was offered at the Merit Commission hearing that Wildwood did not obtain a local solicitation license because the work was being done on behalf of the nonprofit union chapter. Other local nonprofit groups, such as the Bronco Athletic Association and the Idaho Police Officers Association, which had previously sold similar advertising had not been required by the City to obtain solicitation licenses.\\n. In explaining the order given at the August 30th meeting, Sheriff Palmer testified as follows:\\n\\\"THE WITNESS: [Sheriff Palmer] Well my order at that time \\u2014 if I can explain, Mr. Boyd, he couldn't get the sheriffs office involved in it. No way could the sheriffs office be involved. And that was the order then.\\n\\\"Q. BY MR. STOPPELLO: Okay. But he could go ahead with the promotion as long as it was legal?\\n\\\"A. Yes, I guess he could. I couldn't stop him.\\\" (Emphasis added.)\\n. \\\"I must agree with Plaintiff that the remand, under the circumstances brought out on the hearing of this motion, is ineffective. It appears that Ada County Ordinance No. 60, which by its terms creates the Merit System Commission, contains the following language in Section 21: 'The provisions of this ordinance shall become operable for each fiscal year only after the prior approval of the Board of County Commissioners during the annual budget procedures of a table of organization describing the positions and salaries available in the sheriffs office for the ensuing year.' Plaintiff states that no such table has been submitted or approved for the current fiscal year, and that therefore the Merit Commission is no longer in existence and is without authority to enter additional findings of fact on remand. Defendant has not disputed the claim that Ordinance No. 60 has not been re-enacted by the Ada County Commissioners for the current year.\\\"\\nHolloway v. Palmer, No. 65702, Slip op. at 8 (Fourth Dist. Idaho 1980).\\n. In its October 6, 1980 opinion, the district court determined the scope of its review in light of the fact that a remand to the Commission would be ineffective thus:\\n\\\"[TJhis Court's order for remand must be amended. The Court will have to proceed to review the entire record before the Commission as it presently stands and enter its own findings of fact and conclusions of law, based upon substantial evidence in such record, the procedure approved by our Supreme Court in the Local 1494 case. It is the only practical solution to the dilemma presented here.\\\" Holloway v. Palmer, No. 65702, Slip Op. at 9-10 (Fourth Dist. Idaho 1980).\\n. The district court based its decision on the .record before the Commission. The district court did not hold a trial de novo or open the record for additional evidence.\\n. The Commission was composed of five persons consisting of two members appointed by the Sheriff, two members appointed by the Sheriffs deputies and one member appointed by the Ada County Commissioners.\\n. Ada County Ordinance No. 60 \\u00a7 11 provides: \\\"[N]o person in the classified merit system who has been permanently appointed or inducted into the merit system . shall be removed, suspended, or demoted, except for cause, in good faith . \\\" (Emphasis added.)\\n. The Idaho Constitution, Art. 1, \\u00a7 10, similarly provides that:\\n\\\"The people shall have the right to assemble in a peaceable manner, to consult for their common good; to instruct their representatives, and to petition the legislature for the redress of grievances.\\\"\\n. The Sheriff testified that many people who had purchased advertising complained that they were confused as to the identity of the sponsor of the show, however, he could only remember the name of one person in particular. The Sheriff testified that this person had said he was misled as to whether the Union or the Department was sponsoring the show. However, Sgt. Holloway introduced into evidence a check written by this same person to the \\\"Ada County Sheriffs Union,\\\" rather than to the Sheriffs Department.\\n. Sheriff Palmer testified at the Commission hearing that he had threatened Sgt. Holloway at their first meeting regarding the fund raiser that \\\"I said I would even go to the news media if it was necessary to stop him.\\\"\\n. There was no need for Sgt. Holloway to deliver this letter to Wildwood because by the next day, Wildwood had discontinued its telephone solicitation.\\n. Mr. Rourke, Merit System Commissioner, asked Sgt. Holloway the following question:\\n\\\"Were you ever, Mr. Holloway \\u2014 Sergeant Holloway, were you ever contacted by any law enforcement agencies, attorney general's office, city police department, concerning illegal activities resulting from the carrying on of this solicitation? In other words, were you ever informed by any law enforcement agency that you were being held responsible for a violation of the law?\\\"\\nTo which Sgt. Holloway replied \\\"No.\\\"\"}"
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+"{\"id\": \"2355535\", \"name\": \"Gerald MATTSON, Guardian ad Litem for Walter Wamsley, Christy Wamsley, Michele Wamsley, and Lilas Wamsley, Plaintiffs-Respondents, v. James C. BRYAN, Defendant-Appellant\", \"name_abbreviation\": \"Mattson v. Bryan\", \"decision_date\": \"1968-12-02\", \"docket_number\": \"No. 10016\", \"first_page\": \"587\", \"last_page\": \"595\", \"citations\": \"92 Idaho 587\", \"volume\": \"92\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:00:30.058226+00:00\", \"provenance\": \"CAP\", \"judges\": \"TAYLOR, McQUADE, McFADDEN and SPEAR, JJ., concur.\", \"parties\": \"Gerald MATTSON, Guardian ad Litem for Walter Wamsley, Christy Wamsley, Michele Wamsley, and Lilas Wamsley, Plaintiffs-Respondents, v. James C. BRYAN, Defendant-Appellant.\", \"head_matter\": \"448 P.2d 201\\nGerald MATTSON, Guardian ad Litem for Walter Wamsley, Christy Wamsley, Michele Wamsley, and Lilas Wamsley, Plaintiffs-Respondents, v. James C. BRYAN, Defendant-Appellant.\\nNo. 10016.\\nSupreme Court of Idaho.\\nDec. 2, 1968.\\nBrown, Peacock & Keane, Kellogg, for appellant.\\nPaul C. Keeton and D. K. Worden, Jr., Lewiston, for respondents.\", \"word_count\": \"4807\", \"char_count\": \"28715\", \"text\": \"SMITH, Chief Justice.\\nRespondents (plaintiffs) Wamsleys, minors, brought this action by their guardian ad litem for recovery of damages on account of the alleged wrongful death of their mother, Marian Wamsley, aged 38 years. The death of Mrs. Wamsley resulted January 15, 1966, when an automobile in which she was riding, driven by appellant (defendant) James C. Bryan, collided with a truck, driven by one Udell Anderson. The present appeal is from a judgment of $44,500 entered on the verdict returned by the jury against appellant in favor of respondents and from an order denying appellant's motion for a new trial.\\nMarian Wamsley divorced her husband, father of the children, during the year 1961. Mrs. Wamsley was the custodian of the children. Her income was -$240 a month which she received as child support money from her former husband. For some time prior to her death she had been attending a teacher's normal school or college in Lewiston, Idaho; she had not as yet received a teacher's certificate.\\nAppellant, a married man, had met Mrs. Wamsley two or three times prior to the night January 14-15, 1966. Appellant did not reveal his marital status to Mrs. Wamsley.\\nDuring the evening in question, appellant met Mrs. Wamsley about 9:00 p.m., in a Lewiston night club. Appellant testified Mrs. Wamsley had been drinking prior to her arrival at the club, and that while there he had a beer and she a mixed drink; that they then proceeded to Ahsahka, where they purchased three beers which they consumed in appellant's automobile; that they next proceeded to a club in Orofino where appellant had a beer and she a mixed drink; that upon leaving the club in Orofino, they parked a while at a closed service station, and then purchased gasoline at another station in Orofino; that during the return trip toward Lewiston, both slept from time to time, in appellant's car parked by the'side of the highway. Appellant further stated that while Mrs. Wamsley did not object to his driving, she did say, addressing appellant, \\\"You are sleepy and you are tired. Would you let me drive\\\"; and again, that she stated, \\\"she knew I was tired and says, 'How about me driving? Can I drive?' I said, 'no, I will drive my own car.' \\\"\\nAppellant further testified that as to the rest of the trip Mrs. Wamsley intermittently slept with her head on the front seat; that she was \\\"more or less intoxicated,\\\" and at the time of the accident he, appellant, did not know if Mrs. Wamsley was awake or asleep.\\nAt approximately 6:00 a.m. of January 15, appellant, proceeding in a westerly direction, on U. S. Highway 95 about 3 miles east of Lewiston, collided head-on with the truck. The accident occurred in the eastbound lane, which was appellant's left-hand, and wrong, lane of traffic. Mr. Anderson, driver of the truck, testified that appellant's automobile, after having been operated in an erratic manner, suddenly veered into his (Anderson's) lane of traffic, where the two vehicles came together. Both vehicles left skid marks \\u2014 the bread truck 32 feet 6 inches and appellant's vehicle 57 feet 6 inches.\\nAppellant testified he had no recollection of the cause of the accident; that the last he remembered Mrs. Wamsley was lying with her head on the front seat of his automobile. He stated he might have gone to sleep at the wheel or he might have \\\"blacked-out\\\"; that he had had blackouts as a result of a 1965 industrial accident; that these blackouts had occurred on one or two previous occasions while he was driving, but that Mrs. Wamsley had no knowledge of such affliction.\\nMr. Bishop, an investigating officer, testified that at the time and place of the collision, the road was very slick. Officer Bishop also stated that in his opinion appellant was intoxicated at the time of the accident.\\nRespondents, in their complaint, alleged that at the time of the collision Mrs. Wamsley was a passenger in a motor vehicle owned and operated by appellant and that the accident was the direct result of appellant's intoxication, his gross negligence in driving on the wrong side of the highway in the face of visibly oncoming traffic, and his failing to take even slight care to avoid the collision.\\nAppellant, in his answer, after denying the material allegations of the complaint, affirmatively pleaded that Mrs. Wamsley knew, or should have known, that appellant had imbibed intoxicating beverages immediately prior to the accident; that hence she assumed the risk of any injury in riding with appellant and such conduct was imputed to respondents; that she knew at the time of the accident appellant was sleepy or groggy and therefore she assumed the risk of any injury by riding with him, which conduct was imputed to respondents.\\nOn voir dire examination appellant's counsel asked a prospective juror whether he would be prejudiced against a married man going out with a woman not his wife. The trial court sustained respondents' objection to the question, which ruling appellant assigns as error.\\nAppellant contends that such ruling unduly restricted the scope of his voir dire examinations \\u2014 that because of the ruling he could not inquire into the juror's state of mind concerning the subject matter of the question. He points to evidence adduced at the trial which shows that he was a married man in company with a woman not his wife during the evening the accident occurred. He contends that such showing resulted in the jury being prejudiced against him, and that such prejudice contributed inter alia to the rather large amount of the verdict awarded in respondents' favor.\\nI.R.C.P. 47(a) provides that \\\"(t)he court shall permit the parties or their attorneys to conduct the examination of prospective jurors under its supervision.\\\" I.C. \\u00a7 19-1905 states that \\\"(t)rial juries for criminal actions are formed in the same manner as trial juries in civil actions.\\\"\\nThe basic rule on voir dire examination is set forth in the recent assault and battery case of State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967). Although that was a criminal case and the one here is a civil case, I.C. \\u00a7 19-1905 indicates that in this area no distinction is to be drawn on a criminal-civil basis. In that case, the trial judge sustained an objection to a question by counsel on voir dire examination as to whether a prospective juror entertained any bias or moral compunction about physical violence which would cause her to be prejudiced against one charged with aggravated battery. This Court in holding that such ruling did not constitute reversible error, stated:\\n\\\"The rule in this jurisdiction is that great latitude is allowed in the examination of veniremen upon their voir dire for the purposes of determining whether there is sufficient ground to challenge the veniremen for statutory cause, I.C. \\u00a7 19-2017 to. 19-2022, or whether it is expedient to challenge them peremptorily, I.C. \\u00a7 19-2015 and 19-2016. The scope of' voir dire, examination of veniremen in a criminal case, however, is a matter resting in the discretion of the trial court, the exercise of which will not be reversed except in case of abuse. State v. Miller, 60 Idaho 79, 88 P.2d 526; State v. Hoagland, 39 Idaho 405, 228 P. 314. See especially, Frame v. Grisewood, 81 Nev. 114, 399 P.2d 450 (1965) [a civil case].\\\"\\nIn State v. McKeehan, supra, counsel was permitted to ask jurors whether the mere charge of battery in itself .would prejudice them against the accused. The Mc-Keehan case thus is consistent with State v. Miller, supra, which held that the trial judge committed reversible error in sustaining an objection to a question regarding prejudice against the use of intoxicating liquors when the issue concerned driving while intoxicated. The rule emerges from those cases, that although interrogations on voir dire cannot require prospective jurors to take a particular view of evidence to be adduced at trial, the inquiries may ascertain whether the fact of the accusation of a particular offense elicits any prejudice on their part.\\nIn the case at bar the question of prejudice against a man consorting with a woman other than his wife did not concern the legal question of alleged gross negligence in the operation of a motor vehicle, but ' concerned certain other evidentiary facts which might later be adduced at trial. It now appears that it was important, from appellant's standpoint to ascertain, if possible, any personal prejudice or animosity that any one or more of the prospective jurors might have in event the evidence would disclose that appellant had been consorting with a woman other than his wife on the night the accident occurred. The record, however, fails to disclose that the fact such evidence might be adduced was ever called to the trial judge's attention; this is not contained in the pleadings. If appellant felt this was sufficiently important to securing a wholly unprejudiced and fair-minded jury, he should in some manner have acquainted the trial judge with the reason why it was deemed important that this particular question be answered. Without a showing that the trial court was thus timely advised, the ruling was not reversible error.\\nThis holding is in accord with those of other jurisdictions which have considered the effect of sustaining or overruling similar questions on voir dire. See 99 A.L. R.2d 7. In instances where the objections to questions concerning more or less immoral activities were sustained, the courts on review, have taken the view that jurors were being asked hypothetical questions which concerned facts which might be developed by the testimony at trial. See State v. Sheppard, 100 Ohio App. 345, 128 N.E. 2d 471, 60 Ohio Op. 298 aff'd 165 Ohio St. 293, 135 N.E.2d 340, 59 Ohio Op. 398, cert. den. 352 U.S. 910, 77 S.Ct. 118, 1 L.Ed.2d 119, reh. den. 352 U.S. 955, 77 S.Ct. 323, 1 L. Ed.2d 245 (Ohio 1955); Commonwealth v. Van Horn, 188 Pa. 143, 41 A. 469 (1898); Hughes v. State, 109 Wis. 397, 85 N.W. 333 (1901); People v. Rigney, 55 Cal.2d 236, 10 Cal.Rptr. 625, 359 P.2d 23, 98 A.L.R. 2d 186 (1961). Those cases have application to the present case wherein the evidence-developed the fact that appellant was a married man in company with a woman not his wife during the evening the accident occurred. The other line of cases in this area holds that the trial court did not err in overruling objections to questions similar to the one propounded herein on voir dire examination. State v. Greene, 74 R.I. 437, 60 A.2d 711 (1948); Jones v. People, 23 Colo. 276, 47 P. 275 (1896); State v. Farley, 48 Wash.2d 11, 290 P.2d 987, cert. den. 352 U.S. 858, 77 S.Ct. 79, 1 L.Ed.2d 65 (1955). Cf. State v. Pettit, 33 Idaho 326, 193 P. 1015 (1920).\\nAppellant assigns as error the refusal of the trial court to grant his motion for mistrial when respondents' counsel, in his opening statement, made reference to appellant's prior plea of guilty to an involuntary manslaughter charge arising out of the same collision. Respondents' counsel, in cross-examination of appellant, also referred to the criminal proceeding and to appellant's conversations with police officers. Respondents later abandoned this tactic and adduced no proof of the guilty plea. Appellant claims it was error to allow respondents to relate facts to the jury in the opening statement, and then fail to adduce proof thereof, in that such prevented appellant's explanation of the facts.\\nHad respondents adduced proof of the guilty plea, the plea would have been admissible as an admission by a party against interest. This Court considered the question of admissibility in Koch v. Elkins, 71 Idaho, 50, 225 P.2d 457 (1950). There, the question was whether a plea of guilty to a criminal charge of reckless driving could be introduced in a subsequent civil action for recovery of damages for personal injuries. The Court, citing authority, held: \\\"A plea of guilty to a criminal charge, which alleges facts that are in issue in a civil action, is admissible against the party entering the plea as an admission against interest.\\\"\\nHowever, respondents adduced no proof as to this plea. Appellant contends that since respondents brought before the jury that which was not proved, such constituted reversible error. The issue thus is whether the remarks included in the opening statement of respondents' counsel, so inflamed the jury that appellant's motion for mistrial should have been granted, and whether any prejudice on the part of the jury could subsequently be cured by an instruction to the jury.\\nThe effect of the mention by counsel, of prior criminal or civil proceedings in the course of later proceedings has been considered in other jurisdictions. Some courts have held such to be reversible error, while others have held it either not error or error correctible by instructions. 118 A. L.R. 543. An example where reversal was thought necessary is Duval v. Inland Navigation Co., 90 Wash. 149, 155 P. 768 (1916). There, in an action for damages for personal injuries and false arrest, plaintiff's counsel stated that defendant's agent had been arrested and found guilty of assault. The court stated, as dictum (since there were other errors requiring reversal), \\\" bringing before the jury in an opening statement facts which are entirely irrelevant to the issues to be tried, and deliberately interrogating witnesses concerning a matter which has no bearing upon the issues, may easily be so highly prejudicial as not to be curable by instructions.\\\" Cf. Fisher v. Pennsylvania Co., 34 Pa.Super. 500 (1907). On the other hand, no reversal was held necessary in the case of Barr v. Clinton Bridge Works, 179 Iowa 702, 161 N.W. 695 (1917). In that action on a contract, plaintiff's counsel remarked in his opening statement that defendant had been indicted eight times previously for his dealings. The appellate court refused to reverse on grounds of prejudice, stating, \\\"It is conceded that defendant's objection to the opening statement was sustained by the court, and we think it must be presumed that the jury gave attention to the ruling and was not misled thereby to the defendant's prejudice.\\\" Cf. Crawl v. Dancer, 180 Mich. 607, 147 N.W. 495 (1914).\\nA general discussion of the scope and function of the opening statement of counsel is set forth in Miller v. Braun, 196 Kan. 313, 411 P.2d 621 (1966):\\n\\\"The opening statements of counsel are generally no more than outlines of anticipated proof and are not intended as a complete recital of the facts to be produced on contested issues. Their purpose is to inform the jury in a general way of the nature of the action and defense; to advise it of the facts relied upon by the party to make up his cause of action or defense, and to define the nature of the issues to be tried and the facts intended to be proved, so as to better enable it to understand the case. [citations omitted]\\n\\\"Generally speaking, counsel may outline in his opening statement what he expects to prove unless it is manifest that such proof would be incompetent, or the statement is made for the purpose of creating prejudice. Counsel should be allowed considerable latitude in his opening statement and its general nature and character rests largely with the discretion of the district court, which must necessarily rely on the good faith of counsel properly to confine his remarks within the bounds of propriety and good faith. Since whatever counsel states in his opening statement as to what he expects to prove is subject to the further action of the court in permitting him to introduce testimony, it is not necessarily misconduct for him to claim something he does not later prove. (88 C.J.S. Trial \\u00a7 161, p. 314.) The rule is stated in 53 Am.Jur., Trial \\u00a7 456, p. 358, as follows:\\n\\\" 'It is generally held that statements by counsel that certain evidence will be introduced are not improper if made in good faith and with reasonable ground to believe that the evidence is admissible, even though the intended proof referred to is afterward excluded. However, in the absence of good faith, or where prejudice is clearly produced, whether as the result of accident, inadvertence, or misconception, the rule is to the contrary. ' \\\"\\nIn the case at bar, evidence of appellant's guilty plea, had it been offered in the trial court, would have been admissible. The plea was relevant, since it concerned the same legal question at issue in the civil action; nor is there anything in the record indicating that mention by respondents' counsel of appellant's guilty plea was not in good faith. The trial court did not err in overruling appellant's motion for mistrial, since at the time the motion was made, the court could not know what evidence would later be adduced. Moreover, no apparent prejudice to appellant resulted from such ruling, inasmuch as the trial court later gave curative instructions to' the jury regarding the criminal charges, and the evidence amply supports the finding of gross negligence without reference to the criminal proceedings.\\nIn State v. Urie, 92 Idaho 71, 437 P.2d 24 (1968), this Court considered the question whether an instruction could cure the erroneous admission in evidence of a showing that the defendant, at the time of trial, was confined in the penitentiary as the result of a previous conviction. That error was held to be rectified by a proper instruction. The remarks of counsel regarding prior criminal proceedings cannot be considered to be any more prejudicial than the introduction in evidence of prior criminal proceedings.\\nIn the case at bar, the trial court gave two instructions admonishing the jury to disregard the mentioned but unproved guilty plea. These instructions are clear and concise. If there is sufficient evidence in the record which will support the finding of the jury, we must presume that the jurors heeded those instructions.\\nThere is indeed ample evidence in the record, apart from appellant's guilty plea to the charge of involuntary manslaughter, to support the finding of appellant's gross negligence.\\nFirst, appellant's testimony shows that both he and Mrs. Wamsley had been drinking prior to the accident. Appellant also admitted that prior to the accident he was very tired; that Mrs. Wamsley had told him he appeared tired and had inquired if she might drive appellant's automobile, and that he refused to let her drive. Moreover, an officer who investigated the accident testified that in his opinion appellant was intoxicated.\\nSecond, Udell Anderson, driver of the truck, testified that appellant's vehicle, after being operated in an erratic manner, suddenly swerved into his, Anderson's, lane of traffic and crashed headlong into his truck. Appellant testified that he remembered none of the details of the accident, but that he might have fallen asleep or blacked out. Mrs. Wamsley had already told him, by his own admission, that he looked tired, and several times they pulled off the highway into turnouts for periods of rest. As for the blackouts, appellant testified that he had at times suffered the same (and one or two while driving) subsequent to a 1965 industrial accident.\\nAny of these three sets of facts \\u2014 intoxication, falling asleep after being warned, or driving with a known propensity to black out \\u2014 could constitute evidence from which a jury would be justified in finding gross negligence. Given these facts, respondents' mention to the jury (in the opening statement) of appellant's guilty plea in the prior criminal proceeding did not operate to the prejudice of appellant; and any prejudice which might have resulted therefrom was adequately cured by the trial court's instructions to the jury to disregard such incident.\\nAppellant next assigns as error the refusal of the trial court to instruct the jury to the effect that Mrs. Wamsley was guilty of contributory negligence in going to sleep and not exercising reasonable care and caution for her own safety.\\nThe trial court gave several instructions dealing with the defense of contributory negligence, but declined to give the requested instruction based specifically on the \\\"sleep theory.\\\" There was no direct evidence that Mrs. Wamsley was asleep at the time of the accident. When specifically asked whether she was asleep, appellant testified, \\\"I don't know.\\\" In order to show that Mrs. Wamsley was guilty of contributory negligence under that theory, appellant would have had to show by a preponderance of the evidence that she was asleep. He did not do so; his testimony in the premises in effect was that it was as likely that Mrs. Wamsley was not asleep as that she was asleep. Under the \\\"sleep\\\" theory, he failed to carry his burden of proof. Dent v. Hardware Mutual Casualty Co., 86 Idaho 427, 388 P.2d 89 (1964); Splinter v. City of Nampa, 74 Idaho 1, 256 P.2d 215 (1953). Hence the court did not err in refusing to instruct on that theory of contributory negligence.\\nAppellant also assigns error of the trial court in giving jury instruction No. 11, defining ordinary negligence in a case where recovery could be had only for gross negligence. Appellant contends that such an instruction would have the effect of unduly confusing the jury and lead to the application of the standard of ordinary negligence, where a showing of gross negligence is necessary to sustain a finding of liability. However, the instructions taken as a whole amply show that the standard to be applied is that of gross negligence. In fact, the complained-of instruction No. 11, begins as follows: \\\"Plaintiff's [respondent's] case is based on his claim that there was gross negligence on the part of the defendant [appellant] which directly and proximately caused his [respondent's] damage.\\\" Instruction No. 5 commences: \\\"The plaintiffs have the burden of proving the following propositions: FIRST: That the defendant was grossly negligent and that his gross negligence caused the accident in question.\\\" Instruction No. 6 sets forth I.C. \\u00a7 49-1401, the automobile guest statute, requiring proof of gross negligence in order that liability attain in a case such as the one at bar. Finally, the court gave a specific instruction on \\\"gross negligence.\\\"\\nAll instructions to a jury must be taken as a whole. In the absence of a showing to the contrary, we must assume that the jury applied the law as so given to the facts. Although the trial court deemed it necessary to instruct the jury on ordinary negligence as an aid to understanding the concept of gross negligence, Hayslip v. George, 92 Idaho 349, 442 P.2d 759 (1968), nevertheless, the instructions made it quite clear that recovery must be predicated on a showing of gross negligence; hence the giving of an instruction defining ordinary negligence was not error.\\nAppellant complains that the verdict of $44,500. is excessive inasmuch as Mrs. Wamsley's only support was the $240. per month child support payments.\\nAt the time of her death, Mrs. Wamsley had four minor children, ages 14, 12, 9 and 2. They were under her exclusive care, custody and control. In view of their ages, the amount of $11,125. per child was not excessive. Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651 (1950).\\nFinally, appellant contends that the trial court erred in denying appellant's motion for a new trial. There is no merit in his contention. The granting or refusal of such a motion rests in the sound discretion of the trial court, not to be disturbed except in cases of manifest error. Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967); Cassia Creek Reservoir Co. v. Harper, 91 Idaho 488, 426 P.2d 209 (1967).\\n- Judgment affirmed. Costs to respondents.\\nTAYLOR, McQUADE, McFADDEN and SPEAR, JJ., concur.\\n. \\\"(W)e would prove as part of our case here that following this unfortunate accident that Mr. Bryan pleaded guilty in this court to a charge under Idaho Code 18-4006, to involuntary manslaughter and that a part of this charge is the driving (sic) the vehicle without circumspection and with gross negligence.\\\"\\n. S.L.1953, ch. 273, regulating traffic on the highways and defining certain crimes in the use and operation of vehicles is codified as I.C. \\u00a7 49-501 to 49-506 and 49-1001 to 49-1126, incl., see compilers notes I.C. \\u00a7 49-1104. I.C. \\u00a7 49-1119 as so codified reads, \\\"No evidence of the conviction of any person for any violation of this act shall be admissible in any court in any civil action.\\\" A plea of guilty, not to an offense specified in the motor vehicle act, but to the offense of involuntary manslaughter under I.C. \\u00a7 18 \\u2014 4006, would not fall under the ban of I.C. \\u00a7 49-1119, and would be admissible in a subsequent civil action arising out of the same event. To that extent the holding of Koch v. Elkins, supra, is still valid.\\n. State v. Urie holds: \\\"Appellant further contends that admission of State's Exhibit F was error in that it was not a proper matter for rebuttal and that it contained information highly prejudicial to his case \\u2014 namely, that he was presently being confined in the state penitentiary as a result of a previous conviction.\\n\\\"There is no merit to either contention. State's Exhibit F was introduced solely to explain what had transpired at the preliminary hearing in probate court between the time that the criminal complaint against Fraley and Urie was filed (Appellant's Exhibit 4) and the dismissal of charges as to Fraley (Appellant's Exhibit 5) because appel lant refused to testify therein. Moreover, any prejudicial matter contained in Exhibit E was cured by the trial court's explicit admonition to the jury to totally disregard any information concerning appellant's prior conviction in connection with the offense for which he was presently being tried. State v. Ramsbottom, 89 Idaho 1, 402 P.2d 384 (1965); State v. McConville, 82 Idaho 47, 349 P.2d 114 (1960); State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959) ; State v. Autheman, 47 Idaho 328, 274 P. 805, 62 A.E.R. 195 (1929); and State v. Knutson, 47 Idaho 281, 274 P. 108 (1929). These authorities definitely establish the rule that in Idaho an error in admission of evidence may be cured by a proper instruction, and it must he presumed that the jury obeyed the trial court's instruction to disregard entirely the objectionable testimony.\\\"\\n. Instruction No. 2. (Excerpt) \\\"Arguments, statements, and remarks of counsel are intended to help you in understanding the evidence and applying the law, but are not evidence. If any argument, statement, or remark has no basis in evidence, then you should disregard that argument, statement, or remark.\\\"\\nInstruction No. 28. \\\"You are instructed that during this trial reference has been made on occasion to the fact that Mr. Bryan was charged with a crime as the result of the automobile accident which happened on January 15, 1966. The Court instructs you that no evidence has been introduced on this fact and that, therefore, you are not to consider whether or not Mr. Bryan was charged with any crime as the result of this accident in your deliberations.\\\"\\n. Appellant's requested instruction:\\n\\\"I instruct you that even though Marian Wamsley, as a passenger in the automobile, was not under the same or similar duty or obligation of care or\\nwatchfulness that the driver was, nevertheless, she was charged with exercising reasonable care and caution for her own safety, and this required her not to rely blindly upon the exercise of care and caution by the driver, but to take lieed of all those facts and circumstances which may have been plainly visible to her, and as much a warning to her as to the driver, and particularly with reference to the acts of the driver.\\n\\\"Therefore, if you find circumstances existed which would herald danger to a reasonably prudent person, and you further find that Marian Wamsley went to sleep while a passenger in the car, you must consider whether a reasonably prudent person would have gone to sleep under the facts in this case.\\n\\\"Should you find that Marion Wamsley was contributorily negligent in going to sleep and such negligence was a proximate cause of her death, then Gerald Mattson may not recover in this case.\\\"\\n. Instruction No. 18: You are instructed that gross negligence means that there must be more than ordinary negligence, for the two are distinguishable, the distinction being one of degree. Gross negligence means just what it indicates, gross or great negligence; that is, negligence in a very high degree.\"}"
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+"{\"id\": \"2356611\", \"name\": \"GEM VALLEY RANCHES, INC., a corporation, Plaintiff-Respondent, v. James SMALL and Ruth Small, husband and wife, Defendants, Third-Party Plaintiffs, and Appellants, v. SECURITY TITLE INSURANCE CO., a corporation, A. W. Moulton, its President, A. W. Moulton, in his Individual capacity, and Harold J. Pitkin, Third-Party Defendants\", \"name_abbreviation\": \"Gem Valley Ranches, Inc. v. Small\", \"decision_date\": \"1968-03-28\", \"docket_number\": \"No. 10069\", \"first_page\": \"232\", \"last_page\": \"235\", \"citations\": \"92 Idaho 232\", \"volume\": \"92\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:00:30.058226+00:00\", \"provenance\": \"CAP\", \"judges\": \"SMITH, C. J., and TAYLOR, Mc-QUADE, and SPEAR, JTJ., concur.\", \"parties\": \"GEM VALLEY RANCHES, INC., a corporation, Plaintiff-Respondent, v. James SMALL and Ruth Small, husband and wife, Defendants, Third-Party Plaintiffs, and Appellants, v. SECURITY TITLE INSURANCE CO., a corporation, A. W. Moulton, its President, A. W. Moulton, in his Individual capacity, and Harold J. Pitkin, Third-Party Defendants.\", \"head_matter\": \"440 P.2d 352\\nGEM VALLEY RANCHES, INC., a corporation, Plaintiff-Respondent, v. James SMALL and Ruth Small, husband and wife, Defendants, Third-Party Plaintiffs, and Appellants, v. SECURITY TITLE INSURANCE CO., a corporation, A. W. Moulton, its President, A. W. Moulton, in his Individual capacity, and Harold J. Pitkin, Third-Party Defendants.\\nNo. 10069.\\nSupreme Court of Idaho.\\nMarch 28, 1968.\\nAs Modified on Denial of Rehearing May 15, 1968.\\nWilliam R. Padgett, Meridian, for appellants.\\nEberle & Berlin, Boise, for appellee.\", \"word_count\": \"1790\", \"char_count\": \"10707\", \"text\": \"McFADDEN, Justice.\\nJames Small and his wife, Ruth Small, appellants, have appealed from an order of the district court which modified an order to show cause issued subsequent to a sheriff's sale of mortgaged real property. This appeal involves the same property before this court in Gem Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966). Therein, this court affirmed the decree of the district court which held that a certain transaction between Gem Valley Ranches, Inc., and the Smalls was a mortgage, and established the amount due on the mortgage. However, this court reversed that portion of the judgment granting strict foreclosure, and instructed the trial court to enter judgment providing for foreclosure and sale as provided by I.C. Title 6, Chapter 1, and Title 11, Chapters 3 and 4.\\nFollowing remand the trial court entered a supplemental judgment and decree of foreclosure on April 1, 1966. Therein the debt due by the Smalls to Gem Valley Ranches, Inc., was fixed as $310,698.43, and the sheriff was directed to sell the property in satisfaction of that obligation.\\nSale took place on April 28, 1966, pursuant to the order and respondent Gem Valley Ranches, Inc., the judgment creditor, was the purchaser at the sale. During the period of the year redemption could be made, respondent filed with the court and served upon appellants two certificates showing additional expenditures made, rentals received, and computation of interest accrued. The first certificate, filed April 10, 1967, set forth as of that date after crediting rentals, that the amount of the judgment with accrued interest was $371,509.76; the second certificate, filed April 25, 1967, showed additional expenditures, with accrued interest to April 21, 1967, which brought the total due to be $373,382.78, with interest accruing thereafter in the amount of $77.23 per day.\\nOn April 28, 1967 (the last day of the redemption period), appellants demanded an accounting of the rents and profits, which demand recited it was made pursuant to the provisions of I.C. \\u00a7 11-407. On May 3, 1967, an accounting was filed by respondent, and respondent moved for an ex parte order of conveyance of the property. The motion was granted the day it was filed, and the court ordered delivery of a deed by the sheriff unless redemption was made. I.C. \\u00a7 11-407 provides, among other things, that upon filing of an accounting, the date of redemption is extended by five days, which made May 8, 1967, the final date for redemption.\\nOn May 8, 1967, appellants filed a motion for an order to show cause why the redemption date should not be extended. In support of the motion, appellants filed an affidavit alleging that the accounting of the rents and profits was not correct; that the certificates of expense previously filed by respondent were not correct; that respondent had interfered with appellants' right to redeem; and that respondent was guilty of waste.\\nOrder to show cause and a temporary restraining order was issued, holding the cause in abeyance until May 18, 1967, or further order of the court. Respondent moved to quash this order. Hearing was held May 15, 1967, and respondent's motion to quash was denied, but the order to show cause was amended. The amended order to show cause dated May 15, 1967, provided that appellants had until 5:00 p. m., May 16, 1967, to redeem the property with the amount for redemption being fixed at $375,236.30; that redemption could be effected by paying respondent $365,236.30 and depositing with the court $10,000.00 to be held pending determination of certain disputed items. The order then provided that if appellants paid the sums fixed as necessary to redeem, the respondent would be required to submit itemized accounts, with five days thereafter within which appellants could object. Pending outcome of any items objected to, the $10,000.00 to be held by the court would be disbursed either to the appellants or respondent as the case may be. The order also provided in the event of a failure to redeem by 5:00 p. m. on May 16, 1967, the sheriff was to issue a deed to the properties sold at the sheriff's sale. Notice of appeal from this order was prepared and served the same day and filed May 17, 1967.\\nThe appellants never tendered any amount in redemption of the property. The appellants' specifications of error are:\\n1. The court erred in failing to order a proper accounting prior to the redemption.\\n2. The court erred in awarding ac- . countant and attorney fees.\\n3. The court erred in allowing credit of $10,000.00 as rent.\\nIn answer to these specifications of error, it is to he pointed out that no appeal was taken from the supplemental judgment entered subsequent to remand this court. The judgment did not break down the component parts of the total sum \\\"by way of amount due on the principal sum, the amount due for attorney's fees, etc., but entered only one sum for and as -a total sum to be paid from the proceeds of the sheriff's sale. Upon respondent purchasing the property at sheriff's sale, it became substituted to and acquired all right, title, claim and interest of appellants in the property, subject to the right of redemption. Keel v. Vinyard, 48 Idaho 49, 279 P. 420 (1929); Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928). Unless a redemption is effecutated by the judgment debtor or redemptioner, the purchaser is entitled to all the rents, profits and income during the period of redemption. I.C. \\u00a7 11-407. Northwestern & Pac. Hypotheek Bank v. Dalton, 44 Idaho 120, 256 P. 93 (1927). Should a redemption be made, however, the amount of rents and profits \\\"shall be a credit upon the redemption money to be paid .\\\" I.C. \\u00a7 11-107.\\nAppellants assert they could not determine the amount to be paid for redemption without determination of the amount of moneys received as rentals on the property. This proposition ignores the basic concept of redemption after mortgage foreclosure and sale of the property. The \\u00e1mount needed to redeem the property is fixed in the first instance by the amount bid at the sheriff's sale, plus interest and additional expenses, and amounts paid on \\\"any assessment or taxes which the purchaser may have paid thereon after the commencement of the action and which are not included in the judgment I.C. \\u00a7 11-402. Credit is given for rents and profits received by the purchaser during the period of redemption. I.C. \\u00a7 11-407. The statutes involved require the judgment debtor or redemptioner to pay the purchaser the amount of the purchase with the adjustments recognized. I.C. \\u00a7 11-402. The right to demand a statement of rents and profits by the judgment debtor or redemptioner is spelled out by I.C. \\u00a7 11-407, and upon such demand being made, the period for redemption is extended for five days after the filing of the accounting. The mortgagor in effect has no other rights in the property until such time as a valid tender or payment has been made. Kelley v. Clark, 23 Idaho 1, 129 P. 921 (1912).\\nIn the instant case, appellants contend they are entitled to a full and complete accounting without the necessity of making a redemption. Appellants in complaining of the trial court's failure to order a full accounting are asking the court to exercise its equity powers, yet they refuse to recognize the necessity of themselves also doing equity by making a payment of the amount due to redeem, or in the alternative, to make a valid subsisting tender. Kelley v. Clark, supra. Machold v. Farnan, 20 Idaho 80, 117 P. 408 (1911). In the instant case, the court fixed the amount needed for redemption\\u2014 $375,236.30, of which sum $365,236.30 was to be paid to the purchaser-\\u2014the respondent \\u2014and the remaining $10,000.00 deposited into court to be disbursed after issues complained of were settled by subsequent proceedings. It is our conclusion that the trial court did not err in this order, primarily for the reason that appellants failed to make the required payment or make a valid subsisting tender of the sums required.\\nAs concerns the award of accountant's and attorney's fees, it is to be re called that the supplemental judgment did not itemize or specify any sum as attorney's fees. The only mention of accountant's and attorney's fees comes in the trial court's order appealed from and that had reference to an allowance for such fees incurred after May 2, 1967.\\nAppellants claim that I.C. \\u00a7 11-402 prohibits the allowance of attorney's fees unless \\\"actually paid by the judgment creditor or which the judgment creditor has by written instrument become unconditionally obligated to pay to his attorney for prosecuting his claim to judgment .\\\" I.C. \\u00a7 11-402. However, appellant overlooks the fact that the above-quoted section of I.C. \\u00a7 11 \\u2014 402 is prefaced by the following statement: \\\"provided, in mortgage foreclosure proceedings, the amount necessary to redeem the property sold under execution shall not include any sum for attorney's fees greater than the fee actually paid,\\\" etc.\\nThe amended order provided for fees incurred subsequent to May 2, 1967, which were incurred by reason of the motion and any subsequent accountings. Such fees were not included in \\\"the amount necessary to redeem the property sold under execution \\\" (I.C. \\u00a7 11-402), and hence there was no necessity for complying with that section. The trial court did not err in this regard.\\nThe last specification of error is without merit. Appellants claim the court erred in allowing a credit of $10,000.00 as rent. On the face of it, appellants are claiming the court erred in giving them the benefit of the payment. Even if it be assumed that appellants inferred that the court erred in allowing only $10,000.00, credit, there still is no merit to the specification of error. Until a redemption or valid tender was made of the amounts due, appellants had only a contingent interest in the property. If the valid tender or payment was made, their interest in the property would have been restored, and then they would be in a position to complain.\\nThe order of the trial court is affirmed. Costs to respondent.\\nSMITH, C. J., and TAYLOR, Mc-QUADE, and SPEAR, JTJ., concur.\"}"
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+"{\"id\": \"2358948\", \"name\": \"L. M. TURNBOO and Rodney Turnboo, Plaintiffs-Appellants, v. Lawrence KEELE, Al and James M. Fleishman, d/b/a Fleishman Lumber Company, John H. (Jack) Henley and Goldie E. Henley, husband and wife, and Walter D. Bennett and F. W. Bennett, individually and d/b/a F. W. Bennett & Son, Defendants-Respondents\", \"name_abbreviation\": \"Turnboo v. Keele\", \"decision_date\": \"1963-07-10\", \"docket_number\": \"No. 9234\", \"first_page\": \"101\", \"last_page\": \"108\", \"citations\": \"86 Idaho 101\", \"volume\": \"86\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:40:26.216918+00:00\", \"provenance\": \"CAP\", \"judges\": \"McQUADE, McFADDEN, TAYLOR and SMITH, JJ., concur.\", \"parties\": \"L. M. TURNBOO and Rodney Turnboo, Plaintiffs-Appellants, v. Lawrence KEELE, Al and James M. Fleishman, d/b/a Fleishman Lumber Company, John H. (Jack) Henley and Goldie E. Henley, husband and wife, and Walter D. Bennett and F. W. Bennett, individually and d/b/a F. W. Bennett & Son, Defendants-Respondents.\", \"head_matter\": \"383 P.2d 591\\nL. M. TURNBOO and Rodney Turnboo, Plaintiffs-Appellants, v. Lawrence KEELE, Al and James M. Fleishman, d/b/a Fleishman Lumber Company, John H. (Jack) Henley and Goldie E. Henley, husband and wife, and Walter D. Bennett and F. W. Bennett, individually and d/b/a F. W. Bennett & Son, Defendants-Respondents.\\nNo. 9234.\\nSupreme Court of Idaho.\\nJuly 10, 1963.\\nAllen R. Derr, Boise, for appellants.\\nHall & Rowett, Mountain Home, for respondents.\", \"word_count\": \"2199\", \"char_count\": \"12996\", \"text\": \"KNUDSON, Chief Justice.\\nAppellants commenced this action to recover an amount allegedly due them for cutting timber and to foreclose their logger's lien which was subscribed to and filed on November 16, 1960.\\nNeither the date of filing the original complaint nor the names of the parties defendant therein are disclosed by the record. The record does show that on April 17, 1961, respondents Jack Henley and Walter Bennett filed a motion to dismiss the action as to them alleging that the complaint failed to state a claim against them upon which relief could be granted. The motion was granted and appellants were authorized tu file an amended complaint.\\nThe amended complaint was filed September 26, 1961, wherein the parties designated as \\\"Defendants-Respondents\\\" in the title of this cause were named defendants.\\nOn October 17, 1961, respondents John H. (Jack) Henley and Goldie E. Henley, husband and wife, and Walter D. Bennett and F. W. Bennett, individually and doing business as F. W. Bennett & Son, filed their motion to dismiss the action as to them upon the ground that the amended complaint failed to state a claim against them upon which relief could be granted. From an order granting said motion and dismissing the action as to said respondents, this appeal is taken. Defendants Lawrence Keele, Al and James Fleishman, doing business as Fleishman Lumber Co., are not parties to this 'appeal. - ~ >\\nThe record does not disclose in what respect the trial court considered the amended complaint to be deficient as to stating a claim against respondents upon which relief could be granted. We shall therefore assume that the claimed deficiencies discussed in respondents' brief constituted the basis for the court's action in granting the motion to dismiss.\\nRespondents correctly assert that appellants' right to the relief sought must be shown to be based on a valid logger's lien. Respondents challenge the validity of the claim of lien in several particulars, one of which is that the notice and claim of lien does not \\\"contain a description of the property to be charged with the lien, sufficient for identification, with reasonable certainty.\\\" The description contained in the notice of lien is as follows:\\n\\\" claim a lien on logs being about 1,400,000 board feet in quantity, which were cut in Elmore County, Idaho, and are now lying in the woods where cut in Elmore County, Idaho, near the Camas Reservoir about 1,350,-000 board feet on property belonging to Jack Henley and about 50,000 board feet on property belonging to Walter Bennett, in Elmore County, State of Idaho,\\nIn considering a contention challenging the sufficiency of compliance with statutory requisites, it should be . kept in mind that a substantial compliance in good faith meets such requirement; that the provisions of our lien statutes must he liberally construed in favor of the claimant with a view to effect their object and promote justice. Seafoam Mines Corp. v. Vaughn, 56 Idaho 342, 53 P.2d 1166; Phillips v. Salmon River Min. & Development Co., 9 Idaho 149, 72 P. 886; Dvbvig v. Willis, 59 Idaho 160, 82 P.2d 95.\\nThe description of the property to be charged with the lien is required to be only such as will be \\\"sufficient for identification.\\\" If there appears enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient.\\nIn Phillips v. Salmon River, etc. Co. (supra) it was held that a description of the mining claim contained in a notice of lien in the following language was sufficient:\\n\\\"The mining claim known as the 'Salem Bar' situated on the Idaho side of the main channel of the Snake river one-half mile north, or down the river from the mouth of the Grande Ronde, in Nez Perce County, Idaho.\\\"\\nIn White v. Constitution Min. & Mill. Co., 56 Idaho 403, 55 P.2d 152, this Court had under consideration a contention that the lien involved was invalid because the description used in the notice included property not subject to the lien and the Court stated:\\n\\\"It does not appear that there was any fraudulent intent, nor that anyone was injured due to the fact that the lien claims may have included more property than necessary or property other than that actually subject to lien. The fact that the notice of a claim of lien or claim or statement describes or includes more than the party is entitled to a lien on does not invalidate nor defeat the lien as to the land or property properly subiect thereto,, if there is nn fraudulent intent and no one is injured thereby, and it is for the court to determine, after hearing all the evidence in the case, what portion of the property shall be subject to the lien.\\\"\\nIn the amended complaint here considered it is alleged that the labor and services were performed by appellants \\\"with the full knowledge and acquiescence of defendants Bennett and defendants Henley\\\" and that \\\"all defendants were given actual notice of said statement of lien.\\\" This record shows that prior to the removal of logs from his property and for the purpose of indemnifying against appellants' claim of lien, respondent John H. (Jack) Henley posted a bond pursuant to the provisions \\u00f3f I.C. \\u00a7 45-417.\\nIn Union Lumber Co. v. Simon, 150 Cal. 751, 89 P. 1077, it is stated in substance that where the controversy involves only the rights of the lien claimants and the owners \\\"unless the description was such as to mislead the owner, any mere lack of accuracy therein is not available as a defense.\\\" It is also stated therein that \\\"whether the description in any particular case is sufficient for identification is a question of fact to be determined by the jury or the court upon a consideration of the circumstances of that case.\\\" We conclude that the description in the notice constitutes substantial compliance with the statutory requirements when considered in connection with respondents' motion to dismiss.\\nRespondents argue that the notice of lien is defective in that it does not recite what species of timber the logs were cut from nor what, if any, marks of identification the logs bear. These contentions are without merit since the statute (I.C. \\u00a7 45-407) does not require that the notice contain such recitals. (The identification of the logs is a matter of proof.) Appellants' notice of lien is substantially in the form mentioned in said statute.\\nRespondents also contend that appellants' lien specifies two periods of employment, the first of which ended on July 10, 1960, which was more than 60 days prior to the filing of the lien (November 16, 1960) and it is impossible to separate the lienable from the non-lienable portions. We do not agree with the construction respondents place upon the wording used. The following quoted portion of the notice of lien contains the statement referred to:\\n\\\"That the said contract has been faithfully performed and full complied with on the part of said L. M. TURNBOO AND RODNEY TURNBOO, who performed labor upon and assisted in felling, limbing and topping said logs for the period of about five months, between the 30th day of May and the 10th day of July, 1960 and between the 25th day of August and the 5th day of November, 1960; and the rendition of said services was closed on the 5th day of November, 1960,\\n' This language neither states nor implies that there were \\\"two periods of employment\\\". At the beginning of the paragraph it states \\\"That the said contract \\\" which plainly refers to the employment agreement as being one contract. It also states that appellants \\\"performed labor for the period of about five months, \\\" which undoubtedly was intended to refer to the period between May 30 and November 5, 1960. The fact that appellants may have actually performed the work within the two periods mentioned in the notice does not establish that there were two separate employment agreements. A proper construction of the language used is that the agreement was a continuing one covering the two periods stated.\\nRespondents further contend that if appellants ever had a lien they lost it as to Goldie E. Henley, F. W. Bennett and F. W. Bennett & Son, since they were not made parties to the foreclosure action within the six months' period as provided by I.C. \\u00a7 45^410. They cite Willes v. Palmer, 78 Idaho 104, 298 P.2d 972 in support of this contention.\\nThe record does not disclose when the respective respondents were made parties to this action, however, it is stated in appellants' brief (page 2) that the respondents named in the next above paragraph were \\\"added\\\" by the filing of the amended complaint. In view of this statement we deem it proper to consider this contention of respondents.\\nRespondents have not filed their answer to either the original or amended complaint. They have not disclosed by any pleading what interest, if any, they or either of them claim in the property involved.\\nIt is alleged in the amended complaint that appellants were employed by an authorized agent of defendants Fleishman and Fleishman Lumber Co., who were contract purchasers of the timber upon which the labor was performed. In answer to interrogatories submitted to Jack Henley, he stated that:\\n\\\"On June 1, 1959, myself and my wife entered into a timber contract to sell the fir timber on the above-described land to J. M. Fleishman, doing business as Fleishman Lumber Company.\\nAlso in answer to interrogatories submitted to Walter Bennett he stated that:\\n\\\"I am a former partner in the partnership known as F. W. Bennett & Son, which formerly owned timber land in Elmore County, Idaho.\\\"\\n\\\"The partnership of F. W. Bennett and Son had a contract with J. M. Fleishman covering timber land owned by it.\\\"\\nIt is apparent that under the amended complaint appellants endeavored to bring in all parties known to them to have or claim some interest in the logs involved in an attempt-to have all interested parties bound by the decree prayed for. I.C. \\u00a7 5-313 provides in part as follows:\\n\\\"Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.\\\"\\nSee Idaho Irr. Co., Ltd. v. Dill, 25 Idaho 711, 139 P. 714; IRCP, Rules 19(a), 19(b) and 20(a). In Duggan v. Smith, 27 Wash. 702, 68 P. 356, wherein a lien was involved, the Court stated:\\n\\\"The general rule is that all persons whom the claimant wishes to bind by the decree should be made defendants.\\\"\\nWe repeat that the record does not disclose when the respective respondents were made parties to this action, however, undoubtedly some of them were named as defendants in the original complaint and it is clear that the granting of the dismissal as to them was in error. In Willes v. Palmer, supra, the dismissal of the action as to Mrs. Palmer did not take place until after trial was had and all facts had been established. It may happen that the law announced and followed in that case will prevent recovery against some of the parties made defendants in this action.\\nUpon the other hand the evidence may disclose that those who were not made parties within the six months' period mentioned in I.C. \\u00a7 45-410 are nevertheless bound by the acts of other named defendants; the allegations of the amended complaint that the labor was performed with the full knowledge and acquiescence of respondents, and that they were given actual notice of the lien, must not be overlooked while considering the motion here involved.\\nA motion to dismiss the complaint because of a failure to state a claim upon which relief can be granted admits the facts alleged in the complaint and it should not be dismissed upon that ground unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Wackerli v. Martindale, 82 Idaho 400, 353 P.2d 782; Williams v. Williams, 82 Idaho 451, 354 P.2d 747.\\nWe are satisfied that appellants' notice of lien substantially complies with statutory requirements and that the amended complaint does state facts constituting a claim against respondents and each of them.\\nThe order granting the motion to dismiss is reversed and ordered vacated and the cause remanded with instructions to the trial court to reinstate the amended complaint as to respondents and grant them a reasonable time within which to file answers thereto.\\nCosts to appellants.\\nMcQUADE, McFADDEN, TAYLOR and SMITH, JJ., concur.\"}"
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diff --git a/idaho/2359641.json b/idaho/2359641.json
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+"{\"id\": \"2359641\", \"name\": \"R. T. McCLURE and Robert Bushey, Plaintiffs-Respondents, v. Glen BRIGGS and Hazel Briggs, husband and wife, K. C. Barlow and Francis Barlow, husband and wife, Dean Cook and Edith Cook, husband and wife, Defendants-Appellants, and J. T. Robinson, Additional Defendant\", \"name_abbreviation\": \"McClure v. Briggs\", \"decision_date\": \"1963-02-28\", \"docket_number\": \"No. 9157\", \"first_page\": \"327\", \"last_page\": \"331\", \"citations\": \"85 Idaho 327\", \"volume\": \"85\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:37:48.669932+00:00\", \"provenance\": \"CAP\", \"judges\": \"KNUDSON, C. J., and McFADDEN, TAYLOR and SMITH, JJ., concur.\", \"parties\": \"R. T. McCLURE and Robert Bushey, Plaintiffs-Respondents, v. Glen BRIGGS and Hazel Briggs, husband and wife, K. C. Barlow and Francis Barlow, husband and wife, Dean Cook and Edith Cook, husband and wife, Defendants-Appellants, and J. T. Robinson, Additional Defendant.\", \"head_matter\": \"379 P.2d 432\\nR. T. McCLURE and Robert Bushey, Plaintiffs-Respondents, v. Glen BRIGGS and Hazel Briggs, husband and wife, K. C. Barlow and Francis Barlow, husband and wife, Dean Cook and Edith Cook, husband and wife, Defendants-Appellants, and J. T. Robinson, Additional Defendant.\\nNo. 9157.\\nSupreme Court of Idaho.\\nFeb. 28, 1963.\\nNielson & Nielson, Burley, for appellants.\\nEdward Babcock, Robert N. W. Balleisen, Twin Falls, for respondents.\", \"word_count\": \"1580\", \"char_count\": \"9125\", \"text\": \"McQUADE, Justice.\\nPlaintiffs, R. T. McClure and Robert Bushey, brought this action to foreclose their liens on certain lands in Cassia County. The liens were for work and labor performed and materials furnished in drilling certain wells for the defendants, K. C. Barlow and Dean Cook on lands then owned by Briggs.\\nPlaintiffs are engaged in the business of drilling wells. In the latter part of November, 1958, they entered into an oral agreement with the defendant, K. C. Barlow, to drill a well on lands situated in Cassia County. Plaintiffs contend the agreement provided they were to be paid $8.00 per foot for the first 250 feet drilled and $10.00 per foot for any additional footage drilled. Plaintiffs further contend that under the terms of the agreement they did not guarantee water would be found; that no time limit was imposed rtpon them for completion of the work; and that there was no agreement as to placing casing in the well.\\nPursuant to the above agreement, plaintiffs commenced drilling the well, hereinafter referred to as well No. 1, at a place designated by Cook. By the latter part of December, 1958, the well had been drilled to a depth of 425 feet. On January 15, 1959, plaintiffs moved to a new location to drill well No. 2 for the defendant, K. C. Barlow, pursuant to a second oral agreement between the parties. It is contended by the plaintiffs that the second agreement embraced the same terms as the first, except that the price to be paid for drilling the second well was to be $10.00 per foot for all footage drilled. Plaintiffs continued to work on the second well until March 3, 1959, at which time the well had been drilled to a depth of 430 feet. At that time, pursuant to a request of the defendants, Cook and Barlow, plaintiffs moved their equipment back to well No. 1 and cleaned out the well and put in casing. No additional agreement was made between the parties for this work.\\nThereafter, the parties entered into another oral agreement for the drilling of a third well. Plaintiffs contend that this agreement contained the same terms as the oral contract to drill the second well. After moving to a location designated by Cook to drill well No. 3, a dispute arose between the parties.\\nPlaintiffs had been paid the sum of $3,-835.90 for the work performed on well No. 1 prior to the time they moved back to do additional work on that well in March. They claimed that the work done on well No. 1 during March was not included in the original contract entered into between the parties in November, 1958, and that they were entitled to payment for services performed and materials furnished in cleaning out the well and placing the casing therein. The defendant, Barlow, contended that under the terms of the first oral contract, plaintiffs were obligated to put in casing and that at the time they moved off well No. 1 in January, 1959, Bushey had agreed to come back and \\\"complete\\\" the well. Accordingly, he claimed that the work done in March was part of the original agreement and that he was not obligated to pay additional sums for such work.\\nPlaintiffs further insisted upon payment for the work done on well No. 3. Barlow, who had already paid $4,300.00 for work performed and materials furnished on well No. 2 claimed that this well had not been properly drilled. Barlow contended that this well had a \\\"dogleg\\\" at the depth of approximately 260 feet and that this prevented pumps from being used in the well to the extent that a proper amount of water could be obtained from that well. Therefore, he insisted that the monies paid for drilling well No. 2 should be applied to work done on well No. 3. Thus, Barlow asserts that he owed no additional sums on well No. 1 because the original agreement embraced the subsequent work done in March, and that the sums paid for drilling well No. 2 were not properly due plaintiffs from defendants because that well was not serviceable and therefore, the amount paid thereon should be applied toward the amount due for drilling well No. 3.\\nPayment of the amounts claimed due by plaintiffs for additional work done on well No. 1 and for drilling well No. 3 not being made, plaintiffs filed liens on the property upon which the wells were located. Thereafter, plaintiffs brought this action to foreclose their liens.\\nDefendants, K. C. Barlow and J. T. Robinson counterclaimed, contending that they had engaged the plaintiffs to drill the wells to obtain a supply of water to irrigate a crop of potatoes; that plaintiffs knew of this and had agreed to have the wells drilled in time to supply water to the potato crop; that due to the failure of the plaintiffs to properly drill well No. 2, it was unusable; that delay in drilling well No. 3 resulted in defendants being unable to irrigate their potato crop at crucial times shortly after planting; and that these acts on the part of the plaintiffs resulted in damage to their potato crop. Accordingly, Barlow and Robinson sought to recover for these losses. Plaintiffs denied liability on this claim, contending that well No. 2 had been drilled properly. Plaintiffs further denied that any delay on their part with regard to drilling well No. 3 resulted in any injury to the defendants.\\nThe case was tried to the trial judge without a jury. Each of the parties presented evidence in support of their respective contentions. After presentment of the evidence, the trial court found that the first agreement with the defendant, Barlow, did not include placing casing in well No. 1; that well No. 1 was tested and accepted by the defendants on the 20th day of December, 1958; that the defendants, Barlow and Cook thereafter requested plaintiffs to go back to well No. 1 and clean out the bottom of the well and place casing therein; that the plaintiffs were entitled to recover the reasonable value for such additional work on well No. 1; that the work of the plaintiffs on well No. 2 did not cause any obstruction or crookedness or difficulty in the operation of a pump on that well; that well No. 2 was accepted following testing in March of 1959; that the work of well drilling and operations of plaintiffs in regard to well No. 3 did not cause any delay in placing a pump on that well; that the work on all wells was performed in a good workmanlike manner according to the general practices for well drilling in the area; and that, therefore, the plaintiffs were entitled to recover the contract price for the work on well No. 3 in addition to the reasonable value of services performed and materials furnished on well No. 1.\\nWith regard to the cross-claim of the defendants, Barlow and Robinson, the trial court found that \\\"none of the expenses, damages, or claims of the defendants were occasioned by any error, neglect, act of commission, or acts of omission on the part of plaintiffs' well drilling operations or work in any way or manner.\\\"\\nPursuant to the above findings, the trial court entered judgment for plaintiffs on their respective claims and denying recovery to defendants on their cross-claims. Defendants moved for a new trial, contending that the findings of fact and conclusions of law of the trial court were contrary to the law of the case. The motion for a new trial having been denied, the defendants appeal from the order denying said motion and from the judgment, contending that the findings of fact, conclusions of law, and judgment of the trial court are unsupported by the evidence and contrary to law.\\nA review of the record discloses substantial, though conflicting, evidence in support of the findings and judgment of the trial court. In Shellhorn v. Shellhorn, 80 Idaho 79, 326 P.2d 64, this Court held:\\n\\\"Where the findings of fact of the trial judge are sustained by competent, substantial, though conflicting, evidence, such findings of fact will not be disturbed on appeal. Anselmo v. Beardmore, 70 Idaho 392, 219 P.2d 946; Ryan v. Day, 74 Idaho 159, 258 P.2d 1146; Howay v. Howay, 74 Idaho 492, 264 P.2d 691; Jensen v. Chandler, 77 Idaho 303, 291 P.2d 1116.\\\"\\nThe reason for this rule is stated in Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063, and again in Shellhorn v. Shellhorn, supra, as follows:\\n\\\"The trial judge is the arbiter of conflicting evidence and his determination of the weight, credibility, inferences and implications thereof is not to be supplanted by this Court's impressions or conclusions from the written record.\\\"\\nThis Court has carefully examined all of appellants' assignments of error and is of the opinion that no reversible error was committed in the trial of the cause.\\nThe judgment is affirmed.\\nCosts to respondents.\\nKNUDSON, C. J., and McFADDEN, TAYLOR and SMITH, JJ., concur.\"}"
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+"{\"id\": \"259567\", \"name\": \"STATE of Idaho, DEPARTMENT OF FINANCE, Plaintiff-Respondent, v. RESOURCE SERVICE CO., INC., a Wisconsin corporation, Fred L. Engle, and their agents and representatives, Defendants-Appellants\", \"name_abbreviation\": \"State, Department of Finance v. Resource Service Co.\", \"decision_date\": \"2000-04-14\", \"docket_number\": \"No. 24908\", \"first_page\": \"282\", \"last_page\": \"285\", \"citations\": \"134 Idaho 282\", \"volume\": \"134\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T00:11:01.266311+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice TROUT, Justices SCHROEDER, WALTERS and KIDWELL concur.\", \"parties\": \"STATE of Idaho, DEPARTMENT OF FINANCE, Plaintiff-Respondent, v. RESOURCE SERVICE CO., INC., a Wisconsin corporation, Fred L. Engle, and their agents and representatives, Defendants-Appellants.\", \"head_matter\": \"1 P.3d 783\\nSTATE of Idaho, DEPARTMENT OF FINANCE, Plaintiff-Respondent, v. RESOURCE SERVICE CO., INC., a Wisconsin corporation, Fred L. Engle, and their agents and representatives, Defendants-Appellants.\\nNo. 24908.\\nSupreme Court of Idaho, Boise,\\nDecember 1999 Term.\\nApril 14, 2000.\\nOrmiston, Korfanta, Dunbar, Boise, for appellants. Steven R. Ormiston argued.\\nHon. Alan G. Lance, Attorney General; Brett T. DeLange, Deputy Attorney General, Boise, for respondent. Brett t. DeLange argued.\", \"word_count\": \"2004\", \"char_count\": \"12306\", \"text\": \"SILAK, Justice.\\nResource Service Company appeals an order of the district court denying a motion for attorney fees under Section 12-117 of the Idaho Code. We affirm.\\nI.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nA. Factual Background\\nResource Service Company, Inc. (RSC) is a Wisconsin-based business that provides services related to applications for non-competitive oil and gas lease drawings. The U.S. Department of the Interior, through the Bureau of Land Management (BLM), is responsible for leasing oil and gas exploration and development rights. Parcels of land are offered for lease at auction for competitive bids. If a parcel of land fails to receive an adequate competitive bid, a non-competitive lease may be issued on the parcel. Priorities among non-competitive offers received on the same day are determined by a random draw ing. A successful applicant acquires the right to explore, drill, extract, and dispose of oil and gas deposits found on that parcel.\\nRSC groups customers together, files an application on their behalf, and provides customers with information regarding the filings made. To promote its services, RSC mailed Idaho residents unsolicited correspondence. Recipients of RSC's initial promotional material were informed that they could receive RSC's services by paying a $40.00 fee and signing a Service Agreement. After sending in $40.00 and signing the Service Agreement, RSC customers received three chances to acquire a %th interest in an eighty-acre noncompetitive lease. If a customer successfully acquired an interest in a lease, he or she was free to dispose of or develop the interest in any manner he or she deemed appropriate.\\nB. Procedural Background\\nOn April 30, 1991, the Department of Finance (the Department) brought suit against RSC and its principal, Fred L. Engle, alleging that RSC marketed unregistered securities by soliciting a $40.00 fee from customers to enter their names in a BLM lottery for gas and oil leases.\\nThe district court granted summary judgment for the Department and RSC appealed. In Dept. of Finance v. Resource Service Co., 130 Idaho 877, 950 P.2d 249 (1997) (RSC I), the Idaho Supreme Court reversed, holding that RSC's program did not constitute an \\\"investment contract\\\" and was therefore not a security governed by the Idaho Securities Act.\\nPursuant to the Supreme Court's decision, the district court dismissed the Department's complaint. RSC subsequently requested attorney fees pursuant to Idaho Code \\u00a7 12-117. The district court denied the request stating that it could not conclude from the Supreme Court's decision that the Department acted without a reasonable basis in fact or law as required for an award of attorney fees under I.C. \\u00a7 12-117.\\nII.\\nISSUES ON APPEAL\\nThe issues presented on appeal are:\\nA. Whether the Department acted without a reasonable basis in fact or law in bringing and maintaining its action against RSC.\\nB. Whether RSC is entitled to attorney fees on appeal pursuant to I.C. \\u00a7 12-117.\\nIII.\\nSTANDARD OF REVIEW\\nThe Court exercises free review over the decision of a district court applying I.C. \\u00a7 12-117. See Rincover v. State, Dept. of Finance, 132 Idaho 547, 549, 976 P.2d 473, 475 (1999).\\nIV.\\nANALYSIS\\nRSC Is Not Entitled To Attorney Fees Under I.C. \\u00a7 12-117 Because The Department Did Not Act Without A Reasonable Basis In Fact Or Law.\\nIn order to be entitled to an award of attorney fees under I.C. \\u00a7 12-117, the prevailing party must show that the state agency \\\"acted without a reasonable basis in fact or law.\\\" I.C. \\u00a7 12-117. Idaho Code section 12-117(1) states:\\nIn any administrative or civil judicial proceeding involving as adverse parties a state agency, a city, a county or other taxing district and a person, the court shall award the person reasonable attorney's fees, witness fees and reasonable expenses, if the court finds in favor of the person and also finds that the state agency, the city, the county or the taxing district acted without a reasonable basis in fact or law.\\nI.C. \\u00a7 12-117.\\nThe purpose of I.C. \\u00a7 12-117 is: 1) to serve as a deterrent to groundless or arbitrary action; and 2) to provide a remedy for persons who have borne unfair and unjustified financial burdens defending against groundless charges or attempting to correct mistakes agencies should never have made. See Rincover, 132 Idaho at 549, 976 P.2d at 475. This Court has noted that I.C. \\u00a7 12- 117 is not a discretionary statute, but it provides that the court shall award attorney fees where the state agency did not act with a reasonable basis in fact or law in a proceeding involving a person who prevails in the action. See Idaho Dept. of Law Enforcement v. Kirns, 125 Idaho 682, 685, 873 P.2d 1336, 1339 (1994).\\nIn RSC I, this Court found that the services provided by RSC did not fit within the definition of an \\\"investment contract\\\" and therefore, did not constitute a security. Thus, as the prevailing party, RSC has satisfied the first element required by I.C. \\u00a7 12-117 for an award of attorney fees.\\nRSC argues that because the Supreme Court ultimately found the services provided by RSC did not involve the sale of securities in violation of the Idaho Securities Act, the Department was without a reasonable basis in fact or law and therefore, attorney fees are mandated pursuant to I.C. \\u00a7 12-117. The fact that this Court subsequently determined that RSC's program did not constitute a security does not, in and of itself, establish that the Department acted unreasonably or without legal or factual basis in maintaining suit against RSC. The issue presented here is whether, throughout the entirety of the proceedings, the Department had a reasonable basis in fact or law to charge RSC with a violation of the Idaho Securities Act, Title 30 Chapter 14 of the Idaho Code.\\nAs the district court noted below, this was a question of first impression in Idaho as to whether a lottery participation program constituted a \\\"security\\\" within the purview of the Idaho Securities Act. In Rincover, this Court recently discussed I.C. \\u00a7 12-117 as applied to a situation involving a question of first impression. In that case, the Department of Finance denied an application for registration to sell securities based upon its interpretation of I.C. \\u00a7 30-1413. At the time, the specific provisions relied upon had not been construed by the courts of this state. Though the district court ultimately disagreed with the Department's interpretation of the statute, on appeal for attorney fees under I.C. \\u00a7 12-117, the Supreme Court stated that \\\"it [did] not appear that the Department's action was unreasonable under the circumstances\\\" or that \\\"the Department was groundless or arbitrary or required the appellant to bear an unfair or unjustified expense in an attempt through judicial review to correct an agency mistake that should have never been made.\\\" Rincover, 132 Idaho at 550, 976 P.2d at 476.\\nSimilarly, in Treasure Valley Concrete, Inc. v. State, 132 Idaho 673, 978 P.2d 233 (1999), this Court faced interpreting I.C. \\u00a7 47-701 to determine whether sand, gravel and pumice constitute \\\"minerals\\\" reserved by the state within the meaning of that section. Treasure Valley also presented a question of first impression before this Court and though it was ultimately held that these substances did not constitute \\\"minerals\\\" and were not reserved by the state until after the 1986 amendment to I.C. \\u00a7 47-701, other states had interpreted \\\"minerals\\\" in similar statutes to include sand, gravel and pumice. Therefore, on appeal this Court could not conclude that the State acted without a reasonable basis in fact or law in defending its action. See Treasure Valley, 132 Idaho at 678, 978 P.2d at 238.\\nPrior to this Court's decision in RSC I, no appellate court of this state had addressed the issue of whether a lottery lease filing service, such as that operated by RSC, constitutes a \\\"security\\\" within the purview of the Idaho Securities Act. Indeed, only two district courts of this state had addressed the issue with varying results. See State of Idaho v. Alaska Capital Corp., Case No. 84710 (Idaho Dist.Ct., Sept. 22, 1986), State of Idaho v. Southeast Energy Exchange, Inc., Case No. 89795 (Idaho Dist.Ct., May 23, 1988). For this reason, the Department initially had only the statute and decisions of other jurisdictions to guide it See Cox v. Department of Ins., State of Idaho, 121 Idaho 143, 148, 823 P.2d 177, 183 (Ct.App.1991). As noted by the district court prior to this Court's determination on the issue:\\nThe parties present their motions as if RSC's service clearly is or is not an investment contract, referencing numerous administrative and judicial decisions in support of their respective propositions. However, the weight of authority does not appear to unequivocally favor either par t/s position. The numerous decisions examined . truly seem to turn on the very specific facts of each case.\\nThe crux of RSC's argument here is that the Department failed to consider ease law standing for the proposition that lease lotteries, such as those involved in this case, are not considered securities and therefore, the Department acted without a reasonable basis in fact or law in filing and maintaining suit against RSC for violation of the Idaho Securities Act. In particular, RSC argues that the Department \\\"steadfastly refused to find merit in the [SEC v. Energy Group of America, 459 F.Supp. 1234 (S.D.N.Y.1978) ] decision\\\" which it asserts was relied upon by this Court in RSC I. It should be noted that while this Court cited favorably to the Energy Group decision in its ultimate determination on the issue, other courts and securities administrators addressing the issue have found, contrary to Energy Group, that application filing services such as the one operated by RSC may qualify as investment contracts and may therefore be securities. See, e.g., Cellular Engineering, Ltd. v. O'Neill, 118 Wash.2d 16, 820 P.2d 941, 947 (1991) (citing: In re Federal Resources Corp., [1978-81 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,476 (Nov. 8, 1978) (Alaska Dept. of Commerce & Econ. Dev., Div. of Banking & Secs.); In re Amerifirst Petroleum, Inc., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,867 (Oct. 25, 1983) (Fla. Dept. of Banking & Fin.); In re Federal Exploration, Inc., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,906 (Dec. 28, 1983) (Mass. Secretary of State, Secs. Div.); In re Overthrust Mineral Corp., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,898 (Dec. 8, 1983) (Mich. Dept. of Commerce, Corp. & Secs. Bureau); In re Federal Oil & Gas Corp., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,953 (Mar. 23, 1984) (Mo. Secretary of State.); In re Resource Serv. Co. & Fred Engle, [1978-81 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,570 (Aug. 29, 1980) (Minn. Comm'r of Secs.); In re Energy Group of Am., Inc., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,821 (Mar. 31, 1983) (Mont.Secs. Comm'r.); In re Overthrust Mineral Corp., [1982-84 Transfer Binder] Blue Sky L.Rep. (CCH) \\u00b6 71,849 (July 25, 1983) (Wyoming Secretary of State)).\\nTherefore, although this Court ultimately determined that the particular lottery lease filing service operated by RSC did not constitute an \\\"investment contract\\\" in violation of the Idaho Securities Act, we hold, based upon the lack of case law of this state in addition to supporting decisions from other jurisdictions, that the Department was not without a reasonable basis in fact or law in bringing and maintaining suit against RSC for violation of the Idaho Securities Act.\\nV.\\nCONCLUSION\\nAccordingly, we affirm the district court's denial of attorney fees under I.C. \\u00a7 12-117. No attorney fees awarded on appeal. Costs on appeal to respondent.\\nChief Justice TROUT, Justices SCHROEDER, WALTERS and KIDWELL concur.\"}"
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+"{\"id\": \"3336054\", \"name\": \"DENNING v. CITY OF MOSCOW\", \"name_abbreviation\": \"Denning v. City of Moscow\", \"decision_date\": \"1905-11-10\", \"docket_number\": \"\", \"first_page\": \"415\", \"last_page\": \"420\", \"citations\": \"11 Idaho 415\", \"volume\": \"11\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:36:41.212953+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ailshie, J., and Sullivan, J., concur.\", \"parties\": \"DENNING v. CITY OF MOSCOW.\", \"head_matter\": \"(November 10, 1905.)\\nDENNING v. CITY OF MOSCOW.\\n[83 Pac. 339.]\\nWrit of Prohibition \\u2014 Will not Issue When.\\n1. Where it is shown that the city authorities are acting within the scope ox the authority given therein by statute, the writ will be denied.\\n2. The writ will not issue to prohibit the officers of a city from levying and assessing city property subject to assessment for the payment of certain bonds, and certify such levy and assessment to the county tax collector for collection \\u201cas other taxes are collected\\\" under the provisions of subdivision 10 of section 2 (Sess. Laws 1900) and section 86, page 209 (Sess. Laws 1899).\\n(Syllabus by the court.)\\nORIGINAL action for a writ of prohibition.\\nDenied.\\nS. S. Denning, for Petitioner,\\ncites no authorities not cited in the opinion.\\nJ. PI. Forney, for City of Moscow,\\ncites no authorities not cited in the opinion.\", \"word_count\": \"1714\", \"char_count\": \"9806\", \"text\": \"STOCKSLAGER, C. J.\\n\\u2014 The plaintiff filed his application for a writ of prohibition. The facts are agreed upon and we are asked to construe certain provisions of the acts of the legislature, seventh session, and of the eighth session. The facts as agreed upon are that \\\"S. S. Denning is the owner of a certain lot of real estate situated within the corporate limits of the city of Moscow. That the said lot of land has been duly assessed and a tax has been levied thereon by the city council of said city of Moscow for the purpose of constructing, maintaining and operating a sewerage system; that if the said city council shall certify the sewerage assessments to the county tax collector of Latah county, state of Idaho, that thereby the said assessments will be increased upon property of the said S. S. Denning to the extent of one and one-half per cent, and upon all other property within the corporate limits of the said city of Moscow to the extent of one and one-half per cent costs of collection. That this application is made for the purpose of ascertaining from this honorable court, whether such assessments shall be collected by the proper officers of said city of Moscow or whether the said city council shall certify all such assessments and taxes a\\u00a7 are now due to the tax collector of Latah county and collected in the same manner as other city taxes are collected.\\\"\\nIt is hereby further stipulated that the bonds heretofore mentioned were to be paid in five equal annual installments, and that no installment has yet been levied. That the city has paid all of its installments upon its municipal property, and that the city is not now, neither have they ever been, indebted under subdivision 3 or 4 of section 2 of the Laws of 1893, page 32, by expending from the gen eral funds any money in consideration of the benefits accruing to the general public by reason of such sewerage improvement, nor has any ordinance ever been passed since the passage of the construction ordinance \\\"providing for the payment of the costs and expenses thereof by installment, instead of levying the entire tax for special assessments for such costs at any one time.\\\"\\nThe writ was not issued, the stipulation in its last clause asking that the case be heard as to whether or not the writ shall issue. The action is against the city of Moscow to prohibit the mayor and city council from certifying an assessment and levy to the assessor and tax collector of Latah county for the purpose of paying the first installment of certain sewerage bonds issued under the provisions of an act of the legislature in 1903. Counsel for plaintiff in his brief says: \\\"There is but one question presented,\\\" and that is: \\\"What is the proper mode of assessing, levying and collecting the several installments on the bonds in accordance with the act of 1903?\\\" It is shown by the application that during the year 1902 the city council of the city of Moscow duly levied and assessed certain taxes for sewerage improvements and for the purpose of constructing, maintaining and operating a sewerage system within the corporate limits of the city of Moscow; that there is now due and unpaid on said sewerage assessments the sum of $28,000.\\nCounsel for plaintiff insists that by the provisions of the law of 1903, there are two schemes, either of which may be followed for the payment of the indebtedness contracted in the building of the sewer as against the property benefited. Subdisivion 10 of section 12 of the act provides that \\\"All such assessments shall be known as special assessments for sewerage assessments and shall be levied and collected as separate taxes in addition to the taxes for general revenue purposes to be placed on the tax-roll for collection subject to the same penalties for collection and in the same manner as other city, town or village taxes.\\\" Section 11 of the act provides, \\\"That whenever the mayor and council shall cause any sewerage work or improvement to be done under the provisions of this act the expense is chargeable to the property within the boundary lines within the sewerage district laid out under the provisions of this act, they may in their discretion thereof provide for the payment for the costs and the expense thereof by installments, instead of levying the entire tax for special assessments for such costs at any such time and for such installments they may issue in the name of the city, town or village improvement bonds of the district, which shall be known and designated as special assessment sewerage improvement bonds.\\\"\\nSubdivision 12 of section 12 provides: 'Such bonds, when issued to the contractor constructing said work or improvements in payment thereof, or when sold as above provided, shall transfer to the contractor, or other owner or holder,the right or interest of such city, town or village in or with respect to every assessment, and the lien thereby created against the property of the owners assessed who shall not have availed themselves of the provisions of this aet in regard to their property, as aforesaid, shall authorize said contractor, and his assigns and the owners and holders of said bonds, to receive, sue for and collect every such assessment embraced in any bond by or through any of the methods provided by law for the collection of assessments for local improvements. And if the city, town or village shall fail, neglect or refuse to pay such bonds or to properly collect any such assessments wh\\u00e9n due, the owner of any such bonds may proceed in his own name to collect any such assessments and foreclose the lien thereof in any court of competent jurisdiction, and shall recover, in addition to the amount of such bonds and interest thereon, five per cent, together with the costs of such suit.\\\"\\nSection 15 provides that \\\"The holder of any bond issued under the authority of this act shall have no claim therefor against the city, town or village by which the same is issued in any event, except for the collection of the special assessment made for the work or improvement for which said bond was issued; but Ms remedy in ease of nonpayment shall be confined to the enforcement of such assessment.\\\"\\nAfter calling our attention to the above quotations of the Session Laws of 1903, counsel for plaintiff asks the question: How far is the city liable npon those bonds for the bondholder? If the city should be negligent in making the assessment and levy, how long should this negligence continue before the bondholder can bring an action against the city or a writ of mandate against the city council compelling them to make the assessment and levy?\\nWe have carefully reviewed the law of this case to which our attention has been called, and so far as the only question we deem of importance at this time is concerned, we do not find much embarrassment in determining it; that is, Is the city through its officers properly proceeding to collect the revenue with which to meet the obligations of the city on the outstanding bonds? It seems that the city of Moscow has certified the sewerage taxes to the county tax collector to be collected as \\\"other taxes are collected.\\\" It is conceded by counsel for the city that there is no provision in the act of 1903 permitting the city to state when their respective assessments are due, or to become due; that is, there is no authority granted by said act authorizing the city of Moscow to fix. the time when these respective installments shall become due. But our attention is called to section 86 of the Fifth Session Laws (1899), page 209. This section reads: \\\"The council or trustees of each city or village' shall, at the time provided by law, cause to be certified to the county tax collector the percentage or number of mills on the dollar of tax to be levied for all city or village purposes by them on the taxable property witMn said corporation for the year then ensuing as shown by the assessment-roll for said year, including all special assessments and taxes assessed as hereinbefore provided, and the said tax collector shall place the same on the proper tax lists to be collected in the manner provided by law for the collection of state and county taxes.\\nThere is no attempt in the act of 1903 to repeal the above provision of the act of 1899, neither do we find anything in the law of 1903 that in any way conflicts with that provision of the act of 1899. It may have attempted to provide another remedy for the bondholder, bnt it did not relieve the city authorities from the duty of providing revenue for the payment of its outstanding obligations. Construing the two acts together, we think the duty of the city authorities is plain, and that they are only acting as the law requires when they certify the sewerage taxes to be collected to meet the obligations of the city to the county tax collector to be collected \\\"as other taxes are collected.\\\" The writ is denied.\\nAilshie, J., and Sullivan, J., concur.\"}"
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+"{\"id\": \"3339513\", \"name\": \"CARTIER v. BUCK\", \"name_abbreviation\": \"Cartier v. Buck\", \"decision_date\": \"1904-02-05\", \"docket_number\": \"\", \"first_page\": \"571\", \"last_page\": \"577\", \"citations\": \"9 Idaho 571\", \"volume\": \"9\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:21:42.211893+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sullivan, C. J., and Ailshie, J., concur.\", \"parties\": \"CARTIER v. BUCK.\", \"head_matter\": \"(February 5, 1904.)\\nCARTIER v. BUCK.\\n[75 Pac. 612.]\\nNew Trial not Granted When Evidence is Conflicting.\\n1. Where it is shown by the record that there is a substantial conflict in the evidence on the material issues involved, a new trial will not be granted, neither will the judgment be modified under the facts established in the case.\\n(Syllabus by the court.)\\nAPPEAL from the District Court of Fremont County. Honorable J. C. Rich, Judge. New trial denied by Honorable J. M. Stevens, Judge.\\nAction to settle the water rights of Camas creek. Judgment for plaintiff from which certain defendants appeal.\\nJudgment sustained.\\nThe facts are stated in the opinion.\\nHawley & Puckett, for Appellants.\\nIt will not be disputed that in order to constitute a legal appropriation the water claimed must be applied to some beneficial use or purpose. The true test of appropriation of water is the successful application thereof to the beneficial use designed, and the method of diverting or carrying the same or making such application is immaterial. (Thomas v. Guiraud, 6 Colo. 530.) If one appropriates part of the waters of a stream for a certain period of time, any other person may not only appropriate the residue and acquire a right thereto as perfect as the first appropriation, but may also acquire a right to the quantity of water used by the first appropriator at such times as it is not needed or used by him. (Smith v. O\\u2019Harr a, 43 Cal. 371; Barnes v. Babron, 10 Nev. 217.) The rights of a prior appropriator of water are limited by his beneficial use, and not by the original capacity of his ditch; and where he has ceased to use only a specified quantity of the water, or has limited his regular use of it for irrigation, all of the water not used is subject to subsequent appropriation by another. (Santa Paula Water Works v. Peralta, 113 Cal. 38, 45 Pac. 168; New Mercer Ditch Go. v. Armstrong, 21 Colo. 357, 40 Pae. 990; McDonald v. Bear River etc. W. M. Go., 13 Cal. 220.)\\nF. S. Dietrich, for Respondent.\\nIt will be observed from the record that no question is made of the correctness of the decree, so far as the amounts and the dates of the various appropriations as fixed by the decree are concerned, and consequently only a small portion of the evidence heard by the court is incorporated in the record. In other words, the court found and decreed correctly the date and amount of the appropriation of each of the parties to the suit, including the plaintiff, and also that the water so appropriated had always been put to a beneficial use. Under the rule laid down in McGmness v. Stanfield, 6 Idaho, 372, 55 Pac. 1020, when the court had correctly found and decreed these facts, it had done all that it was required to do. In McGinness v. Stanfield, the court says: \\u201cPriority of appropriation having been established, as well as the amount of the water appropriated and the beneficial use thereof, it seems to us that the functions of the court under the statutes have reached their \\u25a0limit. Upon the main question discussed by appellants, that is, the effect of the use of water by the upper appropriators upon the supply at the lower end of the stream, we maintain that the great preponderance of evidence supports the findings of the court. Appellants contended in the lower court that in the early years the stream sometimes went dry. Upon that particular phase of the controversy there is a conflict of testimony, but even here the preponderance supports the findings of the court. Even if the preponderance of the evidence were against the findings, still under the rule universally established and very recently reiterated by this court, this court should not disturb the findings of the trial court. (See Simons v. Daly, ante, p. 87, 72 Pae. 507; Stewart v. Hauser, ante, p. 53, 72 Pac. 719.)\", \"word_count\": \"2382\", \"char_count\": \"13699\", \"text\": \"STO CRSLAGER, J.\\nThis is an action brought in the district court of Fremont county and was originally commenced by the plaintiff against a few of the defendants for the purpose of restraining them from using the waters of Camas creek and by such use lessening the plaintiff's water supply.\\nAfter the suit had been commenced an order of the court was made bringing in all other parties who were users of the waters of said stream as defendants. By agreement made in open court defendants were permitted to deny the allegations of the complaint by general denial. The several defendants in addition to their- answers filed cross-complaints setting up their several rights to the use of the waters of said stream and the dates of their appropriations. The cause was tried before the court without a jury, and the court by its findings of fact, found the relative rights of the parties in and to the use of the waters, following it up with a decree founded upon such facts. A large number of defendants represented by Hawley & Puckett as their attorneys, gave notice of their intention to move for a new trial, and thereupon prepared a statement on motion for a new trial, which was settled and allowed. An order denying a new trial was made. From the order denying the new trial and from the judgment said defendants appealed. This statement is taken from the brief of appellants and is adopted by the court, as it is conceded by respondent to be in the main correct. Respondent supplements the statement by the further statement that in the years 1883, 1884 and 1885, about the time the railroad was built through Idaho from Utah to Montana, a number of settlers entered lands three or four miles west of Camas railroad station along Camas creek near its lower' end. After all of the waters of Camas creek were appropriated at the lower end of the stream, settlers upon the tributaries gradually began to use the water regardless of the rights of the lower claimants, though prior appropriators.\\nSettlement at the upper end of the stream progressed slowly until about the year 1897 or 1898, when both settlement and increase in the area of irrigation seem to have been given a considerable impetus, and the plaintiff, being unable to get water even up as late as the first of July each year, brought this suit to have his rights determined and to have the upper and late appropriators enjoined from interfering with his rights.\\nAfter decree was entered, plaintiff sold and transferred all of his holdings to the Wood Livestock Company, and he now asks that it be now recognized as the respondent in the place and stead of the plaintiff in the lower court.\\nCounsel for appellant say in their brief that the statement on motion for a new trial shows that there is no dispute as to the amount of water decreed to the various parties to the suit by the decree of the court, nor is there any dispute as to the time from which the several rights of the parties should date. It is argued, however, that the use of the water by the subsequent appropriators \\u2014 among them the appellants \\u2014 has been beneficial to respondent and its predecessors creating what might be termed an underground reservoir, thereby retaining the water that seeps into the ground or reservoir from the early spring irrigation of the lands near the head of the stream; gradually this water finds its way back into the channel and passes on down, thereby prolonging the life of the stream. If the theory is true, the users at the lower end of the stream are certainly benefited.\\nI have very frequently heard this theory advanced in the district court and have heard much evidence on the subject. This, however, is the first time the question has reached this court. One thing seems to be noticeable in all cases where this question arises; that is, that this peculiar system of reservoirs or spongy condition of the soil is always discovered by the parties at the upper end of the stream, and as vigorously disputed and denied by the lower appropriators.\\nIf this contention of appellants is true, it is certainly a good and sufficient defense to this action.\\nBefore the plaintiff in the lower court could obtain injunction relief, it was incumbent on him to show that the use of the waters of Camas creek, or some of its tributaries, by the defendants prevented the water from flowing down to him in the natural channel, and also that had they not disturbed it, it would have found its way to his premises. This being the question upon which the rights of the parties to this action must be determined, it will be necessary to examine the evidence at some length. The fourth finding of the court is: \\\"That of the several amounts of water so appropriated, the plaintiff and his predecessors in interest, during the several years in which said several amounts of water were first appropriated and diverted as aforesaid, and continuously ever since said several dates of appropriation, except when prevented from so doing by the unlawful interference of the defendants and other persons, have continued to divert and use during the whole of the irrigating season each year for domestic and stock purposes, and for the purpose of irrigating certain of said tracts of land and raising agricultural crops thereon, the following amounts during and from the dates set opposite thereto, to wit: Seventy-five inches, dated April 1, 1888; seventy-five inches, dated April 1, 1884; three hundred and fifty inches, dated April 1, 1885; one hundred inches, dated April 1, 1886; seventy-five inches, dated April 1, 1895.\\n\\\"That of the several amounts of water so appropriated, as set out in the foregoing paragraph (3), the plaintiff and his predecessors in interest, during the years in which said several amounts of water were first appropriated and diverted as aforesaid, and continuously ever since said several dates of appropriation, except when prevented from so doing by the unlawful interference of the defendants and other persons, have continued to divert and use during each and every irrigating season up to July 1st of each year, for the purpose mainly of irrigating wild hay upon certain of said lands, which the court finds to be a paying crop when irrigated, and needs irrigation up to but not after July 1st, the following amounts during and from the dates set opposite thereto, to wit: Eighty-five inches, dated April 1, 1883; eighty-five inches, dated April 1, 1884; four hundred and seventy-five inches, dated April 1, 1885; sixty inches, dated April 1, 1887; two hundred inches, dated April 1, 1895.\\n\\\"That the rest of said water so appropriated, to wit, three hundred inches, April 1, 1883, and one hundred and fifty inches, April 1, 1887, was never appropriated or used except dur ing the spring high-water season, and the same has during the high-water season every year been used by plaintiff and his predecessors in interest in producing hay and pasture for stock.\\\"\\nThe statement on motion for new trial says that \\\"Plaintiff and his predecessors appropriated of the waters of Camas creek, seventy-five inches from April 1, 1883; seventy-five inches from April 1, 1884; three hundred and fifty inches from April 1, 1885; four hundred inches from April 1, 1886; five hundred inches from April 1, 1895; and that said amounts of water are necessary for the successful cultivation of said lands, over and above the water appropriated for use upon said hay lands.\\\"\\nWe have read the evidence of the witness Boss, who was state engineer, and whose business was devoted to the important subject of irrigation in this state. He testifies to the theory advanced by appellants that the use of water at the head of a basin or stream in the early spring seems to hold the water in check and thereby prolongs the life of the stream, thus benefiting the settlers below rather than otherwise. That he made some examination of the lands in the vicinity of Kilgore and which is the property of the appellants, and expresses the opinion that the spongy nature of the soil resulting from early irrigation, in that vicinity, should prolong the flow of water in the creek below and thus furnish water later in the season to the settlers below.\\nMuch evidence was introduced by appellant and respondent as to the condition of this stream in the vicinity of the respondent's lands dating from the early '60's down to the time of the trial. It is shown that the settlement in and about Kilgore is of but recent date. The evidence of the condition of the stream from July 1st until in September, when the water begins to increase, is very conflicting, some witnesses testifying that when they first knew the stream at the old stage crossing near respondent's lands there was water there at all seasons of the year; others testifying that at about the same dates they had to go miles above the crossing to get water for their horses. It is shown that trees were planted at the old town of Camas or in tbat vicinity, and that they grew and prospered until after the settlements above referred to, when for the want of water they died. A careful reading of the evidence leads us to the conclusion that a jury might have had some difficulty in arriving at the true state of facts as to this question.\\nUnder the well-settled and oft-repeated rule that' this court will not disturb' the findings of the trial court where there is a substantial conflict in the evidence, we should have no difficulty in arriving at a conclusion in this case.\\nThe judgment of the lower court upon the order overruling the motion for a new trial is affirmed, with costs to respondent.\\nIt appears from the record that the. appeal from the judgment was not taken within one year, as provided by the statute, section 4807, Bevised Statutes. It is therefore ordered that that appeal be dismissed, with costs in favor of respondent.\\nSullivan, C. J., and Ailshie, J., concur.\"}"
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+"{\"id\": \"3341112\", \"name\": \"LANE v. PACIFIC AND IDAHO NORTHERN RAILWAY COMPANY\", \"name_abbreviation\": \"Lane v. Pacific & Idaho Northern Railway Co.\", \"decision_date\": \"1902-01-22\", \"docket_number\": \"\", \"first_page\": \"230\", \"last_page\": \"240\", \"citations\": \"8 Idaho 230\", \"volume\": \"8\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:46:29.603910+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sullivan- and Stoekslager, JJ., concur. *\", \"parties\": \"LANE v. PACIFIC AND IDAHO NORTHERN RAILWAY COMPANY.\", \"head_matter\": \"(January 22, 1902.)\\nLANE v. PACIFIC AND IDAHO NORTHERN RAILWAY COMPANY.\\n[67 Pac. 656.]\\nContract \\u2014 Specific Performance \\u2014 Railway Company \\u2014 Building Switch. \\u2014 Where a contract under which a railway company enters and obtains a right of way provides that it shall place its fences at the edge of the pit ground, on both sides of its track, and that it shall construct a switch or sidetrack on the land granted for the right of way, specific performance will be decreed, and cannot be defeated on the ground that it is impracticable to compel specific performance.\\nContract \\u2014 Implied Promise \\u2014 Acceptance \\u2014 Estoppel. \\u2014 Where a party to contract accepts it, acts under it, and obtains all of the benefits that were intended to be granted by it, he is estopped from objecting to the same on the ground that he did not sign it, as the law implies a promise on his part to perform the conditions of such contract from his act of accepting it.\\nImplication from Promise to do a Thins. \\u2014 Where a party agrees to do a certain thing, and does' not specify how it shall be done, the law implies a promise on his part to do it in the usual manner, and that it shall be complete and effectual for the use to which the same kind of thing is generally applied.\\nAlteration of Contract \\u2014 Effect on Innocent Party. \\u2014 The alteration of a contract by adding words thereto without the knowledge or consent of the obligor, after its delivery, while ground for rescission at the option of the obligor, does not affect its rights, and he may have the contract enforced as originally made by him.\\n(Syllabus by the court.)\\nAPPEAL from District Court, Washington County.\\nFrank Harris and Lot L. Feltham, for Appellants.\\nThis is an action to compel specific performance of a contract for right of way for a railroad. The defendant could not challenge the validity of the instrument upon which this suit was brought as it had received in full all the benefits specified thereunder. \\u201cA party is estopped from denying the validity of an' instrument by virtue of which alone he has obtained possession of property, which he still holds.\\u201d (Biglow on Estoppel, 684, 685; Denison v. Willcut (Idaho), 35 Pae. 699.) A railway must make compensation for right of way across possessory claims. (Spokane Fails etc. By. Co. v. Zeigler, 167 H. S. 65, 17 Sup. Ct. Eep. 728.) A complaint is not demurrable on the score of want of facts, if upon the facts stated the plaintiff is entitled to any relief, either at law or in equity. (Grain v. Aldrich, 38 Cal. 514, 99 Am. Dee. 423; White \\u00b6. Lyons, 42 Cal. 279; Hulsman v. Todd, 96 Cal. 228, 31 Pac. 40.) To take a contract for the sale of lands out of the statute of frauds a mere note or memorandum in writing, subscribed by the vendor or his agent, containing the names of the parties and a summary statement of the terms of the sale, either expressly or by reference to something else, is all that is required. (Idaho Eev. Stats., sec. 6009; Joseph v. Holt, 37 Cal. 254; Ide v. Lueister, 10 Mont. 5, 24 Am. St. Eep. 17, 24 Pac. 695.) \\u201cAn ex- ecutory contract for the sale of real estate is valid and binding, and can be enforced by the vendee if signed by the vendor alone.\\u201d (Cavanaugh v. Qasselman, 88 Cal. 543, 26 Pac. 517.) And the rule is not changed even though the vendor be- a married woman, for she may enforce a contract for the sale of real estate. (Banbury v. Arnold, 91 Cal. 606, 27 Pac. \\u2019936.)\\nJ. H. Eichards, for Eespondent.\\nTo entitle appellants to a specific performance of said contract, there must be such certainty in the allegations as to time when the contract is to be performed, the manner in which the same is to be performed, the extent to which the contract is to be performed, and the certainty as to what is to be done under the contract, as to enable a court to render a decree possible to be performed without making a new contract for the parties. (Agard v. Valencia, 39 Cal. 292, 302; Gates v. Gamble, 53 Mich. 181, 18 N. W. 631; South Wales By. Go. v. Wythes, 5 De Gex, M. & G. 880; Minturn v. Baylis, 33 Cal. 129; Magee v. McManus, 70 Cal. 553, 12 Pac. 451.) Eespondent contends that a contract may be declared in haec verba or according to its legal effect. When declared in haec verba the instrument incorporated in the complaint must show, upon its face, in . direct terms and not by implication, all the facts which the pleader would have to allege had he elected to set it forth by averment. (More v. Blmore Go. Irr. Go., 3 Idaho, 729, 35 Pae. 171; New Orleans v. New Orleans etc. B. Go., 44 La. Ann. 64, 10 South. 401; Shenandoah Valley B. Go. v. Lewis, 76 Va. 833; Golson u. Thompson, 2 Wheat. 336; 1 Story\\u2019s Equity Jurisprudence, secs. 764, 767; Fry on Specific Performance, sec. 229.) Equity will not ordinarily enforce specific performance of a covenant by a grantee to build on the premises conveyed, since damages at law for breach of the covenant are generally an adequate remedy, and the court has no power to compel performance of such condition. (Madison v. Brittin, 60 N, J. Eq. 160, 46 Atl. 652; Haisten v. Savannah etc. B. Go., 51 Ga. 199; Baton v. Lexington etc. B. Go., 22 Ky. App. 1133, 59 S. W. 864; Coding v. Bangor, 94 Me. 542, 48 Atl. 114.) The rule is almost universal that a covenant to build may not be enforced specifically, for the execution of such contract would be impracticable, if not impossible, for a court to supervise, whereas the remedy of damages would afford full redress, and this is especially true of covenants to construct or repair railways. (Oregonian R. Co. v. Oregon R. etc. Co., 11 Saw. 33, 28 Fed. 346; Port Clinton R. Co. v. Cleveland etc. R. Co., 13 Ohio St. 544; Fallon v. Railroad Co., 1 Dill. (IT. S.) 121, Fed. Cas. No. 4629; Ross v. Union Pac. R. Co., 1 Woolw. 26, Fed. Cas. No. 12,080; Railway Co. v. Rust, 17 Fed. 275, 282; Center v. Davis, 48 Cal. 453; Burners v. Bean, 13 Gratt. (Va.) 404; Angus v. Robinson, 32 Vt. 60; 20 Ency. of PI. & Pr. 438; Jacobs v. Peterborough etc. R. Co., 8 Cush. 223.)\", \"word_count\": \"4010\", \"char_count\": \"22498\", \"text\": \"QUAELES, C. J.\\n\\u2014 This action was commenced in the court below to obtain a decree for the specific performance of those covenants in the contract hereinafter set forth, relating to the construction of a siding, and the place where the fence of the defendant corporation shall be erected upon its line of way. Said contract is set forth, in effect, in the complaint, and attached to said complaint as a part thereof, and is in words and figures as follows, to wit:\\n\\\"May 11, 1899.\\n\\\"This agreement, made and entered into by and between J. W. Lane and Victoria Lane, his wife, of Weiser river, Washington count}^ Idaho, the parties of the first part, and the Pacific and Idaho Northern Eailway Company, a corporation of Idaho, the party of the second part, witnesseth, that the said parties of the first part, for and in consideration of the sum of three hundred and seventy-five dollars, the receipt whereof is hereby acknowledged, do hereby agree to sell and quitclaim, and do hereby sell and quitclaim, forever, all our right, title, and interest to second party herein in a strip or piece of land one hundred feet wide, and being fifty feet wide on each side of the center line of the survey now made and staked through all of our land (being unsurveyed government land) lying and being on the Weiser river, and being part of the premises on-which we now, live, and upon which we have lived for the last eight years, and hereby give said second party, its agents and employees, the right to enter upon said land at any time for the purpose of building, constructing, and operating its said railway upon, through, and across said premises where said survey is now made. Said second party further agrees to make for first parties an underground crossing fourteen feet wide, and as high as the grade of said road will permit. Said culvert or crossing is to be made where first parties desire, at or near where first parties cross the Weiser river with wagons, buggies, etc., and near their present dwelling-house, and on bank of said river. Said second party further agrees to-put up, build, and construct for first parties' another underground crossing eight feet wide, and as high as the grade of the road will permit, at another place upon said ranch where first parties may desire. Also to put in a wooden culvert or box at least three feet square at any place where the first parties may desire, under and across the breem of said road, for first parties' hogs to cross under and through to the river and back to the pasture. Also, second party agrees to build a switch or sidetrack on said ranch at or near the dwelling of said first parties, and agree to build sufficient sized wooden flumes under their said track to carry the water used for irrigation purposes at and where all laterals cross second party's right of way on said ranch. First party is to have the right to farm and use any and all of said second party's right of way not fenced and actually in use by second party, and second party is to build its fence on the edge of the pit ground through said ranch, and, in fencing, to fence no more of said right of way than is absolutely necessary to protect its road and the banks and fills made in constructing same; and first parties are to have the use of all of the lands of second party not so fenced, for his' crops, etc., free of charge, until such times as it is necessary for second party to fence and use same. The agreements and stipulations herein are to be no way construed as to give second party any rights, claims, or possession of any irrigation ditches or ditches northerly or outside of any inclosure; and if any flitch or ditches, flumes or laterals, are crossed or in any manner interfered with, outside of any inclosure, then any and all damages sustained 'by first parties is to be settled and paid for by second parties entirely outside of this contract, the same as if no contract of any kind had ever been made. First party further agrees to give second party all ground necessary for switch purposes, if said switch is located at or near his dwelling, and on his house place. \\\"J. W. LANE,\\n\\\"VICTOBIA LANE,\\n\\\"JNO. W. AYEES,\\n\\\"Witness.\\\"\\nThe complaint alleges that the plaintiffs have resided upon said land ever since May, 1890; that plaintiffs are citizens of the United States, and that they have so lived upon said lands with the intent and purpose of entering the same under the homestead and desert land laws of the general government; that said contract was accepted by the defendant company, and that said defendant has entered upon said lands, constructed its railway across and over same, and has ever since used and enjoyed said right of way and privileges granted to it by the terms of said contract; that the plaintiffs have done and performed on their part all and every of the obligations and stipulations of said contract' by them agreed to be done and performed, and that said plaintiffs did tender to said defendant on the ninth day of May, 1901, a good and sufficient quitclaim deed, duly executed and acknowledged by plaintiffs, which deed the said defendant refused to accept; that the defendant -has failed to comply with the covenants and stipulations of said contract in the following particulars, to wit: It has failed and refused to build a switch or sidetrack on the said lands of the plaintiffs, although requested by plaintiffs so to do, and has failed and refused to place its fences on the. edge of the pit ground through the edge of said lands, and has failed and refused to give plaintiffs the use of said right of way outside of said pit ground, although requested so to do, but has, over the objections and protests of the plaintiffs, constructed its fences on each side of the track fifty feet from the center of its track, and thirteen feet farther from the center of said track than- the edge of the pit ground, and that much farther than is necessary to- protect said track, roadbed, banks, and fills made in constructing the same, and so maintains said fences, depriving plaintiffs of a strip of land on each side of the track thirteen feet wide and one mile long; and that said land is valuable for the growing of crops. The complaint also alleges that, after the delivery of said contract to the defendant, the words \\\"if convenient\\\" were interpolated into same after the words \\\"and second party is to build its fence on the edge of the pit ground through said ranch,\\\" without the knowledge or consent of the plaintiffs'. The prayer is that the words \\\"if convenient\\\" be stricken from said contract, and that defendant be required by decree of the court to place its fences along the edge of its pit ground, and to construct and build a switch or sidetrack on the said lands of plaintiffs, and for general relief. To the said complaint the defendant filed the following demurrer, to wit: \\\"Comes now the above-named defendant by its attorney, J. H. Richards, and demurs to the third amended complaint of plaintiffs filed herein, and for cause of such demurrer says: 1. That said complaint does not state facts sufficient to constitute a cause of action; 2. That said complaint does not state facts sufficient to entitle the plaintiffs to the relief demanded in said complaint, or any relief; 3. That said complaint does not state facts sufficient to entitle the plaintiff to the reformation of the alleged contract; 4. That said complaint does not state facts sufficient to the relief demanded in said complaint, in this: That defendant be required to build a switch or sidetrack to the alleged railway on the land described in said complaint, at or near the dwelling-house of plaintiffs or elsewhere; 5. That said complaint does not state facts sufficient to entitle the plaintiffs to the relief demanded in said complaint, to wit, that defendant be required to place its alleged side fence on the edge of the alleged pit ground through said described land, or elsewhere; 6. That said complaint does not state facts sufficient to entitle plaintiffs to the relief demanded in said complaint, in this: That plaintiff have the use of all or any of said right of way not fenced, as alleged, for the purpose of raising crops, free of charge, or otherwise, at any time.\\\" The court sustained said demurrer, and entered judgment of dismissal in favor of defendant, from which plaintiffs appeal.\\nWe think that the court below erred in sustaining said demurrer. The complaint stated a cause of action. The allegations of the complaint, for the purposes of the demurrer, are- taken as true. The contract was accepted by the defendant. It was fair on its face, equitable, reasonably certain, supported by a valuable consideration, contained mutual obligations, was executed by plaintiffs, and partly executed by the defendant, who acquired all of the benefits intended to be granted to it by said contract. It is apparent from the contract . itself that one of the controlling considerations for the execution of said contract was the agreement or stipulation relating to the placing of defendant's fences on both sides of its track at the edge of the pit ground, and the building of the switch or sidetrack on the lands of the plaintiffs. Now, having received the benefits of the said contract, the defendant, in equity, is required to bear the burdens thereof. It is apparent that no measure of damages can be found whereby the damages accruing to the plaintiffs by the failure of the defendant to comply with the contract in the particulars named can be ascertained with certainty. Analogous cases involving the same principle are numerous, but cases where the facts are the same as those in the case at bar probably cannot be found. Mr. Fry, in his admirable work upon Specific Performance of Contracts, third American edition, at section 81, says: \\\"Thus the court has in numerous cases enforced on railway companies contracts to make and maintain works for the convenience of the lands of the plaintiff. It has done this in cases in which the terms of the contract have been general and difficult to execute.\\\" And at section 82 the same author says: \\\"In one of these eases a contract by the company to construct and maintain, upon land belonging to, and to be provided by, a land owner, a siding of specified length alongside the line, was held capable of specific performance; and the company were not allowed to resist performance on the ground that the plaintiff had, before filing his bill, entered into a negotiation (which failed) for a money compensation.\\\" At section 83 the same author, in speaking of the decision in Price v. Mayor etc. of Penzance, 4 Hare, 506, says that \\\"Wigram, Y. C., observed that, the defendants having had the benefits of the contract in specie, the court would go any length that it could to compel them to perform their contract in specie.\\\" The learned author cites a number of English cases as supporting the text. It is true that the contract does not specify the length of the switch or sidetrack. In our view, that is not necessary. It is a well-established rule that where a party agrees to do a certain thing, and does not specify how it shall be done, the law implies a promise on his part to do it in the usual manner, and that it shall be complete and effectual for the use to which the same kind of thing is generally applied. The contract contemplated a sidetrack 'or switch capable of being used for the loading or unloading of cars as the same is usually done at country sidings. As to its length, that is a matter largely within the pleasure of the defendant; but it undertook to construct a sidetrack or switch upon the land furnished by plaintiffs, and that it must do, if plaintiffs establish their case as pleaded in the complaint, in such way that the same may be used in the manner and for the purposes for which switches are ordinarily used.\\nIt is argued by the respondent that the demurrer was properly sustained for the reason that the complaint shows that the contract was not executed by the defendant corporation. It was not signed by any agent or officer of the corporation for it, but that was not necessary. By accepting the contract, acting under it, and obtaining its benefits, the defendant impliedly agreed to comply with the covenants thereof. In a note to Woodruff v. Woodruff, 44 N. J. Eq. 349, 1 L. R. A. 380, 16 Atl. 4, it is said: \\\"Where one by deed poll grants land and conveys' any right, title, or interest in real estate to another, and where there is any money to be paid by the grantee to the grantor, or for his use and benefit, and the grantee accepts the deed and enters on the estate, the grantee becomes bound to make such payment.or perform such duty.\\\" A number of cases have been cited by the respondent to show that courts refuse to decree specific performance of building contracts. The rule that an ordinary building contract will not be enforced by decree for specific performance is' based upon several sound reasons, one of which is that, if the contractor refuses to comply with his contract, the landlord may perform the contract, and thus definitely determine the amount of damage sustained. This reason does not apply to the case at bar, for the plaintiffs have no right to enter upon the right of way which they have granted to the defendant for the purpose of constructing improvements thereon. They cannot construct the switch, or in any manner interfere with the roadbed of the defendant. Action for specific performance is the proper remedy. The facts pleaded show that the plaintiffs have no adequate remedy at law.\\nIt is also contended by respondent that a decree for specific performance so far as the fence is concerned would be an idle thing, as the defendant is, under the contract, the judge as to how much of the right of way is necessary to protect the cuts and fills; hence, that it may, under the contract, place its fence where it pleases on the right of way. We think the contract definitely fixes the position m which the fences shall be placed, viz., as near the edge of the pit ground on both sides of the track as possible, giving all necessary protection to the roadbed, cuts, and fills. As to whether it shall be one foot or some other distance is to be determined from the facts as they shall appear in the evidence, and may depend upon the depth of a cut or the height of a fill at a given point, and the liability of the earth to slide at given points. That distance may or may not be greater at one given point than at another. The facts showing necessity to place it beyond the edge of the pit -must appear. It is not difficult for the defendant to comply with the stipulation in the contract relating to fences.\\nIt is argued by the respondent that courts do not engage in building switches or railroads or fences, and cannot specifically enforce contracts of the kind involved in this ease, and it cites the case of Railroad Co. v. Rust (C. C.), 17 Fed. 275, as sustaining this position. We do not think the decision named has any bearing as a precedent in the ease at bar. The facts in that case are not at all like those set forth in the complaint in this action. It is true that the court will not undertake to build the switch contemplated in the said contract, but, if the facts alleged in the complaint shall be established at the trial, it will be the duty of the court to decree that the defendant shall do so, and the power to compel compliance with such decree undoubtedly exists in the court.\\nThe complaint alleges that, after the execution and delivery of said contract by plaintiffs to the defendant, the words \\\"if convenient\\\" were interpolated into it without the knowledge or consent of the plaintiffs, and asks that the contract be reformed by striking out said words. If the fact should be determined as alleged, said words should be stricken from said contract. While such alteration would be ground for rescission by the plaintiffs, if such alteration was in fact made, yet it does not affect their rights. The defendant could not add those words, and then accept it in its altered form, and bind the plaintiffs, without their knowledge or consent.\\nFor the foregoing reasons, the judgment of dismissal is reversed, and the cause remanded to the district court, with instructions to set aside the order sustaining the demurrer, and to enter an order overruling the same, dnd for further proceedings. Costs of appeal awarded to the appellants.\\nSullivan- and Stoekslager, JJ., concur. *\"}"
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+"{\"id\": \"335627\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Matthew L. VENEROSO, II, Defendant-Appellant\", \"name_abbreviation\": \"State v. Veneroso\", \"decision_date\": \"2003-05-14\", \"docket_number\": \"No. 27925\", \"first_page\": \"925\", \"last_page\": \"930\", \"citations\": \"138 Idaho 925\", \"volume\": \"138\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:07:17.831919+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge LANSING and Judge GUTIERREZ, concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Matthew L. VENEROSO, II, Defendant-Appellant.\", \"head_matter\": \"71 P.3d 1072\\nSTATE of Idaho, Plaintiff-Respondent, v. Matthew L. VENEROSO, II, Defendant-Appellant.\\nNo. 27925.\\nCourt of Appeals of Idaho.\\nMay 14, 2003.\\nMolly J. Huskey, State Appellate Public Defender; Paul S. Sonenberg, Deputy Appellate Public Defender, Boise, for appellant. Paul S. Sonenberg argued.\\nHon. Lawrence G. Wasden, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued.\", \"word_count\": \"2643\", \"char_count\": \"16325\", \"text\": \"PERRY, Judge.\\nMatthew L. Veneroso, II, appeals from his judgment of conviction entered following a conditional plea of guilty to possession of marijuana with the intent to deliver. We affirm.\\nI.\\nFACTS AND PROCEDURE\\nDuring the early morning hours of December 20, 2000, a police officer observed a vehicle parked on the street in a new housing development in Coeur d'Alene. The only buildings in the development were model homes. The street was dark and the officer observed no other persons or traffic. This was the officer's normal patrol area and, under these circumstances, he thought it was unusual for a vehicle to be parked there. The officer approached the vehicle and noticed that its engine was running. Two individuals were seated inside. Veneroso, the driver, told the officer that Veneroso and his passenger had been to a friend's home and had nowhere else to go. Because the two individuals appeared to be under eighteen and in violation of curfew, the officer asked them for identification. While Veneroso retrieved his driver's license, the officer used his flashlight to visually scan the passenger compartment. On the rear driver's side floorboard, the officer saw a small metal spoon commonly used by those involved with illegal drugs. In the front driver's side, the officer saw a gold-colored object near Veneroso's right leg tucked between the driver's seat and the center console. Each time he was asked about the object, Veneroso nervously responded that it was nothing and moved his hand and leg closer to the object. To get a better look, the officer moved toward the front of the vehicle where he could see through the windshield. The officer illuminated the object with his flashlight and discovered that it was a knife. Upon the officer's request, Veneroso stepped out of the vehicle. The knife, with a four or five-inch, double-edged blade, was removed. Based on these facts, the officer believed that the vehicle contained weapons or illegal items. Veneroso was arrested for possession of a concealed weapon, the knife.\\nThe passenger exited the vehicle while a search of the passenger compartment was conducted. Officers discovered, in the front seat area, two notebooks containing information the officers recognized as being associated with drug trafficking, including names, phone numbers, dollar amounts, and numbers indicating measurements of weight. In addition to the spoon in the rear seat area, the officers discovered that the center part of the rear seat could be pulled down to allow access to the trunk. An officer peered into the trunk through the center section and observed a backpack and a small safe. Inside the safe, officers found $240 in cash, drug paraphernalia, and plastic baggies containing methamphetamine and marijuana. Veneroso was charged with possession of methamphetamine with the intent to deliver, possession of marijuana with the intent to deliver, possession of marijuana, carrying a concealed weapon, and possession of drug paraphernalia. Veneroso moved to suppress the evidence obtained during the search of his vehicle as well as statements made to police. After a hearing, the district court denied the motion. Veneroso entered a conditional plea of guilty to possession of marijuana with the intent to deliver. I.C. \\u00a7 37-2732(a)(1)(B). Veneroso reserved the right to appeal the district court's order denying his motion to suppress. The remaining charges were dismissed.\\nOn appeal, Veneroso argues that the district court erred when it denied his motion to suppress, asserting that the search was incident to an arrest unsupported .by probable cause. Veneroso contends that, even if the arrest was lawful, the search exceeded the scope of the search incident to arrest exception to the warrant requirement. Additionally, Veneroso asserts that the doctrine of inevitable discovery did not apply in this case. The state argues that the arrest was supported by probable cause, that the search was not beyond the scope of the search incident to lawful arrest exception, and that the search was also proper under the automobile exception to the search warrant requirement.\\nII.\\nANALYSIS\\nThe standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact which are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.App.1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct.App.1999).\\nNeither party in this case disputes the facts. Rather, Veneroso argues that the officer lacked probable cause to arrest him for carrying a concealed weapon, thus rendering the search incident to his arrest unlawful. According to Veneroso, the evidence resulting from the search was illegally obtained and the district court should have granted his motion to suppress.\\nAn arrest is lawful when based upon probable cause. See State v. Kerley, 134 Idaho 870, 874, 11 P.3d 489, 493 (Ct.App.2000). Probable cause is \\\"the possession of information that would lead a person of ordinary care and prudence to believe or entertain an honest and strong presumption that such person is guilty.\\\" State v. Julian, 129 Idaho 133, 137, 922 P.2d 1059, 1063 (1996). In analyzing whether probable cause existed, this Court must determine whether the facts available to the officers at the moment of the search warranted a person of reasonable caution to believe that the action taken was appropriate. Id.; State v. Hobson, 95 Idaho 920, 925, 523 P.2d 523, 528 (1974). The application of probable cause to arrest must allow room for some mistakes by the arresting officer; however, the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusion of probability. Klingler v. United States, 409 F.2d 299, 304 (8th Cir.1969); Julian, 129 Idaho at 137, 922 P.2d at 1063. The facts making up a probable cause determination are viewed from an objective standpoint. Julian, 129 Idaho at 137, 922 P.2d at 1063. In passing on the question of probable cause, the expertise and the experience of the officer must be taken into account. State v. Ramirez, 121 Idaho 319, 323, 824 P.2d 894, 898 (Ct.App.1991).\\nIn this case, carrying a concealed weapon was the underlying offense for which Veneroso was arrested. Idaho Code Section 18-3302(7) provides that a person shall not carry a concealed weapon without a license to do so. Furthermore, I.C. \\u00a7 18-3302(9) provides that while in any motor vehicle inside the confines of a city, a person shall not carry a concealed weapon on or about his or her person without a license. Veneroso concedes that the knife in his vehicle was the type of weapon covered by the statute. However, Veneroso asserts that the knife was not concealed because the officer was able to identify the knife from a vantage point outside the vehicle.\\nThe general test of concealment is whether a weapon is so carried that it is not discernible by ordinary observation. State v. McNary, 100 Idaho 244, 247, 596 P.2d 417, 420 (1979). In State v. Button, 136 Idaho 526, 37 P.3d 23 (Ct.App.2001), a driver was stopped for fictitious display of license plates. The officer approached the driver's side of the vehicle, scanned the interior, and observed no weapons present. However, when asked about weapons, the driver informed the officer of a handgun located between the front seats and under a purse. The officer moved to the passenger's side and, looking through the window, spotted approximately two inches of the butt of a handgun between the seats. The driver was arrested for possession of a concealed weapon. A further search revealed possession of drugs. The driver moved to suppress the evidence found as a result of the arrest, arguing that because the handgun was visible to the officer, it was not concealed. The Court concluded that, because the weapon remained concealed until the officer moved to a particular vantage point, the weapon was not discernible by ordinary observation. The Court held that the district court did not err when it denied the driver's motion to suppress.\\nThe general facts of this case are, in all material respects, indistinguishable from the facts in Button. We conclude that the knife was not discernible by ordinary observation. Instead, it was identified by a trained officer, who was specifically looking for weapons, only after he moved to a particular vantage point. Had he not peered into the vehicle from a different angle, the knife would have gone unobserved as such. The positioning of the knife between the seat and the console concealed it from casual observation. These facts show that the officer had probable cause to believe Veneroso was unlawfully carrying a concealed weapon. Thus, we hold that Veneroso's arrest was lawful.\\nEven though Veneroso's arrest was lawfully made, the state must show that the search conducted after his arrest was reasonable. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Warrantless searches are presumed to be unreasonable and therefore violative of the Fourth Amendment. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). However, the state may overcome this presumption by demonstrating that a warrantless search either fell within a well-recognized exception to the warrant requirement or was otherwise reasonable under the circumstances. Id. In this case, the state argues as one alternative that the search was reasonable and lawful under the automobile exception to the search warrant requirement.\\nWe have previously held that Veneroso's arrest was lawful. Thus, the search of the passenger compartment was legal as a search incident to the arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Charpentier, 131 Idaho 649, 962 P.2d 1033 (1998). Veneroso asserts, however, that a search incident to arrest may not be extended into the trunk even where, as here, the trunk was accessible from the passenger compartment. We find it unnecessary to reach that issue because we conclude that the trunk search was lawful under the automobile exception to the warrant requirement. Under the automobile exception, police officers may search an automobile and the containers within it where they have probable cause to believe that the automobile contains contraband or evidence of a crime. State v. Gallegos, 120 Idaho 894, 898, 821 P.2d 949, 953 (1991). Probable cause is a flexible, common-sense standard. A practical, nontechnical probability that incriminating evidence is present is all that is required. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). The officer's determination of probable cause must be based on objective facts which would be sufficient to convince a magistrate to issue a warrant under similar circumstances. United States v. Ross, 456 U.S. 798, 808, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Shepherd, 118 Idaho 121, 124, 795 P.2d 15, 18 (Ct.App.1990). In passing on the question of probable cause, the expertise and the experience of the officer must be taken into account. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Ramirez, 121 Idaho at 323, 824 P.2d at 898. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Ross, 456 U.S. at 825, 102 S.Ct. 2157.\\nVeneroso's car was parked on a dark street during the early morning hours in a residential area that was under construction.\\nNo other persons or traffic were observed. This was the officer's normal patrol area, and he thought it was unusual for a vehicle to be parked there at that time. After approaching the vehicle, the officer observed a small spoon lying on the back seat floorboard. From previous training and experience, the officer recognized the spoon as of the type commonly used by those involved in illegal drugs. When the officer asked about the gold object in the driver's side of the vehicle, Veneroso nervously said it was nothing and moved his hand closer to the object. Veneroso's body language and statements led the officer to believe he was nervous and that there was something illegal in the vehicle that Veneroso did not want the officer to discover. Once inside the passenger compartment of the vehicle, officers discovered, in the front seat area, two notebooks containing information the officers recognized as being associated with drug trafficking, including names, phone numbers, dollar amounts, and numbers indicating measurements of weight. Under these facts, the officer's search of the trunk of Veneroso's vehicle was supported by probable cause to believe that additional weapons, drugs, or other contraband would be found in the vehicle and was justified without a warrant under the automobile exception.\\nAs noted by Veneroso, this exception was not relied upon by the state during the hearing on the motion to suppress, nor was it relied upon by the district court in denying Veneroso's motion. During the hearing on the motion, the state indicated that the automobile exception probably would not apply under the facts of this case. On appeal, Veneroso argues that the state cannot now argue that the warrantless search was valid under the automobile exception.\\nIn Shepherd, this Court addressed the issue of whether a warrantless search was valid under an exception to the warrant requirement that was not the basis of the lower court's decision denying the defendant's suppression motion. See Shepherd, 118 Idaho at 124, 795 P.2d at 18. In that ease, the lower court denied the defendant's suppression motion, finding that the search was valid under the inventory exception. The state's argument rested exclusively on the inventory exception both before the lower court and on appeal. This Court, however, held that the warrantless search was proper under the search incident to an arrest and automobile exceptions, and chose not to address the exception relied upon below. In so holding, this Court stated that the officer's explanation for searching the defendant's automobile is not controlling. Similarly, this Court is not limited by the prosecutor's argument or the absence thereof. State v. Bower, 135 Idaho 554, 558, 21 P.3d 491, 495 (Ct.App.2001). The lawfulness of a search is to be determined by this Court, based upon an objective assessment of the circumstances which confronted the officer at the time of the search. State v. Kopsa, 126 Idaho 512, 519 n. 4, 887 P.2d 57, 64 n. 4 (Ct.App.1994); Shepherd, 118 Idaho at 124, 795 P.2d at 18. In light of Shepherd and Bower, we uphold the warrantless search of Veneroso's vehicle under the automobile exception. We, therefore, need not address the search incident to arrest exception pursuant to Belton nor the issue raised by Veneroso regarding the doctrine of inevitable discovery.\\nIII.\\nCONCLUSION\\nThe facts available to the officer at the time of Veneroso's arrest were sufficient to support the officer's probable cause to believe Veneroso had committed the crime of carrying a concealed weapon. The search of the vehicle, including the trunk area was justified under the automobile exception to the warrant requirement. The district court did not err in denying Veneroso's motion to suppress. Accordingly, Veneroso's judgment of conviction for possession of marijuana with th\\u00e9 intent to deliver is affirmed.\\nChief Judge LANSING and Judge GUTIERREZ, concur.\"}"
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+"{\"id\": \"357928\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Mark McCUTCHEON, Defendant-Appellant\", \"name_abbreviation\": \"State v. McCutcheon\", \"decision_date\": \"1996-08-27\", \"docket_number\": \"No. 22482\", \"first_page\": \"168\", \"last_page\": \"170\", \"citations\": \"129 Idaho 168\", \"volume\": \"129\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:35:52.806593+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C.J., and LANSING, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Mark McCUTCHEON, Defendant-Appellant.\", \"head_matter\": \"922 P.2d 1094\\nSTATE of Idaho, Plaintiff-Respondent, v. Mark McCUTCHEON, Defendant-Appellant.\\nNo. 22482.\\nCourt of Appeals of Idaho.\\nAug. 27, 1996.\\nTimothy H. Gresback, Coeur d\\u2019Alene, for appellant.\\nHon. Alan G. Lance, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.\", \"word_count\": \"908\", \"char_count\": \"5473\", \"text\": \"PERRY, Judge.\\nThis case requires that we review the validity of a plea of guilty to a charge of driving without privileges. We affirm the judgment of conviction.\\nOn December 29, 1994, Mark McCutcheon was cited for driving without privileges. I.C. \\u00a7 18-8001. He pled guilty to that charge at his initial appearance in traffic court, and the magistrate entered a judgment of conviction. McCutcheon was sentenced to six months in the county jail. McCutcheon then appealed to the district court, claiming that the magistrate erred in accepting his guilty plea. The district court found that the magistrate had failed to inquire of McCutcheon whether a plea bargain existed and, hence, erred in accepting the plea. However, the district court held that such error was harmless and affirmed the judgment of conviction. McCutcheon appeals.\\nOn appeal to this Court, McCutcheon claims that the magistrate failed to properly advise him prior to accepting his guilty plea. McCutcheon argues that, because the magistrate failed to inquire of him whether any plea agreement existed, the judgment of conviction should be set aside on appeal. I.C.R. 11(c)(5). The state contends that any error that resulted from the magistrate's alleged omission was not fundamental error, and therefore, not properly a matter raised for the first time on appeal.\\nOn review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. State v. Bitt, 118 Idaho 584, 585 n. 1, 798 P.2d 43, 44 n. 1 (1990); State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App.1993). Issues not raised before the trial court cannot later be raised on appeal unless the alleged error would constitute \\\"fundamental error.\\\" State v. Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992); State v. Mauro, 121 Idaho 178, 180, 824 P.2d 109, 111 (1991). An error is fundamental when it so profoundly distorts the trial that it produces manifest injustice and deprives the accused of his fundamental right to due process. Lavy, 121 Idaho at 844, 828 P.2d at 873; Mauro, 121 Idaho at 180, 824 P.2d at 111.\\nThe voluntariness of the guilty plea and waiver is to be reasonably inferred from the record as a whole. State v. Carrasco, 117 Idaho 295, 300, 787 P.2d 281, 286 (1990); I.C.R. 11(c). It is well settled that the trial court is not specifically required to follow any prescribed litany or to enumerate rights which a defendant waives by pleading guilty, so long as the record as a whole, and all reasonable inferences drawn therefrom, show that the plea was voluntarily, knowingly and intelligently made. Carrasco, 117 Idaho at 300, 787 P.2d at 286, citing State v. Colyer, 98 Idaho 32, 557 P.2d 626 (1976); I.C.R. 11.\\nIdaho Criminal Rule 11(c)(5) requires that, \\\"where there is a plea agreement, the record must show 'the nature of the agreement and that the defendant was informed that the court is not bound by any promises or recommendation from either party as to punishment.'\\\" Mauro, 121 Idaho at 181, 824 P.2d at 112. The magistrate did not specifically inquire of McCutcheon as to the existence of a plea bargain. However, the record sufficiently indicates that no such agreement existed. Nothing in the record provides support for the existence of a plea agreement. McCuteheon has never claimed that he was promised a lesser or different sentence and is not attempting to enforce an alleged agreement that was somehow breached by the state. McCuteheon pled guilty at his initial appearance in traffic court. There is nothing in the record to indicate that McCuteheon had any contact with a prosecutor regarding the citation pri- or to entering his plea.\\nMcCuteheon was informed prior to his appearance, that he had the right to seek a continuance, plead not guilty or guilty. He was further advised that by pleading guilty he waived numerous rights. The magistrate specifically asked McCuteheon if he realized that the court could impose a sentence of a $500 fine, up to six months in jail and an additional six-month driver's license suspension. McCuteheon answered in the affirmative. The record indicates that McCuteheon was aware that he may receive the maximum penalty, and was, therefore, not under the impression that, as a result of a plea agreement with the prosecutor, he would receive a lesser sentence. If no agreement existed, further inquiry into the terms of the agreement was unnecessary. See I.C.R. 11(c)(5).\\nThere was no reversible error by the magistrate in accepting McCutcheon's plea. Hence, the judgment of conviction is affirmed.\\nWALTERS, C.J., and LANSING, J., concur.\\n. (c) Acceptance of plea of guilty. Before a plea of guilty is accepted, the record of the entire proceedings, including reasonable inferences drawn therefrom, must show:\\n(5) Whether any promises have been made to the defendant, or whether the plea is a result of any plea bargaining agreement, and if so, the nature of the agreement and that the defendant was informed that the court is not bound by any promises or recommendation from either party as to punishment.\"}"
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+"{\"id\": \"357963\", \"name\": \"Joy D. HUMMER, Plaintiff-Respondent, v. Jerry L. EVANS, in his capacity as Superintendent of the Idaho Department of Education, Defendant-Appellant\", \"name_abbreviation\": \"Hummer v. Evans\", \"decision_date\": \"1996-08-29\", \"docket_number\": \"No. 21796\", \"first_page\": \"274\", \"last_page\": \"281\", \"citations\": \"129 Idaho 274\", \"volume\": \"129\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:35:52.806593+00:00\", \"provenance\": \"CAP\", \"judges\": \"MeDEVITT, C.J., and JOHNSON, TROUT and SILAK, JJ., concur.\", \"parties\": \"Joy D. HUMMER, Plaintiff-Respondent, v. Jerry L. EVANS, in his capacity as Superintendent of the Idaho Department of Education, Defendant-Appellant.\", \"head_matter\": \"923 P.2d 981\\nJoy D. HUMMER, Plaintiff-Respondent, v. Jerry L. EVANS, in his capacity as Superintendent of the Idaho Department of Education, Defendant-Appellant.\\nNo. 21796.\\nSupreme Court of Idaho, Boise, February, 1996 Term.\\nAug. 29, 1996.\\nRehearing Denied Oct. 10, 1996.\\nCosho, Humphrey, Greener & Welsh, Boise, for appellant Jerry Evans. Howard Humphrey argued.\\nAlan G. Lance, Attorney General; Kirby D. Nelson, Deputy Attorney General, Boise, for appellant Idaho Department of Education.\\nSkinner, Fawcett & Mauk, Boise, for respondent. William L. Mauk argued.\", \"word_count\": \"3551\", \"char_count\": \"21758\", \"text\": \"SCHROEDER, Justice.\\nThis is an appeal from a Decision and Order entered after a court trial. The case concerns the termination of Joy Hummer, an employee of the Idaho Department of Education. The termination was based on a letter written by the employee to a judge related to the sentencing of a felon. The district court held that the termination violated public policy and awarded damages against Jerry Evans, a former State Superintendent of Public Instruction. Evans appeals the ruling of the district court.\\nI.\\nBACKGROUND AND PRIOR PROCEEDINGS\\nJoy Hummer was hired by the Idaho Department of Education (\\\"Department\\\") on September 12, 1988, as a consultant on Acquired Immune Deficiency Syndrome (AIDS) education. The consultant had the general responsibility to research and disseminate AIDS information to local educators, to provide in-service education on AIDS education to teachers and administrators, to represent the Department on task forces and to provide technical assistance to local educators on AIDS education and prevention. A subsequent letter of appointment dated July 1, 1991, provided that the employment was \\\"for the period beginning July 1,1991, and ending June 29, 1992, at an annual salary of Thirty Nine Thousand Dollars and no cents ($39,-000.00).\\\"\\nDuring her employment with the Department, Hummer experienced some public relations difficulties. She conducted an in-service training for the Mountain Home School District in early 1990 on the legal aspects of HIV-AIDS education. After a non-mandatory workshop some participants remained to discuss issues with Hummer. In the aftermath of a joking reference to approaches being taken by school districts elsewhere in the nation she showed them a list of condom slogans developed by school children. One teacher copied the list, and subsequently another teacher from Mountain Home asked Hummer to mail a copy of the slogans. The teacher from Mountain Home was outraged by the list and wrote Idaho legislators, some of whom were also distressed. Hummer wrote a letter of apology to the legislature. She also tendered her resignation which was not accepted. However, she lost one week's pay and was placed on probation for several months.\\nSubsequent to the slogan list problem, Hummer drafted a training notebook to be used by school districts for sex education. Evans was contacted by legislators who objected to some of the lessons in the notebook. Evans then directed the superintendents to return the notebooks to Hummer and made them available upon request only. No disciplinary action was taken against Hummer for the mailing of the training notebooks.\\nIn a June, 1991 evaluation, Hummer received a generally good evaluation. However, her supervisor noted the following:\\nJoy needs to continue to explore ways to meet the objectives of the project without creating a vocal uproar. The tenuous circumstances surrounding the project are not a result of Joy trying to meet the needs of the schools but the powerful influence of some, who are opposed to any sexual related programs in our schools.\\nDuring an AIDS education session for the Idaho Department of Probation and Parole, Hummer met an inmate, Kerry Stephen Thomas, who had tested positive for the HIV virus. Thomas was a Boise State University basketball player who had been convicted of statutory rape for his involvement with a young patient at a psychiatric facility where he worked. He had consensual sexual relations with several women after he knew he had tested positive for the HIV virus, but the criminal charges relating to those activities were dismissed as part of a plea bargain with the State. Hummer found Thomas's ignorance about his HIV status and his lack of anyone to talk to about his disease to be appalling. She found him personable and intelligent and hoped to persuade him to be a speaker on AIDS prevention.\\nThe attorney for Thomas was seeking to get his sentence reduced. On two occasions the attorney subpoenaed Hummer to provide testimony at hearings on the motion to re duce the sentence. The court hearings were vacated and reset. Hummer had told her supervisor, Mr. Pelton, that she had been subpoenaed; however, there had been no discussions about what her testimony would be. The sentencing hearing was ultimately set for a date when Hummer was scheduled to be out of town for a training conference. She told the attorney for Thomas of her problem, and it was decided that she could simply write a letter to the sentencing judge with the information which she would provide if she testified at the hearing.\\nWhile Hummer was drafting the letter, a co-worker suggested that Hummer contact the Department's legal counsel before submitting the letter since she was writing the letter on Department letterhead. At trial Hummer testified that the information officer for the Department had warned her after one of the previous conflicts that whatever she did, she did as a representative of the Department.\\nWithout contacting the Department's legal counsel or her supervisor, Hummer sent the following letter to the sentencing judge on Department letterhead:\\nTO WHOM IT MAY CONCERN:\\nStephen Thomas and I became acquainted when I presented an HIV/AIDS workshop to the probation parole program. After he had shared his HIV status and story, I continued to remain in contact by sending information about the virus and progress in medical research and improved prevention education.\\nAs we visited, Stephen asked me what my interest was in him personally? It had occurred to me that a black, basketball star who had been a hero to many youngsters and received the virus through heterosexual transmission would be a great asset in giving prevention messages to children.\\nNot realizing how prophetic that statement was, I began to \\\"court\\\" Stephen to see if he might be willing to visit with groups about his story. He is an articulate, intelligent man who could be a great asset to Idaho's prevention programs. Although he is a convicted felon, I believe his story needs to be told because if it can happen to the All-American black kid, it can happen to anyone.\\nIdaho has its very own Magic Johnson whose HIV story is worth hearing. If/When he is available, I would not hesitate to arrange contact with youth should he agree. Many school districts have requested HIV infected speakers and their presentations have been found to be effective on a short-term basis.\\nRespectfully,\\ns/\\nJoy Hummer\\nHIV/AIDS Education Consultant\\nThe sentencing judge referred to Hummer's letter in his decision to modify the sentence previously imposed on Thomas.\\nThe Department's policy on the handling of subpoenas was set forth in its Handbook for Employees under the provisions related to leaves. Employees who were subpoenaed in their official capacities were not required to take leave, but employees who were subpoenaed in a non-official capacity had to take accrued leave. There was no policy requiring an employee to notify anyone of a subpoena or the contents of testimony which might be given.\\nThe prosecutor handling the Thomas case was incensed when he determined that another state agency was supporting the sentence reduction. Evans was also angered that the letter appeared to represent a departmental view rather than a private view. Evans received numerous complaints about the impression the letter gave that the Department was using a convicted rapist as a role model.\\nOn February 27,1992, Evans wrote Hummer a letter of termination, effective February 28, 1992, attributing the letter to the sentencing judge as the basis for the termination. Evans wrote, \\\"While you certainly have every right to make such statements in your individual, private, capacity, the letter was written on State Department of Education letterhead and signed by yourself in your capacity as HIV/AIDS Education Consultant.\\\" Evans admonished Hummer's refusal to contact legal counsel prior to writing the letter and her refusal to share the letter with her supervisor. He indicated that Hummer's poor judgment jeopardized the AIDS program.\\nHummer appealed the \\\"recommendation\\\" of Evans to the Idaho Board of Education. However, the Board stated that \\\"the Board has no jurisdiction over the Department of Education terminations,\\\" concluding that Hummer was an employee of the Superintendent of Public Instruction.\\nHummer filed a Complaint in the district court against Evans, the Idaho Department of Education and the Idaho State Board of Education alleging: (1) termination in violation of public policy, (2) breach of an implied contract, (3) breach of the implied covenant of good faith and fair dealing, and (4) intentional interference with a contract. The case was tried before the district court without a jury. The district court issued its initial decision on February 8,1994, concluding that Hummer's termination was a violation of public policy:\\nThere is an overriding public policy interest in obtaining candid information for use in sentencing decisions. Regardless of the content of the testimony, courts need the input of a variety of people in determining the penalty to be imposed upon a person who has committed a crime. Idaho law requires sentencing judges to consider a variety of factors: the need to protect the public, the need to deter the defendant or those similarly minded, rehabilitation and punishment. The dominant goal \\u2014 to protect the public interest and safety \\u2014 can only be served when judges have the benefit of information from a variety of sources. The need for information is strong regardless of whether the information favors or disfavors the defendant. To allow employers to terminate the employment of someone who is providing information to a sentencing court is directly against the public policy of the state of Idaho.\\nSince Hummer had been subpoenaed, the court concluded that \\\"[i]t is unfair to allow an employee to be sandbagged by punishing them for doing what the law compels.\\\" The district court focused on the fact that there was not a written policy addressing employees' responses to subpoenas and found that \\\"it is clear that the reason for her termination in the Spring of 1992 was the letter she wrote in support of the Thomas sentence reduction.\\\" The court concluded that the Department could have required a disclaimer that emphasized that the employee was providing only a personal view, but the Department had not provided such a requirement.\\nIn determining the appropriate amount of damages the district court posed the following question: \\\"[H]ow long is it reasonable to assume that Joy Hummer would have remained with the Department of Education?\\\" The Department indicated that Hummer would not have had her letter of appointment renewed. Hummer also expressed doubt that her employment with the Department would have continued until retirement. The court recognized the philosophical differences between the Department and Hummer and acknowledged the strong likelihood that her contract would not have been renewed, stating the following:\\nThe leadership abilities, strength, commitment and enthusiasm which made her a good teacher led her into a series of blunders which endangered the entire Aids program and which would, more probably than not, have resulted in the nonrenewal of her appointment.\\nThe district court entered judgment in favor of Hummer and against Evans, in his official capacity. The court awarded Hummer $10,349.71, together with prejudgment interest, which is the amount she would have received in wages through the end of June, 1992. On March 14, 1994, Hummer filed a Motion to Alter or Amend Judgment, requesting the court to apply tort principles for the damage calculations and increase the award of damages to an amount of $85,480.\\nIn its Order dated December 19, 1994, the court found that Hummer's difficulty in obtaining other employment was \\\"directly attributable to her abrupt discharge.\\\" The court relied on O'Dell v. Basabe, 119 Idaho 796, 810 P.2d 1082 (1991), in determining the amount of future lost wages to be awarded. In O'Dell the Court determined that the relevant factors include \\\"the plaintiffs salary history, scheduled or mandated pay raises, and a finding based on the evidence in the record of the time which it will take the plaintiff to find comparable employment with a commensurate salary, at which time the award of front pay should be discounted.\\\" 119 Idaho at 812, 810 P.2d at 1098.\\nBased on her unsuccessful attempts to obtain new employment and the court's conclusion that \\\"it is more probable than not that, absent the abrupt discharge, she would have found a job with at least the same benefits and salary,\\\" the court concluded that an additional year's salary was a reasonable amount of additional damages. Consequently, the court awarded an additional $46,551.38 plus costs of $1,070.10, bringing the aggregate sum to $60,100.47.\\nII.\\nSTANDARD OF REVIEW\\nThe credibility and weight to be given evidence is in the province of the trier of fact, and the findings made by the trial judge will not be set aside unless clearly erroneous. Sun Valley Shamrock Resources, Inc. v. Travelers Leasing Corp., 118 Idaho 116, 118, 794 P.2d 1389, 1391 (1990); I.R.C.P. 52(a). This Court will uphold the trial court's findings of fact if supported by substantial and competent evidence. Ireland v. Ireland, 123 Idaho 955, 957-58, 855 P.2d 40, 42-43 (1993); In re Baby Boy Doe, 127 Idaho 452, 456, 902 P.2d 477, 481 (1995). On issues of law, this Court exercises free review. Ausman v. State, 124 Idaho 839, 841, 864 P.2d 1126, 1128 (1993).\\nIII.\\nTHE DISTRICT COURT'S DETERMINATION THAT THE TERMINATION OF HUMMER BY THE DEPARTMENT WAS A VIOLATION OF PUBLIC POLICY IS SUPPORTED BY SUBSTANTIAL COMPETENT EVIDENCE.\\nThe district court determined that Hummer was an employee \\\"terminable at will.\\\" A court's determination of an employee's employment status is a factual finding. See Jones v. EG & G Idaho, Inc., 111 Idaho 591, 594, 726 P.2d 703, 706 (1986). The parties agree that under Idaho statutory provisions and the Department Handbook she was an employee at will despite the term specified in the letter of appointment.\\nThe employer of an employee at will may terminate the relationship at any time for any reason without incurring liability, unless the motivation for the termination contravenes public policy. Ray v. Nampa School Dist. No. 131, 120 Idaho 117, 120, 814 P.2d 17, 20 (1991); Jones, 111 Idaho at 593, 726 P.2d at 705; MacNeil v. Minidoka Memorial Hosp., 108 Idaho 588, 589, 701 P.2d 208, 209 (1985).\\nThis Court established the public policy exception to the employment at will doctrine in Idaho in Jackson v. Minidoka Irrigation Dist., 98 Idaho 330, 563 P.2d 54 (1977):\\nThe employment at will rule is not, however, an absolute bar to a claim of wrongful discharge. As a general exception to the rule allowing either the employer or the employee to terminate the employment relationship without cause, an employee may claim damages for wrongful discharge when the motivation for the firing contravenes public policy.\\n98 Idaho at 333, 563 P.2d at 57. The Jackson court set forth examples of the public policy exception from other jurisdictions: Petermann v. International Bhd. of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959) (employee discharged for refusing to commit perjury); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973) (employee fired for filing worker's compensation claim); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (employee was fired for serving on jury duty against the wishes of her employer); Jackson, 98 Idaho at 333-34, 563 P.2d at 57-58.\\nIn Watson v. Idaho Falls Consol. Hosps. Inc., 111 Idaho 44, 720 P.2d 632 (1986), this Court upheld a jury instruction which instructed that a termination based on legal union activities would be contrary to public policy established by the Legislature. In Ray v. Nampa School Dist. No. 131, this Court found that terminating an employee for reporting safety code violations to the state electrical engineer is contrary to the public policy established by the legislature. 120 Idaho 117, 814 P.2d 17.\\nA termination of an employee based on the employee's compliance with a court-issued subpoena is contrary to the public policy of this state, as established by the legislature and this Court. Failure to comply with a subpoena may be punished by contempt. I.C. \\u00a7 19-3010; I.R.C.P. 45(f). The district court was correct to point out that there exists an overriding public policy interest in obtaining candid, truthful information for use in court proceedings. Regardless of the content of the testimony, courts need the input from a variety of sources when making vital decisions, such as determining the penalty to be imposed on a person convicted of committing a crime. Persons must appear as witnesses when subpoenaed and must testify truthfully, subject to penalties for contempt and prosecution for perjury-\\nHummer provided the letter at issue to the sentencing judge in lieu of appearing in court, as commanded by the subpoena. Such evidence is protected to the same extent as live testimony. The termination of Hummer for responding to the court-issued subpoena was a violation of the public policy of the state of Idaho and is a basis for a claim of wrongful termination. Jackson, 98 Idaho at 333, 563 P.2d at 57.\\nIV.\\nHUMMER IS ENTITLED TO CONTRACT DAMAGES FOR THE WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY.\\nIn Jackson, 98 Idaho at 334, 563 P.2d at 58, this Court indicated that employment at will constitutes a contract. The Jackson Court relied upon Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), in which the New Hampshire court recognized the cause of action for discharge in violation of public policy as a breach of the employment contract. Inherent in the Monge court's decision is the conclusion that all employees are subject to employment contracts, \\\"whether at will or for a definite term.\\\" 316 A.2d at 551. In Jackson this Court also referred to a \\\"contract of employment at will,\\\" which exemplifies this Court's intent to classify a cause of action for wrongful termination in violation of public policy as a breach of contract rather than a tort. 98 Idaho at 334, 563 P.2d at 58.\\nAll employment contracts terminable at will are subject to the covenant of good faith and fair dealing. Metcalf v. Intermountain Gas Co., 116 Idaho 622, 778 P.2d 744 (1989). \\\"A breach of the covenant is a breach of the employment contract, and is not a tort. The potential recovery results in contract damages, not tort damages.\\\" Id. at 626, 778 P.2d at 748. Similarly, a cause of action for wrongful termination of a contract of employment at will based on a violation of public policy is a contract cause of action which results in contract damages.\\n\\\"Front pay,\\\" as future lost wages, is not too speculative as a matter of law to be awarded as an element of damages. O'Dell v. Basabe, 119 Idaho at 812, 810 P.2d at 1098. \\\"The fact that contract damages are not capable of exact proof does not preclude their availability as a matter of law. The rule is that the measure of damages is such as will compensate for the loss suffered as the result of a breach of contract.\\\" Id. Damages relating to lost future benefits must be proven with \\\"reasonable certainty\\\":\\nWhere a claim is asserted for the recovery of future benefits, the burden of proof is upon the plaintiff to prove with reasonable certainty the amount of the loss caused by the conduct of the defendant. In the context of an employment contract for an indefinite term, a plaintiff might resort to evidence such as employment history to show likelihood of future employment.\\nId.\\nHummer is entitled to contract damages based on the Department's wrongful termination of her in violation of public policy. She is entitled to the initial award of $10,349.71, which is the amount of salary and benefits she would have received through the ending date set forth in her letter of employment \\u2014 June 29, 1992. A deprivation of that amount of salary and benefits has been shown with \\\"reasonable certainty.\\\" O'Dell, 119 Idaho at 812, 810 P.2d at 1098.\\nHummer has not proven with \\\"reasonable certainty\\\" that her employment with the Department would continue beyond the ending date set forth in the letter of appointment. The record adequately shows and the district court recognized that Hummer \\\"would not have had her contract renewed\\\" based on various public relations difficulties. Hence, Hummer has not shown a \\\"likelihood of future employment\\\" with the Department. Id. The fact that she had not found commensurate employment as of the date of the hearing on the additur does not establish a basis for the additur. Consequently, the district court's award of additional damages of $46,551.38 is reversed.\\nV.\\nCONCLUSION\\nThe district court's conclusion that Hummer's termination was a violation of public policy is affirmed. She is entitled to the initial award of damages and costs. The district court's grant of additur damages is reversed. Each party has prevailed in part on appeal. No costs or attorney fees are awarded.\\nMeDEVITT, C.J., and JOHNSON, TROUT and SILAK, JJ., concur.\"}"
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+"{\"id\": \"3677492\", \"name\": \"IDAHO SCHOOLS FOR EQUAL EDUCATIONAL OPPORTUNITY; Moscow School District #281; Lapwai School District 341; Mullan School District # 392; Potlatch School District # 285; Kendrick Joint School District # 283; Cascade School District #422; St. Maries Joint School District # 41; Orofino Joint School District # 171; Culdesac Joint School District # 342; Genesee Joint School District #282; Highland-Craigmont Joint School District #305; Rockland School District # 382; Horseshoe Bend School District #73; Richfield School District #316; Boundary County District # 101; Kamiah Joint District # 204; Nez Perce District # 302; Cottonwood District # 242; Midvale School District # 433; Post Falls School District # 272; And Bonner County School District # 82, Plaintiffs-Counter-defendants-Respondents, and Brian Silflow and Ganel Silflow, by and through their parents, Dale and Patti Silflow, husband and wife; Donald Paul Crea by and through his father, Gary Crea; Andy Cook, by and through his father, Larry Prally; Tavia Gilbert, by and through her parents; Terry and Carolyn Gilbert; Gregory Lamm, by and through his mother, Kathy Lamm; Sara Kae Gomez, by and through her parents, Kathleen and Jose Gomez; Dietrich Stella and Jennifer Stella, by and through their parents, Charles and Rebecca Stella; Gregory Daniels, by and through his mother, Nancy Daniels; Gina M. Decker, by and through her parents, Gene and Linda Decker; Jennifer A. Alder, by and through her parents, Max and Judy Alder; Angela F. Gerrard, by and through her parents, Roger and Rhoda Gerrard; Catherine A. Sporleder, by and through her mother; Joanne Sporleder; Morgan Rounds and Seth Rounds, by and through their parents, Ivan Rounds and Brenda Rounds; Kelli Longeteig, by and through her parents, Willfred Longeteig and Beverly Longeteig; Don Hoffer, by and through his mother, Kit Hoffer; Sarah Malloy, by and through her mother, Susie Malloy; Kory Turnbow, by and through his mother, Donagene Turnbow; Shawna Olsen, Shannon Olsen and Ryan Olsen, by and through their mother, Teresa Olsen; Krista Anne Goetz, by and through her father, Allan J. Goetz; Chad Knee, by and through his parents, kelly and karen knee; on behalf of themselves and all other school people of the State of Idaho similarly situated, Plaintiffs-Respondents, v. The STATE of Idaho, Defendant-Counterclaimant-Appellant\", \"name_abbreviation\": \"Idaho Schools for Equal Educational Opportunity v. State\", \"decision_date\": \"2005-12-21\", \"docket_number\": \"No. 29616\", \"first_page\": \"450\", \"last_page\": \"464\", \"citations\": \"142 Idaho 450\", \"volume\": \"142\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:20:51.721057+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justice BURDICK and Justices Pro Tern KIDWELL and HURLBUTT concur.\", \"parties\": \"IDAHO SCHOOLS FOR EQUAL EDUCATIONAL OPPORTUNITY; Moscow School District #281; Lapwai School District 341; Mullan School District # 392; Potlatch School District # 285; Kendrick Joint School District # 283; Cascade School District #422; St. Maries Joint School District # 41; Orofino Joint School District # 171; Culdesac Joint School District # 342; Genesee Joint School District #282; Highland-Craigmont Joint School District #305; Rockland School District # 382; Horseshoe Bend School District #73; Richfield School District #316; Boundary County District # 101; Kamiah Joint District # 204; Nez Perce District # 302; Cottonwood District # 242; Midvale School District # 433; Post Falls School District # 272; And Bonner County School District # 82, Plaintiffs-Counter-defendants-Respondents, and Brian Silflow and Ganel Silflow, by and through their parents, Dale and Patti Silflow, husband and wife; Donald Paul Crea by and through his father, Gary Crea; Andy Cook, by and through his father, Larry Prally; Tavia Gilbert, by and through her parents; Terry and Carolyn Gilbert; Gregory Lamm, by and through his mother, Kathy Lamm; Sara Kae Gomez, by and through her parents, Kathleen and Jose Gomez; Dietrich Stella and Jennifer Stella, by and through their parents, Charles and Rebecca Stella; Gregory Daniels, by and through his mother, Nancy Daniels; Gina M. Decker, by and through her parents, Gene and Linda Decker; Jennifer A. Alder, by and through her parents, Max and Judy Alder; Angela F. Gerrard, by and through her parents, Roger and Rhoda Gerrard; Catherine A. Sporleder, by and through her mother; Joanne Sporleder; Morgan Rounds and Seth Rounds, by and through their parents, Ivan Rounds and Brenda Rounds; Kelli Longeteig, by and through her parents, Willfred Longeteig and Beverly Longeteig; Don Hoffer, by and through his mother, Kit Hoffer; Sarah Malloy, by and through her mother, Susie Malloy; Kory Turnbow, by and through his mother, Donagene Turnbow; Shawna Olsen, Shannon Olsen and Ryan Olsen, by and through their mother, Teresa Olsen; Krista Anne Goetz, by and through her father, Allan J. Goetz; Chad Knee, by and through his parents, kelly and karen knee; on behalf of themselves and all other school people of the State of Idaho similarly situated, Plaintiffs-Respondents, v. The STATE of Idaho, Defendant-Counterclaimant-Appellant.\", \"head_matter\": \"129 P.3d 1199\\nIDAHO SCHOOLS FOR EQUAL EDUCATIONAL OPPORTUNITY; Moscow School District #281; Lapwai School District 341; Mullan School District # 392; Potlatch School District # 285; Kendrick Joint School District # 283; Cascade School District #422; St. Maries Joint School District # 41; Orofino Joint School District # 171; Culdesac Joint School District # 342; Genesee Joint School District #282; Highland-Craigmont Joint School District #305; Rockland School District # 382; Horseshoe Bend School District #73; Richfield School District #316; Boundary County District # 101; Kamiah Joint District # 204; Nez Perce District # 302; Cottonwood District # 242; Midvale School District # 433; Post Falls School District # 272; And Bonner County School District # 82, Plaintiffs-Counter-defendants-Respondents, and Brian Silflow and Ganel Silflow, by and through their parents, Dale and Patti Silflow, husband and wife; Donald Paul Crea by and through his father, Gary Crea; Andy Cook, by and through his father, Larry Prally; Tavia Gilbert, by and through her parents; Terry and Carolyn Gilbert; Gregory Lamm, by and through his mother, Kathy Lamm; Sara Kae Gomez, by and through her parents, Kathleen and Jose Gomez; Dietrich Stella and Jennifer Stella, by and through their parents, Charles and Rebecca Stella; Gregory Daniels, by and through his mother, Nancy Daniels; Gina M. Decker, by and through her parents, Gene and Linda Decker; Jennifer A. Alder, by and through her parents, Max and Judy Alder; Angela F. Gerrard, by and through her parents, Roger and Rhoda Gerrard; Catherine A. Sporleder, by and through her mother; Joanne Sporleder; Morgan Rounds and Seth Rounds, by and through their parents, Ivan Rounds and Brenda Rounds; Kelli Longeteig, by and through her parents, Willfred Longeteig and Beverly Longeteig; Don Hoffer, by and through his mother, Kit Hoffer; Sarah Malloy, by and through her mother, Susie Malloy; Kory Turnbow, by and through his mother, Donagene Turnbow; Shawna Olsen, Shannon Olsen and Ryan Olsen, by and through their mother, Teresa Olsen; Krista Anne Goetz, by and through her father, Allan J. Goetz; Chad Knee, by and through his parents, kelly and karen knee; on behalf of themselves and all other school people of the State of Idaho similarly situated, Plaintiffs-Respondents, v. The STATE of Idaho, Defendant-Counterclaimant-Appellant.\\nNo. 29616.\\nSupreme Court of Idaho, Boise,\\nSeptember 2005 Term.\\nDec. 21, 2005.\\nSee also, 140 Idaho 586, 97 P.3d 453.\\nHon. Lawrence G. Wasden, Attorney General, Boise, for appellant. James D. Carlson argued.\\nHuntley Park, LLP, Boise, for respondents. Robert C. Huntley Jr. argued.\", \"word_count\": \"8463\", \"char_count\": \"52840\", \"text\": \"TROUT, Justice.\\nThis is an appeal of a district court decision granting declaratory judgment against the State of Idaho in an action challenging the adequacy and method of funding public education in Idaho. After conducting a trial in 2000, the district court issued Findings of Fact and Conclusions of Law in early 2001 in which it determined the State has failed in its constitutional duty to provide a thorough education for Idaho's public school students in a safe environment conducive to learning, especially as it pertains to the poorest of school districts. The State appeals the judgment, as well as further district court orders addressing remedial measures.\\nI.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nThis is the fifth time this case has been brought on appeal to this Court since the filing of the initial complaint in June 1990. The Respondents are the Idaho Schools for Equal Educational Opportunity, an unincorporated association of school district superintendents of several Idaho public school districts, various school districts and several parents of school children attending public schools in Idaho (collectively referred to as ISEEO), and the Appellant is the State of Idaho (State). In the district court, ISEEO sought a declaratory judgment that \\\"the present level and method of funding for Idaho's public schools [is] unconstitutional.\\\" The suit is based upon Article IX, \\u00a7 1 of the Idaho Constitution, which reads as follows:\\nThe stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the Legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, fine common schools.\\nIn the first appeal, this Court determined ISEEO had standing to sue and clarified that it is the judicial branch's constitutional duty to define the meaning of the Idaho Constitution and what constitutes a \\\"thorough system of public, free schools.\\\" See Idaho Schs. For Equal Educ. Opportunity v. Evans, 123 Idaho 573, 583, 850 P.2d 724, 734 (1993) (ISEEO I). After ISEEO I, the Legislature made several changes to Idaho's public school system, such as increasing public school appropriations and directing the State Board of Education (SBE) to develop new rules. In the second appeal, this Court determined the legislative changes did not make the lawsuit moot. See Idaho Schs. For Equal Educ. Opportunity ex. rel. Eikum v. State Bd. of Educ. ex. rel. Mossman, 128 Idaho 276, 912 P.2d 644 (1996) (ISEEO II). The case was remanded for the district court to address the issue of whether the funding system met the Legislature's obligation under the Idaho Constitution to provide a \\\"thorough system\\\" of public education. Id. The case came back to this Court and in ISEEO III, this Court concluded the new rules drafted by SBE relating specifically to facilities met the constitutional requirement of thoroughness. See Idaho Schs. For Equal Educ. Opportunity v. State, 132 Idaho 559, 976 P.2d 913 (1998) (ISEEO III). We noted, \\\"a safe environment conducive to learning is inherently part of a thorough system of public, free common schools....\\\" ISEEO III, 132 Idaho at 566, 976 P.2d at 920. On remand, the district court was directed to determine the narrow issue of whether the Legislature had provided a means to fund facilities that provide a safe environment conducive to learning, pur suant to the thoroughness requirement of Article IX, \\u00a7 1.\\nThe district court held a court trial in 2000, and in 2001 entered its Findings of Fact and Conclusions of Law (2001 Findings). The district court concluded the system of school funding established by the Legislature was insufficient to meet the constitutional requirement because reliance on loans alone to pay for major repairs or the replacement of unsafe school buildings was inadequate for the poorer school districts. The district court deferred any remedial action to allow the Legislature time to address the court's findings. However, in late 2002 when the Legislature, in the district court's opinion, had failed to take appropriate action, the district court began implementing its remedial measures, including a phase of information gathering and the appointment of a Special Master.\\nIn 2003, the Legislature passed HB 403, which imposed various restrictions on lawsuits related to school funding. In ISEEO IV, this Court affirmed the district court's determination that HB 403 was unconstitutional. See Idaho Schs. For Equal Educ. Opportunity v. State, 140 Idaho 586, 97 P.3d 453 (2004) (ISEEO IV). All other issues having been resolved, this appeal finally addresses the district court's 2001 Findings and the court's final determination that the current state \\\"system based upon loans alone is not adequate to meet the constitutional mandate to establish and maintain a general, uniform, and thorough system of public, free common schools in a 'safe environment conducive to learning' for Idaho's poorest school districts.\\\" We agree with this conclusion.\\nII.\\nANALYSIS\\nWe note at the outset that in complex litigation such as this, it is to be expected myriad issues will be raised on appeal. Several of the issues raised will not be analyzed here, however, as they concern the remedial phase of the litigation and are raised in another appeal pending before this Court. Thus, the State's arguments relating to the appointment of a Special Master, the payment of the Special Master, and whether the Special Master may appoint as assistants individuals who had previously been involved as witnesses for ISEEO will not be considered until those issues are properly before this Court in the suspended appeal of Fourth District Court v. Bail.\\nA. ISEEO and its representative capacity\\nThe first question we will consider is broadly stated as whether ISEEO may litigate and obtain a judgment on behalf of school districts that are not a party to this lawsuit. This Court has repeatedly held ISEEO has standing to seek a declaration that the Legislature has failed to carry out its constitutional responsibility to provide a thorough system of public education. See ISEEO I; ISEEO IV. Organizational standing clearly confers on ISEEO the ability to represent its members, but because the declaration ISEEO seeks applies to all school districts throughout the state, ISEEO cannot be limited to presenting evidence concerning only the named districts. The underlying issue in this case is whether the Legislature has provided the proper level and method of funding school facilities to create a safe environment conducive to learning, not whether particular districts need additional funds for facility improvements. Accordingly, ISEEO must be allowed to present statewide evidence of facility problems, including safety concerns of districts which have settled or were never parties to this lawsuit. Similarly, it is appropriate for the district court's judgment to be entered on behalf of those ISEEO members who presented no evidence at trial. ISEEO is not constrained to provide evidence relating only to party districts, nor must ISEEO provide evidence concerning every party district. Again, the focus of this litigation is on the adequacy of the Legislature's mechanism for funding public school districts; a judgment that such a funding mechanism is unconstitutional will necessarily affect all school districts throughout the state, regardless of whether those districts presented evidence at trial, previously settled, or were never even parties to this lawsuit. ISEEO, though not technically representing certain school districts, is entitled to show statewide safety problems caused by the Legislature's current methods and levels of funding.\\nB. Thoroughness\\nNext, we briefly turn to the issues of whether the definition of \\\"thorough\\\" as used in our constitution is a question of law or fact, and whether state standards relating to educational coursework and programs were sufficient to provide for a thorough education. In its 2001 Findings, the district court responded to the State's allegations that the school districts were misusing their funds for superfluous programs instead of addressing building safety issues by concluding it was necessary to go beyond the current state educational standards in order for the districts to provide a thorough education. The State charges the district court erroneously converted the issue of defining what is thorough into a question of fact in determining the state standards were insufficient. As this Court stated in ISEEO I, it is our constitutional duty to define the meaning of the thoroughness requirement of Art. 9 \\u00a7 1, and so the definition of thorough is clearly a question of law. See ISEEO I, 123 Idaho at 583, 850 P.2d at 734. We again emphasize the current issues before the Court today relate solely to whether the Legislature has failed to provide an adequate means of funding school facilities. To the extent the district court addressed the adequacy of state standards relating to course work and programming, such a discussion is irrelevant to the issues presented on this appeal. Thus, we decline to analyze thoroughness as it relates to course work and programming.\\nC. Adequacy of evidence\\nThe next issue raised by the State relates to the adequacy of the facts the district court relied on in its 2001 Findings. The standard for the adequacy of factual findings, over which appellate courts exercise free review, is whether they are explicit enough to give appellate courts a clear understanding of the basis of the distinct court's decision. In re Leavitt, 171 F.3d 1219, 1223 (9th Cir.1999). The district court's 2001 Findings addressed, among other things, the many safety concerns of specific school districts, such as structural problems and fire hazards. The district court also made several generalized factual findings, such as \\\"Idaho's schools, particularly those in rural areas, are stretched to the breaking point in meeting the educational needs of their charges.\\\" The State takes issue with these more generalized findings, arguing the district court's mandate from this Court in ISEEO III required specific facts to determine if particular facilities in specific school districts provided a safe environment conducive to learning. In making this argument, the State attempts to refocus this litigation into small, district-by-district battles instead of addressing the larger, overall issue of the Legislature's constitutional duty towards public education in Idaho. The State has mischaracterized this Court's order on remand, which was to determine whether the Legislature has provided a means to fund facilities that provide a safe environment conducive to learning, not whether each Plaintiff school district's facilities were adequate to provide a safe environment. In short, the State fails to grasp the relevance of the adage \\\"the whole is greater than the sum of its parts.\\\" Since the issue is systemic in nature and the admitted evidence so voluminous, the district court did not commit any error in making some generalized findings about facility problems, after pointing out some specific and illustrative examples.\\nThe State also alleges several of the 2001 Findings were not supported in the record by substantial and competent evidence. A district court's findings of fact will not be set aside unless they are clearly erroneous. Wood v. City of Lewiston, 138 Idaho 218, 61 P.3d 575 (2002). If the findings are supported by substantial and competent, though conflicting, evidence, they will not be disturbed by this Court. Id. The district court need not resolve every factual dispute between the parties; rather, the district court need only address those factual issues material to the resolution of the claims. See Quiring v. Quiring, 130 Idaho 560, 944 P.2d 695 (1997).\\nWhile the State quibbles with some of the evidence used to support the 2001 Find ings, the State has failed to show how the disputed findings were material to the overall conclusion the Legislature has failed in its constitutional duty to provide a thorough public education system. The record in this ease involves a transcript of more than 3,500 pages, thousands of pages of pre-filed testimony and thousands of pages of exhibits. The record also includes uncontradicted testimony from numerous school administrators and superintendents outlining facility problems and the barriers to correcting them. The State's pedantic focus on such details as whether it would cost $7 million to build a new school as opposed to the district court's finding of $10 million distracts from the overwhelming evidence in the record documenting serious facility and funding problems in the state's public education system. Among such evidence is the State of Idaho's own 1993 Statewide School Facilities Needs Assessment, which documented facility deficiencies and concluded 57% of all Idaho school buildings had \\\"serious\\\" safety concerns. A 1999 update to that report noted 53 of the buildings needing serious and immediate attention in 1993 had deteriorated even further.\\nIn addition, the district court found that a 1999 inspection of the Wendell middle school, built in 1915, revealed crumbling concrete, which led to the condemnation of the school. The abandonment of the school resulted in \\\"double shifting\\\" with the high school, meaning middle school students attended the high school part of the week while the high school students attended the rest of the week and on Saturdays. Another example illustrating both the safety concerns and the difficulties of funding remedies is the American Falls High School. In 1997, a seismic analysis concluded the high school would likely collapse should a \\\"probable seismic event\\\" occur. Repairs were made in 2000 to lessen the danger, but the American Falls School District decided it needed a new high school. It took three unsuccessful attempts before the district was finally able to gain voter approval of a bond to construct a new high school with a scheduled completion date of 2002. In its 2001 Findings, the district court somberly observed, \\\"It will be five years from the time that the danger was discovered until a new structure is built. It took three years to take measures to lessen the danger to the students.\\\" Similarly, it took over five years from the date of an initial safety inspection report that the Troy Junior Senior High School was unsafe for occupancy to complete a more intensive review, which also recommended the building no longer be used. A superintendent testified that the surrounding community had supported the district to the best of its ability but could not afford any more levies. As of 2001, the building was still in use.\\nThe district court explored the funding problems in great detail, and concluded the \\\"glaring gap\\\" in the funding system was the \\\"lack of any mechanism to deal quickly with major, costly, potentially catastrophic conditions by districts which are low in population, have a low tax base and are in economically depressed areas.\\\" The district court proceeded to identify the difficulty of passing bonds in various school districts, including St. Maries, in which a \\\"much pared down bond request\\\" finally passed in 1987, after repeated bond levies from 1980-1986 failed to garner the required supermajority vote. The district court noted another scenario illustrating the difficulties associated with the supermajority vote requirements in bond elections:\\nIn Jerome School District #261, there have been major problems in using bonds. In 1996, a $12.6 million bond lost with a 64.5% vote in favor. In 1997, a $13.9 million bond levy lost with a 66.3% vote in favor. In 1998, a $13.9 million bond lost with a 62.5% \\\"yes\\\" vote____A small supplemental levy passed. The district lost a $10.9 million dollar bond vote for a new middle school with a 59% approval. They do need a new school to provide a thorough education.\\nOne superintendent testified the Cottonwood School District \\\"had to pass an override levy just to buy paper and books, pay the utility bills and keep the doors open.\\\"\\nThe list of safety concerns and difficulties in getting funds for repairs or replacements is distressingly long; the overwhelming evidence not only supports, but compels the district court's conclusion of law: the funding system in effect in 2001 was simply inadequate to meet the constitutional mandate to provide a thorough system of education in a safe environment. Thus, to the extent there are any inaccuracies in the 2001 Findings, they are very minor and not clearly erroneous in light of the extensive evidence in the record supporting the district court's conclusion.\\nD. Effect of subsequent events\\nThe next issue raised by the State concerns mootness. Generally, appellate review of an issue will be precluded where an issue is deemed moot. An issue is moot \\\"if it does not present a real and substantial controversy that is capable of being concluded through judicial decree of specific relief.\\\" State v. Rogers, 140 Idaho 223, 226, 91 P.3d 1127, 1130 (2004) (citing ISEEO II, 128 Idaho at 281-282, 912 P.2d at 649). Thus, an issue is moot \\\"if a favorable judicial decision would not result in any relief or the party lacks a legally cognizable interest in the outcome.\\\" Rogers, 140 Idaho at 227, 91 P.3d at 1131 (citations omitted).\\nIn its briefing, the State contends a number of events have taken place since 2000 that render many of the district court's findings moot and are significant enough to warrant reversal of the court's conclusion that the Legislature has failed to provide for a thorough public education system with respect to school facilities. For example, legislation passed in 2000 and amended in 2001 created interest grants for plant facilities levies to abate unsafe school facilities, several school districts have since passed plant facility levies or taken measures to address unsafe facility conditions, and other conditions have changed in the various school districts that presented evidence in 2000. These events, argues the State, make many of the district court's 2001 Findings clearly erroneous or no longer applicable. Interestingly, at oral argument, the State argued that any ruling by the district court was actually premature, rather than moot, because of the legislative changes and urged this Court to remand the case back to the district court for further action.\\nWe pause to note the significant strides the Legislature has made in providing additional funds to Idaho schools for building replacement and repair. The Legislature amended the School Safety and Health Revolving Loan Fund, created in 2000, to a Loan and Grant Fund in 2001. See I.C. 33-1017(7) \\u2014 (12). That fund provided $10 million to seven school districts enabling them to finance some facility repair or replacement. Indeed, several of those districts were addressed in the district court's 2001 Findings. The Legislature took another major step forward by enacting the Idaho Uniform Public School Building Safety Act, I.C. 39-8001 et seq., which allows for the creation of uniform safety standards and requirements for the inspection of the structural integrity of Idaho's existing school buildings. Also, the Legislature has increased the time to pay for a plant facilities levy from ten to twenty years, reducing the annual payments and possibly making such levies a more attractive option for voters. See I.C. 33-804A. The Legislature is to be commended for taking these steps towards providing a safe environment conducive to learning.\\nSuch legislation does not, however, make this case moot. We acknowledge several school districts have been able to remedy their safety issues, but such progress is not attributable solely to the newly enacted legislation. For example, Garden Valley received a three-fold increase in receipt of federal forest funds. In some cases, unsafe conditions were remedied because the districts were finally able to pass their own large levies, albeit with some state assistance. The Minidoka District, for instance, passed a $10 million plant facilities levy and received a $578,095 interest grant from the State. As for the Loan and Grant Fund, when the program that led to the $10 million disbursal expired, it was replaced by a bond interest subsidies program for which the 2004 appropriation was $2 million. Unfortunately, there is no indication in the record that there is any commitment to continued funding of the Loan and Grant Fund, or that the amount appropriated was sufficient to carry out the Legislature's constitutional responsibilities. Indeed, there is little to show that the pres ent system of funding is adequate to stop the further accumulation of dangerous or inadequate buildings.\\nBut even assuming this case could technically be deemed moot based on subsequent legislation and remedial measures taken by several school districts, it clearly falls within the public interest exception to the mootness doctrine. Under this exception, an otherwise moot issue may be heard if it is one of substantial public interest. Johnson v. Bonner County Sch. Dist. No. 82, 126 Idaho 490, 492, 887 P.2d 35, 37 (1994). Clearly, as this Court stated in ISEEO II, \\\"The 'thoroughness' of the system of public education affects the present and future quality of life of Idaho's citizens and its future leaders, its children.\\\" ISEEO II, 128 Idaho at 284, 912 P.2d at 652. Thus, this Court may address the issue of whether the State has met its constitutional mandate to provide a safe environment conducive to learning, as it is certainly a matter of great public importance.\\nE. Post-trial affidavits\\nAnother concern raised by the State is whether the district court erred in considering ISEEO's post-trial affidavits. The State, in its Proposed Findings of Fact, made reference to several school districts' financial data in exhibits to support its claim that many districts had substantial resources that could have been put toward facility repairs. In response, ISEEO moved to file twelve affidavits of witnesses who had earlier testified at trial. The State argues the admission of these affidavits was in error because it was denied the right to cross-examine these witnesses who filed affidavits after trial.\\nAn appellate court reviews a district court's decision admitting or excluding evidence under the abuse of discretion standard. Clark v. Klein, 137 Idaho 154, 156, 45 P.3d 810, 812- (2002) (citing Morris By and Through Morris v. Thomson, 130 Idaho 138, 144, 937 P.2d 1212, 1218 (1997)). This Court has adopted a three part test for determining whether the district court abused its discretion: (1) whether the court correctly perceived that the issue was one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether it reached its decision by an exercise of reason. Sun Valley Shopping Center Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). In the case of an incorrect ruling regarding evidence, a new trial is merited only if the error affects a substantial right of one of the parties. Clark, 137 Idaho at 156, 45 P.3d at 812 (citing Morris, 130 Idaho at 144, 937 P.2d at 1218).\\nThe district court's decision regarding admissibility of evidence was a matter of discretion. Under these facts, it cannot be said the district court acted outside the boundaries of its discretion or failed to exercise reason in considering post-trial affidavits as rebuttal testimony. Both parties to this litigation agreed to pre-file much of their proposed direct evidence testimony. Therefore, much of the testimony in the record was not subject to cross-examination. Also, the State could have simply filed its own affidavits countering those brought forward by ISEEO, but the State failed to do so. There was no error in the district court considering these affidavits, since all came from witnesses who had already testified at the trial. The State had the opportunity to question these same witnesses about the school districts' financial data previous to or during trial, or the State could simply have filed its own post-trial affidavits.\\nF. Silver Valley testing\\nThe State next charges the district court erred in ordering the State to pay ISEEO's attorney for the Silver Valley lead testing expenses. The issue arose when the district court, after hearing testimony on the potentially dangerous levels of heavy metal contamination in the Silver Valley, ordered lead testing of the local schools. The district court was led to believe funds were available from the federal Environmental Protection Agency or various state agencies to cover the testing costs. ISEEO later notified the district court that such funds were not forthcoming, but ISEEO counsel would personally fund expert testing and seek reimbursement. After the testing was completed, the district court, without citing a statute or rule, ordered the State to reimburse ISEEO's attorney for the testing expenses. The order simply stated, \\\"[T]he plaintiffs are awarded their costs incurred to date on testing in relation to the Silver Valley Schools.\\\"\\nWe conclude the district court erred in awarding ISEEO costs incurred in the lead testing against the State. The district court provided no analysis or authority for its award of this specific cost against the State. The cost was awarded before any final or partial judgment was awarded in this matter, so ISEEO cannot receive reimbursement for this cost under Rule 54(d)(l)(A)(B) as a prevailing party. Also, this award is not supported under Rule 54(d)(1)(D) as a discretionary cost. The district court never made any findings, as required under the rule, justifying why this cost should be allowed. See Hayden Lake Fire Protection Dist. v. Alcorn, 141 Idaho 388, 111 P.3d 73 (2005) (district court must make finding for each discretionary cost granted or denied). ISEEO's counsel voluntarily undertook to fund the testing himself instead of simply informing the district court that there were no federal or state funds available to carry out the court's order and allowing the court to take further action. The court never made any specific findings regarding the Silver Valley, making this cost now appear like a discovery expense ISEEO incurred in this litigation. Because we find no statute or rale authorizing this award, we vacate the district court's award of expenditures for lead testing against the State.\\nG. Other issues raised on appeal\\nThe State also raises arguments addressing reports prepared by experts at the behest of various school districts and presented to the distinct court during the remedy phase of the proceedings below. Any issues relating to the second, or \\\"remedy,\\\" phase of the litigation are not part of this appeal. For the reasons that follow, we believe it more appropriate at this point for the case to remain before this Court. Thus, any remedy phase before the trial court is unnecessary and, likewise, we need not address, in this appeal, any issues which arose during that part of the litigation below.\\nIII.\\nCONCLUSION\\nIn sum, the evidence in the record clearly supports the district court's 2001 Findings. We affirm the conclusion of the district court that the current funding system is simply not sufficient to carry out the Legislature's duty under the constitution. While the Legislature has made laudable efforts to address the safety concerns of various school districts, the task is not yet complete. The appropriate remedy, however, must be fashioned by the Legislature and not this Court. Quite simply, Article IX of our constitution means what it says: \\\"[I]t shall be the duty of the Legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.\\\" Thus, it is the duty of the State, and not this Court or the local school districts, to meet this constitutional mandate.\\nWe are mindful of our duty to determine whether the current funding system passes constitutional muster, and we likewise respect the duties of the Legislature, as a separate branch of government, to make policy and funding decisions. It is not our intent to substitute our judgment on how to establish criteria for safe buildings or create a proper funding system for that of the Legislature. We agree with the Arizona Supreme Court when it stated, \\\"[Tjhere are doubtless many ways to create a school financing system that complies with the constitution. As the representatives of the people, it is up to the legislature to choose the methods and combinations of methods from among the many that are available.\\\" Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 877 P.2d 806, 816 (1994). Nevertheless, we observe that legislatures of other states grappling with this same issue have come up with a number of alternatives to assist school districts in providing a safe environment conducive to learning. These alternatives simply demonstrate that there are options available to assist school districts, and are no way intended as this Court's direction to the Legislature on its further responsibilities. Reducing the majority necessary to pass a bond; allowing taxpayers to designate a portion of their income tax refund to cover repairs of school facilities (see Haw.Rev.Stat. \\u00a7 235-102.5); funding school facilities out of the state general fund (see, e.g., Educational Facilities Construction and Financing Act, 2000 N.J. Laws, c.72 (July 18, 2000) (codified at N.J. Stat. Ann. \\u00a7 18A:7G-1 to 18A:7G-44)); authorizing a study to determine the actual cost of providing a thorough education (see Kan. Stat. Ann. \\u00a7 46-1225); establishing a school facilities fund supported by a percentage of corporate income tax revenue (see N.C. Gen.Stat. \\u00a7 115C-546.1, 2(b)); or creating an emergency school building repair program to fund school districts' urgent repair needs, are only a few of the possibilities. Of course, we do not, and cannot, today pass on the constitutionality of any or all of these options as they may apply to school funding in Idaho, as that question has not yet been presented to us. By listing these alternatives, we are in no way usurping the Legislature's role; we leave the policy decisions to that separate branch of government, subject to our continuing responsibility to ensure Idaho's constitutional provisions are satisfied.\\nIn adopting Article IX, the citizens of Idaho placed their trust in the collective wisdom, creativity, and expertise of our legislators, and we do the same. We are firmly convinced the Legislature will carry out its constitutional duties in good faith and in a timely manner. At this juncture, we will not remand the case to the district court, but will retain jurisdiction to consider future legislative efforts to comply with the constitutional mandate to provide a safe environment conducive to learning so that we may exercise our constitutional role in interpreting the constitution and assuring that its provisions are met. We affirm the district court's conclusion that the current method of funding as it relates to school facilities is unconstitutional and we award costs on appeal to the Respondents.\\nJustice BURDICK and Justices Pro Tern KIDWELL and HURLBUTT concur.\\n. We note the lead testing may very well have been unnecessary for the purposes of this litigation. The question of heavy metal contamination in the Silver Valley is a federal EPA concern, as much of the Silver Valley and the surrounding area are already designated as a Superfund site.\\n. The Ohio Supreme Court stated it well when it said, \\\"The valuation of local property has no connection whatsoever to the actual education needs of the locality, with the result that a system overreliant on local property taxes is by its very nature an arbitrary system that can never be totally thorough.\\\" DeRolph v. State, 89 Ohio St.3d 1, 728 N.E.2d 993, 999 (2000).\"}"
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+"{\"id\": \"3683807\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Gary Lynn MORGAN, Defendant-Appellant\", \"name_abbreviation\": \"State v. Morgan\", \"decision_date\": \"2007-09-26\", \"docket_number\": \"No. 32371\", \"first_page\": \"861\", \"last_page\": \"865\", \"citations\": \"144 Idaho 861\", \"volume\": \"144\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:13:52.698652+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge PERRY and Judge LANSING concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Gary Lynn MORGAN, Defendant-Appellant.\", \"head_matter\": \"172 P.3d 1136\\nSTATE of Idaho, Plaintiff-Respondent, v. Gary Lynn MORGAN, Defendant-Appellant.\\nNo. 32371.\\nCourt of Appeals of Idaho.\\nSept. 26, 2007.\\nReview Denied Dec. 7, 2007.\\nMolly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.\\nHon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.\", \"word_count\": \"2331\", \"char_count\": \"14090\", \"text\": \"WALTERS, Judge Pro Tern.\\nGary Lynn Morgan appeals from the judgment of conviction entered by the district court following a jury verdict of guilty on two counts of lewd conduct with a minor child under sixteen years of age. Morgan contends that the district court erred by failing to grant Morgan's motion for a mistrial based upon comments made by the prosecutor in the presence of the jury, and by failing to grant Morgan's subsequent motion for a new trial after the jury's verdict, based upon the same comments by the prosecutor. We affirm.\\nI.\\nBACKGROUND\\nThe following facts are relevant to the issues raised on appeal. The state charged Morgan with two counts of lewd conduct with a minor under sixteen, I.C. \\u00a7 18-1508. The charge was based on allegations that while living with his mother who operated a daycare center, Morgan sexually abused one of the boys in his mother's care on two occasions when Morgan forced the boy to perform oral sex on him. Morgan was thirty-eight years old and the boy was four years old at the time. Morgan asserted an alibi defense. Immediately prior to trial, Morgan's attorney represented to the district court and to the prosecutor, in chambers, that Morgan would testify on his own behalf. Relying on this representation, the prosecutor informed the jury during his opening statement (after outlining the substance of the testimony to be given by the state's witnesses) that Morgan's counsel \\\"has indicated that Gary Morgan is going to testify too.\\\" Morgan's attorney did not immediately object to this statement by the prosecutor, but later raised it as a basis for a motion for mistrial.\\nAt the conclusion of the state's case-in-chief, Morgan's attorney again represented to the court and the prosecutor, in chambers, that Morgan would be called as a witness in his own defense. Upon reconvening in open court, Morgan called the investigating officer, Detective Timony, as his first witness. On direct examination, Morgan's attorney established that the officer had interviewed Morgan as part of his investigation but did not tape-record his conversations with Morgan. Morgan's attorney then questioned the detective about Morgan's reaction when he was confronted with the boy's accusation against him, and the following took place:\\nDefense Counsel: Did Gary express to you a concern that he didn't know who you were talking about?\\nProsecutor: Object, Your Honor. It's leading and it's hearsay.\\nDefense Counsel: In the absence of having the tape, Your Honor, it's the only way I can ask these questions.\\nThe 00104;: All right. Yeah.\\nProsecutor: Mr. Morgan is here, and he can testify as to what he expressed.\\nThe Court: No. No.\\nDefense Counsel: If he keeps talking like that, we're going to have a mistrial.\\nThe Court: Yeah. Overrule the objection.\\nDefense Counsel: Okay. My question, then\\u2014\\nThe Court: In fact, Counsel, approach the bench.\\nAt this point, a bench conference was held. The content of that discussion is not included in the record. The proceeding then continued before the jury:\\nDefense Counsel: Did Gary express to you that he didn't remember who [the boy] was?\\nProsecutor: Object. Hearsay.\\nDefense Counsel: Once again, the officer didn't tape-record it. That's the only way to get this information in, Your Honor.\\nProsecutor: It calls for an out-of-court statement offered to prove the truth of the matter asserted.\\nThe Court: I'm going to think about this. All right. Ladies and gentlemen, I've got to figure out this issue. And so I'm going to take a recess at this time.\\nThe jury was excused from the courtroom while the district court entertained argument on the objection interposed by the prosecutor. As part of his argument supporting admissibility, Morgan's attorney moved for a mistrial, arguing that the prosecutor's comment that Morgan could testify as to what he expressed to the detective, together with the comment the prosecutor made in his opening statement that Morgan would testify for the defense, \\\"infringe[d] on [Morgan's] constitutional right to remain silent and has now put somewhat of a burden on him to have to testify.\\\" The district court reserved ruling on the mistrial motion at that time, but did overrule the state's objection to the question posed by Morgan's attorney to the detective. The jury was returned to the courtroom and the presentation of evidence was resumed.\\nLater, before calling Morgan as a witness, Morgan's attorney asked the court to revisit the motion for a mistrial. After hearing the arguments of counsel and reviewing the applicable law, the court declined to declare a mistrial, indicating that it was \\\"not at all persuaded that [the prosecutor's comments] would have that prejudicial an effect.\\\" After being advised by the district court of its ruling, Morgan took the stand and testified on his own behalf.\\nThe jury found Morgan guilty of two counts of lewd conduct with a minor child under the age of sixteen. Morgan filed a motion for a new trial, asserting, among other grounds, that the district court erred in denying his motion for a mistrial. After hearing arguments on the motion, the district court denied the motion by written order. The court entered judgment on the jury's verdicts and sentenced Morgan to life imprisonment with ten years fixed on each count, to run concurrently. Morgan then pursued this appeal. He contends the district court erred by failing to grant either Morgan's motion for a mistrial or his motion for a new trial, both of which were predicated on the prosecutor's comments concerning Morgan as a witness, which Morgan characterizes as infringing on his right to remain silent.\\nII.\\nANALYSIS\\nA. Mistrial Motion\\nIn criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. This rule provides in part that \\\"[a] mistrial may be declared upon motion of the defendant, when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives the defendant of a fair trial.\\\" In State v. Barcella, 135 Idaho 191, 16 P.3d 288 (Ct.App.2000), we explained the well-established standard for review of a refusal to grant a mistrial:\\n[T]he question on appeal is not whether the trial judge reasonably exercised his discretion in light of circumstances existing when the mistrial motion was made. Rather, the question must be whether the event which precipitated the motion for mistrial represented reversible error when viewed in the context of the full record. Thus, where a motion for mistrial has been denied in a criminal case, the 'abuse of discretion' standard is a misnomer. The standard, more accurately stated, is one of reversible error. Our focus is upon the continuing impact on the trial of the incident that triggered the mistrial motion. The trial judge's refusal to declare a mistrial will be disturbed only if that incident, viewed retrospectively, constituted reversible error.\\nBarcella, 135 Idaho at 197, 16 P.3d at 294, quoting State v. Shepherd, 124 Idaho 54, 57, 855 P.2d 891, 894 (Ct.App.1993). See also State v. Atkinson, 124 Idaho 816, 818, 864 P.2d 654, 656 (Ct.App.1993); State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct.App.1983). The error will be deemed harmless if the appellate court is able to declare, beyond a reasonable doubt,- that there was no reasonable possibility that the event complained of contributed to the conviction. Shepherd, 124 Idaho at 58, 855 P.2d at 895, citing State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981).\\nThe district court applied these same principles in its analysis of Morgan's contention that the prosecutor's reference to Morgan's availability to testify constituted an improper comment on Morgan's Fifth Amendment right to remain silent and forced him to testify. The court determined that Morgan was not unfairly prejudiced by the prosecutor's comments, which were made in reliance on defense counsel's repeated representations that Morgan would, in fact, testify. In its written order denying Morgan's request for a new trial, the district court, reviewed the entire proceedings and held:\\nConsequently, this Court concludes that while the comments of the prosecutor were at least ill-advised, and arguably improper, the Court concludes that those comments did not prejudice [Morgan's] right to a fair trial on these charges. In this case, [Morgan] did not exercise his right to remain silent, in which event the prosecutor's comments may have been more problematic. Instead, he chose to testify, so the comments of the prosecuting attorney may fairly be characterized as harmless. Further, the Court cannot conclude that the prosecutor's comments forced [Morgan] to forego his right not to testify; the strategy of the defense, which he had labeled as an \\\"alibi defense,\\\" placed him in a situation where his testimony was seemingly necessary. By way of example, though his employment time records ultimately did not become part of the record in this case, it was through [Morgan] that they were going to be introduced. Given the totality of the record in this trial, the Court can conclude, beyond a reasonable doubt, that there was no reasonable possibility that the comments complained of contributed to the jury's verdict.\\nWe agree with the district court's analysis. This is not a case where the prosecutor attempted to create an inference of guilt by presenting evidence that the defendant exercised his right to remain silent during a police interrogation after having received Miranda warnings, see, e.g., State v. Poland, 116 Idaho 34, 773 P.2d 651 (Ct.App.1989), or where the prosecutor in closing comments to the jury points to a defendant's failure to testify in the matter as an indication of guilt, e.g., State v. McMurry, 143 Idaho 312, 143 P.3d 400 (Ct.App.2006). Rather, Morgan claims that he was denied a fair trial because the prosecutor's comments placed him in a posture that he was required to testify, thereby involuntarily giving up his right to remain silent.\\nThe idea that Morgan would be a witness in the case did not originate with the prosecution. Instead, the defense had led the prosecutor to believe on several occasions that Morgan planned to testify on his own behalf, without any adverse comment first coming from the prosecution. As the district court pointed out in its decision, had Morgan chosen not to testify, then the court could have given an instruction to the jury that would have let them know that the prosecutor's representation that Morgan would testify was ill-founded and for them not to draw any inferences from Morgan's choice. Instead, Morgan made the decision to testify in order to support his alibi defense. Thus, although the prosecutor's comments referencing the defendant's role as a prospective witness should not have been made in front of the jury, once the defendant took the stand, the effect of the antecedent comments by the prosecutor became so diluted that they could not have reasonably contributed to the verdict rendered by the jury.\\nWe hold that the prosecutor's comments resulted in a harmless error which did not prejudice the defendant or deny him the right to a fair trial. Accordingly, the district court's decision not to grant a mistrial will be sustained.\\nB. Motion for New Trial\\nThe grounds upon which a district court may grant a new trial to a noncapital criminal defendant are set out in I.C. \\u00a7 19-2406. Our appellate courts have consistently recognized that this section is a legitimate exercise of the legislature's power to define the substantive law of this state, and sets out an exclusive list of the grounds for a new trial. See State v. Weise, 75 Idaho 404, 410, 273 P.2d 97, 100 (1954) (\\\"The grounds for a new trial are purely statutory. The court cannot provide any other ground.\\\"); State v. Lankford, 116 Idaho 860, 873, 781 P.2d 197, 210 (1989) (\\\"We note from the outset that while the decision of whether to grant a new trial is a discretionary matter for the trial judge[,] Idaho Code \\u00a7 19-2406(7) limits the instances in which that discretion may be exercised.\\\" (Footnote omitted), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990)).\\nAs a ground for a new trial, Morgan cited I.C. \\u00a7 19-2406(5) and argued that the district court \\\"erred in the decision of [a] question of law arising during the course of the trial\\\" when the court decided not to grant Morgan's motion for a mistrial. We have upheld the court's decision with regard to the mistrial motion and need not revisit that issue with respect to the motion for a new trial.\\nWe conclude that the district court did not err in denying Morgan's motion for a new trial. The order denying a new trial is upheld.\\nIII.\\nCONCLUSION\\nThe district court did not err in denying either Morgan's motion for a mistrial or for a new trial. The judgment of conviction, for two counts of lewd conduct with a minor under the age of sixteen, is affirmed.\\nChief Judge PERRY and Judge LANSING concur.\\n. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).\\n. In his appellate argument, although Morgan maintains that the prosecutor's comments were improper, he does not go so far as to describe the prosecutor's activities as \\\"prosecutorial misconduct,\\\" evidently recognizing that allegations of prosecutorial misconduct at trial are not among the grounds for a new trial provided by I.C. \\u00a7 19-2406 (as distinguished from grounds for a mistrial). See State v. Jones, 127 Idaho 478, 903 P.2d 67 (1995). Cf. State v. Davis, 127 Idaho 62, 64, 896 P.2d 970, 972 (1995) (no abuse of discretion in denial of new trial motion where grounds not provided for by statute).\"}"
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+"{\"id\": \"3707053\", \"name\": \"In the Matter of the Driver's License Suspension of Mark Eugene JOHNSON. Mark Eugene Johnson, Petitioner-Respondent, v. State of Idaho, Transportation Department, Appellant\", \"name_abbreviation\": \"Johnson v. State, Transportation Department\", \"decision_date\": \"2012-05-31\", \"docket_number\": \"No. 38090\", \"first_page\": \"246\", \"last_page\": \"252\", \"citations\": \"153 Idaho 246\", \"volume\": \"153\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:22:56.645659+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge LANSING and Judge MELANSON concur.\", \"parties\": \"In the Matter of the Driver\\u2019s License Suspension of Mark Eugene JOHNSON. Mark Eugene Johnson, Petitioner-Respondent, v. State of Idaho, Transportation Department, Appellant.\", \"head_matter\": \"280 P.3d 749\\nIn the Matter of the Driver\\u2019s License Suspension of Mark Eugene JOHNSON. Mark Eugene Johnson, Petitioner-Respondent, v. State of Idaho, Transportation Department, Appellant.\\nNo. 38090.\\nCourt of Appeals of Idaho.\\nMay 31, 2012.\\nReview Denied July 20, 2012.\\nEdwin L. Litteneker, Lewiston, for appellant.\\nSiebe Law Offices, PLLC, Moscow, for respondent. James E. Siebe argued.\", \"word_count\": \"3041\", \"char_count\": \"18667\", \"text\": \"PERRY, Judge Pro Tern.\\nThe Idaho Department of Transportation (ITD) appeals from the district court's order vacating the hearing officer's decision to sustain the suspension of Mark Eugene Johnson's driver's license. ITD claims that the district court lacked jurisdiction to enter a stay pending judicial review because Johnson did not exhaust his administrative remedies. ITD also claims the court lacked jurisdiction to vacate the hearing officer's decision because Johnson filed his petition for judicial review prior to receiving a final, appealable order. ITD argues in the alternative that if the district court had jurisdiction, then it erred when it overturned the hearing officer's finding that the breath test was administered in compliance with Idaho Code \\u00a7 18-8004(4) in regard to the fifteen-minute monitoring period.\\nI.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nOn October 10, 2009, Johnson was arrested and charged with driving under the influence in violation of I.C. \\u00a7 18-8004. After his arrest, Johnson was transported to the Nez Perce County Jail by Sergeant Lee because the arresting officer, Deputy Rodriguez, transported Johnson's dog to Johnson's home. Once Deputy Rodriguez returned, he replaced Sergeant Lee in observing Johnson. According to Deputy Rodriguez's subsequent affidavit, the two officers observed Johnson for a combined time of approximately thirty-four minutes before Johnson took the breathalyzer test. However, neither officer individually monitored Johnson continuously for the required fifteen minutes immediately prior to Johnson submitting to the breath test. The breath test samples showed a result of .167 and .168, and ITD served Johnson with a notice of administrative license suspension (ALS), pursuant to I.C. \\u00a7 18-8002A, due to his failure of the breath test. Johnson also received a notice of a commercial driver's license (CDL) disqualification pursuant to I.C. \\u00a7 49-335 that was dated October 19, 2009, and effective on November 9, 2009.\\nJohnson requested an ALS hearing to contest his license suspension, which was held on November 2, 2009. At the hearing Johnson argued that the fifteen-minute observation period was not complied with according to the standard operating procedures. On November 4, 2009, Johnson also requested an administrative hearing to contest his CDL disqualification. On November 6, 2009, Johnson filed a petition for judicial review seeking review of the notice of CDL disqualification and the proposed ALS. Johnson also filed with the district court a motion to stay his driver's license suspension pending a decision on his ALS hearing and CDL disqualification. At the time of the November 6 filings, the hearing officer had not issued the findings of fact, conclusions of law and order on Johnson's ALS and no hearing had been held on his CDL disqualification.\\nOn November 24, 2009, the district court stayed the CDL disqualification in the event that Johnson's driving privileges were reinstated by ITD. The hearing officer sustained Johnson's license suspension pursuant to I.C. \\u00a7 18-8002A on December 9, 2009; after a separate hearing, Johnson's CDL disqualification was also sustained on December 19, 2009. On February 23, 2010, ITD filed a motion with the district court to dismiss the stay on the basis that Johnson had prematurely sought judicial review prior to the hearing officer's issuance of a decision. The district court denied that motion on March 24, 2010. On September 10, 2010, the district court overturned the license suspension on the basis that substantial and competent evidence did not support the hearing officer's finding that the police officers complied with the fifteen-minute observation period. ITD timely appealed.\\nII.\\nDISCUSSION\\nThe Idaho Administrative Procedures Act (IDAPA) governs the review of ITD decisions to deny, cancel, suspend, disqualify, revoke, or restrict a person's driver's license. See I.C. \\u00a7 49-201, 49-330, 67-5201(2), 67-5270. In an appeal from the decision of the district court, acting in its appellate capacity under IDAPA, this Court reviews the agency record independently of the district court's decision. Marshall v. Idaho Dep't of Transp., 137 Idaho 337, 340, 48 P.3d 666, 669 (Ct.App.2002). This Court does not substitute its judgment for that of the agency as to the weight of the evidence presented. I.C. \\u00a7 67-5279(1); Marshall, 137 Idaho at 340, 48 P.3d at 669. This Court instead defers to the agency's findings of fact unless they are clearly erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. In other words, the agency's factual determinations are binding on the reviewing court, even where there is conflicting evidence before the agency, so long as the determinations are supported by substantial and competent evidence in the record. Urrutia v. Blaine County, ex rel. Bd. of Comm'rs, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000); Marshall, 137 Idaho at 340, 48 P.3d at 669.\\nThe Court may overturn an agency's decision where its findings, inferences, conclusions, or decisions: (a) violate statutory or constitutional provisions; (b) exceed the agency's statutory authority; (c) are made upon unlawful procedure; (d) are not supported by substantial evidence in the record; or (e) are arbitrary, capricious, or an abuse of discretion. I.C. \\u00a7 67-5279(3). The party challenging the agency decision must demonstrate that the agency erred in a manner specified in I.C. \\u00a7 67-5279(3) and that a substantial right of that party has been prejudiced. Price v. Payette County Bd. of County Comm'rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. If the agency's decision is not affirmed on appeal, \\\"it shall be set aside . and remanded for further proceedings as necessary.\\\" I.C. \\u00a7 67-5279(3).\\nThe ALS statute, I.C. \\u00a7 18-8002A, requires that ITD suspend the driver's license of a driver who has failed a BAC test administered by a law enforcement officer. The period of suspension is ninety days for a driver's first failure of an evidentiary test and one year for any subsequent test failure within five years. I.C. \\u00a7 18-8002A(4)(a). A person who has been notified of an ALS may request a hearing before a hearing officer designated by ITD to contest the suspension. I.C. \\u00a7 18-8002A(7); Kane v. State, Dep't of Transp., 139 Idaho 586, 588, 83 P.3d 130, 132 (Ct.App.2003). The hearing officer must uphold the suspension unless he or she finds, by a preponderance of the evidence, that the driver has shown one of several grounds enumerated in I.C. \\u00a7 18-8002A(7) for vacating the suspension. Those grounds are:\\n(a) The peace officer did not have legal cause to stop the person; or\\n(b) The officer did not have legal cause to believe the person had been driving or was in actual physical control of a vehicle while under the influence of alcohol, drugs or other intoxicating substances in violation of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code; or\\n(c) The test results did not show an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004, 18-8004C or 18-8006, Idaho Code; or\\n(d) The tests for alcohol concentration, drugs or other intoxicating substances administered at the direction of the peace officer were not conducted in accordance with the requirements of section 18-8004(4), Idaho Code, or the testing equipment was not functioning properly when the test was administered; or\\n(e) The person was not informed of the consequences of submitting to evidentiary testing as required in subsection (2) of this section.\\nI.C. \\u00a7 18-8002A(7). The hearing officer's decision is subject to challenge through a petition for judicial review. I.C. \\u00a7 18-8002A(8); Kane, 139 Idaho at 589, 83 P.3d at 133.\\nA. Final Order\\nITD claims that the district court lacked subject matter jurisdiction to hear Johnson's petition for judicial review. The issue of whether the district court had jurisdiction over an action is one of law, over which this Court exercises free review. Troupis v. Summer, 148 Idaho 77, 79, 218 P.3d 1138, 1140 (2009). The failure to file a timely petition for judicial review is jurisdictional and causes automatic dismissal of the petition. I.R.C.P. 84(n).\\nThe Idaho Constitution allows the legislature to delimit the district courts' appellate jurisdiction. IDAHO CONST, art. V, \\u00a7 20. Actions by state agencies are not subject to judicial review unless expressly authorized by statute. I.R.C.P. 84(a)(1). Without an enabling statute, the district court lacks subject matter jurisdiction. See, e.g., In re Williams, 149 Idaho 675, 678-79, 239 P.3d 780, 783-84 (2010) (dismissing a petition for review for lack of jurisdiction because no statute authorized an appeal); Taylor v. Canyon County Bd. of Comm'rs, 147 Idaho 424, 431-32, 210 P.3d 532, 539-40 (2009) (same); cf. Regan v. Kootenai County, 140 Idaho 721, 726, 100 P.3d 615, 620 (2004) (holding that a reviewable final order is necessary for subject matter jurisdiction). The Idaho Administrative Procedure Act, I.C. \\u00a7 67-5201 to 5292, governs judicial review of agency actions. Gibson v. Ada County Sheriffs Dep't, 139 Idaho 5, 7, 72 P.3d 845, 847 (2003) (citing I.C. \\u00a7 67-5201, -5270). Idaho Code \\u00a7 67-5270 allows petitions for review of a final order in a contested case if the petitioner \\\"complies with the requirements of sections 67-5271 through 67-5279, Idaho Code.\\\" I.C. \\u00a7 67-5270(3).\\nPursuant to I.R.C.P. 84(b)(1), \\\"a petition for judicial review from an agency to district court must be filed with the appropriate district court within twenty-eight (28) days after the agency action is ripe for judicial review under the statute authorizing judicial review,\\\" unless a different time is prescribed by statute. Idaho Code \\u00a7 18-8002A(8) provides: \\\"A party aggrieved by the decision of the hearing officer may seek judicial review of the decision in the manner provided for judicial review of final agency action provided in chapter 52, title 67, Idaho Code.\\\" At the time this action arose (2009), I.C. \\u00a7 67-5273(2) stated in relevant part: \\\"A petition for judicial review of a final order . must be filed within twenty-eight (28) days of the issuance of the final order . or, if reconsideration is sought, within twenty-eight (28) days after the decision thereon.\\\"\\nWhen read together, I.C. \\u00a7 67-5270 and 67-5273 require a petition for judicial review to be filed within twenty-eight days after a final, appealable order or the petition would not be proper. Johnson acknowledges that the hearing officer had not filed a final, appealable order at the time he filed his petition for judicial review. However, Johnson argues that the district court had jurisdiction because a petition for judicial review is akin to an appeal, and through Idaho Appellate Rule 17(e)(2) a \\\"premature\\\" notice of appeal does not need to be refiled. The State responds that the Idaho Appellate Rules, and specifically Rule 17(e)(2), are in- applicable to the case at hand because the petition for judicial review initiates a new action and not an appeal.\\nEven if this Court applied I.AR. 17(e)(2) in the same manner that the district court did, the rule does not save Johnson's premature filing. Idaho Appellate Rule 17(e)(2) provides: \\\"A notice of appeal filed from an appealable judgment or order before formal written entry of such document shall become valid upon the filing and the placing the stamp of the clerk of the court on such appealable judgment or order, without refiling the notice of appeal.\\\" This Court has held in Hawley v. Green, 124 Idaho 385, 860 P.2d 1 (Ct.App.1993) that for I.AR. 17(e)(2) to apply to a premature filing, the lower court must have orally ruled and thereby indicated the outcome. Id. at 388, 860 P.2d at 4. More recently, this Court in Weller v. State, 146 Idaho 652, 200 P.3d 1201 (Ct.App.2008) upheld a premature filing because the \\\"district court . had expressed its intention to dismiss Weller's petition.\\\" Id. at 654, 200 P.3d at 1203 (emphasis in original).\\nIn the present case, Johnson's ALS hearing was conducted on November 2, 2009, but there was apparently no oral ruling at that t\\u00edme. On November 6, 2009, Johnson prematurely filed a petition for judicial review and a petition for stay pending judicial review. The hearing officer did not sustain the license suspension until December 8, 2009. Furthermore, Johnson filed a motion for reconsideration of the hearing officer's decision on December 22, 2009, which was denied on January 10, 2010. According to Weller and Hawley, Johnson's premature filing would be effective only if the hearing officer orally ruled or expressed his intentions to sustain Johnson's license suspension at some point prior to Johnson filing his petition for judicial review. See Weller, 146 Idaho at 654, 200 P.3d at 1203; Hawley, 124 Idaho at 388, 860 P.2d at 4. The record here does not demonstrate that the hearing officer expressed, either orally or in some other fashion, his intention of sustaining Johnson's license suspension prior to Johnson filing his petition for judicial review on November 6, 2009. Thus, even if this Court were to apply LAR. 17(e)(2) to a petition for judicial review as though it were analogous to a notice of appeal, it does not save Johnson's premature filing.\\nFor the reasons stated above, we dismiss the district court's order vacating the hearing officer's decision. Johnson had twenty-eight days to file a petition for review of the hearing officer's decision, and his time began to run on January 10, 2010, the date his motion for reconsideration was denied; it has since expired. Although this result appears harsh, jurisdiction for judicial review in this case is limited by the time periods specified in I.C. \\u00a7 67-5273(2) and applicable rules, and this Court has no authority to disregard those limits.\\nAs noted above, the appellant conceded at oral argument that if this Court determined the district court lacked subject matter jurisdiction on the petition for judicial review, then it would be unnecessary to address whether the district court had jurisdiction to grant the stay of Johnson's CDL privileges. Likewise, without jurisdiction, this Court will not address the remaining issue of whether the police officers complied with the fifteen-minute observation period.\\nB. Attorney Fees\\nITD requests an award of attorney fees pursuant to I.C. \\u00a7 12-117(1). The parties are not eligible for attorney fees under I.C. \\u00a7 12-117(1), which permits fees \\\"in any administrative proceeding or civil judicial proceeding.\\\" As the Idaho Supreme Court recently held, a petition for judicial review of an agency action is neither an administrative proceeding nor a civil judicial proceeding, so I.C. \\u00a7 12-117(1) does not enable the courts to award attorney fees in cases that originated in court by petition for judicial review. Smith v. Washington County Idaho, 150 Idaho 388, 391, 247 P.3d 615, 618 (2010). Neither party can collect fees under I.C. \\u00a7 12-117(1) for this appeal.\\nIII.\\nCONCLUSION\\nThe district court lacked subject matter jurisdiction, as does this Court, to consider Johnson's petition for judicial review. The order reversing ITD's decision to sustain Johnson's license suspension is vacated and the appeal dismissed. No attorney fees are awarded.\\nJudge LANSING and Judge MELANSON concur.\\n. ITD's counsel conceded at oral argument that if this Court determines that the district court did not have jurisdiction to vacate the hearing officer's decision, then it is unnecessary for the Court to address the stay.\\n. ITD notes that the Idaho Rules of Administrative Procedure promulgated by the Idaho Attorney General provide the proper avenue to petition an agency for a stay. The relevant provision states: \\\"Any party or person affected by an order may petition the agency to stay any order, whether interlocutory or final. Interlocutory or final orders may be stayed by the judiciary according to statute. The agency may stay any interlocutory or final order on its own motion.\\\" IDAPA 04.11.01.780. However, it should also be noted that at the time Johnson requested a stay from the district court, November 6, 2009, ITD's own rules provided that a hearing officer's failure to issue the findings of fact, conclusions of law and order prior to the expiration of a suspended driver's thirty-day temporary permit \\\"shall not be grounds for staying or vacating the suspension Former IDAPA 39.02.72.600.01.\\n. The Idaho Constitution states: \\\"The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law.\\\" IDAHO CONST, art. V, \\u00a7 20.\\n. Idaho Code \\u00a7 67-5273(2) was amended in 2010 such that the period for filing a petition for judicial review now begins to run on the date of service. 2010 Idaho Sess. Laws, ch. 255, \\u00a7 5, p. 648. The amendment, however, has no bearing on the determination of this case.\\n. The Idaho Supreme Court has held, \\\"As a general rule, a final judgment is an order or judgment that ends the lawsuit, adjudicates the subject matter of the controversy, and represents a final determination of the rights of the parties.\\\" Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 867, 55 P.3d 304, 321 (2002). The same requirement applies to a final order under Idaho Code \\u00a7 67-5270(3). A final order would be one that resolves all issues, or the last unresolved issue, presented in the contested case so that it constitutes a final determination of the rights of the parties. If issues necessary for a final determination of the parties' rights remain unresolved, there is no final order. In re Nagle, 126 Idaho 139, 140, 879 P.2d 602, 603 (1994).\\n. There is no transcript for the ALS hearing because the hearing officer only heard argument from counsel and did not receive testimony from any witnesses, only affidavits.\\n. Idaho Code \\u00a7 67-5273(3) allows \\\"[t]he time for filing a petition for review shall be extended during the pendency of the petitioner's timely attempts to exhaust administrative remedies, if the attempts are clearly not frivolous or repetitious.\\\" See, e.g., Petersen v. Franklin County, 130 Idaho 176, 185, 938 P.2d 1214, 1223 (1997).\"}"
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+"{\"id\": \"4073836\", \"name\": \"In the Matter of the Driver's License Suspension of Gary Alan Feasel Gary Alan FEASEL, Petitioner-Respondent, v. IDAHO TRANSPORTATION DEPARTMENT, Respondent-Appellant\", \"name_abbreviation\": \"Feasel v. Idaho Transportation Department\", \"decision_date\": \"2009-10-15\", \"docket_number\": \"No. 35720\", \"first_page\": \"312\", \"last_page\": \"316\", \"citations\": \"148 Idaho 312\", \"volume\": \"148\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:00:11.581706+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge LANSING and Judge GRATTON concur.\", \"parties\": \"In the Matter of the Driver\\u2019s License Suspension of Gary Alan Feasel Gary Alan FEASEL, Petitioner-Respondent, v. IDAHO TRANSPORTATION DEPARTMENT, Respondent-Appellant.\", \"head_matter\": \"222 P.3d 480\\nIn the Matter of the Driver\\u2019s License Suspension of Gary Alan Feasel Gary Alan FEASEL, Petitioner-Respondent, v. IDAHO TRANSPORTATION DEPARTMENT, Respondent-Appellant.\\nNo. 35720.\\nCourt of Appeals of Idaho.\\nOct. 15, 2009.\\nReview Denied Jan. 11, 2010.\\nMichael Kane & Assoc., PLLC, Boise, for appellant. Michael J. Kane argued.\\nRobert A. Wallace, Boise, for respondent.\", \"word_count\": \"2417\", \"char_count\": \"14735\", \"text\": \"GUTIERREZ, Judge.\\nThe Idaho Transportation Department (ITD) appeals the district court's reversal of an order of an ITD hearing officer suspending Gary Alan Feasel's driver's license. For the reasons set forth below, we reverse the decision of the district court.\\nI.\\nBACKGROUND\\nFeasel was arrested for driving under the influence after he rear-ended a vehicle at the intersection of Broadway and Front Street in Boise. An officer at the scene submitted an affidavit indicating that Feasel admitted to having taken multiple medications including Ambien CR, Lithium, Prozac, and Wellbutrin at some point prior to the accident. The officer also noted that Feasel had slurred speech, appeared sleepy, and exhibited an impaired memory. The officer performed field sobriety tests including the gaze nystagmus, walk and turn, and one leg stand tests, all of which Feasel failed. Feasel submitted to a breath alcohol test which showed no trace of alcohol, and a urine test which detected the presence of fluoxetine (Prozac).\\nFeasel was notified by the ITD of an administrative license suspension (ALS) and timely requested an administrative hearing. At the hearing, warning labels from each of the medications were read. Each label indicated that the drugs may cause drowsiness and may impair or lessen the ability to drive or operate a car, and the Prozac label specifically warned that the user should be familiar with the effects before driving. A toxicologist testified that the urine test showed only that the driver had ingested some unknown quantity of Prozac at some time in the past and that this fact alone could not support the inference of impairment. Feasel argued that .since the urinalysis results did not quantify the drugs found in his system, a violation of Idaho Code \\u00a7 18-8004 could not be established. He stressed that he was taking the medication pursuant to a valid prescription and that, prior to the date of the incident, he had never had impairment problems while taking all four medications at once. The hearing officer determined that I.C. \\u00a7 18-8004 and 18-8002A do not require the quantification of a drug in the driver's body for a violation to occur; only the presence of drugs is required combined with indications of impairment. The hearing officer also relied on I.C. \\u00a7 18-8004(7), which specifies that a valid prescription or prior use without impairment are not defenses. The hearing officer upheld the suspension, determining that \\\"the officer gave numerous indications that the driver was impaired. Those observations combined with the results showing the presence of drugs were sufficient to establish a violation of I.C. \\u00a7 18-8004 and 18-8002A.\\\"\\nFeasel filed a timely petition for judicial review. At the district court level he argued that a urine test indicating the presence of a drug is not enough to form the basis of a license suspension. Rather, he argued, there must be some quantitative measurement or clear factual connection to a driving pattern or other evidence of im pairment attributable to those specific drugs. The district court determined that a direct causal linkage among the circumstances of driving, drug ingestion, and impairment must be established in order to suspend a driver's license under I.C. \\u00a7 18-8002A(4). It found that cases involving drugs and other intoxicating substances require a different structure of proof than eases involving alcohol because the statute provides the necessary causal linkage with regard to alcohol, but does not do the same with drugs or other intoxicating substances. The court determined that there was no evidence of linkage to show that any of the medications that Feasel admitted to taking are intoxicating substances or that they could or did cause the impairments demonstrated at the scene of the accident. The court stated that the mere taking of Prozac is not sufficient by itself to show that the impairments that were later observed were caused by it, that there' was no proof to show that Prozac in sufficient quantities would cause impairment and that there was no proof that Feasel had even ingested a sufficient quantity. The district court ultimately reversed the hearing officer's order of suspension, ruling that the proof in this case was insufficient to state a legal cause to believe Feasel was driving under the influence of drugs or other intoxicating substances and ordered that the action be remanded to reinstate Feasel's driving privileges. The ITD appeals seeking reversal of the district court's decision.\\nII.\\nDISCUSSION\\nThe Idaho Administrative Procedures Act (I.D.A.P.A.) governs the review of department decisions to deny, cancel, suspend, disqualify, revoke or restrict a person's driver's license. See I.C. \\u00a7 49-330, 67-5270. In an appeal from the decision of the district court acting in its appellate capacity under I.D.A.P.A., this Court reviews the agency record independently of the district court's decision. Marshall v. Idaho Dep't of Transp., 137 Idaho 337, 340, 48 P.3d 666, 669 (Ct.App.2002). This Court does not substitute its judgment for that of the agency as to the weight of the evidence presented. I.C. \\u00a7 67-5279(1); Marshall, 137 Idaho at 340, 48 P.3d at 669. This Court instead defers to the agency's findings of fact unless they are clearly erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. In other words, the agency's factual determinations are binding on the reviewing court, even where there is conflicting evidence before the agency, as long as the determinations are supported by substantial competent evidence in the record. Urrutia v. Blaine County, ex rel. Bd. of Comm'rs, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000); Marshall, 137 Idaho at 340, 48 P.3d at 669.\\nA court may overturn an agency's decision where its findings, inferences, conclusions or decisions: (a) violate statutory or constitutional provisions; (b) exceed the agency's statutory authority; (c) are made upon unlawful procedure; (d) are not supported by substantial evidence in the record; or (e) are arbitrary, capricious or an abuse of discretion. I.C. \\u00a7 67-5279(3). The party challenging the agency decision must demonstrate that the agency erred in a manner specified in I.C. \\u00a7 67-5279(3) and that a substantial right of that party has been prejudiced. Price v. Payette County Bd. of County Comm'rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. If the agency's decision is not affirmed on appeal, \\\"it shall be set aside . and remanded for further proceedings as necessary.\\\" I.C. \\u00a7 67-5279(3).\\nThe ALS statute, I.C. \\u00a7 18-8002A, requires that the ITD suspend the driver's license of a driver who has failed an evidentiary test administered by a law enforcement officer. The period of suspension is ninety days for a driver's first failure of an evidentiary test and one year for any subsequent test failure within five years. I.C. \\u00a7 18-8002A(4)(a). A person who has been notified of an ALS may request a hearing before a hearing officer designated by the ITD to contest the suspension. I.C. \\u00a7 18-8002A(7). At the administrative hearing, the burden of proof rests upon the driver to prove any of the grounds to vacate the suspension. I.C. \\u00a7 18-8002AC7); Kane v. State, Dep't of Transp., 139 Idaho 586, 590, 83 P.3d 130, 134 (Ct.App.2003). The hearing officer must uphold the suspension unless he or she finds, by a preponderance of the evidence, that the driver has shown one of several grounds enumerated in I.C. \\u00a7 18-8002A(7) for vacating the suspension. Those grounds include:\\n(b) The officer did not have legal cause to believe the person had been driving or was in actual physical control of a vehicle while under the influence of alcohol, drugs or other intoxicating substances in violation of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code; or\\n(c) The test results did not show an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004, 18-8004C or 18-8006, Idaho Code....\\nI.C. \\u00a7 18-8002A(7). The hearing officer's decision is subject to challenge through a petition for judicial review. I.C. \\u00a7 18-8002A(8); Kane, 139 Idaho at 589, 83 P.3d at 133. The interpretation of a statute is an issue of law over which we exercise free review. Corder v. Idaho Farmway, Inc., 133 Idaho 353, 358, 986 P.2d 1019, 1024 (Ct.App.1999).\\nIdaho Code \\u00a7 18-8002A(4)(a) states in relevant part:\\nUpon receipt of the sworn statement of a peace officer that there existed a legal cause to believe a person had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol, drugs or other intoxicating substances and that the person submitted to a test and the test results indicated an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004 . the department shall suspend the person's driver's license....\\nThe ITD argues that for purposes of I.C. \\u00a7 18-8002A(4) and 18-8004, the hearing-officer can properly infer that a drug caused intoxication if evidence shows that there is some degree of impairment and that the test results indicate the presence of drugs or other intoxicating substances. As the district court noted, there is a different structure of proof under the statute when dealing with alcohol than there is when dealing with drugs. The statute sets forth a specific alcohol concentration in a driver's blood, breath or urine that is unlawful. See I.C. \\u00a7 18-8004. This is not the case with drugs and other intoxicating substances. Contrary to the district court's interpretation, neither I.C. \\u00a7 18-8002A(4) nor I.C. \\u00a7 18-8004 requires that the state show the quantity or concentration of drugs in a driver's system and that such a quantity would cause impairment. Under the district court's interpretation, in drug cases, the state must show by test or expert testimony that ingestion of a particular drug in sufficient quantity caused impairment.\\nThis Court rejected the quantification argument, albeit in a criminal action context, in State v. Lesley, 133 Idaho 23, 26, 981 P.2d 748, 751 (Ct.App.1999). There, Lesley argued that under I.C. \\u00a7 18-8004, the state was required to prove the quantity of drugs present in a person's bloodstream before the ability to drive will be impeded and that such quantity was present. Lesley, in essence, rejected this quantification requirement, stating:\\n. [T]hat section . [makes] it a crime for a person to drive or be in actual physical control of the motor vehicle if the person \\\"is under the influence of any . drug or any combination of alcohol and any drug to the degree which renders him incapable of safely driving a motor vehicle.\\\" I.C. \\u00a7 18-8004(5) (1994). A violation turns upon the effect that the drugs or combination of drugs and alcohol have on the individual's ability to safely operate a vehicle, not upon any quantification of the amount of a drug in the bloodstream.\\nLesley, 133 Idaho at 26, 981 P.2d at 751.\\nFor the first time on appeal, Feasel argues that under I.C. \\u00a7 18-8002A(7)(c), the hearing officer was strictly limited to consider only the results of the test and not any other circumstantial evidence. This argument was not presented to the hearing officer, but developed in the district court. In raising this argument, Feasel relies on Reise nauer v. State Dep't. of Transp., 145 Idaho 948, 188 P.3d 890 (2008). In that case, our Supreme Court determined that a drug must be intoxicating in order for I.C. \\u00a7 18-8002A to apply. Feasel argues that Reisenauer stands for the proposition that a hearing officer needs more than qualitative test results merely showing the presence of a drug to uphold a license suspension. However, Feasel misconstrues Reisenauer and its application to the instant case. There, it was concluded that the test need only indicate the presence of intoxicating drugs. Id. at 951, 188 P.3d at 893. In the instant case, the hearing officer was correct to consider not only the test results indicating the presence of Prozac, but also the other evidence of the potential effects of Prozac and the other drugs.\\nHere, Feasel's urine test results indicated that Prozac was present in his system at the time of the accident. The label on the Prozac indicated it may cause drowsiness, it may impair or lessen the ability to drive or operate a car and the user should be familiar with the effects before driving. Feasel also admitted to taking other prescription medications having similar effects just prior to the accident. The officer observed, and the video tape of the encounter shows, Feasel had slurred speech, an impaired memory, seemed sleepy and failed the field sobriety tests. Based on the evidence presented at the suspension hearing, it was proper for the hearing officer to infer that Prozac, in combination with the other drugs ingested, caused intoxication and consequently impaired Feasel's ability to drive safely. Moreover, pursuant to I.C. \\u00a7 18-8004(7), it is not a defense that a person charged with a violation of this statute has a history of past use of the drug or carries a valid prescription for the drug. See also State v. Goerig, 121 Idaho 108, 113, 822 P.2d 1005, 1010 (Ct.App.1991) (The fact that Goerig was legally entitled to take lithium because it had been prescribed to him was not a defense to a charge of driving under the influence of intoxicants.). Accordingly, any of Feasel's claims that he had a valid prescription or had been using the medications together for some time without experiencing any problems are not defenses. By the statute's plain language, only the presence of drugs, not the quantity, must be established along with other competent evidence of impairment caused by the drugs.\\nIII.\\nCONCLUSION\\nThe district court erred by reversing the ITD's order suspending Feasel's driver's license. Feasel did not meet his burden of proof to establish any ground for vacating his suspension. The evidence before the hearing officer established that Feasel was operating a motor vehicle while under the influence of drugs. Accordingly, we reverse the district court's reversal of the administrative license suspension and affirm the suspension.\\nChief Judge LANSING and Judge GRATTON concur.\"}"
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+"{\"id\": \"4073952\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. John DOE, Defendant-Appellant\", \"name_abbreviation\": \"State v. Doe\", \"decision_date\": \"2010-03-26\", \"docket_number\": \"No. 36606\", \"first_page\": \"919\", \"last_page\": \"937\", \"citations\": \"148 Idaho 919\", \"volume\": \"148\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:00:11.581706+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justices BURDICK, W. JONES, and HORTON, and Justice Pro Tem TROUT concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. John DOE, Defendant-Appellant.\", \"head_matter\": \"231 P.3d 1016\\nSTATE of Idaho, Plaintiff-Respondent, v. John DOE, Defendant-Appellant.\\nNo. 36606.\\nSupreme Court of Idaho, Boise,\\nFebruary 2010 Term.\\nMarch 26, 2010.\\nRehearing Denied May 5, 2010.\\nCapitol Law Group, PLLC, Boise, for appellant. David A. Heida argued.\\nHonorable Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.\", \"word_count\": \"9980\", \"char_count\": \"61780\", \"text\": \"J. JONES, Justice.\\nJohn Doe appeals the district court's holding that Wendell City Ordinance No. 442 is not facially unconstitutional. We affirm.\\nI.\\nFacts and Procedural History\\nJohn Doe, a minor, was a passenger in a vehicle stopped at 1:30 a.m. for a traffic violation. Doe was supposed to be staying at a friend's house, but sneaked out with two friends to look for a party. Doe was cited for a violation of Wendell City Ordinance No. 442 (\\\"Ordinance\\\"), a curfew ordinance, which provides:\\nSECTION 1. CURFEW HOURS, VIOLATIONS, AND EXCEPTIONS\\nA. NIGHT TIME CURFEW: It shall be unlawful for any minor person under the age of eighteen (18) years to loiter, idle, wander, stroll, play, or otherwise be upon the public streets, highways, roads, sidewalks, alleys, parks, playgrounds, or other public grounds, or public places, building, or other property generally open to public use, or vacant lots within the City of Wendell, between the hours of 11:00 o'clock p.m. and 5:00 o'clock a.m.\\nB. EXCEPTIONS: The provisions of this section do not apply to a minor accompanied by his or her parents or legal guardians, or where the minor is upon an emergency errand or other legitimate business directed by his or her parents or legal guardian or custodian or school, having in their possession some form of documentation as to the business to be performed.\\nSECTION 5. PENALTIES\\nAny person in violation of any section or provision of this ordinance shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Ordinance Number 192 of the City of Wendell, Idaho. Each violation of any section of this ordinance shall constitute a separate offense.\\nDoe sought to dismiss the citation in juvenile court, asserting the Ordinance was facially unconstitutional. Specifically, Doe argued that the Ordinance was void for vagueness in violation of the Due Process Clause, was overbroad in violation of the First Amendment, denied Doe equal protection of the laws in violation of the Fourteenth Amendment, and denied the fundamental right of a parent to direct the upbringing of his child in violation of the Due Process Clause. The magistrate judge orally denied the constitutional challenge. As a result, Doe made a conditional admission of guilt under the Ordinance and the constitutional challenge was orally certified for appeal to the district court. The district court also orally rejected the constitutional challenge.\\nDoe appealed, raising the same constitutional challenge and seeking reversal of the district court's order. The appeal was assigned to the Court of Appeals. The Court of Appeals reversed the district court, finding that the Ordinance was unconstitutionally overbroad. The Court of Appeals did not reach the other constitutional issues. This Court then granted the State's petition for review.\\nII.\\nIssues on Appeal\\nThe following issues are presented on appeal: (1) whether the Ordinance is unconstitutionally overbroad or void for vagueness; (2) whether the Ordinance denies equal protection of the laws; and (3) whether Doe has standing to assert the alleged violation of his parents' rights to direct his upbringing.\\nIII.\\nA.\\nStandard of Review\\nA petition for review of a decision of the Court of Appeals will only be granted \\\"when there are special and important reasons\\\" for review. Idaho App. R. 118(b). When the Supreme Court reviews a case previously decided by the Court of Appeals, \\\"this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court.\\\" In re Doe, 144 Idaho 819, 821, 172 P.3d 1094, 1096 (2007). \\\"On appeal of a decision rendered by a district court while acting in its intermediate appellate capacity, the Court directly reviews the district court's decision.\\\" In re Doe, 147 Idaho 243, 248, 207 P.3d 974, 979 (2009).\\nThis Court freely reviews constitutional questions. Plummer v. City of Fruitland, 139 Idaho 810, 812, 87 P.3d 297, 299 (2004). When determining the constitutionality of a city ordinance, the Court will review the ordinance de novo. Id. A party challenging an ordinance on constitutional grounds bears the burden of establishing the ordinance's unconstitutionality and is required to \\\"overcome a strong presumption of validity.\\\" State v. Korsen, 138 Idaho 706, 711, 69 P.3d 126, 131 (2003). We are obligated to attempt to interpret the ordinance in a manner that upholds its constitutionality. Id.\\nB.\\nOverbreadth and Vagueness\\nDoe argues that his conviction should be reversed because the Ordinance is unconstitutionally overbroad and vague. Doe contends that the Ordinance is overbroad because it prohibits activities that constitute protected speech under the First Amendment without providing an exception for carrying out those activities. Doe points to three portions of the Ordinance he contends are vague: (1) \\\"loiter, idle, wander, stroll, play, or otherwise be upon;\\\" (2) \\\"where the minor is upon an emergency errand or other legitimate business;\\\" and (3) \\\"some form of documentation.\\\" Doe does not argue that these provisions are unconstitutional as applied to him, but instead that the Ordinance is unconstitutional on its face because of the inclusion of the challenged phrases. Doe contends that these are imprecise terms that have not been defined, vesting police officers with virtually unfettered discretion to make arrests under the Ordinance and failing to inform the general public of the conduct made criminal. The State contends that Doe should not succeed in his facial challenge because the Ordinance does not reach a substantial amount of protected conduct and is not unconstitutionally vague in all its applications.\\nIt is a key principle of constitutional law \\\"that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.\\\" Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839-40 (1973). As a result, a litigant need not be prohibited from any constitutionally protected behavior in order to mount a facial challenge to a legislative measure in order to protect the rights of others not before the court. Id. at 612, 93 S.Ct. at 2915-16, 37 L.Ed.2d at 839-40 However, because invalidating an ordinance based on a challenge of one who does not have standing in the traditional sense is \\\"strong medicine,\\\" courts should use care in reviewing facial challenges. Id. at 613, 93 S.Ct. at 2916-17, 37 L.Ed.2d at 840-41.\\nWhere a facial challenge is made to an ordinance on overbreadth and vagueness grounds, a court must first decide whether the ordinance \\\"reaches a substantial amount of constitutionally protected conduct.\\\" Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (1982). If the ordinance does not reach a substantial amount of protected conduct, then the overbreadth challenge will fail. Id. A court should then examine the ordinance on the facial vagueness challenge. Id. The ordinance will only be found void for vagueness if it is unconstitutionally vague in all its applications. Id. at 494-95, 102 S.Ct. at 1191-92, 71 L.Ed.2d at 368-70. Normally, where the complaining party has engaged in conduct that is clearly prohibited by the ordinance, he cannot argue that the ordinance is vague. Id. Accordingly, given this structure, the overbreadth challenge will be addressed first and then the vagueness challenge.\\n1.\\nOverbreadth\\nDoe argues that the Ordinance is facially overbroad. An ordinance may be facially overbroad if it: (1) seeks to regulate only constitutionally protected speech; (2) impermissibly burdens innocent associations; or (3) places regulations on \\\"the time, place, and manner of expressive or communicative conduct,\\\" particularly where the restriction \\\"delegated] standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights.\\\" Broadrick, 413 U.S. at 612-13, 93 S.Ct. at 2916-17, 37 L.Ed.2d at 840. The review of an ordinance varies depending on the type of conduct prohibited or criminalized by the enactment.\\nIn this case, Doe argues that the Ordinance has incidental effects on expressive conduct and innocent associations rather than directly prohibiting protected speech. \\\"[0]verbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment rather than pure speech, but doing so in a neutral, noncensorial manner.\\\" Id. at 614, 93 S.Ct. at 2917., 37 L.Ed.2d at 841 Where conduct, as well as speech, is regulated by a statute and the State has a legitimate interest in regulating the conduct in question, there must be a demonstration of real and substantial overbreadth in order for a facial challenge to be successful. Id. at 615, 93 S.Ct. at 2917-18, 37 L.Ed.2d at 841-42. The party arguing overbreadth bears the burden of showing \\\" 'from the text of [the law] and from actual fact,' that substantial overbreadth exists.\\\" Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 2198, 156 L.Ed.2d 148, 159 (2003) (quoting New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1, 16-17 (1988)). This showing requires a demonstration that the law prohibits a substantial amount of protected activity in relation to the law's legitimate sweep. Id. at 118-19, 123 S.Ct. at 2196, 156 L.Ed.2d at 156-58 (quoting Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918, 37 L.Ed.2d at 841-42). This showing will invalidate the enactment as a whole \\\"until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.\\\" Id. at 119, 123 S.Ct. at 2196, 156 L.Ed.2d at 157 (quoting Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916, 37 L.Ed.2d at 840-41). Overbreadth is not substantial if, despite the fact that some constitutionally protected conduct is proscribed, the statute covers a wide range of conduct that is easily identifiable and within the city's power to prohibit. State v. Korsen, 138 Idaho 706, 714, 69 P.3d 126, 134 (2003). Where an ordinance proscribes protected speech only to some unknown extent, a court cannot justify invalidating the ordinance. Id. at 713, 69 P.3d at 133.\\nIn Korsen, this Court overruled the district court's finding that Idaho Code section 18-7008(8), which creates criminal liability for trespassing when a party refuses to vacate real property after being asked to depart by the owner or the owner's authorized agent, was unconstitutionally overbroad on its face. Id. at 710, 69 P.3d at 130. Korsen was charged with a violation of section 18-7008(8) when he refused to leave the offices of the Idaho Department of Health and Welfare after being asked to do so by the region al director. Id. This Court rejected the district court's analysis because the district court failed to apply a significantly stringent standard. Id. at 715, 69 P.3d at 135. The district court relied on one hypothetical situation, that the trespassing statute could potentially be used to keep citizens from engaging in a dialogue with legislators at the State Capitol, as support for its finding of unconstitutional overbreadth. Id. We found that analysis to be flawed because it did not demonstrate \\\"a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court....\\\" Id. (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801-02, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772, 784-85 (1984)). The Court also found fault with the district court's failure to consider the statute's constitutional applications to situations involving private property and those situations in which no protected speech was implicated. Id. The Court noted that these forgotten considerations were exemplified by Korsen's conduct because any constitutionally protected business he had on the premises was at an end well before his refusal to leave and subsequent arrest. Id. at 715-16, 69 P.3d at 135-36. The Korsen opinion indicates that this Court will consider all aspects of the statute and its application in determining whether it is unconstitutionally overbroad on its face. In addition, the Court will construe the terms of the statute in order to determine the scope of protected conduct that might be affected and review U.S. Supreme Court precedent to guide our determination of conduct that might constitutionally be criminalized. State v. Poe, 139 Idaho 885, 892-903, 88 P.3d 704, 711-22 (2004). Similar analysis will be undertaken here.\\nThe Ordinance prohibits a minor from being in public from 11:00 p.m. till 5:00 a.m. unless one of the exceptions to the ordinance is applicable. A minor may be in public during those hours if: (1) he is accompanied by a parent or legal guardian; or (2) the minor is on an \\\"emergency errand or other legitimate business\\\" at the direction of his \\\"parents or legal guardian or custodian or school\\\" and has \\\"some form of documentation as to the business to be performed.\\\" Doe argues that the broad reach and narrow exceptions of the Ordinance prohibit protected conduct including attending religious exercises, town hall meetings, and school events. Accordingly, Doe argues that the Ordinance constitutes an impermissible time, place, and manner restriction on speech.\\n\\\"Regulations that burden speech incidentally or control the time, place, and manner of expression, must be evaluated in terms of their general effect.\\\" United States v. Albertini, 472 U.S. 675, 688-89, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536, 548 (1985). An incidental burden on speech may be justified if \\\"[1] it is within the constitutional power of the Government; [2] it furthers an important or substantial governmental interest; [3] the governmental interest is unrelated to the suppression of free expression; and [4] the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.\\\" United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672, 679-80 (1968). When a government regulation satisfies the O'Brien test, it constitutes a reasonable time, place, and manner restriction and will not be invalidated for its incidental effects on protected conduct. Taxpayers for Vincent, 466 U.S. at 808, 104 S.Ct. at 2130-31, 80 L.Ed.2d at 789. The Ordinance will be analyzed according to the O'Brien test.\\na.\\nThe City of Wendell is empowered to enact ordinances by article XII, section 2 of the Idaho Constitution. Under that provision, \\\"[a]ny county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general law.\\\" Idaho Const. art. XII, \\u00a7 2. This Court has found that there are three general restrictions that must be met by an ordinance enacted under this provision: (1) it must be confined to the territorial limits of the enacting body; (2) it must not conflict with the general laws of the State; and (3) it must not be an unreasonable or arbitrary enactment. Hobbs v. Abrams, 104 Idaho 205, 207, 657 P.2d 1073, 1075 (1983).\\nIn this case, Doe does not argue, nor does-the Ordinance indicate, that it extends beyond the territorial limits of the City of Wendell. In fact, the plain language of the Ordinance provides that it is only in effect in the city. In addition, Doe has pointed to no other laws of the State of Idaho that conflict with the Ordinance. In fact, juvenile curfew ordinances are specifically contemplated by legislative enactment. Idaho Code section 32-1301 empowers municipalities to impose criminal sanctions on parents for failure to supervise their children. I.C. \\u00a7 32-1301. Section 32-1301(2)(e) provides that a parent automatically commits the offense of failure to supervise a child under sixteen if that child violates a curfew ordinance enacted under local law. I.C. \\u00a7 32-1301. This provision indicates that the City of Wendell not only has the power to enact curfew ordinances, but is expected to do so by the Legislature.\\nDoe has in fact recognized that municipalities have a legitimate interest in enacting a juvenile curfew ordinance in order to promote the safety and welfare of their citizens and prevent juvenile criminal activity and victimization. Doe's challenge to the Ordinance is focused on the fact that it does not provide exceptions for protected conduct that may fall within its ambit. This, without more, is insufficient to show that the Ordinance is unreasonable or arbitrary. As such, the Ordinance is a valid enactment within the power of the City of Wendell, meeting the first prong of the O'Brien test.\\nb.\\nMunicipalities have a substantial interest in preventing juvenile crime and victimization. See, e.g., Nunez ex rel. Nunez v. City of San Diego, 114 F.3d 935, 947 (9th Cir.1997); State v. J.P., 907 So.2d 1101, 1118 (Fla.2004). There has been no showing that the Ordinance does not further those interests. Also, as pointed out in Doe's brief, the U.S. Supreme Court has recognized that the physical and psychological well-being of minors is a compelling government interest. See Sable Commc'ns v. Fed. Commc'ns Comm'n, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93, 105 (1989). While the stated purpose of the Ordinance is not specific to these particular interests, such interests are encompassed within its stated purpose, which is to promote the welfare and safety of the public. There is no requirement that a substantial interest sufficient to support the constitutionality or validity of an ordinance must appear on the face of the enactment. Consequently, the Ordinance serves a substantial government interest.\\nc.\\nA ban on the means of expression is not a suppression of the expression itself for the purpose of the O'Brien standard. City of Erie v. Pap's A.M., 529 U.S. 277, 292, 120 S.Ct. 1382, 1392-93, 146 L.Ed.2d 265, 280 (2000). In Pap's A.M., the U.S. Supreme Court found that a ban on public nudity, even though likely directed at nude dancing, had a valid, content-neutral purpose in prohibiting the secondary effects of nude dancing. Id. at 291, 120 S.Ct. at 1392, 146 L.Ed.2d at 279-80 The purpose was content neutral, despite the fact that nude dancing is a protected form of expression. Id. The Court found that the ban was not directed at expression because it banned all public nudity, not simply nude dancing. Id.\\nAlthough the Ordinance is quite different from the nudity ban in Pap's A.M., the rationale behind them is the same. The Ordinance bans all juveniles from being in public between the hours of 11:00 p.m. to 5:00 a.m., unless they fall within one of the exceptions to the statute. While this curfew may have the practical effect of preventing certain forms of expression during curfew hours, the Ordinance, much like the ban in Pap's AM., cannot be said to directly target that expression because it is targeted at all juvenile activity, both protected and nonprotected. As such, the government interest in keeping juveniles off the streets is likewise unrelated to the suppression of expression.\\nd.\\nWhere a restriction incidentally impacts protected conduct rather than speech, and the restriction is content neutral, there is no requirement that the restriction be enacted through the least restrictive means. Id. at 301-02, 120 S.Ct. at 1397-98, 146 L.Ed.2d at 285-87. However, the restriction must be no greater than necessary to carry out the governmental interest. Id. at 301, 120 S.Ct. at 1397, 146 L.Ed.2d at 285-86. In conducting the subjective inquiry into whether the Ordinance meets that requirement, it is instructive to view other cases where the U.S. Supreme Court has applied the O'Brien test, as well as cases from other jurisdictions where the test has been applied to curfew ordinances similar to the one in this case.\\nIn Pap's A.M., the Court found that the ban on appearing nude in public was no greater than necessary to carry out the city's interest in preventing the harmful secondary effects of public nudity because it only regulated conduct and had a de minimis effect on the dancers' ability to convey their erotic message because they were still allowed to dance in minimal attire. Id. at 301, 120 S.Ct. at 1397, 146 L.Ed.2d at 285-86. A similar result was reached in Grayned v. City of Rockford, where the Court upheld a city anti-noise ordinance that prohibited a person from willfully making a noise or diversion that disturbs or tends to disturb the peace or good order of the school session while on grounds adjacent to a building in which a school was in session. 408 U.S. 104, 110-12, 92 S.Ct. 2294, 2300-01, 33 L.Ed.2d 222, 228-30 (1972). The Court's holding was based on the city's important interest in preventing the disruption of school activities. Id. at 118-19, 92 S.Ct. at 2304-05, 33 L.Ed.2d at 233-34. The Court found that even though the ordinance prohibited speech, it only prohibited speech necessary to preserve the integrity of the educational environment by limiting the prohibition to \\\"conduct which disrupts or is about to disrupt normal school activities.\\\" Id. at 119, 92 S.Ct. at 2305, 33 L.Ed.2d at 234. The same result was reached in Clark v. Community for Creative Non-Violence, where the Court found that the incidental impact of a public park's overnight sleeping ban on a planned demonstration did not render the statute overbroad. 468 U.S. 288, 296-97, 104 S.Ct. 3065, 3070-71, 82 L.Ed.2d 221, 228-30 (1984) (\\\"It is also apparent to us that the regulation narrowly focuses on the Government's substantial interest in maintaining the parks.... The sleeping ban, if enforced, would thus effectively limit the nature, extent, and duration of the demonstration and to that extent ease the pressure on the parks.... [I]t is evident from our cases that the validity of this regulation need not be judged solely by reference to the demonstration at hand.\\\").\\nThe Supreme Court invalidated a local ordinance regulating the screening of drive-in movies on overbreadth grounds in Erznoznik v. City of Jacksonville. 422 U.S. 205, 213, 95 S.Ct. 2268, 2274-75, 45 L.Ed.2d 125, 133 (1975). In that case, a local ordinance banned the screening of drive-in movies within view of a public street or area if the movie contained nudity. Id. at 206-07, 95 S.Ct. at 2271-72, 45 L.Ed.2d at 129-30. The stated interest behind the ordinance was to protect minors from public displays of nudity. Id. at 207, 95 S.Ct. at 2271-72, 45 L.Ed.2d at 129-30. The Court found the ordinance was not limited to that interest because it prohibited the display of all nudity and not simply sexually explicit or obscene nudity and noted that the First Amendment did not allow the limitation of information to minors in that manner. Id. at 213, 95 S.Ct. at 2274-75, 45 L.Ed.2d at 133. Apart from Erznoznik, however, it is difficult to find cases where the Court has invalidated statutes and ordinances that do not have speech-content regulation as their purpose. This is explained by the Court's statements in Texas v. Johnson concerning the \\\"relatively lenient\\\" or \\\"less demanding\\\" standards of review under the O'Brien test. 491 U.S. 397, 407, 109 S.Ct. 2533, 2541, 105 L.Ed.2d 342, 355-56 (1989). Consequently, given this statement, it appears that the Ordinance must be substantially far afield from its stated purpose in order to be invalid under O'Brien.\\nThe Fifth Circuit Court of Appeals invalidated a curfew ordinance on overbreadth grounds in Johnson v. City of Opelousas. 658 F.2d 1065, 1071-74 (5th Cir.1981). In that case, an ordinance substantially similar to the ordinance at issue here was declared unconstitutionally overbroad because the ordinance had a substantial effect on a number of constitutionally protected activities. ' Id. However, a few characteristics of Johnson should be noted, to determine its persuasive authority. First, although similar, the ordinance in Johnson did not allow parents or other child custodians to authorize a child's presence in public after hours with a permission slip or some similar documentation. Id. at 1071. Second, the court in Johnson used some amalgam of the O'Brien test, neither specifically analyzing all of its factors nor focusing on the state's interest in enforcing the ordinance. Id. at 1071-74. Finally, the court impermissibly considered the right to interstate travel as part of the overbreadth balancing, even though overbreadth is limited to speech concerns. Id.\\nSimilar infirmities are presented by the analysis in Nunez. In that case, the Ninth Circuit found a San Diego juvenile curfew ordinance invalid on several grounds, including overbreadth. 114 F.3d at 949-51. The ordinance was also similar to the one at issue here, the key difference being the \\\"legitimate business\\\" exception of the Ordinance, which was not included in the San Diego ordinance. Id. at 938. Further, although the Ninth Circuit articulates the factors of the O'Brien test, it does not apply O'Brien. Id. at 949-51. The court simply declares the ordinance unconstitutionally overbroad because of its findings that the ordinance restricts any and all access to a public forum. Id. at 951. In fact, it seems that the Ninth Circuit's finding of overbreadth is based on a finding that the ordinance was directed at expression rather than having an incidental effect on expression that is broader than necessary in order to carry out the governmental interest in question. See id. (\\\"[T]he San Diego ordinance 'is directed narrowly and specifically at expression or conduct commonly associated with expression.' \\\"). This finding seems contradictory to the obvious and stated purpose of such an ordinance, to keep children off the street at night for their own well-being and for the health and safety of the populous at large. There is no indication from the evidence considered in the Nunez opinion that the San Diego City Council had the prevention of juvenile speech in mind when it enacted its ordinance. Accordingly, the Nunez opinion is of questionable persuasive value, despite Doe's extensive reliance on it.\\nThe Ordinance does not reach an amount of conduct that is greater than necessary to further the.City of Wendell's interests. As noted above, the City of Wendell has an interest in the physical and psychological well-being of minors, which is a compelling government interest, and the Ordinance appears to further that interest. Further, the City has a compelling interest in ensuring the health and safety of its citizens. The Ordinance, as opposed to those presented in Nunez and Johnson, contains a provision allowing a child to be in public without the presence of a parent or custodian so long as the child has some form of documented authorization. Doe has not shown that this authorization would not allow children to assert their First Amendment rights. Doe has also failed to show that the Ordinance would reach constitutionally protected conduct in a substantial portion of the cases where it would apply. In many instances, a juvenile cited under the Ordinance, like Doe, would be out looking for \\u00e1 party or engaging in some other nonprotected activity, which is clearly prohibited.\\nFurthermore, although Doe argues that the Ordinance must have a First Amendment exception, given the U.S. Supreme Court's statements concerning the laxity of the O'Brien test, the Ordinance does not have to be enacted through the least restrictive means necessary to further the compelling governmental interest. Although an ordinance may prohibit some forms of First Amendment expression, that prohibition is insufficient to render it unconstitutionally overbroad. The Ordinance seeks to keep children off the streets during the late hours of the night, presumably to allow increased parental supervision and to prevent juvenile crime and other dangers the juvenile may encounter. Allowing too many exceptions to the Ordinance, even though allowing greater freedom to exercise protected rights, would potentially undermine the purpose of the Ordinance. Accordingly, the Ordinance is not overbroad in relation to the interest it furthers.\\nIn addition, the Ordinance vests parents with the right to control whether their children engage in protected conduct through the authorized legitimate business or emergency errand exception. The exception allows a parent to authorize a child to engage in virtually any legal activity, so long as the authorization is documented in some form. As such, the limitation on conduct largely comes from the parent rather than a state actor, meaning that any burden on protected rights are derived from an unchallengeable source. Finally, Doe's arguments for over-breadth are largely based on a few hypotheticals without any actual showing of infringement of rights or the danger of infringement of rights. As this Court noted in Korsen, showing some hypothetical situation where First Amendment rights could be infringed is insufficient support for an overbreadth argument. As such, we find that the Ordinance does not impact more conduct than necessary to carry out its purpose.\\ne.\\nBecause the Ordinance satisfies all prongs of the O'Brien test, it is a reasonable time, place, and manner restriction under Pap's AM. In addition, Doe has failed to show that it impacts a substantial amount of protected conduct. As a result, we find that the Ordinance is not unconstitutionally overbroad.\\n2.\\nVagueness\\nIn order to comply with due process, a criminal statute must define behavior that constitutes a violation of that statute \\\"with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.\\\" Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983). Another concern articulated by the Supreme Court is that \\\"where a vague statute 'abut(s) upon sensitive areas of basic First Amendment freedoms,\\\"' it may chill the exercise of constitutionally protected activity. Grayned, 408 U.S. at 109, 92 S.Ct. at 2299, 33 L.Ed.2d at 228 (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377, 385 (1964)). The Court has recognized that the more important concern is the provision of concrete guidelines to police officers and prosecutors in order to avoid arbitrary and discriminatory enforce ment of penal laws. Id. The Court notes that \\\"lawmaking [should not be entrusted] 'to the moment-to-moment judgment of the policeman on his beat.' \\\" Kolender, 461 U.S. at 360, 103 S.Ct. at 1860, 75 L.Ed.2d at 911 (quoting Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, 613 (1974)). Where it is clear what an ordinance prohibits, \\\"mathematical certainty\\\" or \\\"meticulous specificity\\\" of language is not required, allowing for \\\"flexibility and reasonable breadth.\\\" Grayned, 408 U.S. at 110, 92 S.Ct. at 2300, 33 L.Ed.2d at 228-29.\\nTo succeed on a facial vagueness challenge, the challenged ordinance must be shown to be \\\"impermissibly vague in all its applications.\\\" Hoffman Estates, 455 U.S. at 497, 102 S.Ct. at 1193, 71 L.Ed.2d at 371. If the law interferes with the rights of speech or association, a more stringent vagueness test should be applied. Id. at 499, 102 S.Ct. at 1193-94, 71 L.Ed.2d at 372. The test for vagueness is also more stringent in a case where criminal sanctions are imposed for violation of the ordinance. Id. at 500, 102 S.Ct. at 1194, 71 L.Ed.2d at 372-73. We previously adopted a similar standard in Korsen, noting that \\\"in a facial challenge to a legislative enactment [on vagueness grounds], 'the challenger must establish that no set of circumstances exists under which the Act would be valid.' \\\" 138 Idaho at 712, 69 P.3d at 132 (quoting Salerno, 481 U.S. at 745, 107 S.Ct. at 2100, 95 L.Ed.2d at 707-08).\\nDoe argues that the U.S. Supreme Court's decision in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), is controlling because the Court found language similar to that used in the Ordinance to be unconstitutionally vague. Papachristou and other similar cases are distinguishable from the case at bar. The ordinance in Papach\\u00f1stou was based upon a class of old English vagrancy ordinances that criminalized activities such as \\\"wandering or strolling around from place to place without any lawful purpose or object.\\\" Id. at 158, 92 S.Ct. at 841, 31 L.Ed.2d at 112. The Court declared the statute invalid because, based on the huge class of undefined offenses and classes of persons subject to arrest under the statute, it allowed the police virtually unfettered discretion to arrest anyone in any situation. Id. at 170, 92 S.Ct. at 847-48, 31 L.Ed.2d at 119-20. The Court noted \\\"[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.\\\" Id. at 165, 92 S.Ct. at 845, 31 L.Ed.2d at 117 (quoting United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563, 565-66 (1875)).\\nThe Court reached a similar result in Kolender, where it invalidated a California loitering statute. 461 U.S. at 353, 103 S.Ct. at 1856, 75 L.Ed.2d at 906. In that case, the statute provided that anyone \\\"who loiters or wanders upon the streets or from place to place without apparent reason . and who refuses to identify himself . when requested by any peace officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification,\\\" may be arrested. Id. at 354, 103 S.Ct. at 1856, 75 L.Ed.2d at 906. The statute was subject to a-limiting construction by the California Court of Appeals, which noted that identification meant that an individual had to provide '\\\"credible and reliable' identification when requested by a police officer who has reasonable suspicion of criminal activity sufficient to justify a Terry detention.\\\" Id. at 356, 103 S.Ct. at 1857, 75 L.Ed.2d at 908. Despite the limiting construction, the Court found that the identification requirement vested the police with virtually unfettered discretion because the statute did not inform the ordinary citizen what constituted \\\"credible and reliable identification.\\\" Id. at 358, 103 S.Ct. at 1858-59, 75 L.Ed.2d at 909. This holding was based, in part, on a finding that a suspect violated the statute unless the questioning officer determined that the identification was reliable. Id. at 360, 103 S.Ct. at 1859-60, 75 L.Ed.2d at 910.\\nThe question presented in this case is much closer than that in either Papachristou or Kolender. Doe points to three portions of the Ordinance that he contends are vague; the language: (1) \\\"loiter, idle, wander, stroll, play, or otherwise be upon;\\\" (2) \\\"where the minor is upon an emergency errand or other legitimate business;\\\" and (3) \\\"some form of documentation.\\\" The first challenged phrase, although using archaic language similar to that struck down in Papachristou, plainly prohibits a specified class of conduct when taken in context. The first phrase, when read as a whole, provides:\\nIt shall be unlawful for any minor person under the age of eighteen (18) to loiter, idle, wander, stroll, play, or otherwise be upon the public streets, highways, roads, sidewalks, alleys, parks, playgrounds, or other public grounds, or public places, buildings, or other property generally open to public use, or vacant lots within the City of Wendell, between the hours of 11:00 o'clock p.m. and 5:00 o'clock a.m.\\nWhile there is no argument that much of the language used in the Ordinance is redundant, unnecessary, and potentially confusing, the intent of the Ordinance and what is prohibited by this section are clear \\u2014 no minor is to be in a public place within the City of Wendell between the hours of 11:00 p.m. and 5:00 a.m. Consequently, there are no discretionary calls to be made by an officer in this context, nor does it appear that a reasonable person would not know what conduct is prohibited by the Ordinance. This is contrast to Papachristou and Kolender where the scope of the prohibition was subject to question.\\nDoe also relies on the Ninth Circuit's determination that the language \\\"loiter, idle, wander, stroll, or play\\\" in a curfew statute was unconstitutionally vague. Nunez, 114 F.3d at 938, 940-43. This reliance is misplaced because the Wendell ordinance also contains the phrase \\\"or otherwise be upon,\\\" indicating that no public presence is allowed no matter what activity is undertaken during the specified time period. This conclusion is supported by the Ninth Circuit's finding that the language was vague because it meant something other than mere presence \\u2014 exactly what is proscribed by the Ordinance. Id. This finding is also in line with this Court's duty to produce a reasonable construction of a statute or ordinance that renders it constitutionally definite. Korsen, 138 Idaho at 711, 69 P.3d at 131. Accordingly, we find that the \\\"loiter, idle, wander, stroll, play, or otherwise be upon\\\" language is not unconstitutionally vague.\\nThe determination of whether the \\\"where the minor is upon an emergency errand or other legitimate business\\\" and \\\"some form of documentation\\\" provisions are vague is a closer question. In order to determine whether these provisions are vague, this Court will first look to the plain meaning of each. Because the other two challenged provisions are part of the same clause, they should be construed together. \\\"Emergency\\\" is defined as \\\"an unforeseen combination of circumstances or the resulting state that calls for immediate action, . a pressing need.\\\" Webster's Third New International Dictionary 741 (Philip Babcock Gove et al. eds., 1966). \\\"Errand\\\" is defined as \\\"a trip made in order to deliver a message or purchase or attend to something,\\\" \\\"the object or purpose of a short trip,\\\" or \\\"a service, favor, or piece of business undertaken for another.\\\" Id. at 772. \\\"Legitimate\\\" is defined as \\\"following in logical sequence: reasonable.\\\" Id. at 1291. Finally, \\\"business\\\" in this context is defined as \\\"an activity engaged in toward an immediate specific end .: task, chore, mission, assignment.\\\" Id. at 302. While there are multiple definitions for each of the above terms, it is the province of this Court, where possible, to apply a reasonable limiting construction to legislative measures in order to avoid facial uneonstitutionality. See Hicks, 539 U.S. at 119, 123 S.Ct. at 2196-97, 156 L.Ed.2d at 157-58.\\nThe challenged provision as a whole provides:\\nThe provisions of this section do not apply . where the minor is upon an emergency errand or other legitimate business directed by his or her parents or legal guardian or custodian or school, having in their possession some form of documentation as to the business to be performed.\\nAs evidenced by the definitions above, \\\"emergency errand\\\" appears to mean a trip made to attend to something that arose unexpectedly and which calls for immediate action. The use of the term \\\"emergency\\\" indicates that this is not simply a benign trip to the corner store, but something akin to seeking medical attention for a sudden injury. Further, the phrase \\\"legitimate business\\\" appears to mean any reasonable activity authorized by a parent, guardian, custodian, or school under the circumstances. In addition, because both emergency errands and legitimate business require parental authorization, together they form a class of conduct that essentially authorizes a minor to engage in any legal activity, so long as it is authorized by one of the authorities in the ordinance. Thus, we find that if the minor is in possession of documentation from one of the specified authorities and is engaged in the activity permitted by that document, he or she is engaged in legitimate business or an emergency errand. The documentation must simply reflect that it was issued by one of the authorized authorities and actually authorizes the activity undertaken by the juvenile.\\nFurthermore, given the fact that the Ordinance clearly provides that minors are not to be in public between the hours of 11:00 p.m. and 5:00 a.m. unless they come within one of the exceptions, Doe engaged in clearly proscribed conduct. As such, much like the defendant in Korsen, where the arrest itself was the result of clearly proscribed behavior, Doe's facial challenge must fail; thus, we find the Ordinance sufficiently definite in its terms to survive Doe's vagueness challenge.\\nC.\\nDoe's \\\"Equal Protection\\\" Claim\\nDoe argues that the ordinance is unconstitutional because it denies him equal protection of the laws in violation of the Fourteenth Amendment; however, his basis for this claim is unclear. Doe's apparent justification for this challenge is based on its restriction of a minor's right of free movement. This theory appears to be drawn from the Nunez case, where the Ninth Circuit found that because age was not a suspect classification, the only way strict scrutiny review could apply would be through infringement on the fundamental right of free movement. 114 F.3d at 944. While this is true, it is incorrect to label this analysis as an equal protection analysis. Instead, the issue should be approached as a substantive due process issue because it involves the potential denial of fundamental rights.\\nThe Due Process Clause provides heightened protection against government interference with fundamental rights and liber ties. Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 2267-68, 138 L.Ed.2d 772, 787 (1997). In addition to the freedoms explicitly protected by the Bill of Rights, the U.S. Supreme Court has recognized that other rights may be fundamental and subject to heightened scrutiny. Id. In order to determine whether a right is fundamental, a two-step analysis is undertaken. Id. First, the right must be shown objectively to \\\" 'be deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed,' \\\" Id. at 720-21, 117 S.Ct. at 2268, 138 L.Ed.2d at 787-88 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1937-38, 52 L.Ed.2d 531, 539-40 (1977); Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151-52, 82 L.Ed. 288, 292 (1937)). \\\"Second, [the Court has] required, in substantive-due-process cases, a 'careful description' of the asserted fundamental liberty interest.\\\" Id. In determining whether a right is fundamental, \\\"[o]ur Nation's history, legal traditions, and practices thus provide the crucial 'guideposts for responsible decision-making.'\\\" Id. (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261, 273 (1992)).\\nThe Ninth Circuit based its finding of a fundamental right to travel on a few lines in the U.S. Supreme Court's opinion in Papachristou, in which the Court stated: \\\"[T]hese activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity.\\\" 405 U.S. at 164, 92 S.Ct. at 844, 31 L.Ed.2d at 116-17; Nunez, 114 F.3d at 944. By \\\"these activities,\\\" the Court was referring to walking, strolling, idling, wandering, or loafing, from which the Ninth Circuit concluded there was a fundamental right to freedom of movement. The only other context where the Court has examined movement as a fundamental right is in the context of travel. See Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600, 612 (1969) (\\\"Our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.\\\").\\nThe Supreme Court has refused to draw a distinction between intrastate and interstate travel. See Mem'l Hosp. v. Maricopa County, 415 U.S. 250, 255-56, 94 S.Ct. 1076, 1081, 39 L.Ed.2d 306, 313-14 (1974) (\\\"Even were we to draw a constitutional distinction between interstate and intrastate travel, a question we do not now consider____\\\"). The Memorial Hospital statement seems to be a departure from the Court's earlier position in United States v. Wheeler, in which the Court stated:\\nIn all the states, from the beginning down to the adoption of the Articles of Confederation the citizens thereof possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom, with a consequent authority in the States to forbid and punish violations of this fundamental right.\\n254 U.S. 281, 293, 41 S.Ct. 133, 134, 65 L.Ed. 270, 273 (1920). However, the Wheeler decision was later limited to its facts in United States v. Guest, 383 U.S. 745, 759 n. 16, 86 S.Ct. 1170, 1179 n. 16, 16 L.Ed.2d 239, 250 n. 16 (1966). Further, language in Jones v. Helms recognizes the power of the State to limit travel, directly contradicting Wheeler. 452 U.S. 412, 419, 101 S.Ct. 2434, 2440, 69 L.Ed.2d 118, 125 (1981) (\\\"The right of the citizen to migrate from state to state which, . is shown by our precedents to be one of national citizenship, is not, however, an unlimited one. In addition to being subject to all constitutional limitations imposed by the federal government, such citizen is subject to some control by state governments.\\\") (quoting Edwards v. California, 314 U.S. 160, 184, 62 S.Ct. 164, 172, 86 L.Ed. 119, 131 (1941) (Jackson, J., concurring)). Consequently, although the Ninth Circuit assumes that all freedom of movement is a fundamental right, there may in fact be a difference in the treatment of different types of movement, depending on their nature. The issue is far from clear.\\nFurther, even if movement is a fundamental right, the scope of protection of the rights afforded to juveniles is not always coextensive with the protection afforded the rights of adults. For example, in Scholl v. Martin, the Supreme Court noted that \\\"[t]he State has 'a parens patriae interest in preserving and promoting the welfare of the child.' \\\" 467 U.S. 253, 263, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207, 216 (1984) (quoting Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 1401, 71 L.Ed.2d 599, 615 (1982)). As a result of this interest, \\\"although children generally are protected by the same constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust its legal system to account for children's vulnerability and their needs for 'concern, . sympathy, and . paternal attention.' \\\" Bellotti, 443 U.S. at 635, 99 S.Ct. at 3044, 61 L.Ed.2d at 808 (quoting McKeiver v. Pennsylvania, 403 U.S. 528, 550, 91 S.Ct. 1976, 1989, 29 L.Ed.2d 647, 663-64 (1966) (plurality opinion)). In addition, \\\"[s]tates validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences . [because] minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.\\\" Id. It is common for states to vindicate this interest by requiring parental consent before minors may engage in activities that could be detrimental to them. Id. at 637, 99 S.Ct. at 3045, 61 L.Ed.2d at 809-10. Bellotti is a prime example of this interest, as it holds that the fundamental right to control one's own procreative activities was outweighed by the State's interest in protecting minor's from potentially detrimental action, resulting in a finding that a parental notice requirement for abortions was constitutional. Id. at 649, 99 S.Ct. at 3051, 61 L.Ed.2d at 817.\\nInformed by the nature of the right at issue and the treatment of that right when exercised by a minor, this Court must determine whether infringement of the right of movement by the Ordinance is sufficiently justified by the City of Wendell's interest in enacting a juvenile curfew ordinance. Assuming arguendo that the right to all forms of travel is a fundamental right, the Ordinance should be subjected to strict scrutiny. \\\"Unquestionably . a government practice or statute which restricts 'fundamental rights' . is to be subjected to 'strict scrutiny' and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available.\\\" Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 357, 98 S.Ct. 2733, 2782, 57 L.Ed.2d 750, 813 (1979). However, because the Ordinance is targeted at juveniles, the principles articulated above concerning the State's interest in the protection of children must also be considered.\\nDoe has recognized, as have courts that have dealt with juvenile curfews, that municipalities have a substantial interest in preventing juvenile crime and victimization, along with preserving the health and safety of their citizens. See, e.g., Nunez, 114 F.3d at 947. Also, as pointed out in Doe's brief, the U.S. Supreme Court has recognized that the physical and psychological well-being of minors is a compelling government interest. See Sable Commc'ns, 492 U.S. at 126, 109 S.Ct. at 2836-37, 106 L.Ed.2d at 105. Consequently, there is no serious doubt that the government has a compelling interest; instead, Doe argues that the Ordinance is not the least restrictive means of carrying out that interest. As indicated by Maricopa County, Jones, and Wheeler, the U.S. Supreme Court has not clearly defined the contours of the right to travel other than finding that there is a right to interstate travel. Since the Court has not clearly articulated a right to intrastate travel, the possible impact of the Ordinance on intrastate movement cannot be said to violate the narrow-tailoring requirement. Further, given the substantial State interest in preventing juveniles from making decisions that could be detrimental to their growth and development, the breadth of the Ordinance is the most effective means of effectively protecting juveniles. The Ordinance already allows parents to exempt their children from the Ordinance when they determine that the children have legitimate business during curfew hours. This is consistent with the Bellotti recognition that the State may work together with parents in order to protect children from harm. Accordingly, we find that the Ordinance is enacted through the least restrictive means necessary to vindicate the government interest at issue. As a result, the Ordinance does not result in the deprivation of a fundamental right.\\nD.\\nStanding to Assert a Parental Liberty Interest\\nDoe also argues that the curfew statute is unconstitutional because it infringes on parents' liberty interest in directing the upbringing of their children. However, Doe's challenge, based on his parents' liberty interest in controlling his upbringing, must be dismissed for lack of standing. Standing is an issue over which this court exercises free review. Citibank (South Dakota), N.A. v. Carroll, 148 Idaho 254, 257, 220 P.3d 1073, 1076 (2009). The issue of whether a party has standing to assert a particular claim should be resolved before the merits of the claim are reached. Id. at 259, 220 P.3d at 1078.\\nCourts must hesitate before resolving the rights of those not parties to litigation. Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 2873-74, 49 L.Ed.2d 826, 832-33 (1976). Even though a potentially illegal action may affect the litigant as well as a third party, the litigant may not rest his claims on the rights or legal interests of the third party. Dep't of Labor v. Triplett, 494 U.S. 715, 720, 110 S.Ct. 1428, 1431-32, 108 L.Ed.2d 701, 713 (1990). A party challenging the constitutionality of a statute must not only demonstrate some injury from the unconstitutional aspect of the statute, but also that he is in the class of persons protected by that constitutional interest. Heald v. Dist. of Columbia, 259 U.S. 114, 123, 42 S.Ct. 434, 435, 66 L.Ed. 852, 854-55 (1922). This requirement is based on the presumption that the third parties themselves are the best proponents of their own rights. Singleton, 428 U.S. at 113-14, 96 S.Ct. at 2873-74, 49 L.Ed.2d at 832-33.\\nAs a result, the U.S. Supreme Court requires a litigant who seeks to assert the rights of another party to demonstrate three interrelated criteria: (1) he must have suffered injury in fact, providing a significantly concrete interest in the outcome of the matter in dispute; (2) he must have a sufficiently close relationship to the party whose rights he is asserting; and (3) there must be a demonstrated bar to the third parties' ability to protect their interests. Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 1370-71, 113 L.Ed.2d 411, 425-26 (1991). While these factors have never been applied by a majority of the U.S. Supreme Court to a child's attempt to assert his living parents' interests, they were applied by Justice O'Connor in her concurrence in Miller v. Albright. 523 U.S. 420, 445-52, 118 S.Ct. 1428, 1442-46, 140 L.Ed.2d 575, 596-601 (1998) (O'Connor, J., concurring).\\nIn Miller, the Court considered a constitutional challenge to a statute governing the citizenship of nonmarital children born outside of the United States. Id. at 424, 118 S.Ct. at 1432, 140 L.Ed.2d at 583-84 (majority opinion). One basis for the challenge was that the statute violated Miller's father's right to equal protection of the law. Id. Justice O'Connor, concurring in the Court's finding that the challenge was without merit, engaged in an extensive discussion of a child's right to assert the rights of her parent when there was no bar to the parent's involvement in the case at bar or a similar suit. Id. at 445-52, 118 S.Ct. at 1442-46, 140 L.Ed.2d at 596-601 (O'Connor, J., concurring). O'Connor applied the Powers test to Miller, finding that she met the interest prong because she was denied citizenship under the statute. Id. at 447, 118 S.Ct. at 1443, 140 L.Ed.2d at 597-98. O'Connor also found that Miller met the relationship prong, based on the parent-child relationship. Id. However, O'Connor found that Miller lacked third-party standing because she failed to demonstrate any bar to her father's ability to assert his own rights. Id. at 448, 118 S.Ct. at 1443-44, 140 L.Ed.2d at 598.\\nMuch the same issue is presented in this case. While Doe obviously has an interest in the Ordinance being declared unconstitutional because he will avoid criminal sanctions and has a close relationship with his father, he has failed to demonstrate any bar to his father's ability to challenge the constitutionality of the Ordinance. As a result, Doe has failed the Powers test and, under the O'Con-nor rationale from Millet and Powers, cannot assert a deprivation of parental liberty interests in this matter.\\nIY.\\nBecause Doe has failed to demonstrate that Wendell City Ordinance No. 442 is facially unconstitutional, the decision of the district court is affirmed.\\nJustices BURDICK, W. JONES, and HORTON, and Justice Pro Tem TROUT concur.\\n. Doe also asserted that the Ordinance violated similar provisions of the Idaho Constitution. However, Doe has made no showing or any compelling argument concerning how the standards applied by the Idaho Constitution would be applied any differently than those of the U.S. Constitution. In absence of such a showing, this Court normally applies federal constitutional standards. See State v. Radford, 134 Idaho 187, 190, 998 P.2d 80, 83 (2000). Accordingly, all issues will be addressed under the U.S. Constitution only.\\n. In State v. Poe, the Court, in a 3-2 split, found a statute to be overbroad. Id. The Court found Idaho Code section 18-6409 unconstitutionally overbroad on its face and applied a limiting construction in order to remedy the overbreadth, striking section 18-6409(3) from the statute. Id. at 902, 88 P.3d at 721. However, Poe differs from this case because the challenged portion of Idaho Code section 18-6409 dealt only with spoken words, meaning that it could be found constitutionally invalid if it applied to speech protected by the First Amendment, a lower standard than that required for expressive conduct statutes. Id. at 892, 88 P.3d at 711.\\n. One of the stated purposes of the Ordinance is \\\"to provide order and promote the safety and welfare of the residents of the City of Wendell, Idaho.\\\"\\n. The holding of Clark also disposes of one of the elements of time, place, and manner review, not dealt with by O'Brien, which is a requirement that the regulation leave open alternative channels of communication. Doe argues that, because the Ordinance prohibits all juvenile speech for one-quarter of the day, it fails to meet this requirement. This argument is foreclosed by the rationale of Clark in which the Court found a complete nighttime ban on conduct, which prohibited expressive conduct, left open alternative channels of communication. Id. at 293, 104 S.Ct. at 3068-69, 82 L.Ed.2d at 226-27.\\n. The Court makes similar comments about the review of time, place, and manner restrictions, noting that the tests are essentially one and the same. Id.\\n. This limitation was recognized by the Ninth Circuit in Nunez. 114 F.3d at 949 n. 11 (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697, 707-08 (1987)).\\n.The U.S. Supreme Court has also noted that where the following three factors are in play, the analysis of the constitutional rights of minors may not be as stringent as the analysis of the constitutional rights of adults. Bellotti v. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 3043, 61 L.Ed.2d 797, 807-08 (1979). The factors include: (1) the peculiar vulnerability of children; (2) their inability to make critical decisions in an informed, mature manner; and (3) the importance of the parental role in child rearing. Id.\\n. The Korsen standard, although adopted from Hoffman Estates, seems directly contradictory to the statement in Hoffman Estates that a facial challenge cannot succeed where the party bringing the challenge engaged in conduct clearly proscribed by the ordinance. 455 U.S. at 494-95, 102 S.Ct. at 1191-92, 71 L.Ed.2d at 368-70. Construing the two statements together, a facial challenge could never succeed where the party bringing the challenge has been charged under the statute and cannot make an as applied challenge. Under that standard, no facial challenge could succeed in this case.\\n. In holding that the trespassing statute in Korsen was not unconstitutionally vague, this Court noted:\\nThe statute makes no distinction between private and public property. Furthermore, the statute informs the public of the prohibited conduct, that is, remaining willfully on property belonging to another after having been asked to leave. Therefore, the statute gives fair notice of the conduct that is made criminal by the statute. Similarly, the core of circumstances to which the trespassing provision unquestionably applies is the willful refusal to leave the premises after having been asked to do so by one in authority. The statute does not allow for unbridled discretion in police enforcement. Indeed, the police have no discretion when enforcing the statute on any type of property; any person who refuses to leave after receiving a warning is subject to arrest.\\nId. at 713, 69 P.3d at 133.\\n.The ordinance at issue in Papachristou read as follows:\\nRogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.\\nId.\\n. In making this argument, Doe overlooks the fact that the Ordinance vests the parents with broad authority to exempt their children from its coverage.\\n. Children were found to have third-party standing to represent the rights of their deceased parents in Hodel v. Irving, 481 U.S. 704, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987); however, unlike the parties in the present case or those in Miller, being deceased provides a clear bar to the ability to represent yourself in any action.\"}"
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+"{\"id\": \"4082493\", \"name\": \"The BANK OF COMMERCE, an Idaho banking corporation, Plaintiff-Counterdefendant-Respondent, v. JEFFERSON ENTERPRISES, LLC, an Idaho limited liability company, Defendant-Counterclaimant-Appellant\", \"name_abbreviation\": \"Bank of Commerce v. Jefferson Enterprises, LLC\", \"decision_date\": \"2013-06-20\", \"docket_number\": \"No. 40034\", \"first_page\": \"824\", \"last_page\": \"836\", \"citations\": \"154 Idaho 824\", \"volume\": \"154\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:49:19.120611+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON concur.\", \"parties\": \"The BANK OF COMMERCE, an Idaho banking corporation, Plaintiff-Counterdefendant-Respondent, v. JEFFERSON ENTERPRISES, LLC, an Idaho limited liability company, Defendant-Counterclaimant-Appellant.\", \"head_matter\": \"303 P.3d 183\\nThe BANK OF COMMERCE, an Idaho banking corporation, Plaintiff-Counterdefendant-Respondent, v. JEFFERSON ENTERPRISES, LLC, an Idaho limited liability company, Defendant-Counterclaimant-Appellant.\\nNo. 40034.\\nSupreme Court of Idaho, Pocatello,\\nMay 2013 Term.\\nJune 20, 2013.\\nAble Law PC, Pocatello, for appellant. A. Bruce Larson argued.\\nNelson Hall Parry Tucker, P.A., Idaho Falls, for respondent. Brian T. Tucker argued.\", \"word_count\": \"6979\", \"char_count\": \"41829\", \"text\": \"J. JONES, Justice.\\nThe Bank of Commerce (\\\"Bank\\\") instituted this action to foreclose two mortgages against the Pocatello real estate development of Jefferson Enterprises, LLC (\\\"Jefferson\\\"). Jefferson counterclaimed on a variety of grounds. The district court granted summary judgment in favor of the Bank, ordering foreclosure of the mortgages. We affirm.\\nI.\\nFACTUAL AND PROCEDURAL HISTORY\\nIn late 2005 and early 2006, Jefferson was engaged in the development of a large subdivision known as the Southern Hills Project (the \\\"Project\\\") in the City of Pocatello. At that time, a Jefferson entity owned an eighty acre parcel of land (the \\\"Eighty Acre Parcel\\\"), which was encumbered by a mortgage held by D.L. Evans Bank (\\\"D.L. Evans\\\"). Another Jefferson entity held an option to purchase an adjacent parcel of property known as the \\\"Wood Parcel.\\\" The option on the Wood Parcel was set to expire on May 10, 2006, and the owners were unwilling to extend it. Jefferson considered the Wood Parcel to be critical to the success of the Project and began seeking financing for its acquisition in the final days of 2005.\\nJefferson, acting through its managing member Dustin Morrison, initially sought financing through D.L. Evans, which held the mortgage on the Eighty Acre Parcel. Morrison proposed a loan of $2.8 million, which D.L. Evans declined although indicating a willingness to lend $2.2 million. On April 21, 2006, Morrison approached Steve Worton, a loan officer with the Bank, seeking a loan in the amount of $2.8 million. Morrison contends he submitted an application for funding in that amount, which proposed that the Bank take a first priority mortgage on the Wood Parcel and a second priority mortgage (behind D.L. Evans) on the Eighty Acre Parcel. Morrison further alleges that there was an oral \\\"pre-commitment\\\" of sorts \\u2014 that as part of the negotiations leading up to the approval of the loan the Bank agreed to take a second position mortgage on the Eighty Acre Parcel. However, Worton testified that beginning with their first conversation, Worton and Morrison understood the Bank would have a first position interest in both parcels. In any event, on the 9th of May the Bank's Board of Trustees approved a loan in the amount of $2,223,805, on the condition that the Bank have a first position security interest on both the Eighty Acre Parcel and the Wood Parcel.\\nFaced with the imminent expiration of the option to purchase the Wood Parcel, Morrison contacted D.L. Evans in an attempt to negotiate a subordination of its mortgage on the Eighty Acre Parcel. D.L. Evans would not agree to subordinate. Thus, in order to place the Bank in first position per the conditions of the loan, Jefferson had to pay off the existing mortgage before it could close on the Bank's loan. The loan closed on May 10, 2006. The initial note is in the principal amount of $2,223,805, dated May 9, 2006, and secured by a mortgage recorded on May 10, 2006. The following year, Jefferson gave the Bank an additional note, representing accrued interest on the first note. The second note is in the amount of $400,000, dated June 27, 2007, and secured by a mortgage recorded on June 27, 2007.\\nWhen Jefferson defaulted on the notes, the Bank filed this action to foreclose on its mortgages. Jefferson counterclaimed on a number of grounds. The Bank subsequently moved for summary judgment. The district court issued a memorandum decision and order on January 17, 2012, dismissing Jefferson's counterclaims and ordering the foreclosure of the Bank's mortgages. That same day, the district court issued a judgment that essentially summarized what it had done in the order and required that each party pay its own attorney fees and costs. The Bank timely moved for an award of attorney fees and costs, while Jefferson moved for reconsideration. On April 19, 2012, the district court entered: decisions denying the motion to reconsider and granting the request for attorney fees and costs; a decree of foreclosure ordering the sale of the mortgaged properties; and a judgment granting attorney fees and costs. Jefferson filed a timely appeal.\\nII.\\nISSUES ON APPEAL\\nI. Did the Bank breach an agreement to take a second position security interest in the Eighty Acre Parcel?\\nII. Did the Bank breach the implied covenant of good faith and fair dealing?\\nIII. Did the Bank intentionally interfere with a prospective economic advantage?\\nTV. Did the Bank commit fraud?\\nV. Did the district court improperly dismiss Jefferson's promissory estoppel claim?\\nVI. Did the district court err in finding that a series of novations occurred?\\nVII. Did the district court err in determining that the Bank's mortgages should be foreclosed?\\nVIII. Is either party entitled to attorney fees on appeal?\\nIII.\\nDISCUSSION\\nA. Standard of Review.\\nThis Court employs the same standard as the district court in reviewing a grant of summary judgment. Buku Properties, LLC v. Clark, 153 Idaho 828, 832, 291 P.3d 1027, 1031 (2012). Summary judgment is proper when \\\"the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" I.R.C.P. 56(c). \\\"If the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review.\\\" Conway v. Sonntag, 141 Idaho 144, 146, 106 P.3d 470, 472 (2005).\\nB. The Bank did not breach an agreement to take a second position security interest in the Eighty Acre Parcel.\\nJefferson contends that the Bank agreed to take a second position security interest in the Eighty Acre Parcel and subsequently breached the agreement by requiring that it satisfy and discharge the D.L. Evans mortgage as a condition of obtaining the loan. It proffers two theories in support of this contention. Jefferson first alleges that the initial mortgage, which it signed on May 10, 2006 (the \\\"Mortgage\\\"), explicitly stated such an agreement. Alternatively, Jefferson contends that the parties reached some sort of pre-commitment oral agreement to that same effect.\\n1. The Mortgage.\\nJefferson argues on appeal that \\\"[t]he Mortgage provided that encumbrances of record, such as the [D.L. Evans mortgage], would have priority over the lien of the Bank's Mortgage.\\\" This contention is based on the following language in the Mortgage:\\n6. WARRANTY OF TITLE. Mortgagor covenants that Mortgagor is lawfully seized of the estate conveyed by this Mortgage and has the right to grant, bargain, convey, sell, and mortgage the Property and warrants that the Property is unencumbered, except for encumbrances of record.\\n8. PRIOR SECURITY INTERESTS. With regard to any other mortgage, deed of trust, security agreement or other lien document that created a prior security interest or encumbrance on the Property and that may have priority over this Mortgage, Mortgagor agrees:\\nA. To make all payments when due and to perform or comply with all covenants.\\nB. To promptly deliver to Lender any notices that Mortgagor receives from the holder.\\nC. Not to make or permit any modification or extension of, and not to request or accept any future advances under any note or agreement secured by, the other mortgage, deed of trust or security agreement unless Lender consents in writing.\\nIn essence, Jefferson's argument is that since these two provisions make reference to existing encumbrances, the Bank's Mortgage was subject to any existing encumbrance, including the D.L. Evans mortgage.\\nThe Bank counters that this argument was not raised in district court and should not be considered on appeal. The Bank presents a series of other counterarguments in the alternative \\u2014 that the Mortgage does not say what Jefferson claims it does; that there were no existing encumbrances to be subordinate to at the time the Mortgage was executed; and that the Mortgage was not subscribed by the Bank and thus is barred by the Statute of Frauds.\\nThis Court has repeatedly held: \\\"To properly raise an issue on appeal there must either be an adverse ruling by the court below or the issue must have been raised in the court below, an issue cannot be raised for the first time on appeal.\\\" Garner v. Bartschi, 139 Idaho 430, 436, 80 P.3d 1031, 1037 (2003) (quoting McPheters v. Maile, 138 Idaho 391, 397, 64 P.3d 317, 323 (2003)). Thus, since this argument was not presented to the district court, we will not consider it on appeal.\\n2. Statute of Frauds.\\nFor summary judgment purposes, the district court assumed:\\nthat the Bank agreed to loan money in accordance with the terms and conditions of the Board of Trustees approval of Jefferson's loan application [and] that the conditions of the loan agreement provided, among other things, that the Bank would be secured on the 80 Acre parcel in a second priority position.\\nIn other words, the court accepted Jefferson's contention that the Bank made a precommitment promise to lend and take a second priority position on the Eighty Acre Parcel. But, since the \\\"promise to loan money involved much more than $50,000,\\\" the court concluded that it needed to consider the Statute of Frauds to determine the breach of contract claim. The court concluded that because the alleged pre-commitment promise was not in writing it was barred by the Statute of Frauds so there was no valid contract to breach.\\nJefferson argues on appeal that the Mortgage was the written document reflecting the pre-commitment, which would thus satisfy the Statute of Frauds. It then argues that if the Statute of Frauds bars anything, it bars the Bank's statements that it \\\"would require the subordination of the 80 Acre mortgage or that it would have to be in a first security position on the property.\\\" Alternatively, Jefferson contends that the Statute of Frauds, to the extent it applies, would only bar the actual promise to loan money, as opposed to the part of the agreement establishing the Bank's priority position.\\nThe Bank responds in agreement with the district court. It argues that the Statute of Frauds requires any promise or commitment to loan $50,000, or more, to be in writing, whatever it is called. Because any alleged pre-commitment was oral, the Bank contends that it is barred by the Statute of Frauds.\\nIdaho's Statute of Frauds is set forth at I.C. \\u00a7 9-505. It provides in relevant part that:\\nIn the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents:\\n5. A promise or commitment to lend money or to grant or extend credit in an original principal amount of fifty thousand dollars ($50,000) or more, made by a person or entity engaged in the business of lending money or extending credit.\\nI.C. \\u00a7 9-505. In applying this statute to a case with similar facts, this Court held an oral agreement to lend $50,000 or more to be \\\"invalid because it clearly violates I.C. \\u00a7 9-505(5).\\\" Lettunich v. Key Bank Nat. Ass'n, 141 Idaho 362, 367, 109 P.3d 1104, 1109 (2005).\\nThe transaction at issue in Lettunich was quite similar to this one. Id. at 365, 109 P.3d at 1107. There, the borrower, Lettunich, approached the defendant bank to negotiate a loan for the purpose of buying out his partner's interest in a cattle operation. Id. Three loans exceeding $50,000 were negotiated \\u2014 one for real estate, a term loan to purchase cattle, and an operating line of credit for the cattle business \\u2014 and the bank sent Lettunich a separate commitment letter for each loan. We stated that the commitment letters did not satisfy the writing requirement of I.C. \\u00a7 9-505(5) because they were never executed by the proper parties. Id. at 367, 109 P.3d at 1109. Nevertheless, Lettunich contended that the bank had orally contracted to loan him the funds necessary to pay for cattle he purchased at a partnership dispersion auction because of assurances given to him by a bank representative both before and during the sale. Id. at 365-66, 109 P.3d at 1107-08. In an affidavit, Lettunich stated that the bank representative repeatedly assured him the bank would \\\"finance the purchase of the cattle,\\\" that the representative told him to \\\"continue to purchase the cattle at the sale\\\" when he sought further assurances, and that he \\\"never would have purchased the cattle at the dispersion sale if [he] had known [the bank] was not going to honor its commitment.\\\" Id. at 366, 109 P.3d at 1108. However, after Lettunich had committed to buy over $400,000 in cows, the bank ultimately \\\"refused to fund the cattle term loan and operating line of credit.\\\" Id. The Court held that the Statute of Frauds disposed of the matter, saying:\\nLettunich argues there was an oral agreement between the parties. Viewing the evidence in a light most favorable to Lettunich, even if we infer there was an oral agreement between the parties at least as far as loaning money to purchase cattle, the oral agreement is invalid because it clearly violates I.C. \\u00a7 9-505(5).\\nId. at 367, 109 P.3d at 1109. Even though Lettunich presented a more compelling case for relief than Jefferson has, he was unable to avoid the Statute of Frauds bar without a sufficient writing.\\nThe Statute of Frauds bars any breach of contract claim here. Assuming, as the district court did, that there was in fact a pre-commitment to loan money and that the Bank agreed to take a second position on the Eighty Acre Parcel, no one claims that such an agreement was in writing. Indeed, Morrison stated repeatedly throughout his deposition that the alleged pre-commitment was not in writing:\\nQ. [Bank's Counsel] Now, back to this idea of, as you called it, kind of a precommitment, was there a precommitment given to you in writing?\\nA. [Morrison] There was nothing given to me in writing.\\nQ. So this precommitment idea that you are referring to again related to what you claim Steve Worton told you?\\nA. Everything was related to what Steve Worton told me because there wasn't one thing in writing, nothing. There wasn't an approval in writing, there wasn't a list of conditions in writing, contingencies in writing. There wasn't a formal request in writing. Nothing was in writing.\\nQ. I am asking about this what you called kind of this preapproval, on this April 25 approval when Steve Worton called you.\\nA. Yes. Like I said, I don't know if it was April 25, but it was prior to [May 9].\\nQ. But, again, that wasn't in writing.\\nA. No.\\nQ. Nothing in writing that said that the bank would take a second position of that property.\\nA. No.\\nAs in Lettunich, any pre-commitment from the Bank to lend Jefferson $2.8 million and take a second position on the Eighty Acre Parcel would have had to be in writing. Because no writing exists, the Statute of Frauds bars any alleged oral agreement.\\nWith regard to Jefferson's contention that the Statute of Frauds only bars enforcement of a promise to loan money, but not an agreement as to the priority to a security interest, we note two insurmountable hurtles. First, in a mortgage lending transaction the priority of a security interest is a critical and integral part that cannot be separated from the rest of the agreement. Both parties contend that the security provisions were a critical part of this transaction, although they disagree as to what those provisions were. Thus, the security provisions were an essential term of the lending agreement. See Chapin v. Linden, 144 Idaho 393, 397, 162 P.3d 772, 776 (2007) (\\\"[0]nce parties attempt to provide for security it becomes an essential term of the contract.\\\") Second, the best evidence of the actual agreement of the parties regarding priority is what actually occurred in the transaction. Here, Jefferson discharged the D.L. Evans mortgage prior to closing and the Bank took a first mortgage on both parcels of Project property. Without a writing that complies with the provisions of I.C. \\u00a7 9-505(5) to prove that the actual agreement of the parties was to the contrary, Jefferson has absolutely no grounds to assert a breach of contract claim.\\nIn sum, there are no disputed material facts that show the Bank made a loan precommitment or other oral agreement that complied with the Statute of Frauds. We thus hold that the Bank did not breach any agreement and affirm the district court's conclusion in that regard.\\nC. The Bank did not breach the implied covenant of good faith and fair dealing.\\nJefferson alleges that the Bank breached the implied covenant of good faith and fair dealing by \\\"changing its position and requiring Jefferson to pay off the existing loan on the 80 Acre parcel.\\\" The district court did not directly address this issue, nor did the Bank. But, because the Bank acted in accordance with the parties' agreement, we hold that the Bank did not breach the implied covenant.\\nIdaho law \\\"implies a covenant of good faith and fan- dealing when doing so is consistent with the express terms of an agreement between contracting parties.\\\" Noak v. Idaho Dep't of Correction, 152 Idaho 305, 309, 271 P.3d 703, 707 (2012). \\\"When it is implied, '[t]he covenant requires that the parties perform, in good faith, the obligations imposed by their agreement.' \\\" Id. (quoting Idaho Power Co. v. Cogeneration, Inc., 134 Idaho 738, 750, 9 P.3d 1204, 1214 (2000)). Such a claim may only be asserted by parties to a contract. Id. \\\"Even then, one can maintain a claim for breach of the covenant only when he or she 'is denied the right to the benefits of the agreement [the parties] entered into.' \\\" Id.\\nJefferson simply cannot show that it was denied the benefit of any valid contract provision. As discussed above, the Bank did not agree that it would take second position on the Eighty Acre Parcel, nor did it agree that it would never change its position during the course of negotiations. As for the Bank \\\"requiring\\\" Jefferson to pay off the existing loan, the choice to do so was ultimately Jefferson's:\\nQ. [Bank's Counsel) Whenever it was, were you at that point committed to accept that loan from the Bank of Commerce?\\nA. [Morrison] Yes.\\nQ. So you had to accept the loan?\\nA. In a practical sense, yes, because I had to perform by a certain date, and I hadn't been pursuing a loan with anybody else.\\nQ. But I am saying legally were you obligated\\u2014\\nA. No.\\nQ. You weren't obligated to accept the loan that the bank gave you.\\nA. Not legally; I could have lost the project.\\nMorrison's admissions show that Jefferson was not in fact required to pay off the D.L. Evans mortgage. Had he wished not to, he should have simply not taken the loan. His decision to take the loan does not itself create a material issue of fact that the Bank acted in bad faith. We thus affirm the district court's holding that the Bank did not breach the implied covenant of good faith and fair dealing.\\nD. The Bank did not intentionally interfere with a prospective economic advantage.\\nThe district court found that the Bank did not \\\"intentionally propose . a loan that would interfere with and cause Jefferson to lose any economic expectancy.\\\" Thus, the court concluded Jefferson could not prove its claim for intentional interference with a prospective economic advantage. Jefferson contends that the Bank did intentionally interfere with a prospective economic advantage by requiring the D.L. Evans loan to be paid off, \\\"inducing termination of [Jefferson's] economic expectancy.\\\" It bolsters this by further arguing that \\\"Worton also knew at the time of the closing that the only likely source of money to pay off the 80 Acre encumbrance would have been from Jefferson's working capital.\\\" Thus, Jefferson concludes, the Bank's \\\"actions in reducing Jefferson's ability to service the Bank's loan\\\" ultimately led to \\\"catastrophic loss.\\\" The Bank responds that, as found by the district court, there is no proof the Bank intentionally interfered with Jefferson's economic expectancies.\\nA plaintiff seeking to establish a claim for intentional interference with a prospective economic advantage \\\"must show (1) the existence of a valid economic expectancy, (2) knowledge of the expectancy on the part of the interferer, (3) intentional interference inducing termination of the expectancy, (4) the interference was wrongful by some measure beyond the fact of the interference itself, and (5) resulting damage to the plaintiff whose expectancy has been disrupted.\\\" Cantwell v. City of Boise, 146 Idaho 127, 137-38, 191 P.3d 205, 215-16 (2008); see also Highland Enter., Inc. v. Barker, 133 Idaho 330, 338, 986 P.2d 996, 1004 (1999). With respect to the third element, intentional interference, this Court has held that \\\"the plaintiff may show that the interference 'with the other's prospective contractual relation is intentional if the actor desires to bring it about or if he knows that the interference is certain or substantially certain to occur as a result of his action.' \\\" Highland, 133 Idaho at 340, 986 P.2d at 1006. We further clarified that \\\"[i]ntent can be shown even if the interference is incidental to the actor's intended purpose and desire 'but known to him to be a necessary consequence of his action.' \\\" Id. Because \\\"[w]hat motivates a person to act seldom is susceptible of direct proof,\\\" culpable intent may be inferred from conduct substantially certain to interfere with the prospective economic relationship. Id.\\nThe Highland Court applied these rules in examining an environmental group that engaged in \\\"direct action\\\" activism \\u2014 \\\"non-violent protest of road building and timber harvesting such as burying people in the road, erecting tripods in the road and sitting in the tripod, and chaining people to equipment and gates in order to block work.\\\" Id. at 335, 986 P.2d at 1001. The Court noted that the defendants were not directly targeting the plaintiff with these actions, and the defendants indeed testified that \\\"the intention was not to deprive Highland of, you know, a major portion of their economic activities.\\\" Id. at 340, 986 P.2d at 1006. Even so, the defendants realized that their \\\"activities also affected Highland even though Highland was not the direct target.\\\" Id. We concluded that:\\nIt is reasonable to infer from the evidence of the appellants' conduct presented at trial that the conduct was substantially certain to interfere with an economic advantage. The substantially certain aspect of appellants' conduct allows a finding of intent. Even more, regardless of the assertion that Highland was not the intended target of their activities and saving the trees was the ultimate objective, intent can be shown even if the interference is incidental to the actor's intended purpose and desire, but known to him to be a necessary consequence of his action. A reasonable conclusion from the appellants' activities is that even if they intended only to harm the Forest Service and preserve the Cove/Mallard area, a necessary consequence of their actions would be that those constructing the roads would suffer financially.\\nId. at 340-41, 986 P.2d at 1006-07. This Court thus held that substantial evidence supported a conclusion that the Highland defendants intended to terminate Highland's prospective economic advantage. Id.\\nHere, the Bank did not intentionally interfere with Jefferson's prospective economic advantage because, as the district court concluded, the intent element is miss ing. Jefferson simply argues that the Bank's insistence that Jefferson pay off the D.L. Evans loan on the Eighty Acre Parcel was intentional interference. But this does not rise to the level of intentional interference as set forth in Highland.\\nThe Bank's purported interference was not an act of sabotage or mischief as in Highland, but an insistence on a certain set of loan terms, and this insistence alone would not imply that Jefferson would \\\"suffer financially\\\" as a necessary consequence. For all the Bank knew, Jefferson could have simply declined the Bank's offer and found financing elsewhere. Or, it could reasonably have assumed that Jefferson was not foolish enough to take a loan that Morrison knew his company could not possibly repay. Jefferson's argument appears to boil down to a contention that the Bank acted in bad faith simply because it did not vigorously try to discourage the company from taking a loan that Morrison realized was risky from the start \\u2014 that is, that the Bank should have saved Jefferson from itself. In any ease, simply because the Bank presented Jefferson -with financing terms it preferred \\u2014 which Jefferson accepted, and which ultimately did not work out in its favor \\u2014 does not lead to an inference that the Bank knew that Jefferson would suffer financially. Indeed, the terms offered by the Bank, and accepted by Jefferson, are essentially the same as had been extended by D.L. Evans \\u2014 a $2.2 million loan where D.L. Evans already held first position on one parcel and would obtain it on the other. There is no indication that either bank had some nefarious intent to cause injury to Jefferson or to cause its Project to fail by extending or proposing such terms. Jefferson has proposed no motive on the part of the Bank for wishing to cause Jefferson's Project to fail\\u2014 a result which would require the Bank to pursue extended litigation to foreclose upon its mortgages. Therefore, we hold that there was no intentional interference on the part of the Bank and accordingly affirm the district court's determination of this claim.\\nE. Jefferson failed to make a showing of fraud.\\nThe district court found that the Bank did not commit fraud because there was no evidence of a false statement, or reliance on the part of Jefferson, regarding: 1) the Bank taking a second position on the Eighty Acre Parcel; or 2) an alleged promise to provide further financing. Jefferson argues to the contrary, claiming the Bank and its officers \\\"made the materially false representation that the Bank had agreed to accept a second lien position on the 80 Acre parcel allowing Jefferson to profit . from the existing favorable financing arrangement and to preserve its ability to use its liquid assets.\\\" It contends that there is \\\"abundant circumstantial evidence\\\" of fraudulent intent, but unhelpfully, does not provide citations to the record to back up this claim. The Bank responds that the district court correctly found no evidence of several of the required elements of fraud.\\nFor a fraud claim to succeed a plaintiff must \\\"establish nine elements with particularity: (1) a statement or a representation of fact; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity; (5) the speaker's intent that there be reliance; (6) the hearer's ignorance of the falsity of the statement; (7) reliance by the hearer; (8) justifiable reliance; and (9) resultant injury.\\\" Chavez v. Barrus, 146 Idaho 212, 223, 192 P.3d 1036, 1047 (2008) (citing Lettunich, 141 Idaho at 368, 109 P.3d at 1110). In Chavez, the plaintiff failed to establish that a title company made a false statement, that she was aware of any statement, that she relied on it, or that she suffered an injury as a result. Id. Accordingly, we concluded that the lower court did not err in dismissing her fraud claim. Id.\\nSimilarly, Jefferson has not shown a genuine issue of material fact regarding its fraud claim. In particular, we find no evidence here that the Bank made an intentional misstatement of material fact. Jefferson states, with no citation to the record, that \\\"[t]he Bank and its officers made the materially false representation that the Bank had agreed to accept a second lien position on the 80 Acre parcel,\\\" and that \\\"the Bank intentionally or negligently concealed the fact that it would or could change its position\\\" thereafter. The record provides no factual support for these allegations. Furthermore, Jefferson claims that it \\\"had the 'right to rely' on the misrepresentation made by the Bank that it would not allow Jefferson and the related businesses to fail and that the Bank would provide operating funds to Jefferson to that end.\\\" But Jefferson points to no evidence that shows the Bank ever made such a representation. Indeed, the sole colloquy used to support this allegation shows the contrary:\\nA. [Morrison] Steve [Worton] says there is no way the bank wants [Jefferson] to fail, there is no way that the bank wants this to fail, there is no way the bank wants this as an asset. So do whatever you think is the right thing for you to do, but if you do this, my hunch is that you will be able to come back into this bank and they will consider whatever your loss was. . So we moved forward understanding that it would be the bank's effort to mitigate this impact of this new requirement on our business.\\nQ. [Bank's Counsel] And that's based on what you claim Steve Worton told you?\\nA. He didn't say those words, but yes.\\nQ. And did he give you something in writing to that effect?\\nA. He didn't give me anything in writing for anything.\\nQ. So as I understood what you said, these are operating funds you think he was promising you?\\nA. No. The ability to operate without those funds. I don't think he was promising it, I think he was using some common sense argument that there is no way that the bank won't do this.\\nQ. So you didn't view that as a loan commitment from the bank?\\nA. No, I didn't. It was just one penny of a dollar's worth of consideration on what to do at that crossroads at that point in the 11th hour.\\nQ. Ultimately you decided that you would accept the terms that the bank offered and close the loan.\\nA. Yes. But I mean there was a temporary atmosphere to that commitment, too.\\nQ. What do you mean by that?\\nA. Meaning I felt like that we would probably go back to the table afterwards and figure something else out. Because it was so clearly expressed to Steve that from a common sense point of view I cannot continue to operate my business as we are doing now without this working capital.\\nQ. Now, you say you thought there would be. Are you saying there was a commitment on the part of the bank?\\nA. No.\\nQ. That's just what you thought would happen.\\nA. Yes. That was a consideration that I made in choosing to do what I did.\\n(Emphasis added.) At best, this shows that Worton told Morrison that he had a \\\"hunch\\\" that the Bank would \\\"consider\\\" Jefferson's loss if he came back for additional funds\\u2014 but Morrison testified that even this minimal commitment was not Worton's \\\"exact words.\\\" Assuming Worton said something close to Morrison's approximation, he was prognosticating at best and not promising to never change position, or promising to extend future financing. What Worton's exact words were are anyone's guess, but the undisputed evidence shows the Bank made no representations that it would not change its position, or that it would extend further funding. Rather, Morrison was relying on something he simply \\\"thought would happen.\\\" Without evidence of a material misstatement of fact, the Bank could not have committed fraud. Thus, we affirm the district court's finding that no fraud occurred.\\nF. The district court correctly dismissed Jefferson's promissory estoppel claim.\\nThe district court found that Jefferson's promissory estoppel claim failed for the same reason its breach claim failed: \\\"no [loan] precommitment\\\" was in writing. Because \\\"there was no written pre-commitment agreement,\\\" there was also \\\"no valid or definite agreement\\\". Thus, the court found, Jefferson could not recover based on estoppel. Jefferson makes a convoluted argument on appeal, arguing again that the Mortgage terms were incorporated into the loan agreement, and offering eonclusory statements, with no citations to the record, that the elements of promissory estoppel were met. The Bank agrees with the district court that there was no valid loan commitment prior to closing. \\\"As such,\\\" it contends, \\\"the Bank should not be estopped from denying a nonexistent agreement which would have violated the Statute of Frauds.\\\"\\nPromissory estoppel, generally speaking, means that \\\"[a] promise which the promisor should reasonably expect to induce action or forebearance on the part of the promisee or a third person and which does induce such action or forebearance is binding if injustice can be avoided only by enforcement of the promise.\\\" Smith v. Boise Kenworth Sales, Inc., 102 Idaho 63, 67-68, 625 P.2d 417, 421-22 (1981) (quoting Restatement (Second) of Contracts \\u00a7 90(1) (1973)). This Court has further found that:\\n[A] party seeking to avail itself of the doctrine must show that: \\\"(1) the detriment suffered in reliance was substantial in an economic sense; (2) substantial loss to the promisee acting in reliance was or should have been foreseeable by the promisor; and (3) the promisee must have acted reasonably in justifiable reliance on the promise as made.\\\"\\nId. (quoting Mohr v. Shultz, 86 Idaho 531, 540, 388 P.2d 1002, 1008 (1964)).\\nIn the Lettunich case, the plaintiff attempted to invoke the promissory estoppel doctrine under similar facts. There, a bank argued that, due to the Statute of Frauds, an alleged oral promise to lend could not be enforced. Lettunich, 141 Idaho at 366, 109 P.3d at 1108. Lettunich responded that, \\\"promissory estoppel should be used in this ease to prevent KeyBank from denying the enforceability of an oral promise.\\\" Id. at 367, 109 P.3d at 1109. This Court noted that because the promise did not comply with the Statute of Frauds, \\\"there was no complete promise . to be enforced.\\\" Id. We further explained that \\\"[promissory estoppel is simply a substitute for consideration, not a substitute for an agreement between parties.\\\" Id. Accordingly, though Lettunich \\\"clearly suffered a detriment when he purchased cattle without a way to pay for them,\\\" the \\\"doctrine of promissory estoppel [was] of no consequence . because there [was] evidence of adequate consideration.\\\" Id. at 368, 109 P.3d at 1110. We reiterated that what was \\\"lacking [was] a sufficiently definite agreement\\\" and without such an agreement, estoppel was not appropriate. Id.\\nThe Lettunich holding disposes of Jefferson's claim here. As noted above, any alleged oral pre-commitment from the Bank would not be valid for failure to comply with the Statute of Frauds. And just as promissory estoppel would not substitute for an invalid agreement in Lettunich, it will not do so here. Because there is \\\"no complete promise . to be enforced\\\" here, Jefferson is unable to avail itself of promissory estoppel. We thus affirm the district court's decision on this claim.\\nG. Novation is not an issue.\\nIn ruling on the Bank's motion for summary judgment, the district court found that a series of novations \\\"changed the terms of the original loan application by Jefferson.\\\" However, it concluded that \\\"ultimately Jefferson entered into a loan agreement with the Bank which extinguished all other preloan agreements that may have been contemplated by the parties.\\\" Jefferson disputes this on appeal arguing that \\\"[i]ssues of fact arising from the circumstances of this case raise the issue of whether or not the elements necessary to find novation are present,\\\" without explaining those circumstances in detail or bothering to cite to the record. The Bank responds that even if a valid preloan commitment existed, \\\"any such agreement was subsequently extinguished and substituted by the written $2.2 million agreement.\\\"\\nThis Court has held that \\\"novation is a species of accord and satisfaction,\\\" and one that \\\"results when an accord and satisfaction is reached by substitution of a new agreement or performance in place of the performance or compromise of the original obligation.\\\" Harris v. Wildcat Corp., 97 Idaho 884, 886, 556 P.2d 67, 69 (1976). Logically, for a novation to exist, there must first be a valid agreement to be substituted for.\\nNovation is not a relevant issue in this appeal. The district court apparently considered it an issue based on the assumption for summary judgment purposes that the oral agreement alleged by Jefferson did exist. But, the court then determined that the oral agreement was subsequently amended by the parties to result in the actual agreement that was carried out at closing \\u2014 the Bank loaning $2.2 million and taking a first mortgage against both parcels. However, since any alleged oral agreement was barred by the Statute of Frauds, there was no valid agreement to be novated. No subsequent agreement complying with the Statute of Frauds exists. The question of novation is superfluous to the outcome of this case. This is simply a case where Jefferson applied for a $2.8 million loan with a first mortgage on one parcel and a second on the other, the Bank countered with an offer to loan $2.2 million with a first mortgage on both parcels, and Jefferson accepted and closed on the Bank's terms.\\nH. The district court did not err in ordering foreclosure.\\nIn its final issue presented on appeal, Jefferson claims: \\\"The District Court erred in determining that the Bank's Mortgage should be foreclosed in that there are disputed materials [sic] of fact that would have precluded the entry of summary judgment allowing the foreclosure.\\\" Jefferson presents no argument specifically in support of this issue, apparently assuming that it would necessarily follow if the Court were to reverse the judgment of the district court. Since we affirm, there are simply no grounds to find that the district court erred in ordering foreclosure of the mortgages.\\nI. The Bank is entitled to attorney fees based on contract.\\nThe Bank claims entitlement to attorney fees on appeal, pointing out that in both of the notes and mortgages at issue here, Jefferson agreed to pay \\\"all costs and expenses incurred by [the Bank] in enforcing or protecting [its] rights and remedies,\\\" including attorney fees and costs. \\\"Where a valid contract between the parties contains a provision for an award of attorney fees, the terms of the contract establish a right to attorney fees.\\\" Lamprecht v. Jordan, LLC, 139 Idaho 182, 186, 75 P.3d 743, 747 (2003). Since the notes and mortgages provide that Jefferson must pay the Bank's attorney fees and costs, we award the Bank its fees and costs on appeal.\\nIV.\\nCONCLUSION\\nWe affirm the decree of foreclosure and judgment and award the Bank its attorney fees and costs on appeal.\\nChief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON concur.\\n. The loan application actually consisted of Morrison's oral presentation and a \\\"fairly thick binder\\\" that had \\\"tax returns, financial statements, and an appraisal of the property, projected sales and other information.\\\" The binder apparently went to the Bank's loan committee on May 8, 2006, as part of the loan package.\\n. This note was subsequently amended on February 21, 2008, to increase the loan amount by $20,062.20 and to extend the due date from January 1, 2008, to May 1, 2008.\\n. It is unclear why it was necessary to enter two separate judgments. The first judgment, entered on January 17, 2012, appears to have been premature and not particularly in compliance with I.R.C.P. 54(a). It decides the issue of attorney fees and costs, even though the parties had 14 days from entry to submit their respective requests for the same. I.R.C.P. 54(d)(5) and 54(e)(5). Further, that judgment does not appear to state the relief to which the Bank was entitled but, rather, essentially summarized the provisions of the memorandum decision and order. The decree of foreclosure appropriately set out the relief to which the Bank was entitled but the second judgment, also entered on April 19, dealt solely with the award of attorney fees and costs. The first judgment could easily have been foregone and the second judgment could have set out the critical relief portions of the decree of foreclosure.\\n. Even if the argument had been properly presented below, the argument simply does not wash. Paragraphs 6 and 8 of the Mortgage are boilerplate provisions that say nothing about the priority of the Bank's security interest. Paragraph 6 merely sets out standard terms regarding warranty of title, while paragraph 8 sets out typical covenants regarding payment of existing secured creditors. These provisions do not state that the Bank will take a second priority position and, even if they did, the Bank correctly notes that by the time the Mortgage was executed there was no prior mortgage of record \\u2014 the D.L. Evans mortgage had already been paid, satisfied and discharged by Jefferson.\\n. What Jefferson seems to arguing is that the Bank's approval of the loan on May 9 was the loan commitment, but that prior to the commitment the Bank, acting through Worton, had agreed with the terms of the application submitted by Jefferson \\u2014 that the Bank would take a second priority mortgage on the Eighty Acre Parcel. One must keep in mind that the application, as indicated in footnote 1, consisted of an oral presentation and a binder of documents. No particular writing has been identified by Jefferson as containing the proposal for a second position mortgage.\\n. Jefferson contended that the oral agreement was for a loan of $2.8 million with a second position on the Eighty Acre Parcel. However, he acknowledges that the Bank only agreed to lend $2.2 million. Jefferson seems to concede that it agreed to this alteration in the terms of the alleged pre-commitment agreement.\"}"
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+"{\"id\": \"4104269\", \"name\": \"Terrence F. BAGLEY and John Kelly Bagley, Plaintiffs-Counterdefendants-Respondents, v. Byron T. THOMASON and Marilynn Thomason, Defendants-Counter-plaintiffs-Appellants\", \"name_abbreviation\": \"Bagley v. Thomason\", \"decision_date\": \"2013-08-16\", \"docket_number\": \"No. 39069\", \"first_page\": \"193\", \"last_page\": \"199\", \"citations\": \"155 Idaho 193\", \"volume\": \"155\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:23:48.827699+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES, concur.\", \"parties\": \"Terrence F. BAGLEY and John Kelly Bagley, Plaintiffs-Counterdefendants-Respondents, v. Byron T. THOMASON and Marilynn Thomason, Defendants-Counter-plaintiffs-Appellants.\", \"head_matter\": \"307 P.3d 1219\\nTerrence F. BAGLEY and John Kelly Bagley, Plaintiffs-Counterdefendants-Respondents, v. Byron T. THOMASON and Marilynn Thomason, Defendants-Counter-plaintiffs-Appellants.\\nNo. 39069.\\nSupreme Court of Idaho, Idaho Falls,\\nMay 2013 Term.\\nAug. 16, 2013.\\nRehearing Denied Sept. 19, 2013.\\nMarilynn Thomason, Rexburg, pro se appellant.\\nBeard St. Clair Gaffney, PA, Idaho Falls, for respondents.\\nLance J. Schuster argued.\", \"word_count\": \"3102\", \"char_count\": \"18763\", \"text\": \"HORTON, Justice.\\nThis appeal arises from the grant of a motion for judgment on the pleadings in a quiet-title action. This is the third appeal pursued by Byron Thomason (deceased) and his wife Marilynn Thomason (Thomasons) against the brothers Terrence Bagley and John Bagley (the Bagleys). In the first appeal, this Court affirmed the district court's order quieting title to real property in the Bagleys and awarding them attorney fees. Bagley v. Thomason, 149 Idaho 799, 241 P.3d 972 (2010) (Bagley I). In the second appeal, this Court affirmed the district court's decision granting the Bagleys certain shares of water previously held by the Tho- masons. Bagley v. Thomason, 149 Idaho 806, 241 P.3d 979 (2010) (Bagley II). Subsequent to the filing of the notices of appeal, the Bagleys were awarded attorney fees and obtained a writ of execution to satisfy the judgment for attorney fees. Pursuant to the writ of execution, the sheriff seized some of the Thomasons' personal property to satisfy the judgment. The Thomasons' requests for exemption and emergency stay were denied. After this Court's opinion in Bagley I was released, the Bagleys moved for and were granted judgment on the pleadings. The Thomasons appeal.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nIn July 2007, the Thomasons and the Bagleys executed a warranty deed and an \\\"Agreement to Reconvey\\\" wherein the Bagleys agreed to pay outstanding debt of the Thomasons in the amount of $147,225.58. The Thomasons conveyed to the Bagleys certain real property located in Madison County, Idaho. The agreement to reconvey specified that the Bagleys would convey the property back to the Thomasons upon repayment of the debt plus interest by January 2008. The agreement also specified that if the Thomasons failed to repay the debt, the Agreement to Reconvey would be nullified and the Bagleys would retain the property. The Thomasons did not repay the debt. In May 2008, the Bagleys brought suit to quiet title in the property. The Bagleys moved for partial summary judgment, which the district court granted in October 2008, quieting title to the property in the Bagleys. The Thomasons filed their notice of appeal on December 22, 2008. On February 9, 2009, while the appeal was pending, the district court found that the Bagleys were the prevailing party and awarded them costs and attorney fees in the amount of $12,225.36. On August 19, 2009, the Bagleys obtained a writ of execution for the judgment for attorney fees. The Thomasons claimed an exemption and requested an emergency stay, which this Court denied.\\nOn appeal, this Court affirmed the decision of the district court quieting title to the property in the Bagleys. Bagley I, 149 Idaho at 805, 241 P.3d at 978. This Court also affirmed the award of attorney fees. Id. at 804, 241 P.3d at 977. The Court held that the Bagleys had standing to bring the underlying quiet title action and that the Tho-masons failed to raise the issue of whether the warranty deed was void for failing to include the grantees' complete address. After this Court's decisions in Bagley I and Bagley II, the Thomasons requested that the district court reverse the orders it issued after the notice of appeal was filed. The Bagleys objected to that motion and filed a motion for judgment on the pleadings. The district court heard arguments on both motions, and gave the parties additional time to brief the motion for judgment on the pleadings. The district court then denied the Thomasons' Motion to Reverse Orders and granted the Bagleys' Motion for Judgment on the Pleadings. The district court held that it had jurisdiction to award attorney fees after the notice of appeal was filed, that it had jurisdiction to deny the Thomasons' request for exemption, and that no factual issues remained. The district court thereafter considered the Thomasons' motion for reconsideration of its previous orders and the Bagleys' responsive motion for award of sanctions. The district court denied the Thomasons' motion for reconsideration and awarded the Bagleys the attorney fees they incurred in resisting the motion.\\nThe Thomasons appeal pro se, arguing that the Bagleys did not have standing to bring this action, that the district court did not have subject matter jurisdiction, and that the district court violated the Thomasons' equal protection rights. We affirm.\\nII. STANDARD OF REVIEW\\n\\\"I.R.C.P. 12(c) governs motions for judgment on the pleadings. By its terms, Rule 12(c) treats such motions similarly to motions for summary judgment. Thus, the standard of review applicable to lower courts' rulings on motions for summary judgment also applies to motions for judgment on the pleadings.\\\" Trimble v. Engelking, 130 Idaho 300, 302, 939 P.2d 1379, 1381 (1997). Summary judgment is appropriate \\\"if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\\\" I.R.C.P. 56(c); G & M Farms v. Funk Irr. Co., 119 Idaho 514, 516-17, 808 P.2d 851, 853-54 (1991). Furthermore, \\\"[a]ll doubts are to be resolved against the moving party, and the motion must be denied if the evidence is such that conflicting inferences may be drawn therefrom, and if reasonable people might reach different conclusions.\\\" Id.\\nIII. ANALYSIS\\nA. Subject Matter Jurisdiction\\nThe Thomasons argue that the district court lacked subject matter jurisdiction because the warranty deed did not contain the Bagleys' complete address as required by I.C. \\u00a7 55-601. Subject matter jurisdiction is \\\"the power to determine cases over a general type or class of dispute.\\\" Bach v. Miller, 144 Idaho 142, 145, 158 P.3d 305, 308 (2007). The Idaho Constitution grants the district courts of this State original jurisdiction over all matters at law and in equity. Idaho Const, art. V, \\u00a7 20. This case was originally a quiet title action. This Court has long held that our district courts have subject matter jurisdiction to adjudicate quiet title actions. Id.; Whitney v. Randall, 58 Idaho 49, 56, 70 P.2d 384, 387 (1937). Thus, we reject the Thomasons' argument that the district court lacked subject matter jurisdiction because the grantees' address was not contained in the deed.\\nThis argument seems to be a variation of an argument presented in the Thomasons' second appeal before this Court, in which the Thomasons argued that the Bagleys lacked standing because the deed did not comply with I.C. \\u00a7 55-601. Bagley II, 149 Idaho at 807, 241 P.3d at 980. There, the Thomasons failed to understand that there is a difference between the merits of a party's case and that party's standing. This Court reiterated the principle that \\\"a party can have standing to bring an action, but then lose on the merits.\\\" Id. (citing Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989)). Likewise, whether a district court has subject matter jurisdiction is not dependent upon the merits of the action.\\nB. Standing\\nThe Thomasons next argue that the Bagleys lacked standing to bring this lawsuit. They do so by citing some general principles of law regarding standing, but without any explanation as to why the Bagleys are without standing. This issue has already been decided by this Court. Bagley I, 149 Idaho at 802, 241 P.3d at 975. There, we held that the \\\"Bagleys have standing to bring their quiet title action.\\\" Id. Our previous decision brings the law of the case doctrine into play.\\nThe doctrine of \\\"law of the case\\\" is well established in Idaho and provides that upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement be comes the law of the case and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal.\\nSwanson v. Swanson, 134 Idaho 512, 515, 5 P.3d 973, 976 (2000) (internal citations omitted). The Thomasons have not demonstrated a change in circumstances subsequent to our decision in Bagley I that would deprive the Bagleys of standing. Therefore, our previous determination that the Bagleys had standing to bring the quiet title action \\\"must be adhered to\\\" in this \\\"subsequent appeal\\\" and we hold that the Thomasons' argument regarding standing is without merit.\\nC. Orders After Notice of Appeal Filed\\nIn an argument that advances a confusing blend of legal standards, the Thomasons argue that the district court abused its discretion by entering orders and making rulings on various issues over which the court lacked subject matter jurisdiction. We understand this argument as referring to Bagley I, where we stated that \\\"[u]pon the filing of Thomasons' notice of appeal, the district court lost jurisdiction over the entire action except as provided in Rule 13 of the Idaho Appellate Rules.\\\" 149 Idaho at 804, 241 P.3d at 977 (citing Diamond v. Sandpoint Title Ins., Inc., 132 Idaho 145, 148, 968 P.2d 240, 243 (1998)). Assuming that we have correctly discerned the gist of the Thomasons' argument, they are asserting that the district court lacked jurisdiction to make rulings on motions or to enter orders following the filing of their notice of appeal. One of the orders referenced by the Thomasons is the award of attorney fees. However, this Court addressed that order in Bagley I, noting that I.A.R. 13(b)(9) allows the district court to \\\"make any order regarding the taxing of costs or determination of attorneys fees incurred in the trial of the action.\\\" Id. This Court did express concern regarding the timing of that award, even though it was not raised on appeal by the Thomasons, in the following footnote:\\nAlthough the district court had jurisdiction to award costs, including attorney fees, they are awarded to the prevailing party in the action. Idaho R. Civ. P. 54(d)(1)(B) (emphasis added). Where a party prevails only in part, the court \\\"may apportion the costs between and among the parties in a fair and equitable manner after considering all of the issues and claims involved in the action and the resultant judgment or judgments obtained.\\\" Id. The court cannot do so after considering \\\"all of the claims involved in the action and the resultant judgment or judgments obtained\\\" until all of the claims between the relevant parties have been resolved. All of Bagleys' claims and Thomasons' counterclaims were not resolved when the district court awarded Bagleys court costs, including attorney fees, for prevailing on one of their claims. Thomasons have not argued on appeal that the district court erred in awarding costs before there was a prevailing party in the action, and nothing herein should be construed as holding that a trial court can award court costs, including attorney fees, on a piecemeal basis as each claim between the parties is decided.\\nId. at 804, n. 4, 241 P.3d at 977, n. 4 (emphasis in original). As before, however, the Thomasons do not allege error in the timing of the award of attorney fees. Rather, they assert that the district court lacked subject matter jurisdiction to issue any orders whatsoever. With respect to the issue of attorney fees, this Court has already ruled that the district court had subject matter jurisdiction.\\nAnother of the Thomasons' arguments may be interpreted as an objection to the issuance of a writ of execution and the district court's order denying their claim of exemption while the appeal was pending, as the Thomasons argue that they are entitled to have all of their personal property returned. This argument is without merit.\\nWhen a Rule 54(b) certificate is issued after the district court enters a partial judgment and that partial judgment is appealed, the district court loses jurisdiction over the entire action while the appeal is pending, except as provided in I.A.R. 13. I.R.C.P. 54(b)(2). After a notice of appeal has been filed, there is a fourteen day automatic stay imposed on all \\\"proceedings and execution of all judgments or orders in a civil action in the district court.\\\" I.A.R. 13(a). \\\"Any further stay shall be only by order of the district court or the Supreme Court.\\\" Id. However, a district court is not prevented from taking any action in a case simply because an appeal is pending. Idaho Appellate Rule 13 identifies the actions that a district court may take during the pendency of an appeal, unless specifically prohibited by order of this Court. I.A.R. 13(b). The district court retains authority to \\\"[t]ake any action or enter any order required for the enforcement of any judgment or order.\\\" I.A.R. 13(b)(13). Indeed, a district court does not have the power to stay enforcement of a money judgment unless the party against whom judgment is entered posts a cash deposit or supersedeas bond equal to 136% of the judgment. I.A.R. 13(b)(15).\\nAfter judgment was entered quieting title in the Bagleys, the district court entered an award of attorney fees and costs in the amount of $12,225.36. The order regarding attorney fees was entered February 9, 2009. However, the notice of appeal for the quiet title action was filed prior to that order on December 22, 2008. The district court also entered two orders denying the Thomasons' motions to declare certain property exempt from execution. The Thomasons appear to argue that the district court lacked jurisdiction to enter these orders after the notice of appeal was filed. Idaho Appellate Rule 13(b)(13) specifically authorizes a district court to enter any order required for the enforcement of a judgment. Because a cash deposit or bond was not submitted, the district court did not have the authority to stay execution of the judgment. The Thomasons have not advanced an argument that the district court erred when it determined that the personal property was not exempt. Thus, we can find no error in the district court's entry of the orders subsequent to the notice of appeal.\\nTo the extent that the Thomasons argue that the district court erred by granting summary judgment as to their counterclaims, they have failed to identify a genuine issue of material fact as to any one of the three counts advanced therein. We therefore affirm the district court's judgment.\\nD. Equal Protection\\nThe Thomasons argue that the district court violated their equal protection rights by not dismissing the Bagleys' case. This assertion is accompanied by little to no argument. The Thomasons cite two cases, one dealing with access to the judicial system and the other dealing with intentional and arbitrary discrimination. However, the Tho-masons do not explain how they were prevented from accessing the legal system or how they were subject to discrimination. \\\"The first step in an equal protection analysis is to identify the classification at issue.\\\" McLean v. Maverik Country Stores, Inc., 142 Idaho 810, 813, 135 P.3d 756, 759 (2006). Because the Thomasons have utterly failed to identify the classification at issue or argue how their equal protection rights were violated, we will not further consider this claim as \\\"this Court does not consider issues not supported by argument or authority.\\\" Cowan v. Bd. of Comm'rs of Fremont Cnty., 143 Idaho 501, 508, 148 P.3d 1247, 1254 (2006).\\nE. Attorney Fees\\nWe have repeatedly addressed our expectations of self-represented litigants in proceedings before this Court.\\nPro se litigants are not entitled to special consideration or leniency because they represent themselves. To the contrary, it is well-established that courts will apply the same standards and rules whether or not a party is represented by an attorney and that pro se litigants must follow the same rules, including the rules of procedure. Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585 (2009) (citations and quotations omitted); Suitts v. Nix, 141 Idaho 706, 709, 117 P.3d 120, 123 (2005); Twin Falls Cnty. v. Coates, 139 Idaho 442, 445, 80 P.3d 1043, 1046 (2003).\\nBettwieser v. New York Irrigation Dist., 154 Idaho 317, 322, 297 P.3d 1134, 1139 (2013). The Bagleys argue they are entitled to attorney fees on appeal under I.C. \\u00a7 12-121 because this appeal was frivolous as all issues presented were addressed in prior appeals. \\\"To receive an I.C. \\u00a7 12-121 award of fees, the entire appeal must have been pursued frivolously, unreasonably, and without foun dation.\\\" Carrillo v. Boise Tire Co., Inc., 152 Idaho 741, 756, 274 P.3d 1256, 1271 (2012). This appeal meets that standard. This is the Thomasons' third attempt to have this Court overturn the decision quieting title to the property in the Bagleys. To the extent that this Court was able to identify legal issues presented in this appeal, these issues were not properly addressed by authority or argument. Thus, we award attorney fees to the Bagleys.\\nIV. CONCLUSION\\nWe affirm judgment of the district court and award costs and attorney fees on appeal to the Bagleys.\\nChief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES, concur.\\n. It is unclear why this motion was filed. The district court had earlier entered its \\\"Final Order Regarding Claims.\\\" In that order, the district court, relying on the parties' representations in open court that there were \\\"no additional claims pending,\\\" determined that it had \\\"adjudicated all of the claims, rights and liabilities of the parties in this case and no additional matters are pending.\\\"\\n. A different district judge was assigned to the case following the entry of the Final Order Regarding Claims.\\n.The district court did not enter judgment on the pleadings. Rather, the district court treated the motion as a motion for summary judgment. The district court determined that summary judgment dismissing the Thomasons' counterclaims was appropriate for two independent reasons: (1) the Thomasons had abandoned their counterclaims, based upon the hearing which resulted in the earlier Final Order Regarding Claims; and (2) the Thomasons had failed to demonstrate the existence of a genuine issue of material fact as to each of the three counts in their counterclaims.\\n. The Thomasons argued in their first appeal to this Court that the warranty deed was invalid because it did not contain the grantees' address. However, this Court declined to address the issue because it was not raised at the district court level. Bagley I, 149 Idaho at 802, 241 P.3d at 975.\"}"
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+"{\"id\": \"4193161\", \"name\": \"FLYING \\\"A\\\" RANCH, INC., an Idaho corporation; Clen Atchley; Emma Atchley; Laura Pickard; Clay Pickard, George Ty Nedrow; and David Tuk Nedrow, Petitioners, v. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, Idaho, a political subdivision of the state of Idaho; Ronald \\\"Skip\\\" Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant; E.C. Gwaltney, III, and Lana K. Varney, Petitioners, v. Board of County Commissioners for Fremont County, a political subdivision of the State of Idaho; Ronald \\\"Skip\\\" Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant\", \"name_abbreviation\": \"Flying \\\"A\\\" Ranch, Inc. v. Board of County Commissioners\", \"decision_date\": \"2014-06-17\", \"docket_number\": \"Nos. 40987-2013, 41132-2013\", \"first_page\": \"449\", \"last_page\": \"457\", \"citations\": \"156 Idaho 449\", \"volume\": \"156\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T00:37:30.459898+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice BURDICK, Justices J. JONES, W. JONES, and HORTON concur.\", \"parties\": \"FLYING \\u201cA\\u201d RANCH, INC., an Idaho corporation; Clen Atchley; Emma Atchley; Laura Pickard; Clay Pickard, George Ty Nedrow; and David Tuk Nedrow, Petitioners, v. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, Idaho, a political subdivision of the state of Idaho; Ronald \\u201cSkip\\u201d Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant. E.C. Gwaltney, III, and Lana K. Varney, Petitioners, v. Board of County Commissioners for Fremont County, a political subdivision of the State of Idaho; Ronald \\u201cSkip\\u201d Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant.\", \"head_matter\": \"328 P.3d 429\\nFLYING \\u201cA\\u201d RANCH, INC., an Idaho corporation; Clen Atchley; Emma Atchley; Laura Pickard; Clay Pickard, George Ty Nedrow; and David Tuk Nedrow, Petitioners, v. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, Idaho, a political subdivision of the state of Idaho; Ronald \\u201cSkip\\u201d Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant. E.C. Gwaltney, III, and Lana K. Varney, Petitioners, v. Board of County Commissioners for Fremont County, a political subdivision of the State of Idaho; Ronald \\u201cSkip\\u201d Hurt, in his official capacity; and Leroy Miller, in his official capacity, Respondents, v. Karl H. Lewies, Real Party in Interest-Appellant.\\nNos. 40987-2013, 41132-2013.\\nSupreme Court of Idaho,\\nIdaho Falls, May 2014 Term.\\nJune 17, 2014.\\nKarl H. Lewies, Rexburg, argued in his own behalf.\\nBlake G. Hall, Hall Angell & Starnes LLP, Idaho Falls, argued for respondents.\", \"word_count\": \"4384\", \"char_count\": \"26282\", \"text\": \"EISMANN, Justice.\\nThis is an appeal out of Fremont County from an award of sanctions against the county prosecuting attorney under Rule 11(a)(1) of the Idaho Rules of Civil Procedure. Because there is no legal basis for the award, we reverse.\\nI.\\nFactual Background.\\nOn May 15, 2012, Karl H. Lewies won the primary election for the position of Fremont County Prosecuting Attorney. Because he had no opponent in the general election, which would occur on November 6, 2012, he knew he would be elected as the prosecuting attorney, and he was. He was scheduled to be sworn into office on January 14, 2013.\\nOn November 23, 2012, he filed two petitions for review against the county commissioners of Fremont County. One petition for review was on behalf of Flying \\\"A\\\" Ranch, Inc., and others (\\\"Flying A Ranch case\\\"), and the other petition was on behalf of E.C. Gwaltney, III, and' another (\\\"Gwaltney case\\\"). The petitions sought to overturn the designation by the county commissioners of certain roads as being public roads rather than private roads.\\nOn January 7, 2013, the county commissioners, represented by Blake Hall, the deputy prosecutor hired by the prosecutor that Mr. Lewies had defeated in the primary, filed motions in both cases seeking to have Mr. Lewies disqualified from representing the petitioners in those cases. On the same day, Mr. Lewies filed motions in both cases to withdraw as counsel for the petitioners. In his supporting affidavit, Mr. Lewies stated that he would be sworn in as prosecuting attorney on January 14, 2013, at which time he would have a conflict of interest in continuing to represent the petitioners.\\nIn each of the cases, Mr. Lewies had named two of the commissioners in both their official and individual capacities. On January 7, 2013, the commissioners filed motions in both cases to dismiss the actions against the two commissioners in their individual capacities.\\nOn January 11, 2013, Blake Hall, as a member of the law firm of Nelson Hall Parry Tucker, was substituted as counsel for the county commissioners in place of Blake Hall, as deputy prosecuting attorney. On January 14, 2013, other counsel substituted for Mr. Lewies in the Flying A Ranch case.\\nThe pending motions were heard on January 22, 2013. The court made preliminary rulings that Mr. Lewies could not represent any parties in the two cases; that the county would be awarded attorney fees against him personally for having to file the motion to disqualify; that an action against the two commissioners in their individual capacities could not be joined with a petition for judicial review; and that attorney fees would not be awarded against Mr. Lewies for having named them in their individual capacities. During the hearing, Mr. Lewies contended that Mr. Hall should be disqualified from representing the commissioners and that a deputy prosecutor should represent them. The court stated it would consider that issue at the next scheduled hearing and it would permit Mr. Lewies to submit additional information regarding the award of attorney fees against him. On February 4, 2013, the court entered a written order affirming its preliminary rulings.\\nThe matter was next heard on February 26, 2013. Prior to the hearing, Mr. Lewies had filed an affidavit stating that he had been first contacted by one of the petitioners in the Flying A Ranch case just two days before the expiration of the time for filing a petition for judicial review to challenge the road designation; that he agreed to file a petition to preserve the petitioners' legal rights; that in researching the matter he discovered that a private road belonging to the petitioners in the Gwaltney case, who lived out of state, had also been designated as a public road; that when he contacted them they asked that he file a petition to preserve their rights; and that he had filed both petitions one day before the time period for challenging the road designations would expire. Prior to the hearing, the deputy prosecutor had also filed a notice stating that the county prosecutor's office withdrew its request to represent the county commissioners in the two cases. Therefore, the only matter left to be decided was the award of attorney fees against Mr. Lewies. After the parties argued that issue, the court took the matter under advisement.\\nOn March 29, 2013, the court entered its memorandum decision in both cases awarding the county attorney fees in the sum of $1,185.00 against Mr. Lewies personally pursuant to Rule 11(a)(1). The court entered a final judgment to that effect on April 4, 2013, and Mr. Lewies timely appealed.\\nII.\\nDid the District Court Err in Awarding Rule 11(a)(1) Sanctions Against Mr. Lewies?\\nIn its memorandum decision, the district court stated its reasons for imposing sanctions as follows:\\nA. Lewies' conduct in filing the petitions against the County, failing to promptly withdraw as attorney for Petitioners, and initially refusing to allow Hall to represent the County on these matters, was clearly misguided and amounted to sanctionable misconduct under Rule 11(a)(1), as interpreted by the Idaho appellate courts in Campbell and Lester, .\\nThe relevant portion of Rule 11(a)(1) of the Idaho Rules of Civil Procedure provides as follows:\\nThe signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the signer's knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\\nThe rule provides two separate grounds for imposing sanctions: (a) frivolous filings and (b) misusing judicial procedures for an improper purpose. The above-quoted portion of the rule is identical to Rule 11 of the Federal Rules of Civil Procedure as amended in 1983. Durrant v. Christensen, 117 Idaho 70, 73, 785 P.2d 634, 637 (1990). Therefore, this Court has adopted the interpretation of the federal rule by Zaldivar v. City of Los Angeles, 780 F.2d 823, 829 (9th Cir.1986), Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 205 (7th Cir.1985), and Eastway Construction Corporation v. City of New York, 762 F.2d 243, 253 (2d Cir.1985), for Rule 11 of the Idaho Rules of Civil Procedure. Durrant, 117 Idaho at 74, 785 P.2d at 638.\\nUnder the federal rule as amended in 1983, \\\"[t]he certificate is addressed to two separate problems, both of which have been identified as major sources of unnecessary litigation delay and expense: first, the problem of frivolous filings; and second, the problem of misusing judicial procedures as a weapon for personal or economic harassment.\\\" Zaldivar, 780 F.2d at 830. That same construction would apply to Rule 11(a)(1). The attorney's or party's signature on a document constitutes two substantive certifications: (a) \\\"that to the best of the signer's knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law,\\\" and (b) \\\"that it [the document] is not interposed for any improper purpose.\\\" I.R.C.P. 11(a)(1). Both certifications must be accurate in order to comply with the rule. If either of them is not accurate, then the document would be signed in violation of the rule. In that circumstance, \\\"the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction,\\\" which may include an order to pay reasonable attorney fees incurred by the other party because of the filing of the document. I.R.C.P. 11(a)(1).\\n1. The \\\"frivolous filings\\\" clause. The signature of an attorney on a pleading, motion or other paper constitutes a representation that \\\"to the best of the signer's knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.\\\" I.R.C.P. 11(a)(1). \\\"Prior to the 1983 amendments, [federal] Rule 11 was interpreted to require subjective bad faith by the signing attorney to warrant the imposition of sanctions.\\\" Zaldivar, 780 F.2d at 829. This interpretation was compelled by the wording that there needed to be good ground to support the document \\\"to the best of [the attorney's] knowledge, information, and belief.\\\" Id. The 1983 amendment \\\"represents an intentional abandonment of the subjective focus of the Rule in favor of an objective one. The certificate now tests the knowledge of the signing attorney by a 'reasonableness' standard. The former requirement of willfulness has been deleted.\\\" Id. Therefore, in Durrant we held, in light of these federal decisions, that \\\"reasonableness under the circumstances, and a duty to make a reasonable inquiry prior to filing an action, is the appropriate standard to apply. A showing of subjective bad faith is no longer necessary for the imposition of sanctions....\\\" 117 Idaho at 74, 785 P.2d at 638.\\n2. The \\\"improper purpose\\\" clause. The signature of an attorney on a pleading, motion or other paper constitutes a representation that the document \\\"is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\\\" I.R.C.P. 11(a)(1). \\\"The 'well grounded in fact and warranted by existing law' clause is coupled with the 'improper purpose' clause by the conjunction 'and.' By signing the pleading or other paper, the attorney certifies to both, thus suggesting that the two clauses are to be viewed independently.\\\" Zaldivar, 780 F.2d at 832. As stated by the court in Eastway Construction:\\nIn light of the express intent of the drafters of the new Rule 11, and the clear policy concerns underlying its amendment, we hold that a showing of subjective bad faith is no longer required to trigger the sanctions imposed by the rule. Rather, sanctions shall be imposed against an attorney and/or his client when it appears that a pleading has been interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.\\n762 F.2d at 254 (footnote omitted).\\nIn Durrant, we did not address the \\\"improper purpose\\\" clause, nor have we express ly held that it is independent of the \\\"frivolous filings\\\" clause. However, we have implicitly done so when affirming the trial court's award of Rule 11 sanctions. For example, in Riggins v. Smith, 126 Idaho 1017, 895 P.2d 1210 (1995), we stated, \\\"In light of an attorney's conduct in filing a pleading, the district court must determine whether the attorney exercised reasonableness under the circumstances and made a proper investigation upon reasonable inquiry into the facts and legal theories before signing and filing the document.\\\" Id. at 1021, 895 P.2d at 1214. In affirming the award, we stated that \\\"we find that the district court made sufficient findings of Smith's failure to properly investigate [Plaintiffs] case and of the unreasonableness of Smith's inquiry to support its determination of sanctions against Smith under I.R.C.P. 11(a)(1).\\\" Id. We did not require a finding that the attorney also filed any document for an improper purpose.\\nThis Court has still required a finding of an improper purpose to impose sanctions on appeal under Idaho Appellate Rule 11.2, which has identical wording to Idaho Rule of Civil Procedure 11(a)(1). Fonseca v. Corral Agriculture, Inc., 156 Idaho 142, 152, 321 P.3d 692, 702 (2014). However, we will henceforth construe Appellate Rule 11.2 in the same manner as set forth above for Civil Rule 11(a)(1). There is no reason to construe the identical wording in both rules differently.\\n\\\"The standard of review for an appellate court reviewing a trial court's imposition of sanctions pursuant to I.R.C.P. 11 is one of abuse of discretion.\\\" Campbell v. Kildew, 141 Idaho 640, 649-50, 115 P.3d 731, 740-41 (2005). In making a determination of whether a trial court abused its discretion, this Court considers: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the boundaries of this discretion and consistent with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason. Rockefeller v. Grabow, 139 Idaho 538, 545, 82 P.3d 450, 457 (2003). In this case, the district court abused its discretion because it did not act consistently with the applicable legal standards.\\nThe first reason given by the district court for imposing sanctions was \\\"Lewies' conduct in filing the petitions against the County.\\\" Mr. Lewies signed both petitions for judicial review. Before imposing Rule 11 sanctions, \\\"the district court must determine whether the attorney exercised reasonableness under the circumstances and made a proper investigation upon reasonable inquiry into the facts and legal theories before signing and filing the document.\\\" Riggins, 126 Idaho at 1021, 895 P.2d at 1214. That inquiry is what it was reasonable to believe at the time the document was submitted, not what it is reasonable to believe with the wisdom of hindsight or in light of subsequent developments. Sun Valley Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 95, 803 P.2d 993, 1001 (1991). The determination of whether the attorney made a reasonable inquiry before filing the document\\nmay depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar.\\nId.\\nIt is uncontradicted that Mr. Lewies was first contacted by one of the petitioners two days before the expiration of the time period for filing a petition for judicial review. The district court did not make any finding that Mr. Lewies failed to make a reasonable investigation into the facts and law before filing the petitions. Rather than focusing upon the reasonableness of Mr. Lewies's inquiry into the facts and law prior to filing the petitions, the court focused upon the fact that he would not be able to represent the petitioners once he became the prosecuting attorney. The court wrote: \\\"Lewies should have known at the time of filing the petitions that he would [be] unable to see either case through to completion \\u2014 -this is undisputed. Even if the Petitioners were acting under time constraints, that does not justify Lewies acting in an ethically questionable manner.\\\" Rule 11 is not a tool for sanctioning conduct that the trial court perceives to be unethical, unwise, or lacking in common sense. Riggins, 126 Idaho at 1021, 895 P.2d at 1214. \\\"To the extent the trial court did not give appropriate focus to its inquiry, it did not act consistently with the legal standards applicable to the choice it had to make.\\\" Sun Valley Shopping Center, 119 Idaho at 95, 803 P.2d at 1001.\\nThe second reason given by the district court for imposing Rule 11 sanctions against Mr. Lewies was his \\\"failing to promptly withdraw as attorney for Petitioners.\\\" The rule \\\"applies only to the signing of a 'pleading, motion, or other paper.'\\\" Riggins, 126 Idaho at 1021, 895 P.2d at 1214. \\\"When determining whether Rule 11 sanctions should be imposed, the trial court must only consider the attorney's conduct in the filing of pleadings, motions or other papers.\\\" Id. Rule 11 sanctions cannot be based upon the failure of an attorney to file a document. Mr. Lewies's failure to move to withdraw sooner than he did cannot be a basis for Rule 11 sanctions. To the extent that the district court based its award of sanctions upon Mr. Lewies's failure to move to withdraw sooner, the court did not act consistently with the legal standards applicable to the choice it had to make.\\nThe third reason given by the district court was Mr. Lewies's conduct in \\\"initially re-fusing to allow Hall to represent the County on these matters.\\\" During the hearing held on January 22, 2013, Mr. Lewies did orally state, 'Well, Your Honor, I'd like to note for the record I don't believe Mr. Hall is properly here representing Fremont County because the Idaho Constitution required the County Commissioners make a public finding of necessity before retaining their own private counsel.\\\" The court did not point to any filed document signed by Mr. Lewies opposing the action of the commissioners in hiring Mr. Hall to represent them. An oral objection cannot be the basis for Rule 11 sanctions because the rule \\\"applies only to the signing of a 'pleading, motion, or other paper.' \\\" Id. To the extent that the district court based its award of sanctions upon Mr. Lewies's oral comment, the court did not act consistently with legal standards applicable to the choice it had to make.\\nIn its order awarding sanctions, the district court also cited this Court's decision in Campbell v. Kildew, 141 Idaho 640, 115 P.3d 731 (2005), and the decision of the Idaho Court of Appeals in Lester v. Salvino, 141 Idaho 937, 120 P.3d 755 (Ct.App.2005). With respect to the Campbell case, the district court wrote, \\\"The Idaho Supreme Court has explained, '[t]he intent of the rule is to grant courts the power to impose sanctions for discrete pleading abuses or other types of litigative misconduct.'\\\" That quote in the context in which it occurred in the Campbell opinion was as follows:\\nRule 11(a)(1) entails certification that:\\nEvery pleading, motion, and other paper [filed with the court is] to the best of the signer's knowledge, information, and belief after reasonable inquiry . well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\\nPursuant to Rule 11(a)(1), \\\"pleadings, motions, and other papers signed by an attorney or a party must meet certain criteria, and failure to meet such criteria will result in the imposition of sanctions.\\\" The intent of the rule is to grant courts the power to impose sanctions for discrete pleading abuses or other types of litigative misconduct.\\n141 Idaho at 650, 115 P.3d at 741 (citations omitted). The portion quoted by the district court, when read in context, is clearly referring to documents that fail to meet \\\"certain criteria,\\\" which are set forth in Rule 11. The wording quoted by the district court from the Campbell opinion was clearly not creating a broad new category of conduct that would justify the imposition of Rule 11 sanctions. The \\\"litigative misconduct\\\" mentioned was clearly the filing of documents in violation of the rule. The basis of the Rule 11 sanctions in the Campbell case was the filing of a petition to obtain judicial confirmation of a sham arbitration award in order to circumvent a zoning ordinance. Id. at 650-51, 115 P.3d at 741-42.\\nWith respect to the Lester case, the district court wrote, \\\"Rule 11 has been construed as 'a management tool to be used by the district court to weed out, punish and deter specific frivolous and other misguided filings.' \\\" In context, the statement by the Court of Appeals was as follows:\\nThe imposition of attorney fee sanctions for litigative misconduct is governed by I.R.C.P. 11(a)(1), which in relevant part provides:\\n[Rule quoted]\\nRule 11 therefore authorizes the court to impose sanctions, including attorney fees, on its own initiative, upon an attorney who signs a pleading, motion, or other paper which violates the requirements of Rule 11. The signer's signature certifies that to the best of the signers knowledge, information and belief after reasonable inquiry, the pleading, motion or other paper is well grounded in fact, warranted by existing law or a good faith argument for the modification, or reversal of existing law, and not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increases in the costs of litigation. The intent of the rule is to grant the courts the power to impose sanctions for discrete pleading abuses or other types of litigative misconduct. The rule is considered a management tool to be used by the district court to weed out, punish and deter specific frivolous and other misguided filings.\\n141 Idaho at 939-40, 120 P.3d at 757-58 (citations and footnote omitted). The sanctions were imposed for signing discovery responses in violation of the requirements of Rule 11. Id. at 940, 120 P.3d at 758. The Court of Appeals was not expanding Rule 11 beyond the wording of the rule.\\nIn this case, the district court did not apply the provisions of Rule 11 when it imposed the sanctions. It simply took two sentences out of context from the Campbell and Lester opinions and created a new basis for imposing the sanctions that was totally unsupported by the wording of Rule 11. In doing so, the court abused its discretion because it did not act consistently with the applicable legal standards. We therefore reverse the award of sanctions against Mr. Lewies.\\nIII.\\nDid the District Court Err in Failing to Recuse Itself?\\nMr. Lewies contends that Judge Moeller was biased against him and should have recused himself. Mr. Lewies did not file a motion asking the court to disqualify itself. \\\"In the absence of a motion for disqualification, this Court will not review that issue on appeal.\\\" Idaho Dept. of Health & Welfare v. Doe, 150 Idaho 563, 568, 249 P.3d 362, 367 (2011). Because recusal from a case is committed to the sound discretion of the judge, in the absence of a motion there is no decision of the court that can be reviewed, nor was a factual record developed regarding the issue. Id.\\nIV.\\nDid the District Court Err in Stating It Was Appropriate for the County Commissioners to Have Retained Mr. Hall to Represent Them?\\nDuring the hearing on January 22, 2013, Mr. Lewies stated, \\\"Although I personally am disqualified from representing the County, my Deputy is not, and that's quite clear.\\\" The issue of whether the deputy prosecutor could represent the county was then deferred until the next hearing. On February 19, 2013, the deputy prosecuting attorney filed a document stating, \\\"Upon further review of all aspects of the unique facts peculiar to this particular situation and for the considerations stated, the Fremont County Prosecutor's Office withdraws its motion to represent Fremont County in these petitions for judicial review.\\\" At the next hearing, the district court stated that the issue of whether a deputy prosecutor could represent the county was resolved and asked if there were any matters related to that issue that needed to be addressed. Mr. Lewies did not contend that there were.\\nIn its memorandum decision regarding sanctions, the court wrote that \\\"the Court deems appropriate the decision by the County to retain Hall, its former civil deputy, to defend it in these cases.\\\" Mr. Lewies takes issue with this statement in the court's decision because \\\"[t]he parties, and presiding Judge Moeller, all agreed on the record that the matter had been resolved. No ease or controversy existed. The question was no longer justiciable.\\\" He does not state what relief he wants, assuming this was error. Once a final judgment is appealed, the appeal is deemed to include all interlocutory judgments and orders entered prior to the judgment from which the appeal was taken. Thomas v. Thomas, 150 Idaho 636, 641, 249 P.3d 829, 834 (2011). However, the district court's statement that Mr. Lewies seeks to challenge is neither an order nor a judgment. It is simply a passing remark in the court's memorandum decision. Mr. Lewies has not shown how that alleged issue is reviewable on appeal, and therefore we decline to review it.\\nV.\\nIs the County Entitled to an Award of Attorney Fees on Appeal?\\nThe county seeks an award of attorney fees on appeal pursuant to Idaho Code section 12-117. Because the county is not the prevailing party on appeal, it cannot be awarded attorney fees under that statute. Rule Steel Tanks, Inc. v. Idaho Dept. of Labor, 155 Idaho 812, 819, 317 P.3d 709, 716 (2013).\\nVI.\\nConclusion.\\nWe reverse the judgment of the district court and award appellant costs on appeal.\\nChief Justice BURDICK, Justices J. JONES, W. JONES, and HORTON concur.\\n. The court correctly ruled that a civil action to recover against the commissioners personally could not be joined with a petition for judicial review challenging actions taken by the board of county commissioners in its official capacity. Euclid Ave. Trust v. City of Boise, 146 Idaho 306, 309, 193 P.3d 853, 856 (2008); Cobbley v. City of Challis, 143 Idaho 130, 133, 139 P.3d 732, 735 (2006).\"}"
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+"{\"id\": \"428294\", \"name\": \"STATE of Idaho, Plaintiff-Appellant-Cross Respondent, v. Dennis T. DECCIO, Defendant-Respondent-Cross Appellant\", \"name_abbreviation\": \"State v. Deccio\", \"decision_date\": \"2001-10-31\", \"docket_number\": \"No. 26723\", \"first_page\": \"442\", \"last_page\": \"447\", \"citations\": \"136 Idaho 442\", \"volume\": \"136\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:55:53.241052+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge SCHWAKTZMAN and Judge Pro Tem KOSONEN, concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Appellant-Cross Respondent, v. Dennis T. DECCIO, Defendant-Respondent-Cross Appellant.\", \"head_matter\": \"34 P.3d 1125\\nSTATE of Idaho, Plaintiff-Appellant-Cross Respondent, v. Dennis T. DECCIO, Defendant-Respondent-Cross Appellant.\\nNo. 26723.\\nCourt of Appeals of Idaho.\\nOct. 31, 2001.\\nHon. Alan G. Lance, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for appellant.\\nKaren A. Hudelson argued. Anderson Walker, Moscow, for respondent. John W. Walker argued.\", \"word_count\": \"2270\", \"char_count\": \"14318\", \"text\": \"PERRY, Judge.\\nThe state appeals from the district court's appellate decision affirming the magistrate's order granting Dennis T. Deccio's motion to suppress. Deccio cross-appeals the district court's order denying his motion to dismiss the state's intermediate appeal for lack of appellate jurisdiction. We affirm the district court's decision affirming the magistrate's order granting Deceio's motion to suppress. Therefore, we do not reach Deccio's claim that the district court lacked appellate jurisdiction over the state's appeal and dismiss the cross-appeal as moot.\\nI.\\nFACTS AND PROCEDURE\\nThe facts of this case as found by the magistrate are not disputed. On November 26, 1999, at approximately 3:00 p.m., Moscow police received an anonymous phone report from a female advising dispatch of a suicidal subject identified as Deccio. The female re fused to identify herself, stating only that she was the best friend of Deccio's wife, and she refused to give her address. The female stated that she was calling from a phone at a local bar and that she did not intend to stay there. The female stated that Deecio was intoxicated, had a gun, and intended to kill himself, although she did not indicate that she had personally observed the things she was calling to report. The female merely stated that she had been speaking with Deeeio and Deecio's wife and that Deccio had been drinking all day. She did not indicate further the source of her information as Deccio or Deecio's wife. The female stated that Deccio was headed to the casino in Lewiston and told the dispatcher that Deecio drove a white Subaru. The female also told the dispatcher that Deecio lived on Concord Street in Moscow and indicated that it was unlikely Deccio would be home.\\nAfter attempts to locate Deccio at his home and on the roadways in Moscow proved unsuccessful, the Moscow police dispatcher notified the Latah County sheriffs office that Moscow police had received an anonymous call that Deccio was suicidal and intoxicated. A Latah County sheriffs officer spotted a vehicle matching the description of Deecio's vehicle driving southbound on Highway 95 toward Lewiston and began following the vehicle. The officer continued to follow the vehicle after it left Highway 95 and drove into the town of Genesee. The officer followed the vehicle for over a mile as it made several turns in Genesee but the officer did not observe any law violations or erratic driving. The officer eventually stopped the vehicle, believing that he needed to check the driver's welfare due to the report he received from the Moscow police dispatch. When the officer contacted the driver, Deecio, the officer smelled an odor of alcohol. Deccio was subsequently arrested for driving under the influence (DUI) after failing field sobriety tests. A bottle of vodka was found under the seat of Deccio's vehicle but no weapon was found.\\nThe magistrate granted Deccio's motion to suppress the evidence obtained following the stop of his vehicle, including the field sobriety tests and blood alcohol test. The state appealed to the district court, and Deccio moved to dismiss the state's appeal for lack of appellate jurisdiction. The district court denied Deceio's motion to dismiss the state's appeal and affirmed the magistrate's order granting Deecio's motion to suppress. The state appeals, arguing that the stop of Deccio's vehicle was constitutionally reasonable pursuant to the community caretaking function. Deccio cross-appeals the district court's denial of his motion to dismiss the state's appeal.\\nII.\\nSTANDARD OF REVIEW\\nOn review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App.1993). The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact which are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.App.1996). Because the magistrate's findings of fact are not challenged, we exercise free review.\\nIII.\\nDISCUSSION\\nThe community caretaking function involves the duty of police officers to help individuals an officer believes may be in need of assistance. State v. Mireles, 133 Idaho 690, 692, 991 P.2d 878, 880 (Ct.App.1999). As stated in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973):\\nLocal police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.\\nId. at 441, 93 S.Ct. at 2528, 37 L.Ed.2d at 714-15.\\nIn analyzing community caretaking function cases, Idaho has adopted a totality of the circumstances test. State v. Wixom, 130 Idaho 752, 754, 947 P.2d 1000, 1002 (1997). The constitutional standard is whether the intrusive action of the police was reasonable in view of all the surrounding circumstances. Id.; see also State v. Godwin, 121 Idaho 517, 519, 826 P.2d 478, 480 (Ct.App.1991). In order for the community caretaking function analysis to apply, an officer must possess a subjective belief that an individual is in need of immediate assistance, although the officer may harbor at least an expectation of detecting or finding evidence of a crime. See In re Clayton, 113 Idaho 817, 818, 748 P.2d 401, 402 (1988); see also State v. Osborne, 121 Idaho 520, 526, 826 P.2d 481, 487 (Ct.App.1991). Other Idaho cases also support a subjective standard in applying the community caretaking function. See Wixom, 130 Idaho 752, 947 P.2d 1000; State v. Fry, 122 Idaho 100, 831 P.2d 942 (Ct.App.1991).\\nThe present case involves the community caretaking function based on an anonymous tip. Although most cases involving anonymous tips center on the issue of reasonable, articulable suspicion rather than the community caretaking function, in each instance the reasonableness of a stop is analyzed under a totality of the circumstances. In analyzing the totality of the circumstances here, the threshold question is the weight, if any, the anonymous information concerning Deccio's condition should be given by the trier of faet.\\nIn Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the United States Supreme Court held that a dispatcher's report may be based upon a variety of sources, including a completely anonymous tip. However, an anonymous tip standing alone is generally not enough to justify a stop because an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity. State v. Larson, 135 Idaho 99, 101, 15 P.3d 334, 336 (Ct.App.2000). The information from an anonymous tip may provide justification for a stop when the information it contains bears sufficient indicia of reliability or when significant aspects of the tip are sufficiently corroborated by independent police observations. State v. Hankey, 134 Idaho 844, 847-48, 11 P.3d 40, 43\\u201444 (2000); Larson, 135 Idaho at 101, 15 P.3d at 336. See also State v. Wilson, 136 Idaho 270, 32 P.3d 164 (Ct.App.2001).\\nHere, the magistrate held that the anonymous tip, standing alone, did not bear sufficient indicia of reliability justifying the stop of Deecio's vehicle. We have been shown no error in the magistrate's determination. The female caller refused to identify herself or give her address. She merely stated that she was the best friend of Deecio's wife. The female did not call from home but from a phone at a local bar and indicated that she did not intend to stay there, thus avoiding the possibility of being identified or questioned. There was no indication that the female personally observed or had any first-hand knowledge of Deccio's suicidal or intoxicated condition. The female stated only that she had been speaking with Deceio and his wife and that he had been drinking all day. Moreover, the caller did not distinguish what information she obtained directly from Deecio and what hearsay information she obtained from Deceio's wife concerning Deccio. The magistrate found that, although the caller knew where Deccio lived and the type of vehicle he drove, such information was easily obtainable. The female's prediction that Deceio would not be home if officers were to check did not in itself make the tip more reliable.\\nThe magistrate also found that, aside from the officer's observations, there was no significant confirmation of the anonymous female's information. The only information that was corroborated was that a white Subaru was registered to Deecio, that Deccio lived on Concord Street in Moscow, and that Deecio was not at home at the time officers went there. We conclude, as did the magistrate, that the anonymous tip in this case did not bear sufficient indicia of reliability justifying the stop of Deccio's vehicle on the belief that Deccio was in need of immediate assistance. Thus, we uphold the magistrate's determination that the anonymous tip was unreliable and that it did not provide a reasonable basis for the officer to stop Deccio's vehicle under the community caretaking function.\\nAlthough the anonymous tip was primarily the basis of the officer's knowledge concerning Deecio's condition, the officer's personal observations must also be considered as part of the totality of the circumstances analysis. In Hankey, the Idaho Supreme Court held that information contained in an anonymous tip, insufficient by itself to justify a stop, is entitled to some weight when taken together with other facts known to an officer. In that case, an officer observed a blue Mazda pickup truck following a woman and child who were walking on the side of a highway. As the officer continued down the highway, radio dispatch informed him that a possible \\\"domestic\\\" was in progress and gave a description of a blue Mazda pickup at the location the officer had just passed. The officer returned to the location of the pickup and observed it again. Although the anonymous information received by the officer through police dispatch was insufficient, standing alone, to justify a stop, the unusual activity that the officer had initially observed, with the pickup following the woman and child on the shoulder of the highway, sufficiently corroborated the information in the radio dispatch to provide the required reasonableness to stop the vehicle.\\nIn this case, the only details from the anonymous tip the officer corroborated by independent observation were that a white Subaru was being driven by a male in the direction of Lewiston. The officer's personal observations corroborated no other significant aspects of the anonymous tip. The magistrate found that the officer did not observe any law violations or erratic driving while following Deccio, which tended to disprove that Deccio was intoxicated. The magistrate also found that the officer observed Deccio reach under the seat but, aside from this, the officer observed nothing to indicate that Deccio was armed or suicidal. In addition, the vehicle did not continue southbound on Highway 95 toward Lewiston, as the anonymous tip predicted. Rather, the vehicle turned off the highway and proceeded into the town of Genesee, again disproving the information provided. The officer's inability to corroborate significant details of the anonymous tip enabled the magistrate to afford the anonymous tip little weight in its determination that the community caretaking function did not apply in this case.\\nMoreover, the officer did not otherwise independently observe anything that would have led him to believe that Deccio was in need of immediate assistance. There was no indication that something was wrong with Deccio or his vehicle. Deccio was not driving in an unusual manner. To the contrary, the magistrate found that the officer observed no law violations or erratic driving while following or stopping Deccio. The only information the officer possessed concerning Deecio's suicidal or intoxicated condition was obtained through dispatch from the anonymous tip. Therefore, we uphold the magistrate's determination that the officer's personal observations were also insufficient to justify the stop of Deccio's vehicle under the community caretaking function. See Wixom, 130 Idaho at 754, 947 P.2d at 1002.\\nBecause of our disposition of the state's issue on appeal, it becomes unnecessary for us to reach Deecio's claim that the district court erred by denying his motion to dismiss the state's appeal for lack of appellate jurisdiction. Therefore, we dismiss Deceio's cross-appeal as moot.\\nIV.\\nCONCLUSION\\nWe conclude that the anonymous tip was not sufficiently reliable and, therefore, did not provide a reasonable basis for the officer to stop Deccio's vehicle. We further conclude that the officer's personal observations, coupled with the tip, did not provide a reasonable basis to stop Deceio's vehicle. For these reasons, we uphold the magistrate's determination that the community caretaking function was not applicable in this case. Therefore, the district court's decision, affirming the magistrate's order granting Deccio's motion to suppress, is affirmed. We do not reach Deceio's claim that the district court lacked appellate jurisdiction over the state's appeal and dismiss the cross-appeal as moot.\\nChief Judge SCHWAKTZMAN and Judge Pro Tem KOSONEN, concur.\\n. The state does not argue that the officer had reasonable, articulable suspicion to stop Deccio's vehicle for DUI. Instead, the state relies solely on the community caretaking function to justify the stop.\"}"
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+"{\"id\": \"4328580\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Shepherd REALE, Defendant-Appellant\", \"name_abbreviation\": \"State v. Reale\", \"decision_date\": \"2014-12-04\", \"docket_number\": \"No. 41892\", \"first_page\": \"20\", \"last_page\": \"29\", \"citations\": \"158 Idaho 20\", \"volume\": \"158\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:39:28.666955+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge GRATTON, concurs.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Shepherd REALE, Defendant-Appellant.\", \"head_matter\": \"343 P.3d 49\\nSTATE of Idaho, Plaintiff-Respondent, v. Shepherd REALE, Defendant-Appellant.\\nNo. 41892.\\nCourt of Appeals of Idaho.\\nDec. 4, 2014.\\nReview Denied March 3, 2015.\\nSara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.\\nHon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.\", \"word_count\": \"4897\", \"char_count\": \"29894\", \"text\": \"MELANSON, Judge.\\nShepherd Reale appeals from his judgment of conviction and unified sentence of fifteen years, with a minimum period of confinement of three years, for sexual abuse of a child under sixteen years of age and from the district court's order of restitution. Specifically, Reale alleges that his sentence is excessive and that the district court abused its discretion by awarding restitution to the victim's mother for lost wages resulting from her taking time off from her nightshift nursing job to sleep before court appearances. For the reasons set forth below, we affirm.\\nI.\\nFACTS AND PROCEDURE\\nReale was charged with lewd conduct with a minor child under sixteen years of age and sexual abuse of a child under sixteen years of age. Pursuant to a plea agreement, Reale pled guilty to sexual abuse of a child under sixteen years of age, I.C. \\u00a7 18-5601(l)(b), and the state dismissed the lewd conduct charge. Reale was sentenced to a unified term of fifteen years, with a minimum period of confinement of three years.\\nThe state sought an order of restitution, including $3,315.68 for the lost wages of the victim's mother. At the restitution hearing, the mother testified that she missed all or part of several twelve-hour shifts working as a night charge nurse, totaling ninety-two hours at an hourly rate of $36.04. She further testified that she took the time off from her 7 p.m. to 7:30 a.m. shift to be rested and ready to attend scheduled counseling sessions and court proceedings, most of which occurred between 9 a.m. and 12 p.m. Reale argued that it was not \\\"foreseeable that someone would miss a 12-hour shift the night before a court hearing in order to be there for that hearing in the morning.\\\" The district court subsequently entered a judgment of restitution, which included an award of $3,315.68 to the victim's mother for lost wages. Reale appeals.\\nII.\\nANALYSIS\\nReale argues that the district court abused its discretion in awarding the victim's mother restitution for her lost wages as a result of missing all or part of several night shifts so that she could be rested and prepared for court proceedings the following day. Reale alternatively argues that, even if time taken off work to rest before court proceedings is compensable as lost wages, the district court abused its discretion in awarding the full amount of the requested restitution, as there was not substantial evidence justifying restitution for the five instances where the mother missed her entire twelve-hour shift prior to attending court proceedings. Reale also contends that the district court abused its discretion by imposing an excessive sentence.\\nA. Excessive Sentence\\nReale contends that his unified sentence of fifteen years, with a minimum period of confinement of three years, is excessive. An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct.App.2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992); State v. Ozuna, 155 Idaho 697, 704, 316 P.3d 109, 116 (Ct.App.2013). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982); Ozuna, 155 Idaho at 704, 316 P.3d at 116. A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary \\\"to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given ease.\\\" State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.App.1982). When reviewing the length of a sentence, we consider the defendant's entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).\\nReale argues that the district court failed to give adequate consideration to mitigating factors, resulting in an excessive sentence. The mitigating factors he alleges the district court failed to consider include his low risk of recidivism, history of being sexually abused as a child, physical health issues, and grief over his wife's illness and death. The record does not support Reale's claims.\\nAt sentencing, the district court emphasized that its primary sentencing goal was protecting society, noting the disturbing nature of Reale's conduct with the eight-year-old victim. The district court acknowledged that the psychosexual evaluation in the presentence investigation report concluded that Reale was a low risk to reoffend. However, the district court observed that the evaluation also indicated that Reale did not think he had a problem or needed treatment and failed to accept full responsibility for his conduct. Reale minimized and rationalized his conduct and even went so far as to accuse the victim's parents of being \\\"after him\\\" and \\\"setting him up\\\" for the offense by putting Reale in a situation in which he was able to commit the offense. The evaluator also noted that Reale does not believe he needs treatment for his sexual behavior. Moreover, the district court noted that Reale had committed similar conduct in the past with a ten-year-old girl. Thus, although he had no prior convictions, this was not Reale's first sexual offense. The district court further considered Reale's own experience of having been sexually abused as a child, his health problems, and his emotional difficulties associated with his wife's illness and eventual death. However, the district court was not required to ascribe as much weight and significance to these allegedly mitigating factors as Reale contends. Instead, the district court determined that the nature of the offense, Reale's potential problems with treatment in the community, and Reale's prior similar conduct outweighed the allegedly mitigating factors and necessitated a sentence that would protect society and correspond with the seriousness of the offense.\\nThe issue before this Court is not whether the sentence is one that we would have imposed, but whether the sentence is plainly excessive under any reasonable view of the facts. Toohill, 103 Idaho at 568, 650 P.2d at 710. If reasonable minds might differ as to whether the sentence is excessive, we are not free to substitute our view for that of the district court. Id. Having thoroughly reviewed the record in this case, we cannot say that the sentence is plainly excessive under any reasonable view of the facts. Therefore, the district court did not abuse its discretion, and this Court will not disturb the district court's sentencing decision.\\nB. Restitution Award\\nIdaho Code Section 19-5304(2) authorizes a sentencing court to order a defendant to pay restitution for economic loss to the victim of a crime. 'Wictim'' is defined to include the \\\"immediate family of a minor\\\" who is the actual victim of the defendant's criminal conduct. I.C. \\u00a7 19-5304(l)(e)(i). \\\"Economic loss\\\" includes, among other things, \\\"lost wages, and direct out-of-pocket losses or expenses . resulting from the criminal conduct.\\\" I.C. \\u00a7 19-5304(l)(a). The decision of whether to order restitution, and in what amount, is within the discretion of a trial court, guided by consideration of the factors set forth in I.C. \\u00a7 19-5304(7) and by the policy favoring full compensation to crime victims who suffer economic loss. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct.App.2002); State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct.App.1989). Thus, we will not overturn an order of restitution unless an abuse of discretion is shown. Richmond, 137 Idaho at 37, 43 P.3d at 796. When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).\\nTo meet the second and third requirements of this analysis, the trial court must base the amount of restitution upon the preponderance of evidence submitted by the prosecutor, defendant, victim, or presentence investigator. I.C. \\u00a7 19-5304(6); State v. Lombard, 149 Idaho 819, 822, 242 P.3d 189, 192 (Ct.App.2010). Thus, the state must prove, by a preponderance of the evidence, a causal relationship between the defendant's criminal conduct and the damages suffered by the victim. I.C. \\u00a7 19-5304(7); State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398, 401 (2011); State v. Hill, 154 Idaho 206, 212, 296 P.3d 412, 418 (Ct.App.2012). Causation consists of actual cause and true proximate cause. Corbus, 150 Idaho at 602, 249 P.3d at 401; State v. Lampien, 148 Idaho 367, 374, 223 P.3d 750, 757 (2009). Actual cause refers to whether a particular event produced a particular consequence. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223 P.3d at 757. A \\\"but for\\\" test of actual cause is used in circumstances where there is only one cause or where two or more possible causes were not acting concurrently. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223 P.3d at 757. Reale does not dispute that his criminal conduct was the actual cause of the mother's economic loss.\\nProximate cause focuses on the foreseeability of the injury, requiring us to determine whether the injury and manner of occurrence were so highly unusual that we can say, as a matter of law, that a reasonable person, making an inventory of the possibilities of harm that his or her conduct might produce, would not have reasonably expected the injury to occur. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223 P.3d at 757; State v. Houser, 155 Idaho 521, 525, 314 P.3d 203, 207 (Ct.App.2013). The causal chain linking a defendant's criminal conduct to the economic loss suffered by a victim may be severed by an independent act or force constituting an intervening, superseding cause. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223 P.3d at 757; Houser, 155 Idaho at 525, 314 P.3d at 207. In general, an intervening, superseding cause replaces the defendant's act as the proximate cause of the victim's injury. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374-75, 223 P.3d at 757-58; Houser, 155 Idaho at 525, 314 P.3d at 207. However, to relieve a defendant of criminal liability, an intervening, superseding cause must be an unforeseeable and extraordinary occurrence. Corbus, 150 Idaho at 602-03, 249 P.3d at 401-02; Lampien, 148 Idaho at 375, 223 P.3d at 758; Houser, 155 Idaho at 525, 314 P.3d at 207. The defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his or her act. Corbus, 150 Idaho at 602-03, 249 P.3d at 401-02; Lampien, 148 Idaho at 375, 223 P.3d at 758; Houser, 155 Idaho at 525, 314 P.3d at 207.\\nThe determination of the amount of restitution, which includes the issue of causation, is a question of fact for the trial court. Corbus, 150 Idaho at 602, 249 P.3d at 401; State v. Hamilton, 129 Idaho 938, 943, 935 P.2d 201, 206 (Ct.App.1997). The district court's factual findings with regard to restitution will not be disturbed on appeal if supported by substantial evidence. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lombard, 149 Idaho at 822, 242 P.3d at 192. Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion. State v. Straub, 153 Idaho 882, 885, 292 P.3d 273, 276 (2013).\\nReale asserts that there was not substantial evidence establishing that his criminal conduct was the proximate cause of the mother's lost wages, as her choice to sleep before court proceedings instead of working was an intervening, superseding cause that severed the causal chain. Additionally, Reale argues that the mother's time off work did not constitute an economic loss, as the mother did not miss work to attend a court proceeding occurring at the same time.\\nEntitlement to restitution for lost wages does not require that the court proceeding and work hours coincide. Instead, our analysis focuses on determining whether there is a causal link between the defendant's conduct and the economic loss suffered. Under the broad, nonexclusive definition of \\\"economic loss\\\" in I.C. \\u00a7 19-5304(1)(a), ex penses and losses incurred that are analogous to lost wages are compensable through restitution. See State v. Olpin, 140 Idaho 377, 379, 93 P.3d 708, 710 (Ct.App.2004) (holding that a loss of productivity resulting from employees having to take time away from their normal duties to investigate the extent of the defendant's criminal conduct was closely analogous to lost wages and was compensable under the statute's broad definition of economic loss); State v. Russell, 126 Idaho 38, 39, 878 P.2d 212, 213 (Ct.App.1994) (holding that, due to the broad definition of economic loss, time spent in court by a self-employed victim during which that person could have been pursuing his vocation constituted an economic loss by analogy to lost wages). Moreover, necessary expenses or losses that the victim incurred in order to address the consequences of the criminal conduct are also included as economic loss. State v. Gonzales, 144 Idaho 775, 778, 171 P.3d 266, 269 (Ct.App.2007); State v. Parker, 143 Idaho 165, 167, 139 P.3d 767, 769 (Ct.App.2006). Court proceedings are obvious consequences of criminal conduct. Thus, a victim is entitled to lost wages for time off that was reasonably necessary to enable him or her to attend court proceedings, even if that time off does not coincide with the actual court proceeding. See Houser, 155 Idaho at 528-29, 314 P.3d at 210-11 (recognizing that a victim may be compensated for lost wages for travel time to and from court proceedings and time spent waiting for court proceedings to begin).\\nDue to the nature of the mother's job as a night charge nurse, her work hours of 7 p.m. to 7:30 a.m. would never coincide with scheduled court proceedings. Indeed, most of the court proceedings in Reale's case occurred between 9 a.m. and 12 p.m. A defendant may not avoid restitution liability simply due to a victim's irregular work hours that do not coincide with the court's hours of operation. Such a stance would severely undermine the policy favoring full compensation to crime victims who suffer economic loss. Moreover, it would lead to perverse results, such as requiring that the mother in this case choose between attending court proceedings that involve the man charged with molesting her daughter or sleeping, as she could not readily or reasonably do both. Instead, as we recognized in Olpin, Russell, and Houser, individual work circumstances will determine whether specific instances of missed work time constitute economic loss that is compensable as restitution. As noted in Houser, \\\"reasonableness is the touchstone.\\\" Id. at 529, 314 P.3d at 211.\\nIn this case, it would not be reasonable to expect the victim's mother to attend court proceedings with little to no sleep after working a demanding job for twelve hours. On the contrary, as noted by the district court, the time the mother took off of work was reasonably necessary to enable her to attend court proceedings. The mother did her best to avoid taking off more time than necessary, switching shifts when able and taking her time off in four-hour blocks when possible. Only when she was unable to switch shifts did she take the time for which she claimed restitution. Such time off was necessary to allow the mother to adequately and reasonably address the consequences of Reale's criminal conduct by attending the court proceedings resulting therefrom. Moreover, it was reasonably foreseeable that, by molesting the mother's minor daughter, the mother would want, and occasionally need, to attend court proceedings both with and without her minor daughter. It was also reasonably foreseeable that the mother would make reasonable accommodations \\u2014 including time off from work to rest and prepare \\u2014 to be able to adequately attend and participate in those proceedings. As a result, substantial evidence supported the district court's determination that Reale's conduct was the true proximate cause of the mother's lost wages.\\nIn addition, the mother's decision to take the time off work reasonably necessary to allow her to attend the court proceedings was not an intervening, superseding cause, as the mother's missed work time was neither unforeseeable nor extraordinary. Just as it is reasonably foreseeable that a crime victim may want to be present at any proceeding that substantially impacts the case, the victim's relationship with the perpetrator, or any further risk to the victim, it is just as foreseeable that the mother of a child victim would want or need to attend the same court proceedings to provide testimony or to support, assist, and comfort her child in understanding and navigating the unfamiliar and intimidating legal proceedings. See Houser, 155 Idaho at 528, 314 P.3d at 210 (holding that a victim's choice to attend most or all court proceedings was not an intervening, superseding cause that severed the link between the defendant's criminal conduct and the victim's lost wages). Accordingly, the mother's decision to take the time off work reasonably necessary to accommodate her attendance at court proceedings was not an intervening, superseding cause.\\nFinally, Reale contends that, even if the mother's lost wages are compensable under the restitution statute as economic loss, there was not substantial evidence to support the full award. This, he claims, is because it was not reasonably necessary for the mother to take her entire twelve-hour shift off work on the five occasions when she was unable to switch shifts. Reale also alleges that the actions of the third parties who refused to switch shifts with the mother constituted intervening, superseding causes that severed the causal chain between his conduct and the mother's lost wages.\\nIn the absence of supporting evidence, a court may not presume that loss of an entire work day is justified for every attendance at a hearing regardless of its duration or time of day. Houser, 155 Idaho at 529, 314 P.3d at 211. However, some work circumstances, if supported by evidence, justify missing entire work days to enable a victim to attend court proceedings. See id. at 529, 314 P.3d at 211 (discussing that in some types of employment, a period of temporary absence might require the employer to have an alternate employee come to the workplace and cover that portion of the work, making it preferable to have the employee miss a full day as opposed to a partial day). In the unusual circumstances presented in this case, it was not unforeseeable that the mother would occasionally be unable to switch shifts, resulting in her having to miss an entire shift. Any working person knows the difficulties attendant with scheduling changes, which are only amplified in demanding and irregular hour jobs such as the mother's. There was also substantial evidence indicating that taking full days off was reasonably necessary when they occurred. The district court noted that the mother \\\"did her best to find coverage for her blocks of time to avoid taking off more time than necessary to be prepared and attentive in court.\\\" This was supported by the mother's testimony that she made every effort to find people to switch shifts and that doing so was difficult, as there were very few people available to fill her position. What constitutes reasonable justification for missing an entire shift changes when dealing with irregular work hours that do not coincide with court proceedings. In the current case, regardless of whether the mother was able to switch shifts or not, her reason for missing work remained constant \\u2014 replacing the sleep time that would be missed by going to the court proceedings in order to be well rested and prepared for those proceedings. This reason, in light of the mother's efforts to avoid missing full shifts, justifies the five instances where missing her full work shift was unavoidable. Accordingly, the mother's inability to switch shifts, resulting in her having to take off full shifts in five instances, was neither unreasonable nor an unforeseeable and extraordinary occurrence constituting an intervening, superseding cause.\\nWe hold that substantial evidence supported the district court's decision to award restitution as well as the amount awarded. As a result, we will not disturb the district court's award of restitution.\\nIII.\\nCONCLUSION\\nReale has failed to show that his sentence was excessive. Additionally, substantial evidence supported the district court's finding that Reale's criminal conduct was the proximate cause of the mother's lost wages. Accordingly, Reale's judgment of conviction and sentence for sexual abuse of a child under sixteen years of age and the order of restitution are affirmed.\\nJudge GRATTON, concurs.\"}"
\ No newline at end of file
diff --git a/idaho/4377934.json b/idaho/4377934.json
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--- /dev/null
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+"{\"id\": \"4377934\", \"name\": \"STATE, Respondent, v. ALBERT SMITH, Appellant\", \"name_abbreviation\": \"State v. Smith\", \"decision_date\": \"1927-05-18\", \"docket_number\": \"No. 4964\", \"first_page\": \"298\", \"last_page\": \"299\", \"citations\": \"44 Idaho 298\", \"volume\": \"44\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:54:57.204419+00:00\", \"provenance\": \"CAP\", \"judges\": \"Budge, Givens and T. Bailey Lee, JJ., concur.\", \"parties\": \"STATE, Respondent, v. ALBERT SMITH, Appellant.\", \"head_matter\": \"(No. 4964.\\nMay 18, 1927.)\\nSTATE, Respondent, v. ALBERT SMITH, Appellant.\\n[256 Pac. 1118.]\\nDonald B. Good and Thomas & Andersen, for Appellant.\\nFrank L. Stephan, Attorney General, and John W. Cramer, Assistant Attorney General, for Bespondent.\", \"word_count\": \"103\", \"char_count\": \"663\", \"text\": \"TAYLOR, J.\\nDefendant appeals from a judgment of conviction of the unlawful possession of intoxicating liquor, and from an order denying a new trial.\\nWe have thoroughly examined the record, and reach the conclusion that there is substantial evidence to support the verdict, and there appears no error affecting a substantial right of the appellant.\\nThe judgment is affirmed.\\nBudge, Givens and T. Bailey Lee, JJ., concur.\"}"
\ No newline at end of file
diff --git a/idaho/4378964.json b/idaho/4378964.json
new file mode 100644
index 0000000000000000000000000000000000000000..90d86624b088e12b1b2a8f56b1dc94f2f41ae26a
--- /dev/null
+++ b/idaho/4378964.json
@@ -0,0 +1 @@
+"{\"id\": \"4378964\", \"name\": \"GEM STATE LUMBER COMPANY, a Corporation, Appellant, v. SCHOOL DISTRICT No. 8, IN CARIBOU COUNTY, IDAHO, F. L. SHUFELDT and JOHN STAATS, Respondents\", \"name_abbreviation\": \"Gem State Lumber Co. v. School District No. 8\", \"decision_date\": \"1927-05-26\", \"docket_number\": \"No. 4651\", \"first_page\": \"359\", \"last_page\": \"363\", \"citations\": \"44 Idaho 359\", \"volume\": \"44\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:54:57.204419+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJi, concur.\", \"parties\": \"GEM STATE LUMBER COMPANY, a Corporation, Appellant, v. SCHOOL DISTRICT No. 8, IN CARIBOU COUNTY, IDAHO, F. L. SHUFELDT and JOHN STAATS, Respondents.\", \"head_matter\": \"(No. 4651.\\nMay 26, 1927.)\\nGEM STATE LUMBER COMPANY, a Corporation, Appellant, v. SCHOOL DISTRICT No. 8, IN CARIBOU COUNTY, IDAHO, F. L. SHUFELDT and JOHN STAATS, Respondents.\\n[256 Pac. 949.]\\nAlbert A. Mattson and Merrill & Merrill, for Appellant.\\nC. E. Melvin, for Respondents.\", \"word_count\": \"614\", \"char_count\": \"3754\", \"text\": \"T. BAILEY LEE, J.\\nThe defendant, Shufeldt, contracted with defendant School District to erect a schoolhouse for the approximate sum of $2,600. At the request of said contractor, plaintiff, Gem State Lumber Company, furnished certain materials which were all actually used in the construction and improvement of said building. The first of such materials were furnished on July 3, 1922, and the remainder thereafter as ordered until the last were delivered on December 19, 1922. They were charged to the contractor on a running account totaling in value $1,785.30. A balance of $585.30 remaining unpaid, plaintiff filed its lien therefor on December 22, 1922. Suit to foreclose was brought joining said defendants and one John Staats, alleged to be a joint contractor with Shufeldt.\\nThe defendant School District submitted proof to the effect that the schoolhouse was completed on October 4, 1922, and accepted on October 7th; that thereafter Shufeldt entered into a second and independent contract to build a protective shanty over the basement steps, build in certain blackboards and cabinets and varnish the floors; which latter work was done, and materials furnished between October 4th and December 19th, after the completion of the first contract.\\nThe district contended that plaintiff's lien of December 22d having been filed more than sixty days after October 7th was void. The court so found, and judgment without attorney's fees was rendered in favor of plaintiff and against defendant Shufeldt, but denying relief as against defendants School District and Staats. Plaintiff has appealed, contending that it had no notice of the completion of the building on October 4th, or of the separate contracts; and the evidence discloses no such notice, actual or constructive. On the contrary, the evidence is clear that the materials were furnished under successive orders from the contractor, and carried to the school site several miles into the country. No unreasonable interval elapsed between orders, and the nature of the materials furnished after October 4th could only have been considered by plaintiff as proper items in the running account.\\nA similar situation was discussed at length by this court in Valley Lumber Co. v. Driessel, 13 Ida. 662, 13 Ann. Cas. 63, 93 Pac. 765, 15 L. R. A., N. S., 299. That case is decisive of the case at bar; and the rule may be generally stated that where a defendant seeks to defeat plaintiff's right to recover in an action to foreclose a mechanic's lien by showing that the material was furnished on two separate and distinct contracts, and that the lien was not filed in time to secure the claim for the material furnished on the first contract, the burden of proof is on the defendant to show either that the plaintiff had actual notice that the material was furnished and used on two separate contracts, or else show such circumstances as would impute to plaintiff constructive notice, and put him on his inquiry to ascertain that two or more contracts did in fact exist.\\nThe judgment as to defendants Shufeldt and Staats is affirmed, but reversed as to defendant School District, and remanded with instructions to the trial court to enter judgment in favor of appellant against the defendant School District in conformity with the prayer of the complaint, together with a proper attorney's fee. Costs awarded appellant to be taxed against respondent district.\\nWm. E. Lee, C. J., and Budge, Givens and Taylor, JJi, concur.\"}"
\ No newline at end of file
diff --git a/idaho/4381300.json b/idaho/4381300.json
new file mode 100644
index 0000000000000000000000000000000000000000..2736f176a0bc57dd1b235c84d148a1991e9abec9
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"4381300\", \"name\": \"W. A. THOMAS and E. C. THOMAS, Doing Business Under the Firm Name and Style of THOMAS COMPANY, Appellants, v. CHARLES YOUNG and PAULINE YOUNG, Husband and Wife, Respondents\", \"name_abbreviation\": \"Thomas v. Young\", \"decision_date\": \"1926-03-01\", \"docket_number\": \"\", \"first_page\": \"240\", \"last_page\": \"245\", \"citations\": \"42 Idaho 240\", \"volume\": \"42\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T00:57:04.028577+00:00\", \"provenance\": \"CAP\", \"judges\": \"William A. Lee, C. J., and Wm. E. Lee and Givens, JJ., concur.\", \"parties\": \"W. A. THOMAS and E. C. THOMAS, Doing Business Under the Firm Name and Style of THOMAS COMPANY, Appellants, v. CHARLES YOUNG and PAULINE YOUNG, Husband and Wife, Respondents.\", \"head_matter\": \"(March 1, 1926.)\\nW. A. THOMAS and E. C. THOMAS, Doing Business Under the Firm Name and Style of THOMAS COMPANY, Appellants, v. CHARLES YOUNG and PAULINE YOUNG, Husband and Wife, Respondents.\\n[245 Pac. 75.]\\nJ. Ward Arney, for Appellants.\\nEzra R. Whitla, for Respondents.\", \"word_count\": \"1214\", \"char_count\": \"7009\", \"text\": \"FEATHERSTONE, District Judge.\\nThe plaintiffs filed their complaint in the court below, to which complaint defendants interposed a demurrer, which was sustained and from the order sustaining the demurrer plaintiffs appeal.\\nIn the complaint plaintiffs set out in full the contract under which they claim said commission, which is as follows:\\n\\\"Contract.\\n\\\"Coeur d'Alene, Ida. 3/26/1924.\\n\\\"To Thomas Co. Coeur d'Alene, Idaho.\\n\\\"For and in consideration of one Dollar ($1) the receipt of which is acknowledged I hereby appoint you agent to make sale of the real property herein described as Tax No. 854 Recorded 19 Page 157 Book Deeds, a triangular lot Cor. Sherman & Second Ave., Coeur d'Alene, Idaho, for the price of $6500 upon the following terms $1500 cash, $5000 secured by mortgage thereon for 3 years at 7 per cent, and you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf.\\n\\\"In case the above-described property is sold or disposed of within the time specified, I agree to make the purchaser a good and sufficient warranty deed to the same and to furnish a complete abstract of title, if required; and it is further agreed that you shall have and may retain from the proceeds arising from such sale 5 per cent commission on the above price; and 5 per cent of all the consideration for which said property is sold over and above price above specified.\\n\\\"This contract to continue thereafter until terminated by my giving unto you as agent 10 days notice in writing.\\n\\\"Signed \\u2014 'CHAS. YOUNG.\\n\\\"BUSINESS LOT.\\nOwner Chas. Young.\\nAddress Coeur d'Alene, Ida.\\nPrice $6500 Cash $1500 Mortgage $5000 at 7 per cent.\\nStreet Sherman Between 2 & 1st or Elec.\\nFront 22-2nd-150 feet on Sherman.\\nLot Tax No. 854 Addition Coeur d'Alene & King.\\nPaved Yes.\\nSidewalk yes Kind Concrete.\\\"\\nPlaintiffs allege that they fully complied with the terms of the contract and while it was in full force and effect and on or about July 15, 1924, they procured a purchaser for said property who was willing, able and ready to purchase said property under the terms of the contract, and further allege, \\\"That defendants after being advised that plaintiffs had found such purchaser ready and willing to buy as aforesaid, wilfully and fraudulently endeavored to evade and repudiate the liability for said commissions.\\\"\\nDefendants demurred on the grounds \\\"That said complaint does not state facts sufficient to constitute a cause of action, in this:\\n\\\"(a) That it is not alleged, stated or shown as against the defendant, Pauline Young, that she made or entered into any contract whatsoever with the plaintiffs to sell the property described in said complaint, either verbal or in writing, or in any manner, or at all, or that she ever authorized or empowered them in any manner whatsoever to sell said property.\\n\\\"(b) That under the laws of the State of Idaho, no contract for the sale of community property, or any interest therein, is valid unless in writing and signed by both the husband and wife, and the contract set out in the complaint does not pretend to have been signed by the defendant, Pauline Young, and is therefore invalid for any purpose.\\n\\\"(c) That said complaint does not allege, state or show that the plaintiffs notified the defendants that they had a purchaser who was ready, willing and able to purchase the property on the alleged terms; or that said complaint does not allege, state or show that the plaintiffs notified the defendants, or either of them, that they had a purchaser who was ready, willing and able to buy on the alleged terms, or that the purchaser which they alleged to have found offered to take said property on the terms alleged, or to make payment thereof in the sum of $1500 cash, or to make a good and sufficient mortgage for three years at seven per cent to secure the balance, and said complaint does not allege that the plaintiffs or any purchaser secured by them, ever offered to purchase said property on the conditions or the terms named.\\\"\\nAnd other grounds which were not passed upon by the trial court.\\nThe court below sustained the demurrer as to the defendant, Pauline Young, on the grounds set forth in subdivision (a), paragraph 1; and as to both defendants on the ground set forth in subdivision (b) of paragraph 1.\\nWe hold that the ruling of the trial judge that the complaint failed to state a cause of action against the defendant, Pauline Young, was correct. This court has heretofore held that an action can only be prosecuted against a married woman where it is her own contract or for the use and benefit of her separate estate (McFarland v. Johnson, 22 Ida. 694, 127 Pac. 911; Jaeckel v. Pease, 6 Ida. 131, 53 Pac. 399; Bank of Commerce v. Baldwin, 12 Ida. 202, 85 Pac. 497), and there is no contention here that she signed the contract or authorized anyone else to sign for her.\\nThere is no dispute that the defendant Charles Young entered into a written contract with the plaintiffs to pay them certain commissions for securing a purchaser for the property in question, and we are of the opinion that the court below erred in holding that the complaint failed to state a cause of action as to Charles Young by reason of the fact that the property in question was community property. He might have been unable to comply with his part of the contract but that would not release him from his liability to pay plaintiffs for their services if they had fully complied with the terms of the contract. However, before the plaintiffs are entitled to recover the commissions claimed for finding a purchaser, they must either obtain a contract from a proposed purchaser able to buy, whereby he is legally bound to buy on the authorized terms or they must produce to the principal a proposed purchaser who is able, willing and ready to buy upon the terms authorized. It is not necessary that the principal and the purchaser actually be brought face to face, but the principal must be notified that such purchaser has been found, and afforded a full opportunity to make a binding contract for the sale of the land on the authorized terms. If the real estate broker complies with either of the conditions stated he is entitled, unless he has stipulated to the contrary, to his commissions although no sale is finally consummated. In this particular the complaint stated a cause of action against Charles Young and the trial court erred in sustaining a demurrer in his behalf.\\nThe judgment in favor of Pauline Young is affirmed and reversed as to Charles Young, and the cause remanded with instructions to proceed in accordance with this ouinion. Costs awarded to appellants.\\nWilliam A. Lee, C. J., and Wm. E. Lee and Givens, JJ., concur.\"}"
\ No newline at end of file
diff --git a/idaho/4386205.json b/idaho/4386205.json
new file mode 100644
index 0000000000000000000000000000000000000000..8f759091ee0ab96464593503e455a038ebe9e3d8
--- /dev/null
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+"{\"id\": \"4386205\", \"name\": \"BIRD N. HAWLEY, Plaintiff, v. C. A. BOTTOLFSEN, as Governor of Idaho, GEORGE H. CURTIS, as Secretary of State of the State of Idaho, IDAHO WILD LIFE FEDERATION, INC., a Corporation, and G. W. GREBE, Defendants\", \"name_abbreviation\": \"Hawley v. Bottolfsen\", \"decision_date\": \"1940-01-16\", \"docket_number\": \"No. 6727\", \"first_page\": \"101\", \"last_page\": \"108\", \"citations\": \"61 Idaho 101\", \"volume\": \"61\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:17:31.858043+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ailshie, C. J., Givens, J., and Porter and Stevens, District Judges, concur.\", \"parties\": \"BIRD N. HAWLEY, Plaintiff, v. C. A. BOTTOLFSEN, as Governor of Idaho, GEORGE H. CURTIS, as Secretary of State of the State of Idaho, IDAHO WILD LIFE FEDERATION, INC., a Corporation, and G. W. GREBE, Defendants.\", \"head_matter\": \"(No. 6727.\\nJanuary 16, 1940.)\\nBIRD N. HAWLEY, Plaintiff, v. C. A. BOTTOLFSEN, as Governor of Idaho, GEORGE H. CURTIS, as Secretary of State of the State of Idaho, IDAHO WILD LIFE FEDERATION, INC., a Corporation, and G. W. GREBE, Defendants.\\n[98 Pac. (2d) 634.]\\nRalph R. Breshears, for Plaintiff.\\nEdwin Snow, for Defendants.\", \"word_count\": \"2075\", \"char_count\": \"12038\", \"text\": \"BUDGE, J.\\nThe Idaho. Fish and Game Commission Act adopted by vote November 8, 1938, provided for the appointment by the Governor of five commissioners. (Initiative Act, Idaho Sess. Laws, 1939, pp. 1 to 16 ine.) December 10, 1938, Charles C. Gossett, acting Governor appointed the members of the commission pursuant to the act, Bird N. Hawley being appointed, and later qualifying, as commissioner from district number three for the term ending December 9, 1942.\\nOn or about May 4, 1939, the Idaho Wild Life Federation, Inc., filed with C. A. Bottolfsen, as Governor of Idaho, charges in writing against Bird N. Hawley, charging him with inefficiency, negleet of duty, and misconduct in office as commissioner of the Idaho Fish and Game Commission and an answer was filed denying the charges. A public hearing was had upon the charges before Honorable C. A. Bottolfsen, Governor of Idaho, in his office on May 16 and 17 and June 8, 1939, resulting in findings and a decision by the Governor by which Bird N. Hawley was removed from office as commissioner of the Idaho Fish and Game Commission.\\nOn June 8, 1939, G. W. Grebe was appointed by Governor Bottolfsen as Commissioner of the Idaho Fish and Game Commission from district number three.\\nJune 26, 1939, the plaintiff Bird N. Hawley made application to this court for a writ of review, which writ issued July 7, 1939, seeking review and annulment of the Governor's order of removal upon the grounds that his action was irregular, arbitrary, capricious, and in excess of his jurisdiction, and that by removing plaintiff from office he exceeded the jurisdiction and power and authority of the Governor of the state of Idaho, and praying that this court review the record of said proceedings, declare and adjudge the acts of the Governor removing plaintiff from office and appointing G. W. Grebe as commissioner null and void and of no force or effect.\\nThe proceedings herein were held under the authority conferred upon the Governor by section 5, article 4 of the Constitution, providing:\\n' ' The supreme executive power of the state is vested in the governor, who shall see that the laws are faithfully executed. ' ' and the provisions of subdivision (e) of section 1 of the initiative measure known as the Fish and Game Commission Act (Sess. Laws, 1939, p. 5) as follows:\\n\\\"(e) Removal of Commissioners. The Governor may remove a commissioner for inefficiency, neglect of duty, misconduct in office, or upon his removal from the District from which he was appointed, delivering to him a copy of the charges and affording him an opportunity of being publicly heard in person or by counsel, in his own defense, upon not less than ten days' notice. Such hearing to be held publicly in the office of the Governor at Boise, Idaho.\\n\\\"If such commissioner shall be removed, the Governor shall file in the office of the Secretary of State a complete statement of all charges made against such commissioner, and his findings thereon, together with a complete record of the proceedings. ' '\\nIt appears from the record and is conceded that written charges against plaintiff were filed with the Governor; that a copy of the charges was delivered to plaintiff; that plaintiff was afforded an opportunity of being publicly heard, both in person and by his counsel, in his own defense, upon not less than ten days' notice; that such hearing was held in the office of the Governor at Boise, Idaho, and that the Gov ernor filed in the office of the Secretary of State a complete statement of all charges made against plaintiff, and his findings thereon, together with a complete record of the proceedings.\\nThe grounds set forth in the petition praying review and annulment were to the effect, (1) that the charges upon which the Governor acted are not legal cause for plaintiff's removal, and (2) that there was no evidence adduced to sustain the charges upon which the order of removal is based.\\nPursuant to the writ issued by the court, return was made by the Secretary of State and the entire record transmitted to this court, and a motion to quash the writ was then filed. Defendants' position that the scope of the inquiry in this proceeding is limited to the question of whether the Governor regularly pursued the authority and discretion imposed upon him by law, reducing the controversy to two questions: First \\u2014 Do the charges as filed constitute charges of inefficiency, neglect of duty, or misconduct in office? \\u2014 and, second \\u2014 \\\"Was any evidence adduced to support the charges sustained by the order of removal? \\u2014 appears to be correct in view of the authorities hereinafter referred to.\\nThe function of the writ of review is stated in section 13-208, I. C. A., as follows:\\n\\\"The review upon this writ can not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.''\\nThe foregoing statute has been before this court on numerous occasions and the pronouncements have been consistently in harmony with the foregoing statute and to the effect that the sole business of this court is to inquire into the single question of jurisdiction. That is, as long as the action of the Governor in removing an officer is within the limits of the power conferred upon him, that is, if he acted within his jurisdiction, the courts will not interfere to arrest his action or to review the proceedings, except to determine the question of jurisdiction. The Governor, so far as the courts are concerned, is the exclusive judge of the sufficiency of the proof of the charges, and the court will not review the- facts upon which he acted except for the purpose of ascertaining if there is any evidence which supports his findings and order. In State Insurance Fund v. Hunt, 52 Ida. 639, 17 Pac. (2d) 354, the rule is stated:\\n\\\"Upon application for a writ of review, the sole business of this court is to inquire into the single question of jurisdiction. (C. S. see. 7249 (Now sec. 13-208 I. C. A.), Beus v. Terrell, 46 Ida. 635, 269 Pac. 593; Mays v. District Court, 40 Ida. 798, 237 Pac. 700.)\\\"\\nIn Beus v. Terrell, 46 Ida. 635, 269 Pac. 593, we held:\\n\\\"As set out in C. S. sec. 7249 quoted supra, the review in such cases is limited to the sole question of whether or not the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer. ' '\\nIn Lansdon v. State Board of Canvassers, 18 Ida. 596, 111 Pac. 133, this court said:\\n\\\"A writ of review brings up the record of the tribunal, board or body whose acts are to be examined, and is issued for the purpose of reviewing the law applicable to the case, instead of examining the facts of the case, except in so far as an examination of the facts is necessary in the determination of the single question of jurisdiction. The purpose of the review is to determine primarily the law applicable to the case rather than the facts of the case.\\\" (Emphasis inserted.)\\nIn McConnell v. State Board of Equalization, 11 Ida. 652, 83 Pac. 494, the rule is quite clearly stated:\\n\\\"Under a writ of review, errors and mistakes of judgment of a board as to the value of property that it is authorized to assess cannot be reviewed; neither can such writ be invoked for the purpose of reviewing the facts upon which the inferior tribunal, board or officer acted except for the purpose of ascertaining the fact of jurisdiction.\\n\\\"The provisions of such writ is limited to a review of questions of law involved in the matter, and the court must confine its inquiry to the question as to whether or not the action complained of was beyond and in excess of the jurisdiction conferred on the tribunal, board or officer.\\\" (Emphasis inserted.)\\nIn Sweeny v. Mayhew, 6 Ida. 455, 56 Pac. 85, it is said:\\n\\\"As to how far the evidence may be considered in a proceeding of this kind, the rule is correctly and succinctly stated in 4 Encyclopedia of Pleading and Practice commencing at page 262, as follows: 'An exception to the rule that the sufficiency of the evidence will not be reviewed is made when the question is whether jurisdictional facts were or were not proved. This exception arises out of the most important office and function of the writ \\u2014 the keeping of inferior courts and tribunals within proper bounds. \\u2022 If the decision of the inferior tribunal as to the sufficiency of the evidence to establish jurisdictional facts were not reviewable, the writ of certiorari would be of no avail as a remedy against an assumption of jurisdiction. And, for the purpose of enabling the reviewing court to determine whether jurisdictional facts were established, it will require a return to be made of the evidence upon which such facts are based. ' ' '\\nIn Northwest Light etc. Co. v. Alexander, 29 Ida. 557, 160 Pac. 1106, the court said:\\n\\\"We think the rule to be well settled that where state elective officers are invested with certain discretion, involving the exercise of judgment in the performance of their official duties, no court has the right by writ of certiorari to interpose its judgment or influence their action. To do so would be usurpation.\\\"\\nThe rule appears to be briefly summed up in People v. Coffey, 237 Mich. 591, 213 N. W. 460, 52 A. L. R. 1, wherein it is stated:\\n' ' The governor holds an exalted office. To him and to him alone the soverign people have committed the power and right to determine the facts in the proceeding before us. His decision of disputed questions of fact is final. His finding of fact, if it has evidence to support it, is conclusive on this court. It would be unbecoming in us to impugn his motives and unseemly and unlawful to invade his discretion.\\\" (Emphasis inserted.)\\nSee, also, First Nat. Bank of Weiser v. Washington County, 17 Ida. 306, 105 Pac. 1053; Utah Association of Credit Men v. Budge, 16 Ida. 751, 102 Pac. 390, 691; State v. McGarry, 21 Wis. 496; Harrington v. Smith, 114 Kan. 262, 217 Pac. 270; State v. Sanchez, 32 N. M. 265, 255 Pac. 1077, 1087; Cameron v. Parker, 2 Okl. 277, 38 Pac. 14.\\nWe believe the sound doctrine which may be gathered from the foregoing and other authorities is that where the record of the evidence is part of the record furnished on writ of review, this court will examine the evidence to determine whether the Governor has regularly pursued his jurisdiction only to the extent of ascertaining whether evidence was adduced, which, in the mind of a reasonable person, if uncontradicted would support a legal cause of removal charged.\\nPlaintiff urges that the charges upon which the Governor acted are not legal cause for removal, are not sufficient in law, are too general and are imperfectly stated. The manner of pleading was not questioned in any way at any time until the proceedings reached this court on review.\\nExamination of the record discloses that the charges filed state grounds of removal specified in subdivision (e) of section 1, Fish and Game Commission Act (Sess. Laws 1939, p. 5) all relating to the duties of a commissioner of the Idaho Fish and Game Commission and to the conduct of the plaintiff in such office. Among the grounds specified in subdivision (e) section 1 of the Fish and Game Commission Act the general course of conduct termed \\\"inefficiency\\\" and \\\"misconduct in office\\\" on the part of plaintiff in matters connected with his official duties as commissioner were both generally charged and certain acts particularly set forth, and the record discloses that there is evidence therein which may reasonably be said to support such charges. It follows therefore that the proceedings below must be affirmed. It is so ordered.\\nAilshie, C. J., Givens, J., and Porter and Stevens, District Judges, concur.\"}"
\ No newline at end of file
diff --git a/idaho/4404098.json b/idaho/4404098.json
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index 0000000000000000000000000000000000000000..56eb1bb227bf4091b593edb5c485ea895a35d905
--- /dev/null
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+"{\"id\": \"4404098\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Anthony Carmen GALAVIZ, Defendant-Appellant\", \"name_abbreviation\": \"State v. Galaviz\", \"decision_date\": \"1983-02-08\", \"docket_number\": \"No. 14062\", \"first_page\": \"328\", \"last_page\": \"332\", \"citations\": \"104 Idaho 328\", \"volume\": \"104\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:13:41.634348+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C.J., and BURNETT, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Anthony Carmen GALAVIZ, Defendant-Appellant.\", \"head_matter\": \"658 P.2d 999\\nSTATE of Idaho, Plaintiff-Respondent, v. Anthony Carmen GALAVIZ, Defendant-Appellant.\\nNo. 14062.\\nCourt of Appeals of Idaho.\\nFeb. 8, 1983.\\nDouglas R. Whipple of Herman E. Bedke, Burley, for defendant-appellant.\\nDavid H. Leroy, Atty. Gen. by Lynn E. Thomas, Sol. Gen., and Lance D. Churchill, Deputy Atty. Gen., for plaintiff-respondent.\", \"word_count\": \"2478\", \"char_count\": \"15032\", \"text\": \"SWANSTROM, Judge.\\nAnthony Carmen Galaviz and a companion committed two armed robberies in the city of Burley on July 23, 1978. Apprehended that day with a pistol and the stolen money in his possession, Galaviz later pled guilty to both counts of robbery. After reviewing the presentence report, which indicated that Galaviz, then twenty-two years of age, had a prior juvenile and misdemeanor record, the district court sentenced him to two five-year concurrent terms for the robberies on September 1, 1978. In addition, pursuant to I.C. \\u00a7 19-2520, the court imposed a three-year term, to be served consecutively, for Galaviz's use of a firearm during the crimes.\\nNearly two years later, Galaviz filed a motion in the district court under Idaho Criminal Rule 35 to correct what he claimed was an illegal sentence. Galaviz based his claim on the Double Jeopardy Clause of the Fifth Amendment, asserting that the court illegally had exacted multiple penalties by imposing the two five-year terms for armed robbery and the additional sentence for the use of a firearm. Galaviz also asserted that the imposition of an enhanced sentence under I.C. \\u00a7 19-2520 violated I.C. \\u00a7 18-301. Finally, Galaviz challenged his sentence on due process grounds, contending that the information charging him with armed robbery did not give proper notice of the state's intention to rely on I.C. \\u00a7 19-2520 for enhancement of his sentence. Galaviz contended that the lack of notice deprived him of the basis for making a knowing and intelligent decision to plead guilty to the charges.\\nThe district judge conducted a hearing and considered each of the issues raised by Galaviz. After the court entered its order denying Galaviz's motion, this appeal was taken and the same issues are raised again. We affirm the order of the district court.\\nI\\nThe Fifth Amendment's Double Jeopardy Clause applies to the states through the Fourteenth Amendment. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The guarantee against double jeopardy encompasses three distinct constitutional protections. \\\"It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense.\\\" North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Galaviz contends that by imposing an \\\"additional\\\" sentence for his use of a firearm the district court violated the third of these guarantees.\\nGalaviz predicates this argument upon the language of the judgment of conviction. After imposing a five-year term for each count of robbery, the judgment continues:\\nIT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant receive an additional three (3) years pursuant to I.C. \\u00a7 19-2520 for the use of a firearm in the commission of the aforesaid crimes, said term to run consecutive to Counts I & II.\\nGalaviz argues that the use of the word \\\"additional\\\", in this paragraph shows that he was illegally sentenced twice for the same underlying offense.\\nOur Supreme Court has noted that I.C. \\u00a7 19-2520 does not define or create a separate offense, but is merely a sentence enhancing statute that comes into play after a defendant is convicted of one of the enu merated offenses. State v. Cardona, 102 Idaho 668, 670, 637 P.2d 1164, 1166 (1981). In recent years many state and federal courts have had occasion to address constitutional challenges to statutes which, like I.C. \\u00a7 19-2520, provide for enhanced sentences for felonies committed with the aid of firearms or other deadly weapons. In each case such statutes have survived arguments that the imposition of enhanced penalties violates the constitutional prohibition against multiple punishments. See e.g., May v. Sumner, 622 F.2d 997 (9th Cir.1980); Cordova v. Romero, 614 F.2d 1267 (10th Cir.1980); State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980); People v. Henry, 14 Cal.App.3d 89, 91 Cal.Rptr. 841 (1970); State v. Davison, 614 P.2d 489 (Mont.1980); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975); State v. Gabaldon, 92 N.M. 230, 585 P.2d 1352 (N.M.App.1978); State v. Foster, 91 Wash.2d 466, 589 P.2d 789 (1979).\\nThe rationale the courts generally have adopted, in upholding enhanced penalty statutes, is that the statutes do not provide for multiple penalties but rather provide for a single more severe penalty when an offense is committed with a deadly weapon. In May v. Sumner, supra, for example, the appellant's punishment on each of two counts of robbery was enhanced pursuant to Cal.Pen.Code \\u00a7 12022.5 because the jury found that he had used a firearm during the commission of both crimes. Rejecting a double jeopardy attack on the statute, the court concluded:\\nThe double jeopardy clause does not limit the legislature's power to impose sentences for a given crime. It is uncontested that the California legislature could have created a single offense which provided one sentence for simple robbery, a greater sentence for robbery with a deadly weapon, and a still greater sentence if the deadly weapon were a firearm. California chose to accomplish this result by two statutes instead of one. To strike down the scheme adopted by California in this case would \\\"operate not as a substantive or penological restriction, but as a literary critique of the legislature.\\\" Cordova v. Romero, supra at 1269, quoting Note, Twice in Jeopardy, 75 Yale L.J. 262, 302 (1965).\\n622 F.2d at 999.\\nThe U.S. Supreme Court recently has laid to rest any doubt about the result reached in the cases cited above. In Missouri v. Hunter, - U.S. -, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Supreme Court reversed a decision by the Missouri Supreme Court, which had held that Hunter could not be convicted in the same trial of both robbery in the first degree and armed criminal action, where the same acts of the defendant had been used to convict him of each charge. The U.S. Supreme Court upheld Missouri statutes which provided cumulative punishment for two separate crimes arising out of the same criminal conduct. The Court held that where the cumulative punishment is within the legislature's intent, it does not violate the Double Jeopardy Clause of the Fifth Amendment. At page 678 of 103 S.Ct., the Supreme Court said:\\nWith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.\\nAt page 678 of 103 S.Ct., the Court summarized its holding as follows:\\nWhere, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the \\\"same\\\" conduct under Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306] a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.\\nThe Idaho legislature has chosen to fix different penalties for the crime of robbery \\u2014 a lesser penalty where the crime is committed without the use of a deadly weapon, and a greater one where a deadly weapon is involved. The legislature has adopted two statutes rather than one to accomplish this result.\\nThe Idaho legislature clearly has intended to authorize the courts, under I.C. \\u00a7 19-2520, to impose additional punishment for robbery where that crime is accomplished with use of a firearm. The penalty actually imposed upon Galaviz was well within the limits intended by the legislature. Consequently we hold that the sentence in this case did not violate the Double Jeopardy Clause of the Fifth Amendment.\\nII\\nWe next consider Galaviz's contention that imposing a five-year sentence for robbery under I.C. \\u00a7 18-6503 and an additional, consecutive three-year term under \\u00a7 19-2520 violated \\u00a7 18-301 of the Code.\\nIn State v. Horn, 101 Idaho 192, 197, 610 P.2d 551, 556 (1980), our Supreme Court said:\\nIdaho's multiple punishment statute, I.C. \\u00a7 18-301, exceeds the scope of the constitutional constraints on double jeopardy. Under \\u00a7 18-301 a defendant cannot be punished twice for the same act, rather than the same crime. If defendant's single action creates liability under two criminal statutes, defendant can only be punished under one statute. See State v. Brusseau, 96 Idaho 558, 532 P.2d 563 (1975). [Emphasis original.]\\nIt is important to note, however, that this statement by the court was part of a discussion as to whether the defendant Horn could be convicted for two crimes, robbery and kidnapping, arising out of one criminal episode. Although Horn had been convicted of each crime, the district judge imposed a sentence only for robbery. On appeal the Supreme Court upheld both convictions and the sentence.\\nIn our view, I.C. \\u00a7 18-301 prohibits double punishment where a single act results in the commission of two or more crimes as defined by the legislature. Here there was only one crime \\u2014 the robbery. As noted above, the legislature did not define or create any separate offense by enacting I.C. \\u00a7 19-2520; it simply provided enhanced punishment where certain existing crimes were committed by use of firearms.\\nMoreover, to the extent that there is any conflict between \\u00a7 18-301 and \\u00a7 19-2520, the latter statute is a more recent, special enactment. It specifically applies to the particular circumstances of this case. As such, under well-established principles of statutory construction, it must be controlling over the older and more general statute. See Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979); State v. Roderick, 85 Idaho 80, 375 P.2d 1005 (1962). See also People v. Henry, 14 Cal.App.3d 89, 91 Cal.Rptr. 841 (1970). We hold that \\u00a7 18-301 is not a bar to the imposition of the enhanced sentence in this case.\\nIll\\nFinally, we turn to the contention that the prosecutor's information in this case failed to inform Galaviz of the state's intention to seek enhanced punishment under I.C. \\u00a7 19-2520. Our Supreme Court has stated that a criminal information must \\\"properly inform an accused of the exact nature of the charge against him, so that (1) the accused has the means to prepare a proper defense, and (2) he can protect himself against subsequent prosecution based on the commission of the same acts.\\\" State v. McKeehan, 91 Idaho 808, 814, 430 P.2d 886, 892 (1967). Not only is this specificity requirement statutory, but it is also rooted deeply in constitutional guarantees. See State v. Gumm, 99 Idaho 549, 551, 585 P.2d 959, 961 (1978). The Fourteenth Amendment to the United States Constitution requires that an accused be given notice of the specific charge against him and be given \\\"a chance to be heard in a trial of the issues raised by that charge.\\\" Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948).\\nThe information filed against Galaviz contains two counts, both of which clearly and unequivocally accuse him of the crime of robbery, and set forth the essential facts of the crimes. Both counts also specify that Galaviz used a pistol in commission of the crimes. As earlier noted, I.C. \\u00a7 19-2520 does not define a separate substantive offense. It is intended only to provide for an enhanced penalty after the accused has been convicted of the underlying offense. Because the statute does not create a substantive offense, it was not necessary for the information to refer specifically to the statute.\\nIn State v. Angus, 581 P.2d 992 (Utah 1978), the Utah Supreme Court addressed an argument similar to the one Galaviz has made here.\\nWe have no disagreement with the proposition that fairness and due process of law require that the information against [the accused] be sufficient to clearly state the charge and bring him within the statutory penalty therefor. But his argument that the information must specifically set forth that the enhancement of penalty would be imposed if he was convicted is without merit. The punishment for a crime is not and has never been considered a part of the pleading charging a crime. The information is sufficient if it alleges either: (1) that the defendant is being charged under the enhancement statute, or (2) that a firearm was used in the commission of the offense charged in the information. The trial by jury is to determine the guilt or innocence of the defendant. After conviction, the penalty to be imposed is an entirely separate proposition to be determined by the court as a matter of law on the basis of the penalty prescribed by the statutes.\\n581 P.2d at 995; accord, State v. Davison, 614 P.2d 489, 497 (Mont.1980).\\nWe agree with the view expressed by the courts in Angus and Davison. Moreover, in this case, the district judge specifically found that, at Galaviz's arraignment and before the guilty plea was entered, Galaviz had been advised by his own attorney, as well as by the court, that the penalty enhancement statute would apply. When the defendant's plea was taken, the judge again discussed I.C. \\u00a7 19-2520 with Galaviz to determine that he understood the possible consequences of his plea. We uphold the judge's conclusion that Galaviz was fully aware of the enhanced penalty provisions of I.C. \\u00a7 19-2520 before he entered his guilty plea, and that Galaviz made a knowing and intelligent decision to plead guilty.\\nThe judgment of conviction and sentences are affirmed.\\nWALTERS, C.J., and BURNETT, J., concur.\\n. Idaho Code \\u00a7 19-2520 provides in part:\\nAny person convicted of a violation of . . [enumerated felonies], or 18-6501 (robbery defined), Idaho Code, who carried, displayed, used, threatened, or attempted to use a firearm or other deadly weapon while committing the crime, shall, in addition to the sentence imposed for the commission of the crime, be imprisoned in the state prison for not less than three (3) nor more than fifteen (15) years. Such additional sentence shall run consecutively to any other sentence imposed for the above cited crimes.\\nAt the time relevant to Galaviz's convictions, this statute applied to felonies involving firearms only, not other deadly weapons.\\n. Idaho Code \\u00a7 18-301 states:\\nAn act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.\"}"
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+"{\"id\": \"4408040\", \"name\": \"MAGIC VALLEY POTATO SHIPPERS, Plaintiff-Appellant, v. CONTINENTAL INSURANCE and Merrill Paslay Agency, Defendants-Respondents\", \"name_abbreviation\": \"Magic Valley Potato Shippers v. Continental Insurance\", \"decision_date\": \"1987-06-16\", \"docket_number\": \"No. 16622\", \"first_page\": \"1073\", \"last_page\": \"1077\", \"citations\": \"112 Idaho 1073\", \"volume\": \"112\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:38:05.230851+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHEPAED, C.J., and DONALDSON, BISTLINE and HUNTLEY, JJ., concur.\", \"parties\": \"MAGIC VALLEY POTATO SHIPPERS, Plaintiff-Appellant, v. CONTINENTAL INSURANCE and Merrill Paslay Agency, Defendants-Respondents.\", \"head_matter\": \"739 P.2d 372\\nMAGIC VALLEY POTATO SHIPPERS, Plaintiff-Appellant, v. CONTINENTAL INSURANCE and Merrill Paslay Agency, Defendants-Respondents.\\nNo. 16622.\\nSupreme Court of Idaho.\\nJune 16, 1987.\\nHarry C. DeHaan, Twin Falls, for plaintiff-appellant.\\nQuane, Smith, Howard & Hull, Boise, for defendant-respondent Continental Ins., David E. Day argued.\\nHarwood & McColl, Boise, for defendant-respondent Paslay Agency, Bart W. Harwood argued.\", \"word_count\": \"2187\", \"char_count\": \"13605\", \"text\": \"BAKES, Justice.\\nThis is an appeal by Magic Valley Potato Shippers (MVP) from summary judgment orders entered in favor of respondents Continental Insurance (Continental) and the Merrill Paslay Agency (Paslay). After reviewing the facts in a light most favorable to MVP, the party opposing the motion, Jones v. Jones, 100 Idaho 510, 601 P.2d 1 (1979), we have concluded that the district court did not err in granting summary judgment to Continental Insurance and the Merrill Paslay Agency. Meridian Bowling Lanes, Inc. v. Meridian Athletic Ass'n, 105 Idaho 509, 670 P.2d 1294 (1983).\\nThe factual record produced in this case is based on affidavits submitted by the parties. Those affidavits demonstrate that MVP entered into a contract with Harper to purchase a quantity of potatoes which were stored in Harper's storage facility. MVP initiated performance under the contract by picking up approximately $25,000 worth of Harper's potatoes; however, MVP failed to pay for those potatoes. MVP notified Harper that it would not pick up the balance of the potatoes covered by the contract alleging the potatoes were nonconforming. Due to MVP's failure to perform under the sales contract, the potatoes which were not picked up deteriorated and could not be resold, and Harper was unable to pay its bank loans and lost its farm property to the bank. As a result, Harper sued MVP for breach of contract in failing to (1) pay for the $25,000 worth of potatoes which they did pick up; (2) breach of contract for the balance of the potatoes which they had contracted to buy but refused to pick up; (3) consequential damages; (4) lost income; and (5) punitive damages.\\nMVP owned two insurance policies issued by Continental and sold by Paslay. The primary policy was a comprehensive business liability policy and the second was a comprehensive umbrella liability policy. MVP tendered the defense of the action to defendant respondent Continental pursuant to the liability policies. Continental refused to defend the suit, asserting several defenses, including that the Harper v. MVP lawsuit was an action arising from contractual liability and was specifically excluded under the policy coverage. MVP defended the suit by Harper and lost. Harper recovered $220,000 in compensatory damages, $130,000 in punitive damages, and $1,500 in costs and $48,000 in attorney fees.\\nMVP then brought suit against Continental and Paslay claiming (1) MVP was covered by the Continental policies; (2) that Continental had a duty to defend the suit and was therefore liable for attorney fees incurred; (3) Continental's refusal to defend the suit had resulted in the accumulation of additional damages for which Continental was liable; and (4) if Continental is not liable, then Paslay is liable to MVP based on Paslay's representations as to the extent of Continental's policy coverage.\\nThe claim against Paslay was based on the following allegations: Paslay acted as MVP's insurance agent for a number of years. MVP had previously purchased liability insurance through Paslay from the National Farmers Union Property & Casualty Company (NFU). In 1984, MVP, at Paslay's suggestion, replaced the NFU policies with the policies from Continental. At this time Paslay represented that the Continental policy's coverage was as extensive as the NFU policies they replaced. MVP claims that the NFU policy would have covered MVP's liabilities in the Harper suit, and thus Paslay misrepresented the extent of the Continental policy. Paslay defended by claiming that the Continental policy was as comprehensive as the NFU policy. The respondents filed motions for summary judgment.\\nOral arguments and affidavits were presented to the court for its consideration. After reviewing the record and hearing oral argument the district court granted summary judgment to Continental stating that \\\"the original case [Harper v. MVP] in this matter giving rise to this particular case was a case dealing with contract issues, and that the insurance policy issued by Continental has a specific exclusion for contractual liability, and therefore find that the summary judgment motion filed by Continental is well-founded and will issue that summary judgment.\\\" The district court also granted summary judgment to Paslay stating that \\\"I find that the [Continental] policy was as extensive as the previous [NFU] policy.\\\"\\nI\\nThe relevant portions of the primary Continental policy state:\\n\\\"COVERAGE B \\u2014 PROPERTY DAMAGE LIABILITY\\n\\\"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of\\n\\\"B. property damage \\\"to which this insurance applies, caused by an occurrence____\\n\\\"Exclusions\\n\\\"This insurance does not apply:\\n\\\"(a) to liability assumed by the Insured under any contract or agreement .;\\n\\\"(k) to property damage to\\n\\\"(3) property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control;\\n\\\"(m) to loss of use of tangible property which has not been physically injured or destroyed resulting from \\\"(1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement, .\\n\\\"VI. DEFINITIONS\\n\\\"When used in this endorsement (including endorsements forming a part hereof):\\n\\\" 'occurrence' means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured;\\n\\\" 'property damage' means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.\\\" (Emphasis added.)\\nMVP's claim against Continental can only be viable if the Harper v. MVP lawsuit involved \\\"property damages\\\" caused by an \\\"occurrence.\\\" Further, from its clear wording, the insurance policy excludes coverage to MVP of \\\"liability assumed by the insured under any contract or agreement____\\\" MVP argues that, because it failed to pick up the potatoes identified in the contract, those potatoes spoiled and that this resulted in property damage to Harper which was, at least in part, the underlying basis for the Harper v. MVP lawsuit.\\nA review of the record does not support MVP's claim that at least part of the underlying Harper/MVP lawsuit involved property damage. The amended complaint filed in the Harper/MVP suit shows that Count I was for breach of contract for failure of MVP to pay for the potatoes picked up by MVP. Count II was for breach of contract seeking damages for the potatoes covered by the contract which MVP had failed to pick up. Counts III and IV sought consequential and economic damages resulting from financial losses suffered by Harper directly attributable to MVP's breach of the contract. Count V sought punitive damages to punish and deter MVP for its intentional breach of the contract. The instructions given in the Harper v. MVP case described Harper's claims against MVP as follows:\\n\\\"In this case the plaintiff, E.S. Harper Co., Inc., claims that these are the facts: \\\"'That the E.S. Harper Company contracted with the Magic Valley Potato Shippers to sell their potatoes for a minimum guaranteed price of $8.00 less some tare. That the Magic Valley Potato Shippers refused to pick up the Harper's potatoes when asked to and continued to delay until it was so late, very few of the Harper potatoes could be salvaged and resold.\\n\\\" 'Thus, the plaintiff seeks to recover from the defendant: the payment for the amount of potatoes that Harper's had in storage for Magic Valley Potato Shippers under their contract at the minimum price of $8.00 less tare. For the loss of Harper's equity in their farm which the bank took back due to the Harper's inability to make payments on their loan. Plus, the loss of income for Ed Harper and Flo Harper. And last, for punitive damage to prevent the Magic Valley Potato Shippers from treating other farmers in a similar manner.' \\\"\\nBoth the amended complaint and the district court's instructions to the jury indicate that the Harper v. MVP lawsuit was an action for breach of contract, and did not involve any claim for damages in tort. MVP has failed to demonstrate that damage to property was at issue in the underlying suit. The Harper v. MVP lawsuit was a contract action, and there was no allegation of either \\\"property damage\\\" or an \\\"occurrence\\\" within the meaning of the policy. Additionally, the liability in Harper v. MVP was \\\"assumed by [MVP] under [its] contract\\\" with Harper, and thus the contract exclusion was applicable. There were no genuine issues of material fact on the policy coverage issues and, accordingly, the district court's granting of summary judgment for Continental Insurance is affirmed.\\nII\\nMVP's complaint against Paslay alleged that he represented to MVP that the Continental insurance policy coverage was as extensive or more extensive than the NFU policy coverage. A party alleging fraudulent misrepresentation has the burden of proving all elements by clear and convincing evidence. Faw v. Greenwood, 101 Idaho 387, 613 P.2d 1338 (1980). After reviewing the evidence in a light most favorable to MVP, it is clear that MVP has failed to carry this burden.\\nWe find after comparing comprehensive business policies from Continental Insurance and comprehensive business policies from National Farmers Union Property & Casualty Company, it is evident that the two policies are virtually identical. With regard to the comprehensive umbrella liability policies, MVP failed to introduce its last National Farmers Union Property & Casualty Company policy into the record, and the record does not contain a copy of the Continental Comprehensive Umbrella Policy. Thus, we cannot compare those policies. It is evident that MVP has failed to carry its burden of proving all elements of its claim of misrepresentation by clear and convincing evidence. The granting of summary judgment by the district court is affirmed.\\nCosts to respondent. No attorney fees.\\nSHEPAED, C.J., and DONALDSON, BISTLINE and HUNTLEY, JJ., concur.\\n. It should also be noted that MVP's claim against Continental does not extend to the comprehensive umbrella liability policy because the claim must reach a total of $500,000 before it will be covered by that policy. Harper recovered less than $500,000 in damages from MVP.\\n. The primary general liability policies which are at issue are set out below. Both exclude liability coverage derived from contract actions. The primary Farmers policy provides liability coverage as follows:\\n\\\"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of\\nA. bodily injury, or\\nB. property damage\\nto which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or defend any suit after the applicable limit of the company's liability has been exhausted by payment of judgments or settlements.\\\"\\nIt specifically excludes coverage for liability:\\n\\\"assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured's products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner.\\\"\\nThe primary Continental policy procured for appellant by Paslay in 1984 provides liability coverage as follows:\\n\\\"I. COVERAGE A \\u2014 BODILY INJURY LIABILITY\\n\\\"COVERAGE B \\u2014 PROPERTY DAMAGE LIABILITY\\n'The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of\\nA. bodily injury or\\nB. property damage\\nto which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company's liability has been exhausted by payment of judgments or settlments.\\\"\\nIt specifically excludes coverage for liability:\\n\\\"assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured's products or a warranty that work performed by or on behalf of the named insured will be done in a workmenlike manner.\\\"\"}"
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+"{\"id\": \"4411539\", \"name\": \"Lyle Edison WHITEHAWK, Petitioner-Appellant, v. STATE of Idaho, Respondent\", \"name_abbreviation\": \"Whitehawk v. State\", \"decision_date\": \"1989-06-29\", \"docket_number\": \"No. 17638\", \"first_page\": \"831\", \"last_page\": \"834\", \"citations\": \"116 Idaho 831\", \"volume\": \"116\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:21:04.745253+00:00\", \"provenance\": \"CAP\", \"judges\": \"BURNETT, J., and HART, J., pro tern., concur.\", \"parties\": \"Lyle Edison WHITEHAWK, Petitioner-Appellant, v. STATE of Idaho, Respondent.\", \"head_matter\": \"780 P.2d 153\\nLyle Edison WHITEHAWK, Petitioner-Appellant, v. STATE of Idaho, Respondent.\\nNo. 17638.\\nCourt of Appeals of Idaho.\\nJune 29, 1989.\\nE. Lee Schlender, Hailey, for petitioner-appellant.\\nJim Jones, Atty. Gen., Michael J. Kane, Deputy Atty. Gen., for respondent.\", \"word_count\": \"1486\", \"char_count\": \"9625\", \"text\": \"SWANSTROM, Judge.\\nLyle Whitehawk appeals from an order of the district court summarily dismissing his application for post-conviction relief. The dispositive issue on appeal is whether the application presented any genuine issues of material fact. We determine such issues do exist. We vacate the order and remand for an evidentiary hearing on the petition.\\nWhitehawk was originally charged with rape. He was found guilty of that charge in a jury trial but the verdict was set aside by the trial court on the grounds that the jury panel had been improperly selected. A new trial was ordered.\\nA few days before the new trial was to start, pursuant to a plea agreement, White-hawk entered a plea of guilty to an amended charge of lewd conduct with a child under the age of sixteen. The court sentenced Whitehawk to an indeterminate sixteen year term. Whitehawk appealed. We affirmed the judgment of conviction, including the sentence, State v. Whitehawk, 116 Idaho 827, 780 P.2d 149 (Ct.App.1989) (Whitehawk I).\\nWhile his direct appeal was pending, Whitehawk filed an application for post-conviction relief. Whitehawk raised numerous grounds for relief stemming from asserted sentencing errors and from the treatment Whitehawk received after he was incarcerated. These grounds were generally denied in an answer filed by the state. This answer contained no motion to dismiss or any allegation that the application failed to raise a genuine issue of material fact. A time was set for a hearing on the application. The state contends that the parties subsequently stipulated to a waiver of the hearing. However, White-hawk has argued \\u2014 and we are persuaded by the record to agree \\u2014 that Whitehawk did not waive his right to an evidentiary hearing, only his right to oral argument on the legal issues submitted to the court. The court then considered the application and issued its memorandum decision. The court found that no genuine issue of material fact existed and determined that the state's denial was sufficient to constitute a request for dismissal. The application was then dismissed under I.G. \\u00a7 19-4906(c) which states:\\nThe court may grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.\\nOn appeal, Whitehawk argues that the district court erred in disposing of his application without conducting an evidentiary hearing. In particular, he argues: (1) that the summary dismissal was procedurally improper without a motion by the state; (2) that the uncontroverted facts established grounds for relief including the right to be free of cruel and unusual punishment; (3) that the district court failed to consider his mental and physical condition when the court sentenced Whitehawk and when the court denied Whitehawk's application for relief from incarceration; (4) the court erred in concluding that he was a danger to society; and (5) that the imposition of an indeterminate sixteen year sentence was an abuse of discretion.\\nWe begin by noting that the scope of post-conviction relief is limited. An application for post-conviction relief is not a substitute for an appeal. I.C. \\u00a7 19-4901(b). Generally speaking, a claim or issue which was or could have been raised on appeal may not be considered in post-conviction proceedings. Id. After an examination of the substance of Whitehawk's application and the issues raised in his direct appeal, we conclude that no reversible error occurred in respect to the dismissal of all but two of the grounds raised in the application. Among the grounds raised by White-hawk in his application were allegations that his plea agreement was invalid and that the court erred in considering certain evidence for sentencing. These same issues were raised in Whitehawk's direct appeal and have been addressed by this Court in Whitehawk I. A convicted defendant may not simply relitigate the same factual questions in his application, in virtually the same factual context already presented in a direct appeal. Parsons v. State, 113 Idaho 421, 745 P.2d 300 (Ct.App.1987); State v. Darbin, 109 Idaho 516, 708 P.2d 921 (Ct.App.1985).\\nFor the same reasons, we decline to address certain other issues concerning sentencing which were also presented and discussed in the direct appeal. These include the sentencing court's consideration of Whitehawk's mental and physical condition, the conclusion of the court that White-hawk was a danger to society, and the exercise of discretion in imposing an indeterminate sixteen-year sentence. Moreover, post-conviction relief is not available merely to challenge a judge's exercise of discretion. Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). However, to the extent that an Eighth Amendment (\\\"cruel and unusual punishment\\\") issue is raised, post-conviction proceedings are appropriate. Id. Here, we believe Whitehawk has raised such an issue, at least in respect to alleged present conditions of his incarceration.\\nIn summary, we conclude that the grounds for relief properly raised in White-hawk's application are those concerning his treatment while incarcerated, the questions of whether the Idaho State Board of Correction failed to follow the sentencing court's ordered guidelines for his medical treatment and whether his treatment as a whole constituted cruel and unusual punishment. In his application and supporting affidavit, Whitehawk alleged that he has not been receiving proper medical treatment for his existing physical and mental disabilities.\\nWhitehawk, the victim of an industrial accident, suffered from partial paralysis and partial blindness, as well as cognitive disabilities which left him functioning neurologically at the level of an eight year old. Whitehawk also suffered from seizures which were controlled by medication. Whitehawk's affidavit contained several specific assertions regarding his medical treatment while incarcerated. He claimed first that the medication administered by the Board of Correction resulted in an improper physical and mental debilitation which precluded his effective participation in therapy or counseling. Second, the medical care requested by him from the available medical staff either was not administered or was ineffective. Third, an attempted modification of Whitehawk's medication was done without the assistance of a neurologist. This contradicted the order of the district court which provided that treatment of Whitehawk would be according to the recommendations of Whitehawk's physician, who requested supervision of a neurologist during the change of Whitehawk's medication. Fourth, because of the effects of the improperly administered medication, Whitehawk suffered a fall resulting in severe facial and dental injuries. Fifth, Whitehawk contended his vulnerable physical and mental character make him unable to defend himself and in turn a candidate for victimization in a prison environment.\\nAn application for post-conviction relief initiates a new and independent civil action under which the applicant bears the burden of proof. Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969). The issue on appeal from the dismissal of an application is whether the application alleges facts which if true would entitle the applicant to relief. Noel v. State, 113 Idaho 92, 741 P.2d 728 (Ct.App.1987). However, when the allegations fail to frame a genuine issue of material fact, the court may summarily dispose of the application. Ramirez v. State, 113 Idaho 87, 741 P.2d 374 (Ct.App.1987).\\nHere, the allegations contained in White-hawk's application were controverted by the state through general denials contained in the state's answer. Of course, this denial does not mean that we can no longer view the allegations as true. The denial does not really change our analysis. We merely recognize that factual issues exist as to those allegations which are denied. The legal question which still must be addressed is whether any qf the allegations, disputed or not, set forth facts which, if found to be true, would entitle the applicant to some relief.\\nAfter a consideration of the record we conclude that the district court erred in its grant of summary dismissal. It is apparent from Whitehawk's affidavit and other items in the record, including a letter from the Board of Correction commenting on Whitehawk's incarceration conditions, that genuine issues of fact exist which require an evidentiary hearing. These include the numerous allegations of improper or inadequate medical treatment for White-hawk's debilitated mental and physical condition. These questions must be resolved before a determination of whether White-hawk's alleged grounds warrant post-conviction relief from the sentence requiring, in effect, a five-year minimum period of incarceration. See former I.C. \\u00a7 20-223.\\nThe order of the district court dismissing the application for post-conviction relief is vacated. The case is remanded to the district court with instructions to hold an evidentiary hearing on the limited grounds properly asserted by Whitehawk in his application.\\nBURNETT, J., and HART, J., pro tern., concur.\"}"
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+"{\"id\": \"4411572\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. John Thomas BREEDING, Sr., Defendant-Appellant\", \"name_abbreviation\": \"State v. Breeding\", \"decision_date\": \"1989-08-01\", \"docket_number\": \"No. 16519\", \"first_page\": \"569\", \"last_page\": \"571\", \"citations\": \"116 Idaho 569\", \"volume\": \"116\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:21:04.745253+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. John Thomas BREEDING, Sr., Defendant-Appellant.\", \"head_matter\": \"777 P.2d 1242\\nSTATE of Idaho, Plaintiff-Respondent, v. John Thomas BREEDING, Sr., Defendant-Appellant.\\nNo. 16519.\\nCourt of Appeals of Idaho.\\nAug. 1, 1989.\\nJohn A. Bradley, Chisholm & Bradley, Burley, for defendant-appellant.\\nJim Jones, Atty. Gen. by David R. Minert, Deputy Atty. Gen., Boise, for plaintiff-respondent.\", \"word_count\": \"1196\", \"char_count\": \"7698\", \"text\": \"PER CURIAM.\\nThis is a sentence review case. Upon his plea of guilty, John Breeding stands convicted of rape. He is serving a fifteen-year indeterminate sentence. In this appeal, he asserts that the district judge failed to make adequate findings of fact on sentencing issues, failed to determine whether aggravating circumstances had been proven beyond a reasonable doubt, and abused his discretion by pronouncing an unduly harsh sentence. For reasons set forth below, we affirm the judgment imposing the sentence.\\nWe find no legal support for Breeding's contentions that the district judge was required to make findings of fact on sentencing issues or to determine whether aggravating circumstances had been proven beyond a reasonable doubt. On the question of findings, Breeding invites our attention to I.C. \\u00a7 19-2515. However, the subsections of that statute which refer to findings are those applicable exclusively to capital cases. In other cases, where the death penalty is not an issue, our Supreme Court has held that judges are encouraged, but not required, to state reasons for their sentencing decisions. State v. Nield, 106 Idaho 665, 682 P.2d 618 (1984). A fortiori, findings of fact are not required in such cases. A narrow exception exists where a finding is necessary to resolve a particular factual dispute that is pivotal to the determination of a reasonable sentence. See State v. Detweiler, 115 Idaho 443, 767 P.2d 286 (Ct.App.1989). But here, the reasonableness of Breeding's sentence does not turn upon a particular factual dispute. Neither is the district judge's view of the case obscure. Although he did not make written findings of fact, the judge did make a comprehensive oral statement from the bench, articulating his reasons for the sentence imposed.\\nBreeding also relies on I.C. \\u00a7 19-2515 to support his argument that aggravating circumstances must be determined upon proof beyond a reasonable doubt. Again, the statutory language to which he refers is applicable only to capital cases. In all criminal prosecutions, of course, the facts necessary to adjudicate guilt must be proven beyond a reasonable doubt. However, in a sentencing context, Breeding has not cited\\u2014and our research has not disclosed\\u2014any constitutional doctrine or other legal authority requiring that aggravating circumstances be proven beyond a reasonable doubt in non-capital cases. We decline to create such a requirement.\\nWe now turn to Breeding's assertion that his indeterminate fifteen-year sentence is excessive. Because the crime in this case was committed prior to the Unified Sentencing Act, I.C. \\u00a7 19-2513 (effective February 1, 1987), our standard of review is governed entirely by State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). In that case, we said that, absent a contrary statute or other indication in the record, we will treat one-third of an indeterminate sentence as the measure of confinement. Thus, for the purpose of appellate review, but not as a prediction of parole, we will treat Breeding's duration of confinement as one-third of his fifteen-year sentence, or five years. The question is whether confinement for at least this period of time is reasonable.\\n[A] term of confinement is reasonable to the extent it appears necessary, at the time of sentencing, to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case. A sentence of confinement longer than necessary for these purposes is unreasonable. Such determinations cannot be made with precision. In deference to the discretionary authority vested in Idaho's trial courts, we will not substitute our view for that of a sentencing judge where reasonable minds might differ. An appellant must show that, under any reasonable view of the facts, his sentence was excessive in light of the foregoing criteria.\\nId. at 568, 650 P.2d at 710. In applying the Toohill criteria, we conduct an independent examination of the record, focusing on the nature of the offense and the character of the offender. State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App.1982).\\nThe facts surrounding the crime in this case are unusual and tragic. The rape was committed upon Breeding's mother. It is undisputed that Breeding physically assaulted her, restrained her and penetrated her. Breeding was then forty years old. He had seldom seen or talked to his mother in the preceding twenty-five years, having left home at the age of fifteen. As a child, he had been subjected by both parents to severe corporal punishment. A psychologist who subsequently examined Breeding, as part of the presentence investigation, said the parental discipline \\\"possibly . did border on abuse.\\\" The psychologist characterized the rape as an act of pent-up rage, a form of retaliation against both parents. The psychologist opined that the crime was \\\"an isolated explosion\\\" and that the risk of \\\"this particular behavior\\\" reoccurring was \\\"minimal.\\\" The psychologist diagnosed Breeding as exhibiting a passive-aggressive personality disorder, as well as an adjustment disorder with mixed emotional features. The psychologist indicated that the adjustment disorder could be treated with short-term psychotherapy, coupled with proper medication. He deemed the personality defect to be chronic.\\nBreeding had no prior history of sex offenses or other felonies. His record consisted only of a traffic offense and two misdemeanor thefts. Breeding had been married nearly eighteen years and was the father of four children. He was employed irregularly as a farm laborer. He had served six years in the military, receiving an honorable discharge.\\nFaced with these unhappy and puzzling facts, the district judge remarked from the bench that a prison sentence was necessary in light of the seriousness of the crime. He noted that imprisonment would serve the sentencing objectives of retribution (punishment) and deterrence. He acknowledged that Breeding hac[ rehabilitative potential and did not have a significant criminal history; however, he said the risk of future offenses could not be disregarded. In our view, the district judge gave sound reasons for imposing an indeterminate sentence that requires at least five years of confinement.\\nBreeding has cited Atkinson v. State, 699 P.2d 881 (Alaska Ct.App.1985), as a purported example of a case in which a lighter sentence was imposed for a sex offense case committed against a victim in the defendant's family. There, the defendant received a ten-year sentence, with four years suspended. Breeding has asked us to compare that six-year term with the fifteen-year sentence he received. The comparison is not well taken. As the Atkinson court explained, the six-year period coincided with a presumptive term contained in Alaska's presumptive sentencing schedule. Under Alaska law, discretionary parole is not available during such a presumptive term. Alaska Stat. \\u00a7 12.55.125. Thus, the ultimate result in Atkinson may not be significantly different from the outcome in this case, where Breeding will be eligible for parole after serving five years in confinement and successfully completing another psychological evaluation. See I.C. \\u00a7 20-223.\\nAccordingly, the judgment of conviction for rape, including the indeterminate fifteen-year sentence, is affirmed.\"}"
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+"{\"id\": \"4411945\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Larry Eugene LEE, Defendant-Appellant\", \"name_abbreviation\": \"State v. Lee\", \"decision_date\": \"1989-05-05\", \"docket_number\": \"No. 17680\", \"first_page\": \"38\", \"last_page\": \"42\", \"citations\": \"116 Idaho 38\", \"volume\": \"116\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:21:04.745253+00:00\", \"provenance\": \"CAP\", \"judges\": \"BURNETT and SWANSTROM, JJ., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Larry Eugene LEE, Defendant-Appellant.\", \"head_matter\": \"773 P.2d 655\\nSTATE of Idaho, Plaintiff-Respondent, v. Larry Eugene LEE, Defendant-Appellant.\\nNo. 17680.\\nCourt of Appeals of Idaho.\\nMay 5, 1989.\\nGara Louise Newman, Rupert, for defendant-appellant.\\nJim Jones, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.\", \"word_count\": \"2315\", \"char_count\": \"14438\", \"text\": \"WALTERS, Chief Judge.\\nThis is an appeal taken by Larry Eugene Lee from an order revoking Lee's probation on a suspended sentence for assault with intent to commit a serious felony. Upon revoking Lee's probation, the district court ordered into execution a five-year indeterminate sentence that had been suspended while Lee was on probation. Lee raises two issues. First, he asserts the court failed to consider the criteria set forth in I.C. \\u00a7 19-2521 in deciding to revoke Lee's probation and requiring service of the previously suspended sentence. Second, he contends that the sentence imposed by the court was unduly harsh and amounted to an abuse of discretion. Subsumed into this latter issue is the propriety of a denial by the court of Lee's request to reduce the sentence under I.C.R. 35, upon revocation of his probation. We affirm the order revoking probation and executing the five-year sentence.\\nThe record discloses that Larry Lee was placed on probation on August 12, 1985, under a suspended five-year indeterminate sentence for assault with intent to commit a serious felony (rape). While on probation for that offense, Lee was convicted in February, 1987, of issuing an insufficient funds check. Lee received an indeterminate sentence of three years for the latter offense, to be served consecutive to the sentence on the assault charge. Lee's probation on the assault conviction was revoked, and he was committed to the custody of the Board of Correction to serve both sentences. However, the court retained jurisdiction under I.C. \\u00a7 19-2601(4). At the expiration of the period of retained jurisdiction, the balance of each sentence was suspended and Lee was again placed on probation by the district court. Before the probationary period ordered by the court had expired, Lee was again found to be in violation of the terms of his probation. The court revoked Lee's probation on both convictions and again committed Lee to the Board of Correction. This appeal was undertaken by Lee only from the order revoking probation on the assault conviction.\\nI\\nPreliminarily, we note that, although Lee argues on appeal that the district court abused its discretion in imposing an \\\"eight-year\\\" sentence, we are presented only with the appeal from the order revoking probation on the assault case in which the five-year sentence was imposed. No appeal apparently was taken from the separate order in the case involving the insufficient funds check, which order revoked the probation in that case and committed Lee to the custody of the Board to serve the consecutive three-year sentence imposed on that conviction. Thus, while the revocation of probation in both cases resulted in commitment of Lee to the custody of the Board for a total indeterminate period of eight years, the order requiring service of the three-year sentence has become final and only the proceeding with regard to the five-year sentence is before us on this review.\\nThe decision to revoke a defendant's probation on a suspended sentence is one within the discretion of the sentencing court. I.C. \\u00a7 20-222. In a probation revocation proceeding, two threshold questions are presented: (1) did the probationer violate the terms of probation; and, if so, (2) should probation be revoked? Then, if the court determines that probation should be revoked, a third question arises \\u2014 what sentence should be ordered? If a prison sentence previously has been pronounced but suspended, then that sentence may be ordered into execution, or, alternatively, the court is authorized under I.C.R. 35 to reduce the sentence upon revocation of. the probation. State v. Adams, 115 Idaho 1053, 772 P.2d 260 (Ct.App.1989).\\nHere the revocation of Lee's probation was immediately preceded by two hearings. The first hearing dealt only with the question of alleged violations. Following that hearing, the district court entered a written decision, concluding \\u2014 upon a preponderance of the evidence submitted at the hearing \\u2014 that Lee had violated his probation. A subsequent hearing was held for the purpose of disposition. When that hearing was completed, the court again issued a written decision. The court carefully reviewed Lee's case and concluded that because probation thus far had not been successful, a period of incarceration was necessary to protect society and to enhance the possibility of Lee's eventual rehabilitation. Consequently, the court revoked Lee's probation and ordered execution of the previously suspended sentence.\\nOn this appeal, Lee does not contend that the state failed to prove \\u2014 or the court erred in determining \\u2014 that Lee had violated conditions of his probation. Instead, Lee maintains that the court committed error by ignoring the criteria in I.C. \\u00a7 19-2521 in deciding to revoke Lee's probation rather than allowing the probation to continue. We are not persuaded that Lee has shown any error.\\nClearly, the criteria in section 19-2521 provide guidance to the court in reaching an initial decision whether to impose a sentence of imprisonment or to place the defendant on probation. The factors enumerated in that statute certainly are of value in determining, prospectively, whether probation may be successful. In making its determination whether to grant probation, the court is not required to \\\"checkoff\\\" or recite each of the criteria for the benefit of the defendant. State v. Burroughs, 107 Idaho 195, 687 P.2d 585 (Ct.App.1984). Moreover, once a defendant has been placed on probation and thereafter violates his probation, then \\u2014 depending upon the nature and seriousness of the violation \\u2014 probation may not be as feasible or desirable as initially thought. Under those circumstances, the utility of the criteria in section 19-2521 may lessen in significance.\\nThe purpose of probation is to give a defendant an opportunity to be rehabilitated under proper control and supervision. State v. Sandoval, 92 Idaho 853, 452 P.2d 350 (1969). A judge cannot revoke probation arbitrarily. State v. Hancock, 111 Idaho 835, 727 P.2d 1263 (Ct.App.1986). However, probation may be revoked if the judge reasonably concludes from the defendant's conduct that probation is not achieving its rehabilitative purpose. State v. Adams, supra, at 1055, 772 P.2d at 262, citing State v. Mummert, 98 Idaho 452, 566 P.2d 1110 (1977). In Adams we noted that no \\\"bright line\\\" rule was applicable to the trial court's decision to revoke probation in light of the judge's first-hand familiarity with the defendant and his rehabilitative prospects. Similarly, we decline to require the trial court to express any reconsideration of each of the criteria of section 19-2521 every time the question of continuing probation is presented to the sentencing court.\\nInstead, we believe the actual performance of a defendant under the terms and conditions of his probation presents a better picture of the likelihood of success of continued probation. In its written decision to revoke Lee's probation, the district court summarized its findings with regard to the feasibility of continued probation. The court said:\\nThree years have transpired since Mr. Lee first appeared before this court, during which time he has continually probed the outer limits of this court's patience and his probation. The criminal offenses for which Mr. Lee has been convicted are serious: attempted rape and check fraud are revolting offenses against society. Mr. Lee has confused this court's willingness to suspend his sentences [and grant] probation with a condonation of the offenses themselves. This is not the case.\\nMr. Lee must understand that this court continues to look upon his offenses as grave injustices against society. Although Mr. Lee has apologized to the victim of his attempted rape and made some nominal restitution to the victims of his check fraud, he has not established a law abiding pattern in his course of conduct; rather, he has manipulated his privileges, lied to his probation officers, and deceived this court. Mr. Lee's numerous probation violations attest these observations.\\nWhile these acts do not, in and of themselves, directly impact upon society to the same extent that attempted rape and check fraud impact upon society, they do clash against societal notions of honesty and uprightness. Mr. Lee's flippant attitude negates the possibility that he has determined to mend his ways and repay society, thereby foreclosing the possibility that society can safely permit him to remain at large.\\nIn the words of Pastor Vince Frank: \\\"Larry takes three steps forward and two steps backwards.\\\" This court agrees, for in the past three years of probation, Mr. Lee has only evidenced approximately one year's progress. This insignicant [sic] amount of progress is overshadowed by the seriousness of Mr. Lee's convictions and the manipulativeness of his conduct.\\nAt the disposition hearing, [Lee's counsel] put on evidence that some people are still willing to give Mr. Lee a second chance. Dr. and Mrs. Bill Williams, for example, have offered to help Mr. Lee in his educational pursuits; Pastor Frank has offered to help Mr. Lee establish a budget; and Judy McCallister has offered to work with Mr. Lee in her professional capacity. These people are to be commended for their gestures of sacrifice and sincerity, for few people in today's hustle-and-bustle world are willing to help those in need.\\nAt the disposition hearing, these people testified that Mr. Lee needs to work in an atmosphere of trust; they also testified, however, that Mr. Lee is deceptive. Mz. McCallister summed it up when she stated that Mr. Lee resists supervision and that, even in an atmosphere of trust, she was unsure whether he could change his course of conduct and avoid further violations of the terms of his probation. This court agrees and believes that it is extremely unlikely that Mr. Lee could successfully complete a program of supervised probation at this time.\\nBased on these observations, the court determined that Lee's probation should be revoked.\\nIn our view, the court expressed sound reasons in concluding that further probation was inappropriate. We hold that the court did not abuse its discretion. Finding no error in the district court's decision, we affirm the order revoking probation.\\nII\\nWe turn next to whether the court abused its discretion by ordering into execution the five-year sentence that previously had been suspended. Lee contends the sentence is unduly harsh. We disagree.\\nWe note that Lee could have received a ten-year sentence on the assault charge. I.C. \\u00a7 18-910. The indeterminate five-year sentence imposed by the court was well within the court's sentencing discretion. Lee's crime was committed prior to the effective date of the Unified Sentencing Act, I.C. \\u00a7 19-2513. Consequently, no minimum term of confinement was ordered. We are thus faced with review of a fully indeterminate sentence, and, for the purpose of review, we will deem one-third of the five-year sentence \\u2014 a period of twenty months \\u2014 to be an appropriate measure of the term of confinement.\\nExamining this sentence in light of the well-established standards of State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982), we hold that the five-year sentence was reasonable. We conclude the district court did not abuse its discretion in ordering execution of the suspended sentence.\\nWe turn next to a subsidiary issue: whether the district court erred in declining to reduce the five-year sentence, as permitted by I.C.R. 35. The request by Lee for a reduced sentence was filed with the court within a few days after the district judge had issued his written decision to revoke Lee's probation and before the order revoking probation was entered. The motion to reduce the sentence was denied.\\nA motion under Rule 35 essentially is a plea for leniency which may be granted if the sentence imposed on the defendant was, for any reason, unduly severe. State v. Lopez, 106 Idaho 447, 680 P.2d 869 (Ct.App.1984). Such a motion is directed to the sound discretion of the district court. State v. Roach, 112 Idaho 173, 730 P.2d 1093 (Ct.App.1986). On appeal, we review the entire record to determine whether the district court abused its discretion in failing to grant the leniency requested. State v. Stanfield, 112 Idaho 601, 733 P.2d 822 (Ct.App.1987). In making this determina tion, we apply the same criteria for reviewing the reasonableness of the original sentence. State v. Toohill, supra.\\nIn the present case, transcripts of the original sentencing proceeding and of the hearing on Lee's Rule 35 motion have not been provided to us. We have, for review, only the transcripts of the probation revocation proceeding. We have the benefit also of the district court's written decisions with respect to the revocation proceedings. From these sources we have been able to conclude that the five-year sentence initially imposed and later ordered into execution by the district court was reasonable. We have been presented with nothing otherwise to show that the district court abused its discretion in rejecting the Rule 35 plea.\\nThe order revoking probation, and ordering into execution the five-year indeterminate sentence for assault with intent to commit a serious felony, is affirmed.\\nBURNETT and SWANSTROM, JJ., concur.\\n. Nevertheless, because the orders which revoked Lee's probation on both convictions resulted from a single proceeding involving the same grounds alleged by the state jointly to constitute violation of probation in each of the two cases, as a practical matter our analysis with respect to the assault charge would be equally applicable to the insufficient funds check charge, if that case was also to be considered by us in this appeal.\\n. Rule 35,1.C.R., provides that \\\"[t]he court may also reduce a sentence upon revocation of probation as provided by law.\\\"\\n. Following a hearing on Lee's motion to reduce his sentence, the district court entered an order denying the motion. Both the hearing and the entry of the order thereon occurred after the order revoking probation had been entered and also after the notice of appeal had been filed in this case.\"}"
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+"{\"id\": \"4419810\", \"name\": \"William D. STRALEY, Plaintiff-Appellant, v. IDAHO NUCLEAR CORPORATION, Defendant-Respondent\", \"name_abbreviation\": \"Straley v. Idaho Nuclear Corp.\", \"decision_date\": \"1972-08-03\", \"docket_number\": \"No. 11000\", \"first_page\": \"917\", \"last_page\": \"923\", \"citations\": \"94 Idaho 917\", \"volume\": \"94\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:28:15.120972+00:00\", \"provenance\": \"CAP\", \"judges\": \"McQUADE, C. J., DONALDSON and SHEPARD, JJ., and CALLISTER, D. J., concur.\", \"parties\": \"William D. STRALEY, Plaintiff-Appellant, v. IDAHO NUCLEAR CORPORATION, Defendant-Respondent.\", \"head_matter\": \"500 P.2d 218\\nWilliam D. STRALEY, Plaintiff-Appellant, v. IDAHO NUCLEAR CORPORATION, Defendant-Respondent.\\nNo. 11000.\\nSupreme Court of Idaho.\\nAug. 3, 1972.\\nDenman & Reeves, Idaho Falls, for plaintiff-appellant.\\nAlbaugh, Bloem, Smith & Pike, Idaho Falls, for defendant-appellee.\", \"word_count\": \"3525\", \"char_count\": \"21823\", \"text\": \"BAKES, Justice.\\nThis appeal resulted from an order granting summary judgment in favor of the Idaho Nuclear Corporation, hereinafter referred to as respondent, against William D. Straley, hereinafter referred to as appellant. Appellant had instituted this action to recover damages for personal injuries sustained while riding in one of respondent's buses. The primary issue for disposition on appeal is whether the district court properly granted summary judgment in favor of respondent. For reasons articulated below, we conclude that the district court erred, and that the case must be reversed and remanded for trial.\\nPrior to examining the facts, it is helpful to reiterate the pertinent general principles on summary judgments and this court's guidelines in determining the propriety of an order granting summary judgment issued by the district court. Summary judgment is properly granted when \\\"the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to, any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" I.R.C.P. Rule 56(c). E.g. Bryan and Co. v. Kieckbusch, 94 Idaho 116, 482 P.2d 91 (1971). In determining whether-any issue of material fact is in dispute, it. is well settled that the facts should be liberally construed in favor of the party against whom summary judgment is. sought. E.g. Jack v. Fillmore, 85 Idaho 36, 375 P.2d 321 (1962); Crane v. Banner, 93 Idaho 69, 455 P.2d 313 (1969). In light of this rule, this court has held that summary, judgment is improper when a conflict in-, affidavits respecting issues of fact exists, or when the relevant pleadings, depositions, and affidavits raise any question of credibility of witnesses. See respectively Hansen v. Howard O. Miller, Inc., 93 Idaho 314, 460 P.2d 739 (1969); Merrill v. Duffy-Reed Construction Co., 82 Idaho 410, 353 P.2d 657 (1960). On the other hand, a mere scintilla of evidence will not create a genuine issue of material fact sufficient to preclude summary judgment. E.g. Jephson v. Ambuel, 93 Idaho 790, 473 P.2d 932 (1970); Petricevich v. Salmon River Canal Co., 92 Idaho 865, 452 P.2d 362 (1969) (rejecting the \\\"slightest doubt\\\" test.). On appeal from an order granting summary judgment, this court must construe the evidence presented to the district court liberally in favor of the party opposing the order and accord him \\\"the benefit of all inferences which might be reasonably drawn.\\\" Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 465 P.2d 107 (1970).\\nThe facts, pertinent to this appeal, can he summarized as follows: Respondent operates a bus line, pursuant to contract with the United States Atomic Energy Commission, to transport \\\"authorized personnel\\\" to and from the National Reactor Testing Station (NRTS) and various locations in the Idaho Falls-Pocatello area. Respondent operates along fixed routes some 85 buses, all owned by the federal government. According to respondent, only certain employees of the federal government, Atomic Energy Commission contractors and subcontractor employees, Navy personnel and occasional business invitees are authorized to utilize the bus services. However, appellant notes in his affidavits and deposition that he has seen many persons who are not employed at the site ride on respondent's buses on various occasions.\\nOn his way to work on March 11, 1969, .appellant boarded one of respondent's buses near his home in Idaho Falls. During the trip to the NRTS facility, appellant occupied the rear seat of the bus (allegedly the only one vacant when appellant boarded). Sometime during the trip, appellant claims the bus hit \\\"something\\\" and he \\\"sailed off his seat and hit the ceiling\\\" of the bus, resulting in injuries which caused him to suffer serious back, neck and arm pains. Appellant reported the incident and his consequent injuries to the attendant at the NRTS dispensary shortly after arriving at the site.\\nAppellant was unable to estimate the speed the bus was travelling when he was thrown from his seat, but he did recall that the road was extremely bumpy and replete with pot-holes. Appellant also remembered that after the jolt he had to re-secure the straps which held the bus seat in place.\\nAs a consequence of these injuries, appellant commenced this action in the district court, complaining that respondent \\\"operated its bus on which the [appellant] was riding in such a manner that it abruptly and without any warning whatever to the [appellant] threw [appellant] to the ceiling, thereby causing [appellant's] head to strike the ceiling of the bus. . . . \\\"\\nFinding no express allegation in appellant's complaint that it was negligence, and claiming that there was no evidence of any such negligence, respondent moved for summary judgment to dismiss appellant's action. After examining affidavits and depositions submitted by both sides as well as reviewing the pleadings, the district court granted respondent's motion. In support of its order the court noted:\\n\\\"[T]he defendant is a contract carrier, but even if the defendant was a common carrier there was no showing of any negligence on the part of the defendant and there was (sic) not sufficient facts presented to sustain a verdict for the plaintiff against the defendant in said action, and there was (sic) not sufficient facts or conclusions presented to the Court even to invoke the doctrine of res ipsa loquitur, and on this showing defendant has established that plaintiff has no cause of action and that such showing has not been successfully controverted by the plaintiff. . . . \\\" (Clk.Tr. p. 147).\\nFrom the court's order, appellant filed this appeal.\\nFrom our examination of the record, we disagree with two of the conclusions of the district court, and therefore find that the order of the district court granting summary judgment was error. First, from undisputed facts in the record we conclude that respondent, while it may not be classifiable as a common carrier under public utility law, nonetheless maintains enough of the characteristics normally found in a common carrier to be held to the higher standard of care ascribed to such a carrier. Secondly, the allegation of respondent's possible negligence in appellant's somewhat indefinite pleadings and the affidavits and depositions justify the invoking of the doctrine of res ipsa loquitur.\\nAs mentioned above, respondent does not fit within the traditional definition of \\\"common carrier.\\\" Generally defined, a \\\"common carrier\\\" is one \\\"who, by virtue of his calling and as a regular business, undertakes to transport persons or commodities from place to place, offering his services to such as may choose to employ him and pay his charges.\\\" Sanger v. Lukens, 24 F.2d 226, 228 (D.C.Idaho 1927), rev'd on other grounds, 26 F.2d 855 (9th Cir.1928). See 13 Am.Jur.2d, Carriers \\u00a7 2, pp. 560-62 (1964) (defining, common carrier as \\\"one who holds himself out to the public as engaged in the business of transporting persons or property from place to place for compensation, offering his services to the public generally.\\\").\\nDifferent considerations shape the definition of private or contract carrier:\\n\\\"A private carrier is one who, without making it a vocation, or holding himself out to the public as ready to act for all who desire his services, undertakes, by special agreement in a particular instance only, to transport property or persons from one place to another either gratuitously or for hire.\\\" 13 Am.Jur.2d, Carriers, \\u00a7 8, p. 565.\\nAvailability to the public without discrimination appears to be the main feature distinguishing a private and common carrier. Annot. 112 A.L.R. 89, 90 (1938). See Cushing v. White, 101 Wash. 172, 172 P. 229 (1918); Horluck Transportation Co. v. Eckright, 56 Wash.2d 218, 352 P.2d 205 (1960); Hunt v. Clifford, 152 Conn. 540, 209 A.2d 182 (1965). Respondent does not squarely fall within the general definition of \\\"common carrier\\\" because only \\\"authorized personnel\\\"\\u2014i.e., certain employees of the federal government, employees of government contractors, and government guests and invitees are generally permitted to use the buses to travel to the site. However, respondent's relationship to each of its individual passengers such as appellant does retain enough of the characteristics of a common carrier to raise an issue concerning whether or not respondent should be held to the higher standard of care generally ascribed to common carriers. Respondent held itself out generally to all members of the public who were travelling to the AEC site as a carrier of persons to and from that site for hire. While the scope of those persons eligible to travel to the AEC site is more restricted than the public in general to whom a common carrier must ordinarily provide service, the scope of persons served by respondent is much broader than the usual case of private carriage. Operationally respondent is much like any municipal bus line and it resembles a municipal bus line in its relationship to its passengers, specifically in the case of appellant. It provided appellant transportation to and from his work for a regulated fare as an alternative means to driving his own automobile, participating in a car pool, or any other means which appellant might find satisfactory to him. Appellant boards and deboards the bus much as he would a public conveyance, i.e., at fixed bus stops. Appellant can purchase his tickets at various spots much like he might purchase a ticket book for municipal conveyances. Respondent on the average runs 85 buses over some 58 routes per day. These buses have fixed termini, routes and stops. Any restriction on passengers is imposed by the AEC, and not by respondent, except in carrying out the policy of the AEC. Even with those restrictions, however, respondent apparently does carry a sizeable number of persons with varied business connections with the Arco AEC site, since appellant's affidavit states that he had seen persons ride the buses who did not work there.\\nIt has been held that a carrier need not serve all members of the public to retain his status as a common carrier. A car rier's customers are necessarily limited by \\\"place, requirements, ability to pay, and other facts.\\\" Terminal Taxi Cab Co., Inc. v. Kutz, 241 U.S. 252, 36 S.Ct. 583, 60 L.Ed. 984 (1916). See M & R Investment Co. v. C.A.B., 308 F.2d 49 (9th Cir.1962). Considering all of these facts, we think that the relationship between appellant and respondent was more akin to common carriage than private carriage and thus the higher standard of care required of a common carrier should be applied to the relationship between appellant and respondent on the day of the accident in question.\\nRegarding the second issue of respondent's negligence, it is helpful at the outset to answer respondent's contention that appellant's pleadings did not properly allege a cause of action. Respondent argues that appellant stated no action in tort, but rather pleaded a contract action. According to respondent, appellant in this situation has no action based on contract. We do not think it either necessary or controlling to absolutely characterize appellant's cause of action as ex delicto or ex contractu\\u2014i.e., as in tort or in contract. The important feature is that appellant's concededly indefinite pleadings have imparted sufficient notice of his claim against respondent\\u2014namely that his injuries were occasioned by respondent's improper (negligent) operation of its bus. Under the liberal standards inherent in the notice pleading provisions of the Idaho Rules of Civil Procedure, appellant's pleading adequately states a cause of action. (I.R.C.P. Rule 1; see Argonaut Ins. Co. v. White, 86 Idaho 374, 386 P.2d 964 (1963).\\nAlthough there is authority for the proposition that a claim based on the negligence of a carrier can be founded in either contract or tort, (W. Prosser, Prosser on Torts, 637, 639-643 (3d ed. 1964); Annot. 20 A.L.R.2d 331, 332-334 (1951); Annot. '68 A.L.R.2d 667, 671-72 (1959).) the Idaho rule appears to be that such claims against carriers are better grounded in tort. Ness v. West Coast Airlines, Inc., 90 Idaho 111, 410 P.2d 965 (1965). The Ness case involved a claim against the defendant airlines for negligently injuring the plaintiff passenger. In bringing his action, the passenger sought recovery on both contract and tort causes of action. The district court struck the contract action from the pleadings prior to trial. In the course of its opinion on appeal, this court affirmed the district court's striking of the contract action, stating: \\\"The defendant was not an insurer of the safety of its passengers. Its liability must be based on negligence.\\\" In other words, the court implied that the gravamen of the personal injury action against the carrier sounded in tort rather than in contract. See Prosser, supra, at 642-43. Williamson v. Pacific Greyhound Lines, 67 Cal.App.2d 250, 153 P.2d 990 (1944).\\nThe liability of respondent in the case at bar, as was the carrier's liability in Ness, must be based on negligence. We do not, however, deem a contract or tort appellation attached to appellant's pleadings to be significant. Appellant's pleading adequately states a cause of action in negligence against respondent.\\nConcluding this, we think the doctrine of res ipsa loquitur is applicable. The doctrine creates a substantive inference of negligence. Skaggs Drug Centers, Inc. v. City of Idaho Falls, 90 Idaho 1, 407 P.2d 695 (1965). In order to utilize the doctrine, certain salient elements must exist.\\n\\\"The essentials of the doctrine are: (1) that the agency or instrumentality causing the injury was under the control and management of the defendant (Citation omitted.); (2) that the circumstances were such that common knowledge and experience would justify the inference that the accident would not have happened in the absence of negligence. (Citation omitted.)\\\" C. C. Anderson Stores Co. v. Boise Water Corporation, 84 Idaho 355, 359, 372 P.2d 752, 754 (1962).\\nAccord: Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966). In cases like the case at bar involving the liability of carriers based on alleged jerks and lurches of the carrier's conveyance, the doctrine of res ipsa loquitur is particularly applicable. 14 Am.Jur.2d, Carriers, \\u00a7 1164, pp. 576-77. See Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 323 P.2d 391 (1958), superceding 314 P.2d 167 (Cal.App.1957). There is no dispute that respondent had exclusive control of the instrumentality \\u2014 i.e. the bus \\u2014which caused appellant's injury. The only question then is whether the incident was one which would not normally occur in the absence of negligence. Dempsey v. Market St. Ry. Co., 79 Cal.App.2d 216, 179 P.2d 34 (1947). We acknowledge the propriety of the general rule that the mere occurrence of the accident without evidence of a severe jerk, jolt, or lurch precipitated by negligence is not sufficient to invoke the doctrine of res ipsa loquitur. E.g. Gentry v. Greyhound Corp. 46 Wash.2d 631, 283 P.2d 979 (1955); Phen v. All American Bus Lines, 56 Ariz. 567, 110 P.2d 227 (1941); Benton v. Farwest Cab Co., 63 Wash.2d 859, 389 P.2d 418 (1964). See Ness v. West Coast Airlines, 90 Idaho 111, 116, 410 P.2d 965 (1965) (a negligence case against an air carrier wherein the court stated, \\\"We do not think the doctrine of res ipsa loquitur is applicable in this case, because there was evidence that the dropping of the plane was caused by an air current or air turbulence, and there was no showing, either by specific evidence or common knowledge, that such motion of a plane does not occur in the absence of negligence in the operation of the aircraft.\\\"). However, when it appears that the injury was resultant from a severe jerk not incident to the normal operation of the conveyance, the application of res ipsa'loquitur is proper. See, e.g., Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 323 P.2d 391 (1958).\\nThe pertinent rule is stated:\\n\\\"No fixed rule can be propounded as to what jerking, jolting, or lurching of a conveyance will give rise to an inference of negligence in its operation or lay a sufficient basis upon which to predicate a finding of negligence in the carrier. The mere fact that there is jerking, jolting, or lurching of a conveyance incident to its normal operation does not constitute negligence on the part of the carrier, and even though injury results therefrom the carrier cannot be held liable. A certain amount of jerking, jolting, and lurching is generally accepted as the usual incident of travel, and passengers are chargeable with knowledge thereof and assume the risk of injury therefrom. At precisely what point jerking, jolting, or lurching movements-of a conveyance lose their character as incidents reasonably to be expected during the course of travel and assume the status of actionable negligence is a question of fact, to be determined in the light of the surrounding circumstances.\\\" 14 Am.Jur.2d, Carriers, \\u00a7 1046, pp. 465-66.\\nSee Hoskins v. Albuquerque Bus Co., 72 N.M. 217, 382 P.2d 700 (1963); United States v. DeBack, 118 F.2d 208 (9th Cir. 1941); Van Cleave v. Illini Coach Co., 344 Ill.App. 127, 100 N.E.2d 398 (1951); Wilcoxen v. City of Seattle, 32 Wash.2d 734, 203 P.2d 658 (1949); Oklahoma Ry. Co. v. Kelley, 204 Okl. 268, 229 P.2d 182 (1951); Oklahoma Transp. Co. v. Claiborn, 434 P.2d 299 (Okl.1967); Mudrick v. Market St. Ry. Co., 11 Cal.2d 724, 81 P.2d 950 (1938). Since appellant alleges in his complaint and affidavits that he was ejected from his seat with sufficient force to hit the ceiling, sustaining serious injuries as a result thereof, and since appellant claims this ejection was caused by a \\\"severe bump,\\\" the doctrine of res ipsa loquitur should be applied in the trial.\\nAlong with his challenge of the summary judgment order, appellant raises two additional procedural points in this appeal. Appellant contends that the district court erred in (1) not requiring Mr. Denning, an employee of respondent, to answer interrogatories directed to him by appellant, and (2) in refusing to require respondent to respond to appellant's request for admissions sought under I.R.C.P. Rule 33.\\nIn regard to the interrogatories dispute, I.R.C.P. Rule 33 is dispositive. That rule provides in pertinent part:\\n\\\"Any party may serve upon any adverse party, who has been served with process or who has appeared, written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party.\\\"\\nUnder Rule 33, patterned after Federal Rule 33, Fed.R.Civ.Proc., it is generally the rule that an interrogatory to a corporate party is not properly addressed to an employee of the corporation, and that the corporation has the right to select which of its officers or agents shall answer interrogatories directed to the party corporation. 8 Wright & Miller, Federal Practice and Procedure, \\u00a7 2171-2172, pp. 530-39 (1970); F. James, Civil Procedure \\u00a7 6.4, p. 189 (1965); Holland v. Minneapolis-Honeywell Regulator Co., 28 F.R.D. 595 (D.D.C.1961). It is, of course, incumbent on the corporation to select someone who can furnish the requested information. See 8 Wright & Miller, supra, at 538-39. Respondent, therefore, properly disregarded appellant's direction that the interrogatories were intended for respondent's employee, Mr. Denning, and also properly selected its president, Mr. Rice, to answer the interrogatories.\\nAppellant raises a further assignment of error as a result of the district court's refusal to require respondent to answer appellant's request for admissions. Respondent objected on the ground that all of the information contained in the request for admissions was contained in respondent's answers to interrogatories. The trial court in denying the request for admissions stated that it felt \\\" . . . that the admissions are not necessary to a determination of plaintiff's rights nor would appreciable time in the event of trial be saved by such admissions.\\\" The admissions generally all relate to the operation of the buses by respondent and the means and manner of obtaining tickets, reporting highway and bus conditions, and other related information. All of these facts will be relevant to the issue of the standard of care required of respondent on the retrial of this case, and the request for admissions should be answered. The mere fact that the same information is contained in respondent's answers to interrogatories is not controlling since the purpose of interrogatories is discovery of facts, while the request for admission goes to the question of proof of those facts at trial and the elimination of the necessity of appellant's calling the employees of respondent in order to introduce testimony and documents to prove those facts. See Electric Furnace Co. v. Fire Ass'n of Philadelphia, 9 F.R.D. 741 (N.D.Ohio 1949). Upon remand the respondent should be required to answer the request for admissions.\\nReversed and remanded for trial. Costs to appellant.\\nMcQUADE, C. J., DONALDSON and SHEPARD, JJ., and CALLISTER, D. J., concur.\\n. The distinction between a private and contract carrier appears to be primarily a distinction drawn for purposes of regulation and licensing by public utility authorities, and is not a distinction resulting from differing standards of care to be exercised toward the passengers or .cargo carried.\"}"
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+"{\"id\": \"4420262\", \"name\": \"Warner C. MILLS, Commissioner of Law Enforcement, State of Idaho, Plaintiff-Respondent, v. James G. HOLLIDAY, Defendant-Appellant\", \"name_abbreviation\": \"Mills v. Holliday\", \"decision_date\": \"1971-02-01\", \"docket_number\": \"No. 10442\", \"first_page\": \"17\", \"last_page\": \"20\", \"citations\": \"94 Idaho 17\", \"volume\": \"94\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:28:15.120972+00:00\", \"provenance\": \"CAP\", \"judges\": \"McFADDEN, DONALDSON, SHEPARD, and SPEAR, JJ., concur.\", \"parties\": \"Warner C. MILLS, Commissioner of Law Enforcement, State of Idaho, Plaintiff-Respondent, v. James G. HOLLIDAY, Defendant-Appellant.\", \"head_matter\": \"480 P.2d 611\\nWarner C. MILLS, Commissioner of Law Enforcement, State of Idaho, Plaintiff-Respondent, v. James G. HOLLIDAY, Defendant-Appellant.\\nNo. 10442.\\nSupreme Court of Idaho.\\nFeb. 1, 1971.\\nLloyd J. Walker, Twin Falls, for defend- . ant-appellant.\\nRobert M. Robson, Atty. Gen., Martin R. Ward, Asst. Atty. Gen., Boise, for plain- \\u2022 tiff-respondent.\", \"word_count\": \"1151\", \"char_count\": \"6803\", \"text\": \"McQUADE, Chief Justice.\\nJames G. Holliday, defendant appellant, was driving a pickup truck on the evening of April 12, 1968, near Shoshone, Idaho, when he was stopped by Officer Ronald Eggleston of the Idaho State Police. Offi.cer Eggleston had observed appellant's vehicle weaving as it traveled upon the highway. Officer Eggleston spoke with the appellant, and upon being told by appellant that he was sleepy, advised appellant to stop and get some rest. The officer testified he could not detect any odor of alcohol from the appellant, and issued no citation.\\nAppellant testified that he attempted to find a motel room in Shoshone, drank one-half of a can of beer, and being unable to find a motel room drove on. Near Hailey, Idaho, approximately one hour later, appellant's truck overturned. Appellant contends that there was evidence to show he sustained a severe trauma to his head in the accident.\\nThe first person to come upon the scene of the accident was Jim Eakin, a Blaine County employee. He took appellant to the county sheriff's office. Eakin did not detect the smell of alcohol about appellant as he drove him to the sheriff's office.\\nOfficer Larry Plott of the Idaho State Police and Bryce Chugg, Blaine County deputy sheriff, returned to the scene of the accident with appellant. It was at the scene of the accident that Officer Plott first detected the odor of alcohol on appellant's breath. Appellant also appeared unsteady on his feet. Officer Plott asked appellant to perform- several physical sobriety tests. When appellant failed these tests, Officer Plott asked appellant to take the chemical test provided for in I.C. \\u00a7 49-352. Appellant stated in reply to the request that he would not take any tests. Appellant was then taken to a hospital, where the request was again made by Officer Plott, and again met with the same reply.\\nSubsequently, appellant was notified by the Department of Law Enforcement that his driver's license would be suspended for his refusal to take the chemical test, unless he requested a hearing. Appellant requested a hearing, which was held July 3, 1968. Subsequent to and based upon that hearing, the Department of Law Enforcement made \\\"findings of fact\\\" and conclusions of law and suspended appellant's driver's license for violation of I.C. \\u00a7 49-352.\\nThe finding of fact of the Department of Law Enforcement was, in full, that,\\n\\\"Pursuant to Section 49-352, Idaho Code, you have refused to take a chemical test of your breath or blood, to determine the alcoholic content of your blood.\\\"\\nOn review to the district court, the suspension of appellant's license was upheld. That court stated, in its memorandum opinion:\\n\\\"Petitioner requests this Court to accept his view of the evidence to the effect that his mental processes were impaired by the blow to his head he had received prior to the time he was requested to submit to a chemical test. But in doing so, the petitioner requests this Court to do precisely what the Legislature, by means of Section 67-5215(g), Idaho Code, says this Court shall not do \\u2014 that is, 'The Court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.' I believe I am bound to follow the mandate just cited.\\\"\\nThis Court held just last year that a \\\"finding of fact\\\" by the Department of Law Enforcement in a similar license suspension case was not a finding of fact at all, but rather a conclusion of law. That finding was that,\\n\\\"Pursuant to Section 49-352, Idaho Code, you have refused to submit to a chemical test of the blood to determine the alcohol content of the blood, at Moscow, Idaho.\\\"\\nThe \\\"finding of fact\\\" in the case at bar is nearly identical, and is also a conclusion of law. Thus, there were no findings of fact rendered by the Department of Law Enforcement in this case. This is in clear contravention of I.C. \\u00a7 67-5212, which, states:\\n\\\"A final decision or order adverse to a party in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.\\\"\\nAbsent findings of fact, this Court has nothing upon which to base a determination of whether the conclusions of law of the administrative agency are justified. The case at bar offers a prime example of this difficulty. We cannot determine from the findings and conclusions of the Department whether the Department found that appellant was fully cognizant of what he was doing when he voiced his refusal to submit to the chemical test for alcohol content of his blood, or found that the voiced refusal was sufficient within the terms of the applicable statute without consideration of the state of consciousness of the appellant. The latter conclusion, of course, is a question of law fully reviewable by this Court. It is the general rule that an agency order not supported by findings of fact where such findings are required will be set aside. That general rule is implemented in Idaho by I.C. \\u00a7 67-5212, which is drafted in mandatory terms. Were a remand for findings of fact not required, the requirement of that statutory section that a final decision \\\"shall include findings of fact\\\" would be meaningless. (Emphasis added.)\\nThe judgment of the district court is reversed, and the order of the Commissioner of Law Enforcement is set aside. We remand this case for the Commissioner to make specific findings of fact and conclusions of law as provided by statute.\\nMcFADDEN, DONALDSON, SHEPARD, and SPEAR, JJ., concur.\\n. Memorandum Opinion, Case no. 22419, Fifth Judicial District, State of Idaho.\\n. Mills v. Swanson, 93 Idaho 279, 460 P.2d 704, 705 (1969).\\n. Id.\\n. I.C. \\u00a7 49-352; See Mills v. Swanson, supra, note 2.\\n. F. Cooper, 2 State Administrative Law 471 (1965); K. Davis, 2 Administrative Law Treatise, \\u00a7 16.01, 16.06 (1958); Securities and Exchange Com'n. v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Securities Com'n. of Ind. v. Holovachka, 234 Ind. 135, 124 N.E.2d 380 (1955); Bay State Harness Horseracing & Breeding Assn., Inc. v. State Racing Com'n., 342 Mass. 694, 175 N.E.2d 244 (1961); L. A. Darling Co. v. Water Resources Com'n., 341 Mich. 654, 67 N.W.2d 890 (1955); Delaware, L. & W. R. Co. v. City of Hoboken, 10 N.J. 418, 91 A.2d 739 (1952).\"}"
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+"{\"id\": \"4428253\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Kenneth HUSKEY, Defendant-Appellant\", \"name_abbreviation\": \"State v. Huskey\", \"decision_date\": \"1984-01-10\", \"docket_number\": \"No. 14473\", \"first_page\": \"91\", \"last_page\": \"94\", \"citations\": \"106 Idaho 91\", \"volume\": \"106\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:12:03.270207+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C.J., and SWANSTROM, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Kenneth HUSKEY, Defendant-Appellant.\", \"head_matter\": \"675 P.2d 351\\nSTATE of Idaho, Plaintiff-Respondent, v. Kenneth HUSKEY, Defendant-Appellant.\\nNo. 14473.\\nCourt of Appeals of Idaho.\\nJan. 10, 1984.\\nRobert Fallowfield, Luboviski, Wygle & Fallowfield, Ketchum, for defendant-appellant.\\nJim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Neil Tillquist, Deputy Atty. Gen., Boise, for plaintiff-respondent.\", \"word_count\": \"1577\", \"char_count\": \"9602\", \"text\": \"BURNETT, Judge.\\nA jury found Kenneth Huskey guilty of five counts of embezzlement. On appeal, his sole claim of error concerns the district court's denial of a motion to suppress evidence obtained during a search. The issue is whether the search was within the scope of a search warrant, or \\u2014 in any event\\u2014 whether the search was justified under an exception to the warrant requirement. Because we hold the search valid under the consent exception, the judgment of conviction is affirmed.\\nThis case focuses upon the second of two searches conducted after Huskey had been arrested on the embezzlement charges. These charges were based upon allegations that Huskey fraudulently had misappropriated money or property received from persons doing business with his auto body repair shop in Ketchum, Idaho. Huskey asked the friend to pick up the automobile in Jackpot, Nevada, where Huskey had been apprehended, and drive it back to Ketchum. The friend contacted the police and, upon obtaining their approval, brought the automobile to Ketchum. There the police, pursuant to a warrant, searched the vehicle and seized numerous business documents. The vehicle then was released to the friend. The validity of that search is not contested here.\\nA preliminary hearing followed, and Hus-key was bound over to district court. During the hearing, a criminal investigator understood Huskey's friend to say that the Wagoneer contained other items belonging to Huskey and that the friend had them at his residence. The investigator then sought and obtained a second warrant to search for those belongings at the friend's address. The investigator later saw the friend in downtown Ketchum and told him about the warrant. The friend voluntarily accompanied the investigator to the residence, where the warrant was served. The investigator explained that he was there to collect Huskey's belongings. The friend responded that some of the items were on the porch and others were still in the automobile, which was parked in the front yard. The friend said there was no need to search the residence. The friend later testified at a suppression hearing that he had shown the investigator where the objects of the search were located and had \\\"thanked\\\" him \\\"for getting them out of there.\\\" The friend further acknowledged that he had said to the investigator, \\\"Here, take it, please; get it off my hands____ Good; now I am rid of this; I can sell this Wagoneer.\\\"\\nHuskey argues that the second search was unconstitutional because the automobile was not mentioned in the warrant. The fourth amendment to the United States Constitution and art. I, \\u00a7 17 of the Idaho Constitution both prohibit unreasonable searches. They employ nearly identical language. A warrantless search, or a search beyond the authority conferred by a warrant, is presumed to be unreasonable. \\\"[Sjearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment\\u2014subject only to a few specifically established and well-delineated exceptions.\\\" Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnotes omitted).\\nIn this case the State argues that the warrant should be interpreted to include the automobile. However, we need not address that contention because the search would be deemed permissible, in any event, if conducted under a recognized exception to the warrant requirement. Here the State has urged two exceptions\\u2014consent to the search, and exigent circumstances for the search. We focus solely upon the question of consent.\\nA warrantless search may be conducted with consent of a third party who shares control of the premises or of the items to be searched. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). \\\"[Wjhere two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.\\\" United States v. Sferas, 210 F.2d 69, 74 (7th Cir.), cert. denied, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086 (1954). See also United States v. Stone, 471 F.2d 170 (7th Cir.1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973).\\nAs noted, Huskey's friend was a co-owner of the Wagoneer. At the suppression hearing, the court specifically questioned the friend regarding the extent of his control over the vehicle. When asked if there was any restriction on his use of the vehicle, the friend stated \\\"No. None that I know of, no. We had an equal partnership.\\\" The district court then ruled that the friend \\\"had the right to grant permission to take the property out of the car.\\\" We agree.\\nHuskey further argues that his friend's consent was not given voluntarily and freely. This argument is grounded entirely upon the following colloquies during the suppression hearing:\\nQ. [by public defender] Now, did you resist [the investigator's] attempt to execute that search warrant?\\nA. [by friend] Oh, no, no.\\nQ. Why not?\\nA. It was a search warrant. I wouldn't think of resisting a search warrant. Never thought of it.\\nQ. [by prosecutor] It's true . is it not, that if [the investigator] hadn't showed [sic] you any warrant at all and he wanted Mr. Huskey's stuff, you would have been glad to get rid of it?\\nA. Actually not. This is such a legal conflagration. I would not have released it, you know, without proper, without checking with you, without checking with [the public defender] or something, yes.\\nThese colloquies were supplemented by the following dialogue:\\nQ. [by prosecutor] But you weren't coerced by [the investigator]?\\nA. No, I was not coerced.\\nQ. Was your consent freely given?\\nA. It was.\\nQ. It was voluntarily given?\\nA. Yes.\\nQ. Let's face it; you are relieved to have that stuff off your hands?\\nA. Certainly.\\nWhether a person's consent to search is voluntary must be determined from the \\\"totality of the circumstances.\\\" Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); see also State v. Christofferson, 101 Idaho 156, 610 P.2d 515 (1980). The State has a heavy burden to prove that the consent was given freely and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Mere acquiescence to a warrant does not constitute consent. As the Supreme Court noted in Bumper:\\nWhen a law enforcement officer claims authority . under a warrant, he announces in effect that the [consenter] has no right to resist the search. The situation is instinct with coercion \\u2014 albeit colorably lawful coercion. Where there is coercion there cannot be consent. [Id. at 549, 88 S.Ct. at 1792.]\\nHowever, the facts of this case do not fall within the admonition of Bumper. There is no assertion here that the investigator actually made a claim of authority to search the Wagoneer under the warrant. Indeed, it is uncontroverted that the investigator obtained the warrant to search the residence, and his attention was redirected toward the Wagoneer only when the friend voluntarily informed him that he could find what he sought on the porch and in the car. Moreover, the friend's subsequent testimony at the suppression hearing did not establish that he would have withheld consent to search the car absent a warrant. His testimony demonstrated only that he would not have \\\"released\\\" the property to someone without a warrant unless he first checked with the prosecutor or public defender. Finally, the friend's testimony and conduct must be examined as a whole. The friend followed a consistent course of assisting the police in their investigation. He obtained police approval before he picked up the car in Nevada. He left those items in the car which were not seized in the first search. He accompanied the investigator to his home for the second search and told him where to look. He asked the investigator to take Huskey's property from the car, and thanked him for doing so. He unequivocally said he had consented to the second search freely and voluntarily, acknowledging that he was relieved to have Huskey's property removed from the car.\\nIn view of all the circumstances, we hold that the friend's consent to the second search of the Wagoneer was voluntarily given. We conclude that the search was constitutionally permissible. The district court did not err by refusing to suppress the evidence obtained during that search. The judgment of conviction is affirmed.\\nWALTERS, C.J., and SWANSTROM, J., concur.\\n. Despite the narrowness of the error claimed on appeal, we note that the record contains 188 pages of voir dire examination of prospective jurors. This transcript evidently was prepared at public expense. The voir dire presumably was included by specific request under I.A.R. 25(a)(1). However, the voir dire has no bearing on the issue presented to us. We reiterate our recent observation in State v. Palin, 105 Idaho 70, 675 P.2d 49 (1983), that appellate records should be tailored to the issues.\\n. Because the two constitutional provisions are so nearly the same, and because we find no constitutional violation, we need not invoke any independent state grounds for our decision in this case.\"}"
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diff --git a/idaho/4429009.json b/idaho/4429009.json
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+"{\"id\": \"4429009\", \"name\": \"William and Gretchen HELLAR, husband and wife; Bingo Si John; and Coeur D'Alene, Idaho, a Municipal Corporation, Plaintiffs-Appellants Cross-Respondents, and Samuel A. Rohrer; Douglas E. Long, Benewah County, a Political Subdivision of the State of Idaho; and Post Falls Highway District, Plaintiffs, v. Pete T. CENARRUSA, Secretary of the State of Idaho; Clifford Chapin, in his official capacity as Bonner County Clerk and on behalf of those similarly situated; and State of Idaho, Defendants-Respondents-Cross-Appellants, and John V. Evans, Governor of the State of Idaho, Appellant-Cross Respondent by Intervention\", \"name_abbreviation\": \"Hellar v. Cenarrusa\", \"decision_date\": \"1984-04-18\", \"docket_number\": \"No. 15201\", \"first_page\": \"617\", \"last_page\": \"618\", \"citations\": \"106 Idaho 617\", \"volume\": \"106\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:12:03.270207+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William and Gretchen HELLAR, husband and wife; Bingo Si John; and Coeur D\\u2019Alene, Idaho, a Municipal Corporation, Plaintiffs-Appellants Cross-Respondents, and Samuel A. Rohrer; Douglas E. Long, Benewah County, a Political Subdivision of the State of Idaho; and Post Falls Highway District, Plaintiffs, v. Pete T. CENARRUSA, Secretary of the State of Idaho; Clifford Chapin, in his official capacity as Bonner County Clerk and on behalf of those similarly situated; and State of Idaho, Defendants-Respondents-Cross-Appellants, and John V. Evans, Governor of the State of Idaho, Appellant-Cross Respondent by Intervention.\", \"head_matter\": \"682 P.2d 570\\nWilliam and Gretchen HELLAR, husband and wife; Bingo Si John; and Coeur D\\u2019Alene, Idaho, a Municipal Corporation, Plaintiffs-Appellants Cross-Respondents, and Samuel A. Rohrer; Douglas E. Long, Benewah County, a Political Subdivision of the State of Idaho; and Post Falls Highway District, Plaintiffs, v. Pete T. CENARRUSA, Secretary of the State of Idaho; Clifford Chapin, in his official capacity as Bonner County Clerk and on behalf of those similarly situated; and State of Idaho, Defendants-Respondents-Cross-Appellants, and John V. Evans, Governor of the State of Idaho, Appellant-Cross Respondent by Intervention.\\nNo. 15201.\\nSupreme Court of Idaho.\\nApril 18, 1984.\", \"word_count\": \"334\", \"char_count\": \"2116\", \"text\": \"ORDER\\nThe Court having under consideration the petition of the defendants for stay of the primary election date and further having under consideration various alternative motions for amendment of the election calendar, and the Court having considered the motions and affidavits in support thereof, enters its order as follows:\\nNOW, THEREFORE, IT IS HEREBY ORDERED that the petition for stay of the May 22, 1984, Idaho primary be, and the same is hereby, DENIED.\\nIT IS FURTHER ORDERED that the 1984 Idaho election calendar is modified in the following respects:\\nApril 16 Last day for filing declarations of candidacy (\\u00a7 34-704, Idaho Code)\\nApril 20 Last day for Secretary of State to certify candidates to legislative district central committees (\\u00a7 34-706, Idaho Code)\\nApril 24 Last day for legislative district central committees to fill vacancies which exist as a result of no political party candidate filing (\\u00a7 34-714, Idaho Code)\\nApril 27 Last day for legislative district vacancy candidates to qualify for ballot status (\\u00a7 34-714, Idaho Code)\\nIT IS FURTHER ORDERED that the requirement of procurring and filing petitions for candidates selected pursuant to the provisions of \\u00a7 34-714, Idaho Code, be, and is hereby, WAIVED.\\nIT IS FURTHER ORDERED that absentee ballots postmarked on or before 8:00 p.m. on May 22, 1984, may be counted if received by the appropriate county clerk on or before 5:00 p.m. on Tuesday, May 29, 1984.\"}"
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diff --git a/idaho/4439880.json b/idaho/4439880.json
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--- /dev/null
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+"{\"id\": \"4439880\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Robert A. LOWE, Defendant-Appellant\", \"name_abbreviation\": \"State v. Lowe\", \"decision_date\": \"1990-08-02\", \"docket_number\": \"No. 18000\", \"first_page\": \"391\", \"last_page\": \"394\", \"citations\": \"120 Idaho 391\", \"volume\": \"120\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:38:25.403604+00:00\", \"provenance\": \"CAP\", \"judges\": \"SCHILLING, J., pro tern., concurs.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Robert A. LOWE, Defendant-Appellant.\", \"head_matter\": \"816 P.2d 347\\nSTATE of Idaho, Plaintiff-Respondent, v. Robert A. LOWE, Defendant-Appellant.\\nNo. 18000.\\nCourt of Appeals of Idaho.\\nAug. 2, 1990.\\nPetition for Review Granted Oct. 9, 1990.\\nAffirmed Aug. 22, 1991.\\nRandall D. Schulthies, Pocatello, for defendant-appellant.\\nJim Jones, Atty. Gen., James E. Leuenberger, Deputy Atty. Gen., Boise, for plaintiff-respondent. James E. Leuenberger argued.\\nSee, 120 Idaho 252, 815 P.2d 450.\", \"word_count\": \"1391\", \"char_count\": \"8523\", \"text\": \"WALTERS, Chief Judge.\\nRobert A. Lowe entered guilty pleas to charges of vehicular homicide and aggravated driving while under the influence of an intoxicating substance. The issue on appeal is whether I.C. \\u00a7 18-301 prohibits separate punishment where a defendant, in a single driving incident, commits manslaughter as to one victim, and drunk driving resulting in great bodily harm to a separate victim. We hold that under these circumstances, separate punishment is permissible. Accordingly, we affirm.\\nThe relevant facts can be summarized briefly. On September 24, 1988, Robert Lowe was driving his vehicle while under the influence of alcohol and collided with another vehicle. He killed the driver of the other vehicle, and seriously injured one of her passengers. Lowe pled guilty to charges of vehicular homicide, I.C. \\u00a7 18-4006(3)(b), and aggravated driving under the influence of alcohol, I.C. \\u00a7 18-8006(1). The district court imposed separate, unified sentences for each conviction: a fixed term of two years and an indeterminate term of four years on the vehicular manslaughter conviction; and eighteen months fixed, three years indeterminate on the aggravated driving while under the influence conviction. The district court ordered that the sentences run consecutively.\\nLowe does not challenge his dual convictions under the double jeopardy clause of the United States Constitution. Rather, Lowe avers that the imposition of multiple punishments by the sentencing court was in contravention of I.C. \\u00a7 18-301, a statute exceeding the scope of the constitutional protection against double jeopardy. See State v. Horn, 101 Idaho 192, 197, 610 P.2d 551, 556 (1980).\\nIdaho Code \\u00a7 18-301 provides:\\nAn act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.\\nPursuant to the statute, a defendant cannot be punished twice for the same act. Thus, if a defendant's single action creates liability under two criminal statutes, he or she can only be sentenced under one statute. State v. Horn, 101 Idaho at 197, 610 P.2d at 556.\\nLowe contends that the death of the first victim and the bodily injury inflicted upon the second victim resulted from his single act of driving under the influence and that, pursuant to I.C. \\u00a7 18-301, he can be punished for only one of the convictions: either vehicular manslaughter or aggravated driving while under the influence. We disagree.\\nIn general, we employ a \\\"temporal test\\\" \\u2014 a test of time \\u2014 to determine whether the statutory prohibition against double punishment has been violated. State v. Sterley, 112 Idaho 1097, 739 P.2d 396 (1987). Thus, if the acts comprising one of the crimes are completed before the commission of the second crime, then the two crimes cannot be said to arise from the same act. Id. at 1100, 739 P.2d at 397. However, the temporal test is not necessarily dispositive where multiple victims result from a single incident. \\\"Where a single act of violence is committed with an intent to harm more than one person [or] with means likely to harm more than one person, and results in multiple victims, multiple punishments are warranted and permitted.\\\" State v. Major, 111 Idaho 410, 415 n. 5, 725 P.2d 115, 120 n. 5 (1986) (citing the rule in Neal v. State, 55 Cal.2d 11, 9 Cal. Rptr. 607, 612, 357 P.2d 839, 844 (1960) cert. denied 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700 (1961)). Under this principle, a defendant who wilfully or recklessly threatens several persons with injury or death is viewed as having \\\"acted upon\\\" each of the resulting victims, and I.C. \\u00a7 18-301 accordingly does not apply. See State v. Mane, 783 P.2d 61, 65 (Utah App. 1989) (viewing the multiple-victim rule as a recognition of multiple acts committed); Wilkoff v. Superior Court, 38 Cal.3d 345, 211 Cal.Rptr. 742, 745-46, 696 P.2d 134, 138 (Cal.1985) (viewing the multiple-victim rule as an exception to the multiple-punishment prohibition, based on defendant's greater culpability). Were this principle not applicable to a defendant's violent conduct resulting in multiple victims, \\\"one who placed a bomb in an airline resulting in the deaths [or injury] of dozens of people would be less severely punished than one who repeatedly fired a gun at a number of persons, with a similar resulting casualty figure.\\\" Mane, 783 P.2d at 64. See also, State v. Rieck, 286 N.W.2d 724 (Minn. 1979).\\nWe conclude that the rule permitting multiple punishments when multiple injuries result from a single act of violence, governs this matter. We hold that the commission of vehicular manslaughter while driving under the influence constitutes an act of violence against the person. See State v. Lee, 116 Idaho 515, at 516, 777 P.2d 737, at 738 (Ct.App.1990) (review denied); accord People v. McFarland, 47 Cal.3d 798, 254 Cal.Rptr. 331, 333-35, 765 P.2d 493, 495-96 (1989). Clearly, such conduct is likely to result in harm to others using the public highways. We conclude that where a defendant, as the result of a single driving incident, commits vehicular manslaughter, he properly may be punished for injury to another person resulting from the same incident. Accordingly, we hold that the sentencing judge did not err in imposing dual sentences for Lowe's convictions for vehicular manslaughter and aggravated driving under the influence.\\nThe judgments of conviction, including the sentences, are affirmed.\\nSCHILLING, J., pro tern., concurs.\"}"
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diff --git a/idaho/4443617.json b/idaho/4443617.json
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+"{\"id\": \"4443617\", \"name\": \"Terry JEPHSON, by his guardian ad litem Robert Jephson, and Robert Jephson, individually, Plaintiffs-Appellants, v. Theresa Louise AMBUEL, Defendant-Respondent\", \"name_abbreviation\": \"Jephson v. Ambuel\", \"decision_date\": \"1970-08-21\", \"docket_number\": \"No. 10479\", \"first_page\": \"790\", \"last_page\": \"794\", \"citations\": \"93 Idaho 790\", \"volume\": \"93\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:38:33.854903+00:00\", \"provenance\": \"CAP\", \"judges\": \"McFADDEN, C. J., and DONALDSON, SHEPARD and SPEAR, JJ., concur.\", \"parties\": \"Terry JEPHSON, by his guardian ad litem Robert Jephson, and Robert Jephson, individually, Plaintiffs-Appellants, v. Theresa Louise AMBUEL, Defendant-Respondent.\", \"head_matter\": \"473 P.2d 932\\nTerry JEPHSON, by his guardian ad litem Robert Jephson, and Robert Jephson, individually, Plaintiffs-Appellants, v. Theresa Louise AMBUEL, Defendant-Respondent.\\nNo. 10479.\\nSupreme Court of Idaho.\\nAug. 21, 1970.\\nAlbaugh, Bloem, Smith & Pike, Idaho Falls, for appellants.\\nPetersen, Moss & Olsen, Idaho Falls, for appellee.\", \"word_count\": \"2528\", \"char_count\": \"15109\", \"text\": \"McQUADE, Justice.\\nPlaintiffs-appellants Terry Robert Jephson and his father, Robert Jephson, as guardian and individually, brought this action in the district court alleging that Terry Jephson (hereinafter sometimes referred to as appellant) had been injured as the result of negligence on the part of defendant-respondent Theresa Louise Ambuel. Respondent answered denying negligence and pleading the affirmative defense of contributory negligence. Upon submission of several affidavits and the depositions of appellant and respondent, the district court granted respondent's motion for summary judgment. This order was based upon the conclusion that all of the evidence offered by both parties indicated that respondent was not negligent as a matter of law. The trial court also held that appellant had been contributorially negligent. The Jephsons have appealed from the summary judgment.\\nOn July 16, 1967, respondent, who was proceeding westward on the South Idaho Falls Interchange between US-191 and 1-15, struck the appellant with her car. Appellant had been driving a motorcycle ahead of respondent and was traveling in the same direction as respondent. The collision occurred in the eastbound lane of the highway. The brakes on respondent's automobile were in good working order and there were 156 feet of skid marks left by her vehicle. The road was hard-surface and dry, and the accident occurred in the afternoon of a sunny day. A state trooper, trained and experienced in the investigation of automobile accidents, concluded that, based on the conditions of the road, the quality of respondent's brakes, and the length of the skid marks, there was no indication that the respondent had been traveling faster than fifty-five miles per hour.\\nBoth appellant and respondent were alone at the time, and there were no other eyewitnesses to the accident. Appellant has no recollection of any occurrences, including the accident, for a five week period beginning in the morning of July 16, 1967.\\nIn her deposition, taken in September, 1968, in Idaho Falls, respondent gave the following account of the collision. She was wearing her glasses on a sunny day and she was well rested. Her car was in good repair, and the road was dry and in good condition. Both she and the appellant were proceeding in a westerly direction on a two-lane, two-way highway. There was no other traffic. Her speed was between fifty-five and sixty miles per hour, somewhat faster than that of appellant. When she first noticed appellant, they were four to five hundred feet apart. She removed her foot from the accelerator, in preparation for passing and her car slowed slightly as she approached appellant. When they were approximately 140 to 150 fet apart, the motorcycle and rider began to \\\"zig-zag\\\" and waver as if out of control. Respondent then sharply applied her brakes and her car swerved into the left lane. When the two vehicles were only fifteen to twenty feet apart, the motorcycle suddenly turned into respondent's path and she hit it \\\"broadside\\\" with the right front end of her car. Respondent has no recollection of using her horn, and she said that she did not have time to do so. Respondent estimated that, when she began braking her automobile, her speed was 45 to 50 m. p. h., and that when she struck appellant she had slowed to 20 or 25 m. p. h. The collision occurred approximately four or five feet from the center line in the eastbound lane of the highway. Respondent immediately halted her vehicle and hailed passing motorists, and several people stopped. Five or ten minutes after the accident Philip Jordin, appellant's cousin, appeared and at some time thereafter respondent spoke with him. Respondent testified that she did not speak with appellant's aunt and uncle who were also at the scene.\\nIn her affidavit in support of her motion for summary judgment, respondent said that she saw no hand signal or attempt to look around or behind on the part of the driver of the motorcycle. She also said, and it is not disputed, that there was no intersection within 500 feet of the point of impact, nor were there any private driveways leading onto the highway at the place of the collision. There are no inconsistencies of substance between respondent's deposition and her affidavit.\\nIn his affidavit, Philip Jordin reported that the respondent told him \\\"I don't know how it happened,' it was so fast, all I know is I hit him and it was my fault\\\" at the accident scene at least ten minutes after the collision occurred. He also said that respondent called him several days later and again told him that it was her fault. He also said that the motorcycle appeared to have been hit in the rear.\\nFaye Jordin, appellant's aunt, said, in her affidavit, that, after she had arrived at the accident site, she asked respondent \\\"who hit him ?\\\" Respondent is said to have answered, \\\"I did; I didn't see him.\\\"\\nRonald Hoodenpyle, one of the investigating state police officers, said, in his affidavit, that the respondent had not told him that she was going to pass the appellant, that the motorcycle had swerved to the left and turned broadside in the front of her when they were fifteen or twenty feet apart, or that the appellant had failed to look behind him. Officer Hoodenpyle also said that the respondent's automobile appeared to have struck the left rear portion of the motorcycle.\\nTerry Jephson's deposition sheds no light on either of the issues of his own or respondent's negligence, because he has absolutely no recollection of any of the circumstances of the accident.\\nAppellant has questioned the finding of. the trial court that there was no evidence of respondent's negligence and the finding that Terry Jephson was contributorially negligent as a matter of law. We hold that the first of these findings was correct, and, therefore, we do not reach the second issue of appellant's negligence.\\nAppellant contends that the statements which Philip Jordin and Faye Jordin say that Theresa Ambuel made to them, as heretofore quoted, raise a genuine issue as to a material fact and that summary judgment should not, therefore, have been granted. We do not agree with this contention.\\nWe have held that, in order for there to be a \\\"genuine issue as to any material fact\\\" as that expression is used in-Idaho R.Civ.P. 56(c), there must be more than the mere slightest doubt as to the facts to forestall summary judgment. A mere scintilla of evidence will not create an issue under Idaho R.Civ.P. 56(c) ; there must be evidence upon which a jury could rely. This Court has held, therefore, that a summary judgment should be granted if the posture of the evidence before the court on the motion would warrant a directed verdict if the case were to go to trial. We must determine whether, if appellant's aunt and cousin had asserted in testimony at trial that respondent had made the statements attributed to her, those assertions would have been enough when placed with the other evidence offered in this action to take the case to the jury.\\nThe statements would be admissible at trial to establish facts relevant to substantive issues under the admissions of a party opponent exception to the hearsay rule. Oral extra-judicial admissions constitute a class of evidence which is most subject to error and abuse. No matter how well intentioned and meticulous a witness might be, he may still, by an omission or slight change of wording, alter the original meaning of the party opponent being quoted; consequently such testimony should be viewed with caution. As a consequence it has been held that oral, extra-judicial admissions, opposed by substantial evidence and without corroboration, are not enough to carry a case to a jury without some other independent evidence on the principle question.\\nA case which is particularly pertinent to this action is LaMoreaux v. Fosket, 45 Wash.2d 249, 273 P.2d 795 (1954). It involved a directed verdict in the favor of the defendant in an action for injuries to a small child. The Supreme Court of Washington stated that, in order to reverse the judgment on the directed verdict, there would have to be evidence of negligence. Three admissions on the part of the defendant to the effect that it had been carelessness on his part in not being more careful in looking before he started his car were the only evidence tending to establish his negligence. There was no eyewitness to the accident other than the defendant. The Washington Supreme Court held that \\\"evidence of verbal declarations of the adverse party where there are no corroborating facts or circumstances, is not sufficient to sustain a verdict upon a vital issue.\\\"\\nTheresa Louise Ambuel's extrajudicial statements, as recounted by appellant's aunt and cousin, are not sufficient evidence to forestall the entry of summary judgment in this action. The two statements to Philip Jordin by respondent to the effect that she was \\\"at fault\\\" were merely conclusions; they provide no factual particulars upon which a jury could predicate a finding of negligence. They indicated no acts or omissions on the part of the respondent which could be described as \\\"negligent.\\\" A party is not bound by admissions of \\\"fault\\\" where there is no legal liability for actionable \\\"fault\\\" based on the evidence. The only inferences of negligence which could be drawn from these statements would have to be the product of pure speculation, and a judgment should not be allowed to rest on speculation and conjecture alone.\\nThe statement which respondent is reported to have made to Faye Jordin is also insufficient to take the appellant's case to a jury. In response to appellant's aunt's query as to who had hit her nephew, respondent is alleged to have indicated that it had been she and that she, respondent, had not seen appellant. The first part of this statement simply states what is already known, that respondent's car hit appellant's motorcycle. The second half of the statement is not corroborated by any circumstance established by independent evidence, and no other person has asserted that he heard the statement. It is, furthermore, expressly contradicted by all other evidence in the case.\\nThese extra-judicial, oral admissions of an adverse party stand on a level much inferior to those involved in Curtis v. Curtis, 58 Idaho 76, 70 P.2d 369 (1937). That case held that an out-of-court statement by the defendant in a telephone conversation to the effect that she must have fallen asleep while driving was admissible and was a sufficient basis for a jury's verdict of negligence. The admission in that case was not a general conclusion of fault, nor was it a statement the meaning of which would suffer from a slight misquotation. No matter how stated, it served to establish a fac\\u00ed upon which a jury's conclusion of fault could rest, i. e., allowing oneself to fall asleep at the wheel. The statement in Curtis was heard and testified about by two' people, one at the defendant's end of the phone conversation and one to whom the defendant spoke. Other, independent evidence existed which made the statements credible. It was shown that the defendant had been the only driver on a continuous day and night automobile trip which, at the time of the accident, was fourteen hours old. The automobile accident in Curtis was one involving a single car which ran off the road and into a tree, and there was no explanation for this unusual event other than that provided by the defendant's admission. And, finally, in that case the defendant testified that she did not remember what had happened, but that she was \\\"very very tired\\\" immediately before the accident because she had driven all night; she could offer no account at all of the accident itself. In that case, therefore, the admissions were more inherently credible and were of greater value to the fact-finder, than are those in this action. And the admissions in Curtis were supported by proof of extrinsic circumstances unavailable to appellant. Curtis is not authority for allowing the alleged extrajudicial statements of respondent to carry this action beyond respondent's motion for summary judgment.\\nBecause we hold that there was not a showing sufficient to raise an issue with respect to the material fact of respondent's negligence, we affirm the district court's order entering summary judgment on behalf of respondent. Costs to respondent.\\nMcFADDEN, C. J., and DONALDSON, SHEPARD and SPEAR, JJ., concur.\\n. \\\"Motion for summary judgment and proceedings thereon. \\u2014 The motion shall be served at least ten (10) days before the time fixed for the bearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall he rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Such judgment, when appropriate, may be rendered for or against any party to the action.\\\" (Emphasis added.)\\n. Petricevich v. Salmon River Canal Co., 92 Idaho 865, 871, 452 P.2d 362, 368 (1969); Tri-State Nat. Bank v. Western Gateway Storage Co., 92 Idaho 543, 546, 447 P.2d 409, 412 (1968).\\n. 3 W. Barron A. Holtzoff, Federal Practice and Procedure \\u00a7 1234, at 133 (C. Wright Rules Ed. 1958) cited in Petricevich v. Salmon River Canal Co., supra note 2.\\n. Petricevich v. Salmon River Canal Co., supra note 2; see generally 3 W. Barron & A. Holtzoff, supra note 3; J. Moore, Moore's Federal Practice \\u00a7 56.11 [3], at 2171 (2d ed. 1966).\\n. E. g. Curtis v. Curtis, 58 Idaho 76, 70 P.2d 369 (1937) ; Judd v. Oregon Short Line R.R. Co., 55 Idaho 461, 44 P.2d 291 (1935).\\n. In Re MacKenzie, 54 Idaho 481, 489-490, 33 P.2d 113 (1934) ; accord, Burnett v. Lemon, 185 Or. 54, 199 P.2d 910, 914 (1948) ; Peterson v. Wright, 183 Or. 223, 191 P.2d 645, 650 (194S) ; LaMoreaux v. Fosket, 45 Wash.2d 249, 273 P.2d 795, 802 (1954). A criminal conviction will not stand if supported by uncorroborated, extra-judicial admissions of the defendant ; State v. Wilson, 51 Idaho 659, 669, 9 P.2d 497 (1932); State v. Downing, 23 Idaho 540, 544, 130 P. 461 (1913).\\n. Larson v. Papst, 205 Or. 126, 286 P. 2d 123, 125 (1955) ; Burnett v. Lemon, supra note 6; Peterson v. Wright, supra note 6; LaMoreaux v. Fosket, supra note 6.\\n. 273 P.2d 795, at 802.\\n.Hull v. Oklahoma City Baseball Co., 196 Okl. 40, 163 P.2d 982, 983 (1945).\\n. See Petricevich v. Salmon River Canal, Co., supra note 2; Peterson v. Parry, 92 Idaho 647, 448 P.2d 653 (1968).\\n. See Peterson v. Wright, supra note 6.\"}"
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+"{\"id\": \"4446627\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Dell ALLDREDGE, Defendant-Appellant\", \"name_abbreviation\": \"State v. Alldredge\", \"decision_date\": \"1974-06-27\", \"docket_number\": \"No. 11437\", \"first_page\": \"7\", \"last_page\": \"10\", \"citations\": \"96 Idaho 7\", \"volume\": \"96\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:38:29.507359+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHEPARD, C. J., and DONALDSON, McQUADE and McFADDEN, JJ., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Dell ALLDREDGE, Defendant-Appellant.\", \"head_matter\": \"523 P.2d 824\\nSTATE of Idaho, Plaintiff-Respondent, v. Dell ALLDREDGE, Defendant-Appellant.\\nNo. 11437.\\nSupreme Court of Idaho.\\nJune 27, 1974.\\nMcDermott & McDermott, Pocatello, for defendant-appellant.\\nW. Anthony Park, Atty. Gen., James P. Kaufman, Asst. Atty. Gen., Boise, for plaintiff-respondent.\", \"word_count\": \"1388\", \"char_count\": \"8343\", \"text\": \"BAKES, Justice.\\nOn November 30, 1964, defendant-appellant Dell Alldredge was charged with the crime of second degree burglary and was arraigned in probate court. Appellant waived his preliminary hearing on December 15, 1964, and appeared for arraignment in district court on December 17, 1964.\\nAt the arraignment, the district court inquired of appellant concerning his appearance without counsel, and advised appellant that counsel would be provided for him if he wished. Appellant waived his right to counsel and entered a plea of guilty which was accepted by the trial court. The court thereafter sentenced appellant to serve an indeterminate sentence in the Idaho State Penitentiary for a period not to exceed two years. Appellant fully served the sentence imposed as a result of the conviction challenged herein.\\nAppellant is presently incarcerated in the Nevada State Prison, serving a ten year sentence for receiving stolen property. The Idaho conviction on the aforementioned second degree burglary charge has prevented appellant from being eligible for parole from the Nevada prison. On December 6, 1972, appellant filed a petition for post conviction relief in Power County, alleging that he did not competently and intelligently waive his right to counsel and that his guilty plea was neither intelligently nor voluntarily entered by him. The district court reviewed the record and found that appellant was convicted legally and that he was not deprived of any of his rights. From the denial of that petition, appellant prosecutes this appeal.\\nWe initially note that even though appellant has fully served the sentence imposed for the conviction herein challenged, the questions raised in his petition for post conviction relief are not moot. In a case closely analogous to the present case, this Court held that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences would be imposed on the basis of the challenged conviction. In so holding, the Court found that ineligibility for parole resulting from prior convictions is a sufficient adverse effect to bring a party within the class of collateral legal consequences which will remove a case from the limbo of mootness. Smith v. State, 94 Idaho 469, 491 P.2d 733 (1971). Cf. Tryon v. Baker, 94 Idaho 222, 485 P.2d 964 (1971).\\nAppellant first assigns as error the fact that he was not adequately informed by the trial court of his right to counsel prior to entering a plea upon the felony charge and that he did not make a knowing intelligent waiver of his right to counsel. The colloquy between appellant and the trial court regarding counsel was as follows:\\n\\\"THE COURT: You understand that you have the right to have counsel at all stages of these proceedings ?\\n\\\"THE DEFENDANT: Yes, sir.\\n\\\"THE COURT: Do you wish counsel ? \\\"THE DEFENDANT: No, sir.\\n\\\"THE COURT: And do you understand that this court would furnish you counsel if you wanted it?\\n\\\"THE DEFENDANT: Yes, sir.\\n\\\"THE COURT: And you are willing to waive that right?\\n\\\"THE DEFENDANT: Yes, sir.\\n\\\"THE COURT: All right, Sir. At this time the clerk will read to you the prosecuting attorney's information.\\n\\\"(Clerk read prosecuting attorney's information and copy handed to the defendant.)\\n\\\"THE COURT: Mr. Alldredge, you have .just had read to you the prosecuting attorney's information, and you have been handed a certified copy of that information. I again ask you if you understand the nature of the charge against you?\\n\\\"THE DEFENDANT: Yes, sir, I understand.\\n\\\"THE COURT: And again I ask you if you fully understand your rights to counsel ?\\n\\\"THE DEFENDANT: Yes sir.\\n\\\"THE COURT: And you are willing to waive that right?\\n\\\"THE DEFENDANT: Yes, sir.\\\"\\n(Rptr. Tr., pp 3^1).\\nThe trial court's duty to inform a defendant of his right to counsel was stated in Martinez v. State, 92 Idaho 148, 438 P.2d 893 (1968), wherein the Court stated:\\n\\\"Upon a felony arraignment before the district court, that trial court has the duty to inform ah accused that he has the right to be represented by an attorney and that an attorney will be provided at public expense in the event the accused's indigency makes it necessary. (Omitting citations).\\\" 92 Idaho at 149, 438 P.2d at 894.\\nSee also Nester v. State, 92 Idaho 112, 438 P.2d 31 (1968); Abercrombie v. State, 91 Idaho 586, 428 P.2d 505 (1967); Pharris v. State, 91 Idaho 456, 424 P.2d 390 (1967); Bement v. State, 91 Idaho 388, 422 P.2d 55 (1966); I.C. \\u00a7 19-1512.\\nWhile trial courts presently follow more elaborate practices in explaining a defendant's right to counsel, we do not find that the trial court's explanation to appellant in 1964 concerning his right to counsel was constitutionally defective. This case differs from State v. Thurlow, 85 Idaho 96, 375 P.2d 996 (1962), wherein this Court held that the accused did not waive his right to counsel. In Thurlow the record indicated that the accused was uneducated and not considered intelligent. The entire colloquy between the court and the accused concerning the right to counsel was as follows:\\n\\\"'THE COURT: The defendant, Harold Thurlow, will rise please. You have been charged with the crime of lewd conduct with a child under sixteen under the name of Harold L. Thurlow. Is that your true name?\\n\\\"'MR. THURLOW: Yes, sir.\\n\\\" 'THE COURT: Do you have an attorney?\\n\\\"'MR. THURLOW: No.\\n\\\" 'THE COURT: Do you want an attorney ?\\n\\\"'MR. THURLOW: No.\\n\\\" 'THE COURT: You will listen to the reading of the information.' \\\" 85 Idaho at 99-100, 375 P.2d at 997.\\nIn this case, the trial court specifically advised appellant of his right to counsel at all stages of the proceedings and specifically informed appellant that the court would furnish him counsel if he wanted it. Implicit in the court's statement that the court would furnish counsel was the fact that it would be furnished at the expense of the county. Appellant stated that he understood his right to counsel and, in response to the court's offer to furnish him counsel, stated that he understood such right and waived it. Additionally, following the reading of the prosecuting attorney's information, the court again inquired of appellant concerning whether he fully understood and waived his right to counsel, to which the appellant answered, \\\"Yes, sir.\\\" While our present criminal rules, which were adopted in 1972, contemplate a more comprehensive explanation of all constitutional and statutory rights, it is the conclusion of this Court that, when judged by 1964 standards, appellant knowingly and voluntarily waived his right to counsel. Jackson v. State, 87 Idaho 267, 392 P.2d 695 (1964).\\nAppellant next assigns as error the fact that he was not informed by the trial court of the possible consequences of his plea of guilty prior to the court accepting his plea. The law in existence at the time of appellant's arraignment did not require that a defendant be advised as to what penalty might be imposed upon a plea of guilty. In Jackson v. State, supra, this Court, in ruling upon the same issue, stated:\\n\\\"As to the suggestion that defendant was not 'advised as to what penalty might be imposed upon a plea of guilty, we held in Cobas v. Clapp, supra, that he had no such right.\\\" 87 Idaho at 283, 392 P.2d at 705.\\nPresent standards require that the trial court inform a defendant of the possible consequences of his guilty plea. Idaho Rules of Criminal Practice & Procedure, Rule 11. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Lockard v. State, 92 Idaho 813, 451 P.2d 1014 (1969). However, those standards have not been applied retroactively. See Smith v. State, 94 Idaho 469, 491 P.2d 733 (1971) citing Coleman v. Alabama, 399 U. S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1969). Since appellant's plea of guilty occurred more than five years prior to the decision in Boykin v. Alabama, and since there is no allegation or evidence of coercion, appellant is not entitled to relief.\\nAffirmed.\\nSHEPARD, C. J., and DONALDSON, McQUADE and McFADDEN, JJ., concur.\\n. Nevada Revised Statutes, \\u00a7 213.110.\"}"
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diff --git a/idaho/4446893.json b/idaho/4446893.json
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+"{\"id\": \"4446893\", \"name\": \"SIMPLOT SOILBUILDERS, INC., a corporation, Plaintiff-Appellant, v. Russell LEAVITT and John Houtman, Defendants-Respondents\", \"name_abbreviation\": \"Simplot Soilbuilders, Inc. v. Leavitt\", \"decision_date\": \"1974-06-28\", \"docket_number\": \"No. 11500\", \"first_page\": \"17\", \"last_page\": \"18\", \"citations\": \"96 Idaho 17\", \"volume\": \"96\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:38:29.507359+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHEPARD, C. J., and DONALDSON, McQUADE and McFADDEN, JJ., concur.\", \"parties\": \"SIMPLOT SOILBUILDERS, INC., a corporation, Plaintiff-Appellant, v. Russell LEAVITT and John Houtman, Defendants-Respondents.\", \"head_matter\": \"523 P.2d 1363\\nSIMPLOT SOILBUILDERS, INC., a corporation, Plaintiff-Appellant, v. Russell LEAVITT and John Houtman, Defendants-Respondents.\\nNo. 11500.\\nSupreme Court of Idaho.\\nJune 28, 1974.\\nKenneth F. Clarke of Clarke & Jarman, Blackfoot, for plaintiff-appellant.\\nDwight E. Baker of Furchner, Martsch & Baker, Blackfoot, for defendants-respondents.\", \"word_count\": \"798\", \"char_count\": \"5068\", \"text\": \"BAKES, Justice.\\nThis action was brought by Simplot Soil-builders, Inc., (hereinafter Simplot) to obtain payment for fertilizer applied to the property of defendant John Houtman. The fertilizer had been ordered by defendant Russell Leavitt, the tenant farmer of Houtman, for use on the Houtman property. Both defendants were sued as principals to the contract. Before trial, default judgment was entered against Houtman, who has declared bankruptcy. He is not a party to this appeal. The trial court, sitting without a jury, found that Simplot knew Leavitt was Houtman's agent when the fertilizer was ordered, and therefore concluded that Leavitt was not obligated to pay for the fertilizer as a principal to the contract. Appeal is taken from this finding of fact and conclusion of law.\\nLeavitt had ordered fertilizer to be delivered to two parcels of property that he was farming \\u2014 the Maruji place which he owned and farmed himself, and the Houtman place which he had previously owned and had recently sold to Houtman, agreeing, as a condition of sale, to farm it for Houtman. Leavitt testified that he had informed Simplot's employees that the fertilizer which he ordered for the Houtman place would be for Houtman's account and that any questions which they had about that matter should be directed to Houtman. Simplot's employees testified that they did not remember receiving any such instructions from Leavitt, although they were aware that Houtman had an interest in the property. They further were aware that a wide variety of landlord-tenant farmer arrangements were common in that area and were familiar with a great number of billing arrangements between landlord and tenant farmer, including the one which Leavitt described. The judge, after weighing the testimony, found that Leavitt was acting as Houtman's agent when he ordered the fertilizer and that Leavitt had informed Simplot of the agency, and thus concluded that Leavitt was not liable to pay for the fertilizer. Simplot argues that this finding of agency is incorrect as a matter of law. However, an examination of the record indicates that there is substantial though conflicting evidence to support the trial court's finding upon this point, and therefore we will not disturb that finding. Planting v. Board of County Commissioners of Ada County, 95 Idaho 484, 511 P.2d 301 (1973).\\nSimplot further argues, however, that \\u2022much of the evidence by which Leavitt attempted to establish the agency relationship with Houtman was improperly admitted in violation of the hearsay rule. Three specific items were objected to:\\n(1) Leavitt's testimony concerning his arrangements with Houtman;\\n(2) defendant's exhibit 1, consisting of some sheets of paper listing the charge per acre for various farming services to be performed for Houtman by Leavitt, followed by the line (written in Houtman's hand), \\\"To be paid for as work has been performed. [Signed] John Houtman, 3-16-70; \\\" and\\n(3)defendant's exhibit 2, a notebook in which Leavitt kept a running tally of services performed on the Houtman place and the charges for them.\\nFirst, regarding the testimony of Leavitt concerning his agreement with Houtman to farm Houtman's property, Leavitt testified that he had an oral agreement with Houtman to order fertilizer for the Houtman place and that Houtman had told him to order fertilizer from the same company that Leavitt ordered fertilizer for his own operation. The statement of the arrangement reached between the two parties is admissible as evidence. In the case of Killinger v. Iest, 91 Idaho 571, 428 P.2d 490 (1967), where the agency of another tenant farmer and his liability for goods ordered was at issue, this Court said:\\n\\\"While an agency relation cannot be proved by the extra-judicial statements and declarations of one purporting to act as agent, the fact of agency, when it rests in a parol agreement, may be established at trial by the testimony of the agent himself. The agent's extra-judicial statements are mere hearsay, but at trial the agent's testimony concerns his relationship to the alleged principal. The relationship being in issue and the witness being subject to cross-examination, the agent's testimony cannot be termed hearsay. (Citations omitted).\\\" 91 Idaho 576, 428 P.2d at 495.\\nThere was no error in the admission of this testimony.\\nRegarding the two exhibits introduced into evidence over objection, defendant's exhibit 1, the papers signed by Houtman, and defendant's exhibit 2, Leavitt's records of charges to Houtman for the work as performed, were business records within I.C. \\u00a7 9-414 and were admissible'.\\nJudgment affirmed. Costs to respondent.\\nSHEPARD, C. J., and DONALDSON, McQUADE and McFADDEN, JJ., concur.\"}"
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+"{\"id\": \"4448466\", \"name\": \"Dorothy Ann GUILLARD, Claimant-Appellant, v. DEPARTMENT OF EMPLOYMENT, Defendant-Respondent\", \"name_abbreviation\": \"Guillard v. Department of Employment\", \"decision_date\": \"1979-11-28\", \"docket_number\": \"No. 12695\", \"first_page\": \"647\", \"last_page\": \"658\", \"citations\": \"100 Idaho 647\", \"volume\": \"100\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:06:29.635966+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONALDSON, C. J., SHEPARD, J., and SCOGGIN, J. Pro Tem., concur.\", \"parties\": \"Dorothy Ann GUILLARD, Claimant-Appellant, v. DEPARTMENT OF EMPLOYMENT, Defendant-Respondent.\", \"head_matter\": \"603 P.2d 981\\nDorothy Ann GUILLARD, Claimant-Appellant, v. DEPARTMENT OF EMPLOYMENT, Defendant-Respondent.\\nNo. 12695.\\nSupreme Court of Idaho.\\nNov. 28, 1979.\\nPaul L. Westberg, Boise, for claimant-appellant.\\nDavid H. Leroy, Atty. Gen., R. LaVar Marsh, Roger B. Madsen, Donald L. Harris, Deputy Attys. Gen., Boise, for defendant-respondent.\", \"word_count\": \"6397\", \"char_count\": \"39453\", \"text\": \"BAKES, Justice.\\nThe appellant Guillard, became unemployed on October 5, 1976, when her employer closed down its Emmett plant. At that time Guillard had over 14 years of experience in cost accounting and general business; she was then earning $4.25 an hour. Guillard promptly applied for unemployment insurance benefits. She was found qualified and received benefits until she was determined to be ineligible by a claims examiner for the Department of Employment, effective February 6,1977, on the basis that she had failed to accept suitable work, be available for work, or to seek work.\\nGuillar\\u00e1 appealed these determinations and a hearing was held. The appeals examiner for the Department reversed that portion of the earlier decision by the claims examiner that Guillar\\u00e1 had refused suitable work. He affirmed the decision that she was not available for work or seeking work, doing so on the basis that Guillar\\u00e1 was only seeking jobs in the the fields of accounting or general business and was confining her search to jobs in the Emmett area which paid at least $4.25 an hour. Guillar\\u00e1 gave family responsibilities and added travel expense as reasons for so limiting her job search. During this time, Guillar\\u00e1 had found , and accepted two part time jobs in the Emmett area paying hourly rates of $4.25 and $4.95.\\nGuillar\\u00e1 sought review by the Industrial Commission and another hearing was held before a referee. The Commission adopted the findings of the referee, concluding that Guillar\\u00e1, by restricting her search to positions in the accounting-clerical field paying at least $4.00 per hour in the Emmett area had \\\"effectively and substantially reduced her likelihood for employment and, by such restrictions, claimant [was] not 'available' for work within the meaning of the Employment Security Law.\\\" I.C. \\u00a7 72-1366(d). Guillar\\u00e1 then appealed to this Court.\\nApproximately one month after the Commission's decision, Guillar\\u00e1 found and accepted an accounting job in the Emmett area which paid $3.88 per hour.\\nAppellant raises two issues on appeal. The first issue deals with the procedural administration of the Employment Security Law, and the second issue concerns the merits of the controversy.\\nI\\nAppellant first maintains that the provisions of the Idaho Administrative Procedure Act regarding evidentiary rules in contested cases are applicable to hearings before the Department of Employment and the Industrial Commission. Because of this, appellant argues, the appeals examiner and the Commission erred in admitting certain exhibits without requiring the Department to properly identify, lay a foundation for, show the relevancy of, and offer with an opportunity to object to, each and all of the exhibits offered as evidence.\\nBefore we embark on an extended and undoubtedly unnecessary discussion regarding the applicability of the Administrative Procedure Act to unemployment compensation proceedings, we note that traditionally this Court has not required the Industrial Commission to adhere to strict rules of procedure and evidence in its hearings. Hagadone v. Kirkpatrick, 66 Idaho 55, 154 P.2d 181 (1944); Thom v. Callahan, 97 Idaho 151, 540 P.2d 1330 (1975). In Thom, a workmen's compensation case, we stated:\\n\\\"[T]his Court has recently made clear the emerging trend in our case law freeing the Industrial Commission from a strict observance of rules of evidence as govern courts of law. We have held that in those areas where the Commission possesses particular expertise, it has the discretionary power to consider reliable, trustworthy evidence having probative value in reaching its decisions, . even if such evidence would not be ordinarily admissible in a court of law.\\\" 97 Idaho at 154, 540 P.2d at 1333.\\nThe Thom case was decided long after the passage of the Administrative Procedure Act, although the Court did not discuss its applicability at that time. Ironically, this more liberal approach to evidentiary rules in administrative cases is supported by the very APA section upon which appellant so heavily relies. I.C. \\u00a7 67-5210 reads in pertinent part:\\n\\\"67-5210. RULES OF EVIDENCE-OFFICIAL NOTICE. \\u2014 In contested cases:\\n\\\"(1) irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in non-jury civil cases in the district courts of this state shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. . . .\\\" (Emphasis added).\\nThe above language on its face eschews any notions of strict evidentiary criteria.\\nThe above quoted section has an interesting history. The 1961 Revised Model State Administrative Procedure Act proposed only that the rules of evidence applicable in non-jury civil cases should be followed in state agency contested cases. Idaho does not have a distinctly identifiable body of evidentiary rules applicable only in non-jury civil cases. Apparently, few, if any, other jurisdictions have any such rules, and thus most state legislators declined to adopt the standard set forth in the model act. Gellhorn, Rules of Evidence & Official Notice in Formal Administrative Hearings, 1971 Duke L.J. 1, 12. The 1970 version of the model state act continued to propose this possibly non-existent standard, but added the emphasized sentence in the above quoted Idaho statute. Such a change evinces an intent on the part of the drafters of the model act and the Idaho legislature to liberalize technical rules of admissibility in administrative adjudications.\\nAlthough Idaho has no discernible evidentiary rules applicable in non-jury civil cases, it is clear that the rules in non-jury cases regarding admission of evidence are more liberal than in jury cases. G. Bell, Handbook of Evidence for the Idaho Lawyer 14 (1972). For example, this Court will not reverse a trial court in a non-jury case on the basis of an erroneous admission of evidence unless it appears that the opposing party was misled or surprised in a substantial part of its case, or that the trial court materially relied on the erroneously admitted evidence. Duthweiler v. Hansen, 54 Idaho 46, 28 P.2d 210 (1933). In trials before the court, it is presumed that the trial court did not consider incompetent or inadmissible evidence in making its findings. Isaacson v. Obendorf, 99 Idaho 304, 581 P.2d 350 (1978); Shrum v. Wakimoto, 70 Idaho 252, 215 P.2d 991 (1950). Therefore, even if the above APA provision was applicable to hearings involving the Department of Employment, the administrative tribunal would not be required to strictly adhere to formal and technical rules of evidence.\\nHowever, we need not decide this case on the basis of the applicability of the above quoted provision of the Administrative Procedure Act regarding evidentiary rules in contested cases, or on the subtle \\u2022distinctions between evidentiary rules in jury and non-jury civil trials, or on the general historical informality of proceedings before the Industrial Commission. Unemployment compensation procedures are governed by I.C. \\u00a7 72-1368. That section was passed long before the passage of the Administrative Procedure Act and has been amended since such time without substantial change to the portion of the statute in question. Idaho Code \\u00a7 72-1368 specifically delineates departmental procedure. A specific statute controls over a more general statute when there is any conflict. Swisher v. State Department of Environmental and Community Services, 98 Idaho 565, 569 P.2d 910 (1977).\\nThe claimant did not object when the exhibits ' in question were introduced into the record by the appeals examiner. Thereafter, the referee and the Industrial Commission were required by I.C. \\u00a7 72-1368(g) to include such exhibits as part of the record of the proceedings before the Commission. \\\"The record of the proceedings before the appeals examiner shall become part of the record of the proceedings on a claim for review before the board with respect to the evidence admitted into testimony received before the appeals examiner, . \\\" I.C. \\u00a7 72-1368(g). Since the provision of the Employment Security Act is specific and not found in the APA, it is controlling. The Commission did not err in including the exhibits in the record in the first instance.\\nSubsequent to the decision of the Industrial Commission, appellant moved to strike any and all reference to exhibits 1 through 13 on essentially the same grounds as are raised on appeal. In denying the motion, the Commission stated:\\n\\\"That though the Appeals Examiner failed to properly individually identify and offer the exhibits and though there may not be strict adherence to the Administrative Procedures Act and the Department's own rules, there is no surprise. The claimant was put on notice that these documents were made exhibits and were in fact part of the record before the Appeals Examiner and she was made aware that these documents were to be considered by the Finder of Fact.\\\"\\nWe agree with the Commission's decision. The appellant has failed to show that she was prejudiced by the admission of the exhibits in question. There is absolutely no indication that the appeals examiner or the Industrial Commission relied to any extent on the exhibits. To the contrary, it appears that the Commission relied exclusively on the claimant's statements made at the hearings on the record. Moreover, the exhibits in question consist of forms and documents routinely found in a claimant's administrative file. The exhibits include a claim for benefits, a determination of eligibility, summary of interviews, determinations, a request for redetermination, a notice of hearing, and other documents relating to the history of claimant's dealings with the Department of Employment. As such the exhibits are much more akin to pleadings than to evidentiary documents. These types of documents provide necessary procedural background information to appeals examiners in furtherance of efficient administration of unemployment compensation appeals.\\nThe appellant bears the burden of showing prejudicial error on appeal. Rogers v. Trim House, 99 Idaho 746, 588 P.2d 945 (1979). See Hudson v. Hecla Mining Co., 86 Idaho 447, 387 P.2d 893 (1963); Norman v. Employment Security Agency, 83 Idaho 1, 356 P.2d 913 (1960). In support of her allegation of prejudice, appellant points to the fact that she was disallowed benefits when she allegedly should have been found eligible. If an error could be shown to be prejudicial merely on the basis of adverse result, the concept of harmless error would disappear from appellate review. Appellant also argues that the appeals examiner failed to follow departmental rules and regulations in admitting the exhibits in question. In view of our conclusion that such an error, if any, was harmless and not prejudicial, it is unnecessary to discuss this question. Similarly, appellant's contention that the record fails to disclose whether the appeals examiner considered any state memoranda or data is without merit. See I.C. \\u00a7 67 \\u2014 5209(e)(7). Appellant has failed to show whether any such material even exists; certainly, she has failed to show prejudicial error.\\nII\\nAppellant next complains that the Industrial Commission erred in concluding that appellant's self imposed restrictions on her job-seeking efforts rendered her unavailable for suitable work within the meaning of I.C. \\u00a7 72-1366(d).\\nThis Court has consistently held that \\\"[t]o meet the availability requirements of the statute, the claimant must show that he is able, ready, and willing to accept, and is seeking, suitable work at a point where an available labor market exists.\\\" Ellis v. Employment Security Agency, 83 Idaho 95, 98, 358 P.2d 396, 397 (1961). Accord, Eytchison v. Employment Security Agency, 77 Idaho 448, 294 P.2d 593 (1956); Claim of Sapp, 75 Idaho 65, 266 P.2d 1027 (1954). Similarly, \\\"[a]vailability for work requires no more than availability for suitable work which the claimant has no good cause for refusing.\\\" Johnson v. Employment Security Agency, 81 Idaho 560, 563, 347 P.2d 764, 766 (1959).\\nHowever, \\\"[a] claimant may render himself unavailable for work by imposing conditions and limitations as to employment, so as to bar his recovery of unemployment compensation, since a willingness to be employed conditionally does not necessarily meet the test of availability.\\\" Ellis v. Employment Security Agency, 83 Idaho at 99, 358 P.2d at 397-98.\\nThe Employment Security Law provides guidance in determining whether a claimant is available for suitable work.\\n\\\"72-1366. PERSONAL ELIGIBILITY CONDITIONS.\\u2014\\n\\\"(g) In determining for the purposes of this act, whether or not work is suitable for an individual, the degree of risk involved to his health, safety, morals, his physical fitness, experience, training, past earnings, length of unemployment and prospects for obtaining local employment in his customary occupation, the distance of the work from his residence, and other pertinent factors shall be considered. No employment shall, in any event, be deemed suitable and benefits shall not be denied to any otherwise eligible individual for refusing to accept new work or to hold himself available for work under any of the following conditions:\\n\\\"(2) If the wages, hours, or other conditions of work offered are substantially less favorable to the individual than those prevailing for similar work in the locality of the work offered; . . . \\\"\\nThe Commission's decision adequately took the above factors into account. First, the Commission properly considered the length of time during which claimant had been unemployed. As of the time of the Commission's decision, appellant had been out of work for eight months. A claimant may be required to lower his sights in his efforts to seek employment as the period of unemployment increases. See Annot., 97 A.L.R.2d 1125, 1133 (1964). The consideration of this factor cuts both ways, of course. \\\"Work which may be deemed 'unsuitable' at the inception of claimant's unemployment, and for a reasonable time thereafter, because it pays less than his prior earning capacity, may thereafter become 'suitable' work when consideration is given to the length of unemployment and the prospects for obtaining customary work at his prior earning capacity.\\\" Bayly Mfg. Co. v. Department of Employment, 155 Colo. 433, 395 P.2d 216, 220 (1964). Therefore, a claimant must expand the scope of his search as time goes by.\\nThe second factor which the Commission considered was the appellant's self imposed limitation on the acceptability of earnings. Appellate courts have frequently confronted the issue of whether offered wages are \\\"substantially less favorable\\\" than prior earnings, I.C. \\u00a7 72-1366(gX2), to the extent that offered work is rendered unsuitable to the individual claimant. Cf. Hagadone v. Kirkpatrick, 66 Idaho 55, 154 P.2d 181 (1944) (agency decision that claimant was unavailable for work based on his rejection of two positions with an attendant decrease in pay of well over 50% reversed and remanded for reconsideration); Scott v. Photo Center, Inc., 306 Minn. 535, 235 N.W.2d 616 (1975) (25% reduction in pay constitutes good cause for quitting employment); Johns-Manville Prod. Corp. v. Board of Review, 122 N.J.Super. 366, 300 A.2d 572 (1973) (25% reduction in wages held to be \\\"substantial\\\" and therefore good cause for quitting); Green v. Republic Steel Corp., 37 N.Y.2d 554, 376 N.Y.S.2d 75, 338 N.E.2d 594 (1975) (offer of work at less skilled job at 15% reduction in pay held unsuitable); Bus v. Bethlehem Steel Corp., 37 A.D.2d 98, 322 N.Y.S.2d 310, aff'd, 32 N.Y.2d 955, 347 N.Y.S.2d 206, 300 N.E.2d 736 (1973) (15% reduction in pay did not, by itself, render offered work unsuitable); Pennington v. Dudley, 10 Ohio St.2d 90, 226 N.E.2d 738 (1967) (15% reduction in pay for offered work does not require conclusion, as a matter of law, that offered work was unsuitable); Shay v. Unemployment Compensation Board of Review, 424 Pa. 287, 227 A.2d 174 (1967) (30% reduction in pay was substantial and rendered offered work unsuitable); Unemployment Compensation Board of Review v. W. R. Grace Co., 23 Pa.Cmwlth. 237, 351 A.2d 297 (1976) (reduction in hourly wage from $4.25 to $3.85 does not render offered employment unsuitable); Donnelly v. Commonwealth, Unemployment Compensation Board of Review, 17 Pa.Cmwlth. 548, 330 A.2d 544 (1975) (reduction in pay of over 20% for offered work held to be suitable after three and a half month period of unemployment); In re Potvin, 132 Vt. 14, 313 A.2d 25 (1973) (offered work requiring less skill at 40% reduction in pay held unsuitable even after seven month unemployment period). Clearly, we cannot state that a given percentage reduction in pay would or would not render prospective employment unsuitable. The administrative tribunal must consider any wage restriction set by the claimant along with all the other factors relevant to the issue of availability for suitable work. We merely note that Guillard would not accept a reduction in pay in excess of 6% of her prior earnings. After a lengthy period of unemployment, the Commission was entitled to conclude that such a self imposed restriction operated in favor of ineligibility. It should also be noted that appellant did obtain employment at an hourly wage of $3.88 soon after the Commission's decision.\\nThe third factor upon which the Commission relied was appellant's refusal to expand the scope of her job search outside of the Emmett area. The record does not indicate the extent and nature of the labor market in Emmett. One logical inference after eight months of unemployment is that the Emmett labor market was insufficient to support appellant's job search with its self imposed limitations. At any rate, the burden of establishing eligibility for unemployment compensation benefits is on the claimant whenever the claim is questioned. E. g., Rogers v. Trim House, 99 Idaho 746, 588 P.2d 945 (1979); Pyeatt v. Idaho State University, 98 Idaho 424, 565 P.2d 1381 (1977); Flynn v. Amfac Foods, Inc., 97 Idaho 768, 554 P.2d 946 (1976). The claimant must show that in spite of her restrictions she remained attached to the labor market. Although in some circumstances the distance from residence to job market might support such a limitation, see Johnson v. Employment Security Agency, 81 Idaho 560, 347 P.2d 764 (1959), this is not true when the geographical restriction is accompanied by the other restrictions present here. Johnson dealt with the claim of a 68 year old Coeur d'Alene man who had turned down a job in Spokane, Washington. The offered work was not only 34 miles away, but also required an 11-hour day and was so physically demanding that the employer's foreman had told the claimant that he didn't think the claimant could handle it. Johnson is therefore distinguishable.\\nWe find it unnecessary to state whether any one of the above factors considered by the Commission would by itself suffice to render a claimant ineligible for unemployment compensation. We conclude only that the Industrial Commission was entitled to consider the above factors and properly did so. In our opinion, the facts afford ample basis for the Commission's determination. They do not, as Guillard contends, establish as a matter of law that in spite of her self imposed restrictions, appellant nonetheless remained available for suitable work. We are constitutionally compelled to defer to the findings of the Industrial Commission when supported by substantial and competent evidence. Idaho Const, art. 5, \\u00a7 9; Simmons v. Department of Employment, 99 Idaho 290, 581 P.2d 336 (1978); Booth v. City of Burley, 99 Idaho 229, 580 P.2d 75 (1978).\\nThe decision of the Industrial Commission is hereby affirmed.\\nDONALDSON, C. J., SHEPARD, J., and SCOGGIN, J. Pro Tem., concur.\\n. The Idaho Administrative Procedure Act is compiled in I.C. \\u00a7 67-5201 et seq. I.C. \\u00a7 67-5201 provides in part:\\n\\\"67-5201. DEFINITIONS. \\u2014 As used in this act:\\n\\\"(1) 'agency' means each state board, commission, department or officer authorized by law to make rules or to determine contested cases, except those in the legislative or judicial branch, the state militia and the state board of corrections;\\n\\\"(2) 'contested case' means a proceeding, including but not restricted to ratemaking and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing;\\nRules of procedure and evidence in contested cases are set forth in I.C. \\u00a7 67-5209 and -5210, respectively.\\n. The Idaho Administrative Procedure Act was passed in 1965.\\n. Revised Model State Administrative Procedure Act \\u00a7 10(1) (1961).\\n.Revised Model State Administrative Procedure Act \\u00a7 10(1) (1970).\\n. In one instance, where there was a conflict between the exhibits and the testimony given by appellant, the Commission apparently resolved the conflict in appellant's favor. In a summary of an interview dated February 14, 1977, and apparently signed by appellant, she states that she will not accept a position at an hourly wage of less than $4.25. She subsequently testified that $4.00 per hour was the lower limit. The Commission, in its findings, accepted the lower figure.\\n. During oral argument, there was some discussion regarding whether the Court should carve out an exception to this long established allocation of burden of proof. It was the first time the question was raised. We have consistently held that we will not consider new grounds for reversal raised for the first time on appeal. Unigard Ins. Group v. Royal Globe Ins. Co., 100 Idaho 123, 594 P.2d 633 (1979); Local 1494, Int'l Ass'n of Firef\\u00edghters v. City of Coeur d'Alene, 99 Idaho 630, 586 P.2d 1346 (1978); Clark v. Int'l Harvester Co., 99 Idaho 326, 581 P.2d 784 (1978); Dunn v. Baugh, 95 Idaho 236, 506 P.2d 463 (1973).\"}"
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+"{\"id\": \"4448935\", \"name\": \"Joe E. RICHARDSON, Individually and as a partner, and Dale J. Richardson, Individually and as a partner in the partnership of the Riverside Lumber Company, Plaintiffs-Respondents and Cross-Appellants, v. STATE TAX COMMISSION, State of Idaho, Defendant-Appellant and Cross-Respondent\", \"name_abbreviation\": \"Richardson v. State Tax Commission\", \"decision_date\": \"1979-12-14\", \"docket_number\": \"No. 12736\", \"first_page\": \"705\", \"last_page\": \"710\", \"citations\": \"100 Idaho 705\", \"volume\": \"100\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:06:29.635966+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONALDSON, C. J., and SHEPARD, McFADDEN and BISTLINE, JJ., concur.\", \"parties\": \"Joe E. RICHARDSON, Individually and as a partner, and Dale J. Richardson, Individually and as a partner in the partnership of the Riverside Lumber Company, Plaintiffs-Respondents and Cross-Appellants, v. STATE TAX COMMISSION, State of Idaho, Defendant-Appellant and Cross-Respondent.\", \"head_matter\": \"604 P.2d 719\\nJoe E. RICHARDSON, Individually and as a partner, and Dale J. Richardson, Individually and as a partner in the partnership of the Riverside Lumber Company, Plaintiffs-Respondents and Cross-Appellants, v. STATE TAX COMMISSION, State of Idaho, Defendant-Appellant and Cross-Respondent.\\nNo. 12736.\\nSupreme Court of Idaho.\\nDec. 14, 1979.\\nDavid H. Leroy, Atty. Gen., David G. High, Deputy Atty. Gen., Boise, for defendant-appellant and cross-respondent.\\nS. David Swayne, Moscow, for plaintiffs-respondents and cross-appellants.\\nWilliam J. Brauner, Caldwell, amicus curiae.\", \"word_count\": \"2726\", \"char_count\": \"17149\", \"text\": \"BAKES, Justice.\\nWe are called upon to determine in this appeal whether certain equipment used in a lumber mill operation owned by plaintiff respondents Richardsons is exempt from the state sales tax under the sales tax manufacturing and processing exemption contained in I.C. \\u00a7 63-3622(d). Both the de fendant appellant State Tax Commission and plaintiff respondents and cross appellants Richardsons appeal from the district court's application of the sales tax exemption to the equipment in question.\\nJoe and Dale Richardson, dba Riverside Lumber Co. (taxpayer), operate a lumber mill on leased Indian lands near Orofino, Idaho. To meet air quality emission standards imposed in the early 1970's, the taxpayer ceased burning waste wood generated in the milling process and installed equipment enabling the mill to sell its waste wood in chip form to Potlatch Forest Industries in Lewiston, Idaho, for use in paper-making. The equipment installed included the following:\\n(1) Debarker: used to strip bark from logs to be milled so that wood chips made from mill waste would be free from bark.\\n. (2) Surge bin: installed between the equipment which chips the waste wood and a sizing screen which screens from the chips wood particles too fine to be used in paper-making. The surge bin maintains an even flow of chips to the screen.\\n(3) Rader pneumatic conveyor: a forced air conveyor system, functionally equivalent to a conventional belt conveyor, which moves screened chips from the sizing screen to the chip bin.\\n(4) Chip bin: stores the wood chips until enough are collected to be loaded into semitrailers and hauled away.\\n(5) Sprinkler system: installed for fire protection in the mill.\\nIn 1975 the sales tax section of the State Tax Commission audited the taxpayer and issued a deficiency notice proposing $1,971.26 plus a penalty and interest in additional sales taxes due. Upon the taxpayer's protest, the State Tax Commission conducted a hearing and found for the taxpayer in part and upheld the deficiency determination in part. The taxpayer then sought review of the State Tax Commission redetermination in district court. Following a court trial the district court held that materials used in constructing the base and roof of the debarker were improvements to real property and therefore not exempt from the sales tax; that materials used in the roof of the surge bin were improvements to realty and therefore not exempt; and that the pneumatic blower, the chip bin, and the sprinkler system were necessary and essential to the taxpayer's manufacturing process, were directly used in that process, and are within the sales tax exemption provided by I.C. \\u00a7 63-3622(d).\\nThe State Tax Commission appeals from the district court's determination that the pneumatic blower, the chip bin, and the sprinkler system are directly used or consumed in or during the taxpayer's processing or manufacturing operation and are, therefore, exempt from the state sales tax under the provisions of I.C. \\u00a7 63-3622(d). The taxpayer brings a cross appeal from the trial court's rulings that I.C. \\u00a7 63-1223 and I.C. \\u00a7 63-105T do not apply to a sales tax determination. The taxpayer contends that had the district court properly applied I.C. \\u00a7 63-1223 and I.C. \\u00a7 63-105T to this case, all of the equipment in question would have been found to be exempt from the state sales tax.\\nI.C. \\u00a7 63-3622(d) exempts from the state sales tax tangible personal property which is primarily and directly used or consumed in or during a manufacturing or processing operation. In order to qualify for this \\\"production exemption\\\" from the state sales tax, the property in question must be tangible personal property, primarily and directly used or consumed in a processing operation, necessary or essential to the process, used by a business in its manufacturing or processing operation, and not used in a manner merely incidental to the manufacturing or processing operation. The State Tax Commission contends that the sprinkler system, pneumatic conveyor system, and chip bin, which the trial court found to fall within the sales tax exemption, are not equipment directly used or consumed in or during th\\u00e9 taxpayer's manufacturing or processing operation within the meaning of I.C. \\u00a7 63-3622(d). The state argues that while these items may well be necessary to the taxpayer's sawmill operation, they are equipment which is merely auxiliary to the actual production or processing operation. It is the state's contention that because the pneumatic blower, the chip bin, and the sprinkler system in no way effect a physical change in the composition of the lumber or the wood chips, they are not directly used in the operation.\\nStatutory tax exemptions exist only by legislative grace and should be strictly construed against the taxpayer, Leonard Construction Co. v. State ex rel. State Tax Comm'n, 96 Idaho 893, 539 P.2d 246 (1975); Kwik Vend, Inc. v. Koontz, 94 Idaho 166, 483 P.2d 928 (1971). However, we cannot agree with the State Tax Commission's contention that the sales tax exemption contained in I.C. \\u00a7 63-3622(d) must be strictly limited to equipment which effects, a physical change in the form of the product being manufactured. Our statute exempts from the sales tax equipment which is \\\"primarily and directly used or consumed in or during . . manufacturing, processing, mining, farming, or fabricating operations by a business or segment of a business . . . .\\\" It is our opinion that the sales tax exemption in I.C. \\u00a7 63-3622(d) should receive a practical construction and not be construed to divide a manufacturing operation which in fact is a continuous and integrated production process into theoretically distinct segments. To limit this exemption to equipment which actually causes some physical change in the manufactured product is a restriction not warranted by the language of the statute. Cf. General Mills, Inc. v. Commissioner of Taxation, 294 Minn. 175, 199 N.W.2d 636 (Minn.1972) (the word \\\"manufacture\\\" in sales tax exemption statute is not restricted to the limited function of turning out the finished article but contemplates a whole process of a much broader scope, including development, quality control, and product testing).\\nA sales tax exemption similar to that in the Idaho statute was interpreted by the New York courts to exempt coal and ash handling equipment utilized in an electric power generating plant despite the taxing authority's contention that the equipment was merely auxiliary to the taxpayer's principal manufacturing operation, production of electricity. The court held that the degree of synchronization and integration of the coal and ash handling equipment with the actual power generating process compelled a finding that the equipment fell within the production exemption to the sales tax. Niagara Mohawk Power Corp. v. Wanamaker, 286 App.Div. 446, 144 N.Y.S.2d 458 (1955), aff'd, 2 N.Y.2d 764, 157 N.Y.S.2d 972, 139 N.E.2d 150 (1956). See also Rowe Contracting Co. v. State Tax Commission, 361 Mass. 158, 279 N.E.2d 675 (1972); and Courier Citizen Co. v. Commissioner of Corporations & Taxation, 358 Mass. 563, 266 N.E.2d 284 (1971).\\nWe conclude that the pneumatic blower and the chip bin are items of equipment which are necessary and essential to the taxpayer's manufacturing process and are directly used in that process. As a result, these items fall within the sales tax exemption provided by I.C. \\u00a7 63-3622(d). These two pieces of equipment are used by the taxpayer in removing waste wood from the sawmill. The trial testimony indicates that approximately 300 cubic yards of waste wood are generated each day by the milling operation and that without proper equipment to remove this waste from the mill the taxpayer's operation would soon have to cease. The pneumatic blower and chip bin were part of equipment installed by the taxpayer to enable the mill to sell as wood chips the waste wood which, prior to enactment of state and federal air quality controls, was disposed of by burning. It is our . opinion that the chip handling equipment is an integral part of the taxpayer's lumber manufacturing process and falls within the sales tax exemption contained in I.C. \\u00a7 63-3622(d). Cf., e. g., Minnaert v. Michigan Dept. of Revenue, 366 Mich. 117, 113 N.W.2d 868 (1962) (earthmoving equipment used to build tailing ponds into which tailings from a copper smelting operation were released and a dec\\u00e1ntate extracted and reused in the manufacturing process was equipment acquired for use and consumption in industrial processing).\\nWe are, however, unable to agree with the trial court's conclusion that the sprinkler system installed by the taxpayer, in his lumber mill was equipment directly used in the milling operation. The sprinkler system itself is a type of standby safety equipment which we believe is properly characterized as being incidental to the manufacturing process and therefore not within the sales tax exemption provided in I.C. \\u00a7 63-3622(d). That section provides in part that:\\n\\\"This exemption does not include machinery, equipment, materials and supplies used in a manner that is incidental to the manufacturing, processing, mining, farming or fabricating operations such as maintenance and janitorial equipment and supplies.....\\\"\\nIt is our conclusion that although the sprinkler system may be necessary and essential to the continued operation of the taxpayer's business, it is not integrated with or directly related to the sawmill operation. See, e. g., Consolidation Coal Co., Hannah Coal Co. Division v. Kosydar, 42 Ohio St.2d 189, 326 N.E.2d 864 (1975) (standby mine safety equipment held not directly used or consumed in the production of property for sale); Indiana Dept. of State Revenue, Sales Tax Division v. R. C. A. Corp., 160 Ind.App. 55, 310 N.E.2d 96 (1974) (air conditioning equipment used to rigidly control the quality of the air in a color television picture tube plant held not to be directly used in the production of the tubes, although the equipment was an essential part of the process).\\nThe Richardsons argue on cross appeal that the trial court erred in refusing to apply I.C. \\u00a7 63-1223 and I.C. \\u00a7 63-105T to the sales tax exemption controversy. I.C. \\u00a7 63-1223 provides that certain improvements on government, Indian or state land shall be assessed as personal property for ad valorem tax collection purposes, whether the property is actually personal or real property. The Richardsons argue that if the trial court had properly applied I.C. \\u00a7 63-1223 to this case, it would have had to find that the materials used in construction of the structures which contain a surge bin and a debarker, equipment used in the taxpayer's operation, fell within the sales tax exemption provided by I.C. \\u00a7 63-3622(d) which applies only to tangible personal property. I.C. \\u00a7 63-1223, however, applies to ad valorem taxation of personal property and does not apply to a sales tax determination.\\nLikewise, the Richardsons' contention that the trial court erred in ruling that I.C. \\u00a7 63-105T does not provide a sales tax exemption for pollution control equipment is without merit. I.C. \\u00a7 63-105T is contained in the ad valorem tax section of the Idaho Code and is inapplicable to sales tax collections. Tax exemptions are to be construed against the taxpayer and will not be created by implication. Leonard Construction Co. v. State ex rel. Tax Commission, 96 Idaho 893, 539 P.2d 246 (1975); Kwik Vend, Inc. v. Koontz, 94 Idaho 166, 483 P.2d 928 (1971). In 1977 the Idaho legislature added I.C. \\u00a7 63-3622(e) to the sales tax provisions which created a sales tax exemption for pollution control equipment. If, as the taxpayer suggests, I.C. \\u00a7 63-105T applies to sales taxes, the 1977 amendment to the sales tax act was unnecessary. In interpreting legislation, this Court will not presume that the legislature performed the idle act of enacting a superfluous statute. The taxpayer's contention that certain of the equipment in question was pollution control equipment and that the trial court erred in failing to find it exempt from the state sales tax as a result of I.C. \\u00a7 63-105T is without merit.\\nAffirmed in part and reversed in part. No costs.\\nDONALDSON, C. J., and SHEPARD, McFADDEN and BISTLINE, JJ., concur.\\n. \\\"63-3622. EXEMPTIONS \\u2014 There are exempted from the taxes imposed by this act the following:\\n\\\"(d) Receipts from the sale, storage, use or other consumption in this state of tangible personal property which will enter into and become an ingredient or component part of tangible personal property manufactured, processed, mined, produced or fabricated for ultimate sale at retail within or without this state, and tangible personal property primarily and directly used or consumed in or during such manufacturing, processing, mining, farming, or fabricating operations by a business or segment of a business which is primarily devoted to such operation or operations, provided, that the use or consumption of such tangible personal property is necessary or essential to the performance of such operation. Chemicals, catalysts, and other materials which are used for the purpose of producing or inducing a chemical or physical change or for removing impurities or otherwise placing a product in a more marketable condition are included within this exemption, as are other articles of tangible personal property used in the actual manufacturing, processing, mining, farming or fabricating operations. This exemption does not include machinery, equipment, materials and supplies used in a manner that is incidental to the manufacturing, processing, mining, farming or fabricating operations such as maintenance and janitorial equipment and supplies, and hand tools with a unit purchase price not in excess of one hundred dollars ($100); nor does it include tangible personal property used in any activities other than the actual manufacturing, processing, mining, farming or fabricating operations such as off\\u00edce equipment and supplies, equipment and supplies used in selling or distributing activities, in research, or in transportation activities; nor shall this exemption include motor vehicles required to be licensed by the laws of this state, without regard to the use to which such motor vehicles are put; nor shall this exemption include tangible personal property used or consumed in processing, producing or fabricating tangible personal property exempted from this act by subsections (h), (k), (1) and (p) of this section.\\\" (Emphasis added.)\\n. \\\"63-1223. IMPROVEMENTS ON PUBLIC LANDS. \\u2014 All improvements on government, Indian or state land and all improvements on all railroad rights of way owned separately from the ownership of the rights of way upon which the same stands or in which nonexempt persons have possessory interests shall be assessed as personal property and entered upon the personal property assessment roll.\\\"\\n. \\\"63-105T. PROPERTY EXEMPT FROM TAXATION \\u2014 FACILITIES FOR WATER OR AIR POLLUTION CONTROL. \\u2014 The following property is exempt from taxation: Facilities, installations, machinery or equipment, attached or unattached to real property, and designed, installed and utilized in the elimination, control or prevention of water or air pollution, or, in event such facilities, installations, equipment or machinery shall also serve other beneficial purposes and uses, such portion of the assessed valuation thereof as may reasonably be calculated to be necessary for and devoted to elimination, control or prevention of water or.air pollution. The state tax commission or county assessor shall determine such exempt portion, and shall not include as exempt any portion of any facilities which have value as the specific source of marketable byproducts.\\n\\\"If any water corporation, as defined by section 61-125, Idaho Code, regulated by the Idaho public utilities commission is or has been ordered by the state board of health or the Idaho public utilities commission to install equipment designed and utilized in the elimination, control or prevention of water pollution, the Idaho public utilities commission shall notify the Idaho state tax commission of the percentage such property bears to the total invested plant of the company and said portion shall be exempt from ad valorem taxation. Said percentage reported to the Idaho state tax commission by the Idaho public utilities commission may be contested by any person or party at a public hearing held before the Idaho state tax commission.\\\"\\n. See note 1, supra.\\n. See note 2, supra.\\n. See note 3, supra.\"}"
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+"{\"id\": \"4454473\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Ross Lee BARNEY, Defendant-Appellant\", \"name_abbreviation\": \"State v. Barney\", \"decision_date\": \"1991-10-02\", \"docket_number\": \"No. 18929\", \"first_page\": \"368\", \"last_page\": \"371\", \"citations\": \"121 Idaho 368\", \"volume\": \"121\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:08:22.500805+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C.J., and SILAK, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Ross Lee BARNEY, Defendant-Appellant.\", \"head_matter\": \"825 P.2d 91\\nSTATE of Idaho, Plaintiff-Respondent, v. Ross Lee BARNEY, Defendant-Appellant.\\nNo. 18929.\\nCourt of Appeals of Idaho.\\nOct. 2, 1991.\\nRehearing Denied Dec. 9, 1991.\\nPetition for Review Denied March 3, 1992.\\nJohn Souza of Whittier, McDougall, Souza, Murray & Clark, Pocatello, for defendant-appellant.\\nLarry J. EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., for plaintiff-respondent.\", \"word_count\": \"1099\", \"char_count\": \"6647\", \"text\": \"SWANSTROM, Justice.\\nRoss Lee Barney appeals from an order revoking his probation and from an order granting him only partial relief under his I.C.R. 35 motion. Because the notice of appeal as to the probation revocation order was untimely, we affirm the district court's order revoking probation. We also affirm the order entered on the Rule 35 motion.\\nBarney pled guilty to a third offense of driving while under the influence (DUI), a felony. In a separate Bannock County case, he pled guilty to a repeat offense of driving without privileges (DWP), a felony. On March 10, 1989, the district court sentenced Barney to a four-year term, with a minimum two-year period of incarceration, for the DUI, and to a two-year term, with a one-year minimum period of incarceration, for the DWP, the sentences to run concurrently. The court retained jurisdiction for 120 days, after which it placed Barney on a five-year probation.\\nA probation violation report was lodged against Barney when he was involved in an auto accident caused by his drinking and driving. On June 14, 1990, after a hearing on the violation, the district judge revoked probation, requiring Barney to serve the sentences originally imposed. On August 9, 1990, Barney filed a Rule 35 motion asking for leniency and for a reduction of his sentences. The district judge modified the four-year DUI sentence, reducing the two-year fixed portion to eighteen months; the sentence for DWP was left intact. The order of August 29, 1990, therefore, granted in part and denied in part the relief sought in the Rule 35 motion. Barney filed this appeal.\\nThe three issues raised by Barney center on the revocation of probation. Barney contends that the district judge abused his discretion in deciding to revoke the probation rather than renewing attempts at rehabilitation through probation or work release. In responding, the state argues that none of these issues are reviewable in this appeal, because, as to the revocation orders, the appeal was untimely filed. The state also contends that the reduction of the DUI sentence ordered by the district court, in response to the Rule 35 motion, must be vacated due to a lack of jurisdiction of the district court.\\nFor the issues raised by Barney to be properly before this Court, the appeal from the order revoking probation had to be filed no later than forty-two days from June 14, 1990. See I.A.R. 14. Barney's notice of appeal filed September 21, 1990, precludes review of any alleged error in the revocation order.\\nThe state concedes that the notice of appeal was timely filed in regard to the order entered on the Rule 35 motion. However, the state argues that the district court had no jurisdiction to grant any relief on the Rule 35 motion because the motion itself was not timely.\\nThe time limitations governing the filing of motions for reconsideration of sentence are jurisdictional. State v. Hocker, 119 Idaho 105, 106, 803 P.2d 1011, 1012 (Ct.App.1991); State v. Parrish, 110 Idaho 599, 716 P.2d 1371 (Ct.App.1986). Accordingly, we will review whether the district court had authority to grant the requested Rule 35 relief. See State v. Corder, 115 Idaho 1137, 772 P.2d 1231 (Ct.App.1989); State v. Salsgiver, 112 Idaho 933, 736 P.2d 1387 (Ct.App.1987).\\nIdaho Criminal Rule 35 prescribes that \\\"[t]he court may also reduce a sentence upon revocation of probation as provided by law.\\\" The Rule 35 motion cannot be filed after revocation and after the prison sentence has been ordered into execution. State v. Hocker, supra; State v. Corder, supra. However, as we held in Corder, there can be exceptions to this strict time limit where the defendant is misinformed by the court that he may file a Rule 35 motion for reduction of the sentence after revocation of probation. We believe that the Corder exception applies here. After revoking Barney's probation, the district court told him:\\nMr. Barney, I would advise you that you have 42 days to file an appeal from the Court's decision. You also have the right to file post-conviction relief proceedings . as prescribed by statute. Mr. Souza can advise you of that. You may also file proceedings under Rule 35 of the Idaho Criminal Rules challenging either the legality of the sentence or requesting leniency, further leniency, in the Court's sentencing.\\nThis statement was correct so far as filing a Rule 35 motion for the purpose of \\\"challenging . the legality of the sentence.\\\" The rule permits the motion to be filed for this purpose \\\"at any time.\\\" But the statement was incorrect so far as a request for leniency; the Rule does not allow such a request to be made after revocation of probation. Consistently with Corder, however, we conclude that because Barney was misinformed about his right to later file a Rule 35 motion for reduction of his sentence, his motion must be deemed to have been timely filed.\\nAlthough Barney has made no discrete arguments of error relating to the denial of his Rule 35 motion, it is implicit that he is contending the district court abused its discretion a second time by granting Barney only partial relief; that is, only reducing the fixed portion of one sentence, rather than restoring probation or commuting the sentence to jail time with work-out privileges.\\nA Rule 35 motion, which is essentially a plea for leniency, is addressed to the sound discretion of the sentencing court. State v. Arambula, 97 Idaho 627, 550 P.2d 130 (1976); State v. Forde, 113 Idaho 21, 740 P.2d 63 (Ct.App.1987). We review the question on appeal to determine from the record whether the facts presented in connection with Barney's motion show that the district court abused its discretion in failing to grant the leniency requested. We conclude that the court did not abuse its discretion by refusing to grant all of the relief Barney requested. The court's decision to require Barney to serve at least eighteen months of his four-year DUI sentence was reasonable. The judge's decision not to modify or reduce Barney's sentence for DWP was also reasonable.\\nAccordingly, we affirm the district court's orders revoking probation, the order modifying the DUI sentence and the order denying relief from the DWP sentence.\\nWALTERS, C.J., and SILAK, J., concur.\"}"
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+"{\"id\": \"4457240\", \"name\": \"Marlene CURTIS, Individually, and as Personal Representative of the Estate of Jon Curtis, and as Natural Parent and Legal Guardian of their Minor Children, Kellie Michelle Curtis and Zane Anthony Curtis, Plaintiffs-Appellants-Cross Respondents, v. CANYON HIGHWAY DISTRICT NO. 4, an Independent Political Subdivision of the State of Idaho, Defendant-Respondent-Cross Appellant\", \"name_abbreviation\": \"Curtis v. Canyon Highway District No. 4\", \"decision_date\": \"1992-04-22\", \"docket_number\": \"No. 18986\", \"first_page\": \"73\", \"last_page\": \"87\", \"citations\": \"122 Idaho 73\", \"volume\": \"122\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:32:40.923341+00:00\", \"provenance\": \"CAP\", \"judges\": \"BISTLINE and JOHNSON, JJ., and REINHARDT, J. Pro Tern., concur.\", \"parties\": \"Marlene CURTIS, Individually, and as Personal Representative of the Estate of Jon Curtis, and as Natural Parent and Legal Guardian of their Minor Children, Kellie Michelle Curtis and Zane Anthony Curtis, Plaintiffs-Appellants-Cross Respondents, v. CANYON HIGHWAY DISTRICT NO. 4, an Independent Political Subdivision of the State of Idaho, Defendant-Respondent-Cross Appellant.\", \"head_matter\": \"831 P.2d 541\\nMarlene CURTIS, Individually, and as Personal Representative of the Estate of Jon Curtis, and as Natural Parent and Legal Guardian of their Minor Children, Kellie Michelle Curtis and Zane Anthony Curtis, Plaintiffs-Appellants-Cross Respondents, v. CANYON HIGHWAY DISTRICT NO. 4, an Independent Political Subdivision of the State of Idaho, Defendant-Respondent-Cross Appellant.\\nNo. 18986.\\nSupreme Court of Idaho, Boise,\\nFebruary 1992 Term.\\nApril 22, 1992.\\nComstock & Bush, Boise, for plaintiffs-appellants-cross respondents. John A. Bush argued.\\nSaetrum & Day, Boise, for defendant-respondent-cross appellant. David E. Day argued.\", \"word_count\": \"7596\", \"char_count\": \"46323\", \"text\": \"McDEVITT, Justice.\\nBackground\\nThis case arises from the death of appellant-cross-respondent's (Marlene Curtis) husband, Mr. Jon Curtis, on February 16, 1988. Mr. Curtis was killed when the vehicle he was driving collided with a Union Pacific train at a crossing maintained by respondent-cross appellant, Canyon Highway District No. 4. Appellant commenced wrongful death actions against Union Pacific Railroad and respondent.\\nPrior Proceedings\\nAppellant's action against Union Pacific was tried in the United States District Court. Prior to the submission of the case to the jury, appellant and Union Pacific reached a settlement. The terms of the settlement required Union Pacific to pay $310,000.00 to appellant. This settlement was written and executed in December of 1989.\\nThe action against respondent was filed in the District Court of the Third Judicial District of the State of Idaho, in and for the County of Canyon, on March 20, 1989. In her complaint, appellant listed three causes of action; Count One, respondent was negligent in failing to adequately repair or remedy the condition of the crossing, Count Two, respondent was negligent per se because I.C. \\u00a7 49-672 requires stop signs at crossings, and, Count Three, respondent was negligent in failing to comply with the guidelines, regulations, or policies of the Idaho Department of Transportation. Appellant also requested attorney fees and prayed for damages for loss of consortium, lost future earnings, and medical and funeral expenses.\\nRespondent filed its answer on April 5, 1989. In the answer, respondent listed a series of affirmative defenses, including contributory negligence.\\nFollowing motions for summary judgment and motions in limine, the matter proceeded to a jury trial on July 2, 1990. After the testimony and argument, the jury returned a special verdict on July 12, 1990. In the special verdict, the jury found respondent, Union Pacific, and decedent to be negligent, that each party's negligence was a proximate cause of the accident, and that total economic damages were $395,000.00, while total non-economic damages were $100,000.00. Specifically, the jury found the decedent to be 25% at fault, Union Pacific to be 30% . at fault, and respondent to be 45% at fault.\\nThe district court entered its order on August 23, 1990. In relevant part, the order stated:\\nPrior to trial in this case the [appellants] settled with the Union Pacific Railroad for the total amount of $310,000.00. [Appellants] contends that the [respondent] highway district is not entitled to offset this settlement against the award notwithstanding the provisions of \\u00a7 6-805, Idaho Code.\\nWhile the [appellant] makes some strong arguments based primarily upon New Mexico case law which discuss policy questions; this court cannot find that the Idaho Legislature intended to do away with offsets when it repealed the contribution amount joint tortfeasors law but left \\u00a7 6-805 intact.\\nAccordingly the court finds that after applying 75% of the causative negligence found by the jury to be attributed to the [respondent] and the Union Pacific Railroad to the total damage verdict, or 75% of $495,000.00 ($371,250.00), that the settlement of $310,000.00 must be offset against that amount and that judgment should enter against the [respondent] in the amount of $61,250.00.\\nOn August 30, 1990, appellant filed an affidavit and memorandum of costs, disbursements and attorney fees. Appellant represented her total costs and disbursements to be $39,290.07, and her attorney fees to be $85,216.50. On September 13, 1990, respondent moved the court to disallow these costs, disbursements, and attorney fees.\\nOn September 17, 1990, the district court entered its judgment upon verdict. In the September 17 judgment, the court awarded appellant $61,250.00.\\nOn October 18, 1990, the district court entered its order on the costs memorandum. In the October 18 order, the court found appellant's total allowable costs to be $4,866.90. Subsequently, appellant filed a motion for reconsideration of the order on costs. The motion was filed pursuant to I.R.C.P. 11(a)(2)(B) and 54(d)(1)(D), and it was supported by an affidavit from appellant's attorney. This motion was denied by order dated March 12, 1991.\\nOn October 25, 1990, the district court entered its first amended judgment. In the first amended judgment, the court awarded appellant $66,116.90 \\u2014 $61,250.00 representing the amount specified in the August 23rd order, and $4,866.90 representing the amount specified in the October 18th order.\\nAppellant filed her notice of appeal on October 29, 1990. She appealed pursuant to I.A.R. 11(a)(1) \\\"from the Judgment filed September 17, 1990.\\\" Respondent filed its notice of cross-appeal on November 9, 1990. It cross-appealed \\\"from the Judgment Upon Verdict, entered September 17, 1990, and the First Amended Judgment, entered October 25, 1990.\\\"\\nOn January 9, 1991, respondent filed a notice of payment of judgment. In the notice of payment of judgment, respondent stated that it had tendered a check for $66,116.90 to appellant immediately upon receipt of the first amended judgment, and that appellant had refused to accept the check. The payment was made pursuant to I.C. \\u00a7 10-1115, and the respondent requested the clerk to release and satisfy the first amended judgment. The clerk acknowledged receipt of the check and deposited it in a non-interest-bearing trust account.\\nOn January 10, 1991, appellant objected to respondent's notice of payment of judgment. Appellant's objection was that \\\"the proposed payment and Release and Satisfaction does not include interest from the date of judgment as set forth in Idaho Code section 28-22-104.\\\"\\nRespondent filed a response to the objection on January 14, 1991. Respondent asserted that I.C. \\u00a7 10-1115 governs the procedure, that \\\"tender of payment precludes accrual of interest on the Judgment,\\\" and that the \\\"Clerk of the Court is, therefore, required by statute to release and satisfy the Judgment.\\\"\\nOn February 12, 1991, the parties stipulated to the deposit of the check proceeds into an interest-bearing account. On February 13,1991, the district court entered an order carrying out this stipulation. The order directed the clerk to deposit the check into an interest-bearing account \\\"without prejudice to either party with regard to the pending appeals, and further without prejudice to either party with regard to Plaintiffs Objection to Notice of Payment of Judgment and Defendant's Response thereto on file herein.\\\"\\nThe issues on appeal are:\\nAppellant Curtis asks:\\nI.Did the district court err when it reduced the total jury verdict, less the amount representing decedent's negligence, by the amount of the Unjon Pacific settlement?\\nII.If the district court was correct, did it then err by not adding the attorney fees and costs incurred in reaching the Union Pacific settlement?\\nIII. Did the district court err in disallowing certain costs claimed by appellant?\\nIV. Is respondent required to pay statutory interest on the judgment during the pendency of this appeal?\\nCross-Appellant Canyon Highway District asks:\\nV.Did the district court err by instructing the jury that respondent was required to place a stop sign at the crossing?\\nVI.Did the district court err by giving negligence per se instructions with respect to pavement markings, stop ahead signs, and portable stop signs?\\nVII.Did the district court err by not allowing the Union Pacific complaint to be used as evidence of prior admissions and for impeachment purposes?\\nVIII.Did the district court err by excluding evidence of the Union Pacific settlement?\\nIX. Did the district court err by excluding evidence of appellant's mitigation of economic damages?\\nX. Is respondent entitled to attorney fees, pursuant to I.C. \\u00a7 12-121 and I.A.R. 41, for having to defend this appeal?\\nI.\\nDid The District Court Err When It Reduced The Total Jury Verdict, Less the Amount Representing Decedent's Negligence, By The Amount Of The Union Pacific Settlement?\\nThe thrust of appellant's argument is that when the Idaho legislature abolished joint and several liability in 1987 , as it would have applied to this action, I.C. \\u00a7 6-805, as it existed then , was impliedly repealed. In support of her argument, appellant cites from New Mexico and Pennsylvania. The New Mexico and Pennsylvania courts held that the prior abolition of the doctrine of joint and several liability also eliminated the type of contribution enunciated in former I.C. \\u00a7 6-805. Wilson v. Galt, 100 N.M. 227, 668 P.2d 1104 (Ct.App.1983), cert. quashed, 100 N.M. 192, 668 P.2d 308; Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987). Appellant urges that her argument would further the public policy favoring amicable settlement of litigation. See Lomas & Nettleton Co. v. Tiger Enter., Inc., 99 Idaho 539, 542, 585 P.2d 949, 952 (1978).\\nRespondent contends that former I.C. \\u00a7 6-805 is clear and unambiguous and was not impliedly repealed by the 1987 limited abolition of joint and several liability. Respondent cites several cases it argues support the district court's method of arriving at appellant's damage award, in particular, the Idaho cases of Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986), and Tucker v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979).\\nIn Quick, this Court was faced with the issue of \\\"[wjhether the trial court erred in its method of crediting certain amounts Crane received in settlements against his total verdict.\\\" Quick, 111 Idaho at 763, 727 P.2d at 1191. \\\"The trial court concluded that the verdict should be credited for either the total amount of settlement actually received by Crane or the proportionate share of negligence borne by Crane and the parties with whom he settled, whichever was greater.\\\" Quick, 111 Idaho at 782, 727 P.2d at 1210. This Court stated:\\nWe have reviewed the case law in other jurisdictions operating under statutes similar to that of Idaho. Our search reveals that the more widely accepted view is that under provisions such as I.C. \\u00a7 6-805, the amount a plaintiff receives in settlement from a party should be deducted from the plaintiff's judgment even though the settling party was never judicially determined technically to be a joint tortfeasor.\\nQuick, 111 Idaho at 783, 727 P.2d at 1211.\\nIn Tucker, this Court was faced with the issue of \\\"whether, in the context of an industrial accident and where the employer has been found to be negligent, this Court should adopt a doctrine of comparative fault. That doctrine would require a third-party tortfeasor to respond in damages only in the ratio which its negligence bears to all other negligent conduct by others.\\\" Tucker, 100 Idaho at 592, 603 P.2d at 158. This Court stated that \\\"[a]t this time at least, the adoption of our comparative negligence act in Idaho does not require and we do not deem it appropriate to find a legislative intent to so abolish joint and several liability.\\\" Tucker, 100 Idaho at 598, 603 P.2d at 164. The Court did, however, remand Tucker, finding \\\"[t]he defendant-appellant Collier Carbon is entitled to have the judgment against it reduced by the amount of work[er's] compensation benefits paid to [plaintiff-respondent] Tucker.\\\" Tucker, 100 Idaho at 604, 603 P.2d at 170.\\nBoth the Tucker and the Quick cases were decided before the legislative abolition of joint and several liability. Because of this, the question we must answer is whether the legislature, by adopting the 1987 amendments to I.C. \\u00a7 6-803, impliedly repealed I.C. \\u00a7 6-805.\\nFor this question, we turn to State v. Martinez, 43 Idaho 180, 187, 250 P. 239, 240 (1926):\\nThe rule applicable in this instance is well expressed in Ruling Case Law:\\n'Repeals by implication are not favored, and will not be indulged if there is any other reasonable construction____\\n'The rule of construction in respect to the repeal of the statutes by implication is, that the earlier act remains in force, unless the two are manifestly inconsistent with and repugnant to each other, or unless in the later act express notice is . taken of the former, plainly indicating an intention to abrogate it____\\n'To effect an implied repeal of one statute by another they must both relate to the same subject and have the same object or purpose. Where there is a difference in the whole purview of two statutes apparently relating to the same subject, the former is not repealed. Where the evils which an act is designed to remedy are different from those for which a prior act provides the prior act is not repealed.'\\nOur task then, as Martinez dictates, becomes a twofold inquiry: (1) Whether I.C. \\u00a7 6-803, as amended in 1987, and former I.C. \\u00a7 6-805 are \\\"manifestly inconsistent with and repugnant to each other,\\\" and (2) whether in I.C. \\u00a7 6-803, as amended in 1987, \\\"express notice is taken of\\\" former I.C. \\u00a7 6-805.\\nThe language of I.C. \\u00a7 6-805, as it read before its 1991 amendments, was:\\n6-805. Effect of release of one tortfeasor on liability of others. \\u2014 A release by the injured person of one (1) joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides, but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if such amount or proportion is greater than the consideration paid. [1971, ch. 186, \\u00a7 5, p. 862.]\\nThe language of former I.C. \\u00a7 6-805 operates to set a cap on the total amount of damages a tort plaintiff can recover from multiple tort-feasors. For example, plaintiff (\\\"P\\\") is injured by the fault of defendants 1 (\\\"Dl\\\") and 2 (\\\"D2\\\"). P files a complaint against Dl and D2. Prior to trial, P settles with Dl for $4,000.00, and P then proceeds to trial against D2. After trial, the jury returns a special verdict, finding P to be 20% negligent, Dl to be 30% negligent, and D2 to be 50% negligent. The jury also finds P's total damages to be $10,000. After reducing the total damages by P's share of the fault, former I.C. \\u00a7 6-805 requires that this amount ($8,000.00) be reduced by the \\\"amount paid for the release.\\\" Thus, P's recovery against D2 would be $4,000. Former I.C. \\u00a7 6-805 thus sets the \\\"cap\\\" at the amount of the total jury verdict, i.e., a tort plaintiff can never recover more than the total jury verdict from multiple defendants under former I.C. \\u00a7 6-805.\\nThe pertinent language of the 1987 amendment to I.C. \\u00a7 6-803 reads:\\n(3) The common law doctrine of joint and several liability is hereby limited to causes of action listed in subsections (5), (6) and (7) of this section. In any action in which the trier of fact attributes the percentage of negligence or comparative responsibility to persons listed on a special verdict, the court shall enter a separate judgment against each party whose negligence or comparative responsibility exceeds the negligence or comparative responsibility attributed to the person recovering. The negligence or comparative responsibility of each such party is to be compared individually to the negligence or comparative responsibility of the person recovering. Judgment against each such party shall be entered in an amount equal to each party's proportionate share of the total damages awarded.\\nThus, I.C. \\u00a7 6-803, as amended in 1987, operates to set a cap on the total amount of damages recoverable against an individual defendant. In the above example, say that Dl settled with P for $1,000.00 instead of $4,000.00. Leaving the percentages of fault the same, former I.C. \\u00a7 6-805 would require that the total verdict ($10,000.00) be reduced by P's fault ($2,000.00) and by Dl's settlement ($1,000.00). Thus, there would be $7,000.00 left for P to potentially recover from D2. However, under I.C. \\u00a7 6-803, as amended in 1987, \\\"[\\u00a1judgment against each such party shall be entered in an amount equal to each party's proportionate share of the total damages awarded.\\\" Therefore, P could recover no more that D2's proportionate share (50%) of $10,-000.00, or $5,000.\\nThe statutes in question, I.C. \\u00a7 6-803, as amended in 1987, and I.C. \\u00a7 6-805, as it read before its 1991 amendments, are not \\\"manifestly inconsistent with and repugnant to each other.\\\"\\nLooking again to the particular language of I.C. \\u00a7 6-803, as amended in 1987, there is no \\\"express notice\\\" taken of former I.C. \\u00a7 6-805.\\nTherefore, we hold that the legislature, in amending I.C. \\u00a7 6-803 in 1987, did not impliedly repeal former I.C. \\u00a7 6-805. We conclude that the district court, pursuant to former I.C. \\u00a7 6-805, correctly subtracted the amount appellant received in settlement from Union Pacific from the total jury verdict rendered against respondent.\\nII.\\nIf The District Court Was Correct, Did It Then Err By Not Adding The Attorney Fees And Costs Incurred In Reaching The Union Pacific Settlement?\\nAppellant argues that the fees expended in arriving at the Union Pacific settlement should be subtracted from that settlement amount. Thus, only the \\\"net\\\" amount received in settlement would be subtracted from appellant's award in this case.\\nWe find no authority for this proposition.\\nIII.\\nDid The District Court Err In Disallowing Certain Costs Claimed By Appellant?\\nAppellant challenges the district court's disallowance of certain costs, as listed in her affidavit and memorandum of costs, disbursements, and attorney fees. Appellant also argues that the district court erred by not allowing her to amend the affidavit and memorandum of costs, disbursements, and attorney fees. Additionally, appellant argues that the district court failed to make express findings of why the costs were not allowed.\\nThe costs that the district court denied were costs in excess of those allowed as a matter of right. I.R.C.P. 54(d)(1)(D) allows for costs in excess of those allowed as a matter of right \\\"upon a showing that said costs were necessary and exceptional costs reasonably incurred, and should in the interest of justice be assessed against the adverse party. The trial court, in ruling upon objections to such discretionary costs contained in the memorandum of costs, shall make express findings as to why such specific item of discretionary cost should or should not be allowed.\\\"\\nIn Masters v. Dewey, 109 Idaho 576, 580, 709 P.2d 149, 153 (Ct.App.1985), review denied, the district court \\\"awarded $1,265.55 for costs as a matter of right and $815 discretionary costs to the [respondents] _ The record merely reflects that the [respondents] were awarded all but $65.00 of their costs.\\\" The Court of Appeals stated that \\\"the district court should have explicitly stated which costs were recoverable under rule 68 and which costs were recoverable under rule 54(d)(1), together with a statement of reasons supporting award of any discretionary costs under rule 54 .\\\" and, thus, the Court of Appeals remanded the case \\\"for a determination of costs consistent with this opinion.\\\" Masters, 109 Idaho at 580, 709 P.2d at 153.\\nThe district court, in its October 18, 1990 Order On Costs Memorandum, made the following statements in regard to the disallowed costs:\\n2. Under \\\"witness fees\\\" [subheading in cost memorandum] is a claim of $200.00 for David Beaufont who is not included under \\\"expert witness fees.\\\" The same is true of Ken Cottingham ($140.00) and David Putnam ($75.00). There is no showing of the mileage travelled by the witnesses and the amount allowable for non-expert witnesses in $20.00 per day. Accordingly the Court finds that the total cost allowable for the eleven non-expert witnesses who are listed in $220.00.\\n3. As to the expert witness costs, the court finds that the amount allowable as a matter of right under the rule is $500.00 per witness, plus mileage. The mileage travelled is again not stated. There is no showing that the costs claimed in excess of $500.00 are exceptional in a case of this nature. The court therefor finds that the sum of $2,000.00 is allowable for the four named expert witnesses.\\n5. The claim for a total of $1,329.50 for transcripts of the testimony from the plaintiff's prior trial in which the Union Pacific Railroad was the defendant is denied as not being necessary since these are mostly, if not entirely, the plaintiffs own witnesses.\\n6. Plaintiff's exhibit expenses in excess of the amount of $500.00 have not been shown to be exceptional and such allowable expenses are therefor limited to $500.00.\\n7. Plaintiff's claims for travel expenses of counsel in taking depositions and claims for miscellaneous expenses have not been shown to be exceptional and should not be allowed.\\nThe district court, in ruling upon respondent's September 13, 1990 motion to disallow appellant's claimed costs, clearly made \\\"express findings as to why such specific item of discretionary cost . should not be allowed,\\\" I.R.C.P. 54(d)(1)(D). Masters v. Dewey, 109 Idaho 576, 709 P.2d 149 (Ct.App.1985), review denied.\\nIV.\\nIs Respondent Required To Pay Statutory Interest On The Judgment During The Pendency Of This Appeal?\\nAppellant contends that she is entitled to receive post-judgment interest on the district court's judgment because respondent's cross-appeal involves the possibility of a new trial. For authority, she cites Long v. Hendricks, 117 Idaho 1051, 793 P.2d 1223 (1990), and I.C. \\u00a7 10-1115.\\nOur rule is clear: \\\"When a judgment debtor wishes to cut off the accrual of post judgment interest, the tender of the amount of the judgment is sufficient.\\\" Long, 117 Idaho at 1054, 793 P.2d at 1226. The record shows that respondent tendered the amount of the judgment to appellant, thus complying with I.C. \\u00a7 10-1115, appellant refused to accept the tender, and the parties later stipulated to the deposit of the check into an interest-bearing account. This having satisfied the Long rule, respondent is not required to pay statutory interest on the judgment during the pendency of this appeal.\\nV.\\nDid The District Court Err By Instructing The Jury That Respondent Was Required To Place A Stop Sign At The Crossing?\\nThe district court gave a negligence per se instruction based upon I.C. \\u00a7 49-672. Cross-appellant contends that I.C. \\u00a7 49-672 is in direct conflict with another statute, I.C. \\u00a7 49-584.\\nIdaho Code \\u00a7 49-672 was amended and recodified at I.C. \\u00a7 49-202(21). An Act Relating To Recodification Of The Motor Vehicle Laws, ch. 265, \\u00a7 5,1988 Idaho Session Laws 549, 576. The language of former I.C. \\u00a7 49-672 read:\\n49-672. All vehicles must stop at certain grade crossings. \\u2014 Wherever a street or highway crosses or shall hereafter cross one or more railroads at grade, the Idaho transportation department as to streets or highways under its jurisdiction and local authorities as to streets and highways under the jurisdiction of such local authorities shall place and maintain stop signs, directing vehicular traffic approaching the crossing to come to a full stop prior to entering the crossing at all railroad crossings where electric or mechanical warning signals do not exist. Placement of such stop signs shall be mandatory except when in the determination of the Idaho transportation department or local authorities as to the streets or highways under its or their respective jurisdiction the existence of stop signs at a given crossing would constitute a greater hazard than their absence, mandatory placement shall be deemed waived. When such stop signs are erected, the driver of any vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad and shall proceed only upon exercising due care.\\nProvided, however, that nothing in this section shall be construed as granting immunity to any railroad company as to liability, if any, for an accident which might occur at a crossing where stop signs are erected and in place, but such liability, if any, shall be determined as by law provided. Provided, further, that liability on the part of the governmental authorities on account of the absence of any stop sign at a crossing shall be determined as provided by law.\\nIdaho Code \\u00a7 49-584 was amended and reucodified at I.C. \\u00a7 49-201(3). An Act Relating To Recodification Of The Motor Vehicle Laws, ch. 265, \\u00a7 4,1988 Idaho Session Laws 549, 571. The language of former I.C. \\u00a7 49-584 read:\\n49-584. Board of transportation to adopt sign manual. \\u2014 The Idaho transportation board shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this title for use upon highways within this state. Such uniform system shall correlate with, and so far as possible, conform to the system set forth in the most recent edition of the manual on uniform traffic control devices for streets and highways and other standards issued or endorsed by the federal highway administrator.\\n(Emphasis added.)\\nThe Idaho Transportation Board, pursuant to the directive of I.C. \\u00a7 49-584, adopted the Manual On Uniform Traffic Control Devices (MUTCD). On April 10, 1980, they readopted the MUTCD. It is the 1980 version of MUTCD that is at question.\\nThe relevant provisions of the MUTCD appear at Part VIII, which is entitled \\\"Traffic Control Systems For Railroad\\u2014 Highway Grade Crossings.\\\" The relevant provision of Part VIII of the 1980 MUTCD is:\\n8B-9 STOP Signs at Grade Crossings (Rl-1, W3-1)\\nThe use of the STOP signs at railroad-highway grade crossings shall be limited to those grade crossings selected after need is established by a detailed traffic engineering study. Such crossings should have the following characteristics:\\n1. Highway should be secondary in character with low traffic counts.\\n2. Train traffic should be substantial.\\n3. Line of sight to an approaching train is restricted by physical features such that approaching traffic is required to reduce speed to 10 miles per hour or less in order to stop safely.\\n4. At the stop bar, there must be sufficient sight distance down the track to afford ample time for a vehicle to cross the track before the arrival of the train.\\nThe engineering study may determine other compelling reasons for the need to install a STOP sign, however, this should only be an interim measure until active traffic control signals can be installed. STOP signs shall not be used on primary through highways or at grade crossings with active traffic control devices.\\nWhenever a STOP sign is installed at a grade crossing, a Stop Ahead sign shall be installed in advance of the STOP sign.\\nCross-appellant contends that former I.C. \\u00a7 49-672 is in conflict with former I.C. \\u00a7 49-584. Further, cross-appellant contends that the MUTCD, which was adopted pursuant to former I.C. \\u00a7 49-584, requires four findings before a stop sign is required, and that those findings were not made in this case.\\nFormer Idaho Code \\u00a7 49-672 and former I.C. \\u00a7 49-584 both deal with state regulation of traffic control devices. Therefore, the statutes are in pari materia. Meyers v. City of Idaho Falls, 52 Idaho 81, 89-90, 11 P.2d 626, 629 (1932). As such, \\\"we are required to construe the language of [former I.C. \\u00a7 49-672] as being consistent with the language of [former I.C. \\u00a7 49-584], if such construction is at all possible.\\\" State v. Creech, 105 Idaho 362, 367, 670 P.2d 463, 468 (1983), cert. denied 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (citing Union Pac. R.R. Co. v. Board of Tax Appeals, 103 Idaho 808, 654 P.2d 901 (1982)).\\nFormer I.C. \\u00a7 49-672 mandates the placement of stop signs at railroad crossings \\\"[w]herever a street or highway crosses or shall hereafter cross one or more railroads at grade.\\\" This statute provides an exception to this mandatory rule for situations where \\\"the existence of stop signs at a given crossing would constitute a greater hazard than their absence.\\\"\\nFormer I.C. \\u00a7 49-584 mandates the Idaho Transportation Board to \\\"adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this title for use upon highways within this state.\\\" (Emphasis added.)\\nSection 8B-9 of the MUTCD limits the placement of stop signs at railroad crossings to those crossings found, after a \\\"detailed engineering study,\\\" to possess four specified characteristics.\\nIn order for an administrative regulation to be valid, it must be adopted pursuant to authority granted to the adopting body by the legislature. Grayot v. Summers, 75 Idaho 125, 132, 269 P.2d 765, 769 (1954). In this case, former I.C. \\u00a7 49-584 authorized the Idaho Transportation Board to \\\"adopt a manual and specifica tions for a uniform system of traffic-control devices____\\\" Additionally, an administrative regulation cannot exceed the bounds of the authority granted to the adopting body by the legislature. Pumice Prods. v. Robison, 79 Idaho 144, 147, 312 P.2d 1026, 1027 (1957). In this case, the legislature defined the precise limits of the authority granted in former I.C. \\u00a7 49-584 as \\\"consistent with the provisions of this title for use upon highways within this state.\\\" (Emphasis added.)\\nFormer I.C. \\u00a7 49-672 states that \\\"[w]herever a street or highway crosses or shall hereafter cross one or more railroads at grade, [the proper governmental body] shall place and maintain stop signs....\\\" (Emphasis added.) The term \\\"shall\\\" is not defined in chapter 6 of title 49, Idaho Code. However, this Court has clearly held that \\\"[t]he word shall, when used in a statute, is mandatory.\\\" Goff v. H.J.H. Co., 95 Idaho 837, 839, 521 P.2d 661, 663 (1974) (emphasis in original). Furthermore, at the same time former I.C. \\u00a7 49-672 was in effect, former I.C. \\u00a7 49-601 specifically stated that \\\"[t]he provisions of this title relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except where a different place is specifically referred to in a given section.\\\" (Emphasis added.) In this case, former I.C. \\u00a7 49-672 does not specifically refer to \\\"another place.\\\"\\nThe relevant MUTCD provision, \\u00a7 8B-9, requires a finding of four necessary characteristics before a stop sign is placed at railroad crossings. Section 8B-9 of the MUTCD is, then, manifestly inconsistent with the mandatory stop sign provision of former I.C. \\u00a7 49-672. Because of this inconsistency, \\u00a7 8B-9 of the MUTCD is violative of the provision of the enabling act, former I.C. \\u00a7 49-584, requiring the manual to be \\\"consistent with the provisions of this title____\\\"\\nWe therefore hold that \\u00a7 8B-9 of the MUTCD is not authorized by former I.C. \\u00a7 49-584, is beyond the authority of the Idaho Transportation Board, and is, therefore, void. Pumice Prods., 79 Idaho at 147, 312 P.2d at 1027. We conclude that the district court properly instructed the jury that the respondent was required to place a stop sign at the crossing.\\nVI.\\nDid The District Court Err By Giving Negligence Per Se Instructions With Respect To Pavement Markings, Stop Ahead Signs, And Portable Stop Signs?\\nThe district court gave the jury the following instruction:\\nYou are instructed that, pursuant to a statutory requirement, the Idaho transportation board has adopted the Manual on Uniform Traffic Control Devices for Streets and Highways [the MUTCD], which has the force and effect of law. You are further instructed that local authorities such as Canyon Highway District No. 4 are also required by statute to adopt the MUTCD and to comply with the provisions thereof.\\nAt the time of the accident in question, Provision 8B-4 of the MUTCD provided that:\\nPavement markings in advance of a grade crossing shall consist of an X, the letters RR, a no passing marking on two lane roads, and certain transverse lines. Identical markings shall be placed in each approach lane on all paved approaches to grade crossings where grade crossing signals or automatic gates are located, and at all other grade crossings where the prevailing speed of highway traffic is 40 mph or greater.\\nThe markings shall also be placed at crossings where the engineering studies indicate there is a significant potential conflict between vehicles and trains. At minor crossings or in urban areas, these markings may be omitted if engineering study indicates that other devices installed provide suitable control.\\nProvision 8B-9 of the MUTCD provided in pertinent part that: \\\"Whenever a STOP sign is installed at a grade crossing, a Stop Ahead sign shall be installed in advance of the STOP sign.\\\"\\nYet another provision of the MUTCD, 3B-17, provided that:\\nStop lines are solid white lines, normally 12 to 14 inches wide, extending across all approach lanes.\\nStop lines should be used in both rural and urban areas where it is important to indicate the point, behind which vehicles are required to stop, in compliance with a STOP sign or other legal requirement.\\nStop lines, where used, should ordinarily be placed 4 feet in advance of and parallel to the nearest crosswalk line. In the absence of a marked crosswalk, the Stop line-' should be placed at the desired stopping point, in no case no more than 30 feet or less than 4 feet from the nearest edge of the intersecting roadway.\\nIf a stop line is used in connection with a STOP sign, it should ordinarily be placed in line with the STOP sign. However, if the sign cannot be located exactly where vehicles are expected to stop, the Stop line should be placed at the stopping point.\\nMUTCD Provision 2B-5 provided that: \\\"Portable or part-time STOP signs shall not be used except for emergency purposes.\\\"\\nFailure of a local authority to comply with any of these provisions is negligence unless compliance with the MUTCD provision was impossible, or something over which the authority had no control placed it in a position of noncompliance, or an emergency not of the authority's own making caused it to fail to comply with the provision.\\nFormer I.C. \\u00a7 49-586, as it existed at the time of the accident in this case, stated:\\n49-586. Local traffic-control devices. \\u2014 Local authorities in their respective jurisdictions shall place and maintain such traffic-control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this title, or local traffic ordinances, or to regulate, warn or guide traffic. All such traffic-control devices hereinafter erected shall conform to the state manual and specifications referred to in section 49-584, Idaho Code.\\nThe relevant MUTCD provisions do not conflict with former I.C. \\u00a7 49-586.\\nRespondent argues that since there was no stop sign at the crossing, the MUTCD did not require it to place a stop ahead sign at the crossing. We have already held that former I.C. \\u00a7 49-672 required a stop sign at this crossing. Furthermore, this Court has held that the MUTCD \\\"has the force of law.\\\" Bingham v. Idaho Dep't of Transp., 117 Idaho 147, 151, 786 P.2d 538, 542 (1989) (citing Jorstad v. City of Lewiston, 93 Idaho 122, 129-30, 456 P.2d 766, 773-74 (1969)).\\nThis Court has recognized that a violation of an administrative regulation \\\"may constitute negligence per se. \\\" Sanchez v. Galey, 112 Idaho 609, 617, 733 P.2d 1234, 1242 (1986).\\nThe district court did not err in giving the jury the above-quoted instruction regarding stop ahead signs, stop lines, and portable stop signs.\\nVII.\\nDid The District Court Err By Not Allowing The Union Pacific Complaint To Be Used As Evidence Of Prior Admissions And For Impeachment Purposes?\\nCross-appellant contends that the complaint filed against Union Pacific constitutes non-hearsay under I.R.E. 801(d)(2), as an admission by a party-opponent. For authority, it cites to McLean v. City of Spirit Lake, 91 Idaho 779, 783, 430 P.2d 670, 674 (1967), and 17 Am.Jur.2d Evidence \\u00a7 616 (1967). In effect, cross-appellant is saying that a complaint rises to the level of a judicial admission. The authorities cited by appellant do not support this proposition. The district court correctly excluded the Union Pacific complaint to be used as evidence of prior admissions and for impeachment purposes.\\nVIII.\\nDid The District Court Err By Excluding Evidence Of The Union Pacific Settlement?\\nCross-appellant argues that it is appropriate for the jury to be informed of the ultimate effect of their answers to special verdict questions. For authority, it cites Luna v. Shockey Sheet Metal & Welding Co., 113 Idaho 193, 196, 743 P.2d 61, 64 (1987). The Luna case, however, did not deal with submitting settlements between a non-party tort-feasor and the plaintiff to the jury.\\nUnless a settlement agreement falls into the definition of \\\"Mary Carter Agreements,\\\" as defined and explained in Quick, 111 Idaho at 778-80, 727 P.2d at 1206-08, and the parties can prove they would be prejudiced by nondisclosure, our rule is that \\\"trial judges have broad discretion in determining the admissibility of such evidence and their decision 'will not be overturned absent a clear showing of abuse.' \\\" Quick, 111 Idaho at 780, 727 P.2d at 1208 (quoting Soria v. Sierra Pac. Airlines, Inc., 111 Idaho 594, 606, 726 P.2d 706, 718 (1986)). In this case, the Union Pacific Release is clearly not a \\\"Mary Carter Agreement,\\\" and we find that the district court did not abuse its discretion by excluding the agreement.\\nIX.\\nDid The District Court Err By Excluding Evidence Of Appellant's Mitigation Of Economic Damages?\\nCross-appellant contends that the district court erred by excluding, as evidence of mitigation of damages, the fact that appellant's business prospered under her management after the death of her husband.\\nWe find no authority that requires a surviving spouse to mitigate damages in this way.\\nX.\\nIs Respondent Entitled To Attorney Fees, Pursuant To I.C. \\u00a7 12-121 And I.A.R. 41, For Having To Defend This Appeal?\\nIdaho Code \\u00a7 12-121 states that \\\"[i]n any civil action, the judge may award reasonable attorney's fees to the prevailing party____\\\" Idaho Appellate Rule 41(a) states that \\\"[a]ny party seeking attorney fees on appeal must assert such a claim as an issue presented on appeal in the first appellate brief filed by such party____\\\"\\nOur rule is:\\nIn awarding reasonable attorney fees to the prevailing party on appeal, this Court will be guided by the following general principles. Since the statutory power is discretionary, attorney fees will not be awarded as a matter of right. Nor will attorney fees be awarded where the losing party brought the appeal in good faith and where a genuine issue of law was presented. In normal circumstances, attorney fees will only be awarded when this Court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation.\\nMinich v. Gem State Dev., Inc., 99 Idaho 911, 918, 591 P.2d 1078, 1085 (1979).\\nApplying this rule to this case, we decline to award attorney fees on appeal to respondent.\\nConclusion\\nFor the above reasons, we affirm the decision of the district court.\\nNo costs on appeal.\\nBISTLINE and JOHNSON, JJ., and REINHARDT, J. Pro Tern., concur.\\n. Idaho Appellate Rule 17(e)(1)(C) reads: \\\"The notice of appeal shall designate the final judgment, order or decree appealed from which shall be deemed to include, and present on appeal . [a]ll interlocutory or final judgments, orders and decrees entered after the judgment, order or decree appealed from.\\\"\\n. An Act Relating To Tort Liability Laws, ch. 278, \\u00a7 4, 1987 Idaho Session Laws 571, 577-78.\\n. I.C. \\u00a7 6-805 was amended, by adding subsection (2), in 1991. The statute presently reads:\\n6-805. Effect of release of one tortfeasor on liability of others. \\u2014 (1) A release by the injured person of one (1) joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides, but, unless otherwise provided in subsection (2) of this section, reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if such amount or proportion is greater than the consideration paid.\\n(2) A release by the injured person of one (1) or more tortfeasors who are not jointly and severally liable to the injured person, whether before or after judgment, does not discharge another tortfeasor or reduce the claim against another tortfeasor unless the release so provides and the negligence or comparative responsibility of the tortfeasor receiving the release is presented to and considered by the finder of fact, whether or not the finder of fact apportions responsibility to the tortfeasor receiving the release.\\nThe appellant did not argue that the amended version of I.C. \\u00a7 6-805 should be applied retroactively.\"}"
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+"{\"id\": \"4457678\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Dion HAUGHT, Defendant-Appellant\", \"name_abbreviation\": \"State v. Haught\", \"decision_date\": \"1992-04-13\", \"docket_number\": \"No. 19123\", \"first_page\": \"104\", \"last_page\": \"107\", \"citations\": \"122 Idaho 104\", \"volume\": \"122\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:32:40.923341+00:00\", \"provenance\": \"CAP\", \"judges\": \"SWANSTROM and SILAK, JJ., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Dion HAUGHT, Defendant-Appellant.\", \"head_matter\": \"831 P.2d 946\\nSTATE of Idaho, Plaintiff-Respondent, v. Dion HAUGHT, Defendant-Appellant.\\nNo. 19123.\\nCourt of Appeals of Idaho.\\nApril 13, 1992.\\nPetition for Review Denied June 18, 1992.\\nDerr & Associates, Boise, for defendant-appellant. Frederick C. Frahm, argued.\\nLarry EehoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent.\", \"word_count\": \"1238\", \"char_count\": \"7613\", \"text\": \"WALTERS, Chief Judge.\\nDion Haught was convicted of possessing a controlled substance. On appeal he challenges the district court's order denying his motion to suppress evidence found in his vehicle. We affirm.\\nThe facts are as follows. While driving on Highway 93, south of Twin Falls, Haught was stopped by a state trooper, Officer Stanley, for speeding. Using the information from Haught's registration and driver's license, Stanley radioed a dispatcher to perform a warrants check. The check revealed an outstanding misdemean- or warrant for failure to appear on a charge of driving without privileges. Based on this warrant, Haught was arrested, handcuffed, patted down and placed in the patrol car. Pursuant to an Idaho State Police impoundment policy, Stanley began an inventory of Haught's pickup truck, an extended cab model with passenger seats behind the front seats. Stanley started with the pickup bed, where she noticed several 9mm brass shell casings in a plastic cup. She stopped her search and asked Haught if he had a gun in the vehicle. He told her he kept a pistol in the cab next to the driver's seat. Stanley entered the cab and found a loaded gun in the console between the front seats. Continuing to search the passenger compartment, she opened a latched, but unlocked, compartment beneath the back passenger seats where she discovered approximately two kilograms of cocaine.\\nHaught filed a motion to suppress this evidence, arguing that the search violated his Fourth Amendment rights. The district court denied the motion, ruling that the evidence was admissible as the product of a lawful search incident to arrest. Reserving his right to challenge this ruling, Haught entered a conditional guilty plea to possessing cocaine with intent to deliver. This appeal followed.\\nThe sole issue is whether the district court erred by denying Haught's motion to suppress. Because this issue raises a question of constitutional law, we exercise free review, deferring to the district court's factual findings unless they are clearly erroneous. State v. Shepherd, 118 Idaho 121, 122, 795 P.2d 15, 16 (Ct.App.1990).\\nThe Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. Generally, police may conduct a search only if they have obtained a warrant based upon probable cause. An exception to the warrant requirement exists when officers make an arrest. The arresting officers may conduct an immediate search of the arrestee, and the area within the arrestee's immediate control, without first obtaining a warrant. See Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). Moreover, an officer who makes a lawful custodial arrest of the occupant of an automobile may, \\\"as a contemporaneous incident of that arrest,\\\" search the passenger compartment and examine the contents of any container, opened or closed, found within. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Smith, 120 Idaho 77, 813 P.2d 888 (1991).\\nHaught does not challenge the validity of his arrest, nor does he dispute that the evidence was seized from a container within the passenger compartment of his vehicle. He contends, however, that the search of the passenger compartment was not sufficiently \\\"contemporaneous\\\" with his arrest and that Belton therefore is inapplicable.\\nWhether a search is \\\"contemporaneous\\\" with an arrest is judged by a standard of reasonableness under the circumstances of the arrest. United States v. Vasey, 834 F.2d 782, 787-88 (9th Cir.1987); see also P. JOSEPH, WARRANTLESS SEARCH LAW DESKBOOK, \\u00a7 10.5 (1991). Where the arrestee remains at the scene, a search generally \\u2014 but not automatically \\u2014 will be deemed sufficiently contemporaneous under Belton. See Smith, 120 Idaho at 80, 813 P.2d at 891; State v. Hull, 210 Conn. 481, 556 A.2d 154 (1989); State v. Fladebo, 113 Wash.2d 388, 779 P.2d 707 (1989); State v. Fry, 131 Wis.2d 153, 388 N.W.2d 565, cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 586 (1986); see also 3 W. LAFAVE, SEARCH AND SEIZURE \\u00a7 7.1(c), at 15 (2d ed. 1987) (\\\"the fact that in almost all cases the search will be undertaken at the place of arrest is, as a practical matter, likely to overcome any problems as to temporal proximity\\\"). This is so even though the arrestee is handcuffed and placed in the patrol car, with little or no chance of destroying evidence or obtaining a weapon. See State v. Wheaton, 121 Idaho 404, 825 P.2d 501 (1992); United States v. White, 871 F.2d 41 (6th Cir.1989); United States v. Karlin, 852 F.2d 968 (7th Cir.1988), cert. denied, 489 U.S. 1021, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989); United States v. McCrady, 774 F.2d 868, 871-72 (8th Cir.1985); United States v. Cotton, 751 F.2d 1146, 1149 (10th Cir.1985); United States v. Abel, 707 F.2d 1013, 1015 n. 1 (9th Cir.1983), reversed on other grounds, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984).\\nIn this case, the search followed the arrest and was conducted at the scene with the arrestee still present. Moreover, it is clear from the record that Officer Stanley entered the passenger compartment for the purpose of locating Haught's gun, which she had not known existed until she found the shells and questioned Haught. Thus, once Officer Stanley learned of the gun, a search for it became imperative. The fact that she conducted an intervening inventory of the pickup bed \\u2014 which appears to have taken no more than a few minutes\\u2014 did not destroy her right to enter the pickup cab to search for the weapon. Compare Vasey, supra.\\nWe conclude that, under these circumstances, the search of the passenger compartment was sufficiently contemporaneous with Haught's arrest. Accordingly, the seizure of evidence from the containers found in that compartment was authorized under Belton. Because we uphold the district court's ruling that the search was a valid search incident to arrest, we need not analyze whether the search was also proper under the inventory exception to the warrant requirement. Shepherd, supra, 118 Idaho at 124, 795 P.2d at 18.\\nHaught next asks that we construe Article I, section 17, of the Idaho Constitution as providing greater protection than that afforded by the Fourth Amendment of the United States Constitution. He suggests that we reject Belton's bright-line rule defining the area \\\"within the arrestee's immediate control\\\" as the entire passenger compartment and require instead that the scope of the search area be more closely tailored to the circumstances of each case. As Haught concedes, however, this argument was not developed in the district court. We will not consider an issue raised for the first time on appeal. See Wheaton, 121 Idaho at 406-07, 825 P.2d at 503-04.\\nThe judgment of conviction, entered upon Haught's conditional plea, is affirmed.\\nSWANSTROM and SILAK, JJ., concur.\\n. In Vasey, the court held that where the search took place at a time from thirty to forty-five minutes after the defendant had been arrested, handcuffed, and placed in the rear of the police vehicle, during which time the officers conducted several conversations with him, the officers lost their right to enter the vehicle in the guise of a search incident to arrest. 834 F.2d at 787.\"}"
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+"{\"id\": \"4461829\", \"name\": \"George O. CAESAR, Plaintiff-Respondent, v. Arnold WILLIAMS, Secretary of State of the State of Idaho, Defendant-Appellant\", \"name_abbreviation\": \"Caesar v. Williams\", \"decision_date\": \"1962-04-03\", \"docket_number\": \"No. 9158\", \"first_page\": \"254\", \"last_page\": \"278\", \"citations\": \"84 Idaho 254\", \"volume\": \"84\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:33:21.679089+00:00\", \"provenance\": \"CAP\", \"judges\": \"SMITH, C. J., and KNUDSON, J., concur.\", \"parties\": \"George O. CAESAR, Plaintiff-Respondent, v. Arnold WILLIAMS, Secretary of State of the State of Idaho, Defendant-Appellant.\", \"head_matter\": \"371 P.2d 241\\nGeorge O. CAESAR, Plaintiff-Respondent, v. Arnold WILLIAMS, Secretary of State of the State of Idaho, Defendant-Appellant.\\nNo. 9158.\\nSupreme Court of Idaho.\\nApril 3, 1962.\\nRehearing Denied May 8, 1962.\\nFrank L. Benson, Atty. Gen., Warren Felton, Asst. Atty. Gen., Boise, Swayne & McNichols, Orofino, William J. Dee, Grangeville, for appellant.\\nRichards, Haga & Eberle, Boise, for respondent.\\nC. H. Higer, amicus curiae, Emmett, for appellant.\\nHerman J. McDevitt, amicus curiae, Pocatello, for respondent.\", \"word_count\": \"8472\", \"char_count\": \"52720\", \"text\": \"McFADDEN, Justice.\\nThis action was instituted by respondent, a resident, taxpayer and qualified elector of Ada County, against appellant as Secretary of State to enjoin him from certifying to the respective county auditors the number of representatives each county will be entitled to elect at the forthcoming general election, (in November 1962) pursuant to the requirements of I.C. \\u00a7 67-203 (as amended S.L.1951, ch. 60, sec. 1). Respondent contends that the amendment of I.C. \\u00a7 67-203, by S.L.1951, ch. 60, \\u00a7 1, is unconstitutional, as is the previous enactment, S.L.1941, ch. 87, \\u00a7 1. He contends that S.L.1933, ch. 75, \\u00a7 1, is the only constitutional enactment under which appellant can act. Respondent, in the district court, also sought mandate to require the Secretary of State to make such certification to the respective county auditors of the number of representatives to be elected, solely on the basis of the 1933 act.\\nIn his complaint, respondent alleges that neither the 1951 act, nor the 1941 act, provides substantially equal representation for the people of Ada County and of certain other populous counties, for the reason that each such enactment establishes an excessively high minimum number of persons per representative; and an excessively low minimum number of persons for the next additional representative, which is but a small percentage of the whole minimum number established for the first representative; that on the basis of the 1960 U. S. census, the 1951 and 1941 amendments are arbitrary and capricious, and result in 15.-2% of the population of the State, residing in 22 counties each of a population of 8,500 or less, having 35% of the representation of the house of representatives.\\nAppellant in his answer, generally denied the allegations of unconstitutionality of the enactments in question, and prayed that the court declare the action as one for declaratory relief, and determine under which act appellant should perform his statutory duties.\\nIn answer to interrogatories and request for admissions, appellant admitted the correctness of the figures reflected in the 1960 census, (attached as an exhibit to respondent's complaint); and that under the 1960 census, on the basis of the 1951 enactment, appellant could certify a total of 63 representatives for the entire state (6 for Ada County). The 1933 act, on the basis of the 1960 census, would increase the total representatives to 79 (with 9 apportioned to Ada County).\\nThe trial court, upon disposition of respondent's motion for judgment on the pleadings, treated as a motion for summary judgment, entered finding of fact generally finding that the 1951 and 1941 enactments as applied to the 1960 census, result in arbitrary, capricious and substantially unequal representation in the house of representatives of the more populous counties, in comparison to the less populous counties of the state; and in its conclusions of law, the court concluded that the 1951 and 1941 enactments are unconstitutional, but that the 1933 enactment should control in that it affords more equal representation than the other two acts, and constituted the last valid and constitutional apportionment act. In its judgment, the court required certification by appellant on the basis of the 1933 act.\\nThis appeal resulted, the notice of appeal having been signed and regularly filed by one of appellant's resident attorneys. Respondent moved to dismiss the appeal challenging its validity on the ground that it is not signed either by the appellant personally, or by an authorized member of the attorney general's staff.\\nThis Court is cognizant of the provisions of I.C. \\u00a7 67-1401 which specifies some of the duties of the attorney general. The right of the attorney general to appear has not been questioned and we are not here concerned with any reason why he did not participate in this appeal. The record discloses that a member of the attorney general's staff represented appellant in the district court; also, that this appeal was taken with the full knowledge of the attorney general in that he, through a member of his staff, specifically requested in writing that the attorneys representing appellant, be substituted for the attorney general, as attorneys of record for appellant on this appeal.\\nNo contention of usurpation of the rights or power of the attorney general by ap pellant's present counsel is even inferred, and we are not here concerned with any question as to whether the attorney general properly delegated his power or authority to appear herein. Both the appellant and the attorney general were personally present during the oral presentation of this appeal. The attorneys representing appellant are members in good standing of the Idaho State Bar who have appeared as members of the Bar and in no other capacity, at the request of appellant and without cost to the State of Idaho. The motion to dismiss is without merit and is denied.\\nAppellant by his specifications of error challenges the right of the trial court to assume jurisdiction of the cause, and claims error committed by the court in declaring that the 1933 enactment is the last valid apportionment act.\\nConcerning the first specification of error, appellant, in questioning the right of the trial court to assume jurisdiction of the case, relies primarily on Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L. Ed. 1432, a case which originated in Illinois. Courts of various other states have recognized their jurisdiction to deal with apportionment statutes. Parkinson v. Watson, 1955, 4 Utah 2d 191, 291 P.2d 400; Brooks v. State, 1904, 162 Ind. 568, 70 N.E. 980; Brown v. Saunders, 1932, 159 Va. 28, 166 S.E. 105; Stiglitz v. Schardien, 1931, 239 Ky. 799, 40 S.W.2d 315; State ex rel. Thomson v. Zimmerman, 1953, 264 Wis. 644, 60 N.W.2d 416, 61 N.W.2d 300; Asbury Park Press, Inc. v. Woolley, 1960, 33 N.J. 1, 161 A.2d 705; State v. Cunningham, 1892, 81 Wis. 440, 51 N.W. 724, 15 L.R.A. 561; In re Sherill, 1907, 188 N.Y. 185, 81 N.E. 124; Attorney General v. Secretary of the Commonwealth, 1940. 306 Mass. 25, 27 N.E.2d 265; Donovan v. Holzman, 1956, 8 Ill.2d 87, 132 N.E.2d 501; 16 C.J.S. Constitutional Law \\u00a7 147, pp. 708-709.\\nIn the most recent opinion of Baker v. Carr, released March 26, 1962, 82 S.Ct. 691, the Supreme Court of the United States recognizes that it is within the province of the courts to inquire into the validity of apportionment statutes of the respective states to determine whether there has been an infringement on the rights of the citizens by reason of improper or unlawful apportionment. The special concurring opinion of Mr. Justice Stewart most specifically points out that the decision \\u2014 Baker v. Carr \\u2014 decides only three things and no more:\\n\\\"(a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) that the appellants have standing to challenge the Tennessee apportionment statutes.\\\"\\nThis action is one within the jurisdiction of the trial court and appellant's contention in this regard is without merit.\\nAppellant urges that this action should not be maintained by reason of the long delay in attacking the apportionment act, citing State ex rel. Mills v. Howell, 93 Wash. 257, 159 P. 777, Adams v. Bosworth, 126 Ky. 61, 102 S.W. 861, 10 L.R.A., N.S., 1184; In re Reynolds, 202 N.Y. 430, 96 N.E. 87; People ex rel. Woodyatt v. Thompson, 155 Ill. 451, 40 N.E. 307. However, we deem the announcement by the Supreme Court of New Jersey in the case of Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 161 A.2d 705, 706, as the preferable rule, succinctly stated in the syllabus as follows:\\n\\\"Acquiescence for no length of time can legalize a clear violation of duty where the people have plainly expressed their will in the Constitution and have appointed judicial tribunals to enforce it.\\\"\\nDelay alone is no basis for refusing to consider the merits of this matter, for otherwise, under future changing circumstances any claimed rights of a person situate as respondent, could never be protected, merely because he did not immediately act.\\nThis court, under Idaho Const. Art. V, \\u00a7 9, has jurisdiction to review, upon appeal, decisions of the district courts. This action is not one of original jurisdiction, but is here by appeal from the decree of district court. Thus, before this court is the sole question, whether the trial court's decree is correct. The answer to this question hinges upon whether S.L.1951, ch. 60, \\u00a7 1, and S.L.1941, ch. 87, \\u00a7 1, are unconstitutional, no question being presented as to the constitutionality of S.L.1933, ch. 75, \\u00a7 1, nor S.L.1917, ch. 165. Hereinafter are set forth the legislative enactments under decision or salient portions therefrom.\\nS.L.1917, ch. 165 provides:\\n\\\"Section 25. The apportionment of the houses of the Legislature is and shall be as follows:\\n\\\"Each county in the State of Idaho and any county which may hereafter be created shall constitute a senatorial district and shall elect one senator.\\n\\\"The several counties shall elect members of the House of Representatives as follows: Each county shall elect one representative for each 2,500 votes and remaining fraction thereof amounting to 1,000 votes or more cast in said county at the last general election, based on the total vote cast for all candidates for Governor: Provided,, That there shall be at least one representative from each county. It shall be the duty of the Secretary of State to certify to the county auditor of each county on or before the first day of April, 1918, and biennially thereafter the number of representatives in the Legislature said county will be entitled, to elect at the following election. When any new counties have been created, subsequent to the last general election for Governor, the total vote cast for Governor in the territory included in any such new county and in the territory remaining in any county or counties from which said new county or counties have been created shall be estimated by the Secretary of State as nearly as possible from the election returns and the legislative apportionment figured thereon.\\\"\\nThis chapter was incorporated in C.L. as 4:1 et seq.; in C.S. as \\u00a7 51 et seq.; in I.C.A. as Title 65, ch. 2; and as later amended in I.C., as Title 67, ch. 2.\\nThe 1933 act, amendatory of S.L.1917, ch. 165 is as follows:\\n\\\"Section 1. That Section 65-203, Idaho Code Annotated, be, and the same is hereby, amended to read as follows:\\n\\\"Section 65-203, REPRESENTATIVE DISTRICTS. \\u2014 The several counties shall elect members of the house of representatives as follows: Each county shall elect one representative for each ten thousand population of such county and remaining fraction thereof amounting to five thousand population or more. Popidation for this purpose shall he determined solely according to the last official United States Census; provided, that there shall be at least one representative from each county.\\\" S.L. 1933, ch. 75.\\nThe 1941 Act, amended the pertinent portions to read:\\n\\\" Each county shall elect one representative for each twelve thousand five hundred population of such county and remaining fraction thereof amounting to five thousand population or more. \\\" S.L.1941, ch. 87.\\nThe 1951 Act, now I.C. sec. 67-203, amended it to read:\\n\\\" Each county shall elect one representative for each * seventeen thousand population of such county and remaining fraction thereof amounting to * three thousand population or more. \\\" S.L.1951, Ch. 60.\\nIdaho' Const. ART. III, \\u00a7 4; provides:\\n\\\"Apportionment of legislature.\\u2014 The members of the first legislature shall be apportioned to the several legislative districts of the state in proportion to the number of votes polled at the last general election for delegate to congress, and thereafter to be apportioned as may be provided by law: provided, each county shall be entitled to one representative.\\\"\\nIn considering the question of the constitutionality of these acts, certain fundamental rules at all times must be kept in mind. The burden of showing the unconstitutionality of a statute is upon the party asserting it. Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083; Rich v. Williams, 81 Idaho 311, 341 P.2d 432. This court is without power to invalidate or nullify a constitutional act of the legislature; if the legislation does not clearly violate the Constitution, this court must and will uphold it. Padgett v. Williams, 82 Idaho 114, 350 P.2d 353. Every reasonable presumption must be indulged in favor of the constitutionality of a statute. Robinson v. Enking, 58 Idaho 24, 69 P.2d 603; Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105.\\nThe court in State ex rel. Brassey v. Hanson, 81 Idaho 403, 409, 342 P.2d 706, 709, quoting from other opinions, stated:\\n\\\" 'It is fundamental that the judicial power to declare legislative action invalid upon constitutional grounds is to be exercised only in clear cases. ' [citation] Petition of Mountain States Telephone & Tel. Co., 76 Idaho 474, 480, 284 P.2d 681, 683.\\n\\\" 'In the case of statutes passed by the legislative assembly and assailed as unconstitutional the question is not whether it is possible to condemn, but whether it is possible to uphold; and we stand committed to the rule that a statute will not be declared unconstitutional unless its nullity is placed, in our judgment, beyond reasonable doubt . [citations]' Keenan v. Price, 68 Idaho 423, 433, 195 P.2d 662, 667.\\\"\\nRespondent's assertion, of unconstitutionality of the 1951 and 1941 acts, is founded on the premise of such gross inequality of representation in the house of representatives occasioned by the increase of the State's population, as shown by the 1960 Federal census, as to be arbitrary and capricious, and hence unconstitutional.\\nIt is essential in considering this assertion, to keep in mind that the constitution of the State of Idaho is not a delegation of power to the legislature but is a limitation on the power that it may exercise, and that the legislature has plenary power in all matters for legislation except those prohibited by the constitution. St. Joe Improvement Co. v. Laumierster, 19 Idaho 66, 112 P. 683, Achenbach v. Kincaid, 25 Idaho 768, 140 P. 529; State v. Nelson, 36 Idaho 713, 213 P. 358; State ex rel. Macey v. Johnson, 50 Idaho 363, 296 P. 588; Lloyd Corp. v. Bannock County, 53 Idaho 478, 25 P.2d 217; Koelsch v. Girard, 54 Idaho 452, 33 P.2d 816; McGoldrick Lumber Co. v. Benewah County, 54 Idaho 704, 35 P.2d 659; Boughton v. Price, 70 Idaho 243, 215 P.2d 286; Utah Oil Refining Co. v. Hendrix, 72 Idaho 407, 242 P.2d 124; Rich v. Williams, 81 Idaho 311, 341 P.2d 432; State ex rel. Rich v. Idaho Power Co., 81 Idaho 487, 346 P.2d 596.\\nUnder the Constitutional provisions establishing the legislative body (Idaho Const. Art. III, secs. 2 and 4), certain absolute limits are imposed on the scope of legislative action. Art. III, sec. 4, establishes the entitlement of each county to one representative. Art. III, sec. 2 establishes the maximum number of representatives at not to exceed three times the total number of senators which is fixed at one for each county.\\nUnlike constitutional provisions of some of the neighboring states (Cal.Const. Art. IV, sec. 5; Mont.Const. Art. V, sec. 4; N.M.Const. Art. IV, sec. 3; Ore.Const. Art. IV, sec. 2; Utah Const. Art. IX, sec. 3), the number of representatives which may constitute Idaho's house of representatives is not absolutely fixed. Idaho Const. Art. III, sec. 2. Idaho's legislature is authorized to establish up to the maximum number fixed by the Constitution, i. e. \\\"at not more than three (3) times as many representatives as there are senators.\\\" We are not called upon, nor are we authorized, to rule as to the minimum number which may be so fixed; that is a function reserved to the legislature.\\nThe legislation with which we are here dealing, establishes a formula for determination of two variable figures, i. e., (1) the total number of representatives to constitute the house; and after fulfilling the constitutional requirements of one representative per county, (2) the actual apportionment of the balance of such total number among the counties that qualify for more than one representative. These figures are arrived at by the ministerial actions of the Secretary of State applying the one formula to fix these two variable items. I.C. secs. 67-203 and 67-204.\\nThe legislature in 1933 used a larger divisor for the total population than the act of 1917; the act of 1941, used still a larger divisor than the act of 1933 and finally the act of 1951 used still a larger divisor than the act of 1941. It is interesting to note that in 1931 with a state population of approximately 445,000 (U. S. Census 1930) there were 70 representatives; in 1933 only 63 representatives; after adoption of the 1933 act, the number of representatives in the 1935 session dropped to 59. With a state population of approximately 525,000 (U. S. Census 1940), after enactment of the 1941 act, the number of representatives for the whole state still remained at 59 for all ensuing sessions, even after adoption of the 1951 act. Application of the 1933 act to the population, shown by the 1960 census, of 667,191, would provide 79 representatives in the house; and application of the 1951 act to the 1960 census would result in 63 representatives.\\nWe thus are faced with the problem of whether the legislative enactment establishing the 1951 formula for use by the Secretary of State, insofar as its application to the rights of this plaintiff are concerned, is unconstitutional. As has been pointed out, this formula is required to fulfill a twofold purpose, (1) of establishing the total number of representatives for the next succeeding legislature, and (2) of allocating all in excess of the first forty-four representatives, (i. e., one per county) to the counties which by reason of greater population, are entitled to more than one representative.\\nIt is clear that the constitutional requirement of one representative for each county, superimposed on the population requirement of the statute, will lead to discrepancies between the number of people who will be represented by each individual representative constituting the house of representatives, on a purely numerical basis. Respondent has forcefully pointed out such discrepancies, particularly by the exhibit in his complaint. Clark County, with a 1960 population of 915 persons, and Camas County with a 1960 population of 917, each is entitled to one representative under both the 1951 act and the 1933 act; Elmore County, with a 1960 population of 16,719, and Cassia County, with a 1960 population of 16,121, each likewise is entitled to only one representative under the 1951 act; whereas under the 1933 act each would be entitled to two representatives. These examples illustrate the extremes of the discrepancies in population representation. But, is such gross disparity so arbitrary and capricious that the 1951 act, and the 1941 act must be stricken down as unconstitutional, in favor of the previous 1933 act? Also, is this disparity created by the act itself, or created by the constitution? Another question is whether the disparity is the result of application of a set of facts and circumstances for which the legislation was not designed? Also, is such disparity violative of the equal protection clauses of Idaho's Constitution, Art. I, sec. 2 and of the United States Constitution, Fourteenth Amendment?\\nThe constitutional limitations of one representative per county and a maximum of not to exceed three times the number of senators immediately destroys any possibility of representation based solely on a per-capita or per-voter basis. Attempting to compare the representation afforded by the constitutional requirement of one representative per county to the representation to be afforded on a per capita basis is impossible. The exhibit to respondent's complaint (which all parties agree is mathematically correct) establishes, that by ap plying the formula of the 1951 act to the 1960 population in each county, thirty-four counties, (of the total of forty-four), are entitled to one representative, and under the 1933 act the same population in each county would reduce the number of counties limited to one representative, to thirty-one (Bonner, Cassia and Elmore Counties, would then be entitled each to two representatives).\\nThe members of the Idaho Constitutional Convention were fully cognizant of the impossibility of mathematical equality in election of representatives by reason of this constitutional requirement of one representative per county, as is shown by the record of their proceedings. Vol. I, Idaho Constitutional Convention, Proceedings and Debates, p. 454, et seq., and Vol. II, p. 1194, et seq. The constitution, as then proposed and later adopted, also authorizes distribution of the representatives on a district basis (Idaho Const. Art. III, \\u00a7 4), which authority has not been utilized by the legislature in recent years. The delegates to the convention considered the problems inherent in the adoption of this requirement of one representative per county, and were aware of the disparity that arises as to representation between the sparsely settled areas and the more populous areas; yet they believed that the interests of the state would be best served, by such requirement, and their judgment in the premises was ratified by the electorate adopting the Constitution. Such determination by the convention, so ratified by adoption of the Constitution, cannot be questioned by this court.\\nThe constitutional provisions only established limitations of the legislative branch of the government in this field. The enactments of the legislative branch of the government acting within the scope of its constitutional authority can no more be questioned by this court than can the Constitution itself. Diefendorf v. Gallett, 51 Idaho 619, 10 P.2d 307.\\nThe 1951 enactment increased the number in the divisor to be applied to the total population. One effect of such increase in the divisor was to reduce the number of representatives to constitute the house of representatives. It is claimed that respondent is deprived of \\\"equal protection\\\" under the Idaho Constitution.\\nIn discussing the equal protection clause of the United States Constitution, Mr. Justice Brennan in Baker v. Carr, supra, stated:\\n\\\"Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.\\\"\\nWithout attempting to define fully the equal protection clause of the Idaho Constitution, the legislature in enacting the 1951 statute established the number of representatives, and insofar as the Constitution allowed, apportioned them between the rural and more populous areas; any discrimination inherent in representation arises not by reason of arbitrary and capricious legislative action, but by reason of the constitutional requirement of one representative per county, and in some measure by not adopting a lower divisor, thereby to increase the total number of representatives for apportionment among the counties. Notably, however, the record shows that the parties to this proceeding, as well as the trial court, in recognizing the existence of aspects of inequitable apportionment under the formulae of both the 1951 and 1941 acts, also recognized aspects of inequitable apportionment under the 1933 act because it provided only \\\"a greater degree of equal representation,\\\" as compared to the later acts.\\nThe concurring opinion of Mr. Justice Stewart in Baker v. Carr, supra, in evaluating the holding of the Supreme Court of the United States in that case, in language most appropriate here, pointed out:\\n\\\"The complaint in this case asserts that Tennessee's system of apportionment is utterly arbitrary \\u2014 without any possible justification in rationality. The District Court did not reach the merits of that claim, and this Court quite properly expresses no view on the subject. Contrary to the suggestion of my Brother HARLAN the Court does not say or imply that 'state legislatures must be so structured as to reflect with approximate equality the voice of every voter.' p. 772. The Court does not say or imply that there is anything in the Federal Constitution 'to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people.' p. 773. And contrary to the suggestion of my Brother DOUGLAS, the Court most assuredly does not decide the question, 'may a State weight the vote of one county or one district more heavily than it weights the vote in another ?' p. 724.\\\" (Emphasis supplied).\\nIn the same concurring opinion it is further stated:\\n\\\"In MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, the Court held that the Equal Protection Clause does not 'deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view cf the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.' 335 U.S., at 284, 69 S.Ct. at 2. In case after case arising under the Equal Protection Clause the Court has said what it said again only last Term \\u2014 that 'the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others.' McGowan v. [State of] Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.\\\" (Emphasis added.)\\nWithout fully defining the meaning of the equal protection clause of the Idaho Constitution, it should be pointed out that equal protection is subject to all limitations inherent in the Constitution itself, and valid enactments of the legislature.\\nWe do not deem this opinion to be contrary to the statements contained in Ballentine v. Willey, 3 Idaho 496, 506, 31 P. 994, 997, wherein this court stated:\\n\\\"One of the very foundation principles of our government is that of equal representation, and the legislature is prohibited from enacting an apportionment law which does not give to the people of one county substantially equal representation to that given each other county in the state, based either upon the entire or voting population or upon some other just and fair basis. The reservation of rights by the people is broad enough to prohibit the legislature from passing an apportionment act which is manifestly unequal and unjust to the people of any portion of the state.\\\"\\nIn the Ballentine case this court was dealing with'a statute that allocated the number of representatives and senators; not a statute establishing a formula such as is here present. In the instant case the disparity of representation stems from the Constitution, not from the 1951 act. As pointed out by Justice Crockett in Parkinson v. Watson, 4 Utah 2d 191, 291 P.2d 400, at p. 409:\\n\\\"We do not desire to be understood as departing from this basic precept: that the theory underlying our system of representative government, and our Constitution upon which it rests, presupposes that there must be reasonable correlation between representation and the number of inhabitants represented. But this principle is not absolute and of necessity cannot be, because practical exigencies require that it be modified by giving consideration to area representation.\\\"\\nThe determination of the number of representatives to constitute the house of representatives, as well as their allocation above the requirement of at least one per county, are decisions resting peculiarly within the area for legislative action. Such determinations are dependent on the information established by the U. S. Census. Until such time as the legislature has had ample opportunity to fully examine the impact of the 1960 Census on the apportionment of representatives throughout this State, in the light of Idaho Const. Art. III, \\u00a7 2, 4 and 5, we cannot say that the 1951 Act is unconstitutional as having failed to grant representative rights of the citizenry of this State afforded by the Constitution.\\nJudgment reversed, and cause remanded with directions to enter appropriate decree adjudging that the 1951 act is constitutional, and directing appellant to certify the number of representatives to the county auditors of the State, on the basis provided by that act.\\nNo costs allowed.\\nSMITH, C. J., and KNUDSON, J., concur.\"}"
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+"{\"id\": \"4463077\", \"name\": \"Paul Andrew MAHAFFEY, Petitioner-Appellant, v. STATE of Idaho, Defendant-Respondent\", \"name_abbreviation\": \"Mahaffey v. State\", \"decision_date\": \"1964-05-11\", \"docket_number\": \"No. 9412\", \"first_page\": \"233\", \"last_page\": \"237\", \"citations\": \"87 Idaho 233\", \"volume\": \"87\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T00:57:34.893410+00:00\", \"provenance\": \"CAP\", \"judges\": \"KNUDSON, C. J., McFADDEN and TAYLOR, JJ., and ANDERSON, D. J., concur.\", \"parties\": \"Paul Andrew MAHAFFEY, Petitioner-Appellant, v. STATE of Idaho, Defendant-Respondent.\", \"head_matter\": \"392 P.2d 423\\nPaul Andrew MAHAFFEY, Petitioner-Appellant, v. STATE of Idaho, Defendant-Respondent.\\nNo. 9412.\\nSupreme Court of Idaho.\\nMay 11, 1964.\\nRehearing Denied June 10, 1964.\\nRulon R. Price, Idaho Falls, for appellant.\\nAllan G. Shepard, Atty. Gen., and Stephen W. Boiler, Asst. Atty. Gen., Boise, for respondent.\", \"word_count\": \"1114\", \"char_count\": \"6706\", \"text\": \"McQUADE, Justice.\\nPetitioner-appellant, Paul A. Mahaffey, applied for a writ of habeas corpus on July 22, 1963. He alleged that his confinement was illegal because his sentences were void. More specifically, it was urged therein that the convicting judge had unlawfully delegated to an executive board the judicial function of fitting the punishment to the circumstances of the crime. It was also contended that the sentences imposed were so excessive as to constitute cruel and unusual punishment.\\nOn August 23, 1963, the district court of the Third Judicial District, Ada County, entered a memorandum decision and order denying petitioner's application. This appeal was taken from that denial.\\nOn September 22, 1953, petitioner was convicted in the Eleventh Judicial District Court, Minidoka County, of two charges of robbery and one charge of escape from jail. Sentencing was held on the same day and for each charge of robbery, petitioner was sentenced to \\\"be punished by imprisonment in the state's prison of the State of Idaho for the term of his natural life, the specific term being fixed by the State Board of Corrections as provided by law.\\\" For the conviction of escape from jail, petitioner was sentenced to \\\"be punished by imprisonment in the state's prison of the State of Idaho for the term of not to exceed five years, commencing at the expiration of the sentences in the preceding cases, 412 and 413, the specific term to be fixed by the Idaho Board of Corrections.\\\" From the time of his sentencing, petitioner has been continuously confined. At the present time he is in a federal penitentiary; however, petitioner has been at all times under the direction and control of the Warden of the Idaho State Penitentiary. See I.C. \\u00a7 20-248.\\nUnder the terms of I.C. \\u00a7 18-6503, \\\"Robbery is punishable by imprisonment in the state prison not less than five years, and the imprisonment may be extended to life.\\\" Petitioner's first assignment of error raises the question whether the convicting court misapprehended the law when it sentenced him to two terms of life imprisonment for his robbery convictions. Petitioner contends that the trial judge was not aware that he could have sentenced petitioner to less than the maximum term provided for by the above statute.\\nPetitioner's argument is based primarily upon the provisions of I.C. \\u00a7 19-2513. Although it has subsequently been amended, at the time the judgments were entered in this cause, the statute read as follows:\\n\\\"Indeterminate sentence. \\u2014 The minimum period of imprisonment in the penitentiary heretofore provided by law for the punishment of felonies, hereby is abolished. Whenever any person is convicted of having com mitted a felony, the court shall, sentence such offender to imprisonment in the penitentiary for an indeterminate period of time, but stating and fixing in such judgment and sentence the maximum term of imprisonment provided by law therefor, and judgment and sentence shall be given accordingly, and such sentence shall be known as an indeterminate sentence; iji % ;j< \\u00bb\\nStanding alone, the indeterminate sentence statute, when applied to I.C. \\u00a7 18-6503, would seem to require the sentencing judge to always assess the punishment for robbery at life imprisonment. However, in State v. Evans, 73 Idaho 50, 245 P.2d 788, which was decided in June of 1952, we held that such a construction would render the statute unconstitutional. We ruled in that case that the indeterminate sentence statute, when applied to a situation such as we have presented herein, must be construed so as to permit the sentencing judge the discretionary right to assess a maximum imprisonment at less than life.\\nState v. Evans, supra, was decided 15 months prior to the sentencing of petitioner in the instant case. Nevertheless, petitioner contends, primarily from the wording of the sentences, (\\\" the specific term to be fixed by the State Board of Corrections as provided by law.\\\") that the sentencing judge was not aware of and did not exercise his right to fix a maximum sentence at less than life imprisonment as construed by State v. Evans, supra.\\nIt may be conceded that more appropriate words might have been used by the sentencing judge to impose an indeterminate sentence as required by the statute. However, petitioner is asking us to indulge in speculation and presume that the sentencing judge was not aware of existing Idaho law. Such a position is clearly untenable. Error is never presumed and the record must affirmatively show that error was committed. Clear v. Marvin, 86 Idaho 87, 383 P.2d 346 (1963); State v. Cofer, 73 Idaho 181, 249 P.2d 197 (1952); State v. Shaw, 69 Idaho 365, 207 P.2d 540 (1949); State v. Mundell, 66 Idaho 297, 158 P.2d 818 (1945). In the absence of a clear showing to the contrary, we must presume that the sentencing judge properly exercised his discretion in sentencing the petitioner.\\nPetitioner further alleges that the sentences imposed by the trial court constitute cruel and unusual punishment in violation of Article 1, \\u00a7 6 of the Idaho Constitution.\\nOrdinarily, this is not the type of question which may be inquired into upon habeas corpus. As we stated in Ex Parte Olsen, 74 Idaho 400, at page 402, 263 P.2d 388, at page 390 (1953):\\n\\\"In such proceedings as these, the inquiry upon habeas corpus is almost wholly one as to jurisdiction. If it appears that the court issuing the process by which the petitioner is held, had jurisdiction of the subject matter, jurisdiction of the person of the accused, and jurisdiction to make and issue the particular order or process by which the accused is held, and the order or process is valid on its face, he cannot be discharged by habeas corpus.\\\"\\nThere can be no question but what the sentencing judge had jurisdiction to impose the particular sentences in this case. The statutes clearly grant him the power to issue life sentences for robbery and five year terms for escape from jail. I.C. \\u00a7 18-6503 and I.C. \\u00a7 18-2505.\\nMoreover, petitioner had an adequate opportunity to appeal to this court. Having failed to do so, he cannot now employ habeas corpus as an appellate remedy. Cobas v. Clapp, 79 Idaho 419, 319 P.2d 475 (1957); In re Bean, 58 Idaho 797, 79 P.2d 540 (1938); In re Davis, 23 Idaho 473, 130 P. 786 (1913).\\nOrder affirmed.\\nKNUDSON, C. J., McFADDEN and TAYLOR, JJ., and ANDERSON, D. J., concur.\"}"
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+"{\"id\": \"4463687\", \"name\": \"John Ivan ANDRUS and Susie D. Andrus, Husband and Wife, and John Ivan Andrus, Jr., and Margie W. Andrus, Husband and Wife, Plaintiffs, Appellants and Cross-Respondents, v. Harold IRICK and Norma Irick, Husband and Wife, Defendants, Respondents, and Cross-Appellants\", \"name_abbreviation\": \"Andrus v. Irick\", \"decision_date\": \"1964-07-22\", \"docket_number\": \"No. 9219\", \"first_page\": \"471\", \"last_page\": \"485\", \"citations\": \"87 Idaho 471\", \"volume\": \"87\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T00:57:34.893410+00:00\", \"provenance\": \"CAP\", \"judges\": \"KNUDSON, C. J., and McQUADE, TAYLOR and SMITH, JJ., concur.\", \"parties\": \"John Ivan ANDRUS and Susie D. Andrus, Husband and Wife, and John Ivan Andrus, Jr., and Margie W. Andrus, Husband and Wife, Plaintiffs, Appellants and Cross-Respondents, v. Harold IRICK and Norma Irick, Husband and Wife, Defendants, Respondents, and Cross-Appellants.\", \"head_matter\": \"394 P.2d 304\\nJohn Ivan ANDRUS and Susie D. Andrus, Husband and Wife, and John Ivan Andrus, Jr., and Margie W. Andrus, Husband and Wife, Plaintiffs, Appellants and Cross-Respondents, v. Harold IRICK and Norma Irick, Husband and Wife, Defendants, Respondents, and Cross-Appellants.\\nNo. 9219.\\nSupreme Court of Idaho.\\nJuly 22, 1964.\\nGee, Hargraves & Armstrong, Pocatello, for appellants and cross-respondents.\\nJones, Pomeroy & Jones, Pocatello, for respondents and cross-appellants.\", \"word_count\": \"4597\", \"char_count\": \"27529\", \"text\": \"McFADDEN, Justice.\\nPetition for rehearing having been granted, and the cause reheard, the previous opinion is withdrawn, and this opinion issued in lieu thereof.\\nWe shall dispose of the issues presented, in this order: first by defendants' cross-appeal; and second by plaintiffs' appeal.\\nDEFENDANTS' CROSS APPEAL\\nPlaintiffs, appellants and cross-respondents herein (hereinafter referred to as plaintiffs), instituted this action to rescind a certain real estate contract wherein they were the purchasers and the defendants (respondents and cross-appellants), were the vendors. By their complaint the plaintiffs claim misrepresentation and such nondisclosure of material facts by the sellers as to entitle them to a rescission of the contract or for damages. After trial on the issues presented by the pleadings, the trial court rendered its Memorandum Decision on October 26, 1961, and on November 14. 1961, entered findings of fact, conclusions of law and judgment for defendants.\\nOn February 23, 1962, plaintiffs moved the Court for an order setting aside this judgment on the ground that the same was taken by mistake, inadvertence, surprise or excusable neglect on the part of the plaintiffs and their counsel. This motion was accompanied by affidavits of their counsel, two of the plaintiffs, and of a stenographer employed in counsel's office. On March 5, 1962, a supplemental motion was filed seeking to set aside the judgment, wherein it was asserted the plaintiffs deserve relief from the operation of the judgment on the ground that the court should re-open the judgment, take additional testimony, amend and make new findings of fact and conclusions of law and enter a judgment for plaintiffs.\\nAffidavits were filed by the defendants in opposition to plaintiffs' affidavits. The trial court heard testimony on the issues as to whether the cause should be again reopened. After the hearing, by its order of April 19, 1962, the trial court denied plaintiffs' supplemental motion of March 5, 1962, but granted their motion of February 23, 1962, to set aside the judgment and ordered entry of a new judgment. The Court's order among other things provided:\\n\\\"IT IS FURTHER ORDERED That defendants' counsel prepare for the signature of the Court a new judgment bearing date of April 19, 1962. Said judgment to contain the same words and phrases of that judgment dated November 14, 1961. That upon presentation of new judgment to the Court and the Court's signing of same said new judgment shall be entered in the place and stead of that judgment dated November 14, 1961.\\\"\\nPursuant to this order, a new judgment, verbatim with the original except for the date, was entered on April 19, 1962. It is from this order of April 19, 1962, that the defendants cross-appealed, contending it was beyond the court's authority to enter such an order, in effect extending the time-for appeal from the judgment entered November 14, 1961. If this order granting' the plaintiffs' motion of February 23, 1962: was properly granted, the time for appeal, from the judgment commenced to run on-. April 19, 1962, and plaintiffs' notice of appeal from the judgment and order denying' their supplemental motion of March 5, 1962, filed March 22, 1962, was timely;: conversely, if the court erred in granting plaintiff's motion, the time for appeal from, the judgment would have commenced to-run from November 14, 1961, and the appeal would have been late and this court without jurisdiction to entertain the appeal from the judgment. See: I.C. \\u00a7 13-201;. Martin v. Soden, 80 Idaho 416, 332 P.2d. 482; Mills v. Board of County Comrs., 35-Idaho 47, 204 P. 876; Estate of Dunn, 45 Idaho 23, 260 P. 432.\\nFrom the affidavits in support of the-plaintiffs' motions and from the testimony submitted at the hearing, it appears that between November 1, 1961 and January 1, 1962, counsel for plaintiffs were involved in changing location of their offices and in remodeling their new offices; that their regular office procedures were disrupted, and they were employing temporary clerical employees; that mail was handled by individuals unfamiliar with their office procedure and their files were disorganized during that period; that it was not until February 23, 1962, that counsel became aware that findings of fact, conclusions of law and judgment had been entered on November 14, 1961; that the plaintiffs themselves had repeatedly inquired of counsel as to when the final judgment of the trial court would be entered, but that counsel could not tell them, because they were not aware of entry of the judgment.\\nPlaintiffs contend, that in our opinion rightfully so, that IRCP 60(b) did not wholly abrogate I.C. \\u00a7 5-905, at least insofar as the following quoted portion thereof is concerned:\\n\\\" Whenever any judgment, order or proceeding is taken against a party otherwise without default, through the neglect or failure of any attorney of such party to file or serve any paper within the time limited therefor, the court, or the judge thereof, in vacation, shall, upon application filed within the time above limited, [not exceeding six months after the adjournment of the term] set aside such judgment, order or proceeding (Emphasis added).\\nNo findings of fact were entered following the hearing on the plaintiffs' motions, yet it is implicit in the order entered that the trial court found that the plaintiffs were \\\"otherwise without fault\\\", and that the judgment was entered against them \\\"through the neglect or failure\\\" of their attorneys, to discover that the findings of fact, conclusions of law and decree had previously been entered by the trial court. Under the decisions of this court, when similar findings have been made, the above quoted portion of I.C. \\u00a7 5-905 (a 1921 amendment of the previous statute), has been held to make it the duty of the court to set aside a default entered against a defendant for the failure of his attorney to appear and answer within the time provided therefor. State ex rel. Sweeley v. Braun, 62 Idaho 258, 110 P.2d 835; Miller v. Brinkman, 48 Idaho 232, 281 P. 372. The reasoning of such decisions is applicable to the situation here; we are of the view that the trial court did not err in setting aside the original judgment and entering a subsequent judgment, when failure to move earlier to set it aside was occasioned by the fault or neglect of the plaintiff's counsel. This conclusion is reached even though the effect of such determination by a trial court is to extend the time for appeal. Defendant's cross-appeal is not well taken.\\nPLAINTIFFS' APPEAL\\nPlaintiffs appealed from the denial of their supplemental motion of March 5, 1962, for a new trial or to set aside the judgment and enter new findings of fact and conclusions of law and entry of a new judgment. The grounds set out in the supplemental motion are commensurate with. the basis for plaintiffs' appeal from the judgment, and will be dealt with in the following portion of the opinion.\\nIn 1953, the defendants, Harold Irick and Norma Irick, and other parties not now involved, as purchasers, entered into a written contract for the purchase of certain real property in Bannock County, together with a timber claim in Caribou County. They continued in possession of this real property, receiving an assignment of the interest of their co-purchasers.\\nDefendants under date of February 28, 1959, entered into a written contract with plaintiffs, by the terms of which the plaintiffs agreed to purchase the real property therein described and timber claim, with certain grazing rights. The price agreed upon was $100,000, of which $30,000 was paid in cash; the plaintiffs also agreed to assume and pay $15,476.00, being the balance on a real estate mortgage, and to assume and pay $24,975.00 the balance owing by the defendants to their original sellers, and to pay the remaining balance of $29,-553.15, to defendants in ten annual installments of principal and interest. The funds were all to be paid to an escrow holder and disbursed by it in accordance with written instructions. Under this contract plaintiffs went into possession of the premises.\\nIn January, 1961, the plaintiffs instituted this action seeking relief under two causes of action, the first for misrepresentation, asking for rescission of the contract of February 28, 1959, and for damages, the second cause based on the same allegations of misrepresentation set forth in the first cause, seeking an alternative recovery of damages in the amount of $38,000.00. The defendants answered, denying all of plaintiffs' allegations of misrepresentation. The cause was tried to the court without a jury, and thereafter findings of fact, conclusions of law and decree were entered in favor of the defendants.\\nThe trial court found that the parties had entered into the written contract on February 28, 1959, for the sale and purchase of the real property involved, and that plaintiffs, as purchasers, in compliance with the agreement, took possession of the premises. The court found the parties had executed the escrow agreement mentioned. The court also made the following findings pertinent herein:\\nV.\\n\\\"The Court finds that, although the defendant, Harold Irick, recklessly represented to plaintiffs that the forest land to be purchased under said contract could be traded with the United States Forest Service for other forest land adjoining a portion of the property purchased under the aforementioned written contract, the Court nonetheless finds that such statement was not a material misrepresentation that the plaintiffs relied upon or which induced them to enter into said written contract with the defendants.\\nVI.\\n\\\"The Court further finds without determining or attempting to reconcile all of the conflicting portions of the respective parties' testimony regarding the waters of East Bob Smith Creek, the uncontradicted statements of the defendant, Harold Irick, to the effect that defendants always had plenty of water were false and misleading and that these representations were made recklessly and as a positive assertion, the defendant well knowing that the water master had in fact cut the stream in prior years.\\nVII.\\n\\\"The Court finds, however, that said representations (i. e., the representation that defendant had always had plenty of water and the representation, if made, that defendants owned and were selling all the waters of East Bob Smith Creek) were not made with the intent that plaintiffs should absolutely rely thereon since without dispute, defendant, Harold Irick, advised plaintiffs that he was unaware of the amount of water available, that the water was decreed water, and that the plaintiffs should check the decree at the courthouse in Pocatello and/or with other persons. The Court further finds that the defendants never attempted to conceal any fact or prevent plaintiffs from making any search or inquiry they saw fit, and that the same is so admitted by the plaintiffs. In this regard, without dispute, plaintiffs, at the insistence of defendants and others proceeded with their own investigation of the water rights of the premises. As a consequence thereof, the Court finds that the plaintiffs in entering into said contract with the defendants did not rely upon any misrepresentations of the defendants ; nor were they induced to enter into said written contract as a consequence thereof, but were induced to and relied upon the advice of others and upon the results of their own independent investigations in entering into said contract with defendants.\\\"\\nThe court also found that the plaintiffs suffered no damages, as the value of the property at the time of the sale agreement was worth more than the purchase price.\\nAppellants take exception to the findings of the trial court, and particularly assign that it was error \\\"to hold that unproductive inquiries prompted by buyer's actual and seller's pretended ignorance as to some facts (decreed amount) constituted an 'independent investigation' and 'abandonment' of re liance upon and totally excused all seller's other knowing or reckless deceptions.\\\"\\nThe contract of sale between the plaintiffs and defendants used language identical to that contained in the original contract between the defendants and the original sellers; after describing the premises to be sold, the agreement described the water rights as follows:\\n\\\"Together with all water and water rights, decreed or undecreed, and appurtenant to, and used in connection with said lands, together with all ditches, dikes, flumes, and other means of conveying said water to a beneficial use thereon.\\\"\\nPlaintiffs contend, that, in conversations preliminary to entering into the contract of February 28, 1958, Mr. Irick assured plaintiffs that the Iricks \\\"always had plenty of water\\\" that \\\"Seller owns the entire creek\\\", that they could \\\"use water any time before and after irrigation season.\\\"\\nMr. Irick, on cross examination under IRCP 43(b) stated: \\\"I told them that I always had plenty of water to irrigate the place, and as far back in history as I could ever find there had been plenty of water. I showed them my crops; we went over all and looked them all over.\\\" In reply to a question as to how much water went with the place, Mr. Irick stated:\\n\\\"A. I told him I didn't know; that he would have to look at the decrees.\\n\\\"Q. Did you tell him where the decrees were located, Mr. Irick ?\\n\\\"A. Yes, sir.\\n\\\"Q. Where?\\n\\\"A. Pocatello.\\n\\\"Q. Did you tell him to go look at the decrees, or did you just tell him to go check at the court house?\\n\\\"A. I told him to check the decrees.\\\"\\nThe record indicates that Mr. Knight, who was the real estate broker engaged by Mr. Irick, had known John Andrus, Sr., for thirty years, and that Mr. Knight was the agent who sold property of the Andruses' in Utah. The Andruses had Mr. Knight go to Pocatello Courthouse to check the water rights on the land. He reported to the Andruses that there were seven and a half feet of decreed water. Later John Andrus, Sr., was advised by others to further check the water. He admitted that Mr. Irick had also advised him to check the water right. The plaintiffs checked the water with a Mr. Onstott of the Conservation Service at Pocatello, and were advised that the final word was the State Reclamation Department at Boise. The plaintiffs wrote the State Reclamation Department, and received a reply enclosing an excerpt of the decree of the waters of East Bob Smith Creek, which set forth the date of priority and amounts of the decreed rights.\\nAlmost five months elapsed between the time that the parties first met in October 1958, and the date the contract of sale was finally executed on February 28, 1959. During this period the plaintiffs made several trips from their home in Utah to the property in question and went over the property. The evidence discloses that the plaintiffs had spent their lives on farms and that John Andrus, Jr., had had considerable experience with irrigation. He testified on cross-examination:\\n\\\"Q. And you carefully looked the place over, the whole thing?\\n\\\"A. Well, I suppose we did to the best of our ability.\\n\\\"Q. Mr. Irick cooperated and showed you anything you wanted to know, didn't he ?\\n\\\"A. Yes, sir.\\n\\\"Q. He was very friendly with you?\\n\\\"A. Yes, Sir. He was.\\n\\\"Q. Did he try to conceal anything from you?\\n\\\"A. No, Sir. I don't think he did.\\\"\\nLater in his testimony, John Andrus, Jr., again reiterated:\\n\\\"Q. He (Irick) never tried to conceal anything from you, did he?\\n\\\"A. No, Sir. He didn't.\\\"\\nPlaintiffs contend that Irick knew that his water right had been cut in previous years during the irrigation season, yet failed to advise them of this fact, and that Irick referred them to sources of information concerning the water, which would not reveal the fact that in years gone by the water right had been cut.\\nAccepting the validity of the trial court's finding that Irick's statements to the effect he always had plenty of water was false and misleading, and were made recklessly, there is a direct finding by the trial court that these representations were not made with the intent that plaintiffs should absolutely rely upon them; the trial court also found that there was no attempt by the defendant to conceal any fact, or prevent the plaintiffs from conducting their own inquiry, and that the plaintiffs did not rely upon such representations, nor were they induced to enter into the written agreement by reason thereof, but that they relied upon their own independent investigation. These ultimate facts as found by the trial court, were gleaned from a record that is sufficient to sustain such findings, when considered in the light most favorable to the defendants. Huggins v. Green Top Dairy Farms, 75 Idaho 436, 273 P.2d 399; Jensen v. Chandler, 77 Idaho 303, 291 P.2d 1116.\\nIn Loosli v. Heseman, 66 Idaho 469, 473, 162 P.2d 393, this court in discussing assignments of error attacking the sufficiency of the evidence to support the findings of a trial court, quoted from Checketts v. Thompson, 65 Idaho 715, 152 P.2d 585, as follows:\\n\\\" 'This Court has repeatedly held that where conflicting evidence is submitted to a trial court sitting without a jury, either as a court of law or as a court of equity, the findings of the court on questions of fact will not be disturbed, where there is competent evidence to support them.' See, also, Nelson v. Altizer, 65 Idaho 428, 144 P.2d 1009. And, again, in the case of Wieri v. Anaconda [Copper] Mining Co., [116] Mont. [524], 156 P.2d 838, 841, it is said:\\n\\\" 'On the review of a decision of the District Court the presumption is that the decree of that court is correct (citing authorities), and that its judgment will not be set aside unless there is a clear preponderance of the evidence against it.' \\\"\\nSee also: Belts v. State, 86 Idaho 544, 388 P.2d 982; Knoblock v. Arenguena, 85 Idaho 503, 380 P.2d 898; Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788.\\nIn dealing with actions of this nature, over the years certain requirements of proof have been recognized by this court as essential in order that a plaintiff may recover. One of the more recent pronouncements of this court concerning such requirements is found in Walker v. Nunnenkamp, 84 Idaho 485, 489, 373 P.2d 559, as follows:\\n\\\"To establish the allegation of fraud, a party must prove by a preponderance of the evidence all of the elements which are inherently contained in such allegation.\\n\\\" ' Comprehensively stated, the elements of actionable fraud consist of: (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker's knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer's ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon. (9) And his consequent and proximate injury. ' 37 C.J.S. Fraud \\u00a7 3, pp. 215-216.\\\"\\nSee also 23 Am.Jur., Fraud and Deceit, Sec. 20, p. 773.\\n\\\"The elements of fraud set forth in the above C.J.S. quotation were substantially approved and followed by this Court in Weitzel v. Jukich, 73 Idaho 301, 251 P.2d 542, wherein this Court said:\\n\\\" 'Elements of fraud generally consist of a representation or statement of a past or existing fact which is material, which is untrue; the speaker's knowledge of its falsity or ignorance of its truth; his intention that it should be acted on by the person to whom it is made; ignorance of its falsity on the part of the person to whom it is made and reliance on the representation; his right to rely upon it; his damage occasioned thereby. ' \\\"\\n\\\"A party alleging fraud has the burden of proof. All elements of such allegation must be established by clear and convincing evidence. Barron v. Koenig, 80 Idaho 28, 324 P.2d 388; Scogings v. Love, 79 Idaho 179, 312 P.2d 570; Cooper v. Wesco Builders, 76 Idaho 278, 281 P.2d 669.\\\"\\nFrom our examination of the record we conclude that the trial court's finding of fact: \\\" that the plaintiffs in entering into said contract with the defendants did not rely upon any misrepresentations of the defendants; nor were they induced to enter into said written contract as a consequence thereof, but were induced to and relied upon the advice of others and upon the results of their own independent investigations in entering into said contract with defendants,\\\" is amply sustained by the evidence.\\nPlaintiffs further assign as error that: \\\"The Court erred in adopting a parcel by parcel damage formula (based in part upon no evidence whatever and partly on stricken testimony) instead of starting with the parties agreed gross price and computing the deficiency.\\\" That assignment is primarily directed to a discussion by the trial court in its memorandum opinion concerning valuations of property. The trial court specifically found that the plaintiffs suffered no damage, in that the value of the property as of the date of the contract exceeded the contract price. That finding is supported by the testimony of defendant Irick to the effect that the farm was well worth $100,000, and by an offer of proof by defendant, which was unobjected to by the plaintiffs, that a licensed realtor would have testified the reasonable value in March, 1959, was $120,000. In Jorgenson v. Stirling, 35 Idaho 785, 791, 209 P. 271, it is stated: \\\"The principal purpose of appellate courts is to review the conclusions of law of the trial court, and correct such as are deemed to be erroneous, and where the final judgment of the trial court is correct, when entered upon an erroneous theory of law, the judgment will be affirmed by the appellate court upon what it conceives to be the correct theory of the law.\\\" In Whittaker v. Kauer, 78 Idaho 94, 98, 298 P.2d 745, this court ruled that it may regard the trial court's memorandum opinion for the purpose of better understanding the findings of fact. See also: Geist v. Moore, 58 Idaho 149, 70 P.2d 403; Terry v. Terry, 70 Idaho 161, 213 P.2d 906. This assignment of er ror is not well taken, for the findings of fact and conclusions of law constitute the final decision of the court, and we are concerned with their correctness and the judgment, rather than the reasons expressed in the opinion which motivated the trial court in reaching its conclusion. Buckhantz v. R. G. Hamilton & Co., 71 Cal.App.2d 777, 163 P.2d 756 (1945).\\nDuring the course of the trial, plaintiffs elicited certain testimony indicating a deficiency in the number of irrigated and sub-irrigated acres, claimed to have been represented to them by the defendants as included in the property purchased. Defendants moved to strike this testimony as not within the issues, which motion was granted. Plaintiffs then sought to amend their complaint to conform to the evidence that was offered. The trial court denied plaintiffs' motion to amend for the reasons, as expressed by the court, that at the time of the hearing of a motion to dismiss, prior to trial, the court allowed amendment of the complaint to set forth specifically the misrepresentations to be relied upon by plaintiffs on trial. This ruling has been assigned as error.\\nThe amended complaint makes no mention of any representation or acreages of any particular class deficiencies therein. The record further indicates that a pretrial conference was held. IRCP 15(a) provides, that a party may amend his pleadings once as a matter of course, but thereafter, only by leave of court or consent of the parties, and that the leave of the court should be freely granted. Under IRCP 15 (b), amendments during the course of trial are allowed \\\"When issues not raised by the pleading are tried by express or implied consent \\\". However, if issues are not tried by such consent, and \\\"If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended \\\". In view of the fact that the trial court had previously authorized an amendment of the original complaint in order that plaintiffs could specifically allege the misrepresentations they were relying upon, and in view of the fact a pre-trial conference was had, which contemplates settling of any amendments of the pleadings IRCP (16), the trial court did not abuse its discretion in denying plaintiffs' motion to amend.\\nError is assigned to the trial court's holding that representation as to an arranged trade for grazing ground was immaterial. This assignment is directed to Finding of Fact V herein before set out. Plaintiff Andrus, Jr., testified:\\n\\\"Q. with respect to this 160 acres of Pebble Creek. That's in Caribou County? A. Yes. It is.\\n\\\"Q. And he [Irick] said that the \\u2022 Forest Service was anxious to trade.\\nA. Yes. He said it was timbered land and they would like to trade it, and this other land they would like to trade because it's right in the middle of the forest.\\n\\\"Q. That they would like to trade it for a section of forest ground next to you, is that it? A. Yes, sir.\\n*\\n\\\"Q. Do you remember whether he said anything about arrangements being made for the trade of any those properties? A. Well, just that he said that they wanted to do it; it was their deal.\\n\\\"Q. What do you mean by their deal?\\nA. Well, they had suggested it they were desirous of doing it.\\n\\\"Q. They, the Forest Service? A. Yes, sir. The Forest Service. And he would advise that it be done.\\\"\\nNeither the earnest money receipt, nor the subsequent contract between the parties made any reference to any agreement for a trade, but only listed the forest land purchased by the plaintiffs. From the record, there appears competent, substantial evidence to sustain the trial court's finding in this regard.\\nThe plaintiffs assert that the trial court erred in failing to make findings or rulings upon the contract cause of action. By their amended complaint, the plaintiffs set out two separate causes of action. The first cause of action set' out plaintiffs' alleged grounds of misrepresentation, seeking rescission, and also alleged that they were damaged. In their second cause of action plaintiffs reaffirmed and readopted all allegations of the first cause of action, and further alleged \\\" , a partial failure and want of consideration by reason of the defendants selling and having to sell less than was represented to the plaintiffs, all to the plaintiffs' damages.\\\" The trial court made explicit findings of fact on the issues of misrepresentation and lack of damages, which findings of fact were applicable to both causes of action. In the conclusions of law the trial court held that the plaintiffs were not entitled to judgment for damages (the contract cause of action) or for a rescission on the first cause of action. Where the factual issues presented by the complaint are commensurate for both causes of action, it would be useless to require the trial court to reiterate the facts a second time.\\nJudgment affirmed.\\nCosts to defendants.\\nKNUDSON, C. J., and McQUADE, TAYLOR and SMITH, JJ., concur.\"}"
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+"{\"id\": \"4464936\", \"name\": \"Herb JAMES, and Mrs. Herb James, Plaintiffs-Appellants, v. STATE of Idaho, a commonwealth acting by and through the IDAHO BOARD OF HIGHWAY DIRECTORS, Defendant-Respondent\", \"name_abbreviation\": \"James v. State\", \"decision_date\": \"1964-12-22\", \"docket_number\": \"No. 9509\", \"first_page\": \"172\", \"last_page\": \"179\", \"citations\": \"88 Idaho 172\", \"volume\": \"88\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T00:57:36.251127+00:00\", \"provenance\": \"CAP\", \"judges\": \"McQUADE, TAYLOR and SMITH, JJ., and TOWLES, D. J., concur.\", \"parties\": \"Herb JAMES, and Mrs. Herb James, Plaintiffs-Appellants, v. STATE of Idaho, a commonwealth acting by and through the IDAHO BOARD OF HIGHWAY DIRECTORS, Defendant-Respondent.\", \"head_matter\": \"397 P.2d 766\\nHerb JAMES, and Mrs. Herb James, Plaintiffs-Appellants, v. STATE of Idaho, a commonwealth acting by and through the IDAHO BOARD OF HIGHWAY DIRECTORS, Defendant-Respondent.\\nNo. 9509.\\nSupreme Court of Idaho.\\nDec. 22, 1964.\\nThomas A. Mitchell, Coeur d\\u2019Alene, for .appellants.\\nFaber F. Tway, Chief Legal Counsel, Anton Hohler, Jack C. Riddlemoser, Dept, of Highways, Boise, for respondent.\", \"word_count\": \"2310\", \"char_count\": \"14003\", \"text\": \"McFADDEN, Justice.\\nMr. and Mrs. Herb James, as plaintiffs (appellants herein)' instituted this action to recover damages for alleged deprivation of access to their business property. Subsequent to the filing of this action, Mr. James passed away; by stipulation his widow, the administratrix of his estate, has been substituted as a plaintiff.\\nAppellants by their complaint seek $40,000 damages for loss of value to their business property as a result of alleged impaired access'to it. To the complaint respondent filed a motion to dismiss, which the trial court, under the provisions of I.R.C.P. 12(b) treated as a motion for summary judgment, and dismissed the action. It is from such summary judgment that this appeal was taken, with the sole issue for consideration being whether the. court erred in entering the summary judgment.\\nWhile a certificate has not been submitted as is required by appellate Rule 35, no prejudice appears therefrom. The judgment recites that in determining the issues presented by the motion to dismiss, the trial court considered, \\\" the pleadings, affidavits and exhibits of the parties hereto, -* \\\",- all of which instruments are before this court.'\\nAppellants by their complaint allege that they are the owners of business property near Kootenai, Idaho, known as Wolf Lodge Inn; that respondent constructed a new highway; that their business property was contiguous to U. S. Highway No. 10, and they had direct access to and from that highway, and -their customers had direct access to their business of selling food, drinks and lodging to the public; that the new highway has only limited access in conformity with the standards of the National System of Interstate and Defense Highways, and was so constructed as to deprive the appellants of their access to U.S. Highway No. 10; that a solid link fence was constructed barring the appellants and their customers from access from U.S. Highway No. 10 to their property; that the Wolf Lodge and adjacent area was open to the public for food, drinks, lodging and camping and was so used by the public; that appellants had made substantial improvements thereon; that the construction of the new highway had deprived the appellants of access to the appellants' property and had caused an actual impairment of the right of access to their damage in the sum of $40,-000.00.\\nIn response to request for admission of facts, the appellants admitted: that the respondents acquired no right of way from them; that some slight access still remains to the highway, stating that east hound traffic must travel one and a quarter miles - off the main highway to get to their premises and must return by the same route to achieve access to the highway; that old U.S. Highway No. 10 was converted to a frontage road and joined at both ends, east and west of their property with the new highway, but qualified such admission by stating that the frontage road joins the new highway three-fourths of a mile east and approximately a mile and a quarter west of appellants' property.\\nIn respondent's affidavit by Mr. Pearring, an engineer of the Idaho Department of Highways, it is stated that the affiant was familiar with the highway project leading to the construction of the new highway and with the appellants' property. The affidavit further states:\\n\\\" That the said project provided for the construction of a four-lane divided highway, designated as Interstate 1-90, adjacent to the then existing U.S. Highway 10 to which the plaintiffs had and still have access; that there is no access between the eastbound and westbound lanes of the said divided highway; that there is full two-way access from said former U.S. Highway 10, now designated as a frontage road, and the said Interstate Highway 1-90, by means of an interchange , at Station 231\\u20204, one and one-fourth miles west of plaintiffs' property; that -there is direct access from the westbound lane of said divided highway to said former U.S. Highway 10 at Station 65, three-fourths of a mile east of plaintiffs' property; that plaintiff's property now has the same access to the former U.S. Highway 10 that it had prior to the construction of Project 1-90(6) 23 [Interstate Highway 1-90] \\\"\\nCertain highway maps of the area in question were attached to this affidavit. By stipulation of counsel at the hearing before this court, an aerial photograph of the highway as constructed, was submitted.\\nThe maps and photograph show that former U.S. Highway No. 10 was adjacent to appellants' property. The new four lane highway, 1-90, parallels the old highway. West of appellants' property an overhead interchange gives access to the frontage road from the new highway for vehicles travelling in both directions. East of appellants' property a one-way outlet from the new highway gives access to the frontage road for vehicles travelling west.\\nMr. James in his affidavit submitted in opposition to the showing made by respondent, stated that as concerns east bound traffic on the new highway his business has been cut. off from access in that:\\n\\\" as concerns automobile and' light truck traffic, the same must, with-but any signs advising the travelers as - to availability-of facilities-, pull-off the main highway and follow a winding and twisting overpass, proceeding one and one-fourth miles to plaintiffs' business, after which they must return by the same route one and one-fourth miles to get back onto the freeway. As concerns tractor-trailer traffic, the same cannot safely negotiate the sharp turns on the overpass leading to and from plaintiffs' property and have ceased qven attempting to do so.\\n\\\"As concerns west bound traffic, the same must pull off the west bound lane on the freeway onto the frontage road three-fourths of a mile before reaching plaintiffs' property, all without advice .about \\u2022 facilities - available along the frontage ro^ad.\\nM.R.C.B. 56(c) provides in part: \\\"The - [.Summary] judgment sought shall be . .rendered forthwith if the pleadings, 'depositions, and admissions on file, to- . gather with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\"\\nFrom the record before the court it is our conclusion that aside, from a question of damages there is no gen\\u00fcine issue as to any material fact remaining. Any issue of damages,. of course, would only arise in the event that, appellants have shown themselves-to be entitled to-relief.\\nAppellants claim they have shown themselves to be entitled to relief, asserting that interference with business access is a \\\"taking\\\" of property, citing: Hughes v. State, 80 Idaho 286, 328 P.2d 397; Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353; and also the creation of a cul-de-sac where none befor\\u00e9 existed is an interference with access, citing Mabe v. State ex rel. Rich, 83 Idaho 222, 360 P.2d 799.\\nThe Continental Oil Co., case was an action to enjoin enforcement of an ordinance prohibiting the erection of a service station within 500 feet of a public school building. The trial court held the ordinance to be unconstitutional, and this court affirmed the holding of the trial court. In the opinion, this court quoted from Village of Sand-point v. Doyle, 14 Idaho 749, 95 P. 945, 17 L.R.A.,N.S., 497, as follows: \\\"It has been held by the courts that to cut off this right of ingress and egress would be to take the lot owner's property without due process of law.\\\" This court pointed out that the evidence fully sustained the findings of the trial court that the ordinance imposed an. unreasonable restriction upon the owner's-property rights amounting to a taking without due process of law.\\nIn the case of.Village of Sandpoint v. Doyle, quoted in the Continental Oil Co., case, supra, this court was considering the problem of the right of ingress and egress of a property owner to an abutting street.\\nIn Hughes v. State, supra, the owners of a corner lot complained of having one of their two means of access to their lot completely cut off from the street by construction of a new bridge and overhead. This court, in ruling upon whether a demurrer to the property owner's complaint was properly sustained, stated: \\\"We therefore hold that appellants' allegedly destroyed right of business access to their business property, if such be proven, constituted a taking of their property, whether or not accompanied by a taking of physical property, In this Hughes case, the access to the abutting street was allegedly severed adjacent to the property line.\\nIn Mabe v. State ex rel. Rich, 83 Idaho 222, 360 P.2d 799, (second appeal, 86 Idaho 254, 385 P.2d 401) the issues, as in the instant case involved an alleged loss of access to the general highway system itself and not to any alleged loss of access from the appellants' property to the abutting roadway. In the first Mabe case, supra, this court stated:\\n\\\"While respondent [State of Idaho] contends that the facts which appellants allege show a mere circuity of route, as against actual impairment of the right of access to appellants' property, yet appellants' allegations are much broader than mere circuity of route from the new highway to their property, for those allegations rest in the theory of substantial obstruction or impairment of appellants' right of access to their property and resulting damages. Should further proceedings show that there has been a substantial impairment of appellants' right of access as alleged, as contrasted to a mere matter of inconvenience or circuity of route, as contended by respondent, then appellants must be compensated for such resulting damages as may be properly established.\\\" (Emphasis supplied) .\\nThe facts in the instant case, concerning which there is no controversy, show appellants' access from their business property to the frontage road, formerly U.S. Highway No. 10, is the same as it was prior to construction of the new Interstate highway. The facts also show this frontage road is connected with both east bound traffic and west bound traffic. East bound traffic, to reach appellants' property from the Interstate and again continue easterly, must retrace its path. This alone, does not constitute a taking of property. At most it can only be considered as constituting a more inconvenient, or circuitous route. Appellants' complaint and affidavit, as a practical matter, is directed to the asserted lack of access to and from the main stream of traffic which no longer flows directly in front of their place of business, and not to mere lack of access to the state highway system. Diversion of traffic occasioned by the relocation of the highway does not cause a compensable injury, for appellants have no property right in any flow of traffic over a particular highway. Villages of Eden & Hazelton v. Idaho Board of Highway Directors, 83 Idaho 554, 367 P.2d 294, and cases therein.\\nIn State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60, this court stated: \\\"Nor is the condemnee entitled to damages because he is not granted unrestricted access to the new part of the road being constructed. There is no inherent right of access to a newly relocated highway. The new highway not being in existence prior to the present construction, the landowner would suffer no compensable damages because his access to the new construction was denied him.\\\" Damages for depreciation in value of abutting landowners' property, by reason of business loss, occasioned by the change in route and traffic flow brought about by the construction of new highways are not compensable. Mabe v. State ex rel. Rich, 83 Idaho 222, 360 P.2d 799, second appeal, 86 Idaho 254, 385 P.2d 401; People v. Sayig, (1951) 101 Cal.App.2d 890, 226 P.2d 702; State v. Peterson (1958) 134 Mont. 52, 328 P.2d 617.\\nTwo recent cases decided by the Supreme Court of California contain language particularly appropriate here: In Briedert v. Southern Pacific Company (Cal.1964), 39 Cal.Rptr. 903, 394 P.2d 719, in considering a claim for damages of loss of access to real property in an urban area, that court stated:\\n\\\"We have long recognized that the urban landowner enjoys property rights, additional to those which he exercises as a member of the public, in the street upon which his land abuts. Chief among these is an easement of access in such street (citing cases). This easement consists of the right to get into the street upon which the landowner's property abuts and from there, in a reasonable manner, to the general system of public streets (citing cases).\\n\\\"To designate the right, however, is not to delineate its precise scope. Not every interference with the property owner's access to the street upon which his property abuts and not every impairment of access, as such, to the general system of public streets constitutes a taking which entitles him to compensation. Such compensation must rest upon the property owner's showing of a substantial impairment of his right of access to the general system of public streets.\\\" [Emphasis added].\\nIn Valenta v. County of Los Angeles, (Cal.1964), 39 Cal.Rptr. 909, 394 P.2d 725, the California Supreme Court, reiterating that there must be a substantial impairment of access, to constitute a cause of action ap plied such rule to landowners in unincorporated areas, as well as urban areas.\\nIt is our conclusion that appellants have failed to show any substantial impairment of their access. The judgment of the trial court is affirmed.\\nCosts to respondent.\\nMcQUADE, TAYLOR and SMITH, JJ., and TOWLES, D. J., concur.\"}"
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+"{\"id\": \"4468592\", \"name\": \"Lester G. FLOWERDEW, Plaintiff-Appellant, v. Wendell S. WARNER, Defendant-Respondent\", \"name_abbreviation\": \"Flowerdew v. Warner\", \"decision_date\": \"1965-12-23\", \"docket_number\": \"No. 9520\", \"first_page\": \"164\", \"last_page\": \"173\", \"citations\": \"90 Idaho 164\", \"volume\": \"90\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:19:11.505753+00:00\", \"provenance\": \"CAP\", \"judges\": \"McQUADE, C. J., and TAYLOR, SMITH and KNUDSON, JJ., concur.\", \"parties\": \"Lester G. FLOWERDEW, Plaintiff-Appellant, v. Wendell S. WARNER, Defendant-Respondent.\", \"head_matter\": \"409 P.2d 110\\nLester G. FLOWERDEW, Plaintiff-Appellant, v. Wendell S. WARNER, Defendant-Respondent.\\nNo. 9520.\\nSupreme Court of Idaho.\\nDec. 23, 1965.\\nReginald R. Reeves, Idaho Falls, for appellant.\\nHolden, Holden & Kidwell, Idaho Falls, \\u2022for respondent.\", \"word_count\": \"3055\", \"char_count\": \"18484\", \"text\": \"McFADDEN, Justice.\\nPlaintiff, Lester G. Flowerdew, the appellant herein, fell while carrying a battery, and immediately suffered pains in his back. He was treated by a naturopath, and about two or three weeks later, on April 19, 1960, consulted Dr. Wendell S. Warner, the defendant-respondent, an osteopathic physician. On the first visit, Dr. Warner examined appellant and took X-ray pictures of the pelvic and lumbar region of appellant's back. Dr. Warner stated his diagnosis of appellant's condition causing the pain as:\\n\\\"The diagnosis is a thin fifth lumbar disc, injured fifth lumbar disc, degenerative fifth lumbar disc, fibrositis, lumbosacral and dorsal.\\\"\\nAfter completing the examination and diagnosis, Dr. Warner treated appellant by traction and osteopathic methods, by having appellant lie on a table designed for that purpose. Dr. Warner described the table and its operation as follows:\\n\\\"It's a table for treatment which is divided in the middle, approximately. The lower half of the table moves back and forth in intermittent fashion at the rate of about 17 to 18 tractions per minute. At the foot of this table, at the foot of the lower half of the table, is an extension for ankle straps and between the extension and the end of the table is a spring which operates and activates the scale, which is located just below that. Now this is intermittent traction, as I said, and is not steady at any time. To finish up the table, the upper half is removable away from the lower half to increase or decrease pull. It contains and holds a harness. The abdominal harness, which fastens around the lower abdomen below the \\u2014 above the level of the crest of the ilium, and the lower half \\u2014the lower edge of the strap crosses above the belt line. And this abdominal strap is fastened to the table by long straps attached to the head of the table \\u2014the head of the upper leaf of the table.\\\"\\nDr. Warner continued his care of appellant twice a week, by giving him a total of eleven additional osteopathic treatments, consisting of manipulation, heat treatment, application of tension, and on the last two-occasions with x-ray treatment. ^\\nAppellant instituted this action seeking' damages for alleged malpractice of the respondent. Appellant's amended complaint consisted of three counts, \\u2014 the first count being based on an oral agreement that respondent would cure appellant, alleging specific failures of the respondent as constituting negligence; the second count, on an allegation that respondent was engaged in the practice of medicine although not licensed as a physician and surgeon, and that he failed to exercise the skill ordinarily exercised by competent physicians in the area; the third, that the doctrine of res ipsa loquitur was applicable.\\nRespondent's answer constituted a' gen-' eral denial \\\"of the allegations of the ap- pellant's amended complaint, and set forth as an affirmative defense that he possessed and exercised the degree of care exercised by osteopathic physicians in like communities, and as a further defense, alleged that there was no causal connection or proximate cause between the respondent's acts and the appellant's alleged injuries.\\nOn the issues thus framed, the cause was tried before a jury. At the close of the appellant's case in chief, the respondent, claiming appellant failed to prove his case as a matter of law, moved for a judgment of dismissal on all three counts. The trial court granted the motion as to the first and third counts, i. e., the first count pertaining to an alleged agreement to cure, and the third count pertaining to the doctrine of res ipsa loquitur.\\nAt the termination of all testimony, respondent moved for a directed verdict as to the second count, which the trial court granted, and entered judgment for respondent on the directed verdict. This appeal is from the judgment.\\nAppellant claims the trial court erred in granting respondent's motion to dismiss made at the close of the appellant's case, as to the first and third counts; also, in granting respondent's motion for a directed verdict as to the second count; by other assignments appellant questions the trial court's rulings on certain objections presented by respondent as to testimony sought to be elicited from two doctors and from the appellant himself.\\nAs to the first court, the evidence fails to sustain the contention that respondent orally agreed he would cure appellant. Moreover, in the absence of a specific agreement, an agreement of a practitioner with his patient is one for services and treatment, not for a particular result. Riley v. Layton, 329 F.2d 53 (10th Cir. 1964); Marsh v. Pemberton (1959), 10 Utah 2d 40, 347 P.2d 1108; 41 Am.Jur. 198, Physicians and Surgeons \\u00a7 79. No state of facts is disclosed which can remotely be considered as establishing any agreement or warranty to cure as was presented in the following cases where such an agreement is discussed: Noel v. Proud (1961), 189 Kan. 6, 367 P.2d 61; Safian v. Aetna Life Ins. Co., 260 App.Div. 765, 24 N.Y.S.2d 92 (Sup.Ct.1940), aff'd 286 N.Y. 649, 36 N.E.2d 692 (1941). There being no evidence to support a contract to cure the trial court did not err in dismissing this count.\\nFurthermore the record does not disclose any testimony that the treatment given, diagnosis made, or use of traction was not in full accord with the standards of practice of an osteopathic physician in the community. Aside from Dr. Warner, no other osteopathic physician was called to testify as to the standards of practice to be maintained by an osteopathic physician.\\nDuring appellant's case in chief, three other physicians were called as witnesses. One was a physician and surgeon specializing in neurosurgery, who had requested a myelogram, which was performed in April, 1961, and who performed the operation upon appellant; another was a physician and surgeon who had examined and treated appellant for tenderness in the abdomen. The other physician was a specialist in radiology, to whom appellant was referred in August, 1960, by the neurosurgeon for an x-ray examination of appellant's back, and who performed the myelogram in April, 1961. None of these physicians claimed to be familiar with the standards of practice of an osteopathic 'physician.\\nThe general rule is that a practitioner of one of the healing arts, while remaining within the scope of his field of practice, is entitled to have the standard of treatment he gave a patient tested by the rules and principles of the school of medicine to which he belongs, and not by those of some other school. Klimkiewicz v. Karnick (1962), 150 Colo. 267, 372 P.2d 736; Bolles v. Kinton (1928), 83 Colo. 147, 263 P. 26, 56 A.L.R. 814; Wilkins' Adm'r v. Brock (1908), 81 Vt. 332, 70 A. 572 ; 41 Am.Jur. 203, Physicians and Surgeons \\u00a7 85; 70 C.J.S. Physicians and Surgeons \\u00a7 44, p. 952; Annot.: 31 A.L.R. 830; 19 A.L.R.2d 1193.\\nThe trial court'did not err in dismissing' the first count of appellant's action, inasmuch as the evidence failed to support the allegations of that count.\\nNor did the trial court err in dismissing the third count based upon the doctrine of res ipsa loquitur. During the appellant's case in chief, under the provisions of I.R.C.P. 43(b), he called as a witness the respondent, who testified as to the treatment he afforded the appellant, and that in his opinion appellant was suffering from a degenerative fifth lumbar disc. This diagnosis was based on the result of examination, manipulation, and x-rays taken by respondent of appellant's lower spine.\\nRespondent further testified that he did not take a myelogram of the spine to determine any other difficulties. His treat! ment of the appellant, consisted of manip! ulation, heat treatments, use of tensi\\u00f3n, and on the last two treatments, the use of x-ray. The tension used varied from 25-pounds to a maximum of 160 pounds, ap:-' plied by means of a table upon which appellant would lie, with his feet in straps, and a strap over his abdomen. The length of time that the maximum tension would be applied would be only a few seconds and then decreased.\\nAppellant asserts that the doctrine of res ipsa loquitur is applicable in this case, and that the trial court erred in dismissing his third count, and erred in directing the verdict for respondent. Appellant contends that there was excessive traction used upon .the appellant by the respondent, and that as a consequence the injuries he is now suffering resulted from the excessive traction. He points to the fact that the appellant was bound to respondent's stretching table, that he did not know what the respondent was doing, and that the instrumentality causing the injury was solely under respondent's control and hence the doctrine of res ipsa loquitur is applicable. With this contention we cannot agree.\\nThis court in the case of Hale v. Heninger, 87 Idaho 414, 393 P.2d 718, discussed the applicability of the doctrine of res ipsa loquitur in malpractice cases. There this court pointed out that for the doctrine to be applicable it must be proven (1) that the agency or instrumentality causing the injury is under the control and management of the defendant, and (2) that the circumstances must be such that common. knowledge and experience would justify the inference that the accident is of a kind which normally does not occur unless someone is negligent. Therein this court 'quoted from Walker v. Distler, 78 Idaho 38, 296 P.2d 452, as follows:\\n, \\\"Generally speaking, negligence in malpractice cases must be established by expert medical testimony. This is so because the causative factors are not ordinarily within the knowledge or experience of laymen composing the jury.\\\" 78 Idaho at 47, 296 P.2d at 457.\\nIn the instant case the first question presented is what constituted the accident? Appellant after treatments by a naturopath, for back pain, was treated by respondent, and later he took massage treatments, visited a chiropractor, who sent him to a neurosurgeon; thereafter appellant consulted another physician in California, and upon returning again consulted with the neurosurgeon who performed an operation upon the cervical portion of the appellant's spine. Unlike the usual case wherein the doctrine of res ipsa loquitur is applicable, there was no dramatic change in physical condition and there is no direct proof of causation between appellant's condition and anything that the respondent did or failed to do. The nature of appellant's affliction, the complexity of the factors causing the condition, the lack of any dramatic change of condition resulting from anything the respondent did or failed to do, are all supportive of a conclusion that a layman could not say as a matter of common knowledge and observation that the consequences of the professional treatment were not such as ordinarily would have followed if due care had been exercised. Schofield v. Idaho Falls Latter Day Saints Hospital, 90 Idaho 186, 409 P.2d 107. There was no error in not submitting this cause to a jury on the theory of res ipsa loquitur.\\nThe third count of appellant's complaint was based on the theory that appellant had left his professional field of practice of that of an osteopathic physician and in fact engaged in the practice of medicine although not licensed as a physician and surgeon. Again the record fails to sustain such contention. To become licensed by examination as an osteopathic physician in this state, under the provisions of I.C. \\u00a7 54-1601, the applicant must pass an examination which shall include the subjects of anatomy, physiology, physiological chemistry, toxicology, osteopathic pathology, osteopathic diagnosis, hygiene, osteopathic obstetrics and gynecology, minor surgery, principal and practice of osteopathy, and such other subjects as the department of 'law enforcement may require. Nothing in this record discloses that the respondent in his diagnosis, treatment, prescription, and administration of certain drugs was doing anything that was not recognized as being in the area of practice of an osteopathic physician. The record affirmatively discloses that the use of x-ray-in examination and diagnosis is recognized as being within the field of practice of an osteopathic physician. Further the record fails to show any causal connection between the appellant's injury and respondent's treatment. There must be evidence that the alleged negligence was the proximate cause of the alleged injuries. Hall v. Bannock County, 81 Idaho 256, 340 P.2d 855. In Willis v. Western Hospital Association, 67 Idaho 435, 182 P.2d 950, this court pointed out that in a malpractice case the burden of proof is on the plaintiff and that it is insufficient merely to show or raise a suspicion that the defendants may have been negligent. The trial court did not err in granting respondent's motion for a directed verdict on this third count, for there was insufficient evidence to justify its submission to the jury.\\nAppellant also assigns as error: the trial court's refusal to allow appellant to state his opinion as to the cause of his condition. In Call v. City of Burley, 57 Idaho 58, 74, 62 P.2d 101, 108, this .court stated;\\n\\\"Morelatitude is allowed-in the ex--' amination of the party to an action who is describing injuries received and their \\u2022 : effect than is allowed other witnesses:-.!: In so testifying, such a witness heces--'! sarily expresses'his or her opinion and-conclusions, as to both the extent and ' effect of the injury. While 'such a.-., witness may not testify as an expert - and give expert opinion, he may nevertheless, state his or her notion or feeling as to the character and extent of the injury inflicted and the personal results he or she has experienced therefrom. (citing cases\\u00a1) The extent, to which such inquiry may be carried by a party to the action, is in a large measure within the discretion of the trial court; and in the case at bar we do not think that discretion was abused.\\\"\\nIn the instant case, appellant was permitted to testify in some detail as to the nature and extent of his sufferings and complaints, but not as to the cause of them. The trial court correctly ruled that appellant could not testify to the cause of his condition, because such would have been only an opinion by appellant, not qualified as an expert in the field. 32 C.J.S. Evidence \\u00a7 546(11), p. 131; 2 Jones on Evidence, 4th Ed. \\u00a7 360, p. 669, 673; 2 Wig-more on Evidence, 3rd Ed. \\u00a7 568, p. 660.\\nAppellant assigns as error the refusal of the trial court to allow Doctor Barnard to testify as to whether the treatment administered by respondent caused appellant's condition. During the course of the trial, appellant called Dr. Barnard, a neurosurgeon. The doctor testified as to his diagnosis, and the results of a myelogram and subsequent operation upon appellant's cervical disc. He continued:\\n\\\"A. * ' The patient states he noted them [right lateral neck pain, right lateral arm pain and right forearm pain, complaint of numbness in hand and from the waist down] following the conservative treatment he had from Doctor Warner. The patient's complaint was one that his legs felt half asleep.\\\"\\nThe witness was then asked \\\"could the treatment which he [appellant] described to you have caused this condition?\\\" to which question the respondent objected, which objection the trial court sustained. The trial court did not err in this ruling. For by this question, appellant was seeking the doctor's opinion. Normally the opinion of an expert witness is based upon a hypothetical question, with the facts upon which the opinion is based being set out in the question itself. Evans v. Cavanagh, 58 Idaho 324, 331, 73 P.2d 83; Hancock v. Halliday, 70 Idaho 446, 220 P.2d 384. Here the question, seeking the witness's opinion, was improperly presented, not being in hypothetical form.\\nDr. Barnard was also asked, \\\"Doctor Warner testified that stretching improves the circulation; that a large amount of traction accomplishes a relaxation of muscles and an improvement of the blood supply. Have you an opinion concerning this?\\\" to which question respondent objected as being incompetent, irrelevant and immaterial, and not in proper form. Again the court sustained this objection. There was no error in this ruling. An answer to the question proposed would have neither tended to prove or disprove any issues before the court, and later on this witness upon being asked a hypothetical question concerning the effect of varying weights being applied, was allowed to give a com prehensive answer as to his opinion, (see pg. 264).\\nAppellant also assigns as error the refusal of the trial court to permit Dr. Bingham, a physician and surgeon called by appellant to testify as to the effect on the appellant of 270 pounds of traction. He had examined appellant in 1958 for abdominal pain, and again in 1961, and testified as to finding tenderness in the lower abdomen and near an area of previous hernia repair. Dr. Bingham was then asked the following question :\\n\\\"Q. Based upon your training and experience, Doctor, given a patient who had the symptom which was discovered and diagnosed by Mr. Flower-dew, related to the hernia condition, the soreness in the abdomen area, and with such a patient if he had a history of having had excessive traction ranging from to 25 or 160 or possibly 50 to 270 lbs., would you have an opinion as to whether that would have an affect on the findings which you made in 1961 as to the hernia condition ?\\\"\\nRespondent's counsel, then examining Doctor Bingham in aid of an objection, developed that the doctor had no knowledge of osteopathic practice, other than in the .area where the school of osteopathic and medical practices overlap. Following this examination the court sustained respondent's objection to the question as being incompetent, irrelevant and immaterial and not proving or tending to prove any issues of the case. The trial court did not err in this regard. There was no foundation laid indicating any relation to the injury for which this suit was brought and the effect of the traction treatment of the herniated condition.\\nThe judgment is affirmed.\\nCosts to respondent.\\nMcQUADE, C. J., and TAYLOR, SMITH and KNUDSON, JJ., concur.\"}"
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+"{\"id\": \"4469783\", \"name\": \"GEM-VALLEY RANCHES, INC., a corporation, Plaintiff-Respondent, Cross-Appellant, v. James SMALL and Ruth Small, husband and wife, Defendants-Appellants, Cross-Respondents and Third-Party Plaintiffs, v. SECURITY TITLE INSURANCE CO., a corporation, A. W. Moulton, its President, A. W. Moulton in his individual capacity, and Harold J. Pitkin, Third-Party Defendants\", \"name_abbreviation\": \"Gem-Valley Ranches, Inc. v. Small\", \"decision_date\": \"1966-03-08\", \"docket_number\": \"No. 9554\", \"first_page\": \"354\", \"last_page\": \"373\", \"citations\": \"90 Idaho 354\", \"volume\": \"90\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T22:19:11.505753+00:00\", \"provenance\": \"CAP\", \"judges\": \"McFADDEN, C. J., and McQUADE, SMITH and SPEAR, JJ., concur.\", \"parties\": \"GEM-VALLEY RANCHES, INC., a corporation, Plaintiff-Respondent, Cross-Appellant, v. James SMALL and Ruth Small, husband and wife, Defendants-Appellants, Cross-Respondents and Third-Party Plaintiffs, v. SECURITY TITLE INSURANCE CO., a corporation, A. W. Moulton, its President, A. W. Moulton in his individual capacity, and Harold J. Pitkin, Third-Party Defendants.\", \"head_matter\": \"411 P.2d 943\\nGEM-VALLEY RANCHES, INC., a corporation, Plaintiff-Respondent, Cross-Appellant, v. James SMALL and Ruth Small, husband and wife, Defendants-Appellants, Cross-Respondents and Third-Party Plaintiffs, v. SECURITY TITLE INSURANCE CO., a corporation, A. W. Moulton, its President, A. W. Moulton in his individual capacity, and Harold J. Pitkin, Third-Party Defendants.\\nNo. 9554.\\nSupreme Court of Idaho.\\nMarch 8, 1966.\\nWilliam R. Padgett, Boise, for appellants Small.\\nMoffatt, Thomas, Barrett & Blanton, Boise, for respondent and cross-appellant Gem Valley Ranches, Inc. and third-party defendants Security Title Ins. Co., A. W. Moulton and Harold J. Pitkin.\", \"word_count\": \"6928\", \"char_count\": \"40788\", \"text\": \"TAYLOR, Justice.\\nThis action arose out of a series of transactions between defendants (appellants) Small, husband and wife, and one H. B. Gillingham, Sr. The first transaction occurred on or about September 1, 1962, at which time Small borrowed $18,000 from Gillingham and as security gave Gillingham his promissory note and a quitclaim deed to the Helen Beck ranch property, involved in this action. Thereafter, Small borrowed other sums from Gillingham, making a total borrowed of about $80,000, as found by the trial court. These additional borrowings were represented by promissory notes and were secured by transfers to Gillingham of Small's interest in other properties involved herein. December 7, 1962, these several transactions were merged by an instrument (plaintiff's exhibit 1) entitled \\\"Memorandum of Sale and Option,\\\" executed by Small and wife and Gillingham and wife. This document on its face purported to be an outright purchase and sale of the title or interest of the Smalls in three ranch properties in Elmore county, known as the Piel en Beck, Gladys Beck, and Rudge properties. The contract gave Small an option to repurchase the properties for the sum of $80,000 on or before March 1, 1963. Small was to remain in possession of the property during the life of the option.\\nSometime prior to March 1, 1963, Small went to the office of the Security Title Insurance Co. (hereinafter called Title Company) and gave the president and manager of that company, one A. W. Moulton, an order for an examination and report on the titles of the properties involved. At that time Moulton also agreed to help Small find a lender who would loan Small money needed to pay his obligation to Gillingham. Such a lender was not found prior to March 1st, and after considerable negotiation the Title Company, through its president and manager Moulton, purchased Gillingham's interest in the \\\"Memorandum of Sale and Option\\\" for the sum of approximately $82,000, and orally extended Small's option thereunder an additional two weeks. Small continued in his efforts to raise money with which to exercise the option and was again assisted in that effort by Moulton. This effort and assistance by Moulton continued beyond the expiration of the two-week oral extension of the option.\\nMarch 19, 1963, the Title Company made demand upon Small for possession of the property.\\nIn the meantime, Moulton organized the Gem-Valley Ranches, Inc., a corporation (plaintiff-respondent and cross-appellant herein), and on March 26, 1963, the Title Company transferred its interest in the properties involved to Gem-Valley Ranches, Inc.\\nMarch 29, 1963, following Small's refusal to surrender possession of the property, Gem-Valley Ranches, Inc., commenced this action in ejectment. In his answer, Small affirmatively alleged that Moulton, as president of the Title Company, and as agent for Small, advanced to Small the sum of $82,-870 and that that sum was used to exer-^ cise the option held by Small under the-sale-option agreement with Gillingham, and that the option was exercised in the name of the Title Company at the request of Moulton, and as security for the loan of $82,870. Small also alleged that by agreement with Moulton, as president of the Title Company, on March 1, 1963, he was given a \\\"reasonable time\\\" within which to repay the $82,870, together with other advances made by the Title Company through Moulton in a total amount of $160,729.04; that on April 9, 1963, payment of the total sum advanced by the Title Company was tendered to Moulton and also to his attorney, together with interest thereon, and that Moulton refused to accept the money tendered and demanded in addition thereto the sum of $40,000. Small prayed for an order allowing him six months within which to repay the amounts advanced by the Title Company.\\nA fourth ranch property known as the Mildren or Corder ranch (not included in the Small-Gillingham contract) was included in plaintiff's action to quiet title and described in its lis pendens. Small claimed to have made a payment of $20,000 upon the purchase price of $115,000 for the Mil.dren ranch, and acknowledged additional payments thereon made by the Title Company, totaling $56,480. These payments are included in the total amount of $160,729.04, which Small admitted was owing by him to the Title Company, as of April 9, 1963.\\n' The four ranch properties, along with one other not involved herein, had been merged into one farming and ranching unit, and had been operated as such by Small Until the appointment of a receiver in this action.\\n, Defendants Small and wife filed a third-party complaint against the Title Company, and A. W. Moulton and Harold J. Pitkin, officers and stockholders. In this complaint Smalls alleged that the moneys paid by the Title Company to Gillingham were paid on behalf of Small and for the purpose of exercising Small's option to repurchase from Gillingham; that Moulton and the Title Company agreed to assist Small in obtaining a loan of $750,000 upon all of the ranch properties involved for the purpose, among others, of obtaining money to \\u00a1repay advances made by the Title Company; that Moulton and the Title Company advanced a further sum of $24,000 to obtain clear title to the Gladys Beck ranch; that Moulton and the Title Company, acting for Small, advanced $56,480 to Walten Mildren to exercise Small's option for the purchase of the Mildren ranch; that Moulton and the Title Company, after entering into the foregoing transaction, organized the Gem-Valley Ranches, Inc., a corporation, and in violation of their fiduciary relationship with Small, and with intent to defraud Small transferred their interests in the ranch properties to Gem-Valley Ranches, Inc.; that the officers and stockholders of Gem-Valley Ranches, Inc., had full knowledge of Small's interest in the ranch properties involved; that as a result of the breach of trust by Moulton and the Title Company, Small was prevented from obtaining financing to complete the purchase of the properties, to his damage in the sum of $450,000.\\nIn the second cause of action in the third-party complaint, Small alleges that the advances made by the Title Company, totaling $190,000, were for the purpose of exercising the options held by Small and that the transfers of contracts and titles to the Title Company were taken as security for the moneys thus loaned to Small; that the Title Company, Moulton, and Gem-Valley Ranches, Inc., have reserved and charged the sum of $30,000 as interest for the loan of $190,000 as of June 1, 1963; and that such interest charge is usurious.\\nAfter a motion made by plaintiff for a separate trial of the issues raised by the original complaint and answer, and ' after counsel had stipulated that the issue raised by plaintiff's complaint and defendants' answer thereto, was the question. as to whether the transactions relating to the property in question constituted a sale or a mortgage, the court ordered that issue to be first and separately tried. Accordingly the trial of the issue as to whether plaintiff was a purchaser or mortgagee of the properties involved was tried to the court September 3, 1963.\\nBy memorandum and order dated September 23, 1963, the court determined that transfers and conveyances received by plaintiff's predecessor, the Title Company, were given and received as security for loans made by that company to and on behalf of Small; that as a result thereof the plaintiff was a mortgagee of the properties and not a purchaser. As basis for this decision the court in its order noted that the agreement between Small and Gillingham of December 7, 1962, arose out of loans by Gillingham to Small; that the consideration expressed in the contract was to induce Gillingham to exercise Small's options; that Small was to remain in possession of the property; that property was included in that contract which had been previously deeded by Small to Gillingham, as security; that on the occasion of the transfer by Gillingham to the Title Company, Gillingham, addressing, himself to Moulton, \\\"We were supposed-to make $4,500.00 on this deal. How much are you making?\\\" and Moulton's reply, \\\"$900.00.\\\" The court observed that this-was strange language for a bona fide pur; chaser to have used. The court further noted that Small had merged the ranch properties into one operating unit on which he had asked Moulton to write title insurance as such operating unit; that there was a wide disparity in the estimated value of the properties and the amounts advanced by Gillingham and the Title Company.; that \\u00c9mall claimed to have made payments upon the properties, which had not been disproven, as follows: Helen Beck ranch, $105,000; Rudge ranch, $30,000; Gladys Beck ranch, $6,000 (in subsequent pro^ ceedings Small claimed to have paid $2p,r 000 on the purchase price of the Mildren ranch); the transactions between Smal( and Moulton indicated they considered the transaction a mortgage; Moulton was to write title insurance for the specific purpose of a loan of $750,000 from an insurance company; part of the need for the loan was to exercise the option and pay off Gillingham; that Moulton testified the price which was paid by the Title Company to Gillingham was \\\"fixed primarily between Gillingham and Small,\\\" which would indicate that the transaction between Small and Gillingham was recognized as a security transaction; that after the trans fers to Title Company, Moulton continued to make advances for Small, and such advances were shown on the letterhead of the Title Company as \\\"advances made on behalf of James Small\\\" (defendants' exh. 8); that Moulton engaged in many negotiations in an attempt to secure a loan for Small, as Small's agent, and did so even after the two-week extension of .Small's option had expired; that as late as March 13th Moulton advanced $2,000 on behalf of Small for \\\"a good faith deposit to a mortgage company (Belmont)\\\"; that Moulton and Small were in Denver, on expenses advanced by Moulton, seeking a loan for Small; that the payment to Gillingham, with the knowledge of his previous advances to Small, for a two-week extension of Small's option, coupled with subsequent advances made to Small, would indicate a loan and security transaction; that Gillingham claimed Small owed him a balance after the transfer by him to the Title Company; that Small testified he considered his dealings as security transactions; that Gillingham's deposition, taken in its entirety, leads to the conclusion that he also considered his arrangement with Small, as well as Moulton's, to be a loan; that the large amounts and manner of payments made by Small to prior owners of the properties, with the knowledge of Gillingham, made it inherently improbable that Gillingham, and certainly not Small, ever considered their dealings as constituting a sale of the properties to Gillingham. The court then concluded that the plaintiff, as successor to Title Company and Gillingham, was a mortgagee of the properties involved.\\nThere are other facts revealed by the evidence which tend to support the conclusion of the trial court: (1) Plaintiff's exhibit 1, the Memorandum of Sale and Option, provides that in the event Small exercised the option therein granted, Gillingham will execute such conveyances and assignments as may be necessary to transfer the properties back to Small, but that such transfers and conveyances would be made at Small's expense and without warranty of title, or other obligation on the part of Gillingham; (2) At the time of the agreement to transfer Gillingham's interests to the Title Company, Gillingham acted at Small's request and refused to act or to fix the price for the transfer without Small's concurrence; (3) There was evidence that Gillingham transferred his interest in the properties for about $250,000 less than (or for about one-quarter of) the value it was estimated to have to one in the position of a bona fide purchaser; (4) The record shows that Small was over-extended in his ranch building project and desperately in need of finances to save his investments; (5) Small's original borrowings from Gillingham were evidenced by promissory notes, which were not satisfied or extinguished by the con veyances given therewith. And, as we have noted, the subsequent conduct of Gillingham and Moulton indicated that Small's debt survived the December 7, 1962, SmallGillingham contract, and the March 1, 1963, transfer to the Title Company. Plaintiff took title with full knowledge of all prior transactions.\\nIn Dickens v. Heston, 53 Idaho 91, 21 P.2d 905, 90 A.L.R. 944 (1933), this court discussed the tests to be applied in determining whether a conveyance absolute in form is in fact a mortgage. The evidence in this case meets all such requirements.\\nIn its memorandum the court noted the applicable rules announced in Hill v. Daugherty, 63 Idaho 12, 115 P.2d 759 (1941), and in Morrison v. Pierce, 47 Idaho 430, 276 P. 306 (1929), that an instrument of conveyance will be construed and enforced according to the purport thereof, in the absence of clear and convincing proof that it was the intention of the parties thereto that, it should be construed otherwise, and that the burden of such proof is on the party asserting that the conveyance was not to be enforced according to its terms. The trial court compared the facts in this case with those involved in Milo Theater Corp. v. National Theater Supply, 71 Idaho 435, 233 P.2d 425 (1951), and Freedman v. Hendershott, 77 Idaho 213, 290 P.2d 738 (1955).\\nIn support of its contention that the trial court did not impose upon defendants the burden of clear and convincing proof that the transaction constituted a mortgage, plaintiff cited, among others, the following cases: Clontz v. Fortner, 88 Idaho 355, 399 P.2d 949 (1965); Parks v. Mulledy, 49 Idaho 546,290 P. 205, 79 A.L.R. 934 (1930) ; Morrison v. Pierce, 47 Idaho 430, 276 P. 306 (1929); Clinton v. Utah Construction Co., 40 Idaho 659, 237 P. 427 (1925) ; Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90 (1916). These were all cases in which the plaintiff brought action to have' a conveyance declared to be a mortg\\u00e1ge, and in which this court affirmed the decision below. Our attention has not been called to a case in which this court has reversed a trial court determination that an' apparent absolute conveyance was a mortgage.\\nquestion as to whether the evidence is clear and convincing, that a conveyance absolute on its face is in reality a mortgage, is primarily for the trial court. In Wright v. Rosebaugh, 46 Idaho 526, 529, 269 P. 98, 99 (1928), this court said:\\n\\\"The trial court is the appropriate tribunal to weigh the evidence, and determine whether it is convincing and satisfactory, within the meaning of the rule. It has been said that in such cases, as in others, the determination of that court in favor of either party upon conflicting or contradictory evidence is not open to review in the ap'pellate court. Beckman v. Waters, 161 Cal. 581, 119 P. 922, quoting from Couts v. Winston, 153 Cal. 686, 96 P. 357, in which many earlier cases are cited.\\\"\\nThis statement was quoted with approval in O'Regan v. Henderson, 46 Idaho 761, 271 P. 423 (1928); Parks v. Mulledy, 49 Idaho 546, 290 P. 205, 79 A.L.R. 934 (1930) ; and in Gray v. Fraser, 63 Idaho 552, 123 P.2d 711 (1942), where Investors' Mortgage Security Co. v. Hamilton, 51 Idaho 113, 4 P.2d 347 (1931), and Hagan v. Clyde, 60 Idaho 785, 97 P.2d 400 (1939), are also cited.\\nThis rule originally taken from California has been more recently applied in that state. In Cowles v. Zlaket (1959), 167 Cal. App.2d 20, 334 P.2d 55, 60, the California court said:\\n\\\"Whether or not the evidence received is clear and convincing is usually a question of fact for the trial court and upon conflicting evidence it is not ordinarily open to review on appeal. Brison v. Brison, 90 Cal. 323, 334, 27 P. 186; Couts v. Winston, 153 Cal. 686, 96 P. 357; Beeler v. American Trust Co., 24 Cal.2d 1, 147 P.2d 583; Beckman v. Waters, 161 Cal. 581, 119 P. 922; Garrick v. J. M. P., Inc., 150 Cal.App.2d 232, 309 P.2d 896.\\\"\\nThe evidence in this case supports the trial court's conclusion that plaintiff is a mortgagee and not a purchaser.\\nSubsequently, on February 27, 1964, Small moved the court to find the amount due to the plaintiff on its mortgage, and for,\\n\\\"an order [gjiving defendants thirty days from the date thereof within which to pay the sum found by the court to be due on said mortgage, and further ordering that if said sum is not then paid, together with proper interest thereon, that plaintiff may proceed to foreclose said mortgage.\\\"\\nAfter trial of other issues, the court in its judgment dated May 1, 1964, found that there was due to the plaintiff as mortgagee the total sum of $205,040.56, with 8% per annum interest to be charged upon the sums expended by plaintiff. The court reserved for future determination three other credits claimed by plaintiff against defendants. Judgment then provided,\\n\\\"that defendants are hereby given 60 days from the date hereof to pay to the Clerk of this Court for the use and benefit of plaintiff, the sum of $205,040.56, plus accrued interest at eight percent per annum to the date of payment . Should defendants fail to make such payment within the time stipulated, the said mortgage shall be deemed foreclosed as of the 61st day from the date hereof , and title to the real and personal property involved herein shall be quieted from that day forward in plaintiffs against defendants and each of them and any persons who claim title under them.\\\"\\nThe judgment also required defendants to pay to the clerk of the court, or secure by surety bond, the sum of $27,779.77, within the sixty-day period, to provide for payment of additional sums claimed by the plaintiff, pending determination by the court of the amount to be allowed on such additional claims.\\nThe continual increase in the amount due plaintiff from the original amount paid to Gillingham, was occasioned by advances made from time to time to make payments required by Small's contracts with the original owners of the properties, taxes and other charges, necessary to prevent forfeitures of those contracts.\\nDefendants Small did not make payment within the sixty days allowed and appealed from that portion of the judgment decreeing strict foreclosure, and quieting title in the plaintiff.\\nIn a supplemental judgment the court found additional sums due to the plaintiff, making the total sum of $229,-053.33, plus interest, due from Small to plaintiff as mortgagee. The court noted, however, that this supplemental judgment was important only in case Small should prevail upon his appeal, which had theretofore been taken from the decree providing for strict foreclosure and quieting title in plaintiff.\\nSmall relies upon I.C. \\u00a7 6-101 and 6-104, as follows:\\n\\\"There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. \\\" I.C. \\u00a7 6-101.\\n\\\"A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure sale.\\\" I.C. \\u00a7 6-104.\\nTitle 45, Chapter 1, of the Idaho Code also contains provisions which affect the present issue:\\n\\\"Contracts of mortgage and pledge are subject to all the provisions of this chapter.\\\" I.C. \\u00a7 45-106.\\n\\\"Notwithstanding an agreement to the contrary, a lien, or a contract for a lien, transfers no title to the property subject to the lien.\\\" I.C. \\u00a7 45-109.\\n\\\"All contracts for the forfeiture of property subject to a lien, in satisfaction of the obligation secured thereby, and all contracts in restraint of the right of redemption from a lien, are void.\\\" I.C. \\u00a7 45-110.\\n\\\"Every person, having an interest in property subject to a lien, has a right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed.\\\" I. C. \\u00a7 45-113.\\nand in Chapter 9:\\n\\\"Every transfer of an interest in property other than in trust , made only as a security for the performance of another act, is to be deemed a mortgage, I.C. \\u00a7 45-904:\\nThese provisions of the law are controlling in this case. The portion of the degree providing that upon failure of Small to pay the amount found due to the plaintiff within the sixty days allowed, the mortgage was deemed foreclosed, and title was quieted in the plaintiff, was erroneous and must be reversed. Plaintiff relies upon Mac-hold v. Farnan, 20 Idaho 80, 117 P. 408 (1911), and Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90 (1916). In the Shaner case the transfer was held to be a sale, not a mortgage. What was there said on the present issue was dictum.\\nIn the Machold case plaintiff brought action to have deeds conveying the property to the defendant declared a mortgage, but did not tender payment of the amount due. However, this court noted that the action was treated as one in which permission to redeem was sought. The trial court held the conveyance to be a mortgage; found the amount due thereon; allowed plaintiff ninety days in which to make payment; failing which, title was quieted in the defendant. This court affirmed the judgment and cited Mack v. Hill, 28 Mont. 99, 72 P. 307 (1903), for the proposition:\\n\\\"that there is no such thing as an action for the sole object of declaring a deed to be a mortgage, as the court will not grant that relief unless the plaintiff shall be willing to have the whole controversy disposed of by offering to redeem from the mortgage so^ established. [And held] it was proper for the court to find the amount due and to order that it be paid within a reasonable time or, in the event of failure to make payment, that the plaintiff's action be dismissed.\\\" 20 Idaho at 85, 117 P. at 409.\\nIn the Machold opinion two California cases are cited: Cowing v. Rogers, 34 Cal. 648 (1868) ; Cline v. Robbins, 112 Cal. 581, 44 P. 1023 (1896). The decisions in these cases and in the Machold case are in part based upon the proposition that there was no such an action known to the law as one to have a conveyance absolute on its face declared a mortgage. The courts chose to regard such actions as actions to redeem, and held that the plaintiff must offer or tender redemption, and upon his failure to do so within a time fixed by the court, the action should be dismissed. Thus, the Machold decision quieting title in defendant was not supported by the cases relied upon. In those cases the courts refused to quiet title in defendant, and ordered the cases dismissed on failure of plaintiff to redeem.\\nIt should be noted that the Cline v. Robbins decision followed Boyce v. Fisk, 110 Cal. 107, 42 P. 473 (1895), which in turn cited Cowing v. Rogers, supra. In Boyce v. Fisk, in which a deed was held to be a mortgage, action on the promissory note, thus secured, was barred by the statute of limitation. It is obvious in such a case the court could not order foreclosure of the mortgage. Equity would not permit the plaintiff to quiet his title against the unpaid debt. Hence, a dismissal was the only judgment which could be entered.\\nUnder our more modern practice, a party's cause will not be dismissed for a defect of form or procedure. The district \\u2022court, having jurisdiction both at law and in equity (Const. Art. 5, \\u00a7 1 and 20) will \\u2022grant all proper relief consistent with the case made, and embraced within the issues tried, whether prayed for or not. I.C. \\u00a7 10-704; Boesiger v. Freer, 85 Idaho 551, 381 P.2d 802 (1963); McGhee v. McGhee, 82 Idaho 367, 353 P.2d 760 (1960); Smith v. Shinn, 82 Idaho 141, 350 P.2d 348 (1960); Anderson v. Whipple, 71 Idaho 112, 227 P. 2d 351 (1951).\\nPleadings may be amended, or will be treated as amended, to embrace the issues tried. IRCP rule 15(b).\\nIt is also to be noted that in the Machold case and in the California cases there cited, the effect of the provisions of the sections above quoted from I.C., Title 45, ch. 1, and identical provisions in California law, was not considered. In Harding v. Gillett, 25 Okl. 199, 107 P. 665 (1909), the Oklahoma court refused to follow the California rule announced in Cline v. Robbins, supra, or Decker v. Patton, 120 Ill. 464, 11 N.E. 897 (1887), or Sloane v. Lucas, 37 Wash. 348, 79 P. 949 (1905), and distinguished Martin v. Ratcliff, 101 Mo. 254, 13 S.W. 1051, 20 Am.St.Rep. 605 (1890). The Decker and Martin cases were also cited and relied upon in the Machold case. In its decision the Oklahoma court quotes statutes identical with our I.C. \\u00a7 45-109, 45-110, and 45-113, and also a code provision of similar import to I.C. \\u00a7 6-101, in support of its conclusion that the right of a mortgagor to redeem cannot be cut off without a foreclosure sale, in a case where the value of the mortgaged property considerably ex ceeded the balance due on the mortgage debt.\\nUnder California Civil Code, \\u00a7 2889, identical with our I.C. \\u00a7 45-110, the California court refused to enforce contractual agreements forfeiting encumbered property or restraining the right of redemption. Hamud v. Hawthorne, 52 Cal.2d 78, 338 P. 2d 387 (1959); Beeler v. American Trust Co., 24 Cal.2d 1, 147 P.2d 583 (1944) ; Russell v. Zink, 32 Cal.App.2d 566, 90 P.2d 360 (1939) ; Winklemen v. Sides, 31 Cal. App.2d 387, 88 P.2d 147 (1939) ; Lobingier v. Skinner, 93 Cal.App. 695, 270 P. 394 (1928) ; Bonestell v. Western Automotive Finance Corp., 69 Cal.App. 719, 232 P. 734 (1924); Blodgett v. Rheinschild, 56 Cal. App. 728, 206 P. 674 (1922); Wakabashi v. Stafford Packing Co., 186 Cal. 632, 200 P. 392 (1921).\\nIn Blodgett v. Rheinschild, supra, the court said:\\n\\\"It is an established doctrine that 'what is once a mortgage is always a mortgage,' which means that no agreement in advance to waive the equity of redemption is valid, and that when once it is established that a transaction is impressed with the character of a mortgage the right to redeem will continue until the debt is paid or until the equity of redemption is foreclosed or barred, or duly and sufficiently released. Civ.Code, \\u00a7 2889.\\\" 206 P. at 678. Syl. \\\"2. Where a conveyance of land, absolute in form, is intended as a mortgage to secure a loan, a decree of strict foreclosure, vesting title in the grantee upon nonpayment within a specified time, and without a foreclosure sale, will not be made.\\\" McCaughey v. Mc-Duffie, 141 Cal. XVIII, 7 Cal.Unrep. 175, 74 P. 751 (1903).\\nClinton v. Meyer, 43 Idaho 796, 255 P. 316 (1927), is distinguishable from the case at bar. There the court raised a question as to the nature of the vendor's lien involved, but based its decision on the doctrine of stare decisis. See also Walker v. Nunnenkamp, 84 Idaho 485, 373 P.2d 559 (1962).\\nThe transaction involved being a mortgage, the judgment of strict foreclosure was erroneous. Small did not consent to strict foreclosure, nor waive his right of redemption. He asked that foreclosure of the mortgage be ordered in event he failed to pay the debt within the time allowed. The judgment should have been for foreclosure as provided by I.C. Title 6, ch. 1. Cf. Reynolds v. Continental Mortgage Co., 85 Idaho 172, 377 P.2d 134 (1962); Jaussaud v. Samuels, 58 Idaho 191, 71 P.2d 426 (1937); Fond v. McCreery, 55 Idaho 144, 39 P.2d 766 (1934); Dickens v. Heston, 53 Idaho 91, 21 P.2d 905, 90 A.L.R. 944 (1933). In Dickens v. Heston this court affirmed the trial court's judgment which held that defendants have the same rights of redemption as is given by the mortgage statutes.\\nPlaintiff assigns as error the order of the court denying its motion to reopen and admit rebuttal evidence regarding the alleged disparity between defendant's investment and the amount paid for the property interests by the Gillinghams and their successors in interest.\\nPlaintiff's motion was supported by affidavit of A. W. Moulton; copies of two deeds in which Small was grantee; two deeds in which Small and wife were grantors; a deed from Rudge and wife to Gillingham; copies of inventory and appraisement and decree of probate court in estate of Linda Small; a livestock lease assigned to Gillingham; a note and chattel mortgage by Small to Gillingham; affidavit by secretary of Legette, Inc., that the stock of that corporation was valueless; affidavit of the secretary of Title Company as to insured value of certain property belonging to Small and encumbrances thereon; and affidavit of one of plaintiff's counsel that he saw Gillingham a few days prior to the time of trial and that in the opinion of counsel he was able to appear and testify at the trial. (Gillingham's deposition was admitted at the trial upon testimony that he had suffered a heart attack and was unable to be present.) Counsel's affidavit further alleges that Gil-lingham had been negotiating with plaintiff for the repurchase of the property interests conveyed by him to the Title Company, and that, therefore, Gillingham was not a disinterested witness. Except as to the availability and interest of Gillingham as a witness, the evident purpose of the proof thus offered was to rebut the evidence of the amount of Small's investment in the properties transferred by him to Gillingham and plaintiff. The trial judge recited that he had considered all of these documents before denying the motion. It is evident that the judge did not believe that such evidence would change the result. The court may also have determined that such offer of proof and the attack upon the Gillingham deposition was not timely. The pretrial order dated June 24, 1963, recites that the issue to be tried (and which was tried September 3, 1963) was whether the transaction between the parties was a sale or a mortgage. It was upon plaintiff's motion of August 15, 1963, that such issue was first and separately tried. Thus, plaintiff had ample notice of the issue to be tried and was in no position to claim surprise upon the presentation of evidence by Small as to the amount or value of his investment in the property. Disparity between the price paid or debt secured and the value of the property conveyed, is an important element in the determination of the issue as to whether the transaction is a sale or a mortgage. Dickens v. Heston, 53 Idaho 91, 102, 21 P.2d 905 (1933). The motion invoked the sound discretion of the trial court. The showing made is not such as to justify this court in overturning the trial court's ruling. Findley v. Woodall, 86 Idaho 439, 387 P.2d 594 (1963); State v. McConville, 82 Idaho 47, 349 P.2d 114 (1960); State v. Morrison, 52 Idaho 99, 108, 11 P.2d 619 (1932); Hall v. Jensen, 14 Idaho 165, 93 P. 962 (1908) ; Newman v. United States, 238 F.2d 861 (5th Cir. 1956).\\nPlaintiff assigns as error the admission in evidence of defendants' exhibits 8, 10, and 11. Exhibit 8 was a statement, on the letterhead of the Title Company, of money due that company \\\"by virtue of advances made on behalf of James Small.\\\" Plaintiff urges that it was a copy and not the best evidence. It was offered on the cross-examination of Moulton, president and manager of the company, who identified the exhibit as a \\\"process\\\" copy. Counsel referred to it as a \\\"photocopy.\\\" Moulton testified it was prepared in his office and delivered to Small. Whether he was referring to the original or the copy is not clear. He affirmed the accuracy of the items thereon, and referred to the wording on the exhibit that the advances were \\\"made on behalf of James Small,\\\" as inaccurate. The objection that a proper foundation had not been laid, was not made until after the exhibit was admitted, and then only in reference to a subsequent question propounded by the cross-examining counsel. The admission of the exhibit was not erroneous.\\nExhibit 10 was an appraisal of the \\\"James Small stock ranch,\\\" by one Turner, an appraiser. This exhibit was also offered on the cross-examination of plaintiff's witness Moulton. The witness had testified to his opinion as to the value of the property involved, and that he had a copy of the appraisal in his possession prior to and at the time he entered into the transaction with Mr. Gillingham. When the exhibit was offered, plaintiff objected on two grounds: (1) It was available but not submitted at pretrial; (2) It was \\\"improper for the purpose of impeachment.\\\" As to the first, the trial court correctly ruled that the exhibit was not one, the use of which should have been anticipated at the time of the pretrial conference. As to the second, the document did not tend to \\\"impeach\\\" the witness within the meaning of I.C. R9-1210, because it did not purport to contain statements by him inconsistent with his testimony. However, in the broader sense of impeachment, it did contain representations of value contradictory of the witness' testimony within the meaning of I.C. R9-1209 and IRCP rule 43(b). The California statutes, C.C.P. \\u00a7 2051 and 2052, are the same as our I.C. \\u00a7 R9-1209 and R9-1210. In Pierce v. J. C. Penney Company, 167 Cal. App.2d 3, at 9-10, 334 P.2d 117, at 121-122 (1959), the court said:\\n\\\"As Wigmore [Evidence, 652, \\u00a7 1000] and McCormick [Evidence, 100, \\u00a7 47] have pointed out, impeachment by contradiction may be accomplished either by eliciting a contradictory fact on cross-examination or by calling other witnesses in rebuttal. The contradictory evidence may be either direct or circumstantial. But all the authorities seem to take for granted the truism that the contradictory evidence must be competent evidence.\\\"\\nThe exhibit was competent for the purpose for which it was offered, that is, to contradict the testimony of the witness as to values. If objection had been made that the contents of the exhibit were hearsay, then defendant in order to have the exhibit admitted would have been required to produce the appraiser as a witness in rebuttal. No such objection having been made, the ruling of the court was not reversibly erroneous. The general rule is that where hearsay evidence is admitted without objection, it may properly be considered in determining the facts; the important question being the weight to be given such evidence. Anno., Hearsay \\u2014 Admission Without Objection, 79 A.L.R.2d 890 at 897, et seq. What was said on this subject in Boise Street Car Co. v. Van Avery, 61 Idiaho 502, 520, 103 P.2d 1107 (1940), is not controlling here. We also note that the case at bar was tried to the court without a jury, and in admitting the exhibit the court observed, \\\"the weight of the exhibit will be for the court to determine.\\\" On further examination of the witness it was developed that the exhibit contained appraisal of property not involved in this action along with properties here concerned as a ttnit and unsegregated. This evidence properly tended to diminish the weight to be given the exhibit by the court.\\nExhibit 11 was the deposition of Gillingham, taken on behalf of the plaintiff, May 20, 1963, at which time counsel for both parties were present and participated. The exhibit was read into the record. Each question and answer was subject to objection and ruling of the court. This was done after Gillingham's physician had testified that the deponent had suffered a severe heart attack August 10, 1963, and although up and about at the time of trial, his condition was such that appearance at the trial as a witness would be detrimental to his health, and contrary to the physician's advice. The deposition was qualified under IRCP rule 26(d) (3). Plaintiff's showing that one of its counsel had seen the witness a few days before the trial, transacting business in a bank, and had also seen him a month after the trial, and that in his opinion the witness had been able to appear personally, was not sufficient to require the court to reopen the trial because of the absence of the witness.\\nPlaintiff contends that parol evidence was not admissible to show that the documents purporting to be absolute conveyances of the land were, in fact, a mortgage. In this state parol evidence is admissible to prove that a conveyance of land, absolute in form, is a mortgage.\\n\\\"The fact that a transfer was made subject to defeasance on a condition may, for the purpose of showing such transfer to be a mortgage, be proved (except as against a trustee under any trust deed or transfer in trust, or a subsequent purchaser or encumbrancer for value and without notice), though the fact does not appear by the terms of the instrument.\\\" I.C. \\u00a7 45-905.\\nSmith v. Swendsen, 57 Idaho 715, 69 P.2d 131, 111 A.L.R. 441 (1937) ; Investors' Mtg. Secur. Co. v. Hamilton, 51 Idaho 113, 4 P. 2d 347 (1931) ; Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928); Thompson v. Burns, IS Idaho 572, 99 P. 111 (1908). Plaintiff cites Smith v. Swendsen, supra, where the rule was apparently limited to cases in which the language of the conveyance was ambiguous or uncertain. Plaintiff would also prohibit the application of the rule in cases where the intention of the parties to make an absolute conveyance is expressed in the instrument. Such limitations would defeat the purpose of the statute in most cases and deny effect to the last phrase thereof: \\\"though the fact does not appear by the terms of the instrument.\\\" Cf. State v. Snyder, 71 Idaho 454, 233 P.2d 802, 33 A.L.R.2d 358 (1951); Larson v. Hinds (Colo.) 394 P.2d 129, 132 (1964)\\nPlaintiff assigns as error the ruling of the court permitting Small to testify as to his intent in the execution of the agreement with Gillingham. The cases cited in support of this assignment, Keane v. Pittsburg Lead Mining Co., 17 Idaho 179, 105 P. 60 (1909); Reconstruction Finance Corp. v. United Distill. P. Corp., 113 F. Supp. 468 (D.C.), aff'd 204 F.2d 511 (2 Cir. 1953); Low v. Low, 255 Ala. 536, 52 So.2d 218 (1951) ; involved contracts which were not subject to variations by parol evidence. In such oases it was held that parties were bound by the intent expressed in the contract. In this case the intent expressed in the contract is not conclusive on this issue of intent, by reason of the statute (I.C. \\u00a7 45-905, supra) herein set out and applied. In State v. Snyder, supra, this court said:\\n\\\"Such intention may be gathered from the instruments themselves and from extrinsic evidence of former and subsequent acts and declarations of the parties which in any wise throw light upon such intention and the real character of the transaction; the instrument itself is not conclusive in this respect.\\\" 71 Idaho at 459, 233 P.2d at 805.\\nSuch an expression of intent from the witness stand is comparable to a similar allegation in a verified pleading, and maybe regarded as self-serving. However, intent is material and relevant here, and since the statute allows either party to disprove the intent expressed in the contract, and since the rule would allow both parties to testify as to their intent, no harm is done by its admission. The weight to be given such testimony by a party is for the trier of the facts.\\nAssignments of error made by defendants Small attacking the findings of the court as to the amounts due plaintiff arc not considered here, because such assignments are not supported by brief or argument. Weaver v. Sibbett, 87 Idaho 387, 393 P.2d 601 (1964); Batchelder v. City of Coeur d'Alene, 85 Idaho 90, 375 P.2d 1001 (1962).\\nThe judgment to the effect that transactions between the parties constituted plaintiff a mortgagee of the properties described therein, and fixing the amount due plaintiff is affirmed. The judgment granting strict foreclosure, and quieting title in plaintiff upon defendants' failure to redeem within sixty days, is reversed, and the cause is remanded with instructions to the trial court to vacate that portion of the judgment and to enter judgment providing for foreclosure and sale as provided by I.C., Title 6, Chapter 1, and Title 11, Chapters 3 and 4.\\nCosts to appellants and cross-respondents Small against plaintiff.\\nMcFADDEN, C. J., and McQUADE, SMITH and SPEAR, JJ., concur.\"}"
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+"{\"id\": \"4471268\", \"name\": \"Ex parte DODD\", \"name_abbreviation\": \"Ex parte Dodd\", \"decision_date\": \"1952-02-27\", \"docket_number\": \"No. 7859\", \"first_page\": \"351\", \"last_page\": \"355\", \"citations\": \"72 Idaho 351\", \"volume\": \"72\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T00:57:38.437425+00:00\", \"provenance\": \"CAP\", \"judges\": \"GIVENS, C. J., and PORTER, TAYLOR and THOMAS, JJ., concur.\", \"parties\": \"Ex parte DODD.\", \"head_matter\": \"241 P.2d 359\\nEx parte DODD.\\nNo. 7859.\\nSupreme Court of Idaho.\\nFeb. 27, 1952.\\nRayborn & Rayborn, and Douglas Kramer, all of Twin Falls, for petitioner.\\nMax G. Lloyd, Prosecuting Atty., Twin Falls, for respondent.\", \"word_count\": \"1813\", \"char_count\": \"10385\", \"text\": \"KEETON, Justice.\\nOn February 2, 1952, petitioner filed in this Court an original petition for a writ of habeas corpus, claiming that he was unlawfully imprisoned by Jesse E. Carlton, sheriff of Twin Falls County. The writ issued, and was served on the sheriff on the date of issue (Feb. 2).\\nThe sheriff made a return and alleged that he had held the petitioner pursuant to a judgment of the Honorable Hugh A. Baker, district judge, dated January 31, 1952, by the terms of which petitioner had been adjudged in contempt of court in that he had violated the provisions of a district court order dated April 14, 1951, hereinafter more specifically referred to. '\\nPursuant to the citation in the contempt proceedings, the petitioner appeared specially and' moved to set the service aside and to quash the same for the reason that \\\"the said service was made upon the said Calahill S. Dodd at a time when he had been brought into this state on extradition based on a criminal charge, and that the subject of the said proceedings arises out of the same facts and the same act as those in the criminal proceedings;\\nThe motion to- quash the service was supported ' by his affidavit which alleged that when he was in the district courtroom in answer to a criminal charge on which he had been arrested and brought into the state from South Dakota by the sheriff of Twin Falls County, and pursuant to the. bond which he had given for his appearance, that he was privileged from service of process; that the contempt proceedings could not be served and prosecuted against him while he was in the state against his will and without his consent to answer the criminal charge. This motion was denied. Petitioner, in the contempt proceedings, declined to answer further, and was adjudged in contempt of court.\\nThe facts preceding the contempt citation may be summarized as follows: Petitioner was formerly the husband of Mary Lou Dodd. They were divorced on the 2nd of April, 1951. A child the issue of the marriage, Susan Marie, of the age of nine months, was first awarded to the plaintiff, petitioner here. The petitioner, for reasons not entirely clear, was unable to obtain possession of the child.\\nIn a subsequent proceeding dated April 14, 1951, an order was made by the Hon orable D. H. Sutphen \\\" that the said Calahill S. Dodd is hereby restrained from taking possession of said minor child and from interfering with the care and custody of said minor by the said Clyde Pryor and Doris Pryor .\\\"\\nPetitioner, on the 30th day of September, 1951, while this order was apparently in effect, took the child from the custody of the Pryors, by what means does not appear, and immediately departed for the state of South Dakota. Thereafter, a criminal complaint was filed against him in Twin Falls County, charging kidnaping. He was extradited from the state of South Dakota to answer the charge, held for trial, gave a bond in the' sum of $2500 for his appearance, was released from custody, and returned to South Dakota. On January 7, 1952, he was in the district courtrooms of Twin Falls county for arraignment, and to answer the kidnaping charge. While there, he was served with the order to show cause why he should not be punished for contempt1 of court.\\nAs before stated, the petitioner refused to answer the contempt charge except by a special appearance and motion to quash the service. After a hearing in the matter in which the petitioner refused to take part, the court entered the following judgment:\\n\\\"It is the judgment of the Court that the said Calahill S. Dodd is guilty of a contempt of Court in his act of removing the said child from the custody of Doris Pryor and from the State of Idaho on September 30, 1951; and that he be and he is hereby fined in the sum of $300.00 and that he be iuprisoned in the County jail of this County for the period of five days; that he also pay the costs incurred in these contempt proceedings and that if the fine and costs be not paid, the same be served out in the County jail in this County in addition to the jail sentence at the rate of $2.00 for each day of twenty-four hours. That he be remanded to the custody of the Sheriff of this County in execution of that sentence.\\n\\\"It is further ordered, however, that if said Calahill S. Dodd at any time within the period of two weeks, restore the said child to the custody of Doris Pryor, that action will purge him of the contempt of Court. If he desires a stay of execution for the period of two weeks, or rather until Friday, February 15, the stay will be granted upon execution by him of bail bond in the sum of $1500.00 conditioned for his personal appearance in Court on Friday, February 15, 1952, and that the return of the child to the State of Idaho and to the custody of Mrs. Pryor will purge him of the contempt adjudged against him.\\\"\\nThe matter in controversy has been argued to this Court on broad grounds, and sundry and numerous contentions have been advanced as to why the prisoner should be released from custody. Some of the matters so argued would be reviewable only on appeal or writ of review and cannot be determined in a habeas corpus proceedings. The contempt proceedings were instituted and pursued against the petitioner in*the trial court as civil' in nature, that is, the. persons interested pursued the civil remedy' and it was treated as a civil1'action and-the order to show cause in the contempt proceedings was process arising out .of the .same facts as the criminal proceedings then pending against the petitioner and to an-' swer which he had been extradited. 12 Am.' Jur. 392, \\u00a7 6; 17 C.J.S., Contempt, \\u00a7 6, P.\\nThere were two propositions advanced, the answers to which we conclude are decisive of the matter.\\nAfter the serving of the writ of habeas corpus on the sheriff he alleged in his return that pursuant to an order of the Honorable Hugh A. Baker, district judge, dated February 5, 1952, he released the prisoner from custody and therefore it is impossible for him to bring him before this Court, and that this Court has no further jurisdiction.\\nThis Court having acquired jurisdiction of the prisoner by the issuing of the writ of habeas corpus, a subsequent order made in the district court releasing the prisoner from custody does not oust this court of jurisdiction.\\nWhen the writ issued from this Court requiring the sheriff to produce the prisoner then in his custody, and still in his custody when the writ was served, no valid order could be thereafter entered in the original proceedings in the district court that would oust this court of jurisdiction to hear and determine the controversy. 29 C.J. 154, \\u00a7 171; 39 C.J.S., Habeas Corpus, \\u00a7 87, p. 650; Pomeroy v. Lappeus, 9 Or. 363; Ex parte Kearby, 35 Tex.Crim.R. 634, 34 S.W. 962; Whittle v. Jones, 198 Ga. 538, 32 S.E.2d 94; Truman v. Hann, 154 Neb. 501, 48 N.W.2d 418; State ex rel. Wester v. Caldwell, 84 Okl.Cr. 334, 181 P.2d 843.\\nWe conclude that having acquired' jurisdiction of the prisoner, from the time of the service on the sheriff, he held the prisoner by virtue of the writ of habeas corpus which has paramount authority over all other writs.\\nThe criminal complaint under which petitioner was extradited from the state of South Dakota and later informed against in the district court charges that \\\" on or about the 30th day of September, 1951, in the county of Twin Fall's, did then and there unlawfully, and without authority carry away, detain, keep and conceal one Susan Marie Dodd\\nIn the contempt proceedings, which terminated in the imprisonment of the petitioner, he was charged with the same unlawful acts as follows: \\\" on the 30th day of September, 1951 Calahill S. Dodd took the said Susan Marie without permission and has ever since said 30th day of September, 1951, refused and neglected to return said Susan. Marie Dodd \\\".\\nThe contempt proceedings were instituted and pursued against the petitioner in*the trial court as civil' in nature, that is, the. persons interested pursued the civil remedy' and it was treated as a civil1'action and-the order to show cause in the contempt proceedings was process arising out .of the .same facts as the criminal proceedings then pending against the petitioner and to an-' swer which he had been extradited. 12 Am.' Jur. 392, \\u00a7 6; 17 C.J.S., Contempt, \\u00a7 6, P.\\nWe quote from the Idaho Statute, Sec. 19-4524,1.C.:\\n\\\"A person brought into this state on extradition based on a criminal charge, shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is returned, until he has been convicted in the criminal proceeding, or if acquitted, until he has had ample opportunity to return to the state from which he was extradited.\\\"\\nand 22 Am.Jur. 301, \\u00a7 61:\\n\\\"In general, a fugitive from justice whose return to- the state whence he fled has been procured by extradition proceedings based on a criminal charge cannot be arrested on civil process while within the state by virtue of such extradition and before he has had any opportunity to depart therefrom.\\\"\\nSee also Weale v. Clinton Circuit Judge, 158 Mich. 563, 123 N.W. 31.\\nWe conclude that the petitioner was privileged and immune from such service while in this state by a process of extradition to answer a criminal charge growing out of the same transaction on which the civil contempt proceedings were based; that the motion to quash the service should have been sustained; that the court exceeded its jurisdiction for the reason the court had no jurisdiction of the person; that there is no plain, speedy or adequate remedy at law, and the sheriff to whom the writ of habeas corpus as directed is ordered to immediately release the prisoner. Sec. 19-4524 I.C.; 22 Am.Jur. 301, Sec. 61; Murray v. Wilcox, 122 Iowa 188, 97 N.W. 1087, 64 L.R.A. 534; Moletor v. Sinnen, 76 Wis. 308, 44 N.W. 1099, 7 L.R.A. 817; 42 Am. Jur. 133, \\u00a7 153. For collection and review of cases supporting the rule applicable here, see 14 A.L.R. 778, and 40 A.L.R. 93.\\nGIVENS, C. J., and PORTER, TAYLOR and THOMAS, JJ., concur.\"}"
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+"{\"id\": \"4478280\", \"name\": \"CAUGHEY v. GEORGE JENSEN & SONS\", \"name_abbreviation\": \"Caughey v. George Jensen & Sons\", \"decision_date\": \"1953-06-10\", \"docket_number\": \"No. 7948\", \"first_page\": \"132\", \"last_page\": \"136\", \"citations\": \"74 Idaho 132\", \"volume\": \"74\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:23:39.102512+00:00\", \"provenance\": \"CAP\", \"judges\": \"PORTER, C. J., and GIVENS, TAYLOR and THOMAS, JJ., concur.\", \"parties\": \"CAUGHEY v. GEORGE JENSEN & SONS.\", \"head_matter\": \"258 P.2d 357\\nCAUGHEY v. GEORGE JENSEN & SONS.\\nNo. 7948.\\nSupreme Court of Idaho.\\nJune 10, 1953.\\nRehearing Denied July 3, 1953.\\nA. G. Sathre, Cottonwood, J. B. Eldridge, Placerville, for appellant.\\nRobert M. Robson, Grangeville, for respondent.\", \"word_count\": \"1361\", \"char_count\": \"8203\", \"text\": \"KEETON, Justice.\\nPlaintiff brought this action to recover an alleged balance due on an open and running account, claiming in his complaint that on and between April 13, 1948, and October 25, 1950, he sold defendants, a copartnership, petroleum products of the value of $6,357.03; that there had been paid by defendants $4,721.92, leaving a balance of $1,635.11. Defendants answered the complaint; denied that there was any balance due; claimed that the purchases amounted to only $4,176.48, and that the account had not only been paid in full, but that there was an over-payment of $1,510.80. On issues thus joined, the case was tried before a jury and verdict rendered for plaintiff for the amount claimed, on which judgment was entered. From this judgment defendants appealed.\\nIn assignments of error, defendants (appellants here) assert that plaintiff (respondent here) is not the real party in interest, for which reason the court had no jurisdiction to hear and determine the cause.\\nThis contention is premised on the following facts: Respondent was a consignee of oil and petroleum products for the Union Oil Company of California, and he sold and distributed to customers these products in a designated area. Respondent furnished the delivery trucks and equipment for making deliveries and was entitled to a commission on all sales. Customers purchasing oil products who had a credit rating approved by the Company were entitled to the products within certain limited amounts at the risk of the Company, and respondent received his commission on such sales whether the account of such approved risks was paid or not.\\nOn accounts not approved as credit risks by the Company, or where no credit rating was established, any oil products delivered to such customers by respondent were at respondent's risk and he was liable to the Company for the payment of such unauthorized sales. Appellant partnership was not an approved credit risk and any oil products sold and delivered to it by respondent were on a C.O.D. basis and were charged by the Company to respondent, and he was required to pay the Company whether or not the account was collected. Payment for some of the products sold and delivered to appellants was made to the Company on bills from time to time furnished. Other payments were made direct to respondent and by him credited on appellants' account. Because of nonpayment by appellants the Company charged to respondent uncollected items in the sum of $2,571.99, and of this amount appellants paid respondent the sum of $936.88, leaving unpaid the amount sued for. In other words, the Company had been paid in full the appellants' account, and of which sum respondent, as consignee of the oil products, advanced and paid the Company the sum of $1,635.11, in which amount appellants had never reimbursed respondent. At the time the suit was instituted respondent had bought from and paid the Company for the petroleum products which respondent had sold and delivered to appellants. A statement from the Company, plaintiff's exhibit 1, disclosed that the account of appellants' had been paid it in full by respondent from monies partly paid by appellants. The balance of $1,635.11 was paid the Company by respondent. In other words respondent had paid for the oil products sold appellants in full.\\nUnder this state of facts appellants assert that the Union Oil Company is the real party in interest, and that the action could not be prosecuted by respondent, citing Sec. 5-301, I.C., which reads:\\n\\\"Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by this code.\\\"\\nThe appellants cite no authority applicable to the facts to support the contention made. The brief quotes extensively from Pomeroy's Code Remedies stating certain generalities in nowise, as we read it, applicable to the contention made.\\nThe real party in interest is the one who has a real, actual, material or sub stantial interest in the subject matter of the action, the primary object being to save a defendant from further suits covering the same demand or subject matter, i. e., the real party in interest is the person who can discharge the claim upon which the suit is brought and control the action brought to enforce it, and who is entitled to the benefits of the action, if successful, and can fully protect the one paying the claim or judgment against subsequent suits covering the same subject matter, by other persons.\\nWhere a plaintiff shows such a title as a judgment upon it being satisfied will protect a defendant from further suits or loss, the object has been satisfied, the action being prosecuted by the real party in interest.\\nIt is generally held that the owner of the legal title is sufficient to meet the requirements of the statute.\\nExceptions to this rule, such as trustees of an express trust, or actions prosecuted by one for the benefit of another, or an action authorized by statute, are not in point here, and need not be discussed or determined.\\nWe conclude under the facts presented the respondent is the real party in interest. For authority see Carrington v. Crandall, 63 Idaho 651, 124 P.2d 914, 149 A.L.R. 824; Weber v. City of Cheyenne, 55 Wyo. 202, 97 P.2d 667; 39 Am.Jur. 868, Sec. 15, 869, Sec. 16, 871, Sec. 17; 67 C. J.S., Parties, \\u00a7 10, pages 911 to 914, and 20 Cal.Jur. 490, Sec. 10. It should be further noted that the appellants made no application to have the Union Oil Company joined as a party, and appellants filed a counterclaim against respondent covering the same transaction.\\nAppellants assign as error the giving of instruction No. 1, asserting that that part of the instruction which told the jury \\\"the plaintiff Frank S. Caughey brings suit against defendants George Jensen & Sons and alleges that as agent and manager of the Union Oil Company at Grangeville \\\" is erroneous.\\nThe allegation in the complaint referred to is as follows:\\n\\\"That the plaintiff is the owner and manager of a petroleum distributing system for the Union Oil Company of California, being consignee of petroleum products made by said company for distribution in Idaho County; that he is now and at all times concerned in the complaint herein has been a resident of Idaho County, State of Idaho.\\\"\\nWe are unable to see how the instruction as given prejudiced appellants. The issues to he determined were clearly defined in other instructions. While the instruction complained of did not exactly, or in detail, conform to the allegation of the complaint, there was no prejudice.\\nAppellants also claim in assignments of error that the evidence is insufficient to sustain the judgment.\\nA tabulation of the account sued on was incorporated in the complaint, and plaintiff's exhibit 4, summarizing the account in detail, was admitted in evidence without objection. Original vouchers and book entries supporting the claim so summarized were produced and admitted in evidence. Appellants in their brief do not point out wherein the facts proved were insufficient to sustain the judgment.\\nWhile appellants in their testimony disputed receipt of a part of the oil products enumerated in the summarization and in the sales slips and book entries admitted in evidence, the determination of this issue was a question for the jury, which it determined adversely to appellants.\\nAppellants complain that no instructions covering the law of agency were given. The question of agency was not involved, nor were any such instructions requested. There is no ruling of the trial court on the subject urged, hence there is nothing before this Court to review. If appellants wanted instructions given the jury which they considered pertinent to the issues, such instructions should have been requested. We are of the opinion the instructions given as to the law covered all issues presented. We find no error. Judgment is affirmed. Costs to respondent.\\nPORTER, C. J., and GIVENS, TAYLOR and THOMAS, JJ., concur.\"}"
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+"{\"id\": \"4487420\", \"name\": \"TONKIN-CLARK REALTY CO., Respondent, v. CLEM HEDGES, Appellant\", \"name_abbreviation\": \"Tonkin-Clark Realty Co. v. Hedges\", \"decision_date\": \"1913-06-25\", \"docket_number\": \"\", \"first_page\": \"304\", \"last_page\": \"316\", \"citations\": \"24 Idaho 304\", \"volume\": \"24\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:20:35.985327+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TONKIN-CLARK REALTY CO., Respondent, v. CLEM HEDGES, Appellant.\", \"head_matter\": \"(June 25, 1913.)\\nTONKIN-CLARK REALTY CO., Respondent, v. CLEM HEDGES, Appellant.\\n[133 Pac. 669.]\\nMotion foe a New Trial \\u2014 Waiver of Error in not Granting a New Trial \\u2014 Telephone Message \\u2014 Admissibility\\u2014Evidence\\u2014 Weight \\u2014 Credibility of Witness.\\n1. Where a motion for a nonsuit is made and overruled and the defendant introduces evidence to support the defense and makes a case upon the merits, the court or jury have a right to consider the whole case and the motion for a nonsuit is waived.\\n2. Where T. has a conversation with H. over a telephone line between two towns, and T. is called as a witness in a controversy between T. C. B. Co., of which T. was the president, and H., with reference to a sale and exchange of property owned by each of said parties, to which such conversation referred, sueh evidence of T. in identifying the party with whom the conversation was had, when taken into consideration with other evidence in the case, is admissible in evidence to be considered by the jury in determining whether or not the conversation was between T. and H., and there was no error in the court\\u2019s admitting such evidence.\\n3. The evidence of D., called for the purpose of identifying H., who was defendant in the suit, as being at a certain place on a certain day, when objected to as not tending to sustain the verdict, presents a question which the jury alone was. called upon to determine in arriving at the verdict in the case, and was not a question to be determined by the court. This evidence might aid other evidence, and the evidence altogether might be sufficient to sustain the verdict, although standing alone it might not sustain the verdict.\\ni. The evidence in this case held to be sufficient to sustain the verdict and judgment.\\n5. Where evidence as to whether or not a person making a contract is the agent of another party is of a substantial character, which shows that the agent was acting for the defendant and made the contract, and that the person with whom the contract was made made the contract upon the solicitation of the agent, and that the person for whom the agent acted accepted the contract made and accepted the benefits which resulted from the contract, such party cannot evade or defeat the authority of the agent in making said contract.\\n6. The law is well settled in this state that where a party employs a real estate broker to sell a piece of property at a stipulated price,, and the broker procures a purchaser who purchases such property, or is able and willing to purchase such property upon the terms given \\u25a0to the agent by the owner, or where the purchaser\\u2019s attention was first called to the desire of the owner of the property by the broker, and thereafter he purchases the property, the broker is entitled to his commission.\\nAPPEAL from tbe District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.\\nAn action for commission for services as a broker on a sale of real estate. Judgment for plaintiff.\\nAffirmed.\\nDavidson & Davidson and O. J. Hood, for Appellant.\\nIf the witness was acquainted with the defendant\\u2019s voice, his testimony that he recognized his voice over the telephone. would have been admissible as evidence, and it might constitute proof of his identity, but there was no proof of recognition of defendant\\u2019s voice. (Holzhauer v. Sheeny, 127 Ky. 28, 104 S. W. 1034; Swing v. Walker, 27 Pa. Super. Ct. 366; Rueckheim Bros. v. Ser Vis Ice Cream & Candy Co., 146 111. App. 607; Gardner v. Hermann, 116 Minn. 161, 133 N. W. 558.)\\nEarle C. Miller and J. B. Eldridge, for Respondent.\\nThe trial court\\u2019s order denying the defendant\\u2019s motion for a nonsuit at the close of plaintiff\\u2019s evidence is not reviewable in an appeal from a judgment entered in the case where defendant, after his motion for a nonsuit has been denied, introduces evidence. (Shields v. Johnson, 12 Ida. 329, 85 Pac. 972; Rippetoe v. Feely, 20 Ida. 619, 119 Pac. 465; Smith v. Potlatch Lumber Co., 22 Ida. 782, 128'Pae. 546.)\\nThe fact that the voice at the \\u25a0 telephone is not identified does net render the conversation inadmissible. (Wolfe v. Missouri Pacific R., 97 Mo. 473, 10 Am. St. 331, 11 S. W. 49, 3 L. R. A. 539; Globe Printing Co. v. Stahl, 23 Mo. App. 451; Rock Island Pac. R. v. Potter, 36 111. App. 590; Sullivan v. Kuykendall, 82 Ky. 483, 56 Am. Rep. 901; Banning v. Banning, 80 Cal. 271,13 Am. St. 156, 22 Pae. 210; Davis v. Walter & Son, 70 Iowa, 465, 30 N. W. 804; Guest v. Hannibal & St. Joe R., 77 Mo. App. 258; Taylor v. The Robert Campbell, 20 Mo. 254; Oskamp v. Gadsden, 35 Neb. 7, 37 Am. St. 428, 52 1 N. W. 718,17 L. R. A. 441; People v. McKane, 143 N. Y. 455, 38 N. E. 950; Gardner v. Hermann, 116 Minn. 161, 133 N. W. 558.)\\nIt is sufficient, to entitle a real estate broker to his commission, that his efforts were the procuring cause of the sale, that through his agency the purchaser was brought into communication with the seller and that a sale resulted therefrom. {Phillips v. Brown, 2 Ida. 62, 120 Pac. 454; Wood v. Broderson, 12 Ida. 190, 85 Pac. 490; Hafner v. Heron, 165 111. 242, 46 N. E. 211; Mechem on Agency, sec. 966; Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104; Smith v. Anderson, 2 Ida. 495, 537, 21 Pae. 412; Buckingham v. Harris, 10 Colo. 455, 15 Pae. 817; Nolan v. Swift, 111 Mich. 56, 69 N. W. 96; Griswold v. Pierce, 86 111. App. 406; Goffe v. Gilson, 18 Mo. App. 1; Hamlleton v. Fort, 58 Neb. 282, 78 N. W. 498.)\", \"word_count\": \"4709\", \"char_count\": \"26264\", \"text\": \"STEWART, J.\\nThis action was brought by the plaintiff against the defendant to recover the sum of $699.27 for services on an alleged sale of real estate owned by the defendant and alleged to have been listed for sale and sold to A. H. Krulish and Charles W. Erulish. The answer denies the allegations of the complaint, and alleges that the defendant listed the property involved with the A. L. Murphy Company, Ltd., a corporation engaged in the real estate business, and through such agency the property was sold to the same parties alleged in the complaint as being the purchasers through the agency of plaintiff.\\nThe case was tried before a jury and a verdict was rendered for the sum of $699.27 and costs. Judgment was rendered in accordance with the verdict. This appeal is from the judgment.\\nThe appellant assigns as error that the court erred in overruling defendant's motion for a nonsuit. Upon this alleged error it is sufficient to refer to the following cases wherein this court has determined the sufficiency of this error: Shields v. Johnson, 12 Ida. 329, 85 Pac. 972; Rippetoe v. Feely, 20 Ida. 619, 119 Pac. 465; Smith v. Potlatch Lumber Co., 22 Ida. 782, 128 Pac. 546. In these cases it is held that where a motion for a nonsuit is made and overruled and the defendant introduces evidence to support his defense and makes a case upon the merits, the court or jury has a right to consider the whole case and the motion for a nonsuit is waived.\\nThe appellant combines all the assigned errors except the motion for a nonsuit in the following contentions:\\n(1) The alleged conversation between J. O. Tonkin and defendant was inadmissible, and does not sustain'the verdict and judgment. There is no merit in this assignment of error for the following reasons: (a) The judgment is not based wholly upon the conversation of Tonkin and defendant over- the telephone. There are other facts in the case which in onr judgment show that the defendant did list the property owned by him, and the appellant brought the attention of Krulish Brothers to the fact that the property was for sale or exchange for the property that was owned by Krulish Brothers; (b) The jury were the judges of the credibility of the evidence and the witnesses and the weight of evidence, and Tonkin testified that he had a conversation with the defendant over the telephone on the 21st day of July, 1911; this was only one fact which constituted th\\u00b0e evidence which was submitted to the jury; (c) Tonkin is also corroborated by the evidence of Doyle and other evidence which clearly established that J. W. Hedges was the agent of the defendant, and the defendant ratified the acts of J. W. Hedges and accepted the benefits of his acts by conveying the property to Krulish Brothers. In the evidence of Tonkin he testifies, that when Tonkin called over the phone he asked for John Hedges, and the answer was, \\\"this is Clem Hedges.\\\" This admission of Clem Hedges, when considered with the other evidence of the sale, identifies the party talking as Clem Hedges, and was acted upon and recognized thereafter in making the conveyance of the defendant's property to the very parties that the appellant was negotiating with after the property was listed with the plaintiff, and the jury were the judges as to whether or not the person talking over the phone was Clem Hedges or J. W. Hedges, notwithstanding Clem Hedges denies the same. This question of recognizing evidence of conversations over the telephone line is well recognized by the courts generally. In Wolfe v. Missouri Pac. R. Co., 97 Mo. 473, 10 Am. St. 331, 11 S. W. 49, 3 L. R. A. 539, the supreme court of Missouri says: \\\"The courts of justice do not ignore the great improvement in the means of intercommunication which the telephone has made. Its nature, operation and ordinary uses are facts of general scientific knowledge, of which the courts will take judicial notice. When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication in relation to his business through that channel. Conversations so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible. The ruling here announced is intended to determine merely the admissibility of such conversations in such circumstances, but not the effect of such evidence after its admission. It may be entitled, in each instance, to much or little weight in the estimation of the triers of fact, according to their view of the credibility, and of the other testimony in support or in contradiction of it.\\\" We approve the foregoing opinion as to the admissibility of such evidence, and are satisfied that the effect of the admission of such evidence is a matter wholly with the jury, and it is within the power of the jury to determine the weight of such evidence according to the jury's view of its credibility and the other testimony corroborating the same or in contradiction of such testimony. This doctrine is also approved in the case of Globe Printing Co. v. Stahl, 23 Mo. App. 451; Oskamp v. Gadsden, 35 Neb. 7, 37 Am. St. 428, 52 N. W. 718, 17 L. R. A. 441.\\n(2) The alleged identification of defendant by W. A. Doyle as being at the office of the plaintiff with J. W. Hedges on his second visit on or about July 26, 1911, as tending to sustain the verdict, was a matter for the jury to determine and not for the trial court or this court. It may or may not have been a force of itself which tended to sustain the verdict, but taken with the other facts in the ease the jury might determine that it was of great force in determining whether or not Doyle saw the defendant at the office of plaintiff with Hedges on July 26th, five days later than the property was listed on July 21st.\\n(3) The third assignment of error is subject to the same rule as governs the effect of the evidence referred to in No. 2, whether the jury gave consideration and weight to the testimony of defendant, that he might have been at the office of plaintiff about that time, but heard nothing about the land deal or exchange.\\n(1) The fourth assignment of error, that the verdict and judgment are not supported by the evidence, is the important question in this case. There can be no question but that the defendant was anxious to make a deal disposing of the real property, and through the acts of J. W. Hedges the defendant listed with the plaintiff the real property and agreed to pay plaintiff the regular commission, which on all sums over $10,000 was five per cent on the first five thousand, three per cent on the second five thousand and two and one-half per cent on the excess over ten thousand. There can be no question, also, but that the plaintiff obtained Krulish Brothers as customers for the exchange of the stock of merchandise and real estate at King Hill; that through Watson and Ton-kin, members of the plaintiff firm, an agreement was made with Krulish Brothers to exchange their property to the defendant for his land, and that they informed the defendant, through J. W. Hedges, that an exchange of the property was made at the listed price of $20,000. The only issue of fact upon which the verdict is in conflict is, does the evidence show that J. W. Hedges acted in the transaction as agent of the appellant and had he authority to so act ?\\n(5) The fifth assignment of error is, that the proofs do not show that plaintiff was the procuring cause of the exchange. There is evidence in the case of a substantial character that shows that J. W. Hedges acted as the agent of the defendant and listed the defendant's land with plaintiff for sale or trade, and that plaintiffs used their efforts and personally solicited and secured the Krulish Brothers as purchasers of said land, and that the defendant, through his agent J. W. Hedges, was informed that Krulish Brothers would make the trade; that after plaintiff began negotiations with Krulish Brothers, and while plaintiff was attempting to make the trade, the defendant completed the trade of his land as listed to Krulish Brothers, and accepted the benefits of the transaction; that for his services plaintiff was entitled to the commission provided in the listing of the property.\\nThe court seems to have given the law of the case, and it was accepted by the jury, and the jury determined the issues of fact. The law is well settled in this state that where a party employs a real estate broker to sell a piece of property at a stipulated price and the broker procures a purchaser who purchases such property, or is able and willing to purchase such property upon the terms given to the agent by the owner, or where the purchaser's attention was first called to the desire of the owner of the property by the broker, and he thereafter purchases the property, the broker is entitled to his commission. (Wood v. Broderson, 12 Ida. 190, 85 Pac. 490; Phillips v. Brown, 21 Ida. 62, 120 Pac. 454.)\\nWe find no reversible error in the record. The judgment is affirmed. Costs awarded to the respondent.\"}"
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+"{\"id\": \"4487817\", \"name\": \"ARTHUR HODGES, as Mayor of Boise City, Appellant, v. HERBERT LEMP, Executor, Respondent\", \"name_abbreviation\": \"Hodges v. Lemp\", \"decision_date\": \"1913-08-14\", \"docket_number\": \"\", \"first_page\": \"399\", \"last_page\": \"416\", \"citations\": \"24 Idaho 399\", \"volume\": \"24\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:20:35.985327+00:00\", \"provenance\": \"CAP\", \"judges\": \"Stewart, J., concurs.\", \"parties\": \"ARTHUR HODGES, as Mayor of Boise City, Appellant, v. HERBERT LEMP, Executor, Respondent.\", \"head_matter\": \"(August 14, 1913.)\\nARTHUR HODGES, as Mayor of Boise City, Appellant, v. HERBERT LEMP, Executor, Respondent.\\n[135 Pac. 250.]\\nGovernment Townsite \\u2014 Mayor as Trustee \\u2014 Power of Mayor to Convey Title \\u2014 Title to Unclaimed Tracts of Townsite Entry\\u2014 Capacity of Mayor to Sue \\u2014 Statute of Limitations \\u2014 Laches and Estoppel.\\n1. Under the provisions of sec. 2387 of the Bev. Statutes of the United States, and the Speeial and Local Laws of the Territory of Idaho of January 6, 1871 (Special and Local Laws of Idaho, p. 35), the mayor of Boise City took title to the townsite of Boise City by patent from the United States in trust for the benefit of the oeeupants of lots, as shown and described on the recorded plat of the townsite, for the individual use of such occupants, and also for any remaining or unclaimed lot, piece or pareel of such town-site, for the occupants and inhabitants of the community of Boise City collectively in their corporate capacity, and the title to such property vested in the mayor as trustee for the benefit of such occupants severally.\\n2. The title to lots or traets to which no valid claims were made by individuals in conformity with the statute was taken in trust by the mayor as trustee for the occupants of the townsite in their collective capacity as a municipal corporation.\\n3. It was the purpose of the government townsite act to pass title, through the medium of a trustee, to bona fide oeeupants and claimants of lots for use and occupancy and not for speculative purposes. On the other hand, it was intended that if any surplus land should be left after bona fide oeeupants had received title to their lots, or if any profit might be had on account of unclaimed lots or tracts, it should inure to the benefit of the city or the inhabitants thereof in their collective capacity as a community or municipality.\\n4. Complaint examined in this ease, and held, that it does not show on its face that the cause of action is barred by the statute of limitations, nor does it show such facts as would in equity require or justify the application of the doctrine of laches or estoppel.\\n5. Held, further, that the complaint in this case states a cause of action.\\nAPPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.\\nAction for the cancelation of certain deeds and decree adjudging the plaintiff to hold the title to certain property in trust for the benefit of the inhabitants of Boise City. Judgment for the defendant. Plaintiff appealed.\\nReversed.\\nCharles F. Reddoeh and J. B. Eldridge, for Appellant.\\nIt is alleged in, the complaint that the tract conveyed by the Pinney deed was never platted into lots and blocks, and we invite the court\\u2019s attention to the act of 1871 (Special and Local Laws of Idaho, p. 30), for any authority to convey any portion of the townsite of said city, except that which was platted into lots and blocks, according to the plat of said city, then on file in the office of the county recorder. 1 (State v. Webster, 28 Mont. 104, 72 Pac. 295.)\\nIt is also alleged that this land was vacant, unclaimed and unoccupied, and remained so until 1886, when for the first time Mr. Lemp made some claim to the same, and under such circumstances he could not acquire any rights by virtue of being an occupant, as such rights were fixed by being such occupant at the time of the entry. (City of Globe v. Slack, 11 Ariz. 408, 95 Pac. 126; Lockwitz v. Larson, 16 Utah, 275, 52 Pac. 279; Singer Mfg. Co. v. Tillman, 3 Ariz. 122, 21 Pac. 818; City of Helena v. Albertose, 8 Mont. 499, 20 Pac. 817; Roberts v. Ward, 3 Cal. App. 101, 84 Pae. 430; Cook v. Rice, 2 Colo. 131; Adams v. Blinkley, 4 Colo. 247; Pueblo v. Budd, 19 Colo. 579, 36 Pac. 599; Rathbone v. Sterling, 25 Kan. 444; Leech v. Rauch, 3 Minn. (332) 448; Castner v. Gunther, 6 Minn. (63) 119.)\\nThe trust provided by U. S. Rev. Stats., see. 2387 (U. S. Comp. Stats. 1901, p. 1457, 6 Fed. Stats. Ann. 344), is dual or twofold in character. It exists for the benefit of the occupants as individuals, and also collectively, as a community. {Scully v. Squier, 13 Ida. 417, 90 Pac. 573; Newhouse v. Simimo, 3 Wash. 648, 29 Pae. 263; Aspen v. Rucker, 10 Colo. 184, 15 Pae. 791.)\\nThe title of the unoccupied lands of a townsite is vested in the trustees for the benefit of the community collectively, and can only be disposed of in the manner provided by the legislature. {Amador County v. Gilbert, 133 Cal. 51, 65 Pac. 130.)\\nWhere no provision has been made by the legislature for the disposition of unoccupied lands, the trustee is without authority to sell. {Martin v. Hoff, 7 Ariz. 247, 64 Pae. 445; Denver v. Kent, 1 Colo. 336.)\\nIt is alleged in the complaint and admitted by the demurrer that the property conveyed by the Pinney deed has been held for sale and speculation at all times since said deed was issued, and the same is void for this reason. {Pascoe v. Green, 18 Colo. 326, 32 Pac. 824; Clark^ v. Titus, 2 Ariz. 147, 11 Pac. 312; Mayorsville Inv. Co. v. Holl\\u00e9, 58 Kan. 773, 51 Pac. 281.)\\n\\u201cA demurrer on the ground of want of legal capacity to sue must relate to some legal disability on the part of the plaintiff to prosecute and maintain said action.\\u201d (Pratt v. Northern Pac. Express Go., 13 Ida. 373, 121 Am. St. 268, 90 Pac. 341, 10 L. R. A., N. S., 499.)\\nThe people of Boise City in their collective capacity are the cestui que trust on whose behalf appellant prosecutes this action, and by virtue of his position as mayor, if our position is correct that this deed is void, he is the only party who can maintain said action. (Hartman v. Smith, 6 Mont. 295, 12 Pac. 655; sec. 4092, Rev. Codes.) The mayor as trustee is the proper party to bring this action by virtue of his office, he having succeeded to the trust. (First National Bank v. National Broadway Bank <& Tuttle, Trustee, 156 N. Y. 459, 51 N. E. 398, 42 L. R. A. 139; Clemens v. Heckscher, 185 Pa. 476, 40 Atl. 80; Safe Deposit Go. v. Calm, 102 Md. 530, 62 Atl. 819; Ludington v. Mercantile Nat. Bank, 102 App. Div. 251, 92 N. Y. Supp. 454.) The grant by Congress was conditional upon the property being used for the purpose contemplated and specified in the grant, to wit, townsite purposes, and this is why Congress, in sec. 2391, U. S. Rev. Stats. (U. S. Comp. Stats. 1901, p. 1459, 6 Fed. Stats. Ann. 351), said that any act of the trustees in violation of the regulations prescribed by the legislature should be void. (Oregon etc. B. Go. v. Quigley, 10 Ida. 770, 80 Pac. 401.)\\nEdgar Wilson and A. A. Fraser, for Respondent. '\\nThe complaint, upon its face, shows that the plaintiff or any other person claiming as trustee or as the cestui que trust has been guilty of laches such as will prevent any recovery in the court of equity.\\nThere are no facts or circumstances alleged from which the court may determine whether or not the plaintiff and all his predecessors in office could not have obtained knowledge of all the facts and circumstances in regard to this transaction long prior to September, 1912, or whether or not the plaintiff and his predecessors in office were not negligent in dis covering the facts, whether other circumstances should not have put the plaintiff and his predecessors in office upon discovery of the facts; there are no allegations that there was any concealment practiced upon the plaintiff or his predecessors in office by the defendant or John Lemp, which prevented them in any manner from finding out the facts. (Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. 862, 36 L, ed. 719; Wood v. Carpenter, 101 U. S. 135, 25 L. ed. 807; Hardt v. Heidweyer, 152 U. S. 547, 14 Sup. Ct. 671, 38 L. ed. 548; Bangs v. Loveridge, 60 Fed. 963; Kessler v. Ensley Land Co., 123 Fed. 546; Bliss v. Pritchard, 67 Mo. 181; Lant v. Manley, 71 Fed. 7; Robertson v. Burrell, 110 Cal. 568, 42 Pae. 1086; Ater v. Smith, 245 111. 57, 91 N. E. 776, 19 Ann. Cas. 105, and note; Boise City v. Wilkinson, 16 Ida. 150, 102 Pae. 148; Hesse v. Strode, 10 Ida. 250, 77 Pac. 634; People v. Alturas County, 6 Ida. 418, 55 Pae. 1067, 44 L. R. A. 122; 5 Pomeroy\\u2019s Eq. Jur., sec. 27.)\\nThe plaintiff\\u2019s cause of action is barred by the statute of limitations. (Sec. 4036-, Rev. Codes; Murphy v. Crowley, 140 Cal. 141, 73 Pac. 820; Bradley Bros. v. Bradley, 20 Cal. App. 1, 127 Pac. 1044; Hecht v. Slaney, 72 Cal. 363, 14 Pac. 88.)\\nIf this action be barred as against the trustee, it is also barred against the beneficiaries. (Patchett v. Pacific Coast R., 100 Cal. 505, 35 Pac. 73.)\\nThe fact that the legal title to this property was held in trust is no defense as against the bar of the statute of limitations. (Orack v. Powelson, 3 Cal. App. 282, 85 Pac. 129; Ames v. City of San Diego, 101 Cal. 390, 35 Pac. 1005.)\\nThe plaintiff and his predecessors in office as mayor of Boise City never did have the equitable title. He cannot recover upon the ground that he has the legal title (which has long prior hereto been conveyed by said trustee) ; and even if he should contend that he has the equitable title, this is not sufficient to maintain the action. (Shanahan v. Crompton, 92 Cal. 9, 28 Pac. 50; Harrigan v. Mowry, 84 Cal. 456, 22 Pac. 658, 24 Pae. 48; Quairoli v. Italian Beneficial Society of Vineland, 64 N. J. Eq. 205, 53 Atl. 622.)\\nAfter the trustee under the townsite act has executed a deed to the townsite property, whether the same be rightfully or wrongfully issued, the trust being terminated, the only person who can question the transfer is the beneficiary or the cestui que trust. (Cowell v. Colorado Springs Co., 100 U. S. 55, 25 L. ed. 547; Murray n\\u00bb Hobson, 10 Colo. 66, 13 Pac. 921; City of Pueblo v. Budd, 19 Colo. 579, 36 Pac: 599; Robinson v. Stone, 118 Ala. 273, 72 Am. St. 160, 24 So. 984, 45 L. R. A. 66.)\\nBoise City, as a municipal corporation, has no title to the lots in the townsite, and any act of the legislature of this state or of the trustee attempting to convey to Boise City the title to said lots, occupied, or unoccupied, would be void. (Town of Aspen v. Rucker, 10' Colo. 184, 15 Pac.-791; Mc-Creery v. Sawyer, 52 Cal. 257; Georgetown v. Glaze, 3 Colo. 230.)\\nAs long as the title has not been conveyed and remains in the trustee he may maintain an action to protect his own title or possession to the property, b;ut he cannot institute a proceeding for the purpose of determining who the beneficiaries are under the trust. (Newhouse v. Simino, 3 Wash.\\n648, 29 Pac. 263.)\\nThe grounds of demurrer that the plaintiff did not have legal capacity to sue, a disability as infancy, coverture or idiocy, as contended for in the plaintiff\\u2019s brief, means that plaintiff having no interest whatsoever in the controversy, the complaint does not state a cause of action. (Pratt v. Northern Pac. Ry. Co., 13 Ida. 373, 121 Am. St. 268, 90 Pac. 341, 10 L. R. A., N. S., 499.)\\nThe deed may be void, and yet it is the color of title for a great many purposes, one of which is that it is sufficient title upon which to found a title by adverse possession or by laches, but deeds of the character mentioned herein are not void in a strict sense of the term. (Ming v. Foote, 9 Mont. 201, 23 Pac. 515, 7 L. R. A. 471.)\", \"word_count\": \"6712\", \"char_count\": \"36890\", \"text\": \"AILSHIE, C. J.\\nThis action was instituted by the mayor of Boise City for the purpose of securing a decree canceling and setting' aside two deeds issued by his predecessor in office to John Lemp, now deceased, conveying to Lemp certain portions and parcels of the townsite of Boise City.\\nThe complaint alleges that the appellant is the duly elected, qualified and acting mayor of Boise City, and as such is the successor in interest as trustee to all the rights conferred under and by virtue of the laws of the United States and the territory and state of Idaho relative to the entry and disposition of government townsites for the use and benefit of the several occupants and inhabitants thereof. The following is the substance of the material allegations of the complaint: That John Lemp departed this life on the 18th of July, 1912, and that Herbert Lemp is the executor of his estate; that Edward Lemp, one of the devisees under the will of John Lemp, deceased, departed this life on the 15th of September, 1912, and that Herbert Lemp is the executor of his estate; that Henry E. Prickett, as mayor of Boise City, on November 23, 1867, filed a plat of Boise City in the office of the recorder of Ada county, Idaho, and which plat ever since has been and now is of record in the office of the county recorder of Ada county; that Henry E. Prickett, as mayor of Boise City, filed upon the townsite of Boise City on the 13th day of January, 1868, in accordance with the statutes of the United States and the rules and regulations of the Interior Department; that thereafter and on the 2d day of May, 1870, a patent issued from the United States to Henry E. Prickett, as mayor, in trust for the benefit of the occupants and inhabitants of Boise City, which patent is of record in the office of the county recorder of Ada county; that the patent as issued to Prickett, mayor, granted and conveyed 442 acres, whereas the plat of the original town-site of Boise City, as filed and recorded by Prickett, covered an area of only 410 acres, and that there was granted by said patent the sum of 32 acres in excess of the amount covered by the recorded plat of the townsite of Boise City and that the excess area of 32 acres was not platted; that James A. Pinney, as mayor and trustee and as the successor in office of' Henry E. Prickett, did on the 5th day of June, 1891, in consideration of the sum of one dollar, make, execute and deliver to John Lemp his deed for a tract and portion of the lands covered by the patent from the government to Prickett, as trustee, and by which deed it was attempted to convey by Pinney as mayor to Lemp an area of 4.55 acres, and that this tract and parcel of land was a portion of the 32 acres excess and immediately adjoined the townsite of Boise City as shown by the recorded plat filed by Henry E. Prickett, and that this deed was duly and regularly recorded in the office of the recorder of Ada county; that this 4.55 acre tract so granted by Pinney to Lemp had never at any time prior thereto been platted into lots .or blocks as required by law; that the land so conveyed' was vacant, unoccupied and unclaimed land at the time of the entry thereof by Prickett as mayor and at the time of the issuance of patent from the United States therefor; that in January and February, 1871, Prickett caused notice to be published \\u2022 as required by law, requiring all claimants and occupants of land to make application therefor, and that Lemp did not make any application therefor or receive deed under such notice or any deed from Prickett at all; that in the year 1910, Lemp platted this tract of 4.55 acres and placed the same upon the market. It is then alleged that Pinney held the title to this land in trust for the use and benefit of the citizens collectively of Boise City, and that Lemp \\\"squatted\\\" upon this tract of land, knowing that he had no right thereon and knowing that the same was the property of the inhabitants of Boise City. That the plaintiff qualified as mayor of Boise City on the 25th day of May, 1912, and that he did not discover the facts upon which this action is predicated until about the 15th day of September, 1912.\\nPlaintiff alleges a second cause of action in which he sets out the same facts as heretofore recited with reference to the entry of Boise City and acquiring title thereto, and then alleges that on the 25th of June, 1897, Walter E. Pierce, as mayor of Boise City, made application to the United States land office for an additional townsite entry under the laws of the United States, which application was duly allowed, and thereafter and on the 23d day of May, 1898, a patent issued to Walter E. Pierce, as mayor, in trust, as provided by the laws of the United States, for lot 10, sec. 3, township 3 north, range 2 east, Boise meridian, containing 1.13 acres adjoining the townsite of Boise City; that thereafter and on February 26, 1908, John M. Haines, as mayor and trustee and as successor in office to Walter E. Pierce, in consideration of the sum of five dollars, made, executed, and delivered to John Lemp, his deed for this tract of land, being 1.13 acres; that on the 26th day of June, 1897, W. E. Pierce, as mayor and trustee, caused public notice to be given, as required by law, of his entry of this tract of land as an additional townsite entry, and that Lemp did not, within sixty days after the first publication and posting of this notice, make his application for a deed as required by law, and that this tract of land was never prior to conveyance thereof from the government to Pierce, as mayor, surveyed and platted into lots and blocks, as contemplated and required by the statutes of the state of Idaho; that Lemp did not pay all or any of the expenses of making this additional townsite entry or publication and posting of notices, as required by law; that this tract of land was thereafter and in the year 1910 by Lemp platted and placed upon the market for sale and speculation; that at the time of the issuance of deed by Haines, as mayor, to Lemp, the title thereto was vested in Haines, as mayor, and in trust for the benefit of the people of Boise City in their collective capacity.\\nTo this complaint the defendant demurred on various grounds, among which is that the complaint does not state facts sufficient to constitute a cause of action and that plaintiff has no legal capacity to sue, and that the complaint shows upon its face that the cause of action attempted to be stated was barred by the provisions of secs. 4036, 4037, 4039 and 4040, Rev. Codes.\\nIt is first contended that the mayor cannot maintain this action. We do not think this contention is well taken. The townsite of Boise City was entered under the provisions of sec. 2387 of the Rev. Statutes of the United States (U. S. Comp. Stats. 1901, p. 1457, 6 Fed. Stats. Ann. 344), which section is as follows:\\n\\\"Whenever any portion of the public lands have been or may be settled upon and occupied as a townsite, not subject to entry under the agricultural pre-emption laws, it is lawful, in case such town be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judge of the county court for the county in which such town is situated, to enter at the proper land office, and at the minimum price, the land so settled and occupied in trust for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated.\\\"\\nSec. 2391 of the Rev. Statutes of the United States (U. S. Comp. Stats. 1901, p. 459, 6 Fed. Stats. Ann. 351), provides that \\\"Any act of the trustees not made in conformity to the regulations alluded to in sec. 2387, shall be void.\\\" On January 6, 1871, the territorial legislature passed an act providing for the disposition of the townsite of Boise City pursuant to the provisions of sec. 2387, U. S. Rev. Statutes (U. S. Comp. Stats. 1901, p. 1457, 7 Fed. Stats. Ann. 344), and the several acts of Congress (Special and Local Laws of Idaho, p. 30). Sec. 1 of this act provided that the mayor should act as trustee and make deeds of conveyance to all parties entitled thereto according to their respective interests, and that within ten days after the passage of the act he should publish a notice in some newspaper published in Boise City, requiring all persons claiming lands- therein- to make their respective claims therefor to him at his office, and that at the same time he should make or cause to be made and filed in his office a plat of the townsite of Boise City, which plat should in all respects be a true and correct copy of the one on file in the office of the county recorder of Ada county, and which plat had been filed by Henry E. Prickett, mayor, who entered the townsite in the United States land office. Sec. 2 of the act of January 6,1871, provides as follows:\\n\\\"The occupants of said townsite may at any time within sixty days after the filing of such plat and the publication of the notice aforesaid, make their respective applications for title to such portion of said townsite as is claimed by them, which application shall be in writing, and shall set forth that such claimant is an occupant of said townsite, and of the lot or lots, block or portion claimed by him or her, and shall specify in what such occupancy consists, which shall be either actual residence thereon, in closure, or some permanent improvement on some portion of the lot or block claimed, and shall particularly designate and describe such lots, blocks and improvements, and said applications shall in all cases be verified by the oath of the applicant, or by some person on his or her behalf, in the manner prescribed for the verification of pleadings in civil actions in courts of justice in this territory; provided, that no claim shall be received which shall not conform to the requirements of this act.....\\\"\\nSection 3 of that act provides that at the expiration of sixty days from the giving of such notice, the mayor should, upon the payment of the price provided in section 5, where no adverse claims had been filed, execute deeds to all parties, making and filing their applications within the sixty-day period, and section 8 provided that all lots remaining unclaimed for a period of three months after the first publication of the notice, as required by section 1, should be sold at public auction to the highest bidder for cash, after giving at least three weeks' notice in the manner prescribed for the notice of sale of real estate by the sheriff on execution, the proceeds of such sale to be paid into the treasury of Boise City.\\nLemp did not avail himself of any of the provisions of this statute, and made no claim thereunder for any of the land here in controversy. Thereafter, the territorial legislature of 1875 passed an act supplemental to the act of 1871, whereby the mayor was authorized to cause published notice to be given to all parties who had made applications for deeds and who had failed to make payment therefor, to make their payment, together with ten per cent penalty, and receive their deeds. This act provided that upon failure to do so, the mayor should sell all such property to the highest bidder for cash and turn the proceeds into the city treasury. (Special and Local Laws of Idaho, p. 33.) Lemp again failed to avail himself of the provisions of this statute, and to claim a deed to the property here in question. This property was not then deeded to anyone. Neither was it sold at public auction.\\nThe mayor was by law made the trustee for the city and its inhabitants, and we are satisfied that if any action can be maintained, it must be maintained by the mayor as trustee for the community in its collective capacity; or, in other words, for Boise City.\\nThis court, in considering a like trust in Scully v. Squier, 13 Ida. 417, 90 Pac. 573, and in discussing the duty of the mayor as trustee under the government townsite law (sec. 2387, U. S. Rev. Stats.; U. S. Comp. Stats., p. 1457, 6 Fed. Stats. Ann. 343), and the statute of this, state as applied to the townsite of the city of Lewiston, said:\\n' ' The trust provided for by this section is dual in its nature. It exists for the benefit of the occupants as individuals, and also collectively as a community. The title to occupants of lots vested in the mayor-trustee for their benefit severally when the entry was made. The title to lots to which no valid claims are held by individuals is taken in trust by the trustee for the occupants of the townsite collectively.\\\" (To the same effect, see Newhouse v. Simino, 3 Wash. 648, 29 Pac. 263.)\\nApplying this rule to the case at bar, the mayor of Boise City took title in trust for all the individual occupants of the townsite who made claims to the respective lots or tracts occupied by them,.and it became his duty under the statutes of the United States and the statutes of this state (then territory) to convey the title held by him to the respective occupants and claimants who, in compliance with the statute, showed themselves entitled thereto. On the other hand, he held such tracts or parcels of this townsite as were not claimed by individual occupants in trust for the community in its collective capacity. The fact that no one made claim to any given tract of ground in accordance with the provisions and requirements of the statute did not authorize or license any person to summarily take the property, nor would a claim asserted in any other manner than that provided by law entitle such claimant to the property or confer title on him, nor would it authorize the mayor-trustee to convey the property to such person. It was the purpose of the townsite law to pass title to bona fide occupants and claimants of lots for use and occupancy and not for speculative purposes. (Martin v. Hoff, 7 Ariz. 247, 64 Pac. 445; Pascoe v. Green, 18 Colo. 326, 32 Pac. 824; Clark v. Titus, 2 Ariz. 147, 11 Pac. 312; Denver v. Kent, 1 Colo. 336; Marysville Inv. Co. v. Holle, 58 Kan. 773, 51 Pac. 281.) On the other hand, it was intended that if any surplus land should be left or if any speculation might be had, it should inure to the benefit of the city.\\nIt has been suggested that the city could not hold the title to the property and that the mayor as trustee could not convey the property to the city. \\\"We are not directly confronted with that question in the present case, but, in passing, we may observe that the statute directs that the proceeds realized from the sale of any unclaimed or unoccupied tracts of this town-site should be turned in to the treasury of Boise City. If, then, the proceeds realized from the sale of any unoccupied or unclaimed tract would go into the general treasury of the city and become the property of the city, we can see no reason why the tracts or parcels of land for which such sale might be made might not likewise belong to the city and become the property of the city. There can be no special virtue in a sale that will convert the title of the proceeds to the city if the property sold was in fact not the property of the city.\\nThis would bring us back to the original proposition that any unsold or unclaimed lots or parcels of land in this town-site belong to the city, \\u2014 to the inhabitants of the city in their collective capacity, \\u2014 and so would the proceeds realized from the sale of any of this property become the property of the city, and, in conformity with the statute, must be turned into the city treasury.\\nThe demurrer should not have been sustained. The complaint on its face does not show that the cause of action is barred, nor does it show such facts as in equity would invoke the doctrine of estoppel. The complaint states a cause of action. The demurrer should have been overruled and the defendant should have been required to answer. The judgment will be reversed and the cause is hereby remanded, with direction to overrule the demurrer and permit the defendant to answer. Costs awarded in favor of appellant.\\nStewart, J., concurs.\"}"
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+"{\"id\": \"4490353\", \"name\": \"WILLIAM A. RICHARDS, Respondent, v. FRANCES L. RICHARDS, Appellant\", \"name_abbreviation\": \"Richards v. Richards\", \"decision_date\": \"1913-05-14\", \"docket_number\": \"\", \"first_page\": \"87\", \"last_page\": \"94\", \"citations\": \"24 Idaho 87\", \"volume\": \"24\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:20:35.985327+00:00\", \"provenance\": \"CAP\", \"judges\": \"Stewart, J., concurs.\", \"parties\": \"WILLIAM A. RICHARDS, Respondent, v. FRANCES L. RICHARDS, Appellant.\", \"head_matter\": \"(May 14, 1913.)\\nWILLIAM A. RICHARDS, Respondent, v. FRANCES L. RICHARDS, Appellant.\\n[132 Pac. 576.]\\nMotion to Vacate Judgment \\u2014 Appealable Order \\u2014 Motion eor Continuance Reviewable upon Appeal prom: Judgment \\u2014 Granting Continuance in Discretion op Court.\\n1. Under the provisions of see. 4198 of the Rev. Codes of this state, \\u201cAll pleadings filed in the district courts or supreme court of this state shall be signed by a resident attorney of the state, who shall state his residence or postoffiee address,\\u201d etc.\\n2. A motion for continuance is reviewable upoh appeal from the judgment.\\n3. A motion for continuance is addressed to the sound legal discretion of the court, and unless there is a clear abuse of that discretion, the order made will not be disturbed on appeal.\\n4. Where a motion was made for a continuance and was denied, and no appeal was taken from the final judgment in the case, a court should not' thereafter grant a motion made to vacate and set aside the judgment where the motion is based upon the same grounds and facts set forth in the motion for continuance and where such motion is made after the time for appeal from the judgment has expired.\\n5. Where there is no abuse of discretion on the part of the trial court in denying a continuance upon the showing made, there can be no abuse of discretion-in subsequently denying a motion to vacate the judgment entered in the same case, where the motion to vacate is based upon the same showing and state of facts disclosed in the motion for continuance.\\n6. A motion to vacate and set aside a judgment under the provisions of see. 4229, Rev. Codes, is addressed to the sound legal discretion of the court, and when that discretion has been brought to bear upon all the facts presented in the motion and has been exercised in the light of the statutes bearing upon the questions encompassed by the motion, and there is nothing which makes it appear that such discretion has been arbitrarily exercised in disregard of the established rules of law and principles of justice, an appellat\\u00e9 court will not disturb the order and judgment of the court that was called upon to exercise the discretion.\\n7. Where a motion is made to set aside and vacate a decree of divorce, and it appears that at the time of the hearing on the motion one of the parties has remarried, the court will ordinarily require a stronger showing before vacating the judgment than he would require under other circumstances or in an ordinary case.\\nAPPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edw. A. Walters, Judge.\\nAction for divorce. Judgment for plaintiff. Defendant moved to vacate the judgment. Motion denied. Defendant appeals.\\nAffirmed.\\nRichards & Haga -and W. J. Lamme, for Appellant.\\nThis appeal in no way involves the question of the correctness of the refusal of a continuance on the showing then made. It is devoted solely to the question whether the trial court erred in denying the motion to vacate and set aside the judgment on the ground of inadvertence and surprise on the showing made on the latter motion. It necessarily involves a careful examination of the record, and cannot be considered by this court on motion to dismiss. (Hibernia Sav. & Loan Soc. v. Cochran, 134 Cal. 19, 66 Pac. 732; Beebe v. Cuinault, 29 La. Ann. 795; 4 Eney. L. & P. 273; Corder v. Speahe, 37 Or. 105, 51 Pac. 647; Davis\\u2019 Estate, 27 Mont. 235, 70 Pae. .721; Centerville etc. Ditch Co. v. Bachtold, 109 Cal. Ill, 41 Pac. 813; 2 Hayne, New Trial and Appeal, p. 1519.) The order denying the motion to set aside and vacate the judgment was certainly an appealable order. (Oliver v. KootenaA County, 13 Ida. 281, 90 Pae. 107; Shumahe v. Shumake, 17 Ida. 655, 107 Pac. 42; O\\u2019Donnell v. Murphy, 10 Cal. App. 1, 100 Pac. 1071; Hill v. Chicago & Evanston By. Co., 129 U. S. 170, 9 Sup. Ct. 269, 32 L. ed. 651; Hasson\\u2019s Estate, 135 Cal. 1, 66 Pac. 871.)\\nThe granting or refusal to grant a motion for a new trial undoubtedly rests in the sound, legal discretion of the court. But the abuse of such discretion will be reviewed and corrected on appeal. (Thum v. Dyke, 6 Ida. 359, 55 Pae. 864.)\\n\\u201cBy reason of the public interest in a divorce case the court should be especially inclined to set aside a default.\\u201d (2 Bishop, Marriage, Divorce and Separation, p. 277, sec. 669; McBlain v. McBlaAn, 77 Cal. 507, 20 Pae. 61; 2 Nelson on Divorce and Separation, 733-735, 775.)\\nIn all doubtful cases the general rule of the courts is to incline toward granting relief from the default, and to bring about a judgment on the merits. (Cutler v. Haycock, 32 Utah, 362, 90 Pac. 897; Utah Commercial Bank v. Trumbo, 17 Utah, 207, 53 Pac. 1033.)\\nEL A. Baker and Sullivan & Sullivan, for Respondent.\\nAfter final judgment was entered, if appellant desired to have reviewed the matters and issues raised on the hearing of the motion for continuance, her remedy was an application for a new trial or an appeal from the final judgment, and she cannot now raise the same questions upon an appeal from the order denying her motion to vacate and set aside the judgment. (Sees. 4800, 4832, Rev. Codes; Home for Care of Inebriates v. Kaplan, 84 Cal. 486, 24 Pac. 119; Worth v. Emerson, 3 Cal. App. 158, 85 Pae. 664; 2 Hayne, New Trial and Appeal, sec. 199; Reid v. Fillmore, 12 Wyo. 72, 73 Pac. 849.)\\nIt is well settled that an order denying an application for continuance should be reviewed on an appeal from the final judgment. (Reynolds v. Corbus, 7 Ida. 481, 63 Pac. 884; Rankin v. Caldwell, 15 Ida. 625, 99 Pac. 108; Storer v. Heitfeld, 17 Ida. 120, 105 Pac. 55; Miller v. Brown, 18 Ida. 200, 109 Pac. 139; Walsh v. Winston Bros. Co., 18 Ida. 772, 111 Pac. 1090 ; 2 Hayne, New Trial and Appeal, p. 999.) This court has repeatedly held that the granting or denying of motions of this character is within the sound discretion of the trial court, and unless an abuse of this discretion has been plainly shown, the order of the trial court will not be interfered with. (Citing authorities given in opinion of the court; Busy v. Prudom, 95 Cal. 646, 30 Pae. 798; 23 Cyc. 937, 938.)\\n\\u201cA marriage of the prevailing party in a divorce suit does not preclude relief to the other party by vacating the decree in a proper ease, although there is well-justified reluctance to annul such decrees, and it should be done only after the most careful consideration.\\u201d (14 Cyc. 719; Webster v. Webster, 54 Iowa, 153, .6 N. W. 170; Wortman v. Wortman, 17 Abb. Pr. (N. Y.) 66; Whittley v. Whittley, 60 Misc. Rep. 201, 111 N. Y. Supp. 1078; Edson v. Edson, 108 Mass. 591, 11 Am. Rep. 393; Whittaker v. Whittaker, 151 111. 266, 37 N. E. 1017; Bay v. Nottingham, 160 Ind. 408, 66 N. E. 998; Scripture v. Scripture, 70 Hun (N. Y.), 432, 24 N. Y. Supp. 301; Lawrence v. Lawrence, 73 111. 577.)\", \"word_count\": \"2862\", \"char_count\": \"15984\", \"text\": \"AILSHIE, C. J.\\nThis is an appeal from an order refusing to vacate and set aside a judgment. The action was for divorce. Plaintiff resides in Blaine county, Idaho, and defendant resides in Salt Lake City, Utah. Complaint was filed August 2, 1911. Summons was served and the defendant made general appearance by demurrer filed October 10th. Demurrer was thereafter overruled and answer and cross-complaint were filed November 13, 1911.\\nDefendant denied the material allegations of the complaint, and in a cross-complaint alleged her desertion by the plaintiff and prayed for a decree of divorce from plaintiff and for certain property and attorneys' fees, etc. On the 14th of November the plaintiff's counsel filed a demurrer to the cross-complaint and also a motion for judgment on the pleadings. Up to this time defendant had been represented by the law firm of Evans & Evans, of Salt Lake City, and the pleadings filed in the case had been signed by them and no. attention had apparently been paid to the provisions of see. 4198 of the Rev. Codes of this state, which requires that \\\"all pleadings filed in the district courts or supreme court of this state shall be signed by a resident attorney of the state, who shall state his residence or postoffice address,\\\" etc. No question, however, was raised by plaintiff as to the failure of the pleadings on behalf of the defendant to be signed by a resident attorney. On November 15, 1911, it appears that Evans & Evans wrote to Hon. C. O. Stockslager, addressing their letter to Hailey, Idaho, requesting him to associate himself with them as counsel in the case. This letter was' forwarded from Hailey to Judge Stockslager at Twin Falls, and was by Mm turned over to A. M. Bowen, an attorney of Twin Falls. Mr. Bowen thereupon wrote to Evans & Evans that he was advised by his partner, Mr. Porter, that the ease could be set for trial at any time not later than. Saturday, November 25th, but that it would be impossible for his firm to represent them. Evans & Evans received this letter on the 24th,. and thereupon called W. J. Lamme, an attorney of Hailey, over the phone and engaged him to represent them. Mr. Lamme was entered as associate counsel on November 24th, and on the same day the case was set for trial the following day, November 25th, at 2 o'clock. Mr. Lamme thereupon notified Evans & Evans by wire, and it appears from their affidavits that they and the defendant found that, according to the train schedules they could not reach Hailey in time for the trial on Saturday, and they so notified Mr. Lamme. On the 25th, when the case was called, the defendant did not appear, neither did her attorneys, Evans & Evans, appear. Mr. Lamme filed a motion supported by his affidavit asking for a continuance, setting up the fact that he believed that the defendant had a meritorious ease and the nature and manner of his employment and his conversation with Evans & Evans over the telephone, and the fact that they had stated that it was impossible for either them or the defendant to reach Hailey in time for the trial. This application was resisted by counsel for the plaintiff, and it was shown that the plaintiff was present and had been present in attendance on the court ready for trial. The court denied the motion and heard the case, and rendered judgment in favor of the plaintiff, granting him a divorce. This decree, however, is merely a decree of divorce and makes no reference whatever to any property owned by either spouse or to any community property, and does not attempt to make any disposition whatever of any property rights. Thereafter and on April 29, 1912, the defendant, through her attorneys, Evans & Evans and W. J. Lamme, moved the court, under the provisions of sec. 4229, Rev. Codes, to vacate and set aside the judgment previously entered, and in support of the motion set ont the facts in their affidavits as hereinbefore detailed. This motion was resisted, and after a hearing the court denied the same, and this appeal has been prosecuted.\\nThe motion to vacate and set aside the judgment is made upon the same grounds and based upon the same facts set forth in the motion for a continuance. A motion for continuance is reviewable upon appeal from the judgment. (Sec. 4807, Rev. Codes; 1911 Sess. Laws, p. 367; Reynolds v. Corbus, 7 Ida. 481, 63 Pac. 884; Rankin v. Caldwell, 15 Ida. 625, 99 Pac. 108; Maple v. Williams, 15 Ida. 642, 98 Pac. 848; Storer u. Heitfeld, 17 Ida. 120, 105 Pac. 55; Miller v. Brown, 18 Ida. 200, 109 Pac. 139; Walsh v. Winston Bros., 18 Ida. 772, 111 Pac. 1090; Richardson v. Ruddy, 10 Ida. 151, 77 Pac. 972; Robertson v. Moore, 10 Ida. 115, 77 Pac. 218; Holt v. Gridley, 7 Ida. 416, 63 Pac. 188.) Where a motion was made for a continuance and was denied, and no appeal was taken from the final judgment subsequently entered, a court should not grant a motion made to vacate and set aside the judgment which is made on the same grounds and based upon the same facts contained in the motion for continuance where such motion is made after the time for appeal from the judgment has expired. In other words, if it was no abuse of discretion to deny the motion for continuance, then it could be no abuse of discretion to deny a motion to vacate and set aside the judgment where the motion was based upon substantially the same facts and circumstances set forth as a basis of the motion for continuance. (1 Black on Judgments, see. 304a; Bernhard v. Idaho Bank & Trust Co., 21 Ida. 598, 123 Pac. 481; United States v. Throckmorton, 98 U. S. 61, 25 L. ed. 93; Reed v. Cross, 116 Cal. 484, 48 Pac. 491.)\\nConsidering, however, appellant's motion to vacate the judgment as an independent motion, and upon the theory that the same facts wfere not covered by the motion for a continuance, we would still not be able to hold in this case that there was an abuse of the discretion vested in the trial court in denying the motion. A motion like this is addressed to the sound, legal discretion of the court, and when that discretion has been brought to bear upon all'the facts presented in the motion and has been exercised in the light of the statutes bearing upon the questions encompassed by the motion, and there is nothing which makes it appear that such discretion has been arbitrarily exercised in disregard of the established rules of law and principles of justice, an appellate court should not, and will not, disturb the order and judgment of the court that was called upon to exercise the discretion. (Baker v. Knott, 3 Ida. 700, 35 Pac. 172; Holland Bank v. Lieuallen, 6 Ida. 127, 53 Pac. 398; Thum v. Pyke, 6 Ida. 359, 55 Pac. 864; Pease v. County of Kootenai, 7 Ida. 731, 65 Pac. 432; Holzeman v. Henneberry, 11 Ida. 428, 83 Pac. 497; Western Loan & Sav. Co. v. Smith, 12 Ida. 94, 85 Pac. 1084; Vane v. Jones, 13 Ida. 21, 88 Pac. 1058; In re Pittock's Estate, 15 Ida. 47, 96 Pac. 212; Council Improvement Co. v. Draper, 16 Ida. 541, 102 Pac. 7; Culver v. Mt. Home Electric Co., 17 Ida. 669, 107 Pac. 65; Harr v. Kight, 18 Ida. 53, 108 Pac. 539; Morbeck v. Bradford-Kennedy Co., 19 Ida. 83, 113 Pac. 89; Hall v. Whittier, 20 Ida. 120, 116 Pac. 1031; Humphreys v. Idaho Gold Mines Development Co., 21 Ida. 127, 120 Pac. 823; Brooks v. Orchard Land Co., Ltd., 21 Ida. 212, 121 Pac. 101; Hamilton v. Hamilton, 21 Ida. 672, 123 Pac. 630.)\\nHere the appellant waited for nearly three months after making a general appearance in the case before employing anyone in this state or anyone convenient to the court to represent her. The court appears to have been in session for some time and was about to adjourn. Appellant must have known that the court was in session and that her case was likely to be set for trial at any time. (Dusy v. Prudom, 95 Cal. 646, 30 Pac. 798.) It appears that she also wanted a divorce, and was seeking the same kind of relief that the respondent was seeking. She, however, was seeking the settlement and adjudication of certain property rights which she alleged existed.\\nAnother thing which may have had some influence 'with the trial court is that it appeared by affidavit made by one of respondent's counsel that the respondent had remarried prior to the hearing on this motion in the district court. A court would ordinarily be justified in requiring a stronger showing before vacating the judgment in a ease where one of the'parties had remarried than he would in a case where the status of the parties remains unchanged. (14 Cyc. 719; 7 Ency. P. & P. 138.) The fact that plaintiff had moved the court for judgment on the pleadings was not sufficient to justify defendant in delaying attending court and looking after her case, for the reason that such a motion could not prevail or be entertained in a divorce suit. (Sec. 2661, Rev. Codes; Bell v. Bell, 15 Ida. 7, 96 Pac. 196.) The motion in this case was withdrawn before trial.\\nWe are of the opinion that the judgment in this case should be affirmed, and it is so ordered. This being a divorce case and the wife being the appellant, it is ordered that the costs of this appeal be paid by the respondent.\\nStewart, J., concurs.\\nSullivan, J., did not sit at the hearing of this ease.\"}"
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+"{\"id\": \"4505488\", \"name\": \"PACIFIC NORTHWEST PIPELINE CORPORATION, a corporation, Plaintiff-Respondent, v. Ewell J. WALLER and Nell R. Waller, husband and wife, Bankers Life Company of Des Moines, Iowa, a corporation, Defendants-Appellants\", \"name_abbreviation\": \"Pacific Northwest Pipeline Corp. v. Waller\", \"decision_date\": \"1958-06-04\", \"docket_number\": \"No. 8568\", \"first_page\": \"105\", \"last_page\": \"110\", \"citations\": \"80 Idaho 105\", \"volume\": \"80\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:30:00.016792+00:00\", \"provenance\": \"CAP\", \"judges\": \"PORTER, TAYLOR, SMITH and Mc-QUADE, JJ., concur.\", \"parties\": \"PACIFIC NORTHWEST PIPELINE CORPORATION, a corporation, Plaintiff-Respondent, v. Ewell J. WALLER and Nell R. Waller, husband and wife, Bankers Life Company of Des Moines, Iowa, a corporation, Defendants-Appellants.\", \"head_matter\": \"326 P.2d 388\\nPACIFIC NORTHWEST PIPELINE CORPORATION, a corporation, Plaintiff-Respondent, v. Ewell J. WALLER and Nell R. Waller, husband and wife, Bankers Life Company of Des Moines, Iowa, a corporation, Defendants-Appellants.\\nNo. 8568.\\nSupreme Court of Idaho.\\nJune 4, 1958.\\nElder, Elder, Cox & Mitchell, Coeur d\\u2019Alene, for appellants.\\nSidney E. Smith, Coeur d\\u2019Alene, for respondent.\", \"word_count\": \"1482\", \"char_count\": \"8965\", \"text\": \"KEETON, Chief Justice.\\nRespondent will be referred to as plaintiff and appellants as defendants.\\nPlaintiff sought in this action, commenced May 31, 1956, to secure by condemnation, a limited right of way and easement across land owned by defendants for the purpose of constructing a pipeline for the transmission of natural gas. Concurrently with the filing of the complaint and issuance of the summons, plaintiff served a notice upon defendants that on June 16th it would apply to the court for an order appointing three commissioners to assess defendants' damages.\\nHearing was had as noticed, evidence received, and the court found and decreed that plaintiff was clothed with the power to secure property by eminent domain; that the use of the land sought to- be taken was one authorized by law, and appointed commissioners under the procedure authorized by Sec. 7-717, I.C. to assess and determine the damages that defendants would sustain by reason of the condemnation and appropriation of the right of way and easement prayed for.\\nBoth parties appeared before the commissioners at the time and place fixed, introduced evidence, and the commissioners under date of July 16, 1956, determined the amount of damages defendants would sustain by reason of the taking, and filed their report with the district court clerk.\\nPlaintiff refused to pay the amount fixed by the commissioners, did not take possession of the land sought to be condemned, nor ask that the court grant immediate possession. Defendants then moved the court to enter judgment against plaintiff for the amount of damages determined by the commissioners. The trial court refused.\\nThe issue of damages was thereafter, over defendants' objection, set for trial before a jury, and tried in April, 1957, the only issue to be determined being the amount .of damages sustained. The jury returned a verdict for defendants in a lesser sum than the amount found by the commissioners. The court thereupon entered judgment and decree of condemnation and awarded damages in the amount determined by the jury, to bear interest at six percent from and after May 31, 1956.\\nIn specifications of error, defendants contend that the damages should be the amount fixed by the commissioners and not the amount determined by the jury, and submit the following question for decision:\\n\\\"Is a condemning party at liberty to voluntarily seek the appointment of commissioners to determine the award due a condemnee, and then obtain a jury trial on the same question without ever excepting or objecting to the commissioners' award when it has been duly filed?\\\"\\nSec. 7-717, I.C. provides:\\n\\\" that at any time after the commencement of proceedings in the district court, as provided for in this chapter, to condemn property, and upon ten days' notice to the adverse party, the district court or the judge thereof may appoint three disinterested persons, who shall be residents of the county in which the land is situated, as commissioners to assess and determine the damages that the defendant will sustain by reason of the condemnation and appropriation of the property described in the complaint,\\nThe commissioners so appointed having heard the evidence as to the damages sustained shall report in writing their proceedings. This was done in this case.\\nIf the condemnor offers to pay the amount found due (by the commissioners), and in case of defendant's refusal to receive the same, deposits the money with the clerk of the district court to abide the result of the action, the plaintiff may by decree of the court then enter upon and take possession and use, property mentioned in the complaint. Sec. 7-717, I.C.\\nUnless the condemnor elects to pay the money and take possession of the ground, it is not bound by the findings of the commissioners. The fixing of the damages by the commissioners is a summary proceeding to allow the condemnor, at his option, and under prescribed procedure,, to go into possession after the landowner has been fully safeguarded.\\nWhen the condemnor refuses to abide by the finding of the commissioners he does not secure possession of the land before the damages have been ultimately determined, and is entitled to have his remedy prosecuted in a district court proceeding before a jury as in a civil action.\\nAfter the commissioners have made an award, either party may refuse to be bound thereby and the remedy of a jury trial is common to both parties. Pyle v. Woods, 18 Idaho 674, 111 P. 746, 750, syl. 3 and 4; Sec. 7-717, I.C.\\nIf the condemnor refuses to be bound by the commissioners' findings, he may refuse to tender the money .or to deposit it with the clerk. . Both parties, or either, having refused to abide by the commissioners' determination, the cause may be set for trial, the same as any other civil action.\\nA specific exception or objection to- the commissioners' award by the condemnor is unnecessary. The condemnor objects by simply refusing to pay the money, and asking to have the issue tried before a jury. Under such circumstances the question of damages is for the jury's determination. 29 C.J.S. Eminent Domain \\u00a7 268, p. 1246. In Pyle v. Wood, supra, the court said:\\n\\\"After the assessment of damages by the commissioners the company was not obliged to pay the award if it was dissatisfied with the amount assessed, but might have gone before the court and jury and had the damages assessed in the usual way.\\\"\\nIn our opinion the procedure prescribed by Sec. 7-717 I.C. was followed in this case.\\nDefendants also challenge instructions Nos. 6 and 9 as erroneous; further, that the court refused to instruct the jury as to the proper dates to be considered.\\nThere is no merit to defendants' contention that the jury was not instructed as to the true date when the damages would accrue.\\nBy instruction No. 17, the court fixed the accrual date of the damages as of the date of the summons, that is, May 31, 1956. Other references in the instructions given also fixed this date.\\nBy instruction No. 8, the court correctly instructed the jury how to determine the value of the land actually taken, that is, its market value and in instruction No. 9, ele-ments to be considered in determining severance damages to the part not taken, and in the closing part of the instruction used the following language:\\n\\\"You are further instructed that you are not to undertake to compute, consider or make an award for any possible-future claims for damages which may or may not arise by virtue of any circumstance between defendant, his successors in interest, or employees or tenants, and the plaintiff, because the plaintiff would be liable in damages for any injuries caused by its negligence.\\\"\\nThe landowner is entitled to recover for damages which will accrue to the remainder of his land because of the severance, which would include future damages proved, if any. Such damages would not include future claims arising because of a negligent operation of the pipeline. No clarifying instruction was requested and other instructions fully covered the rules applicable to determine the value of the land taken and damage to the remainder because of the severance.\\nInstructions must be considered together as a whole, and where the instructions as a whole clearly state the law, no reversible error is committed. Tyson Creek R. Co. v. Empire Mill Co., 31 Idaho 580, 174 P. 1004.\\nDefendants' assignment of error No-. 3 is:.\\n\\\"The Court erred in allowing .into evidence a great deal of testimony-relative to the value and condition of appellants' lands on dates subsequent to the date of the complaint and summons.\\\"\\nThis assignment is too general to warrant any extensive discussion. It evidently refers to testimony received of damages subsequent to the date of the summons. The defendants first introduced evidence of damages subsequent to that date. Plaintiff introduced evidence in opposition thereto. Plaintiff did not take possession of the land until sometime subsequent to April 1957. A reading of the transcript discloses that there was no evidence received over objection that could have prejudiced defendants. In fact, the evidence objected to and admitted, was favorable to. them, and if erroneously received no harm was done.\\nWe have examined the record and contentions made and find no reversible error.\\nIn a condemnation suit, the condemnee is entitled to his costs. Independent School Dist. of Boise City v. Co. B. Lauch Const. Co., 74 Idaho 502, 264 P.2d 687, and cases therein cited.\\nJudgment is affirmed. Costs to appellants.\\nPORTER, TAYLOR, SMITH and Mc-QUADE, JJ., concur.\"}"
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+"{\"id\": \"4529727\", \"name\": \"CARL N. ANDERSON, Respondent, v. T. J. LLOYD, Appellant\", \"name_abbreviation\": \"Anderson v. Lloyd\", \"decision_date\": \"1943-05-22\", \"docket_number\": \"No. 7048\", \"first_page\": \"768\", \"last_page\": \"798\", \"citations\": \"64 Idaho 768\", \"volume\": \"64\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:44:43.990886+00:00\", \"provenance\": \"CAP\", \"judges\": \"Budge, J., and Buckner, D.J., concur.\", \"parties\": \"CARL N. ANDERSON, Respondent, v. T. J. LLOYD, Appellant.\", \"head_matter\": \"(No. 7048.\\nMay 22, 1943.)\\nCARL N. ANDERSON, Respondent, v. T. J. LLOYD, Appellant.\\n[139 Pac. (2d) 244.]\\nRehearing Denied July 13, 1943\\nChapman & Chapman, Parry & Thoman, and J. R. Keenan for appellant.\\nHarry Benoit and Harry Povey for respondents.\", \"word_count\": \"9044\", \"char_count\": \"53517\", \"text\": \"GIVENS, J.\\nIn 1921, E. E. Bascom, Joe Hull, and respondent each contributed $2,000 and formed a tri-party partnership, which purchased the bottling works, including a Coca Cola franchise, from Benoit & Sons, in Twin Falls. Later in the year appellant purchased Hull's interest. Bascom sold his share to appellant and respondent in 1929, repurchasing after a few months, and finally sold his share to respondent in 1936.\\nIn 1931 appellant and respondent, retaining their respective one-third and two-thirds interests therein, converted the partnership into two corporations \\u2014 to avoid partnership liability and to comply with the restrictions of the parent Coca Cola company prohibiting the sale of both fountain and bottled Coca Cola by one concern. Appellant acquiesced and participated in such transmutation and is in no position to upbraid respondent on account thereof, as he does.\\nIn December, 1938, respondent purchased appellant's stock for $25,000, paying part down, the balance to be paid in installments secured by pledge of the stock, with the privilege of substituting other security.\\nIn June, 1940, respondent sold the corporation for $200,- 000 to Tyrus Cobb of baseball fame and requested the certificates of stock, offering to pay the balance due or substitute therefor other commensurate security. Appellant, learning of the sale to Cobb, rescinded the contract and refused to deliver the stock on the ground he had been overreached and deceived by appellant in that his stock was worth $50,000 at the time of the sale, tendered the amount received by him to date, and offered to deliver the note covering the balance.\\nNeither side giving way and each rejecting the other's overtures, respondent, to resolve the resultant impasse, sued to enforce delivery of the stock, tendering payment in full or substitution of adequate security. Appellant countered with answer and cross-complaint, detailing respondent's duplicity thus:\\n\\\"That from 1929 respondent was the actual manager of the business and personally directed and' carried it on, was at all times thoroughly acquainted and familiar with all details and value thereof, its Coca Cola franchise, good will, and going concern value, inherent values, earning capacity, and all angles thereof.\\n\\\"That, on the other hand, appellant did not devote his-whole time and energy to said business, was not actually engaged in managing and operating the same, was not thoroughly acquainted and familiar with it and its value, as was respondent. That for many years prior to December, 1938, he was engaged in other businesses and occupations, part of the time as an employee of the United States, which required his absence from Twin Falls, and by reason thereof and other facts and circumstances was not acquainted with all the facts and circumstances which reflected the true value of the business, nor was he acquainted with the inherent value of the various franchises and rights possessed and owned by it, nor whether the books truly and accurately reflected the value thereof.\\n\\\"That prior to December, 1938, appellant had trusted and relied implicitly upon respondent in the conduct and management of the business and for all his knowledge as \\u2022 to the true value thereof, and by reason of said long partnership and business relationship there was a fiduciary relationship existing between appellant as minority stockholder and respondent as majority stockholder, who was sole manager.\\n\\\"Prior to December, 1938, respondent sought to induce appellant to sell his interest and made, on numerous and diverse occasions, many representations that appellant's one-third interest was worth considerably less than $25,000, repeatedly intimated and told appellant said business was beset with many troubles, was besieged with competition, and its Coca Cola franchise was no longer of any particular value. Appellant was reluctant and not anxious to sell his interest but relied implicitly and absolutely upon respondent's representations and statements as to the low value of his share, which representations were made for the purpose of inducing him to sell and were relied upon by him. That said representations were not true and correct; the value of his share was $50,000 or more, as was known to respondent, and appellant was greatly damaged by such representations.\\n\\\"That at the time of accepting the stock in the reorganized corporation in 1939 appellant was still ignorant of the value of his interest.\\\"\\nRespondent denied these allegations and interposed as affirmative defenses thereto:\\n\\\"That during the partnership appellant was acquainted and familiar with the business, its books, assets, amount of business, and was just as familiar with the value thereof as respondent, and had access to and examined the books of the partnership.\\n\\\"That appellant was elected a director of each of the two corporations and was president until March, 1938, when he become vice president, continuing so until he sold his stock.\\n\\\"That between November, 1931, and December 5, 1938, appellant attended all stockholders' and directors' meetings, was entirely familiar and acquainted with the business operations and assets of said corporation, value of the stock, books, and had access to the latter, and received statements during all said times of the business.\\\"\\nThe court, without a jury, entered judgment in favor of respondent, Avith consequent appeal herein.\\nThe pertinent findings are:\\n\\\"That between November, 1931, and December 5, 1938, when appellant sold his stock, he attended stockholders' and directors' meetings of said corporations, and was familiar with the books and the value of the stock thereof.\\n\\\"That August 30, 1938, respondent and appellant discussed the sale of the stock and at no time did respondent knowingly and/or fraudulently make any false representations to appellant as to any material facts or material future intentions, did not fail to disclose any facts concerning the value of the stock of which he had personal knowledge; that appellant knew as much about the value of the stock at the time of the sale as respondent; that appellant did not rely upon any representations made by respondent but relied upon his own knowledge and judgment as to the value of the stock; that $25,000 was not. below the fair and reasonable market value of the stock at the time of the sale; that a strained relationship and coolness had arisen between respondent and appellant not later than the March, 1938, annual meeting of the stockholders and directors ; that appellant is and was at all times a man of business experience, and there existed no financial exigencies or other coercive circumstances to induce him to sell his stock, and he was not induced by respondent to sell his stock but was in fact the moving party in bringing about the sale.\\\"\\nThe trial court concluded:\\n\\\"8. That as a matter of law the plaintiff did not knowingly or fraudulently make any false misrepresentations to the defendant, and did not fail to disclose any fact concerning the value of said stock, of which he had per1 sonal knowledge and did not induce the defendant to sell to him said stock and that the defendant was charged with knowledge of the value of the said stock.\\\"\\nAppellant's first group of assignments of error challenges the findings as insufficient and too vague to support the judgment. The ultimate and controlling questions of fact were whether any actionable misrepresentations had been made or concealment practiced whereby respondent was induced to sell the stock for less than its true value.\\nWhile the findings did not enumerate the asserted misrepresentations exactly as narrated in appellant's pleadings, they substantially disposed of the issues as definitely as they were set forth therein. The court has held on numerous occasions that\\n\\\"A failure to make specific findings on certain allegations contained in defendant's further and separate answer to the plaintiff's complaint is not reversible error, for the reason that the findings that were made by the court are inconsistent with the truth of those allegations of defen dant's answer, and the court has therefore found against defendant on such issues.\\n\\\" 'The findings made disposed of the merits of the case, and. are inconsistent with the defendant's case, and in effect are against the defendant on the issue tendered by the answer. The defense urged in this case is wholly inconsistent with the finding of the court . . . The rule, as we understand it, is that, where the findings of the court upon the affirmative case are necessarily a complete negative of the case as plead by the answer, such findings are sufficient.' \\\" (Matthews v. Coate, 17 Ida. 624, at 629-30, 106 P. 990.)\\n(Mine and Smelter Supply Co. v. Idaho Consolidated Mines Co., 20 Ida. 300, 118 P. 301; Stewart v. Stewart, 32 Ida. 180, at 183-4, 180 P. 165.)\\nFindings of fact must be liberally construed. (Fouch v. Bates, 18 Ida. 374, 110 P. 265; Marysville Development Company v. Hargis, 41 Ida. 257, 239 P. 522; Fairbairn v. Keith, 47 Ida. 507, 276 P. 966; Cleveland v. Mochel, 48 Ida. 37, 279 P. 410; First Security Bank v. Zaring Farm & Livestock Co., 51 Ida. 700, 10 P. (2d) 303; Gem State Lbr. Co. v. Galion Irr. Land Co., 55 Ida. 314, 41 P. (2d) 620.)\\nFurthermore, since no more specific findings were requested, no reversible error is presented. (Gould v. Hill, 43 Ida. 93, at 110, 251 P. 167; Reid v. Keator, 55 Ida. 172, at 183, 39 P. (2d) 926; Mitchell v. Munn Warehouse Co., 59 Ida. 661, at 674, 86 P. (2d) 174.)\\nA case which might be considered strongly in appellant's favor held that an officer buying stock from a minority stockholder was required only to \\\"acquaint her with all material facts bearing on the transaction.\\\" This, the court herein found, respondent did. (Hotchkiss v. Fischer, 136 Kan 530, 16 P. (2d) 531.)\\nWhether, after the creation of the corporations, the partnership relation, imposing on respondent the duties of a fiduciary as to disclosures, continued was an issue of fact to be determined from all the facts and circumstances. (Miller v. Mitcham, 21 Ida. 741, 123 P. 141; Bussell v. Barry, 61 Ida. 216, 102 P. (2d) 276; Commercial Security Co. v. Modesto Drug Co., 43 Cal. App. 162, 184 P. 964; Scott v. Prescott, 69 Mont. 540, 223 P. 490; Sun River Stock & Land Co. v. Montana Trust & Savings Bank, 81 Mont. 222, 262 P. 1039; In re Russell's Estate, 102 Mont. 301, 59 P. (2d) 777.)\\nWhile appellant repeatedly reiterated his trust and confidence in respondent and that he relied solely on his judgment as to the value of the stock, there is evidence to the effect that between the time the sale was first actively broached in August and its consummation in December, 1938, appellant consulted with someone in San Francisco as to the value of the Coca Cola franchise and business and upon his return demanded $25,000 instead of $20,000, which respondent thought had been agreed upon. Furthermore, as to the physical assets, appellant received from an auditor employed by him in 1937 the following statement:\\n\\\"Mr. T. J. Lloyd\\n\\\"In compiling the audit requested and enclosed I did not attempt to go into the matter of gross sales and current expense of operation as to do so would take lengthy time and I carefully recorded the items of which I thought that you would be interested in and I find no item of expenditure which looks out of place to me.\\n\\\"There will appear in the January statement that is brought to the annual meeting of the directors of the corporation a complete detailed description of gross sales and gross expense incurred in making said sales for income tax purposes. Mr. Anderson informs me that he has and will cooperate with you in all ways and you are at liberty to personally or by agent to inspect his records at any time and it is his wish that you attend all meetings of the board of directors when called and especially the annual meeting on the second Monday of January,-1938.\\n\\\"Respectfully submitted this 7th day of December, 1937.\\nR. M. Cunningham.\\n\\\"THE FOLLOWING IS A REPORT OF AN AUDIT OF THE CAPITAL INVESTMENT LABOR, AND SOME ITEMS OF EXPENSE OF THE TWIN FALLS COCA COLA BOTTLING WORKS AND THE SUBSIDIARY WESTERN SALES COMPANY, HANDLING THE BEER SALES FOR THE ABOVE CORPORATION OF TWIN FALLS, IDAHO AS OF DECEMBER 1st, 1937. COMBINING TWIN FALLS, BURLEY, & SHOSHONE PLANTS.\\nAt the request of the president of the corporation Mr. T. J. Lloyd of Twin Falls, Idaho.\\n\\\"Land at beginning of organization and still holding:\\n\\\"Larger items of expense noted: Labor to July 1st, 1937 total reported $6648.53 of which 32 employees were reported and Carl N. Anderson received $200.00 per month and Kernell Anderson rated $30.00 weekly July 1st to Sept. 30. 51 employees drew $9848.41 of which Carl N. Anderson received $250.00 monthly and Kernell Anderson received $30.00 weekly. Also spent for current items $5258.73 for bottle replacement and $933.41 for syphon bottles for service.\\n\\\"One meeting of the board of directors was held May 13th, 1937. President T. J. Lloyd absent, Carl N. Anderson, Sec.Treasurer, and manager (present) and Kernell Anderson Vice President (present) one item of business voted on raising manager Carl N. Anderson from $200.00 to $250.00 monthly as salary and Western Sales Co. a subsidiary to pay $150.00 monthly to Carl N. Anderson as salary same does not appear in reports available to federal or state old age benefit compensation. No dividends were voted in meeting and meeting adjourned at 8:30 P. M. May 13th 1937.\\n\\\"I, R. M. Cunningham of Twin Falls, Idaho, certify that the above is a true and correct statement taken from the books and records of the above mentioned corporation dated this 7th day of December 1937.\\nR. M. Cunningham Accountant and Manager of Security Audit Company of Twin Falls, Idaho.\\\"\\nAlso, prior to the sale appellant had a statement of the business prepared by Mr. Gwin, the regular bookkeeper of the corporation, which is self-explanatory.\\n\\\"Profit and Loss Statement 1937\\nTWIN FALLS COCA-COLA BOTTLING CO. AND WESTERN SALES, INC.\\n\\\"PROFIT AND LOSS STATEMENT 1937\\nTWIN FALLS COCA COLA BOTTLING CO. AND WESTERN SALES, INC. EXPENSE\\n- \\\"BALANCE SHEET December 31st, 1937\\nTWIN FALLS COCA-COLA BOTTLING CO. & WESTERN SALES INC.\\nWhile appellant criticizes the bookkeeping and asserts the books did not sufficiently disclose the actual condition of the business, particularly that the franchise was not carried thereon, he knew all the time the company owned the franchise and that it was not so carried. Mr. Gwin, prior to the time he became bookkeeper for the companies, had for years been a bookkeeper in the bank of which appellant was a director, had occasionally performed work for appellant, and no complaint was made of his bookkeeping at the time appellant was a director and officer. At the trial two auditors, one employed by appellant and one by respondent, introduced audits and resumes made by them and were examined and cross-examined at length, and, while they do not agree in all particulars, the trial court was justified in concluding, as he did in effect, that the books were not deceivingly deficient or that they had been kept in such a way as to mislead appellant or anyone else.\\nAppellant contends he employed Cunningham in 1937 merely to secure information for his attorney (Mr. Wolfe) in connection with the consolidation of the two corporations. Respondent testified such reorganization was not even hinted at at that time, nor until 1939 after appellant had sold his stock. The employment of Cunningham, therefore, was a circumstance which the trial court might well have considered as indicating appellant did not have complete confidence in respondent's management of the business and was not then relying upon him as a fiduciary partner. Furthermore, there is testimony by both respondent and Mr. Gwin that appellant prior to 1938 was dissatisfied with the way the business was run, particularly as to expenses, and on one occasion was extremely angry over the failure of the business to return dividends, and was disappointed in the showing reflected in the statements submitted by Mr. Gwin, and they are not discredited.\\nAnent returns from the business, appellant received $1,000 in dividends during seven years of the total time he was interested in the concern, and $5,000 as a special dividend in 1933 (which the other stockholders also received) . He paid only $2,000 for his share initially and thus received in all $31,000 in seventeen years on a $2,000 investment.\\nIf respondent concealed no information he possessed and should have imparted, and made no false representations which induced the sale, and his conduct measured up to that required of a fiduciary, recission is not required. The asserted over-reaching revolves around the value of the so-called unlimited Coca Cola franchise and the beer agencies. The value arrived at from various estimates and criteria detailed by respective witnesses for appellant and respondent engaged in the Coca Cola and beer business throughout Idaho and adjoining states, fixed the value of the entire business at the time of the sale in 1938 all the way from $70,000 to $263,000.\\nAppellant testified respondent painted to him a most discouraging and gloomy picture of the business and its future and that respondent was the aggressive factor in bringing about the sale. There is ample evidence, however, to justify the trial court in finding appellant was anxious to sell. (Lyon v. Carey, 111 Kan. 470, 206 P. 1109.) Mr. Gwin, the bookkeeper of the company, gave the increase in the bottling of Coca Cola in detail for 1936, 1937, and 1938, and it is not an unfair inference from the record that respondent knew of this increase.\\n\\\"Q. Now could you for 1938, Mr. Gwin, give us in dollars and cents the gross proceeds from the jobbing division of the business ?\\n\\\"A. $306,603.66.\\n\\\"Q. Now what about the manufacturing sales for 1938?\\n\\\"A. They were $91,543.46.\\n\\\"Q. Now then can you give the jobbing and manufacturing figures for 1937, Mr. Gwin?\\n\\\"A. Jobbing was $333,560.71.\\n\\\"Q. Now then what was the manufacturing sales?\\n\\\"A. $72,031.21.\\n\\\"Q. Now then, for 1936 can you give us those figures ?\\n\\\"A. The jobbing sales was $308,412.33.\\n\\\"Q. And now the manufacturing?\\n\\\"A. $35,969.08.\\\"\\nAppellant, until 1933, was conducting confectionery businesses in the same sales area, namely, the nine south central counties of Idaho. His place of business was only half a block from the bottling works, and respondent testified he had numerous talks and conferences with him. While appellant had been a most successful businessman, respondent, until lie purchased into the partnership in 1921, had been a mail carrier without previous business experience of any kind.\\nThree other Coca Cola concerns, one in Lewiston, one in Coeur d'Alene, and one in Yakima, Washington, were sold during the same pertinent period. The trial court was justified in considering thereby and therefrom that the owners who sold the same thought the future of such businesses was no brighter than respondent did. No market value for appellant's stock was shown, nor that he .could have sold it for any amount to anyone except respondent.\\nAppellant urges that, in addition to the increase in the Coca Cola business, the sale of the entire business 18 months after respondent had purchased appellant's one-third interest therein, proves respondent was dishonest and insincere in his discouraging prognostications. The increase in the Coca Cola business up to the time appellant sold to respondent was known by appellant or the information was as readily accessible to him as respondent. While the subsequent sale was perhaps a circumstance to be considered, because of the time elapsed and changed conditions it does not of itself so prove respondent knew he was wrong in his portents or was not making honest disclosures as to what he considered appellant's stock was worth in 1939 as to demand reversal. (Smith v. Johnson, 47 Ida. 468, 276 P. 320.) Mr. Cobb purchased this particular company, not a minority interest therein, in order to set his son, Hershel Cobb, the real owner, up in business, for what evidently appeared to him to be sufficient reasons, which reasons might not have actuated anyone else; at least, no one else offered to buy at the price he paid. Also, in the interim, the company had made some improvements, changed its location, and, due apparently to the national advertising of the parent Coca Cola company and the low per capita consumption of Coca Cola in the northwest, the Coca Cola business made rapid strides. By fortuitous events which it is not shown respondent foresaw, nor had any appreciable control over, the advance in the value of the business does not necessarily portray the true picture in 1938 when the stock was sold, and, as stated in Du Pont v. Du Pont, 256 Fed. 129, at 186, if conditions had taken a different turn, there would have been a different retrospective outlook.\\nAppellant's main point is that there was at least a confidential relationship between him and respondent whereby respondent was under the duty of making full and truthful disclosure of everything he' knew about the business and its value. Conceding that there was a confidential relationship, if respondent concealed no material facts which he knew and made no erroneous or false statements, no recovery against him is justified. The following covers all of the alleged misrepresentations or concealments:\\nThat Anderson, concerning the development of the Coca Cola franchise, said it had reached its peak; that he enumerated the brands generally considered competitive to Coca Cola and said the competition would be more keen and more extreme than it had been in the past; regarding the value, that there would perhaps be no further increase in the soda water business in 1938, however, he did not expect that there would be any decrease; that he was afraid of competition from other cola drinks. Edwin Lloyd testified to the same effect.\\nBespondent denied stating that Coca Cola had reached its peak, that there would perhaps be no increase in Coca Cola from thereon, or that he was afraid of competition from other drinks.\\nThe statements as to the Coca Cola business having reached its peak and that competition would be more keen and more extreme were mere statements of opinion.\\nAppellant further testified that respondent told him he was definitely going out of the beer business, that there was no longer any profit in handling beer, that the beer business was so encumbered by regulations that it was hard to handle, and that it cost so much to procure the patronage, that he had complained before about the margin of profit being so small and the competition -becoming more keen and that he thought it would be wise for the company to discontinue the beer business. Respondent testified if there was anything said about beer, he was sure he said it was a losing business, and that he had told him before he thought it would be better to discontinue it. Mr. Lloyd further testified that he has made discovery that this was one of the best beer agencies in the state, and that he also discovered that in 1933, 1934, and 1935 there was much more profit made on beer than there was in 1937 and 1938.\\nWhile appellant's witness Mitchell testified that the value of a beer business having the gross sales this company had would be at least $27,000 or $28,000, and the witness Martin testified the value of the business would be 10% of 90% of the gross sales, or $27,000, at page 91 of plaintiff's exhibit \\\"EE\\\", the following is shown:\\nApparently, therefore, the only statement regarding beer which respondent may have made which was not true was that he was going to discontinue handling it. A small profit is disclosed for 1934, and losses were suffered in the years 1935 and 1936, as well as 1938 and 1939. That he was going out of the beer business was a declaration of future policy and not a false representation.\\nAppellant testified respondent stated the business wasn't worth $15,000 but that he would give that for appellant's one-third interest; and Edwin Lloyd testified respondent said the business was not worth $20,000. Respondent testified : \\\"then I asked him what he wanted for it and he says: 'Well I thought it was worth twenty-thousand dollars.' \\\", and that appellant had, while in San Francisco, \\\"contacted the members of this board and this man stated to him that he had investigated Coca Cola stock on the coast and franchises and that he told him if he was to sell he should have twenty-five-thousand dollars for his one-third and then he turned to me and said: 'Well, I can't sell for less than twenty-five thousand dollars.' I told him I would give him the twenty-five thousand, after sitting and thinking it over a little bit.\\\"\\nWitnesses placed the total value of the business at from $70,000 to $263,000, respondent's witnesses testifying the value was $70,000 and $77,000. Appellant argues these valuations are too low because the hypothetical questions put to the witnesses omitted the following items:\\nThe profit and loss statement for 1937, a copy of which was given Mr. Lloyd, contained the following:\\nWith the exception of the item \\\"Inventory short $6,000.00\\\" the items in the two lists are very nearly the same in amount. Appellant, therefore, at the time of the sale, was aware of the value of the real estate and buildings owned, the amount, of the accounts and notes receivable and payable, and the amount of cash on hand (although defen dant's exhibit 32 reveals that on December 31, 1938, only 26 days after the sale, there was no cash on hand, the bank account being overdrawn $232.59).\\nThe 1937 profit and loss statement contains the item \\\"Inventories of merchandise \\u2014 $14,225.62.\\\" The hypothetical questions put to Harper, Bogard, Simmons, and Chaffee contained the following items:\\nThis amount is approximately $6,000 less than the inventory of merchandise contained in the 1937 profit and loss statement, and apparently this is the item \\\"Inventory short $6,000.00\\\" referred to by appellant in his list of items omitted. The hypothetical question upon which Hershel Cobb placed his valuation of $75,000 contained the following items of merchandise:\\nSince the amount of the debts practically cancels the amount of the accounts and notes receivable, the only items omitted from the question put to Cobb are, cash average $3,173.13, real estate $4,800.00, and buildings $2,487.65, all of which items were contained in the 1937 profit \\u00e1nd loss statement.\\nThus, the only showing that the business was worth more than $75,000 is the fact that it was resold eighteen months later for $200,000. Such increase was not a conclusive showing that Anderson either made false statements or refrained from disclosing correct information. As indicated above, at the most is was only a circumstance for the trial court to take into consideration. This court has no right to substitute its judgment as to what the facts show when there is a conflict.\\nThe testimony of experts has been held to be merely advisory and not binding upon the court. Even though the so-called experts did not take into consideration certain claimed items of value, they were cross-examined relative thereto, their failure to so take them into consideration was before the court, the evidence in regard thereto was fully covered on direct and cross-examination, and appellant had received the statements which contained the items claimed to have been omitted. Thus, there was no concealment with regard to them or their effect upon the value of the business at the time he sold his interest therein, and all the circumstances surrounding the effect of such items on the value of the business were before the trial court, and it was merely for him to determine therefrom, and from the other evidence, the value of the stock.\\nThe evidence is voluminous, at least three-fourths of it having to do with the disputed value of the Coca Cola franchise both in fact and theory. We have carefully read the transcript and examined the limited number of exhibits which counsel by stipulation have agreed are the important ones and brought before us, segregated from the \\\"truckload\\\" before the trial court. The evidence is conflicting, and justification for many different conclusions could be found. The trial court saw and heard the witnesses and chose to give credence to respondent's presentation, and we are justified in saying there is sufficient, competent evidence to sustain his findings and conclusions that appellant was not entitled to rescission. (McDermott v. O'Neil, 200 Wis. 423, 228 N. W. 481; Schuur v. Berry, 285 Mich. 654, 281 N. W. 393.)\\nTherefore, under the well known rule, the judgment is affirmed. Costs awarded to respondent.\\nBudge, J., and Buckner, D.J., concur.\"}"
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+"{\"id\": \"4558062\", \"name\": \"PETTY v. PETTY et al.\", \"name_abbreviation\": \"Petty v. Petty\", \"decision_date\": \"1950-09-29\", \"docket_number\": \"No. 7660\", \"first_page\": \"473\", \"last_page\": \"480\", \"citations\": \"70 Idaho 473\", \"volume\": \"70\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:41:20.432234+00:00\", \"provenance\": \"CAP\", \"judges\": \"GIVENS, C. J., TAYLOR and KEE-TON, JJ., and KOELSCH, District Judge, concur.\", \"parties\": \"PETTY v. PETTY et al.\", \"head_matter\": \"223 P.2d 158\\nPETTY v. PETTY et al.\\nNo. 7660.\\nSupreme Court of Idaho.\\nSept. 29, 1950.\\nRehearing Denied Oct. 31,1950.\\nWalter H. Anderson, Pocatello, for appellants.\\nZener & Peterson, Pocatello, for respondent.\", \"word_count\": \"1948\", \"char_count\": \"11620\", \"text\": \"PORTER, Justice.\\nRespondent is the minor daughter of one Follis Gardner Petty and Mary Marguerite Ford Petty. Appellant, Iva Petty, is the legal wife of Follis Gardner Petty. On May 25, 1944, an action, No. 13362, was commenced in Bannock County by respondent entitled \\\"Faith Geneal Petty, A Minor, by and through her Guardian Ad Litem, Mary Marguerite Ford Petty, plaintiff, v. Follis Gardner Petty and Iva Petty, his wife; W.S. Jacobson, and Phoebe Jacobson, his wife; Delbert Hansen and Lorena Hansen, his wife; and Idaho Bank and Trust Company, a corporation; and the First Security Bank of Idaho, a corporation, Defendants.\\\" By such action, respondent sought to recover for support and maintenance against Follis Gardner Petty and to restrain .the defendants from transferring or concealing any property belonging to him. A demurrer on the ground of misjoinder was sustained as to all defendants except Follis Gardner Petty. No formal judgment of dismissal appears, but the action was thereafter prosecuted and judgment entered only against Follis Gardner Petty. Judgment was entered in such action on December 13, 1944, in favor of respondent for the sum of $1,146.72 and for the sum of $50 per month thereafter commencing on the second day of January, 1945, for future support and maintenance.\\nA companion action, No. 13361, was likewise instituted and prosecuted by Leslie Gardner Petty, a minor son of Follis Gardner Petty and Mary Marguerite Ford Petty.\\nIn November, 1944, appellant, Iva Petty, brought an action in Bannock County, No. 13534, against the respondent and others to quiet title to Lots 15 and 16 in Block 532 of the City of Pocatello. After an appeal to this court, Petty v. Petty, 66 Idaho 717, 168 P.2d 818, 164 A.L.R. 520, a judgment was entered that the lien of the above descibed judgment of respondent against Follis Gardner Petty was prior and paramount to the claim or interests of Iva Petty in and to such property.\\nOn July 10, 1947, by virtue of an execution showing the sum of $2,345.72 due on respondent's judgment, the sheriff of Bannock County levied upon the described real estate and thereafter duly sold the same on August 4, 1947, to respondent in satisfaction of the amount due on said judgment. On the same day, the sheriff duly issued to respondent a certificate of sale for such property, wherein the purchaser is named as \\\"Faith Geneal Petty, by and through her Guardian Ad Litem, Mary Marguerite Ford Petty.\\\" No redemption having been made from such sale, the sheriff of Bannock County, on August 5, 1948, issued a sheriff's deed for such property in which the grantee is named as \\\"Mary Marguerite Ford Petty, Guardian Ad Litem for Faith Geneal Petty.\\\"\\nOn September 7, 1948, respondent brought this action in Bannock County to recover the possession of the real estate in question and for an accounting. The defendants, Iva Petty, D. D. Hansen and Lorena T. Hansen filed answer consisting of a general denial, affirmative allegations of payment, and a plea in abatement on the ground of another action pending. The answer describes the above mentioned cases Nos. 13361 and 13362 as the other actions pending. The cause was tried to the court sitting without a jury and resulted in a judgment requiring said defendants to vacate such property and surrender the possession of the same to respondent. Thereafter, motion for a new trial was made by appellants upon all the statutory grounds. This appeal is from the order of the court overruling the motion for new trial.\\nThe main burden of appellants' contention on this appeal is, (a) that the holder of a sheriff's certificate of sale is not entitled to possession until the receipt of sheriff's deed; and, (b) that in the instant case, the sheriff's deed does not run to respondent but is to Mary Marguerite Ford Petty individually, the words, \\\"Guardian Ad Litem for Faith Geneal Petty,\\\" being merely descriptio personae.\\nAppellants' contention that the holder of a sheriff's certificate of sale is not entitled to possession until he has received the sheriff's deed appears to be supported by the authorities. Vandalia R. Co. v. Topping, 62 Ind.App. 657, 113 N.E. 421; Pike v. Halpin, 188 Mich. 447, 154 N.W. 148; 23 C.J. 775-781; 33 C.J.S. Executions, \\u00a7 309, p. 603. In Cantwell v. McPherson, 3 Idaho 721 at 726, 34 P. 1095 at 1097, this court stated: \\\"The purchaser of real estate at sheriff's sale is not entitled to possession thereof until the time -for redemption has expired, and a sheriff's deed executed therefor.\\\" See also, Eastern Idaho Loan & Trust Co. v. Blomberg, 62 Idaho 497, 113 P.2d 406.\\nAppellants cite numerous cases which they urge uphold their contention that the words in the sheriff's deed following the name of Mary Marguerite Ford Petty are to be treated as merely descriptio personae. The rules to be followed in determining whether or not words following the name of a grantee are to be considered as descriptio personae, are stated in 26 C.J.S., Deeds, \\u00a7 99 f, pp. 355-356, as follows :\\n\\\"Words designating the representative or official character of the grantee may be, but are not necessarily, merely descriptio personae.\\n\\\"Words designating the representative or official capacity of the grantee may be oniy descriptio personae and will be construed accordingly, unless it can be inferred to the contrary from the instrument, especially where there is an absence of all proof tending to show the existence of a trust estate, and there is none created by the deed. Such words may not, however, be descriptive merely, and the grantee may take the title, not in his individual capacity, but in the capacity designated.\\n\\\"In determining whether a grantee takes individually or in a trust or representative capacity where words referring to him as a trustee or representative appear in the deed, it has been held or recognized that the court will apply applicable rules of construction to ascertain the purpose or intention, considering the instrument as a whole, reconciling repugnant parts if possible, and keeping in view the relative force and effect of the various clauses,\\nIn the instant case we are not considering an ordinary grantor who can transfer his title to a grantee of his choosing. The sheriff, in executing his deed, is dealing with the rights and title of the judgment debtor under statutory authority and is only authorized by statute to execute the deed in favor of the holder of the certificate of sale or a redemptioner. Section 11-403,I.C. A deed to any other person would be of no effect. The interest of the holder of the certificate of sale and the function of the sheriff's deed have been defined by this court in Northwestern & Pacific Hypotheekbank v. Nord, 56 Idaho 86 at 91-92, 50 P.2d 4 at 6, as follows:\\n\\\"When the foreclosure sale was made and respondent bid in the property for the amount of the debt and costs, and the sheriff executed and delivered a certificate of sale, title passed from defendants to plaintiff for the property in question (section 8-310, I.C.A.), and the judgment was thereby paid; there no longer existed any indebtedness from defendants to plaintiff. (Citations.)\\n\\\"The only right or property interest remaining in the mortgagor was the right to divest the purchaser of his title at any time within one year after sale by compliance with the redemption statute. (Citations.)\\n\\\"A redemption when made is not from the mortgage lien 'but from the execution sale, and a deed subsequently given by the sheriff passes no additional title, but rather evidences that the purchaser's title has not been divested by redemption.\\\" (Citations.)\\nThe sheriff's deed in this case refers to the judgment and decree, the execution thereon, to the sale of the property and the issuance of the certificate of sale, which certificate of sale is, by reference, incorporated in the deed. The deed further recites that no redemption has been made and that the time for redemption has expired.\\nThe sheriff, being without . authority to execute the deed in favor of anyone except respondent, and from the recitals in the deed, it must be held that Mary Marguerite Ford Petty took title in her representative capacity for the use and benefit of respondent and that the words, \\\"guardian ad litem of Faith Geneal Petty,\\\" are not merely descriptio persona:. The respondent has, therefore, shown herself, in this respect, to be entitled to maintain an action for possession.\\nAppellants complain that the court erred in failing to find upon their plea in abatement based on the ground of the pend-ency of other actions involving the same questions. Assuming, but not holding, that cases Nos. 13361 and 13362 are still pending against appellants, a comparison of such cases with the instant case discloses that they involve different parties, state different causes of action, pray for different relief and require different proof. The files in such cases are in evidence and there is no dispute as to the facts. As a matter of law, the pendency of such actions would not sustain a plea in abatement. 1 C.J.S., Abatement and Revival, \\u00a7 39, p. 62.\\nThe record discloses that appellants tendered proposed findings of fact to the trial court and did not therein ask for a finding on their plea in abatement. Their failure to ask for such finding constitutes a waiver of the error, if any, on the part of the trial court. Koser v. Bohemian Breweries, 69 Idaho 33, 202 P.2d 398.\\nAppellants urge that the court erred in overruling the demurrer to the complaint in that the complaint does not allege that the plaintiff had any right to possession as required by law. The complaint alleges ownership in the respondent, possession by appellants and refusal to surrender such possession. In Froman v. Madden, 13 Idaho 138 at 143-144, 88 P. 894 at 895, in holding adversely to appellants' contention, this court said: \\\"One who establishes his title makes a case entitling him to possession. If any special or peculiar reasons exist why the right of possession in any particular instance should not follow the title, that fact should be shown in defense of the action. In the very instructive case of Payne et al. v. Treadwell, 16 Cal. [220] 244, Mr. Justice Field, in discussing the subject of ejectment, said: 'If the defendant's holding rests upon any existing right, he should be compelled to show it affirmatively in defense. The right of possession accompanies the ownership. The right of present possession is presumed as a matter of law. It is by force of this presumption that the plaintiff can rest, in the first instance, his case at the trial upon proof of his seisin, and of the possession by the defendant. From these facts, when established, the law implies a right to the present possession in the plaintiff, and a holding adverse to that right in the defendant.' \\\"\\nFinally, appellants urge that the court erred in rendering decision while there was a motion pending to reopen the case without any ruling thereon. An examination of the record discloses that the court in fact upon appellants' motion, reopened the case and permitted appellants to introduce additional evidence consisting of an abstract of title as prayed for in the motion to reopen.\\nNo reversible error being made to appear, the judgment' of the trial court is affirmed. Costs awarded to respondent.\\nGIVENS, C. J., TAYLOR and KEE-TON, JJ., and KOELSCH, District Judge, concur.\"}"
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+"{\"id\": \"4876628\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Wayne Gardner LAFFERTY, Defendant-Appellant\", \"name_abbreviation\": \"State v. Lafferty\", \"decision_date\": \"1994-02-17\", \"docket_number\": \"No. 20375\", \"first_page\": \"378\", \"last_page\": \"383\", \"citations\": \"125 Idaho 378\", \"volume\": \"125\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:12:37.158204+00:00\", \"provenance\": \"CAP\", \"judges\": \"LANSING and PERRY, JJ., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Wayne Gardner LAFFERTY, Defendant-Appellant.\", \"head_matter\": \"870 P.2d 1337\\nSTATE of Idaho, Plaintiff-Respondent, v. Wayne Gardner LAFFERTY, Defendant-Appellant.\\nNo. 20375.\\nCourt of Appeals of Idaho.\\nFeb. 17, 1994.\\nWilliam J. Litster, Boise, argued, for appellant.\\nLarry EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for respondent. Myrna A.I. Stahman, argued.\", \"word_count\": \"2328\", \"char_count\": \"14797\", \"text\": \"WALTERS, Chief Judge.\\nWayne Lafferty appeals from an order revoking his probation and reinstating his sen tence of imprisonment. The central issue on appeal is whether the district court properly revoked probation where the record lacked sufficient evidence to show that Lafferty's violation was willful. For the reasons explained below, we affirm.\\nFacts\\nLafferty pled guilty in the Gooding County district court to driving while under the influence of alcohol, his third such offense in five years. I.C. \\u00a7 18-8004, 18-8005(3). At sentencing, the court imposed a unified term of five years, with a minimum period of three years in confinement. I.C. \\u00a7 19-2513. The court found that Lafferty, a fifty-six-year-old disabled veteran, was an alcoholic whose history and poor attitude offered little hope for alcohol rehabilitation. However, the court determined that it still could accomplish its goal of protecting the traveling public \\u2014 its primary objective in sentencing Lafferty \\u2014 by depriving Lafferty of the opportunity to drive. The court decided to suspend the sentence and place Lafferty on probation with the special conditions that he reside at a halfway house in Darlington, Idaho, at his own expense, that he take part in the in-house alcohol treatment programs it offered, and that he not drive for five years.\\nTwo months later, the prosecutor filed a motion to revoke probation. The motion was based on a report that Lafferty had been asked to leave the Darlington house due to his disruptive behavior and his failure to pay housing costs. After an evidentiary hearing, which encompassed both the motion to revoke probation and a request by Lafferty for modification of his sentence under I.C.R. 35, the court found the state had not proved the alleged violation. The court then modified the housing requirement to allow Lafferty thirty days to find another halfway house adequate to meet the court's primary objective of protecting society from Lafferty's dangerous driving.\\nThe Salvation Army's Adult Rehabilitation Program in Boise subsequently accepted Lafferty. He arrived there on a Wednesday and on Thursday morning, went to work in the carpentry unit. Lafferty, who was certified as one-hundred percent disabled, complained of severe pain the next morning and refused to return to work. His counselor, believing Lafferty had been assigned the light duty of hanging hangers and clothes, told Lafferty he could not stay because he would not work. That same day, Friday, Lafferty called his attorney's office and left a message that he was being terminated from the program and would have to leave. Lafferty, however, made no attempt to contact his probation officer directly on Friday, or during the intervening weekend. When no one arrived to pick him up by Monday morning, Lafferty again telephoned his attorney's office, this time leaving a message requesting that his probation officer be contacted and informed of the situation.\\nOn Tuesday morning, Salvation Army personnel told Lafferty to pack his belongings and then drove him to the Rescue Mission in Boise. From the Rescue Mission, Lafferty obtained a ride to the Veteran's Administration Hospital, also in Boise. While waiting to see his doctor, Lafferty attempted to make a collect, long-distance telephone call to his probation officer in Twin Falls. However, the office refused to accept the charges. Lafferty then dialed a local number belonging to the federal probation office. He spoke to a woman who said she understood his problem, and Lafferty ended the conversation believing that his probation officer was going to be notified. Lafferty saw his doctor that afternoon and was admitted to the hospital for a bladder infection. He spent the night in the hospital and was released the following day, Wednesday. When no one else had come to pick him up at the hospital by 5:00 o'clock that evening, Lafferty asked a friend who was visiting to take him to Lafferty's house in Wendell, Idaho. When Lafferty arrived in Wendell later that evening, however, the renters occupying his house called the sheriff, who in turn contacted Lafferty's pro bation officer. The sheriffs deputies picked up Lafferty that night and took him to the county jail. The following day, the probation officer filed a report alleging that Lafferty had failed to comply with paragraph 2 of the probation order, which required that Lafferty \\\"not change residence without obtaining written permission from [his] probation officer.\\\"\\nBased on the probation violation report,' the prosecutor filed another motion seeking to revoke Lafferty's probation. After an evidentiary hearing, the court found that Lafferty had in fact violated the court's probation order by leaving the Salvation Army without authorization from his probation officer. The court then continued the proceeding for thirty days to allow Lafferty to find a suitable alternative to imprisonment that would meet the court's concern for the public safety. At the subsequent dispositional hearing, Lafferty's attorney described to the court a three-month program at a facility in the Salt Lake City, Utah, area. The court found this alternative unacceptable. The court then revoked probation and ordered into execution Lafferty's original sentence of three to five years' confinement.\\nOn appeal, Lafferty contends that the district court erred by revoking his probation. Specifically, he argues his change of residence was not a \\\"willful violation\\\" of the court's probation order and, therefore, the court's decision to revoke probation was contrary to his right to the fundamental fairness required by the due process clauses of the state and federal constitutions.\\nAs explained below, we agree that the record is insufficient to show a willful probation violation. However, we conclude that the court properly exercised its discretion in deciding to revoke probation, where it first considered whether there existed alternatives to imprisonment that would adequately meet the state's objectives in sentencing Lafferty.\\nAnalysis\\nWe start with the premise that a probationer has a constitutionally-protected liberty interest in continuing his or her probation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); State v. Chapman, 111 Idaho 149, 721 P.2d 1248 (1986). Consistent with the principles of due process, a court may revoke probation only upon evidence that the probationer has in fact violated the terms or conditions of probation. Douglas v. Burder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973). Moreover, revocation must be based upon charges sufficiently specific to inform the probationer of the probation condition or conditions alleged to have been violated. Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604; State v. Edelblute, 91 Idaho 469, 424 P.2d 739 (1967). A court's finding that an alleged violation has been proved will be upheld on appeal if there is substantial evidence in the record to support the finding. State v. Kelsey, 115 Idaho 311, 766 P.2d 781 (1988); State v. Hayes, 99 Idaho 713, 587 P.2d 1248 (1978); State v. Barton, 119 Idaho 114, 803 P.2d 1020 (Ct.App.1991).\\nOnce the court properly finds that the probationer has in fact violated probation, it then must determine, in the exercise of its discretion, whether to revoke probation and order a sentence of imprisonment, or to continue probation. State v. Knowlton, 123 Idaho 916, 854 P.2d 259 (1993); State v. Marks, 116 Idaho 976, 783 P.2d 315 (Ct.App. 1989). The decision to revoke probation will not be overturned on appeal absent a showing that the court abused its discretion. State v. Hedger, 115 Idaho 598, 768 P.2d 1331 (1989); State v. Hass, 114 Idaho 554, 758 P.2d 713 (Ct.App.1988). In determining whether such an abuse occurred, the appellate inquiry centers on whether the sentencing court acted within the boundaries of its discretion, consistent with any legal standards applicable to specific choices, and whether the court reached its decision by an exercise of reason. Hass, 114 Idaho at 558, 758 P.2d at 717.\\nA. Did the court properly find that Lafferty had violated a condition of his probation?\\nIn this case, the state's motion to revoke probation sufficiently charged that Lafferty had violated probation by changing his residence without authorization from his probation officer. The undisputed evidence in the record establishes that Lafferty moved out of the Salvation Army without consulting his probation officer. We conclude that this evidence is sufficient to support the court's finding that Lafferty violated the probation order. We will not disturb that finding on appeal.\\nB. Did the court abuse its discretion in revoking Lafferty's probation?\\nWe next consider whether the district court abused its discretion by revoking Lafferty's probation. Lafferty contends that the district court acted contrary to the constitutional guarantee of due process, and hence in excess of its discretionary authority, when it revoked probation for a violation that was not shown to be \\\"willful.\\\" Because the court exceeded its discretionary authority, Lafferty continues, its decision to revoke probation must be reversed, and the order requiring that he be imprisoned must be vacated.\\nUnless the state shows that the violation was \\\"willful,\\\" it is fundamentally unfair for the court to revoke probation without first considering whether adequate alternative methods of punishing the defendant are available. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). Only if the court determines that alternatives to imprisonment are not adequate in a particular situation to meet the state's legitimate interest in punishment may the court imprison a probationer who has made sufficient, bona fide- efforts to obey the terms of the probation order. Id., 461 U.S. at 673, 103 S.Ct. at 2073; see also State v. Oyler, 92 Idaho 43, 436 P.2d 709 (1968).\\nWe return to the facts of the case. The uncontroverted evidence presented at the probation hearing shows that Lafferty was involuntarily terminated from the Salvation .Army program, and that the only reason for the termination was his inability to perform the work assigned. Lafferty was told to leave on Friday. He and his belongings were physically removed from the premises early the next Tuesday morning, and he was arrested and jailed on Wednesday. We agree that this record is insufficient to show that Lafferty \\\"willfully\\\" left his residence at the Salvation Army. Notwithstanding the lack of willfulness on Lafferty's part in this respect, however, his failure to further comply with the probation conditions which necessitated informing his probation officer of the situation and of his whereabouts in order to accomplish a change of residence with the consent of his probation officer nonetheless may warrant revocation if the district court considers the alternatives to imprisonment and determines that they are not adequate to meet the state's legitimate sentencing objectives. See Bearden, 461 U.S. at 672, 103 S.Ct. at 2072; Oyler, 92 Idaho at 47, 436 P.2d at 714 (1968).\\nThe record reflects that Lafferty's residence at the Salvation Army was a fundamental condition of his probation, and that a change from this residence could undermine the court's core concern that Lafferty be prevented from driving. After finding the probation violation, the district court for the second time allowed Lafferty thirty days to find another halfway house, or any other facility sufficiently secure to meet its concern for the safety of the traveling public. The court emphasized that a treatment program, alone, would not meet this objective, but that Lafferty must be housed at a supervised facility. The only alternative housing suggested and described by Lafferty's attorney at the final hearing consisted of a two-month inpatient treatment program at a facility near Salt Lake City, followed by one month of essentially unsupervised employment-related activities. The court rejected the suggested program, concluding that it failed to meet the court's concern for protecting the public. The court then revoked probation and ordered Lafferty to serve his original sentence of three to five years' imprisonment.\\nUpon this record, we conclude that the district court acted within the boundaries of its discretion and consistent with the applicable legal standards, and that its decision to revoke probation was reasonable under the circumstances. Finding no abuse of discretion, we uphold the district court's decision to revoke Lafferty's probation.\\nConclusion\\nThe district court's final order, entered upon revocation of probation, requiring that Lafferty serve his previously imposed sentence is affirmed.\\nLANSING and PERRY, JJ., concur.\\n. The record shows that when Lafferty previously was asked to leave the halfway house at Darling-ton, the Gooding County Sheriff picked him up and took him back to the Gooding County Jail.\\n. The district court additionally found Lafferty in violation of the probation condition requiring that he comply with all rules of the Salvation Army. However, because the state did not charge Lafferty with violating this condition, proof of its breach cannot serve solely as the basis for revoking probation. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); State v. Edelblute, 91 Idaho 469, 424 P.2d 739 (1976). Nonetheless, once a probation violation is properly shown, the trial court can consider other incidents of probation violation which have not been formally charged in determining whether to revoke or continue the probation. State v. Tucker, 103 Idaho 885, 655 P.2d 92 (Ct.App.1982); State v. Bell, 103 Idaho 255, 646 P.2d 1026 (Ct.App.1982).\\n. In Oyler, the Idaho Supreme Court held that where the sentencing court finds it impossible for a particular probationer to perform a fundamental condition of probation, and that the probationer's inability to perform the condition renders him an unfit subject for probation, the court may revoke probation and order a sentence of imprisonment. 92 Idaho at 47, 436 P.2d at 713.\\n. Lafferty argues that his attorney's failure to locate a more suitable alternative facility constituted ineffective assistance of counsel, in violation of his constitutional rights. However, this assertion was not raised below so as to preserve the claim as an issue in the record on appeal.\"}"
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+"{\"id\": \"4880060\", \"name\": \"SEUBERT EXCAVATORS, INC., an Idaho corporation, Plaintiff-Appellant, v. EUCON CORPORATION, an Idaho corporation, D/B/A Steelman-Duff and United States Fidelity & Guaranty Company, Defendants-Respondents; EUCON CORPORATION, an Idaho corporation, Third-Party Plaintiff, v. EMPLOYERS INSURANCE OF WAUSAU, Third-Party Defendant-Appellant\", \"name_abbreviation\": \"Seubert Excavators, Inc. v. Eucon Corp.\", \"decision_date\": \"1994-03-18\", \"docket_number\": \"No. 20615\", \"first_page\": \"409\", \"last_page\": \"418\", \"citations\": \"125 Idaho 409\", \"volume\": \"125\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:12:37.158204+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDEVITT, C.J., JOHNSON, J., and MICHAUD and BURDICK, Justices Pro Tem, concur.\", \"parties\": \"SEUBERT EXCAVATORS, INC., an Idaho corporation, Plaintiff-Appellant, v. EUCON CORPORATION, an Idaho corporation, D/B/A Steelman-Duff and United States Fidelity & Guaranty Company, Defendants-Respondents. EUCON CORPORATION, an Idaho corporation, Third-Party Plaintiff, v. EMPLOYERS INSURANCE OF WAUSAU, Third-Party Defendant-Appellant.\", \"head_matter\": \"871 P.2d 826\\nSEUBERT EXCAVATORS, INC., an Idaho corporation, Plaintiff-Appellant, v. EUCON CORPORATION, an Idaho corporation, D/B/A Steelman-Duff and United States Fidelity & Guaranty Company, Defendants-Respondents. EUCON CORPORATION, an Idaho corporation, Third-Party Plaintiff, v. EMPLOYERS INSURANCE OF WAUSAU, Third-Party Defendant-Appellant.\\nNo. 20615.\\nSupreme Court of Idaho, North Idaho,\\nOctober 1993 Term.\\nMarch 18, 1994.\\nClark & Feeney, Lewiston, for appellants. P. Tom Clark argued.\\nClements, Brown & McNichols, Lewiston, for respondents. Michael E. McNichols argued.\", \"word_count\": \"4624\", \"char_count\": \"29564\", \"text\": \"BISTLINE, Justice.\\nBACKGROUND AND PRIOR PROCEEDINGS\\nIn January 1983, the Washington State Department of Transportation (\\\"WSDOT\\\") awarded a prime contract to Seubert Excavators, Inc. (\\\"Seubert\\\") for reconstruction of 7.2 miles of highway in south-central Washington. The contract called for (a) grading, including excavation and installation of culverts, (b) crushing rock and placing it on the road, and (c) paving the road. The prime contract, which incorporated various WSDOT standard specifications, specified that work would begin on April 1,1983 and be substantially completed by September 21, 1983, and provided for liquidated damages and actual engineering costs in the event of delay.\\nSeubert subcontracted the grading and excavation work to Eucon Corporation, d/b/a Steelman-Duff (\\\"Steelman-Duff'), retained the rock-crushing and rock placement work for itself, and subcontracted the paving work to Trans\\u00edate Paving (\\\"Trans\\u00edate\\\"). The subcontract with Steelman-Duff directed Steel-man-Duff to \\\"continue diligently in the performance\\\" of the project and \\\"to fully complete all of said work to the satisfaction of the CONTRACTOR and PRINCIPAL by September 30, 1983.\\\"\\nThe record discloses that this project required the general contractor and subcontractors to first excavate, grade, gravel and pave two detours (\\\"DI\\\" and \\\"D2\\\"). Once traffic was directed onto the detours, the work plan called for excavating the roadway, crushing rock to produce the necessary gravel, and paving the roadway. The contract required the state of Washington to approve the various steps of the project as they were completed. Coordination of the various contractors, equipment, and the state engineers during these phases was therefore critical for the timely completion of the entire reconstruction project.\\nThe parties began construction of D1 and D2 in February of 1983, well ahead of their projected schedule. The record implies that the completion of D2 was somewhat delayed by the state approval process, by problems with the soil, and by the fact that Seubert crushed extra rock at the D2 site. Seubert later argued that the delay in completing D2 was caused by Steelman-Duff and that this delay contributed to the delay of the entire project, but the district court found the construction of D2 was approximately on schedule.\\nTo speed up the pace of the project, Steel-man-Duff excavated and graded the shoulders of the existing highway while D2 was still under construction. At a meeting between the parties on March 24,1983, Seubert apparently promised that a large rock crusher would soon be on-site, although the parties dispute the precise date that was promised. This large crusher was more efficient than the smaller crusher that at that time was in use on D2. Since the Washington State specifications for the project allowed only two miles of ungravelled highway at a time, Steelman-Duffs plan to excavate the rest of the highway was contingent upon the ready supply of gravel that would be provided by the large rock crusher. An employee for Steelman-Duff testified that Seubert promised to consider utilizing a smaller crusher to crush and place rock on the roadway if the large crusher was delayed. Because of this statement, ideal moisture conditions on the road, and Steelman-Duffs desire to remain on schedule as much as possible, SteelmanDuff began to remove the asphalt on the existing roadway on March 28. The large crusher did not arrive, and for financial reasons, Seubert did not use the smaller crusher to produce the requisite gravel. Displeased by the lack of gravel available to cover the excavated roadway, the state of Washington promptly stopped Steelman-Duffs progress. Lacking any more work, Steelman-Duff left the site from April 8 to May 4.\\nSeubert's large crusher did not arrive on-site until April 26 and did not commence crushing base rock to place on the roadway until May 4. The record discloses that base rock was scheduled for placement on the excavated roadway beginning on April 11. Seubert argues that this delay did not slow the overall pace of the project. However, Steelman-Duff testified that crushed rock could have been placed on two miles of the excavated roadway as early as April 5.\\nUpon the arrival of the large rock crusher, Steelman-Duff and Seubert continued to excavate, grade, crush rock, and place gravel upon the roadway. Further delays occurred during this time, the responsibility for which is hotly disputed by the parties. By June 22, Steelman-Duff had excavated all but a small section in the middle of the roadway, where Seubert was operating its rock-crushing equipment. Concluding that it could not complete this section with Seubert there, Steelman-Duff temporarily; moved its personnel and equipment to another project; Steelman-Duffs motivation for doing so is one of the major disputes in this ease. Seubert finished crushing and left this section on July 19, 1983. At some point, the parties became aware that extra rock in the roadway needed to be excavated. After some haggling over which contractor would pay for drilling and blasting this extra rock, Steel-man-Duff returned to the site and excavated the excess rock, finishing on September 2. Steelman-Duff completed its work on the project on September 12, 1984, well ahead of its September 30, 1984, deadline. On September 19, Trans\\u00edate began paving the road, despite requests from WSDOT and Seubert to commence paving earlier. The entire project was not substantially completed until September 30, seven working days after the project deadline.\\nWSDOT withheld $10,622.93 from its final payment to Seubert, as liquidated damages and engineering costs for failure to substantially complete the project on time. Seubert in turn withheld this amount from SteelmanDuff. Steelman-Duff filed a notice of claim with WSDOT to recover the $10,622.93 and additional damages. In response, Seubert filed suit against Steelman-Duff and Steel-man-Duffs surety, United States Fidelity & Guaranty (\\\"USF & G\\\"), seeking reimbursement for (1) crushing and stockpiling 3,500 tons of surfacing material; (2) an alleged overpayment of $977.60 to Steelman-Duff; and (3) other costs incurred by Seubert, such as road maintenance, due to Steelman-Duffs alleged delays. Steelman-Duff counterclaimed against Seubert and filed a third party claim against Employer's Insurance of Wausau, Seubert's surety (\\\"Wausau\\\"), to recover (1) the $10,622.93; (2) the damages allegedly incurred for maintenance of the excavated highway when the large crusher was delayed; (3) the costs of mobilization and remobilization of its equipment during other delays in the project schedule; and (4) attorney fees. Seubert's attorney appeared on behalf of Wausau and stipulated to adding Wausau as a party. Steelman-Duff then apparently overlooked introducing into evidence its notice of completion of the project or the Wausau bond.\\nAfter a bench trial, the district court ruled that Seubert was entitled to $1,032.00 for road maintenance. The court held that Seubert had -wrongfully withheld $10,622.93 from Steelman-Duff, and thus awarded the difference between the parties' offsetting awards, or $9,590.98, to Steelman-Duff, including prejudgment interest. The court ruled that Seubert, WSDOT, and Trans\\u00edate had contributed to the delay, but that Seubert was not liable to Steelman-Duff for any other damages that Seubert allegedly caused. The court's original memorandum of decision did not mention Wausau.\\nWhen Steelman-Duff later sought attorney fees from Wausau under I.C. \\u00a7 41-1889 and R.C.W. 39.08.030, Wausau protested because the bond and notice of completion of the project to Wausau were not in evidence, Washington law had not been pled, and the district court had made no findings against Wausau in its memorandum decision. The district court refused to apply Washington law, but, over Seubert's objection, granted Steelman-Duffs motion to reopen the evidence to admit Wausau's bond and the notice of completion. The district court then amended its findings of fact and conclusions of law to rule that Steelman-Duff was a third party beneficiary of the bond and that Wausau was liable under I.C. \\u00a7 41-1839 for a portion of Steelman-Duffs attorney fees.\\nUpon Seubert's appeal, the Court of Appeals affirmed most of the findings and conclusions of the district court, but held that Seubert was entitled to recover the $977.60 overpayment to Steelman-Duff. As the prevailing party, Steelman-Duff was awarded attorney fees on appeal.\\nPursuant to I.A.R. 118, Seubert petitions this Court to review the following issues: (1) whether Steelman-Duff was contractually responsible for the project delays; (2) whether it was proper to award prejudgment interest to Steelman-Duff; and (3) whether Steel-man-Duff was a third party beneficiary of the surety bond.\\nIn addition, this Court will review the other issues which were raised by Seubert before the case was assigned to the Court of Appeals. See Sato v. Schossberger, 117 Idaho 771, 792 P.2d 336 (1990). These issues include: (1) whether the district court was correct in denying Seubert the stockpiling costs which Seubert incurred when Steel-man-Duff left the work site; and (2) whether the district court was correct in failing to award Seubert the alleged overpayment made to Steelman-Duff.\\nAlthough we value the opinion of the Court of Appeals for the insight it gives us in addressing the issues that were presented on appeal, our review of this case focuses on the correctness of the district court decision. Sato v. Schossberger, 117 Idaho at 775, 792 P.2d at 340.\\nANALYSIS\\nI. Did Seubert wrongfully withhold liquidated damages and engineering costs from Steelman-Duff?\\nThe district court found that both Seubert and Steelman-Duff were responsible for some of the delays that occurred during the highway reconstruction project. The district court nevertheless found that Steelman-Duff performed its part of the project with \\\"due diligence.\\\"\\nSeubert challenges this finding of due diligence and argues that the district court failed to evaluate Steelman-Duffs compliance with other provisions in the subcontract. Seubert argues that before Steelman-Duff left the work site on June 23, the subcontractor was aware or should have been aware of the excess rock that needed to be removed, that Steelman-Duff did not remove such rock because Steelman-Duffs president \\\"was not paying attention to the job,\\\" and that this failure to remove the excess rock until early August significantly delayed the completion of the project. Seubert therefore concludes that Steelman-Duff breached the WSDOT standard specifications which (1) prohibited voluntary shutdowns, slowing of operations, or unauthorized suspension of work; (2) required Steelman-Duff to apply sufficient labor and equipment to carry out the progress schedule; and (3) provided that time was of the essence.\\nThis Court will uphold the findings and conclusions of the district court regarding a party's compliance with a contract when such findings are supported by substantial and competent, albeit conflicting, evidence. See, e.g., Foley v. Munio, 105 Idaho 309, 311, 669 P.2d 198, 200 (1983). Hyrum Cox, Steelman-Duffs president, testified that he had no reason to foresee the excavation of excess rock, since this was a \\\"balanced\\\" project, which meant that the contractors would use all available rock and that no additional excavation would be necessary. Cox additionally noted that earlier in the project the contractors had actually run out of rock. Cox further testified that the contract did not anticipate any excavation of excess rock and so Steelman-Duff was forced to finance the additional excavation. Once Steelman-Duff learned of the excess rock, it proposed a schedule for excavation; when Seubert asked Steelman-Duff to accelerate the schedule, Steelman-Duff complied. On the other hand, the testimony of Seubert employees tended to show that SteelmanDuff was well aware of the excess rock and left the project anyway. We are mindful of the regard that we shall give the special opportunity of the district court to judge the credibility of the witnesses who appear personally before it. I.R.C.P. 52(a). We therefore conclude that substantial and competent evidence supports the district court's finding of due diligence.\\nSeubert then contends that the district court did not make findings as to Steel-man-Duffs failure to comply with the other contractual provisions, and that this cause should be remanded for such findings. We disagree. The district court found that various actions by all parties contributed to the delayed completion of the project and that Seubert and Steelman-Duff both deviated from the progress schedule. The district court nevertheless concluded that such delays and deviations did not breach either Seubert's or Steelman-Duffs contractual obligations. Although the testimony is admittedly conflicting, substantial and competent evidence supports the district court's findings. Since Steelman-Duff apparently left the work site without knowing that further excavation was required, Steelman-Duff cannot be said to have voluntarily slowed or shut down the operations of the project. Moreover, Steelman-Duff completed its performance of the contract well before its deadline and the project deadline. Even without further findings on the part of the district court, the record in this case is clear and yields an obvious answer to the relevant question. Pope v. Intermountain Gas Co., 103 Idaho 217, 225, 646 P.2d 988, 996 (1982).\\nSeubert argues that since the district court found that both Seubert and SteelmanDuff delayed completion of the project, the liquidated damages and engineering costs should at least be allocated between Seubert and Steelman-Duff. This Court has ruled, however, that a general contractor cannot recover from its subcontractor for delay under a liquidated damages clause where the general contractor contributed to the delay by failing to perform a contractual duty, such as failing to provide adequate equipment. City of Idaho Falls v. Beco Constr. Co., 123 Idaho 516, 521, 850 P.2d 165, 170 (1993); State v. Jack B. Parson Constr. Co., 93 Idaho 118, 120, 456 P.2d 762, 764 (1969).\\nOne of the standard specifications applicable to this project stated as follows:\\nThe contractor [Seubert] shall construct 0.35 foot minimum depth of crushed surfacing on each section of grading immediately following completion of the sub-grade as specified in the special provision entitled \\\"Crushed Surfacing Placement.\\\"\\n(Emphasis added).\\nBecause Steelman-Duff wished to begin excavation of the existing roadway as soon as possible, Seubert promised to bring the large crusher to the construction site to crush rock for the gravel covering. Indeed, Seubert was scheduled to produce and place this gravel in early April. Consequently, Steel-man-Duff began its excavation in early April. It is undisputed, however, that the large crusher did not arrive at the construction site until late April and that Seubert did not apply gravel to the subgrade until May 4, over a month after Steelman-Duff began to excavate the roadway.\\nThe district court found that Seubert's delay in providing the large crusher was not a breach of the construction contract, primarily because schedule changes and delays occurred throughout the course of the project. Even so, however, Seubert cannot contest the fact that the failure to bring the large crusher on-site earlier was a failure to pro vide adequate equipment, was not in compliance with the provision quoted above, and contributed to the overall delay of the highway reconstruction project. We uphold the determination by the district court, therefore, that Seubert may not recover the liquidated damages and engineering costs from Steelman-Duff.\\nII. Was the award of prejudgment interest correct?\\nIn its memorandum decision, the district court awarded Steelman-Duff prejudgment interest on its claim of $10,622.93 from September 12, 1983, which was Steelman-Duffs last day of performance of the contract. The district court later amended its ruling by awarding Steelman-Duff prejudgment interest on $9,590.93 from August 27, 1984, based on a letter of that date from Seubert to Steelman-Duff. The letter stated, in relevant part:\\nAttached is our check in the amount of $58,309.97 for payment on the above referenced project. Below is a breakdown on how this amount was arrived at.\\nThis leaves $10,622.93 that we have withheld for liquidated damages. There are also backcharges on both sides for work performed and equipment used.\\nSeubert contends that the subcontract with Steelman-Duff established a \\\"mutual account\\\" between the two contractors, upon which prejudgment interest may not be awarded until ascertainment of the balance. Idaho Code \\u00a7 28-22-104.5. Because the arguments of both parties display a fundamental misapprehension of mutual and open accounts, we explain the significance of such accounts here.\\nCourts sometimes treat open and mutual accounts as substantially synonymous expressions. 1 Am. Jur.2d Accounts and Accounting \\u00a7 4 (1962). An open account refers to a continuing series of transactions between the parties, where the balance is unascertained and future transactions between the parties are expected. Id. Where there are items debited and credited on both sides of the open account, rather than one party always in debt and the other extending credit, the account is called a mutual open account. Id., \\u00a7 5. There must also be a mutual agreement, express or implied, that the claims upon the one side and the other are to be set off against each other. Id. Employment relationships may give rise to mutual open accounts; thus when a farmhand was paid at irregular intervals, minus the value of items furnished him by his employer, this Court found that a mutual open account existed. McCarthy v. Paris, 46 Idaho 165, 171, 267 P. 232, 233 (1928); see also Kugler v. Northwest Aviation, Inc., 108 Idaho 884, 887, 702 P.2d 922, 925 (Ct.App.1985) (ordering district court on remand to find whether open account was mutual or unilateral). When, however, only one party to the transaction extends credit to the other, the account is not mutual. Van de Wiele v. Koch, 256 Or. 349, 352-53, 472 P.2d 803, 805 (1970).\\nThe subcontract agreement between Seubert and Steelman-Duff stated in relevant part:\\n16. Partial Payment.\\nPartial payment for work performed under this agreement will be made by the CONTRACTOR as and within ten days of the time he is paid therefor by the PRINCIPAL, and will equal the value of the work done by the SUBCONTRACTOR according to the Engineer's estimate of the said unit, or lump sum, prices, less the sum of previous payments and less a percentage equal to the percentage retained by the PRINCIPAL, PROVIDED, that if the SUBCONTRACTOR is indebted to the CONTRACTOR or anyone else for cash, advances, supplies, materials, equipment, rental, or other proper charges against the work, the amount of such indebtedness may be deducted from any payment or payments made under this provision. (emphasis added).\\nThe subcontract agreement clearly contemplates that Steelman-Duff would be indebted to Seubert during the course of the project. Even if the subcontract formed a mutual account, however, the district court was correct in establishing prejudgment interest from August 27, 1984, for at least two reasons. First, Seubert's attorney asserted at oral argument that Seubert's letter of August 27, 1984 did not refer to the items included in the subcontract. Thus, we find that the sums which were withheld from Steelman-Duff as of August 27, 1984 constituted \\\"money due by express contract,\\\" prejudgment interest on which is due pursuant to I.C. \\u00a7 28-22-104.1. Even if the items enumerated in the August 27 letter did relate to the items specified in the subcontract, substantial and competent evidence still supports the conclusion of the district judge that the balance of the accounts was ascertained as of that date, since the withheld sum has not been subsequently amended.\\nNotwithstanding Seubert's arguments to the contrary, our decision today is consistent with our recent decision in Ervin Constr. Co. v. Van Orden, 93.18 I.S.C.R. 993, 997-98, 125 Idaho 695, 702-704, 874 P.2d 506, 513-515 (Aug. 25, 1993). In Ervin, we reversed the trial court's award of prejudgment interest because the principal amount of liability under the contract was unascertainable. Id. at 704, 874 P.2d at 515. Here, the principal amount of liability was ascertained by Seubert's own letter of August 27, 1984. Accordingly, we affirm the district court in its award of prejudgment interest.\\nIII. Did the district court err in reopening the evidence to admit the bond and in ruling that Steelman-Duff was a third party beneficiary of the bond?\\nSeubert challenges the admission into evidence of the bond executed by Wausau and Steelman-Duff's notice of completion of its public works contract, and the ruling by the district court that Steelman-Duff was a third party beneficiary of the bond. The bond in this case was both a payment and performance bond, stating in relevant part:\\nNOW, THEREFORE, if the Principal herein shall faithfully and truly observe and comply with the terms, conditions and provisions of said contract in all respects and shall well and truly and fully do and perform all matters and things by it undertaken to be performed under said contract, upon the terms proposed therein, and within the time prescribed therein, and until the same is accepted, and shall pay all laborers, mechanics, subcontractors and materialmen and all persons who shall supply such contractor or subcontractors with provisions and supplies for the carrying on of such work, and shall in all respects faithfully perform said contract according to' law, then this obligation to be void, otherwise to remain in full force and effect .\\n(Emphasis added.)\\nThis Court has recognized that reopening a case and taking new evidence prior to entry of judgment is within the discretion of the district court and will not be reversed on appeal absent a showing of abuse. See, e.g., Davison's Air Serv., Inc. v. Montierth, 119 Idaho 967, 968, 812 P.2d 274, 275 (1991). When an exercise of discretion is reviewed on appeal, we ask (1) whether the lower court correctly perceived the issue as one of discretion, (2) whether the court acted within the outer boundaries of such discretion and consistently with any legal standards applicable to specific choices, and (3) whether the court reached its decision by an exercise of reason. Sun Valley Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 200 (1991).\\nSeubert argues that the bond should not have been admitted because the third-party beneficiary issue was neither pled nor proven at trial. We hold, however, that the district court acted within its discretion. Steelman-Duff named Wausau as an additional party on Steelman-Duffs counterclaim against Seubert. Steelman-Duff incorporated all allegations in its complaint into the claim against Wausau, alleged that the contract bond executed by Seubert and Wausau guaranteed payment of all subcontractors, and alleged that Wausau was indebted to Steelman-Duff for all damages, interest thereon, costs, and attorney fees. Seubert later stipulated to adding Wausau as a party to the action, replied to Steelman-Duffs counterclaim on Wausau's behalf, and acknowledged the existence of the contract bond. Furthermore, the Notice of Claim to Wausau, filed pursuant to the provisions of the bond, was admitted into evidence during the trial. Wausau therefore was adequately notified of Steelman-Duffs claim, and we affirm the granting of Steelman-Duffs motion by the district court.\\nSeubert then argues that the Court of Appeals incorrectly applied Washington law when it held that Steelman-Duff was a third party beneficiary of the bond, and that the determination that the bond was executed pursuant to Washington law constituted a finding of fact that was not made by the district court. Even without an express finding, however, the record in this case clearly establishes that the bond was executed pursuant to Washington law. See Pope v. Intermountain Gas Co., 103 Idaho at 225, 646 P.2d at 996. Furthermore, it is a principle of Idaho law that the obligation of a surety on a bond required by statute is determined by the obligations and purposes set forth in the statute. Bryant Motors, Inc., v. American States, Inc., 118 Idaho 796, 798, 800 P.2d 683, 685 (Ct.App.1990); see Minidoka County v. Krieger, 88 Idaho 395, 407-08, 399 P.2d 962, 969-70 (1965); see also City of Weippe v. Yamo, 96 Idaho 319, 528 P.2d 201 (1974). Wausau invites this Court to ignore this clear principle, construe the bond without looking to the relevant Washington statute, and hold that an unpaid subcontractor cannot maintain a third party beneficiary cause of action against the surety. We decline this invitation, particularly since this Court has long held that unpaid subcontractors are third party beneficiaries of performance and payment bonds which are virtually identical to the one at bar and which are executed by guarantors in favor of the owners of particular projects. See Minidoka County v. Krieger, 88 Idaho at 413, 399 P.2d at 976; City of Weippe v. Yarno, 96 Idaho at 321, 528 P.2d at 203.\\nThe Washington public contracts bond statute requires a general contractor to furnish a bond to the state of Washington conditioned on the payment of all laborers, mechanics, and subcontractors, and provides such persons \\\"a right of action in his, her, or their own name or names on such bond for work done.\\\" R.C.W. 39.08.010, 39.08.030. In light of this statute and Idaho law, we affirm the district court ruling that Steelman-Duff was an intended third party beneficiary of the bond that was executed by Wausau.\\nThe district court has the discretion to award attorney fees against Wausau pursuant to I.C. \\u00a7 41-1839 as appear reasonable. Because this is within the court's discretion, we will not overturn on appeal the award of attorney fees that Judge Schilling granted.\\nIV. Did the district court err in denying Seubert's claim for overpayment?\\nThe district court held that Seubert was not entitled to recover an alleged overpayment to Steelman-Duff of $977.60 on the grounds that Thomas Reiner, Seubert's office manager, had testified that the overpayment was \\\"inadvertent\\\" and that Reiner's testimony, the facts, and the exhibit which displayed the overpayment figure did not constitute a preponderance of the evidence.\\nWe reverse this ruling because it was clearly erroneous. I.R.C.P. 52(a). Reiner testified, without objection or rebuttal, to a standard procedure in payments for construction contracts. The record does not illustrate that his testimony was inherently improbable, nor did facts or circumstances disclosed at trial render it so. Therefore, this Court must accept his testimony as true. Smith v. Idaho State Univ. Fed. Credit Union, 114 Idaho 680, 685, 760 P.2d 19, 24 (1988) (citations omitted). Since no evidence contradicted Reiner's testimony and exhibit, the finding by the district court as to this issue was unsupported by substantial and competent evidence.\\nV. Did the district court err in denying Seubert's claim for stockpiling costs?\\nDuring Steelman-Duffs absence from the work site, Seubert stockpiled the rock that it crushed. Seubert contends that Steelman-Duffs absence increased these stockpiling costs by $5,000. The district court held that because Steelman-Duff did not breach its contract, it was not liable for Seubert's \\\"reasonable cost\\\" of job performance. Because we affirm the district court in its determination that Steelman-Duff complied with its subcontract, we likewise affirm the district court's ruling that Steelman-Duff is not liable for Seubert's stockpiling costs.\\nCONCLUSION\\nWe reverse the ruling of the district court that Seubert did not prove its claim of overpayment and affirm the remainder of the district court's findings and conclusions. We remand the cause for entry of a modified judgment consistent with these rulings. Costs and attorney fees pursuant to I.C. \\u00a7 41-1839 awarded to Steelman-Duff.\\nMcDEVITT, C.J., JOHNSON, J., and MICHAUD and BURDICK, Justices Pro Tem, concur.\\n.Idaho Code \\u00a7 28-22-104. Legal rate of interest. \\u2014 (1) When there is no express contract in writing fixing a different rate of interest, interest is allowed at the rate of twelve cents ($.12) on the hundred by the year on:\\n1. Money due by express contract.\\n2. Money after the same becomes due.\\n3. Money lent.\\n4. Money received to the use of another and retained beyond a reasonable time without the owner's consent, express or implied.\\n5. Money due on the settlement of mutual accounts from the date the balance is ascertained.\\n6. Money due upon open accounts after three (3) months from the date of the last item.\"}"
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+"{\"id\": \"4900335\", \"name\": \"STATE of Idaho, Plaintiff-Respondent, v. Benjamin Arlo JONES, Defendant-Appellant\", \"name_abbreviation\": \"State v. Jones\", \"decision_date\": \"1995-03-02\", \"docket_number\": \"No. 20652\", \"first_page\": \"791\", \"last_page\": \"793\", \"citations\": \"126 Idaho 791\", \"volume\": \"126\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:49:45.250241+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C.J., and LANSING, J., concur.\", \"parties\": \"STATE of Idaho, Plaintiff-Respondent, v. Benjamin Arlo JONES, Defendant-Appellant.\", \"head_matter\": \"890 P.2d 1214\\nSTATE of Idaho, Plaintiff-Respondent, v. Benjamin Arlo JONES, Defendant-Appellant.\\nNo. 20652.\\nCourt of Appeals of Idaho.\\nMarch 2, 1995.\\nCox, Ohman & Brandstetter, Idaho Falls, for defendant-appellant.\\nLarry EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.\", \"word_count\": \"1498\", \"char_count\": \"9070\", \"text\": \"PERRY, Judge.\\nBenjamin Jones stands convicted of one count of possession with intent to deliver marijuana. I.C. \\u00a7 37-2732(a)(l)(B). Jones entered a conditional plea of guilty, pursuant to Idaho Criminal Rule 11(d)(1)(A) and (D), preserving his right to appeal the district court's order denying his motion to suppress. For the reasons stated below, we affirm the denial of Jones's suppression motion and the judgment of conviction.\\nThe facts which led to the charges against Jones are as follows. On April 24, 1992, Jones was at the home of his sister and brother-in-law, Ruby Jones and Harry Burke, when the Idaho Falls police arrived to execute a warrant to search the house for evidence of drug use. The police gathered all of the people at the house into the living room and proceeded with a room-by-room search. After approximately one-half hour, detective Lawrence called Jones' into one of the bedrooms to ask him whether he had any knowledge of drug use by Burke and where Burke might keep drugs in the house. Jones denied any use of drugs by Burke. Detec tive Lawrence then asked about the green station wagon parked outside, which had been identified as belonging to Jones. Detective Lawrence indicated that the police wanted to search the vehicle and requested consent from Jones. A few minutes later, detective Lawrence led Jones back to the living room, spoke to detective Brown and advised him that Jones had given his consent to search the vehicle. Detective Brown went out to the vehicle but found it locked and returned to the house to get the keys. Upon receiving the keys, the police conducted a search of the vehicle. Detective Brown discovered marijuana in the vehicle and Jones was placed under arrest.\\nJones filed a motion in the district court to suppress the evidence obtained in the search of his vehicle. Jones alleged that the marijuana was seized as a result of an illegal search. He asserted that the search of his vehicle was not authorized under the warrant to search Burke's home. Jones also asserted that the warrantless search of his vehicle was conducted without his consent and in violation of his rights under the Fourth Amendment of the United States Constitution and Article I, \\u00a7 17 of the Idaho Constitution.\\nAt the hearing on the suppression motion, Jones related the facts concerning his interview with detective Lawrence which led to the search of his vehicle. His testimony, however, was diametrically opposed to the account of the facts provided by detective Lawrence and verified by detective Brown, who claimed to have been stationed in the hall just outside the bedroom in a position where he could overhear the conversation between detective Lawrence and Jones.\\nThe detectives testified that Jones was told that the police wanted to search his vehicle and that, after being advised of his right to withhold consent, Jones told the officers to go ahead and search the vehicle. Upon finding the vehicle locked, the detectives testified that Jones indicated the keys were in the kitchen and proceeded to retrieve them for the police. The detectives stated that Jones never objected in any way to the search being conducted.\\nDuring his testimony, Jones denied that he had given consent to search the vehicle. He testified, however, that once out of the bedroom, detective Lawrence told detective Brown that they had been given permission to search the vehicle. Jones also testified that he had identified his keys in response to the detective's question, but had not handed them to an officer. Ruby Jones testified that, after detective Lawrence had indicated they had permission to search the vehicle, she asked Jones whether he had given his consent, to which he replied, \\\"Hell, no.\\\"\\nBy order dated December 15, 1992, the district court ruled that the testimony of the state's witnesses was more plausible than that of the witnesses for the defense. The district court found that the testimony constituted clear and convincing evidence that Jones had consented to a search of his vehicle. The district court denied Jones's motion to suppress.\\nAt suppression hearings, the burden of proof is upon the state to show, by a preponderance of the evidence, that a consent to search was given freely and voluntarily. United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974); United States v. O'Looney, 544 F.2d 385 (9th Cir.1976), cert. denied, 429 U.S. 1023, 97 S.Ct. 642, 50 L.Ed.2d 625 (1976); State v. Aitken, 121 Idaho 783, 784, 828 P.2d 346, 347 (Ct.App.1992). We conclude, therefore, that the district court erred in applying the clear and convincing standard, because the proper standard of proof is one of preponderance. See State v. Whiteley, 124 Idaho 261, 858 P.2d 800 (Ct.App.1993); State v. Aitken, supra. This error, however, is not determinative.\\nA trial court's decision on a motion to suppress presents mixed questions of law and fact. State v. McAfee, 116 Idaho 1007, 783 P.2d 874 (Ct.App.1989); State v. Jones, 115 Idaho 1029, 772 P.2d 236 (Ct.App.1989). On appeal, we defer to the trial court's findings of fact if they are supported by the evidence. Id. However, we freely review the trial court's determination as to whether constitutional requirements have been satisfied in light of the facts found. Id.\\nJones raises essentially two issues on appeal, challenging not the district court's finding that consent was given, but the validity of the consent. First, Jones contends that, even if the district court's finding of consent is correct, the consent followed an illegal seizure \\u2014 the seclusion of Jones in the bedroom by detective Lawrence \\u2014 thereby vitiating the consent. This assertion, however, was never presented to the lower court and cannot be asserted for the first time on appeal. See State v. Doe, 123 Idaho 370, 848 P.2d 428 (1993); State v. Lavy, 121 Idaho 842, 828 P.2d 871 (1992). Therefore, we will not address it. Second, Jones asserts that the district court erred in denying the motion to suppress because the district court failed to ascertain the validity of consent, which was a prerequisite to ruling on the motion.\\nWe recognize that a valid consent dispels the necessity for a search warrant, see State v. Rusho, 110 Idaho 556, 560, 716 P.2d 1328, 1332 (Ct.App.1986), where such consent is knowing and voluntary. See State v. Harwood, 94 Idaho 615, 618, 495 P.2d 160, 163 (1972). \\\"The consent may be in the form of words, gesture, or conduct.\\\" State v. Knapp, 120 Idaho 343, 348, 815 P.2d 1083, 1088 (Ct. App.1991), quoting United States v. Griffin, 530 F.2d 739, 742 (7th Cir.1976). In any ease, the consent must be voluntarily given and be based on the totality of the circumstances. Id., citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).\\nJones argues that the state failed to prove that the consent was voluntary, therefore precluding any finding by the district court that the consent was valid. Because the district court did not make explicit findings of fact on the voluntariness of the consent, this Court will examine the record to determine the implicit findings that underlie the lower court's determination and uphold those findings if they are supported by the evidence. State v. Kirkwood, 111 Idaho 623, 627, 726 P.2d 735, 739 (1986); State v. Zubizareta, 122 Idaho 823, 826, 839 P.2d 1237, 1240 (Ct.App.1992).\\nThe United States Supreme Court has held that:\\nVoluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.\\nSchneckloth v. Bustamonte, 412 U.S. at 248-49, 93 S.Ct. at 2059. There is evidence in the record which would support a finding that Jones's consent was not obtained through coercive measures or intimidating tactics by the police. There is also evidence that Jones voiced no objections to the search when he heard detective Lawrence tell detective Brown that they had Jones's permission to search the vehicle. Further, there is evidence that Jones obtained the keys and gave them to the officers. Accordingly, there is substantial, though conflicting, evidence to support the ruling of the district court under the proper standard of proof. We cannot say that the district court's implicit finding of voluntariness was clearly erroneous.\\nWe conclude therefore that Jones's consent to search was constitutionally valid and that the evidence discovered in the vehicle as a result of the search was lawfully seized. We affirm the order denying the motion to suppress and the judgment of conviction.\\nWALTERS, C.J., and LANSING, J., concur.\"}"
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+"{\"id\": \"4902364\", \"name\": \"Victor M. KRAMER, Plaintiff-Appellant, v. CENTRAL HIGHWAY DISTRICT, a political subdivision of the State of Idaho, and Chairman Thomas Zenner, Commissioner Del Lunders, and Commissioner Dick Randal, and Employees of The Central Highway District, John Does 1, 2, 3, 4, Defendants, and Nez Perce County, a political subdivision of the State of Idaho, and County Commissioners Irvin Hill, Earl Ferguson, and Leonard Williams, and John Does 1, 2, & 3, Defendants-Respondents\", \"name_abbreviation\": \"Kramer v. Central Highway District\", \"decision_date\": \"1995-02-21\", \"docket_number\": \"No. 20685\", \"first_page\": \"722\", \"last_page\": \"727\", \"citations\": \"126 Idaho 722\", \"volume\": \"126\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T02:49:45.250241+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDEVITT, C.J., JOHNSON and TROUT, JJ., and BURDICK, J. Pro Tern, concur.\", \"parties\": \"Victor M. KRAMER, Plaintiff-Appellant, v. CENTRAL HIGHWAY DISTRICT, a political subdivision of the State of Idaho, and Chairman Thomas Zenner, Commissioner Del Lunders, and Commissioner Dick Randal, and Employees of The Central Highway District, John Does 1, 2, 3, 4, Defendants, and Nez Perce County, a political subdivision of the State of Idaho, and County Commissioners Irvin Hill, Earl Ferguson, and Leonard Williams, and John Does 1, 2, & 3, Defendants-Respondents.\", \"head_matter\": \"889 P.2d 1112\\nVictor M. KRAMER, Plaintiff-Appellant, v. CENTRAL HIGHWAY DISTRICT, a political subdivision of the State of Idaho, and Chairman Thomas Zenner, Commissioner Del Lunders, and Commissioner Dick Randal, and Employees of The Central Highway District, John Does 1, 2, 3, 4, Defendants, and Nez Perce County, a political subdivision of the State of Idaho, and County Commissioners Irvin Hill, Earl Ferguson, and Leonard Williams, and John Does 1, 2, & 3, Defendants-Respondents.\\nNo. 20685.\\nSupreme Court of Idaho, Moscow, October 1994 Term.\\nFeb. 21, 1995.\\nHenderson, Hadley & Grow, Lewiston, for appellant. James W. Grow, Jr. argued.\\nRamsden & Lyons, Coeur d\\u2019Alene, for respondents. Marc A. Lyons argued.\", \"word_count\": \"2456\", \"char_count\": \"15035\", \"text\": \"SILAK, Justice.\\nThis is an appeal from an order granting summary judgment and dismissing with prejudice the plaintiffs tort action against Nez Perce County. The district judge held that the plaintiff failed to serve a notice of tort claim on Nez Perce County within 180 days from when the claim arose or reasonably should have been discovered, as required by the Idaho Tort Claims Act, I.C. \\u00a7 6-906. We affirm.\\nI.\\nFACTS AND PROCEDURAL BACKGROUND\\nOn May 3, 1990, Victor M. Kramer, a California resident, was traveling on Reubens Road located in Nez Perce County and Lewis County at the posted speed. When Kramer crossed the border from Nez Perce County and entered Lewis County, the road abruptly turned from pavement into gravel, and Kramer's car turned broadside and rolled, causing Kramer serious injuries.\\nOn October 2, 1990, Kramer's counsel sent a Notice of Tort Claim to the Latah County Clerk. On October 5, 1990, Lewis County also received notice of the Tort Claim from Kramer. The claim asserted that \\\"[t]he accident was caused by the county's negligence in failing to place warning signs on the road advising drivers of [the] change in road conditions.\\\"\\nKramer's counsel received two nearly identical responses to the above notices from Corroon & Black, respectively identifying Corroon & Black as the claims administrator for Latah and Lewis counties. The response letters each denied maintenance responsibility for the \\\"area,\\\" and identified the Central Highway District as possibly having maintenance responsibilities:\\nPlease be advised that [Latah/Lewis] County has no maintenance responsibilities for this area. This, we understand, is the responsibility of the Central Highway District. Since Central Highway District is a separate entity and not under the jurisdiction of [Latah/Lewis] County, we must respectfully deny payment of this claim on behalf of [Latah/Lewis] County.\\nCorroon & Black sent the Latah County response on October 23, 1990, and the Lewis County response on October 29, 1990. Corroon & Black administers all claims for the Idaho County Reciprocal Management Program (ICRMP). Lewis, Latah, and Nez Perce Counties are members of, and maintain liability insurance with, the ICRMP. After receiving the response letters from Corroon & Black, Kramer's counsel filed a Notice of Tort Claim with the Central Highway District on November 1, 1990.\\nOn November 25, 1990, photographs were taken of the accident scene which came into the possession of Kramer's counsel. The photographs included photos of a sign that said \\\"Entering Nez Perce County,\\\" which was in place on the day of the accident, May 3, 1990.\\nOn May 1, 1992, counsel for the Central Highway District took Kramer's deposition. After the deposition that day, counsel for the Central Highway District informed Kramer that the paved portion of Reubens Road, and the responsibility of its maintenance and sign posting, were with Nez Perce County and not the Central Highway District. That same day, Kramer's counsel filed a Notice of Tort Claim with Nez Perce County.\\nOn May 11, 1992, Kramer received a response from Willis-Corroon (formerly Corroon & Black, hereinafter Corroon) stating it was the claims administrator for Nez Perce County and denying Kramer's claim on grounds that it was not filed within the 180 day requirement of I.C. \\u00a7 6-906. On August 21, 1992, Kramer filed an amended complaint naming Nez Perce County and its Board of Commissioners as defendants.\\nNez Perce County moved for summary judgment claiming Kramer failed to serve notice on Nez Perce County within the 180 days specified in I.C. \\u00a7 6-906. The district judge granted the motion and dismissed with prejudice Kramer's action against Nez Perce County.\\nII.\\nSTANDARD OF REVIEW\\nIn an appeal from an order of summary judgment, this Court's standard of review is the same as the standard used by the district court in ruling on the motion for summary judgment. East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 681, 837 P.2d 805, 807 (1992). On review, this Court liberally construes the record in the light most favorable to the party opposing the motion, drawing all reasonable inferences and conclusions in that party's favor. Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 272, 869 P.2d 1365, 1367 (1994). Summary judgment shall be granted if the court determines that \\\"the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law____\\\" I.R.C.P. 56(c).\\nIII.\\nANALYSIS\\nA. KRAMER FAILED TO SERVE NOTICE ON NEZ PERCE COUNTY WITHIN 180 DAYS FROM WHEN THE CLAIM REASONABLY SHOULD HAVE BEEN DISCOVERED.\\nThe Idaho Tort Claims Act states that \\\"[n]o claim or action shall be allowed against a governmental entity or its employee unless the claim has been presented and filed within the time limits prescribed by this act.\\\" I.C. \\u00a7 6-908. The Act establishes a 180-day time limit to file a claim:\\nAll claims against a political subdivision arising under the provisions of this act and all claims against an employee of a political subdivision for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the clerk or secretary of the political subdivision within one hundred eighty (180) days from the date the claim arose or reasonably should have been discovered, whichever is later.\\nI.C. \\u00a7 6-906. At issue in this case is when \\\"the claim . reasonably should have been discovered.\\\" The accident occurred on May 3, 1990. The notice of tort claim was filed with Nez Perce County on May 1, 1992, nearly two years later. Accordingly, Kramer's claim is barred unless Kramer reasonably should not have been able to discover his claim against Nez Perce County until approximately one and a half years after the accident, that is, one hundred eighty days prior to May 1, 1992.\\nBased on the undisputed facts of this case, we conclude that Kramer reasonably should have discovered his claim against Nez Perce County well within the first year and a half of the accident, if not within the first 180 days. This is not a latent injury situation. There is no dispute when the accident occurred or the alleged cause of Kramer's injuries. The tort claim notices sent to both Lewis and Latah counties demonstrate that within the first 180 days from the accident, Kramer knew he had been injured while traveling on a \\\"County\\\" road commonly referred to as \\\"Reubens Road,\\\" \\\"near Reubens, Idaho,\\\" and allegedly that \\\"[t]he accident was caused by the county's negligence in failing to to [sic] place warning signs on the road advising drivers of said change in road conditions.\\\" All that remained was for Kramer to determine the potentially responsible county/counties or other political subdivisions and serve notice. The burden was his.\\nKramer mistakenly served Latah County on October 2, 1990. Several days later, he served Lewis County, but failed to also serve Nez Perce County. Nothing in the record explains why Kramer failed to serve Nez Perce along with Lewis County in early October 1990, Nothing in the record reveals any difficulty with learning that Reubens Road lies partially in Nez Perce County. At any time during the six months after the accident Kramer or his representatives could have determined with minimal effort that part of Reubens Road in the area of the accident was in Nez Perce County. Likewise, it seems that with minimal effort Kramer could have determined whether Nez Perce County or some other political subdivision was responsible for maintaining the road.\\nEven when construing the record most favorably to Kramer, we cannot ignore the fact that Kramer obtained photographs of the accident scene taken on November 25, 1990, which revealed a sign stating \\\"Entering Nez Perce County.\\\" Accordingly, within the first seven months after the accident, Kramer knew or reasonably should have known that part of Reubens Road involved in the accident was in Nez Perce County. This Court has held that \\\"Knowledge of facts which would put a reasonably prudent person on inquiry is the equivalent to knowledge of the wrongful act and will start the running of the 120-day period.\\\" McQuillen v. City of Ammon, 113 Idaho 719, 722, 747 P.2d 741, 744 (1987); Newlan v. State, 96 Idaho 711, 717, 535 P.2d 1348, 1354 (1975). At a minimum, before the end of 1990 Kramer had sufficient facts which would put a reasonably prudent person on inquiry as to a potential claim against Nez Perce County.\\nKramer claims he relied on two letters from the insurance claims adjuster, Corroon, dated respectively October 23 and 29, 1990. Those letters stated that Latah and Lewis County had no maintenance responsibilities for the \\\"area,\\\" and stated, \\\"[t]his, we understand, is the responsibility of the Central Highway District.\\\" The district court held that relying on correspondence from the claims adjuster was unreasonable. We agree. The letters are not conclusive. The letters state \\\"we understand\\\" this area is the responsibility of the Central Highway District. They seem to put the duty on Kramer to inquire whether, in fact, the Central Highway District was responsible for maintenance, and whether it was the only entity who maintained the road, or could otherwise be held responsible for the accident. The correspondence from an insurance claims adjuster did not relieve Kramer of his statutory burden to act as a reasonably prudent person in discovering the appropriate government entities for service of his tort claim notice.\\nKramer further argues that under the circumstances, the date Kramer reasonably should have discovered his claim against Nez Perce County is a question of material fact which is inappropriate for determination on a motion for summary judgment, citing Trosper v. Raymond, 99 Idaho 54, 55, 577 P.2d 33, 34 (1978). Trosper is distinguishable. There, parents of a man who drowned in a gravel excavation pond brought a wrongful death action against the property owner. When the property owners answered the complaint, the plaintiffs learned for the first time that the owners had leased the gravel excavation property to the county. There is no indication that the existence of the lease agreement was apparent or a matter of public record. By contrast, the location of Reubens Road is no hidden fact. Moreover, Trosper must now be applied consistently with McQuillen, supra, 113 Idaho at 722, 747 P.2d at 744 (1987) (knowledge of facts which would put a reasonably prudent person on inquiry will start the running of the 120-day period).\\nB. NOTICES SENT TO LATAH AND LEWIS COUNTIES DO NOT CONSTITUTE NOTICE TO NEZ PERCE COUNTY.\\nAlternatively, Kramer argues that Nez Perce County, through its claims administrator, Corroon, obtained timely notice of his claim after Kramer served his notices on the Latah and Lewis Counties, citing Sysco Intermountain Food v. City of Twin Falls, 109 Idaho 88, 705 P.2d 548 (Ct.App.1985), and Pounds v. Denison, 120 Idaho 425, 816 P.2d 982 (1991).\\nThe argument lacks merit. The tort claim notices sent to Latah and Lewis Counties failed to put Nez Perce County on notice \\\"that a claim against it is being prosecuted.\\\" Stevens v. Fleming, 116 Idaho 523, 530, 777 P.2d 1196, 1203 (1989) (discussing Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982)).\\nMoreover, Kramer never served a tort claim notice on Corroon, comparable to the claimant in Sysco. Corroon learned of Kramer's tort claim from the notices sent to Latah and Lewis Counties. Nez Perce County cannot be charged with notice of a claim against it merely because the administrator for the ICRMP becomes aware of claims asserted against different counties. In addition, this Court recently declined to follow Sysco in Friel v. Boise City Housing Authority, 126 Idaho 484, 887 P.2d 29 (1994). In Friel, we affirmed summary judgment against the claimant, holding that the claimant's actions of notifying the governmental entity's insurance company of her accident and medical expenses failed to satisfy the notice filing requirements set out in I.C. \\u00a7 6-906. Id. at 486-487, 887 P.2d at 31-32, citing Stevens v. Fleming, 116 Idaho 523, 530-31, 777 P.2d 1196, 2003-04 (1989) (this Court has rejected the proposition that notice of a potential insurance claim constitutes notice of a potential tort claim sufficient to satisfy the notice requirements of I.C. \\u00a7 6-907). In Friel, we stated:\\nThe holding in Sysco, that notice of a potential claim to a governmental entity's insurer constitutes substantial compliance with the ITCA notice requirements, was not necessary to the disposition of Pounds, and the reference in that opinion to the Sysco rationale was dicta____\\n126 Idaho at 486, 887 P.2d at 31.\\nKramer argues that because of the tort claim notices sent to Latah and Lewis Counties, Corroon investigated the accident and its location, knew of the changing road surface conditions, and knew Reubens Road runs through both Nez Perce and Lewis Counties. Kramer also asserts that Nez Perce County, as a regular business practice, conferred directly with Corroon on all claims.\\nAssuming this is true, it was not Corroon's duty to notify Nez Perce County of Kramer's claim. It was Kramer's. Moreover, if Kramer's argument is correct that Corroon knew the location of the accident from its investigation, and knew Reubens Road runs through Lewis and Nez Perce County, it confirms that Kramer reasonably should have obtained the same information by his own investigation, and hence was on inquiry notice before the end of 1990, at the latest. McQuillen, 113 Idaho at 722, 747 P.2d at 744 (1987).\\nIV.\\nCONCLUSION\\nKramer reasonably should have discovered his claim against Nez Perce County well within the first year and a half of the accident, if not within the first 180 days. Accordingly, his May 3,1992 notice of tort claim against Nez Perce County was untimely under I.C. \\u00a7 6-906. Kramer's contention that Corroon was Nez Perce County's agent lacks merit. We have considered Kramer's other arguments and conclude they lack merit. The order granting summary judgment in favor of Nez Perce County against Kramer is affirmed. Costs on appeal to respondent.\\nMcDEVITT, C.J., JOHNSON and TROUT, JJ., and BURDICK, J. Pro Tern, concur.\"}"
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diff --git a/idaho/5616041.json b/idaho/5616041.json
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+"{\"id\": \"5616041\", \"name\": \"YOUNG v. TINER\", \"name_abbreviation\": \"Young v. Tiner\", \"decision_date\": \"1894-12-17\", \"docket_number\": \"\", \"first_page\": \"269\", \"last_page\": \"280\", \"citations\": \"4 Idaho 269\", \"volume\": \"4\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:45:12.682553+00:00\", \"provenance\": \"CAP\", \"judges\": \"Huston, C. J., took no part in the hearing or decision of this, case.\", \"parties\": \"YOUNG v. TINER.\", \"head_matter\": \"(December 17, 1894.)\\nYOUNG v. TINER.\\n[38 Pac. 697.]\\nAppeal \\u2014 Undertaking on Appeal. \\u2014 An undertaking on appeal under section 4809 of the Revised Statutes of 1887, intended to apply to more than one appeal, must designate or specify each appeal and will not be construed to apply to appeals not specified therein.\\nStatement on Motion foe New Trial \\u2014 For What Purpose mat be Used. \\u2014 A statement used on motion for a new trial and made part of the judgment-roll may be used on appeal from the judgment if not taken within sixty days after the rendition thereof for the purpose of determining whether the trial court made any errors in law during the progress of the trial.\\n^Exception to Verdict \\u2014 Appeal from Judgment. \\u2014 An exception to the verdict on the ground of the insufficiency of the evidence to justify it cannot be reviewed on an appeal from the judgment unless the appeal is taken within sixty days after the rendition of the judgment.\\nSame. \\u2014 An exception that the \\u201cverdict is against law as applied to the facts proven in the case\\u201d cannot be reviewed on an appeal from the judgment taken more than sixty days after the rendition of the judgment.\\nNTew Trial \\u2014 Verdict Against Law \\u2014 What the Statute Intends.\\u2014 The statute, in authorizing a new trial on the ground that the \\u201cverdict is against law,\\u201d does not intend to include in that ground all or any of the other separate grounds enumerated in section \\u25a04439 of the Revised Statutes of 1887.\\nTownsite Occupant \\u2014 Abandonment\\u2014Title.\\u2014From the facts shown in the record, held, that if appellant ever had any right to the-land in dispute, as a townsite occupant, he abandoned it long before bringing this action, and at the time of bringing it had no-title to enable him to maintain the action.\\nSame. \\u2014 A townsite occupant must comply with the law in regard to-improvements, occupancy, etc., and make application for deed in accordance with the law, and pay the price for such land before-he is entitled to a deed, and until he performs those acts and pays-such price he may lose the land claimed by abandonment.\\n(Syllabus by the court.)\\nAPPEAL from District Court, Ada County.\\nL. Vineyard, D. D. Williams, and W. E. Borah, for Appellant.\\nThe testimony for both plaintiff and defendant shows that-plaintiff was a townsite occupant at the time the land was entered as a townsite in the United States land office, by Mayor Priekett on January 13, 1868. If plaintiff, at the time of' the entry, was a townsite occupant, then he had perfect title to the land, not only as a townsite proprietor, but also by virtue of his prior possession. The first question in the case is, Did the court err in submitting to the jury the question, was-the land in dispute outside of the patented limits of Boise City? After the defendant introduced in evidence, as one of his muniments of title, the deed from the mayor, he was estopped from denying the recitals therein, said deed containing among other things, the following: \\u201cAll the following-described lot, piece or parcel of land, situate within and upon, and being a portion of the townsite of said Boise City, in the-county of Ada, and State of Idaho.\\u201d Particular and definite recitals in deed are conclusive evidence of the material facts-stated. (7 Am. & Eng. Eney. of Law, 7, and cases cited in note.) The most important question in the case is, Has the plaintiff such title to the land in question as would be sufficient for him to maintain ejectment, or, an action to recover the possession? The plaintiff had title, either! legal or equitable, coupled with a right to possession thereunder. (Lechler v. Chapin, 12 Nev.'65.) A townsite occupant upon. the public unsurveyed lands has a possessory title which is sufficient to maintain ejectment whenever his possession is interfered with by a stranger showing no better title. The court held and instructed the jury that while he could maintain this action if he had nothing but a bare possessory title, that after this title had ripened into an absolute one he could not. The title of a townsite occupant was not weakened by the entry of the townsite for patent, for this act withdraws the land from the public domain and converts the holding and possession thereof into one of private ownership under a survey approved by the government, and the authorities all hold that, under such entry, the occupant has a fixed, vested, and absolute right to the ground he occupies at the date of such entry, and that it is absolute title under the act of Congress. (Newhouse v. Simoni, 3 Wash. (348, 29 Pac. 263; Bathbone v. Sterling. 25 Kan. 444; Winfield Town Go. v. Maris, 11 Kan. 121; Gerf v. Pfleging, 94 Cal. 131, 29 Pac. 417; Stringfellow v. Gain\\u201e 99 TJ. S. 617; Ashby v. Hall, 119 TJ. S. 526, 7 Sup. Ct. Kep\\u201e 308; Bingham v. Walla Walla, 3 Wash. Ter. 68, 13 Pac. 411; Pueblo v. Budd, 19 Colo. 579, 36 Pac. 599; Brootse v. Jordan> 14 Mont. 375, 36 Pae. 450; Gitard v. Brown, 16 How. 495; Glasgow v. Horit'a, 1 Black, 600; Mallard v. Anderson, 36 La. Ann. 834; Burbanlc v. Ellis, 7 Neb. 156.) The right to a, patent once vested is treated by the government, when dealing-with the public land, as equivalent to a patent. (Starts v.. Star, 6 Wall. 402,) The execution and delivery of the patent, after the right to it is complete, are the mere ministerial acts, of the officer charged with that duty. (Barney v. Dolph, 97 U. S. 652; Morrow v. Whitney, 95 U. S. 554.) It is plain that the government having parted with the title to the land by the creation of the trust in the mayor for the several use- and benefit of the occupants of the townsites, without any limitations or duties fastened upon the trustee with reference to the land so held, is only a passive trust; where the trustee simply holds the naked legal title in trust for the benefit of the cestui que trust, then he cannot dispossess the latter. The law executes the trust. (Ingham v. Burnell, 31 Kan. 333, 2 Pac. 804; 2 Washburn on Beal Property, 405, et seq., 487; Saunders v. Edwards, 2 Jones Eq. (N C.) 13-4; Sherman v. Dodge, 28 Vt. 26; Martindale on Conveyances, 109, 110; Richardson v. Stodder, 100 Mass. 529; Upham v. Varney, 15 N. EL 465; Witham v. Boomer, 63 111. 344.) \\u201cThe doctrine of abandonment only applies. where there has been a mere naked possession without title. The right of the occupant \\u2022originating in mere possession may, as a matter of course, be lost by abandonment. Where there is title to preserve it, there need be no continuance of possession and the abandonment \\u2022of the latter cannot affect the rights held by virtue of the former.\\u201d (Ferris v. Goover, 10 Cal. 589 (631); Webber v. Petty, 2 Colo. App. 63, 29 Pae. 1016; Leonard v. Flynn, 89 \\u2022Cal. 543, 26 Pac. 1099.)\\nJ. Brumback, S. H. Elays, and El. Z. Johnson, for Bespond\\u2022ent.\\nPlaintiff was not a townsite occupant under the townsite act at the time of the entry of the townsite, to wjt, November 23, 1867: 1. Because he did not have the premises inclosed at \\\"that time; 2. Because the occupancy was not of the kind required by the townsite act, being for a racetrack only; 3. Because whatever occupancy Young had was under the license and permission of O\\u2019Farrell and Arnold. Hence, under no circumstances whatever could he recover. (Singer Mfg. Go. v. Tillman (Ariz.), 21 Pac. 818; Greiner v. Fulton, 46 ICan. 405, 26 Pac. 705; Pascoe v. Green, 18 Colo. 326, 32 Pac. 824.) It \\u25a0conclusively appears that plaintiff abandoned the premises. Under the act of January 6, 1871 (Local Laws, p. 30), occupants were given sixty days in which to make proof of occupancy before the mayor. Plaintiff testified that he made an application for a deed to the premises in controversy. The \\u25a0application shows on its face that it does not include the premises in dispute. It was introduced in evidence by plaintiff himself and cannot be impeached by him. (Wilson v. Gleaveland, 30 Cal. 192; Thompson v. Holbrooh, 1 Idaho, 609.) The Tacetrack covered only a portion of the premises claimed by plaintiff. The deed from Huston, .mayor, to Tiner, conveyed the title to all the premises in dispute admitting that the premises are within the patent limits. (Cofield v. McClellan, 16 Wall. 331; Chever v. Horner, 11 Colo. 68, 7 Am. St. Rep. 217, 17 Pac. 495; Ming v. Foote, 9 Mont. 201, 23 Pac. 515.) II Young had any title it was an equitable title and not a legal title. (Jones v. Eureka Imp. Co., 53 Ark. 191, 13 S. W. 1094; City of Helena v. Albertose, 8 Mont. 499, 20 Pae. 817; Hussey v. Smith, 99 TJ. S. 20; Eversdon v. Mayhew, 65 Cal. 163, 3 Pac. 641; Greathouse v. Heed, 1 Idaho, 482.) Young had therefore no title on which he could recover in this suit. {Enteric v. Penniman, 26 Cal. 120; O\\u2019Connell v. Dougherty', 32 Cal. 458; Lawrence v. Webster, 44 Cal. 385; Buhne v. Chism, 48 Cal. 467; Lynch v. Brigham, 49 Cal. 137; Ming v. Foote, 9 Mont. 201, 23 Pac. 515; Clark v. Lockwood, 21 Cal. 220; Estrade v. Murphy, 19 Cal. 248.) \\u201cThe trustee having the legal interest is the only proper person to bring actions at law and to do other things which can be done only by one having the legal estate.\\u201d (Pomeroy\\u2019s Equity Jurisprudence, sec. 989.)\", \"word_count\": \"4334\", \"char_count\": \"24430\", \"text\": \"SULLIVAN, J.\\nThe appellant (who was the plaintiff in the court below) brought this suit to recover possession of a certain tract of land, containing two and forty one-hundredths acres, situated within the patented townsite of Boise City, claiming to be the owner in fee of said land, and entitled to the possession thereof. The complaint contains the usual allegation required in an action in ejectment. The defendant answered, denying specifically each allegation of the complaint, and avers that he himself is the owner in fee of said premises in the possession, and entitled to the possession thereof, and that he has been the owner of, in the possession of, and entitled to the possession of, said tract of land for more than the ten years next preceding the beginning of this action, and also pleads the statute of limitations. The cause was tried by the court, with a jury, and verdict and judgment given and rendered in favor of the defendant. A motion was made by the defendant for a new trial, and overruled by the court. This appeal is from- the judgment and the order denying the motion for a new trial.\\nEespondent moves to dismiss the appeal from the order denying the motion for a new trial, on the ground that the appeal bond filed made no reference to an appeal' from said order, but only referred to an appeal from the judgment. It was held in Sebree v. Smith, 2 Idaho, 357, 16 Pac. 477, that an undertaking on appeal, under section 4809, of the Eevised Statutes of 1887, intended to apply to several appeals in the same action, must specify each of such appeals, and will not be construed to apply to appeals not mentioned therein. (See, also, Eddy v. Van Ness, 2 Idaho, 101, 6 Pac. 115; Motherwell v. Taylor, 2 Idaho, 148, 9 Pac. 417; Brown v. Hanley, 3 Idaho, 219, 28 Pac. 425; Cronin v. Mining Co., 3 Idaho, 438, 32 Pac. 53.) We know of no reason for changing the rule laid down in said cases. The appeal from the order denying the motion for a new trial must be dismissed, and it is so ordered. This leaves the ease before us on an appeal from the judgment.\\nEespondent also moves to strike the statement used on motion for a new trial from the transcript. The motion is denied. A statement used on motion for a new trial may be used on an appeal from the judgment, for the purpose of determining whether the trial court made any errors in law during the progress of the trial. (Forsythe v. Richardson, 1 Idaho, 459.)\\nAppellant relies upon and assigns three errors for the reversal of the judgment and said order denying the motion for a new trial, to wit: 1. Insufficiency of the evidence to justify the verdict; 2. That the verdict is against law; 3. Errors in law occurring at the trial, and excepted to.\\nEespondent contends that the first error specified, to wit, the insufficiency of the evidence to justify the verdict, cannot be considered, for the reason that this appeal was not taken within sixty days after the rendition of the judgment. It is shown by the record that the judgment was rendered on the seventh day of April, 1893, and the appeal was taken on the nineteenth day of March, 1894. Section 4807 of the Eevised Statutes of 1887 provides, inter alia, that an appeal from s final judgment may be taken within one year after the entry of the judgment. But an exception to the decision or verdict,, on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment, unless the .appeal is taken within sixty days after the rendition of the judgment. H ence, as this appeal is from the judgment, and was not taken within sixty days after the rendition thereof, said first error assigned cannot be considered.\\nIt is also contended by respondent that the second error assigned, to wit, \\\"that the verdict is against law,\\\", cannot be considered, for the reason that it is \\\"not in proper form.\\\" The appellant specifies and avers, in his statement on motion for a new trial, \\\"that the verdict is against law, as applied to the facts proven in the case,\\\" and proceeds to support that averment by undertaking to show that the verdict is not supported by all of the facts proved by the evidence. This is simpfy another manner (under a different name) of showing that the evidence is insufficient to sustain the verdict, which cannot be done on this appeal. This court has no authority on this appeal to review all of the evidence to ascertain the facts proved, in order to determine whether the verdict \\\"is against law\\\" when applied to such facts. This would simply be reviewing the evidence to ascertain whether it was sufficient to sustain the verdict, which is not permissible on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition thereof. If that were permissible, several of the grounds for a new trial enumerated in section 4439 of the Bevised Statutes might be included in the one general ground, to wit, \\\"that the verdict or decision is against law.\\\" Said section of the statute, in authorizing a new trial on the ground that the \\\"verdict is against law,\\\" evidently does not intend to include in that ground all or any of the several distinct and separate grounds of the motion which are numbered and specified in said section. (See Brumagim v. Bradshaw, 39 Cal. 24.)\\nThe appellant concedes that the most important question in the case is, \\\"Has the plaintiff such title to the land in question as would enable him to maintain an action in ejectment, or an action to recover possession?\\\" claiming that the judgment-roll on its face shows that he had. Owing to the importance of the case, we have concluded to dispose of it on its merits. The record shows that the land in controversy is within the limits of Boise City; that said city was settled in 1863, and incorporated in 1864; that-a portion of it was platted in 1864; that it was situated upon unsurveyed public land, and was entered under an act of Congress entitled \\\"An act for the relief of the inhabitants of cities and towns upon public lands,\\\" approved March 2, 1867 (see 14 H. S. Stats. 541), by the mayor of Boise City, in November, 1867; that is, the declaratory statement of the purpose of the inhabitants to enter it as a townsite was filed in the proper land office by Henry E. Prickett, mayor of Boise City, on November 23, 1867. A patent for the tract of land so entered was issued by the United States of America on the second day of May, 1870, unto the said mayor, in trust for the several use and benefit of the occupants of the townsite of Boise- City, according to their respective interests. On the sixth day of January, 1871, the legislative assembly of Idaho territory passed an act prescribing rules and regulations for the execution of said trust by said mayor, or his successor in office, as to the disposal of the town lots in said city. (See Special and Local Laws of Idaho, see. 148.) The record shows that appellant claimed several blocks in Boise City, by reason of his having occupied the same as a racetrack; that the tract of land in controversy was a part of said racetrack; that the appellant inclosed said racetrack with a fence in 1867 and 1868, and used the same for racing and other purposes until 1875. On the sixteenth day of January, 1871, said appellant filed his application with the mayor of Boise City for most of the land included within the said racetrack, as required by the act of the legislative assembly of Idaho above referred to. Said application did not include the land in controversy. The .mayor of Boise City thereafter executed to ap pellant a conveyance for the land described in his said application, In 1875 the appellant left Boise City, and located at Walla Walla, in the then territory of Washington, and thereafter gave the said land no particular attention. The fences rotted, fell down, and were taken away, leaving the land in dispute uninclosed. Appellant has not resided in Boise City since 1875, but returned there temporarily in 1886, and remained at Nampa and Boise City until 1889. It is further shown that appellant made application to James A. Pinney, mayor of Boise City, for a deed to the land in dispute on the twenty-fourth day of June, 1891, which application was denied. It is thus shown that appellant left said land in 1875, and gave it no attention until in 1891. Thus, for sixteen years appellant exercised no acts of ownership over said land, and for that length of time abandoned the possession and occupancy of the same. The record also shows that the appellant knew the respondent had said land inclosed with a fence in 1878. The appellant testified that he was out to the land in dispute in 1878, and there found the respondent fencing said land, and made no objection to his doing so. In 1877 the respondent took possession of said land, and has occupied it continuously since that date, and has placed valuable improvements upon it, ai a cost of about $5,000. He fenced it in 1878, and thereafter erected two dwelling-houses and other buildings thereon, and put out an orchard thereon. He made application to the mayor of Boise City for a deed to said premises, and a deed was executed to him, bearing date May 2, 1887. Whatever taxes have been assessed against said land have been paid by the respondent. While it is true that the land in dispute is not very accurately described in the assessment-roll, it was shown by the assessors who made the assessment (and I think properly so) that the description offered in evidence from said assessment-roll was intended to apply, and did apply, to the land in dispute and the improvements thereon.\\nFrom the record but one conclusion can be reached, and that is, if the appellant ever had any right to said premises as a townsite occupant, he abandoned it. In Thompson v. Hoolbrook, 1 Idaho, 609, it is held that if a person has at one time been an \\\"occupant\\\" of a town lot, within the meaning of the law, by erecting an inclosure around it, but, before his \\u2022 application for the deed, has suffered such inclosure to be destroyed by freshets or taken away by tenants, so as to leave the lot open to the public, he shall be deemed to have abandoned it, and another person may enter thereon, and become an occupant, so as to entitle him to a deed from the mayor. This decision was under an act of the legislative assembly to provide for the survey, platting, and (disposal of the land in the city of Lewiston, Nez Perees county. While the said act is different in some respects from the act providing for the sale of town lots in Boise City, I think the principle above enunciated as to abandonment is applicable to the case at bar. Appellant cites City of Pueblo v. Budd, 19 Colo. 579, 36 Pac. 599, in support of his contention. The court holds in that case that the townsite act of Congress, in its intents and purposes, is analogous to the general pre-emption laws of the government. Section 5 of the pre-emption act of 1843 required that claimants should make known their claims \\\"in writing to the register of the proper land office within three months of the time of the settlement, giving the designation of the tract and time of settlement; otherwise his claim should be forfeited.\\\" The court there quotes at some length from the celebrated case of Johnson v. Towsley, 13 Wall. 72. In that case Towsley had made settlement upon government land, and failed to file his declaratory statement within ninety days after settlement, but continued his possession, and did make his declaration before Johnson or anyone else made any claim to the 'land or any settlement upon it. The court held, under that state of facts, Towsley's right was not barred by the provisions of said section 5, \\\"under a sound construction of its meaning.\\\" In City of Pueblo v. Budd, supra, the court, in commenting upon the doctrine of the case of Johnson v. Towsley, supra, say: \\\"If an act that expressly provides for forfeiture upon failure to file a statement in conformity to its requirements is susceptible of this construction, then the provisions of section 4 of the townsite act, which provides that failure to file the required statement shall bar the right to a remedy only, ought not to be construed to work a forfeiture of a vested right in the land, so long as the occupant remains in possession of or exercises exclusive dominion over the same, and his failure to acquire the legal title thereto does not in any manner affect the rights of others.\\\" The respondents in that case failed to file their application in time, but remained in the actual occupation and possession of the disputed land, and the court held that no forfeiture was made to the city. The facts of that case were very different from the facts in the one at bar. In this case the appellant made proper application for the greater portion of the land within the racetrack on the sixteenth day of January, 1871, and procured the legal title thereto, and had actual possession of the remainder until 1875, when he loft it, and has exercised no acts of dominion over it since, and laid no claim to it until 1891, thus allowing twenty years to intervene from the time of making application for a deed to a part of the land included in said racetrack before mailing application for the remainder; and permitted, without objection, the respondent to occupy and possess the same, and to expend \\u2022about $5,000 in improvements on the disputed tract, without protest. The pre-emption settler upon public land had an inchoate right which, by 'complying with the law, would ripen into a legal title; but, if he failed to comply with the law, he forfeited his right. If he complied with the law as to settlement, cultivation, improvement, residence, making final proof, paying the government price, etc., the right to the legal title was then vested in him, and not before. Then the execution and delivery of the patent are the mere ministerial acts of the officer charged with that duty. In the case at bar, if the appellant's occupation, possession, and improvement were such as contemplated by the townsite act of Congress, it might have ripened into a legal title; but the record shows that it did not. He not only failed to make application for a deed, as required by law, but to pay the price for the land. The appellant never had the legal right to said land, and whatever right he had was lost by abandonment.\\nIt is contended that respondent went into possession through appellant; hence could not acquire any right by his possession. But there is nothing in that contention. The appellant himself testified that \\\"the defendant was not in possession of this ground when he commenced this suit.\\\" He says: \\\"No; I never sold this ground to Tiner. I contracted to sell it at one time. This was in 1878. He never took possession of it under that contract.\\\"\\nAfter a very careful consideration of the very able and elaborate argument made by appellant's counsel and the authorities cited, I am of the opinion that the appellant had neither possession of, nor a legal nor equitable title to, the land in dispute at the time this action was brought, and therefore cannot maintain this action. The judgment of the court, below is affirmed, with costs in favor of respondent.\\nHuston, C. J., took no part in the hearing or decision of this, case.\\nMorgan, J., concurs.\"}"
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+"{\"id\": \"5616125\", \"name\": \"STATE v. CLARK\", \"name_abbreviation\": \"State v. Clark\", \"decision_date\": \"1894-02-05\", \"docket_number\": \"\", \"first_page\": \"7\", \"last_page\": \"11\", \"citations\": \"4 Idaho 7\", \"volume\": \"4\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:45:12.682553+00:00\", \"provenance\": \"CAP\", \"judges\": \"Huston, C. J., and Morgan, J., concur.\", \"parties\": \"STATE v. CLARK.\", \"head_matter\": \"(February 5, 1894.)\\nSTATE v. CLARK.\\n[35 Pac. 710.]\\nPreliminary Examination \\u2014 Commitment.\\u2014An order of commitment made in writing and entered in the docket of the committing magistrate is valid, although not indorsed on the depositions taken at the preliminary examination.\\nDepositions \\u2014 Section 7576 oe the Revised Statutes Construed.\\u2014 Held, that the record in this case shows a substantial compliance with the provisions of section 7576 of the Revised Statutes in taking depositions and certifying same to the district court. Information \\u2014 Jurisdiction\\u2014Waiver.\\u2014Motion to quash information, on the ground that the court had no jurisdiction to try the defendant, for the reason that the law had not been complied with in. the arrest and preliminary examination of the defendant, must be made before plea or trial, or the same is waived.\\nDefects in Preliminary Examination. \\u2014 Technicalities or defects in the preliminary examination of a defendant will not render them invalid, unless they actually prejudice the defendant, or tend to his prejudice in respect to some substantial right.\\n(Syllabus by the court.)\\nAPPEAL from District Court, Elmore County.\\nE. M. Wolfe, for Appellant.\\nNo brief found on file.\\nGeorge M. Parsons, Attorney General, for State.\\nThe failure to indorse0 the order of commitment on the complaint or depositions in no manner deprives the order of its validity. {'People v. Wallace, 94 Cal. 497-499, 29 Pac. 950; People v. Wilson, 93 Cal. 379, 28 Pac. 1061.) A substantial compliance with the law is sufficient, the word \\u201capproved\\u201d being held a certification. {People v. Rodrigo, 69 Cal. 602, 11 Pac. 481.) And \\u201csubscribed and sworn to,\\u201d sufficient. {People v. Dowdigan, 67 Mich. 95, 38 N. W. 920.) Failure to attach official title will not invalidate. {City of Kingman v. Berry, 40 Kan. 628, 20 Pac. 527; Touchard v. Grow, 20 Cal. 150-159, 81 Am. Dec. 108.) The probate judge is a magistrate and has authority to commit. (Pen. Code sec. 7511.) Not having moved to quash on. the proper ground, and going to trial, all objections to the legality of the preliminary examination or right to a preliminary examination, were waived. (Washburn v. People, 10 Mich. 383; People v. Jones, 24 Mich. 215, 218; State v. Stewart, 7 W. Va. 731, 23 Am. Eep. 623; Hodgkins v. State, 36 Neb. 160, 54 N. W. 86; March v. Commonwealth (Pa.), 14 Atl. 375, 376; Davis v. State, 31 Neb. 252, 47 N. W. 854; Bailey v. State, 36 Neb. 808, 55 N. W. 241, 242; 1st Sess. Laws, sec. 4, p. 185; Mich. Stats, secs. 9550, 9551.) Motion in arrest of judgment must be founded on defects appearing on the face of the information. (People v. Johnson, 71 Cal. 392, 12 Pac. 261; People v. Gardner, 98 Cal. 128, 32 Pac. 880.) Irregularities in the finding or presentment of an information -must be reached by motion. (Pen. Code, see. 7730; 1st Sess. Laws, see. 4, p. 185.)\", \"word_count\": \"1790\", \"char_count\": \"10638\", \"text\": \"SULLIVAN, J.\\nThe appellant was arrested on a charge of robbery, upon a warrant issued out of the probate court of Elmore county. Thereafter a preliminary examination was held before the probate judge of said court, sitting as a committing magistrate, and the appellant was held to appear before the district court, and answer. On the twenty-sixth day of October, 1893, the district attorney filed an information charging the crime above mentioned. Thereupon counsel for appellant moved to quash the information, on the ground that prior to filing the information the defendant had not been committed or held to answer by any magistrate having authority to commit. This motion was overruled by the court. The defendant was convicted, and thereafter a motion in arrest of judgment was made, on the ground that the court had no jurisdiction to try the defendant, for the reason that the law had not been complied with in the arrest and preliminary examination of defendant. This motion was- denied, and defendant was sentenced to a term of seven years' imprisonment in the state's prison. This appeal is from the judgment.\\nThe first contention of appellant is that the court erred in denying his motion to quash the information for the reason that previous to filing the information the defendant had not been committed or held to answer by a magistrate having authority to commit. It is a sufficient answer to this contention to say that the record shows that the defendant was committed and held to answer by the probate judge of Elmore county. Probate judges are magistrates, and have the power to commit. (Eev. Stats. 1887, sec. 7511.)\\nThe second contention is that the court erred in denying defendant's motion in arrest of judgment. This motion went to the jurisdiction of the court to try the defendant for the offense charged, for the reason that the law had not been complied with in the arrest and preliminary examination of defendant. The record contains the information upon which the defendant was convicted, and it contains the following statement, to wit: \\\"That on the twenty-fifth and twenty-sixth days of September, 1893, a preliminary examination of said charge against said defendant was held before B. Clinton, Esq., probate judge of Elmore county, state of Idaho, and after a full examination of said charge upon the depositions of [here follow the names of the thirteen witnesses examined before the probate judge,] the said defendant was, by order of said probate judge, held to answer said charge of robbery; and that it is upon the personal examination of the depositions aforesaid that this information is made.\\\" The record also contains the \\\"complaint\\\" filed in the probate court as a basis for the issue of the warrant of arrest; also, the warrant of arrest, the depositions taken on the preliminary examination, and the order holding the defendant to answer. It is true the order of commitment was not indorsed on the depositions, as required by section 7579 of the Eevised Statutes, but that does not deprive the order of commitment of its validity. The order was reduced to writing, and entered in the official docket of the magistrate. That was sufficient. (People v. Wilson, 93 Cal. 377, 28 Pac. 1061.) The failure of the committing magistrate to indorse the order of commitment on the depositions taken on the preliminary'examination does not deprive the order of its validity, or affect any substantial right of the defendant. (People v. Wallace, 94 Cal. 497, 29 Pac. 950.) Informalities or irregularities in the proceedings will not render them invalid unless they actually prejudice the defendant, or tend to his prejudice, in respect to a substantial right. (Rev. Stats. 1887, sec. 8236.) Section 8070 of the Eevised Statutes directs this court to give judgment after hearing an appeal, without regard to technical errors or defects, or to any exceptions which do not affect the substantial rights of the parties, (State v. Reed (decision rendered by this court, November term 1893), 3 Idaho, 754, 35 Pac. 706.) It is contended, under the second error assigned, that the depositions do not contain the certificate of the magistrate, required by subdivision 5, section 7576 of the Revised Statutes. The record does show before whom the preliminary examination was had; the date of such examination; the presence of the defendant in person and by counsel; that the complaint was read to the defendant, and his plea; that each witness stated his name, age, residence and occupation. It also contains the question put to each witness, and the answers thereto, and each deposition is signed by the witness, and the jurat to each signed by the magistrate, and shows that said depositions were the basis of the information filed by the district attorney. There was a substantial compliance with the law. However, the motion under- consideration was not made before plea or trial, and was therefore too late. When the motions to quash the information is made in proper time, upon the ground that the law had not been complied with in the arrest and preliminary examination of the defendant, he -does not waive a substantial compliance therewith, and the trial court should see that the law in that respect has been substantially complied with before putting defendant upon his trial. But, unless the motion is made to quash or set aside an indictment or information, the objection that the law in regard to the preliminary examination of a defendant has not been complied with, and all objections to the indictment, enumerated in section 7730 of the Revised Statutes are waived. Section-4 of \\\"An act providing for prosecution of offenses on information,\\\" etc., approved March 13,1891 (1st Sess. Laws, p. 185), provides that all provisions of the Criminal Code in relation to indictments shall, in the same manner, apply to informations. (Washburn v. People, 10 Mich. 385; People v. Jones, 24 Mich. 215; Hodgkins v. State, 36 Neb. 160, 54 N. W. 86; People v. Williams, 93 Mich. 623, 53 N. W. 779; Bailey v. State, 36 Neb. 808, 55 N. W. 241; Ex parte McConnell, 83 Cal. 558, 23 Pac. 1119; People v. Bawden, 90 Cal. 196, 27 Pac. 204.)\\nThe appellant relies upon State v. Braithwaite, 3 Idaho, 119, 37 Pac. 731, as supporting his contentions. In that ease the question decided was the jurisdiction of the court to try the defendant by information before he had first had a preliminary examination, as provided by law, and rests upon the facts of that case. It was not claimed in that case that the defendant had waived his right to such examination, and the court held that the provisions of section 8 of the act therein referred to, and those of section 7576 of the Eevised Statutes were mandatory, \\u2022and that the district court had no jurisdiction to try the defendant by information until the provisions of said statute had been complied with. In our view of that case, the defendant had not had such a preliminary examination as the law requires, and had Taised his objection in proper time, while in the ease at bar the provisions of the statute in regard to preliminary examinations have been substantially complied with. An information is based upon preliminary examination, unless such examination is waived, or the defendant is a fugitive from justice. If the provisions of the statute are not complied with by the committing magistrate in every particular, in such examination the defendant waives all irregularities or defects therein if he does not move to quash the information before plea or trial. No regard should be given to mere technical errors or defects unless they prejudicially affect some substantial right of the defendant. We find no error in the record. The judgment of the court below is affirmed.\\nHuston, C. J., and Morgan, J., concur.\"}"
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+"{\"id\": \"5617334\", \"name\": \"STATE v. HAVERLY\", \"name_abbreviation\": \"State v. Haverly\", \"decision_date\": \"1895-11-20\", \"docket_number\": \"\", \"first_page\": \"484\", \"last_page\": \"486\", \"citations\": \"4 Idaho 484\", \"volume\": \"4\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:45:12.682553+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. HAVERLY.\", \"head_matter\": \"(November 20, 1895.)\\nSTATE v. HAVERLY.\\n[42 Pac. 506.]\\nErrors \\u2014 How Brought to Attention op Court. \\u2014 Errors alleged must appear affirmatively in the record, to entitle them to be considered by this court.\\n.Same \\u2014 Upon Remarks by District Attorney. \\u2014 Where error is predicated upon remarks made by district attorney during the trial, and it appears such remarks were in response to remarks l>y defendant\\u2019s counsel, and, further, that the court admonished the jury that they must disregard the remarks, it will not be deemed reversible error.\\nConsideration op Evidence. \\u2014 The evidence in this case considered, and deemed sufficient to support verdict.\\n(Syllabus by the court.)\\nAPPEAL from District Court, Kootenai County.\\nR. E. McFarland, for Plaintiff in Error.\\nWhile possession of stolen property, or possession of property taken from a building recently burglarized is a circumstance to be considered with other circumstances tending to show guilt, it is not alone sufficient to warrant a conviction of larceny or burglary. (People v. Hurley, CO Cal. 74, 44 Am. Rep. 55; People v. Flynn, 73 Cal. 511, 15 Pac. 102; State v. Tilton, 63 Iowa, 117, 18 N W.. 716.) Improper language by the prosecuting attorney is grounds for reversal. (People v. Bowers, 79 Cal. 415, 21 Pac. 752; People v. Fowler, 104 Mich. 449, 62 N. W. 572; Clapp v. State, 94 Tenn. 186, 30 S. W. 214; People v. Pinkerton, 79 Mich. 110, 44 N. W. 180.) Though stricken out, it is not cured. (People v. Mitchell, 62 Cal. 411; People v. Lee Chuck, 78 Cal. 317, 20 Pac. 719.) When the state asks incompetent questions tending to show a defendant guilty' of other crimes, with the evident intent of impressing the probability of his guilt on the minds of the jury, a judgment of conviction will be reversed. (People v. Wells, 100 Cal. 459, 34 Pac. 1078; People v. Mulling, 83 Cal. 138, 17 Am. St. Eep. 223, 23 Pac, 229; Cale v. People, 26 Mich. 161; Leahy \\u00bb. State, 31 Neb. 566, 48 N. W. 390.)\\nGeorge M. Parsons, Attorney General, for the State (Charles W. Beale, District Attorney, of Counsel).\\nThe court instructed the jury to disregard the remarks of counsel. (Wharton\\u2019s Criminal Practice and Pleading, sec. 577; State v. Sheets, 89 N. C. 551; Reed v. State, 141 Ind. 116, 40 N. E. 525.) If the party provoked the remark complained of, the objection will not stand. (Banes v. State, 10 Tex. App. 421.) When no exception is taken to the ruling of the court, the objection is waived. (People v. KuoTc Wah Choi, 2 Idaho, 90, 6 Pac. 112; Renton v. Monnier, 77 Cal. 449-457, 19 Pac. 820.)\", \"word_count\": \"1112\", \"char_count\": \"6366\", \"text\": \"HUSTON, J.\\nThe defendant was convicted of the crime of burglary in the first degree. Motion for new trial was made and overruled. This appeal is from the judgment and from the order overruling motion for new trial. Eighteen errors are assigned, upon which a reversal is asked. We shall consider and pass upon such as we deem material. As to the first, second, and third assigned errors, it is sufficient to say that we have repeatedly held that, where error is relied upon, it must appear affirmatively in the record. Under this established rule, the first three errors assigned by appellant will not be considered.\\nThe fourth assignment of error is to the overruling by the court of the objection to the following question by the prosecution to the witness Mrs. Wannacott, viz.: \\\"Could anyone have gotten into that building after you got up that morning, and taken out this meat, without your knowing it ?\\\" The witness had already testified as to the location of the burglarized building with reference to the one she was in, and that it was in plain sight from the back part of the dwelling, where she was at work. We see no objection to the question.\\nThe fifth error alleged is that \\\"the court erred in not instructing the jury, at the close of the state's evidence, to acquit the defendant.\\\" Section 7877 of the Penal Code provides: \\\"If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it must advise the jury to acquit the defendant, but the jury are not bound by the advice.\\\" The giving of such instruction is a matter of discretion with the trial court, and its action is not reviewable here.\\nThe sixth error assigned is the refusal of the court to recall a witness on the part of the prosecution, for the purpose of allowing defendant to lay the grounds for his impeachment. We see no error in this ruling, there not appearing to have been any abuse of discretion by the court.\\nThe seventh assignment of error is predicated upon certain remarks made by the district attorney during the trial, and in the presence of the jury, as to what he was expecting or trying to prove by the witness then under examination. While the remarks might have been exceptionable, had they been volunteered by the district attorney, when, as appears by the record, they were responsive to or in reply to remarks by defendant's counsel, we hardly think they amount to reversible error, especially when the jury were instructed by the court to disregard them.\\nAs to the eighth assignment, we think the question objected to proper on cross-examination.\\nAs to the ninth and tenth assignments, there seems to be. a conflict in the evidence. We are, however, of the opinion, from what appears in the record, that there was no misconduct on the part of the jury. If, as is claimed, the pork (the subject of the larceny) was by the officer placed in a room which .vas afterward occupied by the jury while deliberating upon their verdict, yet one of the jury swears that it was not looked at or examined by himself, or by any others of the jury in his presence. Under this state of the record, we cannot say there is error prejudicial to the defendant.\\nThe objection that the verdict is not supported by the evidence is one we cannot consider, when there is simply a conflict. The jury have passed upon the sufficiency of the'evidence after having heard the testimony of witnesses, and, unless the record shows such a preponderance of evidence against their conclusion as leads to the belief that they were influenced by passion or prejudice, the appellate court will not disturb their verdict.\\nWe have carefully examined the instructions given and refused by the court, and are satisfied that the law was correctly stated therein. Judgment of district court is affirmed.\"}"
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+"{\"id\": \"5619175\", \"name\": \"BAKER v. SCOTT\", \"name_abbreviation\": \"Baker v. Scott\", \"decision_date\": \"1895-12-30\", \"docket_number\": \"\", \"first_page\": \"596\", \"last_page\": \"604\", \"citations\": \"4 Idaho 596\", \"volume\": \"4\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:45:12.682553+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BAKER v. SCOTT.\", \"head_matter\": \"(December 30, 1895.)\\nBAKER v. SCOTT.\\n[43 Pac. 76.]\\nElection \\u25a0 Law \\u2014 Correction of Official Ballot \\u2014 Too Late After Election. \\u2014 Where a candidate for a county office neglects to have an alleged defect in the official ballot corrected as provided by section 59 of the election laws of this state, he cannot, after the election is had, and he finds himself defeated, raise the objection that the name of the successful candidate was improperly jilaced upon the official ballot.\\n(Syllabus by the court.)\\nAPPEAL from District Court, Bannock County.\\nAttorney General George M. Parsons, Fremont Wood, S. C. Winters, D. C. Lockwood, Stewart & Dietrich and Edgar Wilson, for Appellant.\\nThis was an action to contest the election of John Scott, nespondent, to the office of clerk of the district court in and for Bannock county. It appears that John S. Baker was regularly nominated on the Republican ticket for said office and that John Scott was the regular nominee on the Democratic ticket for said office and that John Scott was placed on the official ballot as the nominee of the People\\u2019s party and the Taxpayers\\u2019 party. The certificates of nomination by a convention or-primary meeting shall be in writing and signed by the presiding officer and secretary of such convention or primary meeting. (Election Laws, sec. 26; 1st Sess. Laws, pp. 62, 63.) There are only two other certificates of nomination provided for under the election laws: One by the electors, without a convention or primary meeting. (Election Lav's, sec. 28; 1st Sess. Laws, 63.) One by a committee appointed by a convention- or primary meeting to fill vacancies. (Election Laws, see. 34; 1st Sess, Laws, p. 65.) There were no such certifi'cates filed by the People\\u2019s party nominating John Scott for said office. The assemblage known as the Taxpayers\\u2019 convention, which purported to nominate John Scott for the office of clerk of the district court, was not a convention or primary meeting within the meaning of section 25 of the Election Laws. (1st Sess. Laws, p. 62.) The provisions of the statute governing the nominations and filing certificates for an election to a public office are mandatory and must be strictly followed. {Price v. Lush, 10 Mont. 61, 24 Pac. 749; Lucas v. Ringsrud, 3 S. Dak. 355, 53 N. W. 426; State v. Barter, 4 Wyo. 56, 32 Pac. 14.) The language of a statute to be construed must be consulted and followed. Statutes that expressly declare any particular act essential to a valid election are imperative and considerations of its policy or impolicy must be addressed to the legislature, and no room is left for construction. (Mc-Crary on Election, sec. 190; Bartlett v. Morris, 9 Port. (Ala.) 268, 269; Sedgewick on Statutory and Constitutional Law, 325, 326, note 327, 328; Slaymalcer v. Phillips, 5 Wyo. 453, 40 Pac. 971, 42 Pac. 1049.) Nearly all the states that have adopted the Australian method have provided a statute by which the certificates of nomination are deemed to be valid unless objections are filed or some action is commenced within a limited period after filing. (Kansas: Laws 1893, sec. 10, p. 109; Colorado: Laws 1894, sec. 13, p. 148; Nebraska: Laws 1891, sec. 11, p. 243; New York: Laws 1890, sec. 3, p. 485; South Dakota: Laws 1890, see. 17, p. 157; Massachusetts: Laws 1890, secs. 5, 9, pp. 477, 478; Pennsylvania: Laws 1891, sec. 6, p. 351.) Idaho has no such statute. All, or nearly all, of the states above mentioned have, in addition to the statute cited, another statute either identical with or similar to our section 59, which relates exclusively to the correction of errors appearing in the printed or published ballot after the candidates have been properly nominated and their nominations certified.\\nEden & Warner and W. C. Love, for Eespondent.\\nOn the fifteenth day of September, 1894, the People\\u2019s party convention was held. At the convention, no one was named as candidate for clerk of the district court. The convention having failed to name candidates for several offices, among them the office of clerk of the district court, named a committee consisting of Frank Walton, William F. Fisher and F. H. Murphy., delegating to said committee the power to make the nominations for the offices left vacant by the convention. That the convention had the power to so do, we think, is beyond question. (See State v. Benton, 13 Mont. 306, 34 Pac. 301 \\u2014 a case as nearly like the one at bar as does or can ever exist.) And section 34, of First Session Laws of Idaho, page 65, expressly confers this power. Statutes relative to election, should be liberally construed. (Stale v. Benton, 13 Mont. 306, 34 Pac. 301; Beople v. Board of Canvassers, 129 N Y. 652, 29 N. E. 1032; Simpson v. Osborn, 52 Kan. 328, 34 Pac. 749; Bowers v. Smith, 111 Mo. 45, 33 Am. St. Rep. 491, 20 S. W. 103; Allen \\u00ae. Glynn, 17 Colo. 338, 31 Am. St. Rep. 304, 29 Pac. 678; State v. Van Camp, 36 Neb. 91, 54 N. W. 113; Slaclcpole v. Hallaban, 16 Mont. 40, 40 Pac. 80.) Appellant evidently knew that the auditor of Bannock county had the name of Scott printed on the official ballot under the separate heads, Democratic, People\\u2019s party and Taxpayers\\u2019 party, and being an interested party, it was his duty, under section 59, page 77 of First Session Laws of Idaho, to apply to the probate court to have the official ballot corrected, by striking therefrom the name of Scott as the People\\u2019s party and Taxpayers\\u2019 candidate if it did not properly belong there, and failing to do this he cannot base a contest on that ground after election. (Allen v. Glynn> 17 Colo. 338, 31 Am. St. Rep. 304, 29 Pac. 678; # Bowers v. Smith, 111 Mo. 45, 33 Am. St. Rep. 491, 20 S. W. 103.)\", \"word_count\": \"3417\", \"char_count\": \"19869\", \"text\": \"HTJSTON, J.\\nThis is an action brought by the plaintiff against the defendant to try the right to the office of clerk of the district court and ex-officio auditor and recorder for the county of Bannock. At the regular biennial election held in this state on November 6, 1894, the plaintiff was the nominee of the Republican party of Bannock county, and his name was placed upon the official ballot as such. The defendant was the nominee of the Democratic party for said office, and was also nominated by the People's party and by the Taxpayers' party for the same office, and his name appeared upon the official ballot of said county as the candidate of each of said parties for said office. At the said election the plaintiff received, according to the official canvass of the votes east at said election for said office, five hundred and forty-five votes, and the defendant received eight hundred and eighteen votes. It is claimed by plaintiff that the votes cast for the defendant as the candidate of the People's party, being, as found by the district court, two hundred and seventy-five votes, and those cast for defendant by the Taxpayers' party, being, as found by the district court, forty-six votes, should not have been included or counted in the official canvass, for the reason that said defendant's name as a candidate for said office was placed upon said official ballot as the candidate of said People's party and said Taxpayers' party irregularly, and in contravention of the provisions of the election law of this state. It appears: That on the. fifteenth day of September, 1894, the People's party of Bannock county held a convention for the purpose of placing in nomination candidates for the various county offices to be voted for at said election. That said convention left the nomination for clerk of the district court of said county vacant, and that said convention, while in session, duly assembled for the purpose herein mentioned, passed this resolution: \\\"Resolved, that a special \\u2022committee of three be elected who are authorized to fill all vacancies on the ticket.\\\" That said resolution was adopted by said convention, and Frank Walton, Frank H. Murphy and W. F. Fisher were elected as such committee. That said committee organized by the election of W. F. Fisher as chairman and Frank H. Murphy as secretary. Subsequently, and within the time prescribed by the statute, such nomination was duly certified by the chairman and secretary of said committee to the auditor of said county of Bannock, together with the other nominees of said party for county offices of said county. It is contended by the plaintiff that said resolution of the People's party convention gave no power or authority to said committee to certify the name of the defendant to the auditor of said county, or authorizes said auditor to place the name of defendant upon the official ballot of said county as the candidate of the People's party for said office. It is contended by counsel for appellant that under the provisions of section 34 of the elec tion law of 1891 such committee has no power to fill any vacancy that is not made or caused by the death or declination of a candidate previously nominated by the convention. Perhaps a strict technical construction of section 34 might support this-contention under certain circumstances, but when we consider, this law in the light expressed by an authority cited by appellant, viz.: \\\"The main purpose of the law evidently is to enable voters to express their real wishes by their ballots freed entirely from the influences which might tend to corrupt or intimidate them, and also to provide for printing and distributing at public expense ballots which will afford all political parties, and considerable groups of electors, a fair opportunity to vote for the candidates of their choice\\\" (the italics are ours) \\u2014we may well doubt whether the construction contended for by appellant's counsel should be entertained. Vacancies may occur in the nominations of political parties from various causes, entirely consistent with honesty of purpose on the part of the convention, and a just and commendable desire on their part to subserve the best interests of the people. Take, for instance, the case cited by counsel for the appellant in their last brief, to wit, that of the Prohibition party's last state convention in this state. Now, we all know what is the primary and underlying principle of that party, and in declining to place-upon their ticket any candidates for the offices of judge of the-supreme court and attorney general they undoubtedly considered that they were acting for the best interests of their party and of the people, presumably in view of the fact that the-candidates for those offices on the Bepublican ticket were such-known and palpable exponents of the fundamental principles of the Prohibition party that any nominations by them would' not only be invidious, but an act of supererogation. Counsel for appellant, in their brief, seem to intimate that their contention is supported by the English decisions upon similar statutes. In this counsel are in error, we think, in their application of the rule of the English statute to this case. It is provided by 35 and 36 Victoria (1872), amended in 1875 by 38 and 39 Victoria, page 283, chapter 40, section 1, that the returning officer shall decide on .the validity of every objection made tp. a nomination paper, and his decision, if disallowing the objection, shall be final, bnt, if allowing \\\"the same, shall be subject to reversal on petition questioning the election or return. It will be seen that in England the erroneous placing of a name upon the ballot, though not corrected before election, is not permitted to work the disfranchisement of the voter.\\nMuch zeal is manifested and much space occupied in the brief of counsel in picturing the fearful results attendant upon any but the strictest construction of the statutes under consideration, and yet we are constrained to think that the agonizing fear of counsel in that behalf is a little overstrained. We have always been under the impression that, however divergent the fact might sometimes be, our government is predicated upon the theory that the American people were capable of self-government, and our election law seems to comprehend intelligence and education in the voter, sufficient to enable him to read the names on the ballot, for he is required to designate the candidate for whom he desires to vote by placing a cross opposite the name of such candidate, and this he must do without assistance extraneous of the ballot itself. Under the old system of voting, the apprehension of counsel was that some voter might be deceived by the placing of the name of a candidate upon more than one place upon the ballot; but it does seem to me that the danger of such deception is reduced to the minimum under a system which requires the voter to read upon the ballot the name of every candidate he would vote for, and distinguish the same by a certain prescribed mark. Of course, there always has been and there always will be, until integrity becomes a more prominent factor in party politics than it ever has been in this country, found means whereby voters may and will be deceived. All legislation upon this subject ought to be directed to the protection of the voter, not only from intimidation and corruption, but from deceit; but such means, when provided, ought not to be so construed as to work the disfranchisement of the honest and innocent voter. Says the supreme court of Missouri in the case of Bowers v. Smith, 111 Mo. 45, 33 Am. St. Rep. 491, 20 S. W. 101: \\\"So that the language of* section 4772 (Missouri Rev. Stats. 1889) forbidding other bal lots than those printed by the respective clerks of the county courts, according to the provisions of this article, to be cast or \\u2022counted, obviously carries no such meaning as to nullify ballots printed by county clerks as directed by the law, and cast by woters in conformity \\u00abthereto, but incorrectly made up beforehand by the Secretary of State or the county clerk by erroneously \\u2022admitting some candidate's name to a place on the ballot. The suffrage is regarded with jealous solicitude by a free people, and should be so viewed by those intrusted with the mighty power of guarding and vindicating their sovereign rights. Such a construction of a law as would permit the disfranchisement \\u2022of large bodies of Voters because of an error of a single official \\u2022should never be adopted where the language in question is fairly susceptible of any other.\\\" With this view we are in full accord, while it must be conceded that some of the earlier decisions, notably in the case of Price v. Lush, 10 Mont. 61, 24 Pac. 749, hold to a strict construction of these statutes; but that rule no longer obtains. We have not been cited, to, nor \\\"have we found, any case since Price v. Lush (and that case has since been overruled by the court that rendered the decision). Tn Stackpole v. Hallahan, 16 Mont. 40, 40 Pac. 80, which supports the contention herein, counsel for appellant cite with a degree of confidence the case of Lucas u. Ringsrud, 3 S. Dak. 355, 53 N. W. 426. An examination of this case shows that \\\"the proceedings therein were prior to the issuing of the official ballot, and, of course, before the election. The decision in that \\u2022case did not involve the question of the disfranchisement of a large number of electors on account of the failure of some official to comply with all the duties of the statute in the preparation and printing of the official ballot. The action in Lucas v. Ringsrud was mandamus to require the Secretary of State to prepare the official ballot in compliance with what were claimed to be the provisions of the statute. Section 59 of our law concerning elections and electors provides that: \\\"Whenever it shall appear that an error or omission has occurred in the publication of the names or descriptions of the candidates nominated for office, or in printing of the tickets, the probate court of the county may, upon application of any elector, by order require the county auditor or municipal clerk to correct such error, or show cause why such error should not be corrected.\\\" This or a similar provision obtains in all of the statutes predicated upon what is known as the \\\"Australian Ballot Law,\\\" and it has, we believe, been uniformly held under such statutes that, where :a party neglects to avail himself of this provision, he cannot, after awaiting the result of the election, and finding himself \\u2022defeated at the polls, seek to defeat the expressed will of the voters upon the technical error of an officer, which he might have had corrected had he invoked the provisions of the statute \\u2022at the proper time. (Bowers v. Smith, 111 Mo. 45, 33 Am. St. Rep. 491, 20 S. W. 101, and cases therein cited.) The equity and righteousness of this rule must, we think, be aiopar\\u2022ent to any mind not warped by the zeal of partnership. The plaintiff had abundant opportunity, under the law, to have any \\u2022of the alleged errors in the ballot corrected before the election, and, having neglected to avail himself thereof, he cannot now be heard to urge such objections when their recognition would avail not only to defeat the express will of the voters, but to disfranchise hundreds of legal voters. It may well be doubted whether, had the result of the election been different, we would have heard such a zealous, eloquent and voluminous appeal for a strict construction of the statutes as is presented on behalf of the plaintiff,\\nThe somewhat vindictive attack of counsel upon the assemblage of citizens who met at McCammon, and who are denominated in the brief as the \\\"Taxpayers' Party,\\\" while it might pass muster in a political stump speech, can hardly be accepted by any court as argument. It is true, there were not a great many people present, but the statute, although in my opinion fit contains much that had better been left out, does not assume to prescribe any number of people requisite to constitute \\\"a conwention or primary meeting\\\" under the statute. The language \\u2022of the statute is as follows: \\\"A convention or primary meeting, within the meaning of this act, is an organized assemblage of \\u2022electors or delegates representing a political party or principle.\\\" (Election Law 1891, sec. 25.) But the learned counsel for the .-appellant tell us that the convention of the Taxpayers' party of Bannock county did not represent any political party or principle, and therefore the votes cast for defendant by that party should not be counted. Perhaps the learned counsel, or some one of them, can tell us what political principle except \\\"to get there\\\" is ever involved in a county convention for the nomination of candidates for county offices. The desire for office may have existed in the minds and hearts of the citizens assembled at MeCammon, and its intensity or honesty is not to be gauged by the chances of their hopes ending in fruition. Numbers do-not control in this matter. \\\"Brute force, is many, mind only one.\\\" It was a convention or primary meeting under the statute, and the nominees were entitled to a place upon the official, ballot.\\nThe question presented by the record is one of much importance to the people of this state, and we have endeavored to give it the consideration due to its importance, and we are constrained, under what we conceive to be a correct interpretation-of the law, and a proper recognition of its aim and the purposes and objects sought to be attained by its enactment, to-affirm the judgment of the district court, and we are confident that in so doing we are in accord with nearly, if not quite, alt the more recent authorities. The judgment of the district court, is affirmed, with costs.\"}"
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+"{\"id\": \"6951918\", \"name\": \"Paul MORRISON, Plaintiff-Appellant, v. NORTHWEST NAZARENE UNIVERSITY, Defendant-Respondent\", \"name_abbreviation\": \"Morrison v. Northwest Nazarene University\", \"decision_date\": \"2012-03-22\", \"docket_number\": \"No. 37850-2010\", \"first_page\": \"660\", \"last_page\": \"673\", \"citations\": \"152 Idaho 660\", \"volume\": \"152\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T19:02:39.765735+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice BURDICK, Justices W. JONES, and HORTON concur.\", \"parties\": \"Paul MORRISON, Plaintiff-Appellant, v. NORTHWEST NAZARENE UNIVERSITY, Defendant-Respondent.\", \"head_matter\": \"273 P.3d 1253\\nPaul MORRISON, Plaintiff-Appellant, v. NORTHWEST NAZARENE UNIVERSITY, Defendant-Respondent.\\nNo. 37850-2010.\\nSupreme Court of Idaho, Boise, February 2012 Term.\\nMarch 22, 2012.\\nJohn C. Doubek; Doubek & Pyfer, LLP; Helena, Montana; argued for appellant.\\nJohn A. Bailey; Racine Olson Nye Budge & Bailey, Chtd; Pocatello; argued for respondent.\", \"word_count\": \"8529\", \"char_count\": \"51509\", \"text\": \"EISMANN, Justice.\\nThis is an appeal challenging the district court's ruling on summary judgment that the plaintiffs action for personal injuries suffered when he fell from a climbing wall was barred by the hold harmless agreement he signed prior to engaging in that activity. We affirm the judgment of the district court.\\nI.\\nFactual Background.\\nAs a team building exercise, Paul Morrison's employer wanted him and his coworkers to participate in a program at Northwest Nazarene University that included a climbing wall activity. Several days prior to doing so, Morrison's employer required him to sign an agreement prepared by the University holding it harmless from any loss or damage he might incur due to the University's negligence or that of its employees.\\nMorrison was severely injured when he fell while on the climbing wall. He filed this action alleging that his injuries were caused by the negligence of the University employees who were supervising the climbing wall activity. One of Morrison's coworkers was assigned to control the safety rope used to keep the wall climber from falling, and Morrison alleges that his fall was caused by the negligent failure of a University employee to train and supervise that eoworker.\\nThe University moved for summary judgment on the ground that Morrison's cause of action was barred by the hold harmless agreement. The district court agreed and dismissed this action. Morrison then timely appealed.\\nII.\\nDid the District Court Err in Failing to Invalidate the Hold Harmless Agreement Due to the Inequality in Bargaining Power?\\n\\\"Freedom of contract is a fundamental concept underlying the law of contracts and is an essential element of the free enterprise system.\\\" Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499, 465 P.2d 107, 110 (1970). Agreements exempting a party from liability for negligence will be upheld unless the party owes to the other party a public duty created by statute or the other party is at an obvious disadvantage in bargaining power. Lee v. Sun Valley Co., 107 Idaho 976, 978, 695 P.2d 361, 363 (1984).\\nIn this ease, there is no allegation of any public duty that the University owed to Morrison. However, he contends that there was an obvious disadvantage in bargaining power because his employer required that he sign the hold harmless agreement. The existence of unequal bargaining power is not, by itself, sufficient to relieve a party from the provisions of a hold harmless agreement. Rather, the party must be \\\"compelled to submit to a provision relieving the other from liability for future negligence [because] . the party injured has little choice, as a practical matter, but to use the services offered by the party seeking exemption.\\\" 57A Am. Jur.2d Negligence \\u00a7 63 (2004). It is essentially the same test for determining whether unequal bargaining power between parties to a contract is sufficient to constitute procedural uneonseionability. See Lovey v. Regence BlueShield of Idaho, 139 Idaho 37, 42, 72 P.3d 877, 882 (2003) (\\\"Lack of voluntariness can be shown . by great imbalance on the parties' bargaining power with the stronger party's terms being nonnegotiable and the weaker party being prevented by market factors, timing, or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.\\\")\\nIn this case, Morrison stated in his affidavit: \\\"My said employer told us before we went to the team building exercises that I needed to sign the release in order to participate. All employees were expected to participate and I signed it.\\\" He also stated that he was not given the option of refusing to sign the release and it was required by his employer. Morrison was not injured by signing the release. He was injured by falling from the climbing wall. Absent from his affidavit is any statement that he told his employer that he did not want to climb the climbing wall and that his employer ordered him to do so anyway.\\n\\\"With respect to adult participants, the general rule is that releases from liability for injuries caused by negligent acts arising in the context of recreational activities are enforceable.\\\" 57A Am.Jur.2d Negligence \\u00a7 65 (2004). The agreement that Morrison signed stated as a separate paragraph: \\\"The undersigned has read and voluntarily signs this release and waiver of liability and indemnity agreement. The undersigned further agrees that no oral representations, statements or inducements apart from the foregoing agreement have been made.\\\" Morrison has not demonstrated a genuine issue of material fact showing that there was an obvious disadvantage in bargaining power sufficient to relieve him of the provisions of the hold harmless agreement that he signed.\\nIII.\\nDid the District Court Err in Ruling that the Hold Harmless Agreement Was Valid and that It Applied to the Cause of Action Alleged in the Complaint?\\nMorrison contends that the hold harmless agreement is invalid because it is overly broad and is ineffective to bar his claim because it does not clearly identify the conduct that caused his injuries. \\\"Interpretation of unambiguous language in a contract is an issue of law.\\\" McDevitt v. Sportsman's Warehouse, Inc., 151 Idaho 280, 283, 255 P.3d 1166, 1169 (2011).\\nThe agreement is entitled \\\"Release / Hold Harmless / Indemnity / Assumption of Risk Agreement,\\\" and it states as follows:\\nRelease: The undersigned, in consideration of being permitted to participate in the Northwest Nazarene University Challenge Course Adventure Program, for educational purposes does irrevocably, personally and for his or her heirs, assigns and legal representatives, release and waive any and all past, present or future claims, demands, and causes of action which the undersigned now has or may in the future have against Northwest Nazarene University, its members, directors, administrators, representatives, officers, agents, employees, and assigns, and each of them (hereinafter jointly and severally referred to as \\\"Releasees\\\"), for any and all past, present or future loss of or damage to property, and/or bodily injury, including death, however caused, resulting from, arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge Course Adventure Program.\\nHold Harmless/Indemnity: The undersigned agrees to defend, indemnify and hold harmless the Releasees and each of them from any loss, liability, damage or cost she/he might incur due to her/his participation in or use of the Northwest Nazarene University Challenge Course Adventure Program whether caused by the negligence of the Releasees or otherwise. The undersigned further covenants not to cause any action at law or in equity to be brought or permit such to be brought in his or her behalf, either directly or indirectly, on account of loss or damage to property and/or bodily injury, including death, against the Releasees, resulting from, or arising out of, or in any way connected -with any claims, demands, and causes of action which now or in the future may be asserted against the Releasees arising out of or by reason of said course described above, including any injury, loss or damage.that might occur at any place in connection therewith.\\nAssumption of Risk: The undersigned further states and affirms that he/she is aware of the fact that the aforesaid course, even under the safest conditions possible, may be hazardous, that he/she assumes the risks of any and all loss or of damage to property and/or bodily injury, including death, however caused, resulting out of or in any way connected with the Northwest Nazarene University Challenge Course Adventure Program; that he/she is of legal age and is competent to sign this Waiver of Claims and Release of Liability; and that he/she has read and understands all of the provisions herein contained. Risks include but are not limited to the following: [a list, of various types of actions that can cause injury and various types of injuries].\\nMorrison contends that the hold harmless agreement is invalid because it is overbroad. It exempts the University and \\\"its members, directors, administrators, representatives, officers, agents, employees, and assigns, and each of them\\\" from \\\"any and all past, present or future claims, demands, and causes of action which the undersigned now has or may in the future have\\\" for all \\\"bodily injury, including death, however caused, resulting from, arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge Course Adventure Program.\\\" It also specifically mentions negligence. The hold harmless agreement is not overbroad. It only applies to all causes of action \\\"resulting from, arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge Course Adventure Program.\\\" Due to the dangers inherent in climbing the climbing wall, the University can certainly require such a release from anyone choosing to engage in that activity.\\nThe agreement is likewise not inapplicable because of its failure to mention the specific conduct that is alleged to have constituted negligence in this ease. In Anderson & Nafziger v. G.T. Newcomb, Inc., 100 Idaho 175, 178, 595 P.2d 709, 712 (1979), this Court stated, \\\"Clauses which exclude liability must speak clearly and directly to the particular conduct of the defendant which caused the harm at issue.\\\" That language can be misinterpreted, because neither that case nor the cases it cited nor our subsequent cases have held that an exculpatory clause must list the specific, allegedly negligent conduct at issue.\\nThe Anderson & Nafziger Court cited three .cases as support for the statement. The first one was Valley National Bank v. Tang, 18 Ariz.App. 40, 499 P.2d 991 (App.1972). In that case, the court stated \\\"that clauses which purport to exclude liability for negligence must speak clearly and directly to the conduct at issue,\\\" id. at 994, which it explained as meaning that an exculpatory clause would not cover negligence unless the wording was broad enough to include future negligent conduct within its scope. It stated, \\\"The principal reason for such a construction is to assure that there has been actual agreement between the parties that the defendant shall not be liable for the consequences of future conduct which would otherwise be negligent.\\\" Id. The second case was Missouri Pac. R. Co. v. City of Topeka, 213 Kan. 658, 518 P.2d 372 (1974). The court held that a contract requiring a railroad to \\\"save the said City of Topeka harmless from all costs, damages and expenses for the payment of which the said city may become hable to any person or persons or corporation by reason of the granting of said right of way to said railway company,\\\" id. at 375, was not broad enough to require the city to pay the railroad the cost of relocating its tracks due to an urban renewal project. The court stated, \\\"As we view the 'hold harmless' clause, to which the railroad is deemed to have agreed, there is no suggestion it was intended to provide protection against liability for expenses, loss or damage created or made necessary by actions of the city-franchisor.\\\" Id. at 376. The third case was Walker Bank & Trust Co. v. First Sec. Corp., 9 Utah 2d 215, 341 P.2d 944 (1959), in which the beneficiary of a life insurance policy sued a bank for damages because the policy had lapsed due to the bank's failure to charge the insured's account with drafts for the monthly premiums. The insured had signed an authorization to pay the drafts from her account, but the bank misplaced, it. The authorization included a provision stating, \\\"I understand and agree that your compliance herewith shall constitute a gratuity and courtesy accorded me as your customer, and that you assume or incur no liability whatsoever in the premises, and I further agree to hold you harmless of and from any and all claims arising hereunder.\\\" Id at 947. The court held that the hold harmless agreement only barred claims resulting from the bank's \\\"compliance herewith,\\\" not its failure to comply with the agreement. The court stated:\\nIt will be noted that the language quoted above purports only to protect the bank from liability arising from its compliance with the authorization, indicating that if it did so it would \\\"incur no liability whatsoever.\\\" . But there is no provision that it would be protected in the event of entire failure to fulfill the arrangement.\\nId. (emphasis theirs). None of the cases held that an exculpatory clause was ineffective because the specific conduct that gave rise to the cause of action was not listed.\\nIn Anderson & Nafziger, the buyer contracted to purchase three pivots that the seller agreed to deliver and install in mid-May, and the buyer brought an action for damages when the seller failed to do so. The purchase contract included a provision limiting the seller's liability which stated as following:\\nIt is hereby understood and agreed that all work ordered hereunder is precarious and uncertain in its nature, and all pulling of pumps, reinstalling pumps, repair work, alterations, well work, sand pumping, corrections, or other work herein specified, etc., shall be strictly at the Purchaser's risk. The Seller will not be liable for damage of any land, particularly including loss or damage for diminuation or failure of crop, shortage of water, inability or failure to supply same, or for diminuation or cessation of water flow; nor shall the Seller be liable for any damages or delays of any kind on account of sticking of pump in the well in any position, either when being pulled out or being reinstated nor shall the Seller be liable for any damages on account of delay in making repairs or installing by virtue of some defect in the well, or by virtue of the well not being in condition to receive the machinery, or by virtue of unforeseen or changing conditions in the well or in or about the premises on which the well is located.\\nAnderson & Nafziger, 100 Idaho at 178, 595 P.2d at 712. This Court held that the clause did not preclude liability for crop loss caused by the failure to deliver the pivots because \\\"[a] reading of the total clause indicates that 'the clause is aimed at limiting the seller's liability for crop loss which is caused by installation or repair work done by seller.\\\" Id. The clause listed specific types of conduct and causes of damage to which it applied. It did not have a general provision excluding liability for any delay in delivering or installing the equipment.\\nA review of this Court's other eases shows that the hold harmless agreement need not specify the exact conduct that was allegedly negligent or caused harm. In II. J. Wood Co. v. Jevons, 88 Idaho 377, 400 P.2d 287 (1965), a landowner had entered into a contract for the purchase and installation of an irrigation pump in her well. The sales contract included a hold harmless agreement stating as follows:\\nSeller shall not be liable for damage or for consequential damage, particularly including loss or damage for diminution or failure of crops, shortage of water, or inability or failure to supply same, whether due to improper installation or performance of the machinery or otherwise . it being understood and agreed by Buyer that this work is uncertain and precarious in its nature.\\nId. at 378, 400 P.2d at 289. The landowner sought damages, alleging that she suffered crop losses because \\\"the pump never functioned properly,\\\" because the seller \\\"removed the pump to make repairs and failed to provide appellant with a substitute pump,\\\" and because \\\"in making repairs to said pump [the seller] carelessly and negligently lost the tail pipe of said pump in the well, causing an inadequate flow or supply of water during the irrigation season.\\\" Id. at 380, 400 P.2d at 288. The trial court sustained the seller's objection to any evidence of crop loss, and then dismissed the landowner's claim. On appeal, this Court held that it was not error to exclude evidence of crop loss because \\\"[t]he foregoing quoted portion of the contract is unambiguous and clearly exempts respondent from liability for crop damage.\\\" Id. at 381, 400 P.2d at 289. There was nothing in the exculpatory clause specifying that the seller would not be liable for failing to provide the landowner with a substitute pump while hers was being repaired or for negligently losing the tail pipe in the well, both of which were conduct that she alleged caused her damage. In fact, the clause did not even include the word \\\"negligence.\\\"\\nIn Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 465 P.2d 107 (1970), the landowner entered into a contract for the purchase and installation of irrigation pumping machinery. He later brought an action seeking damages on the ground that he suffered crop loss because of the allegedly negligent installation of the pumping equipment. Paragraph 10 of the contract between the parties included an exculpatory clause stating:\\nSeller or Holder shall not be liable for consequential damage particularly including loss or damage for diminution or failure of crops, shortage of water, or inability or failure to supply same, due to installation or performance of the property sold hereunder, or repair work, pump or well service, nor shall Seller be liable for collapsing, telescoping, separating or otherwise injuring the well or pump, for any cause whatsoever, including negligence, since the Buyer and Seller agree that the work is hazardous and precarious in its nature....\\nId. at 497, 465 P.2d at 108. The trial court dismissed the landowner's claim based upon the above contract provision, and the landowner appealed. In upholding the dismissal, we stated, \\\"It is our opinion that the language contained in paragraph 10 of the contract is clear and unambiguous and its effect is to preclude the seller's liability for consequential damages such as are sought by the appellant.\\\" Id. at 499, 465 P.2d at 110. We did not require that the exculpatory clause mention the specific conduct that was allegedly negligent. In fact, the specific conduct that allegedly constituted negligent installation was not even identified in the opinion.\\nIn Steiner Corp. v. American District Telegraph, 106 Idaho 787, 683 P.2d 435 (1984), the plaintiff contracted with the defendant to install and maintain a fire alarm system in the plaintiffs building. The system failed to detect a fire because the defendant had not checked the electrolyte levels in the system's batteries for eight months even though they were to be inspected monthly. The parties' contract included a provision stating that the defendant \\\"shall be exempt from liability for loss or damage due directly or indirectly to occurrences, or consequences therefrom, which the service is designed to detect or avert,\\\" and that the exculpatory clause applied if the loss or damage \\\"results directly or indirectly to person or property from performance or nonperformance of obligations imposed by this contract or from negligence, active or otherwise, of the [defendant], its agents or employees.\\\" Id. at 789, 683 P.2d at 437. The plaintiff sued for strict liability, breach of warranty, and negligence. This Court first held that the complaint did not allege a cause of action under those theories, but then stated that even if the plaintiff could allege a cause of action it was barred by the exculpatory clause. Id. at 791, 683 P.2d at 439. We stated, \\\"This unambiguous clause was clearly intended to apply to exclude liability under any of the bases urged by Steiner.\\\" Id. The clause did not specifically mention the failure to inspect or maintain the batteries.\\nIn Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984), the plaintiff, prior to going on a trail ride, signed a rental agree ment that included an exculpatory clause stating:\\nUpon my acceptance of horse and equipment, I acknowledge that I assume full responsibility for my safety. I further understand that I ride at my own risk, and I agree to hold the above entity, its officers, employees, etc., harmless from every and all claim which may arise from injury, which might occur from use of said horse and/or equipment, in favor of myself, my heirs, representatives or dependents. I understand that the stable does not represent or warrant the quality or character of the horse furnished.\\nId. at 977, 695 P.2d at 362. Prior to the plaintiff mounting his horse, the defendant's employee adjusted the cinch on the saddle. During the ride, the saddle loosened, and the plaintiff was injured when it rotated and the horse reared as he was attempting to dismount. We upheld the dismissal of the plaintiffs claim on the ground that it was barred by the exculpatory clause, stating, \\\"The agreement clearly and simply states that Sun Valley should be held 'harmless for every and all claim which may arise from injury, which might occur from use of said horse and/or equipment,' which is both unambiguous and applicable to the facts alleged by plaintiff.\\\" Id. at 978, 695 P.2d at 363. The exculpatory clause did not even mention negligence, nor did it specifically list the failure to properly adjust the cinch as being within its scope. Justice Bistline dissented for that very reason. Id. at 981, 695 P.2d at 366.\\nFinally, in Empire Lumber Co. v. Thermal-Dynamic Towers, Inc., 132 Idaho 295, 971 P.2d 1119 (1998), a warehouse lease contained a provision stating, \\\"Except for reasonable wear and tear and damage by fire or unavoidable casualty, Lessee will at all times preserve said premises in as good repair as they now are or may hereafter be put to....\\\" Id. at 297, 971 P.2d at 1121. We held that the clause did not exempt the lessee from liability for fire damage caused by the lessee's negligence, stating, \\\"The lease language does not clearly indicate, as required by this Court's decision in Anderson & Nafziger, that the parties intended to release TDT from liability for its negligent acts.\\\" Id. at 300, 971 P.2d at 1124. The clause made no mention of negligence, nor could its language be construed to apply to negligence. Hold harmless agreements are strictly construed against the person relying upon them. Anderson & Nafziger, 100 Idaho at 178, 595 P.2d at 712.\\nThe decisions of this Court have not held that a hold harmless agreement must describe the specific conduct or omission that is alleged to be negligent in order for it to bar recovery. That is consistent with the general law. \\\"The parties to a release need not have contemplated the precise occurrence that caused the plaintiffs injuries but rather may adopt language to cover a broad range of accidents by specifying injuries involving negligence on the part of the defendant.\\\" 57A Am.Jur.2d Negligence \\u00a7 53 (2004). In this case, the agreement stated that Morrison held the University harmless \\\"from any loss, liability, damage or cost she/he might incur due to her/his participation in or use of the Northwest Nazarene University Challenge Course Adventure Program whether caused by the negligence of the Releasees or otherwise.\\\" That language clearly stated that the clause applied to negligence and to any loss or damage he might incur from his participation in the program. The district court did not err in dismissing his negligence claim because it was barred by the hold harmless agreement.\\nIV.\\nIs the Defendant Entitled to an Award of Attorney Fees?\\nIn its issues on appeal, the University states that it \\\"requests attorney fees on appeal pursuant to Idaho Code \\u00a7 12-120(3), Idaho Code \\u00a7 12-121, and/or Idaho Rule of Civil Procedure 54(e)(1).\\\" However, it did not again mention attorney fees until it states in the conclusion section of its brief, \\\"Respondent further requests an award of attorney fees on appeal pursuant to Idaho Code \\u00a7 12-120(3), Idaho Code \\u00a7 12-121, and/or I.R.C.P. Rule 54(e)(1).\\\" As we held in Weaver v. Searle Brothers, 129 Idaho 497, 503, 927 P.2d 887, 893 (1996), where a party requests attorney fees on appeal but does not address the issue in the argument section of the party's brief, we will not address the issue because the party has failed to comply with Idaho Appellate Rule 35.\\nV.\\nConclusion.\\nWe affirm the judgment of the district court. We award the respondent costs, but not attorney fees, on appeal.\\nChief Justice BURDICK, Justices W. JONES, and HORTON concur.\\n. We need not decide whether an employer's demand that an employee participate in a hazardous activity would be sufficient to void a hold harmless agreement between the employee and the third party that conducted such activity.\\n. There is no contention that the conduct of the University employee was reckless or that the employee intentionally injured Morrison.\"}"
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+"{\"id\": \"818938\", \"name\": \"PEASLEY TRANSFER & STORAGE CO., an Idaho corporation, Plaintiff-Counterdefendant-Respondent, v. Victoria H. SMITH, Defendant-Counterclaimant-Cross Claimant-Appellant, and Sharon K. Smith; Ada County, a political subdivision of the State of Idaho; The Ada County Sheriff's Department and its sheriff, Vaughn Killeen, Defendants-Cross Defendants-Respondents, and Vernon K. Smith, Defendant-Counterclaimant\", \"name_abbreviation\": \"Peasley Transfer & Storage Co. v. Smith\", \"decision_date\": \"1999-03-12\", \"docket_number\": \"No. 24442\", \"first_page\": \"732\", \"last_page\": \"746\", \"citations\": \"132 Idaho 732\", \"volume\": \"132\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:08:05.164655+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justice SCHROEDER and Justices Pro Tem JOHNSON, WOOD and MEEHL, CONCUR.\", \"parties\": \"PEASLEY TRANSFER & STORAGE CO., an Idaho corporation, PlaintiffCounterdefendant-Respondent, v. Victoria H. SMITH, DefendantCounterclaimant \\u2014 Cross Claimant-Appellant, and Sharon K. Smith; Ada County, a political subdivision of the State of Idaho; The Ada County Sheriff\\u2019s Department and its sheriff, Vaughn Killeen, Defendants-Cross Defendants-Respondents, and Vernon K. Smith, DefendantCounterclaimant.\", \"head_matter\": \"979 P.2d 605\\nPEASLEY TRANSFER & STORAGE CO., an Idaho corporation, PlaintiffCounterdefendant-Respondent, v. Victoria H. SMITH, DefendantCounterclaimant \\u2014 Cross Claimant-Appellant, and Sharon K. Smith; Ada County, a political subdivision of the State of Idaho; The Ada County Sheriff\\u2019s Department and its sheriff, Vaughn Killeen, Defendants-Cross Defendants-Respondents, and Vernon K. Smith, DefendantCounterclaimant.\\nNo. 24442.\\nSupreme Court of Idaho, Boise,\\nSeptember 1998 Term.\\nMarch 12, 1999.\\nRehearing Denied July 9, 1999.\\nVernon K. Smith, Jr., Boise, for appellant.\\nGreg H. Bower, Ada County Prosecuting Attorney, Alexander C. Yewer, Deputy Prosecuting Attorney, Boise, for respondent Ada County. Alexander C. Yewer argued.\", \"word_count\": \"7593\", \"char_count\": \"46237\", \"text\": \"ON REVIEW\\nSILAK, Justice.\\nThis is a review of a Court of Appeals decision concerning a warehouseman's lien, and related issues of a sheriffs liability when executing a writ of execution on personal property and a claim of conversion.\\nI.\\nFACTS AND PROCEDURAL BACKGROUND\\nIn their divorce action in February 1991, Vernon K. Smith (Vernon) and Sharon K. Smith (Sharon) were each awarded certain separate property items and a share of the community property. Sharon was awarded a monetary judgment secured by a \\\"judicially declared lien\\\" in all of the community property awarded to Vernon.\\nOn April 23, 1991, in an effort to collect on her judgment, Sharon obtained a writ of execution directed to the Ada County Sheriffs Department. Pursuant to the writ, the sheriff was instructed to seize property in accordance with a detailed list of the specific community property awarded to Vernon in the divorce proceeding. The sheriff took possession of the property on May 1, 1991, engaging Peasley Transfer & Storage Co. (Peasley) to pick up the items and to store the property pending an execution sale. On May 15, 1991, prior to the date of sale, Vernon's mother, Victoria H. Smith (Victoria), asserted an interest in some of the property levied upon. She filed a third party claim of exemption, authorized under section 11-203 of the Idaho Code, with the magistrate division of the district court in the divorce action and with the Ada County Sheriffs Office. Prior to the filing of Victoria's third party claim, there was no indication that the property was not Vernon's. Victoria's interest in the personal property was grounded upon an unrecorded, unnotarized bill of sale dated April 10, 1991, from Vernon to Victoria. The bill was signed pursuant to a power of attorney granted by Vernon to counsel who was representing Vernon at the time.\\nOn June 20,1991, Sharon's counsel notified the sheriff to release to Vernon all the property levied upon pursuant to the filing of a bankruptcy proceeding by Vernon. The sheriff, on the same day, prepared a letter authorizing Peasley to release to Vernon, or his agent, the property subject to the execution, which was being stored at Peasley's warehouse. The sheriff paid all storage costs incurred from May 1, 1991 to June 21, 1991. Peasley attempted unsuccessfully to have Vernon pick up the property and pay for storage costs that continued to accrue after June 21, 1991. On September 3, 1991, the sheriff sent the June 20, 1991 release letter to counsel representing Vernon in the bankruptcy proceeding. The sheriff stated in the letter that Vernon had refused to come by the sheriffs office to sign for and pick up the June 20, 1991 release letter despite several phone conversations between the sheriffs office and Vernon.\\nOn September 20, 1991, at the request of his attorney representing him in the bankruptcy proceeding, Vernon responded to the sheriffs September 3, 1991 letter. In the letter, Vernon asserted that the sheriff, upon receiving the third party claim, had a duty to return the property or incur liability for the cost of continued storage unless an appropriate bond was posted by Sharon. Vernon also stated that the release letter was invalid because it authorized release to Vernon and not Victoria. On September 24, 1991, Vernon wrote a letter to Peasley informing Peasley that he would not be responsible for any storage costs accruing after June 21, 1991.\\nPeasley initiated this action against Vernon in October 1992 seeking recovery of storage costs. Peasley amended its complaint in April 1993 seeking recovery of its storage costs from Victoria, as well as from Ada County, the Ada County Sheriffs Department and Sheriff Vaughn Killeen (County Defendants). Additionally, Peasley requested authority to foreclose its warehouseman's lien to satisfy the outstanding indebtedness. On July 9, 1993, Victoria filed a third party claim of exemption under I.C. \\u00a7 11-203, claiming exemption of property again being seized by the sheriff under a writ of execution issued against Vernon around June 9, 1993 and served on Vernon on June 28,1993. In a memorandum decision filed September 14, 1993, the magistrate judge granted summary judgment in favor of Peasley, holding that Peasley held a valid warehouseman's lien. The magistrate further held any deficiency after the sale could be recovered from either Victoria or Sharon, and that Peasley could not look to the County Defendants for a deficiency since the sheriff had acted pursuant to a letter of instruction and a valid writ of execution and since Ada County had acted in compliance with the statutes applicable to the lawful writ of execution and section 31-2211 of the Idaho Code. Consequently, the magistrate dismissed the County Defendants from the action and awarded attorney fees to Peasley.\\nThe only remaining cause of action, Victoria's cross-claim against Sharon, was tried to the magistrate on September 20, 1993. On October 4, 1993, the magistrate found that Vernon had made a bona fide sale of the property to Victoria, but that Sharon had not acted improperly in causing an execution on the property because she had neither actual nor constructive notice of Vernon's transfer to Victoria. The magistrate further held that since Sharon acted in good faith she should be absolved from liability for storage costs and for any deficiency remaining following foreclosure of Peasley's warehouseman's lien. The magistrate found that Victoria had notice of the release of the property and therefore had a duty to retrieve the property. Finally, the magistrate deemed Victoria's cross-claim to be frivolous and without foundation, and awarded attorney fees and costs to Sharon. On October 19, 1993, the magistrate issued a judgment and decree of foreclosure in favor of Peasley against Victoria for storage costs, and foreclosing Peasley's warehouseman's lien.\\nVictoria appealed from the summary judgment against her and in favor of Peasley, the judgment and attorney fee award entered in favor of Sharon on the cross-claim, and an order dated April 20, 1994, granting Sharon an award for advancement of attorney fees and costs on appeal to the district court. By memorandum decision dated August 17, 1994, the district court affirmed the magistrate's rulings. Victoria filed a timely appeal. In an unpublished substitute opinion of the Court of Appeals dated October 3, 1997, the magistrate's decision was reversed in part, vacated in part, and remanded. See Peasley v. Smith, (Idaho Ct.App. Oct. 3, 1997) (Substitute Opinion). The Court of Appeals held: (1) that the magistrate erred in dismissing the County Defendants from the action pursuant to Peasley's summary judgment because there were disputed questions of material fact relating to the timeliness of their actions in releasing the property; (2) that the magistrate erred in granting summary judgment in favor of Peasley because the sheriff was not a legal possessor of the property at the time of delivery to Peasley and thus did not possess a valid warehouseman's lien; (3) that Sharon's good faith in submitting the writ of execution would not absolve her from liability for conversion of Victoria's property; and (4) that attorney fees should not have been awarded to Peasley or Sharon at trial or on appeal to the district court by order or in the form of an advancement. The County Defendants filed a timely petition for review to this Court which was granted. Neither Sharon nor Peasley submitted a brief in support of then-positions, and neither Sharon nor Peasley argued their positions at the review hearing.\\nII.\\nISSUES ON APPEAL\\nThe County Defendants raise the following issues in their petition for review:\\nA. Whether the magistrate erred in holding that Peasley had a valid warehouseman's lien against the property seized by the Ada County Sheriff under a writ of execution which was regular on its face even though the property seized was not the judgment debtor's.\\nB. Whether the magistrate in the original divorce action had legal authority to impose a judicial lien on the community property awarded to Vernon to secure the judgment awarded to Sharon.\\nC. Whether issues decided by the Court of Appeals are res judicata for the County Defendants on remand.\\nThe following issues are also raised on appeal:\\nD. Whether the magistrate erred in dismissing the County Defendants from the action pursuant to Peasley's motion for summary judgment.\\nE. Whether the magistrate erred in finding for Sharon on Victoria's cross-claim.\\nF. Whether the awards of attorney fees were proper.\\nIII.\\nSTANDARD OF REVIEW\\nIn cases that come before this Court on a petition for review of a Court of Appeals decision, this Court gives serious consideration to the views of the Court of Appeals but directly reviews the decisions of the trial court. See Marshall v. Blair, 130 Idaho 675, 679, 946 P.2d 975, 979 (1997) (citing Schiewe v. Farwell, 125 Idaho 46, 49, 867 P.2d 920, 923 (1993)). \\\"When we review a case appealed from a district court's appellate review of a magistrate's decision, this Court makes an independent appellate review of the magistrate's decision, after giving due regard to the district court's ruling.\\\" Ausman v. State, 124 Idaho 839, 840, 864 P.2d 1126, 1127 (1993). If the magistrate's findings of fact are supported by substantial and competent evidence, we will uphold those findings on appeal. See McNelis v. McNelis, 119 Idaho 349, 351, 806 P.2d 442, 444 (1991). However, this Court exercises free review of the trial court's conclusions of law. See Clements Farms, Inc. v. Ben Fish & Son, 120 Idaho 185, 188, 814 P.2d 917, 920 (1991). Thus, this Court may substitute its view for that of the trial court on a legal issue. See Standards of Appellate Review in State and Federal Courts, IDAHO APPELLATE HANDBOOK \\u00a7 4.2 (1996).\\nIn an appeal from summary judgment this Court will only determine: 1) whether there is a genuine issue as to any material fact; and 2) whether the moving party is entitled to judgment as a matter of law. See Mitchell v. Bingham Mem'l Hosp., 130 Idaho 420, 422, 942 P.2d 544, 546 (1997). This determination is to be based on the \\\"pleadings, depositions, and admissions on file, together with the affidavits, if any.\\\" I.R.C.P. 56(c). However, the Court should liberally construe the facts in favor of the party opposing the motion, together with all reasonable inferences from the evidence. See Mitchell, 130 Idaho at 422, 942 P.2d at 546.\\nIV.\\nANALYSIS\\nA. The Magistrate Did Not Err In Holding That Peasley Had A Valid Warehouseman's Lien Against The Property Seized By The Ada County Sheriff Under A Writ Of Execution Which Was Regular On Its Face.\\nVictoria contends that Peasley could not have had a valid warehouseman's hen under section 28-7-209(3)(b) of the Idaho Code, because the sheriff was not the legal possessor of Victoria's property upon delivery to Peasley. In this respect, Victoria argues that the sheriff had a duty to inquire into the ownership of Victoria's property prior to seizure, and that since he did not, the sheriff could not have been the legal possessor of the property.\\nSection 28-7-209(3)(b) of the Idaho Code states that \\\"[a] warehouseman's lien on household goods . is also effective against all persons if the depositor was the legal possessor of the goods at the time of deposit____\\\" Id. Therefore, a valid warehouseman's lien exists where the sheriff is a \\\"legal possessor\\\" of the property at the time it is deposited with the warehouseman. Thus, Peasley possessed a valid warehouseman's lien if the sheriff was a \\\"legal possessor\\\" of the property when he deposited it with Peasley.\\nIn determining whether the sheriff in this case was a \\\"legal possessor\\\" at the time of deposit, it is necessary to assess the sheriffs legal duties pursuant to the execution of the writ. First, it is well-established that a sheriff has an affirmative legal duty to execute a facially valid writ of execution and is not required to go behind the writ to verify its validity. See I.C. \\u00a7 31-2213 (stating that' the sheriff \\\"is justified in the execution of, and must execute, all process and orders regular on their face____\\\") (emphasis added). In Peterson v. Merritt, 25 Idaho 324, 137 P. 526 (1913), the Court stated:\\nProcess may have been procured through fraud or perjury, or a court which has ordered it may have committed the most serious errors or have exceeded its jurisdiction after once having exercised that jurisdiction, but if these facts do not appear on the face of the process . the officer may execute it and legally justify his action. It would be a most dangerous thing if every peace officer should be obliged to examine into the merits of the case and every step taken by the officer who issued process before going about his duty to serve and execute such process.\\nId. at 332, 137 P. at 529.\\nThis Court has also stated that \\\"[w]hen an officer proceeds to execute an attachment, he is authorized to seize any personalty found in the defendant's possession, if he has no reason to suppose it to be the property of another.\\\" Oakes v. American Sur. Co. of N.Y., 58 Idaho 482, 490, 76 P.2d 932, 936 (1938). The Court in Oakes also stated that an attachment is not wrongful unless an officer \\\"knows when he attaches personal property that it does not belong to the defendant.\\\" Id. In this case, the sheriff possessed a facially valid writ of execution with directions to levy on specifically listed property. Victoria's interest in the personal property was grounded upon an unrecorded, unnotarized bill of sale dated April 10, 1991, from Vernon to Victoria. Under these circumstances, the sheriff acted consistent with his legal obligations in seizing the property pursuant to the writ.\\nA sheriffs possession of property seized pursuant to a validly issued writ of execution is lawful pending the outcome of proceedings under I.C. \\u00a7 11-203, which governs the determination of competing claims for possession of property seized pursuant to a writ of execution. See I.C. \\u00a7 11-203. Of course, if a sheriff fails to perform his statutory duties under I.C. \\u00a7 11-203, he may be liable for his failure. However, for purposes of a warehouseman's lien under I.C. \\u00a7 28-7-209(3)(b), it is necessary to determine only whether the sheriffs possession was legal at the time the property was deposited with the warehouseman. See Smithers v. Tru-Pak Moving Systems, Inc., 121 N.C.App. 542, 468 S.E.2d 410, 414 (1996); cf. Cordle v. Lincoln Moving & Storage, Inc., 19 UCC Rep. Serv. 1204, 1205 (Neb.Dist.Ct.1976) (suggesting that, had Nebraska adopted \\u00a7 7-209(3)(b), an officer placing property in storage pursuant to court order would be in legal possession of the property); Disch v. Raven Transfer & Storage Co., 17 Wash.App. 73, 561 P.2d 1097, 1100 (1977) (suggesting that, had Washington adopted \\u00a7 7-209(3)(b), legal possession by the sheriff depositor would create a warehouseman's lien); Moore v. Republic Moving & Storage, Inc., 548 N.E.2d 1211, 1213 (Ind. Ct.App.1990).\\nBecause the sheriff in this case properly seized the property pursuant to a facially valid writ, we hold that he was a \\\"legal possessor\\\" for purposes of I.C. \\u00a7 28-7-209(3)(b). The sheriff in this ease merely fulfilled his duty under Idaho law to execute valid process, and he properly deposited the property with Peasley while a \\\"legal possessor\\\" of the property. Therefore, we hold that the magistrate did not err in granting summary judgment in favor of Peasley on the ground that the sheriff was a legal possessor and that Peasley consequently possessed a valid warehouseman's lien.\\nB. Whether The Magistrate In The Original Divorce Action Had Legal Authority To Impose A Judicial Lien On The Community Property Awarded To Vernon To Secure The Judgment Awarded To Sharon Is Not Reviewable In This Appeal.\\nThe Court of Appeals, in its substitute opinion, suggested that the magistrate, in the underlying divorce action, did not have the authority to grant a judicial equitable lien in favor of Sharon Smith on the community property awarded to Vernon Smith. However, neither the district court nor the Court of Appeals was asked by any of the parties to address this issue. Moreover, the validity of the magistrate's judgment and decree of divorce was appealed by Vernon to this Court in Smith v. Smith, 124 Idaho 431, 860 P.2d 634 (1993). Therefore, we decline to address this issue.\\nC. Issues Decided By The Lower Courts Following The Grant Of Summary Judgment Are Not Res Judicata For The County Defendants.\\nBecause the County Defendants were dismissed from this action by the mag istrate's September 20, 1993 order granting summary judgment to Peasley, they did not have an opportunity to litigate subsequent issues of property ownership, conversion, or attorney fees. Therefore, no issues relevant to the County Defendants which were decided after their dismissal are res judicata as to the County Defendants. On remand, the County Defendants may litigate their claims and defenses relating to these issues. In addition, the magistrate's findings of fact were made after Peasley and the County Defendants were dismissed from the case. Therefore, these facts may be subject to relitigation since those two parties never participated in their determination.\\nD. The Trial Court Erred In Dismissing The County Defendants From The Action Pursuant To Peasley's Motion For Summary Judgment.\\nVictoria challenges the magistrate's dismissal of the County Defendants from the action as part of its ruling on Peasley's motion for summary judgment. Victoria argues that a question of fact existed as to whether the County Defendants complied with the applicable execution statutes in timely releasing the property to Victoria. In particular, Victoria's cross-claim alleges that the sheriff improperly delayed in releasing the property following Victoria's third party claim.\\nOn May 15, 1991, Victoria filed a third party claim of exemption, authorized under I.C. \\u00a7 11-203, with the magistrate division of the district court in the divorce action and with the Ada County Sheriffs Office. On June 20, 1991, Sharon's counsel notified the sheriff to release to Vernon all the property levied upon, pursuant to Vernon's filing of the bankruptcy proceeding. The sheriff, on the same day, notified Peasley by letter to release to Vernon, or his agent, the property subject to the execution, which was being stored at Peasley's warehouse. The sheriff at that time paid all storage incurred from May 1, 1991 to June 21, 1991. Peasley attempted unsuccessfully to have Vernon pick up the property and pay for storage costs that continued to accrue after June 21, 1991. On September 3, 1991, the sheriff sent the June 20,1991 release letter to counsel representing Vernon in a bankruptcy proceeding. The sheriff stated in the letter that Vernon had refused to come to the sheriffs office to sign for and pick up the June 20, 1991 release letter despite several phone conversations between the sheriffs office and Vernon.\\nIn ruling on Peasley's motion for summary judgment, the magistrate identified controverted material facts and facts not in dispute. It is undisputed that the sheriff was served with a third party claim by Victoria pursuant to I.C. \\u00a7 11-203. I.C. \\u00a7 11-203 of the Idaho Code, as in effect in May 1991, provided in part:\\nIf the property levied on be claimed by a third party as his property, . by a written claim verified by the oath of said claimant, setting out his title thereto, his right to the possession thereof, and stating the grounds of such title or of such claim of exemption, . and served upon the sheriff, the sheriff is not bound to keep the property, unless the plaintiff, or the person in whose favor the writ of execution runs, on demand, indemnify the sheriff against such claim by an undertaking qualifying in the state of Idaho.\\nProvided, however, that if the plaintiff or the person in whose favor the attachment or execution runs, by failure to so indemnify the sheriff, or otherwise, releases said claimed property, the sheriff shall release the property to the defendant, or his agent, from whom the property was taken.\\nI.C. \\u00a7 11-203 (1990) (amended 1991). This statute plainly directs the sheriff to release the property to the defendant where the plaintiff fails to indemnify the sheriff or releases the property. In this case, due to the early dismissal of the County Defendants from the action, the magistrate never addressed the timeliness of the County Defendants' delay in releasing Victoria's property. A period of thirty-five days passed between the time Victoria filed her third party claim of exemption and the time the sheriff prepared a letter of release. It was not until September 3, 1991, that the sheriff sent the June 20,1991 release letter to counsel representing Vernon.\\nAlthough the sheriff apparently tried repeatedly to have Vernon pick up the release letter prior to September 3,1991, the reasonableness of the County Defendants' actions was not addressed by the trial court. Summary judgment is appropriate only when there are no genuine issues of material fact and the case can be decided as a matter of law. See Mitchell v. Bingham Mem'l Hosp., 130 Idaho 420, 422, 942 P.2d 544, 546 (1997). The timeliness of the County Defendants' actions is a material issue in this case and it remains disputed. The magistrate should not have determined the timeliness of the sheriffs release because that issue pertained to Victoria's cross-claim and was not put at issue by Peasley's summary judgment motion. Thus, we hold that the magistrate erred in dismissing the County Defendants from the action upon Peasley's summary judgment motion, and we vacate the magistrate's order dismissing the County Defendants and remand to the magistrate to permit Victoria to pursue her cross-claim against the County Defendants.\\nE. The Magistrate Did Not Err In Finding For Sharon On Victoria's Cross-claim.\\nIn pronouncing its findings, the magistrate found that no prima facie case of conversion had been made. As a result, the magistrate denied Victoria any recovery on her conversion claim. We agree.\\nIn a memorandum decision entered on September 14, 1993, the magistrate found that Peasley possessed a valid warehouseman's lien pursuant to I.C. \\u00a7 28-7-209, and that the County Defendants had acted properly in all respects regarding the property in question pursuant to I.C. \\u00a7 31-2213. The property list Sharon provided the sheriff contained only a list of the particular property which was included and adjudicated as either community and/or separate property of Sharon and Vernon in the divorce decree. The magistrate found that, at the time of the issuance of the writ of execution, Sharon had every right to believe that the property on which she was executing was still owned by Vernon. The magistrate found that no bill of sale from Vernon to Victoria was ever recorded, and no notice of any kind was given to Sharon indicating a transfer of ownership of any of the property listed in the letter of instruction accompanying the writ of execution, prior to the filing of Victoria's third party claim of exemption on May 15, 1991. The magistrate also found that, before the sale of the property and subsequent to the third party claim filed by Victoria, the property was released by Sharon on June 20, 1991, and Victoria, through her agent Vernon, received constructive notice of the release. The magistrate further held that, upon release, a third party claimant has a duty to retrieve the property, but that Victoria chose not to retrieve the property and must therefore suffer the consequences.\\n1. Victoria had notice of the release of the property.\\nThe magistrate found that Victoria received constructive notice through her agent Vernon that the property was released. The magistrate also found that Victoria had received constructive notice either through her agent Vernon, or otherwise, that the property was already subject to the judgment and the lien language contained in the divorce decree. The magistrate pointed to the exhibits consisting of the letters of Vernon as an agent for Victoria dated September 20, 1991 and September 24, 1991, as verification that Vernon had notice of the release of the property. In addition, the unusual facts of this case further demonstrate that Victoria had notice of the release. Vernon is Victoria's son and has represented her interests throughout the course of this matter. Therefore, we agree with the magistrate that Victoria had notice of the release of the property on June 20,1991.\\n2. Victoria had a duty to retrieve her property upon receiving notice of the release.\\nBecause Peasley possessed a valid warehouseman's lien, it was entitled to a judgment and decree of foreclosure. The magistrate issued a judgment and decree of foreclosure on October 21, 1993, holding Victoria liable for storage costs accruing after June 20, 1991. Victoria appeals the magistrate's holding that a third party claiming personal property wrongfully attached and executed is obligated to retrieve the property upon notice of the property's release under I.C. \\u00a7 11-203.\\nSection 11-203 of the Idaho Code, as in effect when Victoria filed her third party claim, provided that if the plaintiff or other person in whose favor the execution runs, notifies the sheriff to release the property \\\"the sheriff shall release the property to the defendant, or his agent, from whom the property was taken____\\\" I.C. \\u00a7 11-203 (1990) (amended 1991). This section required the sheriff only to \\\"release\\\" the property, and there is no language requiring the sheriff to physically return the property to the owner. Cf. Harri v. Isaac, 111 Mont. 152, 107 P.2d 137, 141 (1940) (\\\"'Release' means 'to let loose, to set at liberty, to let go.' It cannot be taken to mean a delivery to someone _\\\" (quoting National Bank of Montana v. First Nat'l Bank, 71 Mont. 242, 228 P. 80, 81 (1924))). If the legislature intended to impose a duty to actually \\\"deliver\\\" the property, such language would appear. Section 11-308 of the Idaho Code provides that in the case of levied property bought at an execution sale, \\\"the officer making the sale must deliver to the purchaser the property____\\\" I.C. \\u00a7 11-308. The inclusion of the \\\"deliver\\\" language in I.C. \\u00a7 11-308 versus the absence thereof in I.C. \\u00a7 11-203 supports the conclusion that the absence is intentional. We interpret statutes according to the plain, express meaning of a provision in question, and we will resort to judicial construction only if the provision is ambiguous, incomplete, absurd, or arguably in conflict with other laws. See, e.g., Cameron v. Minidoka County Highway Dist., 125 Idaho 801, 803, 874 P.2d 1108, 1110 (1994); Lawless v. Davis, 98 Idaho 175, 177, 560 P.2d 497, 499 (1977). Because the plain meaning of I.C. \\u00a7 11-203 requires the sheriff only to \\\"release\\\" the property, we hold that I.C. \\u00a7 11-203 does not impose an affirmative duty on the part of the sheriff to deliver the property to a third party claimant upon release.\\n3. The magistrate did not err in denying Victoria relief on her cross-claim.\\nThe magistrate, in denying Victoria relief on her cross-claim against Sharon, concluded that Victoria failed to establish a cause of action against Sharon. As a general rule, pleadings are liberally construed so as to do substantial justice. See I.R.C.P. 8(f); Tew v. Manwaring, 94 Idaho 50, 52, 480 P.2d 896, 898 (1971). A complaint which alleges that plaintiff is the owner and entitled to the possession of property therein described and that defendant converted it to his own use, and which states the value of the property, or alleges that plaintiff has been damaged in a sum named, sufficiently states a cause of action for conversion, unless other averments are required by statute. See Williams v. Bone, 74 Idaho 185, 187-88, 259 P.2d 810, 811 (1953). Victoria's cross-claim alleged her ownership, entitlement to possession, and that Sharon converted the property causing Victoria damage.\\nIn denying Victoria relief on her cross-claim against Sharon, the magistrate concluded that Victoria had failed to prove damages. The proper measure of damages for wrongful taking or detention of personalty is the reasonable value of its use during the detention period. National Motor Service Co. v. Walters, 85 Idaho 349, 360-61, 379 P.2d 643, 651 (1963); Weaver v. Pacific Finance Loans, 94 Idaho 345, 347, 487 P.2d 939, 941 (1971). Further, an owner who retakes converted property may recover damages based on value at the time of conversion, but in mitigation, the wrongdoer is entitled to credit for value of property when returned, though he is charged with value of its use for the period of wrongful detention. See National Motor Service Co., 85 Idaho at 361, 379 P.2d at 651.\\nWe find no reason to question the magistrate's finding that Victoria suffered no damage because of the loss of use of the property. Victoria herself admitted at trial that she had not lost income or suffered any economic loss or expense due to the property's absence. Further, Victoria's damages do not include the costs of storage prior to June 21, 1991 because those charges were paid by the sheriff. Finally, in light of our holding that Victoria, upon receiving notice of the release, had a duty to retrieve her property from Peasley, her damages do not include amounts Victoria could have avoided by retrieving her property promptly, including the costs of storage incurred subsequent to June 21, 1991. This Court has held that the duty to mitigate, also known as the \\\"doctrine of avoidable consequences,\\\" provides that a plaintiff who is injured by actionable conduct of a defendant is ordinarily denied recovery for damages which could have been avoided by reasonable acts, including reasonable expenditures, after actionable conduct has taken place. See Margaret H. Wayne Trust v. Lipsky, 123 Idaho 253, 261, 846 P.2d 904, 912 (1993). After receiving notice of the release of the property, Victoria had a duty to mitigate her damages by retrieving the property from Peasley. Therefore, we affirm the magistrate's finding that Victoria is liable for storage costs which accrued subsequent to June 21, 1991.\\nVictoria also argues that she should not be required to pay the cost of returning the property and restoring it to her rightful possession. We agree that a third party claimant whose property is wrongfully seized should not bear the cost of returning that property. As a general rule, reasonable and necessary expenses incurred in recovering the property are a proper element of damages in a conversion action. See 89 C.J.S Trover & Conversion \\u00a7 174 (1955). Although the magistrate erred in finding that Victoria suffered no damages, the demonstration of damages does not sustain a cause of action for conversion in this ease.\\nThe magistrate also concluded that there was no evidence of conversion of Victoria's property by Sharon because there was no showing of any fraudulent or wrongful attachment by Sharon. Generally, conversion is defined as a distinct act of dominion wrongfully asserted over another's personal property in denial of or inconsistent with rights therein. See Luzar v. Western Sur. Co., 107 Idaho 693, 696, 692 P.2d 337, 340 (1984). A right of action accrues in favor of the owner of property as soon as the property is wrongfully taken from his possession or wrongfully converted. See Davidson v. Davidson, 68 Idaho 58, 63, 188 P.2d 329, 332 (1947). The magistrate in this case considered Sharon's good faith request for execution on property she believed to be Vernon's in denying Victoria relief on her cross-claim against Sharon. However, where there has been a positive act of dominion over another's property, unauthorized by the owner, it is not necessary that the actor intend to commit a trespass or a conversion. See Wise-man v. Schaffer, 115 Idaho 537, 540-41, 768 P.2d 800, 803-04 (Ct.App.1989). An actor may be liable where he has in fact exercised dominion or control, although he may be quite unaware of existence of rights with which he interferes, and a defendant's intention, good or bad faith, and his knowledge or mistake are immaterial. See Carver v. Ketchum, 53 Idaho 595, 601, 26 P.2d 139, 141 (1933). Thus, Sharon's subjective intent or good faith is immaterial to whether a conversion occurred.\\nHowever, the circumstances of this case involve much more than a simple good faith mistake of a judgment creditor in wrongfully executing on the property of an innocent third party. In this case, Sharon possessed a valid judgment against Vernon in the amount of $202,526.13 which was secured by a hen on specific property awarded to Vernon in the divorce decree. The magistrate found that Sharon had no notice that the property had been transferred to Victoria prior to her third party claim, but the magistrate did find that Victoria had notice that the property transferred to her by Vernon was subject to a lien imposed as part of the divorce proceeding. The magistrate also found that Sharon properly released the property upon Vernon's filing of a bankruptcy proceeding and after the filing of Victoria's third party claim.\\nConversion, being a wrongful and tortious act, cannot originate in the exercise of a legal right, such as the right of execution on a judgment. See Carver v. Ketchum, 53 Idaho 595, 601, 26 P.2d 139, 141 (1933); see also Schlieffv. Bistline, 52 Idaho 353, 357, 15 P.2d 726, 728 (1932). In this case, Sharon was simply exercising a legal right in executing a court judgment without knowledge of the transfer of the property to Victoria. Therefore, Sharon's execution was not wrongful. Moreover, if possession of property was not acquired by a tortious taking or the possessor does not appropriate or use the property in a fashion to indicate a claim thereto adverse to the owner, then no evidence of a conversion exists until there is proof, first, that a proper demand for possession was made by the one who is entitled thereto and, second, that the possessor wrongfully refused delivery. See, e.g., Oakes v. American Sur. Co. of N.Y., 58 Idaho 482, 491, 76 P.2d 932, 936 (1938) (holding that cause of action against sheriff did not accrue until the plaintiff made demand for the possession and the sheriff refused to comply with the demand); Evans v. Carroll & Co., 155 F.Supp. 662, 667 (D.Mont.1957), aff'd 259 F.2d 577, 579 (9th Cir.1958) (\\\"Where possession is obtained rightfully in the first instance, a demand and refusal ordinarily are necessary in order to put the party charged with conversion in the wrong and give rise to the cause of action.\\\"); Production Credit Ass'n of Madison v. Nowatzski, 90 Wis.2d 344, 280 N.W.2d 118, 123 (1979) (holding that where there is no unlawful taking, a demand by the rightful owner and a refusal by the alleged tortfeasor are necessary elements of the tort of conversion); cf. Gissel v. State, 111 Idaho 725, 730-31, 727 P.2d 1153, 1158-59 (1986) (Bakes, J., dissenting) (stating that a party claiming a conversion must show a demand for possession of the property at issue). Obtaining a release of property under I.C. \\u00a7 11-203 and maintaining a conversion claim have separate purposes, different remedies, and unique elements of procedure and proof. Receiving notice of a third party claim for a release, of property through the I.C. \\u00a7 11-203 process simply does not constitute notice of a demand for the return of property for purposes of a conversion claim.\\nTherefore, we hold that a third party claimant does not have a cause of action for conversion where a judgment creditor, who without notice of any transfer of ownership, executes a writ of execution against specific property where the third party fails to properly demand possession of the property prior to filing a conversion action. Thus, Victoria may not recover from Sharon in a conversion action because Sharon, without notice of Vernon's transfer to Victoria, was merely exercising the legal right of enforcing the judgment lien on the specific property listed in the divorce decree. Accordingly, we hold that the magistrate did not err in finding in favor of Sharon on Victoria's cross-claim.\\nF. Attorney Fees\\nOn September 20, 1993, the magistrate granted summary judgment in favor of Peasley and stated that \\\"[ajttorney's fees and costs will be awarded to Peasley Transfer and Storage upon proper application.\\\" Peasley had prayed for an award of attorney fees in their answer to Victoria's counterclaim. On October 19, 1993, the magistrate entered a judgment and decree of foreclosure in favor of Peasley against Victoria for storage costs and attorney fees, and foreclosing Peasle^s warehouseman's lien. Victoria appeals this award of attorney fees.\\nWith respect to the magistrate's award of attorney fees to Peasley as the prevailing party, Victoria filed a written objection in which she stated that the fees were \\\"unreasonable.\\\" She concluded her objection as follows:\\nThis objection to the Memorandum of Costs and Attorneys Fees is made pursuant to Rule 54(d)(6), and 54(e)(6), I.R.C.P. Inasmuch as the Objection here is deemed to be a Motion to Disallow such costs and attorney fees, the parties do request oral argument upon this Motion in accordance with Rule 7(b)(3).\\nNo transcript was provided of the attorney fees hearing held in October 1993. Neither did Victoria provide records showing the grounds for the alleged error of the attorney fee award. Where an incomplete record is presented to an appellate court, missing portions of the record are presumed to support the action of the trial court. See Kugler v. Drown, 119 Idaho 687, 690, 809 P.2d 1166, 1169 (Ct.App.1991). Further, it is Victoria's affirmative duty on appeal to show that the magistrate erred. See id. Victoria never specifically argued this point in any of her briefs, nor did she provide any authority for reversal. Because Victoria has failed to demonstrate an abuse of discretion by the magistrate in awarding attorney fees to Peasley, we affirm the magistrate's award of attorney fees to Peasley. We also affirm the district court's award of attorney fees on appeal in favor of Peasley against Victoria.\\nVictoria also appeals the magistrate's award of attorney fees against her in favor of Sharon. On October 19,1993, at a hearing to determine attorney fees, the magistrate ruled that Sharon was entitled to attorney fees as the prevailing party under section 12-120 of the Idaho Code. The magistrate further ruled that attorney fees to Sharon were justified under section 12-121 of the Idaho Code based on the magistrate's finding that the cross-claim by Victoria was pursued frivolously and without foundation. The magistrate based this finding on Victoria's failure to show damages and her failure to provide evidence showing a cause of action.\\nAn award of attorney fees under I.R.C.P. 54(e)(1) and I.C. \\u00a7 12-121 is subject to reversal upon a showing of an abuse of discretion by the district court. See Savage Lateral Ditch Water Users Ass'n v. Pulley, 125 Idaho 237, 250, 869 P.2d 554, 567 (1993). When an exercise of discretion is involved, an appellate court conducts a three-step inquiry: (1) whether the trial court properly perceived the issue as one of discretion; (2) whether that court acted within the outer boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the court reached its decision by the exercise of reason. See Id. at 250-51, 869 P.2d at 567-68 (citing Sun Valley Shopping Center v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991)). In this case, the magistrate stated his recognition that the issue was one of discretion at the heaidng to determine the issue of attorney fees. There was no abuse of discretion by the magistrate in making the award. Victoria suffered only minimal damages by the seizure of the property and she failed to establish a cause of action. Therefore, because we affirm the magistrate's finding in favor of Sharon on Victoria's cross-claim, we affirm the magistrate's attorney fee award under I.C. \\u00a7 12-121. Consequently, we also affirm the district court's award of attorney fees in favor of Sharon against Victoria.\\nThe remaining claim of error raised by Victoria deals with the award of attorney fees made to Sharon, by the magistrate, as an advance to allow her to defend the appeal to the district court. Victoria contends that it was error for the magistrate to order that she pay $4,000 toward Sharon's attorney fees and costs to defend the appeal in the district court.\\nAt a hearing on Sharon's motion for advancement of attorney fees and costs on appeal, the magistrate found that Sharon had demonstrated her indigence and inability to pay attorney fees and costs to defend the appeal filed by Victoria. The magistrate also found that Victoria was not only able to pay, but was not incurring attorney fees and costs as she was being represented by her son, Vernon, in the matter. After due consideration of I.R.C.P. 83(i) and I.A.R. 13(b)(12), the magistrate granted the motion and ordered Victoria to pay Sharon $4,000 as an advancement toward fees and costs to be incurred in defending the appeal. The above rules provide that the magistrate has the authority to make any order which it deems appropriate for the payment or advancement of attorney fees and anticipated costs on appeal by one party to the other, subject to the order of this Court on appeal. The advancement of attorney fees in favor of Sharon was thus clearly within the discretion of the magistrate, and we are presented with no argument or authority in support of Victoria's contention that the advancement of attorney fees was in error. See State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (\\\"When issues on appeal are not supported by propositions of law, authority, or argument, they will not be considered.\\\").\\nAlthough we find no reason to question the discretionary judgment of the magistrate in ordering the advancement, we affirm the magistrate's order advancing fees to Sharon for appeal provided that Sharon's attorney file with this Court within a reasonable time a satisfactory showing that the advanced funds were appropriately applied towards defending the appeal of the magistrate's decision.\\nV.\\nCONCLUSION\\nFor all of the foregoing reasons, we affirm the magistrate's grant of summary judgment in favor of Peasley and the magistrate's finding in favor of Sharon on Victoria's cross-claim. However, we hold that the magistrate erred in dismissing the County Defendants from the action. We remand the case to the magistrate for further proceedings consistent with this opinion. Sharon's attorney shall provide an accounting of the advancement within twenty-one (21) days from the date of this opinion. Each side shall bear its own costs and attorney fees in this appeal.\\nJustice SCHROEDER and Justices Pro Tem JOHNSON, WOOD and MEEHL, CONCUR.\\n. We express no opinion on the validity of the lien declared by the magistrate for reasons set forth in Part IV.B of this opinion.\\n. At the hearing in this appeal, counsel for Victoria advised the Court that, after the trial, Victoria paid the storage and transport charges incurred after June 21, 1991, in order to have her property returned. Therefore, a review of the magistrate's finding that Peasley possessed a valid warehouseman's lien in this case might appear moot because such a determination is only necessary where a warehouseman is seeking to foreclose its claimed warehouseman's lien. However, we decline to consider the effect of such a payment here because the record contains no indication of such a payment, and a determination of the validity of Peasley's claimed warehouseman's lien and a clarification of I.C. \\u00a7 28-7-209(3)(b) remain important to a resolution of this case on remand. Moreover, this issue is justified under the \\\"public interest\\\" exception to the mootness doctrine because disputes involving warehouseman's liens are \\\"susceptible to repetition yet avoid[] review.\\\" See Great Beginnings Child Care, Inc. v. Office of the Governor, 128 Idaho 158, 160, 911 P.2d 751, 753 (1996). Addressing this issue here would be in the public interest because of the importance of providing \\\"future direction and guidance\\\" on the meaning of I.C. \\u00a7 28-7-209(3)(b). Id.\\n. It is true that the legal possessor status of the sheriff only grants Peasley a warehouseman's lien valid against \\\"all persons\\\" with respect to \\\"household\\\" goods. See I.C. \\u00a7 28-7-209(3)(b). Household goods \\\"means furniture, furnishings and personal effects used in a dwelling.\\\" Id. It is noted that not all of the property originally executed upon consisted of \\\"household\\\" goods. In particular, Peasley originally obtained possession of a number of leafcutter bee boards. However, the leafcutter bee boards were picked up by Vernon on June 25, 1991 (just five days after all the property was released). Peasley did not assert its warehouseman's lien over the remaining property until October 15, 1992. Therefore, the character of the bee boards is irrelevant since Peasley did not have possession of the bee boards when the warehouseman's lien was asserted. At the time Peasley asserted its warehouseman's lien, the only property Peasley asserted its lien against consisted entirely of furniture and personal effects. Victoria has never suggested that the pieces of property stored by Peasley were not household goods.\"}"
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+"{\"id\": \"8584489\", \"name\": \"Karen WELDON, in her capacity as Treasurer of Bonner County; Marie Scott, in her capacity as Auditor and Budget Officer of Bonner County; Tim Cochran, in his capacity as Assessor of Bonner County, and Evan \\\"Chip\\\" Roos, in his capacity as Sheriff of Bonner County, Plaintiffs-Respondents, v. BONNER COUNTY TAX COALITION, Bill Denman, Spokesman; and Signators on the petition requesting an initiative election to establish procedures for adopting a revised county budget and on the petition requesting a referendum regarding Bonner County's ad valorem tax increase for the 1993 fiscal year, respectively, Defendants-Appellants\", \"name_abbreviation\": \"Weldon v. Bonner County Tax Coalition\", \"decision_date\": \"1993-07-02\", \"docket_number\": \"No. 20523\", \"first_page\": \"31\", \"last_page\": \"39\", \"citations\": \"124 Idaho 31\", \"volume\": \"124\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:13:43.564146+00:00\", \"provenance\": \"CAP\", \"judges\": \"BISTLINE, JOHNSON, TROUT and SILAK, JJ. concur.\", \"parties\": \"Karen WELDON, in her capacity as Treasurer of Bonner County; Marie Scott, in her capacity as Auditor and Budget Officer of Bonner County; Tim Cochran, in his capacity as Assessor of Bonner County, and Evan \\u201cChip\\u201d Roos, in his capacity as Sheriff of Bonner County, Plaintiffs-Respondents, v. BONNER COUNTY TAX COALITION, Bill Denman, Spokesman; and Signators on the petition requesting an initiative election to establish procedures for adopting a revised county budget and on the petition requesting a referendum regarding Bonner County\\u2019s ad valorem tax increase for the 1993 fiscal year, respectively, Defendants-Appellants.\", \"head_matter\": \"855 P.2d 868\\nKaren WELDON, in her capacity as Treasurer of Bonner County; Marie Scott, in her capacity as Auditor and Budget Officer of Bonner County; Tim Cochran, in his capacity as Assessor of Bonner County, and Evan \\u201cChip\\u201d Roos, in his capacity as Sheriff of Bonner County, Plaintiffs-Respondents, v. BONNER COUNTY TAX COALITION, Bill Denman, Spokesman; and Signators on the petition requesting an initiative election to establish procedures for adopting a revised county budget and on the petition requesting a referendum regarding Bonner County\\u2019s ad valorem tax increase for the 1993 fiscal year, respectively, Defendants-Appellants.\\nNo. 20523.\\nSupreme Court of Idaho, Boise,\\nJune 1993 Term.\\nJuly 2, 1993.\\nJohn F. Magnuson, Coeur d\\u2019Alene, for defendants-appellants.\\nJerry D. Mason, Coeur d\\u2019Alene, for plaintiffs-respondents.\", \"word_count\": \"4291\", \"char_count\": \"26315\", \"text\": \"McDEVITT, Chief Judge.\\nBACKGROUND\\nIn September of 1992, Bonner County, acting through its Board of County Commissioners, upon completion of its fiscal year budget-setting process, passed resolutions determining to set the aggregate Bonner County ad valorem property tax revenue to be levied for Bonner County fiscal year 1993 to fund the. county budget at a level in excess of that levied in fiscal year 1992. In response to this increase, the Bonner County Tax Coalition (\\\"Coalition\\\") spearheaded an effort to reject Bonner County's budget decision and implement a new county budget process. The Coalition's effort resulted in a referendum and an initiative being set for election in Bonner County. This suit was commenced by the plaintiffs to determine whether the referendum and initiative are proper means to reject an ad valorem tax levy and establish a budget process for a county.\\nPRIOR PROCEEDINGS\\nOn January 5, 1993, Bonner County and four Bonner County elected officials, Karen Weldon, Treasurer; Marie Scott, Auditor; Tim Cochran, Assessor; and Evan \\\"Chip\\\" Roos, Sheriff (\\\"Elected Officials\\\"), filed a complaint for declaratory judgment and a request for expedited review and conditional stay of election against the Coalition. In the complaint, Bonner County and the Elected Officials prayed for the following relief:\\n1. That the court declare that the budgetary approval process and tax levy is an administrative or executive action of the Board of County Commissioners, and, thus, not subject to the referendum process set forth in Idaho Const, art. 3, \\u00a7 1 and I.C. \\u00a7 31-717;\\n2. That the court declare that the resolutions passed and the motions approved in the budget process do not constitute ordinances or an act or measure passed by the legislative body subject to the referendum process;\\n3. That the court declare that the budgetary process set forth in title 31, chapter 16, Idaho Code, is the exclusive manner by which county budgets can be set;\\n4. That the court declare that tax levies or budgetary appropriations cannot be set or rejected by initiative or referendum;\\n5. That the court declare that if the county budget or ad valorem tax can be rejected by referendum, the result would be the absence of a county budget or ad valorem tax levy for the county; and\\n6. That the court declare that the initiative proposed to set an ordinance procedure to modify county budgets and tax billing would be contrary to state statute and the Idaho Constitution.\\nOn February 12, 1993, plaintiff Bonner County \\\"requested that the case be dismissed with prejudice, with respect to the party of BONNER COUNTY, acting through its Board of Commissioners.\\\" The court granted the motion on the same day.\\nOn February 19, 1993, the Coalition filed a motion to dismiss the Elected Officials' claims, pursuant to I.R.C.P. 12(b)(1) and (6), on the following grounds: (1) standing; (2) justiciability; and, (3) ripeness.\\nAlso on February 19, 1993, the Coalition filed an answer to the complaint. In its answer, the Coalition set forth several defenses, including: (1) standing; (2) no actual controversy under the Declaratory Judgment Act, I.C. \\u00a7 10-1201 to 10-1217; (3) no justiciable controversy; (4) Elected Officials are not real parties in interest; (5) no case or controversy; and, (6) ripeness. The Coalition prayed that the Elected Officials' complaint be dismissed with prejudice and that it be awarded attorney fees and costs.\\nA hearing on the Coalition's motion to dismiss was held on February 26, 1993. The minutes of the hearing reflect that the court ruled that the Elected Officials could bring this action.\\nOn March 2, 1993, the Elected Officials filed a motion for summary judgment. On March 4, 1993, the Coalition filed a cross-motion for summary judgment. A hearing on the motions was held on March 15, 1993, the court noting that the Coalition had filed an alternative motion to stay enforcement of judgment and granting the Elected Officials' motion for summary judgment.\\nOn March 16, 1993, the court entered three orders:\\n1. Order Denying Stay: The court entered an order denying the Coalition's alternative motion to stay the enforcement of the judgment. The court recognized that the action is declaratory in nature, the Elected Officials only seeking a declaration of the law applicable to the circumstances set forth in the complaint.\\n2. Order Denying Motion to Dismiss: The court entered an order denying the Coalition's motion to dismiss. It ruled that \\\"[a]s elected officials, the duties of each Plaintiff are sufficiently broad that they have the right to seek declaratory judgment regarding the propriety of referendum and initiative actions regarding the county budgeting and taxing process,\\\" citing Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989), for Idaho's standing rule. The court also rejected the Coalition's argument regarding lack of justiciability, citing Gumprecht v. City of Coeur d'Alene, 104 Idaho 615, 661 P.2d 1214 (1983).\\n3. Opinion and Order on Summary Judgment: The court entered an opinion and order granting the Elected Officials' motion for summary judgment. The court framed the sole issue as \\\"whether Idaho law allows voter referendum review of budget decisions of the county commissioners. The answer is no.\\\" It ruled that \\\"[t]he voters may only demand a referendum vote on acts or measures of a legislative character ., [that] [t]he budget decisions of the county commis sioners in approving the fiscal 1993 budget and fixing the property tax levies are administrative/executive decisions, not legislative acts or measures ., [and] [therefore, the Idaho Constitution [art. 3, \\u00a7 1] and Idaho Code \\u00a7 31-717 preclude the voters of Bonner County from demanding a referendum vote on budget decisions of the county commissioners.\\\" It also ruled that since local regulations cannot conflict with general state laws, \\\"any referendum procedure for reviewing county budget decisions [pursuant to Bonner County Ordinance No. 141] would be improper and county officials would be acting in excess of their jurisdiction in holding such referendum vote.\\\" A judgment to this effect was filed on the same day.\\nAlso on March 16, 1993, the Coalition filed a notice of appeal pursuant to I.A.R. 11(a)(1), appealing from the judgment entered by the district court.\\nISSUES ON APPEAL\\nOn appeal, the Coalition raises the following issues:\\nI. Do the Elected Officials have standing to bring this action?\\nII. Have the Elected Officials asserted justiciable claims?\\nIII. Have the Elected Officials alleged a \\\"case\\\" or \\\"controversy\\\" under the Declaratory Judgment Act?\\nIV. Do the initiative and referendum address matters within the scope of Idaho Const, art. 3, \\u00a7 1?\\nV. Is the Board of County Commissioners' determination as to the aggregate amount of ad valorem revenue to be levied a legislative or executive function?\\nANALYSIS\\nI.\\nThe Coalition phrases the issue as \\\"standing,\\\" but its brief and the argument of counsel also deal with res judicata, or claim preclusion. We will address standing and res judicata separately.\\nA. Standing.\\nIn Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989), which was a declaratory judgment action, this Court thoroughly set forth the fundamentals of the doctrine of standing:\\nThe doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated. Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). While the doctrine is easily stated, it is imprecise and difficult in its application. O'Hair v. White, 675 F.2d 680 (Former 5th Cir. 1982). However, the major aspect of standing has been explained:\\nThe essence of the standing inquiry is whether the party seeking to invoke the court's jurisdiction has \\\"alleged such a personal stake in the outcome of the controversy as to assure the concrete adversariness which sharpens the presentation upon which the court so depends for illumination of difficult constitutional questions.\\\" As refined by subsequent reformation, this requirement of \\\"personal stake\\\" has come to be understood to require not only a \\\"distinct palpable injury\\\" to the plaintiff, but also a \\\"fairly traceable\\\" causal connection between the claimed injury and the challenged conduct. (Citations omitted.)\\nDuke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978).\\nThus, to satisfy the ease or controversy requirement of standing, litigants generally must allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury. Id. at 79, 98 S.Ct. at 2633.\\nMiles, 116 Idaho at 641, 778 P.2d at 763.\\nThe parties seeking relief are elected officials of Bonner County; the treasurer, the auditor, the assessor, and the sheriff. They allege that the Coalition's referendum and initiative are unlawful, in that they embrace matters (the county budget process) that exceed the lawful scope of refer-enda and initiatives. They further assert that as elected officials, charged with various duties that require a certain amount of money to perform, they would be injured by the Coalition's referendum and initiative to the extent that they would not be financially able to perform their lawful duties.\\nThe Idaho Code specifies the duties of the Elected Officials. Among other duties, the auditor \\\"shall be the budget officer of his [or her] county_\\\" I.C. \\u00a7 31-1602. The treasurer is charged with \\\"[rjeeeiving all moneys belonging to the county, and all other moneys by law directed to be paid to [the treasurer], safely keep the same, and apply and pay them out, rendering account thereof as required by law.\\\" I.C. \\u00a7 31-2101(1). The sheriff, while primarily charged with \\\"enforcing all penal provisions and statutes of the state, .\\\" is also charged with duties that necessarily require a sufficient budget to carry out, such as serving notice of process and keeping various records. I.C. \\u00a7 31-2202. The assessor is charged with assessing all property in the county. I.C. \\u00a7 63-201.\\nThe duties of the Elected Officials, as set forth in the Idaho Code, establish the \\\"personal stake\\\" required in order to have legal standing as set forth in Miles, 116 Idaho at 641, 778 P.2d at 763. In other words, a \\\"distinct palpable injury\\\" would be suffered by the Elected Officials if the referendum and initiative pass because they would be unable to perform their lawful duties, and a \\\" 'fairly traceable' causal connection\\\" does exist between this claimed injury and the Coalition's referendum and initiative. Miles, 116 Idaho at 641, 778 P.2d at 763. We hold that the Elected Officials have standing to maintain this action.\\nB. Res Judicata or Claim Preclusion.\\nThe Coalition also brings an argument closely related to standing. It argues that since Bonner County voluntarily dismissed its claims with prejudice, the Elected Officials are now barred from maintaining this action. This is a res judicata, or claim preclusion, argument.\\nWe have recently discussed the dynamics of res judicata. In Diamond v. Farmers Group, 119 Idaho 146, 804 P.2d 319 (1990), we reaffirmed the \\\"transactional\\\" approach to res judicata. The \\\"transactional\\\" approach provides:\\n[I]n an action between the same parties upon the same claim or demand, the former adjudication concludes parties and privies not only as to every matter offered and received to sustain or defeat the claim but also as to every matter which might and should have been litigated in the first suit.\\nDiamond, 119 Idaho at 150, 804 P.2d at 323, citing Joyce v. Murphy Land & Irrig. Co., 35 Idaho 549, 208 P. 241 (1922). In the instant case, we do not have an action between the same parties, since Bonner County is not a party to this action. In order for the Coalition to succeed with its argument, the Elected Officials would have to be in privity with Bonner County for purposes of this suit.\\nThe privity, or \\\"privies,\\\" requirement means:\\nPlaintiff was not a party to [the former] action. He is therefore not concluded by a judgment rendered therein unless he derives his interest from one who was a party to it, that is, unless he is in privity with a party to that judgment.\\nFoster v. City of St. Anthony, 122 Idaho 883, 888, 841 P.2d 413, 418 (1992), quoting Kite v. Eckley, 48 Idaho 454, 459, 282 P. 868, 869 (1929). The gist of the Coalition's argument is that since the Elected Officials were elected officials of Bonner County, and since Bonner County dismissed its claims against the Coalition with prejudice, the Elected Officials are now barred, by res judicata, from maintaining this action. An examination of Idaho cases dealing with privity and privies reveals that it is not the status of the party against whom res judi-cata imperils that is determinative, but whether that person \\\"derives [its] interest from one who was a party to [the former action]_\\\" Kite, 48 Idaho at 459, 282 P. at 869. The Elected Officials are not under the control or direction of Bonner County, acting through its Board of County Commissioners. Instead, the Elected Officials, acting in their respective official capacities, represent the people of Bonner County. The Elected Officials' interest in this action does not derive from Bonner County, acting through its Board of County Commissioners, but from the duties of their offices. We hold that the Elected Officials are not in privity with Bonner County, and, therefore, we reject the Coalition's res ju-dicata argument.\\nII. and III.\\nIn Miles, this Court stated:\\nA prerequisite to a declaratory judgment action is an actual or justiciable controversy. Harris v. Cassia County, 106 Idaho 513, 681 P.2d 988 (1984). Justicia-bility is generally divided into subcategories \\u2014 advisory opinions, feigned and collusive eases, standing, ripeness, mootness, political questions, and administrative questions.\\nMiles, 116 Idaho at 639, 778 P.2d at 761. In this portion of its argument, the Coalition argues: (1) that this Court's opinion in Associated Taxpayers of Idaho v. Cenarrusa, 111 Idaho 502, 725 P.2d 526 (1986), wherein \\\"[a] majority of the Court rejected plaintiffs argument, holding that the plaintiff's attempt to prohibit the [lottery] initiative election [prior to the general election] failed to present a justiciable controversy\\\" controls this case, and; (2) that the initiative and referendum are merely proposals, and, as such, fail to present a case or controversy for purposes of the Declaratory Judgment Act, citing Harris, 106 Idaho at 516, 681 P.2d at 991.\\nThe Court's opinion in Associated Taxpayers of Idaho does not hold as the appellants represent it. Instead, it is merely an order denying an application for a writ of prohibition, without rationale or holdings, and it does not control this case.\\nThe Harris case sets forth the pivotal elements of a justiciable controversy:\\nA \\\"controversy\\\" in this sense must be one that is appropriate for judicial determination . A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot_ The controversy must be definite and concrete, touching the legal relations of the parties having adverse legal interests_ It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.\\nHarris, 106 Idaho at 516, 681 P.2d at 991, quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937) (citations omitted).\\nIn Gumprecht v. City of Coeur d'Alene, 104 Idaho 615, 661 P.2d 1214 (1983), this Court was faced with an original proceeding wherein the petitioners sought to restrain an initiative election which, if passed, would have placed height restrictions on buildings near Lake Coeur d'Alene. \\\"The narrow and important issue of first impression with which we [were] presented [was] whether local zoning ordinances may be enacted or amended in Idaho through an initiative election.\\\" Gumprecht, 104 Idaho at 616, 661 P.2d at 1215. We held Perrault v. Robinson, 29 Idaho 267, 272, 158 P. 1074, 1075 (1916), to be controlling:\\nThe question is not, as in most of the cases cited, may an election which is provided for by law be restrained, but is, have the mayor and council of Boise jurisdiction to call an election which is unauthorized by law and thereby involve the taxpayers of that city in a useless expense?\\nGumprecht, 104 Idaho at 617, 661 P.2d at 1216. We also held that review of the writ was proper even though the election had not occurred because \\\"[i]f an initiative election is an improper means of adopting or amending zoning ordinances in Idaho, then the city council of Coeur d'Alene would be acting in excess of its jurisdiction in holding the election.\\\" Gumprecht, 104 Idaho at 617, 661 P.2d at 1216. We concluded \\\"that review of a petition for prohibition is proper where, as in this case, the resolution of an important undecided question of law will necessarily decide the propriety of the election.\\\" Gumprecht, 104 Idaho at 617, 661 P.2d at 1216.\\nWe hold that Gumprecht controls this case. We note that Gumprecht was not a declaratory judgment action, instead involving an application for a writ of prohibition. However, we deem this distinction to be unimportant. Like Gumprecht, this case involves a proposed election. In this case, both the referendum and initiative are set for election, and the critical issue is whether Idaho law providing for referenda and initiative encompasses county budget decisions. The only thing that is uncertain is whether the voters of Bonner County will approve or disapprove the measures, which has no effect on the issue before this Court. As stated in Miles:\\nIt is clear that this issue will be before us either now or in the future, and a declaration now of the various rights of the parties will certainly afford a relief from uncertainty and controversy in the future. \\\"Since we are persuaded that 'we will be in no better position than we are now' to decide this question, we hold that it is presently ripe for adjudication.\\\"\\nMiles, 116 Idaho at 643, 778 P.2d at 765, quoting Duke Power Co., 438 U.S. at 82, 98 S.Ct. at 2635. We hold that the instant case presents a justiciable controversy for purposes of the Declaratory Judgment Act.\\nIV. and V.\\nThe Coalition argues that the Board of County Commissioners passed the resolutions establishing the fiscal year 1993 budget as a legislative body, and that the proposed referendum and initiative are proper means to reject the commissioners' decision and implement a new budget process.\\nThe framers of the Idaho Constitution provided for the power of referendum and initiative:\\nThe people reserve to themselves the power to approve or reject at the polls any act or measure passed by the legislature. This power is known as the referendum, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, demand a referendum vote on any act or measure passed by the legislature and cause the same to be submitted to a vote of the people for their approval or rejection.\\nThe people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection.\\nIdaho Const, art. 3, \\u00a7 1 (emphasis added). The legislature, complying with the constitutional command, provided the conditions and the manner governing the power of referendum and initiative:\\nThe board of county commissioners of each county shall provide by ordinance for direct legislation by the people through the initiative and referendum. Minimum requirements of the ordinance adopted shall be as follows: (1) petitioners for initiative or referendum shall be equal to twenty per cent (20%) of the total number of voters registered to vote at the last general election in the county; (2) petitions for referendum shall be filed not less than sixty (60) days following the final adoption of the ordinance to be subject to referendum; (3) a special election for initiative or referendum shall be provided not more than ninety (90) days following the certification of the petition, provided that in the event a general or primary election will occur within the ninety (90) days, the initiative or referendum shall be submitted at the time of the general or primary election; (4) requirements for signature, verification of valid petitions, printing of petition, and time limits, except as expressly modified herein, shall be as nearly as practicable as provided in sections 34-1701 through 34-1705, Idaho Code.\\nI.C. \\u00a7 31-717. Finally, Bonner County, complying with the statutory command, provided by ordinance for direct legislation by the people of Bonner County through the initiative and referendum:\\nBONNER COUNTY ORDINANCE NUMBER 141\\nBE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF BONNER COUNTY, IDAHO.\\nTo comply with Idaho Code \\u00a7 31-717 the Bonner County Commissioners hereby adopt this Ordinance for direct legislation by the people through initiative and referendum.\\n1. Referendum shall be the right of the legal voters of Bonner County to approve or reject at the polls an act or measure passed by the legislative body of Bonner County.\\n2. Initiative shall be the power of the legal voters of Bonner County to propose county ordinances and laws and to enact them at the polls.\\n3. Neither referendum nor initiative shall be available to pass, reject, or affect laws, ordinances, acts, or measures of Bonner County or the Bonner County Commissioners if prohibited by Idaho laws or the Idaho Constitution.\\n4. Petitioners for initiative or referendum shall be equal to twenty percent (20%) of the total number of voters registered to vote at the last general election in Bonner County. Petitioners must be legal voters and must be registered to vote at the next general election.\\n5. Petitions for initiative or referendum shall be filed not less than sixty (60) days following the final adoption of the ordinance to be subject to referendum.\\n6. A special election for initiative or referendum shall be provided not more than 90 days following certification of the petition; provided however, in the event a general or primary election will occur within the 90 day period, the initiative or referendum shall be submitted at the time of the general or primary election.\\n7. The following shall be substantially the form for petition for initiatives and referendums:\\n(Emphasis added.)\\nAs our emphasis reveals, referenda and initiatives in Idaho are constrained to addressing \\\"acts\\\" or \\\"measures\\\" passed by a legislative body. In other words, a referendum can only seek to reject an \\\"act\\\" or \\\"measure,\\\" and an initiative can only seek to implement an \\\"act\\\" or \\\"measure.\\\" The Coalition's referendum seeks to reject a process, specifically the county budgeting process as it is set forth in title 31, chapter 16, Idaho Code. The Coalition's initiative seeks to impose a limit on the amount of Bonner County's ad valorem property tax revenue, i.e., the same level as the immediately preceding calendar year. The Coalition does not seek to reject or propose law, but a process. The county budgeting process, which results in an ad valorem levy, is not an \\\"act\\\" or \\\"measure,\\\" but instead it is merely the result of the statutory process set forth in the County Budget Law, title 31, chapter 16, Idaho Code. We reject the Coalition's argument that the budget process is a law and is a legislative act. It is neither an \\\"act\\\" or a \\\"measure,\\\" and, therefore, we hold that Idaho's referendum and initiative laws are not proper means to reject and/or implement a county budget process.\\nFor the reasons set forth above, we affirm the decision of the district court.\\nCosts to respondents.\\nBISTLINE, JOHNSON, TROUT and SILAK, JJ. concur.\\n. The Associated Taxpayers of Idaho opinion reads in whole:\\nWHEREAS, Petitioners filed an APPLICATION FOR WRIT OF PROHIBITION with supporting brief and affidavit of Russell Wester-berg; and thereafter served copies of the Application to all real parties in interest and potential parties in interest, including Pete Cenarrusa, Secretary of State; Vote Yes for Idaho's Economy; Idahoans for the Right To Vote On Lotteries; Idaho Allied Christian Forces, Inc., and thirty-one individuals who originally signed the lottery initiative petition; and the Court subsequently granted Motions to Intervene by Mike Blackbird, et al, and Help Idaho Thrive; and the Court received Answers and supporting documents by Cenar-rusa, Vote Yes for Idaho's Economy, Mike Blackbird, et al, and Help Idaho Thrive; and thereafter, the Court set oral arguments on September 5, 1986; and\\nWHEREAS, after oral argument, the Court having considered all of the above documents and arguments; and\\nNOW, THEREFORE, IT IS HEREBY ORDERED, that the APPLICATION FOR WRIT OF PROHIBITION be, and it is hereby, DENIED.\\nIT IS FURTHER ORDERED THAT, attorney fees and costs be, and hereby are, DENIED. Associated Taxpayers of Idaho, 111 Idaho at 502, 725 P.2d at 526.\"}"
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+"{\"id\": \"8584641\", \"name\": \"Mattie O. GASKILL, a Widow, Plaintiff-Respondent, v. Bernice NEAL, Defendant-Appellant, M. W. Crouch, as Administrator of the Estate of F. E. Neal, deceased, and Alvin R. Madsen, Defendants\", \"name_abbreviation\": \"Gaskill v. Neal\", \"decision_date\": \"1956-02-21\", \"docket_number\": \"No. 8261\", \"first_page\": \"428\", \"last_page\": \"433\", \"citations\": \"77 Idaho 428\", \"volume\": \"77\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T21:22:09.757643+00:00\", \"provenance\": \"CAP\", \"judges\": \"TAYLOR, C. J., and KEETON, PORTER and SMITH, JJ., concur.\", \"parties\": \"Mattie O. GASKILL, a Widow, Plaintiff-Respondent, v. Bernice NEAL, Defendant-Appellant, M. W. Crouch, as Administrator of the Estate of F. E. Neal, deceased, and Alvin R. Madsen, Defendants.\", \"head_matter\": \"293 P.2d 957\\nMattie O. GASKILL, a Widow, Plaintiff-Respondent, v. Bernice NEAL, Defendant-Appellant, M. W. Crouch, as Administrator of the Estate of F. E. Neal, deceased, and Alvin R. Madsen, Defendants.\\nNo. 8261.\\nSupreme Court of Idaho.\\nFeb. 21, 1956.\\nS. T. Lowe, Kales E. Lowe, Thomas H. Church and Herman E. Bedke, Burley, for appellant.\\nNielson & Nielson, Burley, for respondent.\", \"word_count\": \"1678\", \"char_count\": \"9706\", \"text\": \"ANDERSON, Justice.\\nThis is an appeal from an order granting a motion to set aside a sale of real estate and a certificate of redemption made by the sheriff of Cassia County, Idaho, pursuant to a decree of foreclosure.\\nJanuary 10, 1950, Bernice and F. E. Neal, husband and wife, gave a promissory note and a securing mortgage for $7,500 to Mattie O. Gaskill, plaintiff and respondent, the mortgage incumbering personalty consisting of a hoist or lift, an air compressor, gasoline pumps and tanks, and lubsters, and realty described as lots 7 and 8, block 5, Miller's First Addition to Burley, Idaho. In January, 1951, Alvin R. Madsen obtained a judgment against the Neals which became a lien against the mortgaged real property, but subsequent to and subject to the lien of the said mortgage.\\nMarch 2, 1953, Neal died intestate, and thereafter M. W. Crouch was appointed administrator of his estate. Thereafter respondent brought foreclosure proceedings, and waived recourse against any other property of the decedent. She made as defendants Bernice Neal; M. W. Crouch, as said administrator; and Alvin R. Mad-sen, the aforementioned judgment creditor. Judgment was obtained in the sum of $11,-086.81, and foreclosure sale ordered, but no provision was made for any deficiency judgment.\\nThe sheriff's sale was held June 30, 1953. The personal property was sold first, for various amounts, part to Mrs. Gaskill and part to Madsen, after which Madsen's attorney requested that the real property be sold in two parcels. This was done, the sheriff selling first lot 7, on which Madsen's attorney bid $200, and Jess Parsons, as agent for Mrs. Gaskill, bid $201, which was the highest bid, and the property was declared sold to Mrs. Gaskill. The trial court found that the identical thing happened relative to lot 8, except that after Jess Parsons,, agent for Mattie O. Gaskill, bid $201, and. before the property had been sold, he requested permission to withdraw his bid and. bid the entire amount due under the judgment, less the amounts he had previously-bid. Madsen's attorney objected, and the sheriff refused Parsons' request, and the property was sold to respondent, Mrs. Gas-kill, for $201.\\nThe above-mentioned facts are not disputed, but the evidence is conflicting as to> whether or not any objection was made at the time Madsen's attorney requested that, the property be sold in two parcels. Lots 7 and 8 run east and west, and the buildings, thereon north and south, or substantially so. A fence separated portions of the lots. on which the house and the garage are located, but the fence goes through both lots, and does not follow the dividing line of the lots, and the house rests partly upon each lot, and so does the garage. The evidence discloses that the sheriff knew of the cross-wise location of the buildings prior to the commencement of the sale, he having been so informed by M. W. Crouch and Jess Parsons. They requested that the lots be sold as one parcel.\\nAfter the foreclosure sale, Melvin Cook, \\u2022son and agent for appellant Bernice Neal, negotiated on many occasions with Jess Parsons, agent for respondent. They agreed that Parsons would try to sell the -property at private sale, pay the amount due respondent on her judgment, and the balance, if any, to appellant. One interested purchaser was found, but no sale consummated.\\nThe negotiations continued until a few days before June 29, 1954, when appellant redeemed the real property at 4:25 p. m. \\u2022for the sum of $402 plus costs, making a total of $426.12, which money is still being held by the sheriff. At this time the property was worth approximately $11,000. June 30, 1954, the last day of the period for redemption, respondent made a motion to set aside the foreclosure sale and the certificate of redemption, which motion was .amended September 3, 1954. After a hearing on the amended motion, at which evidence was produced, the district court on November 3, 1954, held that the sheriff's sale and certificate of redemption were void, and ordered that a re-sale be made of the property. From this order Bernice Neal prosecutes this appeal.\\nShe sets forth several assignments of error; but as we see it the main and determinative questions in this case are whether or not the foreclosure sale and the redemption were valid and legal, and whether respondent was guilty of laches in bringing this action.\\nGenerally, a motion or other similar application to set aside an execution sale must be made promptly and without unreasonable delay, but there is no universal rule fixing the period of time within which the application may and must be made. 33 C.J.S., Executions, \\u00a7 238 b, p. 497. Respondent explains her delay in moving to set aside the sale in that the negotiations between the parties in an effort to sell the property for enough to pay the full amount of the judgment and to leave a balance over for the appellant lulled her into a false security. A party may be estopped from urging the defense of laches where his conduct contributed to the delay. Austin v. Hallmark Oil Co., 21 Cal.2d 718, 134 P. 2d 777, 787; Nadel v. Zeligson, 207 Okl. 658, 252 P.2d 140, 145.\\nAppellant contends that' both the sale and redemption were valid. She further contends that if the court should\\\" hold that they were not, because the sale of the property was made in two separate lots rather than as one parcel, the respondent cannot complain because she was the purchaser of each lot. Under the facts of this case it does not seem any more reasonable to sell the lots separately than it would be to sell separately gloves, shoes or other articles that go in pairs and are used as such. Both the house and the garage were built partly on each lot.\\nIt is apparent that lots 7 and 8 were used as one unit or parcel, and that the purported sale as two- units caused confusion. Under the facts and circumstances of this case, the fact that respondent was the purchaser of both lots did not cure the irregularity, and the highest amount offered to be bid at the sale was not accepted by the sheriff. The sale was not conducted in compliance with I.C. \\u00a7 11-304. See also 37 Am.Jur., Mortgages, sec. 627, pp. 94-95. A bidder has the right to withdraw his bid at any time before the property is knocked down to him, and the sheriff has no authority to prescribe conditions which deprive the bidder of this right. 33 C.J.S., Executions, \\u00a7 214, p. 461.\\nIn the case of Federal Land Bank of Spokane v. Curts, 45 Idaho 414, 262 P. 877, parcels of a farm had been sold separately, and the sheriff had ignored a much higher written bid for the entire tract. The court set aside the sale, and said, 45 Idaho at page 424, 262 P. at page 880:\\n\\\" Since this land is contiguous, and is owned and farmed as one tract, and there are no peculiar marks or circumstances to distinguish one 40-acre piece from another, from the standpoint of use or enjoyment, it cannot be said, as a matter of law, that it is divided into separate known lots or parcels, requiring the officer to sell in separate parcels. Elston v. Hix, supra [67 Mont. 294, 215 P. 657].\\\"\\nThe general rule is that where there is no division of the mortgaged property into parcels adapted for separate and distinct enjoyment, the property should be sold as a whole, unless the party interested should show in some intelligible manner the distinct manner in which the property might be profitably divided for sale. 37 Am.Jur., Mortgages, sec. 694, p. 138. No such showing was made or even attempted in the case now before us. Madsen had no right to direct the order in which the lots should be sold. Federal Land Bank of Spokane v. Curts, supra.\\nIf the sheriff's sale is permitted to stand, appellant has paid only $426.12 for $11,000 worth of property. This is grossly inadequate consideration, and when taken with the other facts and circumstances of this particular case, we ar\\u00e9 of the opinion that they were sufficient to warrant the trial court in setting aside the sheriff's sale and the certificate of redemption.\\nThe Utah Supreme Court, in the case of Commercial Bank of Utah v. Madsen, 120 Utah 519, 236 P.2d 343, 344, in considering this question, stated:\\n\\\"The general rule as to discretion of the trial court in cases involving inadequacy of consideration is stated in 59 C.J.S., Mortgages, \\u00a7 750, p. 1382, as follows: ' Each case depends largely on its own peculiar facts; and whether the circumstances, coupled with inadequacy of price, are sufficient to warrant setting aside the sale is a matter largely within the discretion of the trial court.' See also: Chausse v. Bank of Garland, 71 Utah 586, 268 P. 781; Cole v. Canton Mining Co., 59 Utah 140, 202 P. 830; National Realty Sales Co. v. Ewing, 55 Utah 438, 186 P. 1103.\\\"\\nAs a general rule, mere inadequacy of consideration is not sufficient ground for setting aside a sheriff's sale, but it is uniformly held that gross inadequacy of consideration, coupled with very slight additional circumstances, is sufficient. Federal Land Bank of Spokane v. Curts, 45 Idaho 414, 425, 262 P. 877; Fiolle v. First Nat. Bank of Thomas, 173 Okl. 501, 49 P.2d 145; Rastelli v. Zaca Mining Corp., 52 Cal.App.2d 507, 126 P.2d 368.\\nThe order appealed from is affirmed.\\nCosts to respondent.\\nTAYLOR, C. J., and KEETON, PORTER and SMITH, JJ., concur.\"}"
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+"{\"id\": \"8584991\", \"name\": \"PETER BAIN, Appellant, v. CHRIS O. OLSEN and HATTIE OLSEN, Respondents\", \"name_abbreviation\": \"Bain v. Olsen\", \"decision_date\": \"1924-05-27\", \"docket_number\": \"\", \"first_page\": \"170\", \"last_page\": \"173\", \"citations\": \"39 Idaho 170\", \"volume\": \"39\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-11T01:12:59.000535+00:00\", \"provenance\": \"CAP\", \"judges\": \"McCarthy, C. J., and Budge and William A. Lee, JJ., concur.\", \"parties\": \"PETER BAIN, Appellant, v. CHRIS O. OLSEN and HATTIE OLSEN, Respondents.\", \"head_matter\": \"(May 27, 1924.)\\nPETER BAIN, Appellant, v. CHRIS O. OLSEN and HATTIE OLSEN, Respondents.\\n[226 Pac. 668.]\\nAppeal and Error \\u2014 Assignment of Errors \\u2014 Sufficiency of Specifications \\u2014 Review\\u2014Examination of Alleged Errors.\\n1. An appellate court will not review an assignment which does not point out the particulars in which the alleged error consists.\\n2. An appellate court must content itself with examining alleged errors specifically pointed out; it cannot wade through the record and search the law relating to the subject involved to determine if error was committed by the trial court.\\nAPPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.\\nAction to foreclose mortgage on real property. Judgment for defendants.\\nAffirmed.\\nW. A. Beakley, for Appellant.\\nW. P. Hanson and E. 0. Thompson, for Respondents.\\nCounsel cite no authorities on points decided.\", \"word_count\": \"1200\", \"char_count\": \"7169\", \"text\": \"WM. E. LEE, J.\\nThis is an appeal from a judgment of the district court for respondents in an action to foreclose a mortgage on real property. Appellant alleged the execution and delivery of the note and mortgage to one John Mac-Mullin; that MacMullin, for a valuable consideration, in due course of business, sold and assigned the note and mortgage to him, before maturity; that he is the lawful owner and holder thereof; and that the whole sum of principal and interest is due and unpaid. Respondents admitted the execution of the note and mortgage, but denied that, in due course of business, or otherwise, they delivered the instruments to MacMullin for the purpose of transferring title therein, and respondents alleged that the instruments were delivered to MaeMullin for the purpose of enabling him to complete a farm loan, theretofore applied for. It is further alleged that MaeMullin was president of the Idaho Cattle Loan Company, and held himself and the company out as being able to negotiate and effect farm loans; and that, at the time of the negotiations for the loan and the delivery of the note and mortgage, appellant was in the employ of the company, or MaeMullin, and knew why the note and mortgage were executed and delivered, and knew that they were not delivered for the purpose of passing title to Mac-MuUin, but solely for the purpose of enabling Mae-Mullin, or the company, to complete the desired loan. It is also alleged that the assignment of the mortgage was made to appellant without any consideration, and with intent to defraud respondents; that appellant was not a holder in good faith; that the loan was never made and nothing was ever paid respondents, and that the consideration for which the note and mortgage were originally delivered has entirely failed; that the transfer to appellant was not made in good faith; that appellant, at the time of the transfer to him, knew that it was for the purpose of defrauding respondents; and that respondents have been defrauded thereby. Appellant submitted evidence tending to support the allegations of his complaint, and respondents submitted evidence tending to sustain their contentions.\\nThe court found, among other things, that the note and mortgage were delivered to the original payee for the specific purpose of enabling him to complete a farm loan, and not for the purpose of otherwise transferring the said instruments; that appellant was not a holder in due course; that no consideration' passed from appellant to the original payee; that the note and mortgage were negotiated for the purpose and with the intention of defrauding respondents; and that appellant was an employee of the original payee and knew the objects and purposes for which the note and mortgage were executed, and knew that the original payee had given no consideration whatever for the note and mort gage. Among other things, the court concluded that appellant had full knowledge of the transaction by which the note and mortgage were originally obtained; that appellant was not a holder in good faith or an innocent purchaser for value; that there was no valid delivery of the note and mortgage to appellant; that title thereto did not pass to him; and that respondents were entitled to judgment. Upon the findings and conclusions, judgment was entered in favor of respondents and against appellant.\\nThere is a sharp conflict in the evidence. However, insufficiency of the evidence is not assigned as a ground for reversal, and, in the absence of such an assignment, this court will not examine the evidence to determine if it is sufficient. The assignments of error are as follows:\\n\\\"The court erred in its findings of fact numbers I, II, IV and V.\\n\\\"The court erred in its conclusions of law.numbered I, II, III and IV.\\n\\\"The court erred in entering judgment in favor of the defendants and against the plaintiff for the said judgment is contrary to the evidence in this case and against the law governing real estate mortgages and notes under the laws of the State of Idaho.\\\"\\nThere were two things which the trial court could have done ill the determination of this ease, depending upon 'whether it believed the evidence adduced by appellant or that adduced by respondents. The court believed the evidence produced by respondents, and made the only findings that could have been made in view of that fact. The court, therefore, did not err \\\"in its findings of fact.\\\" The conclusions of law necessarily result from and follow the findings, and consequently the court did not err \\\"in its conclusions of law.\\\" The court did not err in entering judgment in favor of respondents and against appellant, because the judgment was the only proper judgment that could have been made and entered in view of the findings and conclusions. (Hill v. Porter, 38 Ida. 574, 223 Pac. 538; Morton Realty Co. v. Big Bend I. & M. Co., 37 Ida. 311, 218 Pac. 433. See, also, Western Securities Co. v. Spiro, 62 Utah, 623, 221 Pac. 856; Eagle Lumber Co. v. Burton Lumber Co., 62 Utah, 491, 220 Pac. 1069; Smith v. Knauss, 52 Utah, 614, 176 Pac. 621.)\\nAppellant suggests, however, in his assignments, that the court erred in entering the judgment in that \\\"the said judgment is contrary to the evidence in this case and against the law governing real estate mortgages and notes under the laws of the state of Idaho.\\\" This assignment is manifestly insufficient; it is too general, and more properly relates to the findings of fact. However, there is no specification of the particulars wherein the \\\"judgment is contrary to the evidence\\\"; or in which the judgment is \\\"against the law governing real estate mortgages and notes under the laws of the state of Idaho.\\\" Many volumes have been written on the subject of notes and mortgages, and there is considerable statutory law on these subjects. An appellate court must content itself with examining alleged errors specifically pointed out; it cannot wade through the record and search the law relating to the subject involved to determine whether any error was committed by the trial court. In this case, however, it is apparent from the record that substantial justice was done.\\nJudgment affirmed. Costs to respondents.\\nMcCarthy, C. J., and Budge and William A. Lee, JJ., concur.\"}"
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diff --git a/idaho/8585023.json b/idaho/8585023.json
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+"{\"id\": \"8585023\", \"name\": \"STATE of Idaho, DEPARTMENT OF FINANCE, Plaintiff-Respondent, v. Offshore Finance Limited, Ernst Nelo Tietjen and Merrill Goertzen, Defendants, and John B. TENNEY, Defendant-Appellant\", \"name_abbreviation\": \"State, Department of Finance v. Offshore Finance Ltd.\", \"decision_date\": \"1993-06-14\", \"docket_number\": \"No. 19645\", \"first_page\": \"243\", \"last_page\": \"250\", \"citations\": \"124 Idaho 243\", \"volume\": \"124\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Court of Appeals\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:13:43.564146+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C.J., and SWANSTROM, J., concur.\", \"parties\": \"STATE of Idaho, DEPARTMENT OF FINANCE, Plaintiff-Respondent, v. Offshore Finance Limited, Ernst Nelo Tietjen and Merrill Goertzen, Defendants, and John B. TENNEY, Defendant-Appellant.\", \"head_matter\": \"858 P.2d 782\\nSTATE of Idaho, DEPARTMENT OF FINANCE, Plaintiff-Respondent, v. Offshore Finance Limited, Ernst Nelo Tietjen and Merrill Goertzen, Defendants, and John B. TENNEY, Defendant-Appellant.\\nNo. 19645.\\nCourt of Appeals of Idaho.\\nJune 14, 1993.\\nRehearing Denied Aug. 27, 1993.\\nPetition for Review Denied Sept. 24, 1993.\\nJohn B. Tenney, appellant pro se.\\nLarry J. EchoHawk, Atty. Gen., Mary E. Hughes, Deputy Atty. Gen., Boise, for respondent. Mary E. Hughes argued.\", \"word_count\": \"3568\", \"char_count\": \"22328\", \"text\": \"SILAK, Acting Judge.\\nJohn B. Tenney associated with a number of individuals and entities for the purpose of transacting business in the Global Stock Exchange (GSE). Tenney's association with Ernst Tietjen (Tietjen) in JTT Venture (JTT) ultimately resulted in a civil suit against him under the Idaho Securities Act (the Act), I.C. \\u00a7 30-1401, et seq. During their association Tenney prepared documentary materials that Tietjen brought into Idaho for the purpose of soliciting investors in GSE. Testimony and documentary evidence presented at trial indicated that Tenney knew about Tietjen's activities in Idaho. The district court, acting as the trier of fact, found sufficient evidence to prove Tenney's liability under an aiding and abetting theory. Tenney timely filed an appeal challenging the judgment on three theories: (1) the court lacked jurisdiction over him as a citizen of Utah; (2) the court did not use the correct standard for fraud and aider-abettor liability; and (3) there was insufficient evidence to prove his liability for violations of the Act. For the reasons stated below we affirm the judgment.\\nFACTS AND PROCEEDINGS\\nThe real and fictitious individuals and entities involved in this case were woven into a web by events and circumstances that are too complex to unwind here, therefore we will discuss only those facts necessary for our decision. Tenney, an individual knowledgeable in securities transactions, became involved in the development of the GSE by acquiring options for the purchase of seats on the exchange. GSE was patterned, in part, after the New York Stock Exchange and was legitimately licensed to operate in the Republic of Panama.\\nTenney began seeking investors to purchase interests in his optioned seats. In the early months of 1990 he became involved with Tietjen who claimed to be the United States representative of Offshore Finance Ltd., a company supposedly incorporated in Gibraltar. This relationship eventually grew into JTT, a joint venture/partnership, comprised of Tenney, Ti-etjen, and Lome Jensen. The joint venture agreement was signed on May 11,1990, for the purpose of participating in GSE. JTT, in July 1990, entered into a joint venture with T.R. Holdings S.A. for the purpose of attracting investors to GSE. During this time, an office with support staff was set up in Salt Lake City, Utah. This office was the center for business activities of JTT; the three partners and their staff produced documents which included offering materials intended to be used to raise investment capital for the venture.\\nTietjen traveled the western United States, including Idaho, seeking investors. He used documents partially prepared by Tenney to sell interests in GSE and other investment schemes. On May 22, 1990, Tenney reported to Brian Caldwell, who would later become a principal in T.R. Holdings S.A., that Tietjen had \\\"met with religious groups with members in Idaho, Montana, and Canada\\\" who had agreed to fund investments. Tenney had phone contact with Tietjen while he was in Idaho. The office staff at one time anxiously anticipated Tietjen's return from Idaho in the hope that he would return with enough investment money to meet the office payroll.\\nTietjen made a trip to Boise on October 18, 1990, to meet with potential investors. The meeting was attended by an investigator from the Idaho Department of Finance. At the meeting Tietjen offered for sale unregistered securities and other investment opportunities relating to GSE as well as other entities. He promised a 7 to 1 return on investment within one year.\\nOn November 22, 1990, the Department of Finance filed a verified civil complaint against Offshore Finance, Tietjen, and a number of other individuals and entities including Tenney. All others named in the original complaint except Tenney were either dismissed or a default judgment was entered against them. Tenney answered the complaint pro se and on June 20, 1991, represented by counsel, moved for summary judgment with accompanying affidavits. The motion was denied without findings and conclusions on August 12, 1991. A trial before the district court began on August 19, and on August 29, the court issued its findings of facts and conclusions of law. On October 4, 1991, judgment was entered against Tenney, enjoining him from certain activities in the securities business, awarding costs and attorney fees, and imposing a civil penalty which amounts were all to be determined at a later date. Tenney filed a timely appeal from the judgment. On December 11, 1991, the court awarded the Department costs and attorney fees and set a civil penalty of $5,000.\\nISSUES\\nTenney raises the following issues on appeal:\\n1. Does Idaho have the right under its long-arm statute, I.C. \\u00a7 5-514, to exercise both jurisdiction and venue over Ten-ney?\\n2. Was there sufficient evidence to show that Tenney was in a partnership, association, or agency relationship?\\n3. What standards must be used to demonstrate fraud under I.C. \\u00a7 30-1403(3) and aider and abettor liability under I.C. \\u00a7 30-1442(3) and was there sufficient evidence to establish Tenney's liability under the standards?\\n4. Was there error in the non-joinder of Global Stock Exchange and JTT Venture as defendants?\\n5. Whether Tenney was afforded due process.\\nBoth Tenney and the Department request attorney fees on appeal.\\nJURISDICTION\\nTenney argues that he is not subject to personal jurisdiction in Idaho because the state \\\"failed to produce any evidence that Tenney has any contacts, ties or relations\\\" sufficient to subject him to Idaho's jurisdiction. Tenney recites a list of activities that he did not do in order to show that he should not be subject to personal jurisdiction. The Department argues that Tenney fails to cite any specific evidence in the record to substantiate his argument, but rather simply denies business or personal contact with Idaho. We agree. Tenney fails to attack the district court's findings that support jurisdiction.\\nFor personal jurisdiction to be obtained, two conditions must be satisfied. First, a statutory basis must be established under I.C. \\u00a7 5-514, Idaho's long-arm stat ute. \\\"The exercise of personal jurisdiction by the courts of this state over those who do any of the acts enumerated in I.C. \\u00a7 5-514 extends only 'as to any cause of action arising from the doing of any of said acts.' \\\" Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 75, 803 P.2d 978, 981 (1990). Second, constitutional requirements of the due process clause of the fourteenth amendment to the United States Constitution must be met. Schneider v. Sverdsten Logging Co., 104 Idaho 210, 211, 657 P.2d 1078, 1079 (1983). The analysis to be applied under each standard was recently articulated by our Supreme Court in Houghland, above. Before we apply these standards we note that an appellate court will review the question of the existence of personal jurisdiction over a nonresident defendant as one of law which is reviewed freely. Houghland, 119 Idaho at 75, 803 P.2d at 981. In adopting I.C. \\u00a7 5-514, the legislature intended to exercise all of the jurisdiction available to the state under the due process clause of the United States Constitution. The long-arm statute is to be liberally construed to provide a forum for Idaho residents. Id. (citation omitted).\\nTenney argues that the state failed to establish personal jurisdiction under I.C. \\u00a7 5-514. However, he does not support this argument except by claiming the lack of constitutionally required \\\"minimum contacts.\\\" The state presents three arguments in support of personal jurisdiction under section 5-514: (1) Tenney personally transacted business for the purpose of realizing pecuniary benefit, (2) Tenney committed tortious acts within Idaho, and (3) Ten-ney was subject to jurisdiction because of acts committed by his agent.\\nThe acts of Tietjen as an agent of JTT establish personal jurisdiction over Tenney. Generally, a joint venture is analogous to a partnership, and is often defined as an association of two or more persons carrying out a single business enterprise for the purpose of realizing a profit. Rhodes v. Sunshine Mining Co., 113 Idaho 162, 166, 742 P.2d 417, 421 (1987). \\\"Where a joint venture exists, each of the parties is the agent of the others and each is likewise a principle [sic] of the others so that the act of one is the act of all.\\\" Rhodes, 113 Idaho at 167, 742 P.2d at 422 (citation omitted). Documentary evidence established that Ti-etjen, Tenney and Jensen were the principals in JTT, a joint venture. Testimony showed that Tietjen was in Boise trying to raise money for JTT. Tietjen's attempts to sell unregistered securities were the transactions that gave rise to this action. The money raised from Tietjen's sales trips was to be used to further the interests of JTT and its principals. The principals helped prepare offering materials for Tietjen and they were aware that Tieljen was traveling into Idaho to raise money for the enterprise. We hold that these activities by the principals as agents of each other, particularly Tietjen, were business transactions meant to further JTT's pecuniary interests, thereby establishing the statutory basis of personal jurisdiction over Tenney. Because any one of the bases the state asserts would independently support personal jurisdiction under the long-arm statute, we need not address the others. Therefore, we next turn to the constitutional standard.\\nHoughland followed Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) for its analysis of the constitutional due process test for the exercise of personal jurisdiction. The Supreme Court in Burger King reasoned that the minimum contacts required by International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), are met if the defendant purposefully directs his activities at residents of the forum state and the litigation arises out of or relates to those activities. Houghland, 119 Idaho at 76, 803 P.2d at 982 (citing Burger King, 471 U.S. at 472, 105 S.Ct. at 2182.)\\nOnce it has been determined that minimum contacts exist with the forum state, the second prong of the constitutional standard, whether the exercise of jurisdiction comports with fair play and substantial justice, must be met. Burger King stated that the minimum contacts must be evaluated in light of the following:\\n\\\"the burden on the defendant,\\\" \\\"the forum State's interest in adjudicating the dispute,\\\" \\\"the plaintiffs interest in obtaining convenient and effective relief,\\\" \\\"the interstate judicial system's interest in obtaining the most efficient resolution of controversies,\\\" and the \\\"shared interest of the several States in furthering fundamental substantive social policies.\\\" These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. . On the other hand, where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling ease that the presence of some other considerations would render jurisdiction unreasonable. Burger King, [471 U.S. at 477-478, 105 S.Ct.], at 2184-2185. (citations omitted).\\nThe Burger King court also focused on \\\"the foreseeability . that the defendant's conduct and connection with the forum state are such that [the defendant] should reasonably anticipate being haled into court there.\\\" Id. at 474, 105 S.Ct. at 2183 (cited in Houghlcmd, 119 Idaho at 80, 803 P.2d at 986).\\nThe district court, in finding jurisdiction proper, held that Tenney had purposefully directed, participated in, and benefited from activities conducted in Idaho. Tenney's argument that the Department failed to produce any evidence to support the court's finding is misplaced. Again, as in our statutory analysis, the acts of attempting to sell unregistered securities in Idaho were the acts that gave rise to this action; therefore, those acts are the ones we must consider in determining jurisdiction. The record contains substantial evidence to support a finding of minimum contacts from purposefully directed activities intended to offer and sell unregistered securities in Idaho. Documentary evidence presented at trial included a letter written by Tenney indicating that a religious group's members in Idaho had agreed to fund one to three million dollars for the GSE, and other letters written by Tenney which were included in offering packages presented to Idaho residents. This evidence indicated that Tenney knew and participated in contacting Idaho residents. In addition, testimonial evidence indicated that Tenney helped prepare the offering materials in which his letters were included, and that he spoke to Tietjen by telephone while Tietjen was in Idaho attempting to sell securities using the offering materials. Further, testimony also indicated that Ten-ney was anticipating receiving money from the sales trips into Idaho. The nature and quality of these contacts support a finding that Tenney purposefully directed activities at Idaho residents such that he should have reasonably anticipated the possibility of being haled into court in Idaho.\\nWe now turn to whether the exercise of jurisdiction is consistent with fair play. Tenney's only argument against jurisdiction based on the fair play element is that he could not \\\"effectively defend himself in Idaho for business activities conducted in foreign countries,\\\" that it had been \\\"very difficult for [him] to marshall witnesses or gather material from other countries.\\\" The Department argues that Tenney has not presented a compelling enough case to overcome the minimum contacts based on his purposefully directed activities. We agree. Tenney has not presented this Court with any argument that he actually had witnesses he was unable to present because of the forum's location nor did he claim that there was specific documentary evidence that he could not present. Also, Tenney failed to indicate to the district court or to this Court the substance of any possible testimony or documentary evidence. Therefore, we conclude that Tenney has failed to present a compelling argument that the notion of fair play has been violated and we hold that personal jurisdiction was properly exercised by the district court.\\nPARTNERSHIP\\nTenney argues that there was not sufficient evidence to show that he was involved in a partnership, association, or agency relationship. We disagree. The Department presented as evidence a joint venture agreement signed by Tenney which created a partnership among Jensen, Ti-etjen, and Tenney known as JTT Venture. There was no evidence at trial disputing the existence of JTT as a partnership; therefore, we hold that there was sufficient evidence to show that Tenney was involved in a partnership with Jensen and Tietjen.\\nFRAUD\\nTenney argues that the Department failed to prove fraud because there was no evidence to support the required element of reliance. The Department counters by arguing that in an enforcement action reliance is not required. Tenney relies on Sharp v. Idaho Investment Corp., 95 Idaho 113, 121-23, 504 P.2d 386, 394-96 (1972) to establish the elements of fraud. While we agree that Sharp indicated the elements of common law fraud, which requires detrimental reliance, we have before us a statutory civil enforcement action. The Department correctly points out that 1.C. \\u00a7 30-1403 prohibits the use of misleading statements in connection with the offer of any security. In addition, federal case-law interpreting the anti-fraud section of the Securities Exchange Act of 1934, which is similar to I.C. \\u00a7 30-1403, does not require reliance in an enforcement action. S.E.C. v. Blavin, 760 F.2d 706, 711 (6th Cir.1985). We hold that detrimental reliance is not required when the Department is pursuing an enforcement action for the offer of securities under I.C. \\u00a7 30-1403.\\nAIDERr-ABETTOR LIABILITY\\nTenney argues that the Department did not make a specific allegation of acts that if proved would constitute aider-abettor liability. Additionally, he argues that there was no evidence to show he controlled other defendants, purposely did business in Idaho, or knew or gave permission for the material he prepared to be used in Idaho. While no Idaho cases have interpreted the aider-abettor section of the Act, I.C. \\u00a7 30-1442(3), federal courts have articulated the following three elements for aider-abettor liability: (1) the existence of an independent primary wrong; (2) the actual knowledge by the alleged aider and abettor of the wrong and of his or her role in furthering it; and (3) substantial assistance in the wrong. Harmsen v. Smith, 693 F.2d 932, 943 (9th Cir.1982), cert. denied, 464 U.S. 822, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983).\\nTenney challenges, as a separate issue, the existence of an independent wrong; however, we will address it as part of the aider-abettor issue along with his argument that the Department failed to prove by sufficient evidence that he had knowledge or substantially assisted in the wrong.\\nTenney argues that the Department must link him to a specific security and that the evidence presented at trial supporting the fact that twelve different \\\"securities\\\" were offered was so broad that he could not adequately defend himself. This issue is raised for the first time on appeal. \\\"It is well settled that 'issues not raised below and presented for the first time on appeal will not be considered or reviewed.' \\\" Freiberger v. American Triticale, Inc., 120 Idaho 239, 243, 815 P.2d 437, 441 (1991), citing Sandpoint Convalescent v. Dept. of Health, 114 Idaho 281, 756 P.2d 398 (1988); Baldner v. Bennett's, 103 Idaho 458, 649 P.2d 1214 (1982).\\nEven though the issue of a primary wrong was not preserved, we must address the other elements as they are properly raised under a sufficiency of the evidence argument. After a complete review of the record we conclude that there is sufficient evidence in the record to support the district court's determination that Tenney had knowledge of the acts being carried out in Idaho and that his assistance in preparing the offering materials used in Idaho was substantial enough to warrant a finding of aider-abettor liability. The record indicates that Tenney knew that his letters concerning the GSE were included in the offering material, and he knew that Tietjen was dealing with residents of Idaho. In addition, Tenney assisted Tietjen by proofreading and editing Tietjen's written documents, and he physically prepared the offering materials that were the core of Tietjen's effort to sell interests in GSE in Idaho. Therefore, we hold that there was sufficient evidence to support a judgment that Tenney aided and abetted Tietjen in violating the Act.\\nNON-JOINDER OF PARTY\\nTenney argues that the Department should have joined the GSE and JTT as parties. No motion to join additional parties was made below. Therefore, as noted above, we will not address issues not properly preserved for appeal.\\nDUE PROCESS\\nTenney argues that his due process rights to a fair trial were violated because the district court was biased against him. To support his allegation of bias Tenney refers this Court to the district court's findings of fact and conclusions of law claiming the tone of the language used by the court shows bias. However, the gravamen of Tenney's argument is that the evidence at trial did not support the court's conclusions. In reviewing a constitutional claim of a due process violation by the district court we employ free review. Cf. State v. Rusho, 110 Idaho 556, 559, 716 P.2d 1328, 1331 (Ct.App.1986). Tenney is correct that due process requires that the evidence presented at trial must prove all of the elements of the case against him by a preponderance of the evidence. After a complete review of the record, we hold that there was sufficient evidence presented at trial to support every allegation necessary for a judgment to be entered against Ten-ney.\\nATTORNEY FEES\\nBoth parties claim costs and attorney fees on appeal. We hold that costs and attorney fees should be awarded to the Department pursuant to I.C. \\u00a7 30-1442(2)(c); I.A.R. 40 and 41.\\nCONCLUSION\\nFor the foregoing reasons, we affirm the judgment of the district court and award costs and attorney fees to the Department.\\nWALTERS, C.J., and SWANSTROM, J., concur.\\n. I.C. \\u00a7 5-514 reads in relevant part as follows:\\n5-514. Acts subjecting persons to jurisdiction of courts of state.\\u2014\\nAny person, firm, company, association or corporation, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, firm, company, association or corporation, and if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:\\n(a) The transaction of any business within this state which is hereby defined as the doing of any act for the purpose of realizing pecuniary benefit or accomplishing or attempting to accomplish, transact or enhance the business purpose or objective or any part thereof of such person, firm, company, association or corporation; .\\n. Although Tenney raised the issue of improper venue in this appeal, he presented no argument to this Court to sustain his claimed error. Without supporting legal argument, we uphold the district court's ruling that venue was proper.\\n. Tenney requests this court to \\\"re-examine\\\" a portion of testimony that indicated Tietjen offered a 7:1 return on investment, to determine if it constituted fraud as outlined in Sharp. Because Tenney fails to present any argument as to why the court committed error regarding this part of the case, we decline to reach this issue.\"}"
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+"{\"id\": \"8585450\", \"name\": \"STOVER v. STOVER\", \"name_abbreviation\": \"Stover v. Stover\", \"decision_date\": \"1900-06-02\", \"docket_number\": \"\", \"first_page\": \"185\", \"last_page\": \"187\", \"citations\": \"7 Idaho 185\", \"volume\": \"7\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:05:38.291991+00:00\", \"provenance\": \"CAP\", \"judges\": \"Huston, C. J., and Sullivan, J., concur.\", \"parties\": \"STOVER v. STOVER.\", \"head_matter\": \"(June 2, 1900.)\\nSTOVER v. STOVER.\\n[61 Pac. 462.]\\nAction fob Divorce \\u2014 Dismissal\\u2014Motion\\u2014Error.-\\u2014It is error for the district court to refuse to enter an order dismissing an action brought by a wife for divorce, when the plaintiff applies therefor, and there is no affirmative relief sought by the defendant, by way of \\u201ccross-complaint or counterclaim. It is the policy of the law to discourage divorces; hence, where the plaintiff in a divorce suit asks to dismiss and no counter cause of action is set up in a cross-complaint or counterclaim, the refusal of the court to make the order dismissing the. action is reversible error.\\n(Syllabus by the court.)\\nAPPEAL from District Court, Blaine County.\\nSilas W. Moody and Hawley, Puckett and Hawley, for Appellant.\\nLeave, apparently ex parte, had been given respondent to file an amended answer and cross-complaint, but he had not filed either; there being nothing before the court at that time save the complaint, appellant was entitled to dismiss her action. (Kev. Stats., see. 4354.)\\nNo appearance for Respondent.\", \"word_count\": \"714\", \"char_count\": \"4149\", \"text\": \"QUARLES, J.\\nThis is the second time that this cause has been before this court on appeal. Upon a decision of the first appeal (see Stover v. Stover, 6 Idaho, 493, 56 Pac. 263). we held that the cross-complaint of the respondent did not state a cause of action, and that the respondent was not entitled thereunder to the affirmative relief granted him by the judgment, and reversed the judgment. Hpon the return of this cause to the lower court the plaintiff moved to dismiss her action, but her motion was denied, and the lower court refused to permit the plaintiff to dismiss her action. Two days thereafter the respondent (defendant below) was permitted to and did file an amended answer and cross-complaint, and answer was filed to said amended cross-complaint, and the court called a jury, which was impaneled to try the issues, which were found in favor of the respondent: whereupon judgment was entered in his favor, from which this appeal is prosecuted.\\nA number of errors are specified by appellant, but we deem it necessary to consider only one of them, viz., the refusal of the trial court to enter judgment dismissing the action. There being no cross-complaint nor counterclaim stating a cause of action and seeking affirmative relief in the case, the plaintiff had the right, under section 5354 of the Revised Statutes, as matter of course, to dismiss her action. If there were any costs that had not been paid, the court might have required their pay ment forthwith as a condition precedent, but no such showing is made. As we held in Boyd v. Steele, 6 Idaho, 625, 59 Pac. 21, neither the court nor clerk can prevent such dismissal.\\nThe action of the trial court in denying said motion appears to be arbitrary and no reason appears in the record as to why the motion to dismiss was denied. The plaintiff being the wife who is seeking a divorce, we will not presume that there were costs \\\"unpaid, which would, apparently, deny her a plain, unequivocal right given by statute.\\nBut the most important consideration that induces us to conclude that said motion should have been under the conditions of the pleadings, sustained, is the well-settled rule that it is the policy of the law to discourage divorce suits, and not to encourage them. This rule was violated by the lower court in this cause. Plaintiff wanted to quit the litigation. She asked to dismiss her action. The court denied her the right to do so. Two days afterward an amended cross-complaint was filed by the defendant, and upon which he was afterward granted a judgment of divorce. It might have been proper, as above suggested, for the court to have required the plaintiff to first pay any costs that might have then been unpaid; but the record does not show that there were any such costs, and no reason whatever is shown for the court's action. Judgmentreversed,and the cause remanded to the district court, with instructions to enter an order dismissing the action as of the date said motion to dismiss was made, to wit, June 20, 1899. Costs awarded to appellant.\\nHuston, C. J., and Sullivan, J., concur.\"}"
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+"{\"id\": \"8585698\", \"name\": \"BOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant, v. W. L. WEAVER and CHLOE WEAVER, His Wife; NORTH SIDE CANAL CO., LTD., a Corporation; E. B. HUGHES; BLISS STATE BANK, a Corporation; and E. RALPH EVANS, Respondents\", \"name_abbreviation\": \"Boise Payette Lumber Co. v. Weaver\", \"decision_date\": \"1925-03-03\", \"docket_number\": \"\", \"first_page\": \"516\", \"last_page\": \"522\", \"citations\": \"40 Idaho 516\", \"volume\": \"40\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T23:30:14.701387+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wm. E. Lee, Budge and Givens, JJ., and Babcock, District Judge, concur.\", \"parties\": \"BOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant, v. W. L. WEAVER and CHLOE WEAVER, His Wife; NORTH SIDE CANAL CO., LTD., a Corporation; E. B. HUGHES; BLISS STATE BANK, a Corporation; and E. RALPH EVANS, Respondents.\", \"head_matter\": \"(March 3, 1925.)\\nBOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant, v. W. L. WEAVER and CHLOE WEAVER, His Wife; NORTH SIDE CANAL CO., LTD., a Corporation; E. B. HUGHES; BLISS STATE BANK, a Corporation; and E. RALPH EVANS, Respondents.\\n[234 Pac. 150.]\\nMechanic\\u2019s Lien \\u2014 Foreclosure\\u2014Giving of Credit \\u2014 Extension of Time.\\n1. Tlie time within which an aetion to enforce a lien can be commenced, under C. S., sec. 7349, cannot be extended, as against another encumbrancer, by an agreement between the lienor and the owner to extend the time for the commencement of such action.\\n2. An agreement to extend the time for the foreclosure of a mechanic\\u2019s lien, under C. 8., see. 7349, is not the giving of a credit within the meaning of this statute.\\nAPPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.\\nAction to foreclose mortgage; cross-complaints to foreclose mechanics\\u2019 liens. From judgment decreeing first lien to cross-complainant Hughes, plaintiff appeals.\\nReversed and remanded with instructions.\\nBissell & Bird, for Appellant.\\nWhere action to foreclose a mechanic\\u2019s lien is not commenced within six months of the date of filing such claim of lien, and no credit has been given within the meaning of sec. 7349, C. S., the lien is lost and is as ineffective as if it had never been created. (O. S., see. 7349; Western Loan & Bldg. Co. v. Gem State Lumber Co., 32 Ida. 497, 185 Pae. 554; Peterson v. Billon, 27 Wash. 78, 67 Pac. 397.)\\nOnce the statute of limitations 'begins to run it is not suspended by any subsequent disability. (17 R. G. L. 826; Harvey v. Tobey, 15 Pick. (Mass.) 99, 25 Am. Dee. 430.)\\nThe time within which an action to enforce a lien must be commenced cannot be extended, as against another encum-brancer by an agreement between the lienor and the owner to extend the time of payment. (18 R. C. L. 982; Brown v. Moore, 26 111. 421, 79 Am. Dee. 383.)\\nA mechanic\\u2019s lien does not continue unless proceedings are commenced in a proper court against the person, or persons, against whose interest the lien is asserted, within the time limited by the statute. (Western Loom & Bldg. Co. v. Gem State Lumber Co., supra; Brown v. Moore, supra.)\\nSutphen & Sutphen and James & Ryan, for Respondent.\\nThe word \\u201ccredit\\u201d as used in C. S., sec. 7349, should be construed as the ordinary reading public would read and understand it. (C. S., sec. 9455; Howard v. Grimes Pass. P. M. Go., 21 Ida. 12, Ann. Cas. 1913C, 284, 120 Pac. 170.)\\nThe words \\u201cto give credit\\u201d as ordinarily used mean to trust or repose confidence in the ability of a would-be debtor to make payment at some future time either specified or indefinite. (Century Dictionary & Eney.; 15 C. J. 1348.)\\nThe limitation of six months for commencement of actions to foreclose mechanics\\u2019 liens as provided in C. S., sec. 7349, does not begin to run until the expiration of the term of credit, and where credit is given it tolls the running of limitations, which will not begin to run against the lien until the maturity of the term of credit. (Sleeper v. Elliott, 36 N. D. 280, 162 N. W. 305; Hughes Brothers v. Hoover, 3 Cal. App. 145, 84 Pac. 681.)\\nThe lien statutes are remedial in character and should be liberally construed in the interest of the laborer. (C. S., sec. 9444; Abernathy v. Peterson, 38 Ida. 727, 225 Pac. 132; Phillips v. Salmon River Min. Co., 9 Ida. 149; 72 Pae. 886.)\", \"word_count\": \"1931\", \"char_count\": \"11111\", \"text\": \"WILLIAM A. LEE, C. J.\\nAppellant, Boise Payette Lumber Company, furnished lumber and other building material for the construction of a dwelling-house being erected by W. L. Weaver and wife near Bliss. E. B. Hughes furnished the plumbing and heating supplies and performed certain labor in the construction of the building. E. Ralph Evans was the architect and builder. Upon the completion of the building the owners owed appellant $3,071.05 on account of material it furnished, Hughes a balance of $411.88 for the material and labor he furnished, and E. Ralph Evans $894.22 as architect and builder. Hughes and Evans filed claims for liens for the respective amounts due them, appellant having taken a note secured by a mortgage upon the premises for its indebtedness.\\nAppellant foreclosed its mortgage and made Hughes and Evans, lien claimants, parties defendant, and they filed answers and cross-complaints upon their respective liens; Upon the issues thus joined the court made and entered findings of fact and conclusions, and from such findings and conclusions decreed Hughes a first lien for the amount of his claim, Evans a second lien for his claim, and appellant' a third lien for its mortgage indebtedness, and to each of said claimants interest, costs and attorney's fees.\\nThe only parties to this appeal are appellant lumber company and respondent Hughes. The appeal is predicated upon the alleged error of the court in holding that the lien claim of respondent Hughes is superior to the right of appellant under its mortgage.\\nRespondent completed his contract and ceased work upon this dwelling on August 19, 1920. Some time thereafter Weaver told respondent that he was not able to pay the balance due him but that he would have the money inside of six months, and that it would take that long to straighten up his accounts, to which Hughes replied that he would have to file a lien to protect his claim, and Weaver advised him to file a lien, which respondent did file, under the provisions of C. S., sec. 7346, and the same wasi duly recorded November 13, 1920, within ninety days after respondent ceased to work upon the dwelling.\\nApril 8, 1921, Weaver and respondent entered into an agreement wherein it was stipulated that respondent should have until November 13, 1921, in which to commence a foreclosure of his lien against these premises.\\nRespondent Hughes contends, and the lower court found, that respondent gave credit for payment of the amount of respondent's claim of lien, and that at the time of filing his cross-complaint the period of six months had not elapsed since the expiration of the credit so given.\\nUnder C. S., sec. 7349, a mechanic's lien does not continue unless proceedings are commenced in a proper court against the person, or persons, against whose interest the lien is asserted, within the time limited by the statute. (Western L. & B. Co. v. Gem State Lum. Co., 32 Ida. 497, 185 Pac. 554; Continental & Commercial Trust & Savings Bank v. Pacific Coast Pipe Co., 222 Fed. 781, 138 C. C. A. 329; D. W. Standrod & Co. v. Utah Implement Vehicle Co., 223 Fed. 517, 139 C. C. A. 65.) The statute provides that:\\n\\\"No lien provided for in this chapter binds any building, mining claim, improvement or structure for a longer period than six months after the claim has been filed, unless proceedings be commenced in a proper court within that time to enforce such lien; or if a credit be given, then six months after the expiration of such credit . \\\"\\nRespondent Hughes not having filed his cross-complaint to foreclose his lien claim in the mortgage foreclosure brought by appellant for more than six months after the lien had been filed, presents the question for determination as to whether the same was commenced within the time prescribed by this statute. That is, the li\\u00e9n was filed November 13, 1920, and the cross-complaint to foreclose the same on October 27th thereafter.\\nOn April 8, 1921, respondent Hughes and Weaver, the owner, agreed in writing that the time for foreclosure of this lien might be extended to November 13, 1921, and this stipulation was filed for record. The six months' period had not expired. Respondent contends that an agreement extending the time to foreclose the lien is the giving of credit within the meaning of this statute, and therefore the limitation for the foreclosure of the lien was accordingly extended. This is not the meaning- of the term \\\"or if credit be given'' as used in this statute. (Hughes Bros. v. Hoover, 3 Cal. App. 145, 84 Pac. 681; Knowles v. Baldwin, 125 Cal. 224, 57 Pac. 988.)\\nA mechanic's lien is created by operation of law upon the doing or failing to do certain things by the respective parties to the transaction. It was the intent of the mechanic's lien law to grant an absolute lien upon the property to persons who perform labor or furnish material to be used in building or improving such structure; and every contractor, subcontractor, architect, builder or other person having charge of such building or of its alteration or repair shall be held to be the agent of the owner for the purposes of this lien law. (McGill v. McAdoo, 35 Ida. 283, 206 Pac. 1057; Hill v. Twin Falls etc. Water Co., 22 Ida. 274, 125 Pac. 204.) The purpose of the statute is to compensate anyone who performs labor upon or furnishes material to be used in the construction, alteration or repair of a building or structure. (Chamberlain v. City of Lewiston, 23 Ida. 154, 129 Pac. 1069.)\\nThe lien of respondent arises by reason of the Weavers employing or permitting respondent to furnish this material and labor in the construction of the 'building, and it remains bound under such lien until the time for enforcing the same, under the terms of the statute, has expired.\\nHowever, upon a consideration of the facts, which are not in dispute, we conclude that the learned trial court erred in holding that a credit was given by respondent to the owner in this case. The evidence does not show that a credit was given, but shows the contrary. When the owner informed respondent that he would not be able to pay the balance due him prior to the expiration of the time to file a lien, respondent advised him that he would have to file a lien for the protection of his claim, and was advised by the owner, Weaver, to do so. Henee, no credit was asked for or given. Respondent filed the lien in the time and manner required by law. After it had been filed and the six months' period for beginning an action to foreclose the same was about to expire, the owner and respondent agreed that the time for the commencement of the action to foreclose this lien should be extended for six months, but this could not operate to extend the time. The time within which an action to enforce a lien can be commenced after the lien has been filed cannot be extended, as against another encumbrancer, by an agreement between the lienor and the owner to extend the time of payment. (18 R. C. L., p. 982; Brown v. Moore, 26 Ill. 421, 79 Am. Dec. 383; and cases previously cited.)\\nThe right of foreclosure existed immediately upon the filing of the lien, and the six months' period of limitations immediately began to run, and any disability which arrests the running of the statute must exist at the time the right of action accrues. The statute having once attached, the period will continue to run, and is not suspended by any subsequent disability. (17 R. C. L., pp. 826, 826, and cases cited.)\\nThe ease should be reversed and remanded, with instructions to disallow respondent's lien against the premises in question, and it is so ordered. Costs to appellant.\\nWm. E. Lee, Budge and Givens, JJ., and Babcock, District Judge, concur.\"}"
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+"{\"id\": \"8585867\", \"name\": \"FEENEY v. CHESTER\", \"name_abbreviation\": \"Feeney v. Chester\", \"decision_date\": \"1900-11-27\", \"docket_number\": \"\", \"first_page\": \"324\", \"last_page\": \"330\", \"citations\": \"7 Idaho 324\", \"volume\": \"7\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T18:05:38.291991+00:00\", \"provenance\": \"CAP\", \"judges\": \"Quarles and Sullivan, JJ., concur.\", \"parties\": \"FEENEY v. CHESTER.\", \"head_matter\": \"November 27, 1900.)\\nFEENEY v. CHESTER.\\n[63 Pac. 192.]\\nWater Rights \\u2014 Irrigation\\u2014Action to Quiet Title to Ditch and Water \\u2014 Verbal Agreement as to Use of Water. \\u2014 Where it is apparent from the pleadings that the purpose of the litigation is the settlement of the rights of the parties litigant to the waters of a certain creek or river flowing through a certain ditch and the rights of the parties to the use of such ditch, it is not error for the trial court, having before it all of the parties interested and having jurisdiction of the subject matter, to pass upon and decide the entire matter. Where one contemplating the construction of a ditch or canal for the purpose of conducting water from a creek or river to lands owned by him finds that it is necessary to construct the same over and through the lands of another, and makes an agreement with the owner of said lands, that in consideration of a right of way through the same, such owner shall have an interest in said ditch to the extent of a sufficient amount of water therefrom to irrigate - his said lands, such agreement is binding upon both the party making the agreement and those holding or claiming to hold under him.\\n(Syllabus by the court.)\\nAPPEAL from District Court, Bannock County.\\nArthur Brown and Thomas F. Terrell, for Appellant.\\nThe contract which is sought to be specifically executed ought not only to be proved, but the terms of it should be so precise as that neither party could reasonably misunderstand them. If the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy. (Galson v. Thompson, 2 Wheat. 336; Magee, v. McManus, 70 Cal. 553, 12 Pac. 451; Los Angeles etc. Assn. v. Philips, 56 Cal. 530; Morrison v. Rossignol, 5 Cal. 64; Potts v. 'Whitehead> 20 N. J. Eq. 55; Brown v. Brown, 33 N. J\\u00ab Eq. 650.) Any decree is erroneous which is not within the issues framed by the pleadings. (Owen v. Meade> 104 Cal. 179, 37 Pac. 923; Stout v. Coffin, 28 Cal. 65; Tomlinson v. Monroe, 41 Cal. 94; Johnson v. Moss, 45 Cal. 515; Clark v. Insur-surance Go., 36 Cal. 168; Mondran v. Qoux, 51 Cal. 151.) If the defendant relies on the equities of his case for anything beyond a defense, and seeks affirmative relief, he must file a cross-bill. An answer will not be sufficient. (5 Eney. of PL & Pr. 632; San Juan etc. Co. v. Finch, 6 Colo. 214; Story's Equity Pleading, sec. 398a; McConnell v. Smith, 23 Ill. 611; Harrison v. McCormick (Cal.), 9 Pac. 114.)\\nWinters & Guheen, for Respondent,\\ncite no authorities in their brief.\", \"word_count\": \"2243\", \"char_count\": \"12970\", \"text\": \"HUSTON, C. J.\\nAlthough this ease is, as shown, by the record, an action to restrain a trespass, still it seems to have been treated by both court and counsel as an action to quiet the title of the parties litigant to the waters of Soda creek, or to a ditch taking water from said creek. Appellant states in his brief that \\\"this is a suit in equity to quiet the title of appellant to a certain ditch, described and set forth in the complaint.\\\" In hie complaint appellant, after setting forth his title to the ditch and the water therein flowing, and alleging the acts of defendant ' in taking water therefrom, prays \\\"that the defendant be required to set up any right he may have or claim in or to the ditch or canal, and the waters flowing therein, belonging to plaintiff, and that any such right or claim be adjudged and decreed to be inferior and subordinate to the rights of the plaintiff, and void as to the ditch or canal owned by the plaintiff\\\"; and then prays that the defendant be perpetually enjoined from interfering with the right of the plaintiff in and to the ditch or canal aforesaid, or the water flowing therein. The complaint also sets forth the ownership by plaintiff of certain lands susceptible of irrigation by means of the waters aforesaid, and avers the right in the plaintiff to the use for irrigating said land of three hundred and twenty inches of water, measured under a four-inch pressure, of the flow of the waters of said Soda creek. .Defendant admits the ownership by plaintiff of the lands described in the complaint, but denies that plaintiff ever used more than fifteen inches of said water for irrigating said land, or that plaintiff has more than fifteen acres of land that is susceptible of irrigation from said ditch and the water of said Soda creek. Defendant also avers that plaintiff's predecessors in interest, and who constructed said ditch, found it necessary in such construction to. run said ditch through two subdivisions, of forty acres each, of defendant's land, and, in consideration of defendant granting to him the right of way through said lands, plaintiff's grantor (one Horseley) did agree to give to defendant an interest in said ditch for the purpose of using the waters therein; and that the defendant has, for each and every year since the construction of said ditch, used the waters of the said Soda creek through the said ditch for the irrigation of the lands of said defendant, without any hindrance from the plaintiff or Ms predecessor in interest, until about one year ago, when the plaintiff laid claim to the whole ditch, without regard to the rights of the defendant. None of the evidence appears in the record.\\nThe court finds, inter alia, after finding the appropriation (no definite number of inches appearing) of said waters by Horseley, the predecessor of plaintiff, as follows: \\\"After the posting of the notice of appropriation as aforesaid, and prior to the actual commencement of work in the excavation of said ditch, it was ascertained that said ditch would traverse two forty-acre subdivisions of the\\\" defendant's (William Chester's) land, and thereupon it was verbally agreed between the said Herbert Horseley and defendant that, as a consideration for crossing said land of the defendant with said ditch, the said defendant should be allowed to run water through, and have an interest in, said ditch or canal; that the supply of water from said Soda creek is abundant for all appropriators, and many hundreds of inches of said water going to waste each irrigating season; that one inch to the acre is sufficient water for the irrigation of any of the lands of the plaintiff or defendant; that plaintiff and his predecessors in interest have continuously used from said canal water sufficient to irrigate ten acres of his said land and for domestic purposes; that defendant has continuously, each and every year, used water from said canal for the land mentioned in finding 13 hereof, as such land has been cleared and cultivated.\\\" And as conclusions of law the court finds \\\"that the defendant is entitled to the use of said canal for the purpose of flowing seventeen inches of water through the same from the point of diversion to the land of the defendant, and to the use of seventeen inches of water from said ditch for the purpose of irrigating said land.\\\" And the plaintiff is perpetually enjoined and restrained from interfering with the defendant in the use of said amount of water from said ditch.\\nAppellant presents the following specifications of error: \\\"1. The court erred in its conclusions of law, and the decree based thereon, awarding respondent the right to use said canal for the purpose of flowing seventeen inches of water through the same, and to tbe use of seventeen inches of water from said ditch, under the finding of fact that respondent based his claim for such water upon a verbal contract with one Herbert Horseley, the appellant being an entire stranger to such contract, and a Iona fide innocent purchaser of said ditch, for a valuable consideration. 2. The court erred in its conclusions of law that' respondent had any right to or interest in said ditch or canal, or the waters flowing therein. 3. The court erred in awarding any specific amount of use or right in said ditch, and in decreeing respondent the right to use seventeen inches of water from said ditch. 4. The court erred in assuming to enforce by decree an interest or water right in this ditch based upon a verbal contract. 5. The court erred in granting the injunction against the appellant. 6. The court erred in not determining when, how and where respondent should have the right to divert such water from said ditch. 7. The court erred in not determining how such ditch should be kept up and maintained. 8. The court erred in granting defendant affirmative relief, when there was no cross-complaint. 9. The court eTred in granting respondent any relief under his answer for the reason that the same failed to state facts sufficient to constitute a defense or counterclaim to the cause of action set forth in the complaint.\\\"\\nAs to the first specification of error: The defendant having paid the consideration by giving the right of way for the ditch through his land, and having received and enjoyed, for some seven or eight years, the use of the ditch and water, it would be inequitable to permit the plaintiff to now deprive him thereof while retaining the benefit of the consideration given by defendant therefor. (See Stowell v. Tucker, ante, p. 312, 62 Pac. 1033, also Rev. Stats., sec. 6008.)\\nAs to the second specification: Both the complaint and answer contain a prayer for general relief. Courts will not do equity by halves. Having the parties before it, and having jurisdiction of the subject matter, the averred purpose of the action being \\\"to quiet the title to the ditch and water,\\\" it seems to us eminently proper that the court should, by its decree, settle the whole matter. While, technically, it would have been more in accord with proper practice for the defendant to have set up his claim for affirmative relief by a cross-complaint, still we are not inclined to contravene the palpable spirit of the code, by subjecting a right, clearly established, to the technicalities of a pleading. As to the other specifications of error, we cannot see that they suggest any questions not covered by what we have already passed upon. In fact, the appellant seems to rely upon technical objections entirely. As we have before said, the action was brought to settle the rights of the parties to the waters conveyed by a certain ditch. The court would have been justified in simply dismissing the complaint, and denying the injunction prayed for by complainant; but having the parties before it, and the whole question submitted upon proofs, the court wisely and properly, we think, proceeded to dispose of the whole matter, and in so doing we are satisfied, from a careful inspection of the record, committed no error. The judgment of the district court is affirmed, with costs to respondent.\\n(December 27, 1900.)\\nQuarles and Sullivan, JJ., concur.\"}"
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+"{\"id\": \"8585903\", \"name\": \"FARMERS' CO-OPERATIVE DITCH COMPANY, a Corporation, Plaintiff and Respondent, v. RIVERSIDE IRRIGATION DISTRICT, LTD., et al., Defendants and Respondents; NAMPA & MERIDIAN IRRIGATION DISTRICT, Defendant and Appellant\", \"name_abbreviation\": \"Farmers' Co-operative Ditch Co. v. Riverside Irrigation District, Ltd.\", \"decision_date\": \"1908-03-05\", \"docket_number\": \"\", \"first_page\": \"450\", \"last_page\": \"461\", \"citations\": \"14 Idaho 450\", \"volume\": \"14\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T17:32:29.554356+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sullivan, J., concurs.\", \"parties\": \"FARMERS\\u2019 CO-OPERATIVE DITCH COMPANY, a Corporation, Plaintiff and Respondent, v. RIVERSIDE IRRIGATION DISTRICT, LTD., et al., Defendants and Respondents; NAMPA & MERIDIAN IRRIGATION DISTRICT, Defendant and Appellant.\", \"head_matter\": \"(March 5, 1908.)\\nFARMERS\\u2019 CO-OPERATIVE DITCH COMPANY, a Corporation, Plaintiff and Respondent, v. RIVERSIDE IRRIGATION DISTRICT, LTD., et al., Defendants and Respondents; NAMPA & MERIDIAN IRRIGATION DISTRICT, Defendant and Appellant.\\n[94 Pac. 761.]\\nIrrigation \\u2014 Action to Establish Priorities or Appropriation \\u2014 Description op Lands to be Irrigated \\u2014 Parties Dependant \\u2014 Survey and Maps by State Engineer \\u2014 Apportionment op Cost op Survey and Maps.\\n1. \\u201cWhere a defendant in a -water suit, brought for the purpose of determining priorities of appropriators, answers the complaint and also files a cross-complaint in which he sets up his claim to a certain quantity of the waters of the stream and pleads the facts entitling him to a decree establishing his rights, and he raises no objection to the insufficiency of description of the lands to be irrigated as contained in the complaint, and in no way calls the matter to the attention of the trial court, and a decree is entered describing the lands to be irrigated both by the plaintiff and the defendants and all the parties to the action, in the language of the complaint and the cross-complaints, any insufficiency, error or defect in the description must be first raised in the trial court and called to-the attention of the court entering the deeree before it can be con- sideied on appeal, and in case of appeal any error assigned by the appellant in reference to such defective or insufficient description will he held to have been participated in and invited by the appellant, and he will not be allowed a reversal of the judgment on account thereof.\\n2. In a suit between the appropriators of the waters of a stream involving the rights and priorities of the several appropriators, the users and consumers of water under a canal that has appropriated water for the purpose of sale, rental or distribution are not necessary and indispensable parties to the action, and a decree in such case is valid and binding as between all the parties to the action.\\n3. A water company or corporation may appropriate and divert the waters of a stream for the purpose of sale, rental or distribution, for any beneficial use or purpose, and in such ease the appropriation belongs to the ditch company with a perpetual right of use vested in the users and consumers to whom the water has once been delivered, and such perpetual right so vested in the user or consumer can only be defeated by failure to pay the annual water rents and comply with lawful requirements in relation to the use.\\n4. Where the court, under see. 37, act of March 11, 1903, orders a survey by the state engineer of the ditches and canals diverting water from a stream, and of the irrigable lands thereunder, and of those to which water has been applied, and the making of maps thereof, the cost of such survey is properly chargeable to the several litigants in the ease in proportion to the quantity of water allotted to each. In such ease, it is proper for the court to make the apportionment and order judgment against each according to the amount properly apportioned to such litigant, and it is unnecessary for anyone to file a cost-bill covering such item of expense.\\n5. Id. \\u2014 Sec. 4912, Dev. Stat., as amended, providing for the filing of a cost-bill, does not cover or include such item of expenditure, and it is not error for the court to enter judgment against the several defendants for such costs without requiring a cost-bill to be filed therefor.\\n(Syllabus by the court.)\\nAPPEAL from the District Court of the Third Judicial District for the County of Ada. Hon. George H. Stewart, Judge.\\nAction by the plaintiff to have the rights and priorities of the appropriators of water from the Boise river determined and decreed. Cause tried and decree entered for the several claimants. Defendant, the Nampa & Meridian Irrigation District, appealed from the judgment.\\nAffirmed.\\nHugh E. McElroy, and W. E. Borah, for Appellant.\\nThe findings in this case wholly ignore the requirement of the law calling for the description of the land to which the water is made appurtenant by the decree, and further ignore the user of water as an interested party to this litigation.\\nThe water user has not been accorded his day in court, although the action involves the existence of his property, and the duty of the canal owner in distributing water in pursuance of the decree in this case is purely perfunctory, such owner being merely the public carrier of the water for the use of the real owner, the water user. From beginning to end the act of 1903 is designed to recognize and establish title to the water right in the user of water. (Wyatt v. Larimer t& Weld Irr. Co., 18 Colo. 295, 36 Am. St. Rep. 280, 33 Pae. 144; Gould v. Maricopa Canal Co., 8 Ariz. 429, 76 Pac. 598.)\\nAs there is no finding of the acreage irrigated, it is impossible to determine how the court arrived at the amounts of water allotted. There is no finding as to what canals irrigate the \\u201cbench\\u201d or \\u201cbottom\\u201d lands, and. except in a very limited number of cases, the land upon which the water is used is not described. It is therefore impossible to determine from these findings what lands have been awarded water under this classification as bench lands or bottom lands respectively, the number of acres reclaimed, or what lands have been awarded water at all, or the method by which the respective allotments have been determined.\\nThe parties to this action were entitled to have an issue tendered them in relation to costs by the service of a cost-bill claiming the same, in the usual manner, and upon such claim ibeing tendered, they were entitled to their day in court to contest the same, at which time, as stated by the court, the right of the state engineer might be contested. It further appears that this judgment for costs has not been entered in favor of any person, either party to this action or otherwise. Parties are entitled to recover costs, at whose instance such costs have been incurred. We know of no law under which a valid enforceable judgment can be entered in favor of no one.\\nWhere it appears that canals are operated by carriers of water and that the users of water from such canals have been omitted from the case and are not parties thereto, the decree will not be permitted to stand. The failure of this decree to describe the individual tracts of land and the water right decreed to each tends to defeat the system of regulation and control of the water rights of the state, established by the law of 1903. \\u201cNecessary or indispensable parties are those without whom the court will not proceed to any decree, even as to the parties before it.\\u201d (15 Ene. P. & P. 611; Shields v. Barrow, 17 How. (U. S.) 130, 15 L. ed. 158; Eendig v. Dean, 97 U. S. 423, 24 L. ed. 1061.)\\n\\u201cNonjoinder of necessary or indispensable parties is such a serious defect that though it ought to be regularly raised in limine by plea, answer or demurrer, yet a failure to so raise the objection is not a waiver of the right to object at a later stage of the cause.\\u201d (15 Ene. P. & P. 687-689; Morgan v. Blatchley, 33 W. Va. 155, 10 S. E. 282.)\\n\\u201cAccording to the better reasoning and the weight of authority, the ownership of the appropriation is in the consumer, who by his application of the water to a beneficial use completes the appropriation.\\u201d (Mills\\u2019 Irr. Manual, see. 117.) Sec. 38 et seq. of the Law of 1903 relates to a decree which specifies the water users and the specific tracts on which the water is used.\\nThe question is up to this court to determine as between the Colorado system or the Wyoming system. The decree in this case admittedly follows the former. Comparison of the Idaho law of 1903 with the Wyoming law of 1895 will show that in all material respects they are the same.\\nBoth laws deal with the user of water and make special provisions for adjudicating the water to specific land, thereby conclusively establishing the fact that such specific water is appurtenant to specified land, not by mere use, as has always been the law in Idaho, but by solemn adjudication of that fact by the court thereby making such decision res adjudicata, and not permitting the water to be separated from the land except by regular application to the state engineer. How can the state engineer of Idaho or the water commissioner of the district perform their duties if the decree does not describe the individual tract of land and the amount of water going thereto? (Farmers\\u2019 Irr. Dist. v. Frank, 72 Neb. 136, 100 N. W. 286.)\\nJ. C. Rice, Frank Martin, F. J. Smith, Silas Moody, Karl Paine, Walter Griffiths, Smith & Scatterday, S. H. Hays, Ira E. Barber, H. E. Wallace, W. A. Stone, and J. L. Niday, for Respondents.\\nThe court, in describing the land in its decree upon which the water had been used, followed the description given in the appellants\\u2019 cross-complaint. Can these appellants now be heard to say that, notwithstanding the fact they asked for this relief, and asked for it in the particular way and for the particular lands to which it was given, and notwithstanding the fact that the court gave them the very relief which they asked for in the case, that their complaints were not sufficient to sustain a decree, and it must, for that reason, be set aside? How are they injured or aggrieved parties if this is true. (Cooper v. Cooper, 88 Cal. 49, 25 Pac. 1062; State v. Eves, 6 Ida. 148, 53 Pac. 543; Rankin v. Central Pac. R. R. Co., 73 Cal. 96, 15 Pac. 57; People v. Pfeiffer, 59 Cal. 89; Hibernia, etc. Soc. v. Ordeway, 38 Cal. 679; V. S. v. Memphis, 97 U. S. 284, 24 L. ed. 937; Riverside Land & Irrigation Co. v. Jensen, 73 Cal. 550, 15 Pac. 131; Samoset v. Mesnager, 108 Cal'. 354, 41 Pac. 337; Gumaer v. Draper, 33 Colo. 122, 79 Pac. 1040.)\\nIt is not necessary to describe the land of each individual user of water under ditch of a company which rents water or furnishes it to its stockholders by legal subdivisions, and such is not the intention of sec. 38 of the act of March 11, 1903. Users under these company ditches have always had the right to sell their water or to transfer the use of the same to other land. {Hard v. Boise City Irr. & Land Co., 9 Ida. 602, 76 Pac. 331, 65 L. R. A. 408; Drake v. Earhart, 2 Ida. 750, 23 Pae. 541, 542; Wells v. Price, 6 Ida. 490, 56 Pac. 266; Hall v. Blackman, 8 Ida. 272, 68 Pac. 19; McGinness v. Stan- field, 6 Ida. 372, 55 Pac. 1020; Wilterding v. Green, 4 Ida. 773, 45 Pac. 134.)\\nThe portion of the statute prescribing that the \\u201cdecree shall describe the land to which such water shall become appurtenant\\u201d is directory only. Compliance with this statute is a matter of convenience and not of substance. No penalty follows for noneompliance. (26 Am. & Eng. Eney. Law, 689; Whitney v. Bu-chman, 19 Cal. 300; McCrea v. Haraszthy, 51 Cal. 146; Tuohy v. Chase, 30 Cal. 524; Borkheim v. Fireman\\u2019s F. I. Co., 38 Cal. 505; Broad v. Murray, 44 Cal. 228; Clark v. Sawyer, 48 Cal. 133.) .\\nThe only costs assessed against appellants were the costs of surveys, maps, etc., and for clerical work, all incurred under the order of the lower court, which order the lower court was authorized to make. (Boise Irr. & Land Co. v. Stewart, 10 Ida. 61, 77 Pac. 25, 321.)\\nNone of the litigants in the case filed a memorandum of costs; none claimed costs incurred by them. There was no judgment entered in favor of any one litigant as against another. They were all before the court asking affirmative relief. The order of the court pro-rating those costs was an approval of the amount thereof, and no objections thereto were filed by any of the litigants.\\nThe question, what lands were \\u201cbench\\u201d lands and what lands were \\u201cbottom\\u201d lands, was not raised by the pleadings and was not necessary to be determined in order to find the amount of water any user, or combination of users, were entitled to receive, but was simply a classification used by the court below in arriving at its own conclusions.\", \"word_count\": \"4416\", \"char_count\": \"24982\", \"text\": \"AILSHIE, C. J.\\nThis action was instituted by the Farmers' Co-operative Ditch Company against numerous appropriators of water from the Boise river, for the purpose of adjudicating the priorities among the several appropriators. The complaint was filed on August 20, 1902. The defendants answered and also filed cross-complaints setting up their several rights, appropriations and priorities, and asking for affirmative relief decreeing their several appropriations and the times from which they should date. After the commencement of this action, the trial court, proceeding under the authority of the act of the legislature of March 11, 1903 (Sess. Laws, pp. 223-252), made an order directing and requiring the state engineer to make an examination of the stream and of all the canals and ditches diverting water therefrom, and of the lands irrigated thereunder and susceptible of reclamation therefrom, and to prepare a map showing the same as specifically pointed out by sec. 37 of the act. The survey was made at a cost of about $11,000. After the completion of the survey and the plats were filed, the ease was tried by the court without a jury. On January 18, 1906, findings of fact and conclusions of law and judgment were made and entered. This appeal is from the judgment, and is prosecuted by the Nampa & Meridian Irrigation District, which is the successor in interest and assignee of the Boise City Land & Water Company.\\nThe first contention urged by the appellant is that the court erred in not finding as to all of the individual users of water under the various ditches and canals, and the amount of water used by each and necessarily required for the irrigation of his land, and the particular description of the land upon which he was using and entitled to use water. In support of this contention, counsel relies on sec. 38 of the act of March 11, 1903. That section, among other things, provides that the decree of the court shall be according to the rights and priorities of those using the waters, and shall be made to the use to which such water is beneficially applied, and that when once decreed, the right shall become appurtenant to the land and become a part of the land, and that the ' ' decree shall describe the land to which such water shall become so appurtenant.\\\" To our minds there are several reasons why the appellant's contention is not well taken here. In the first place, the appellant never raised this question in the trial court, and has never presented the same to the trial court,, but, on the contrary, invited tlfe error, if indeed it be error. The court in every instance has described the lands either in the exact language of the complaint or cross-complaint, or by direct reference thereto. Such is true with reference to appellant's lands, and its decree allows it the amount of its appropriation for all lands under its ditch as described in its cross-complaint. In appellant's cross-complaint it alleges that the lands under its ditch susceptible of irrigation therefrom aggregate 80,000 acres, but does not describe that land by legal subdivisions. If appellant wanted a more specific description of its land, it should have furnished the same to .the court by its pleadings. On the other hand, if it wanted a more specific description made of the lands of other appropriators than is contained in the complaint and cross-complaints, it should have raised the question in a proper manner, and reserved an exception in the event the court ruled against it. It failed to do any of these things, and is therefore in the position of one who invites error, and will not be allowed a reversal of the judgment on that account. (3 Cyc. 242; Borden v. Croak, 131 Ill. 68, 19 Am. St. Rep. 23, 22 N. E. 793; Gumaer v. Draper, 33 Colo. 122, 79 Pac. 1040.)\\nThe question is also presented here as to whether sec. 38 of the act of March 11, 1903, is applicable to water users who have no right by appropriation, but whose right is founded upon one of use and is purely a rental right as distinguished from a right by appropriation and diversion. This action was originally instituted to determine the respective rights and priorities among the various appropriators and diverters of the waters of the Boise river, and the plaintiff only made such parties defendants as had constructed ditches and diverted water from the stream. As to some of those ditches the appropriators were also the users of the water; they owned the water right and used the water on their own lands. Others were co-operative ditch companies where a number of water users had joined together and constructed a ditch, each one owning a number of shares in the company which entitled him to a proportionate amount of the water of the canal; while by still other ditches the waters were appropriated and diverted, not for the immediate use of the ditch owners, but for the purpose of sale, rental and distribution. l'Whatever the differences may be in the facts with reference to the use and application of the water, the ditch owners in every instance are necessarily the appropriators of the water within the meaning of the constitution and statute. In Wilterding v. Green, 4 Ida. 780, 45 Pac. 134, this court said: \\\"A company or individual may appropriate and take out the water of a stream for sale, rental or distribution or for any beneficial purpose. When so taken out it becomes a public use and the sale or rental of it for pay is a franchise.\\\" It is true, as intimated by this court in Hard v. Boise City Irr. Co., 9 Ida. 602, 76 Pac. 331, 65 L. R. A. 407, that the appropriation and diversion of water by a ditch company that is not prepared to use the water itself is practically valueless without water consumers. In other words, it takes the water user, applying the water to a beneficial purpose, to enable a ditch company that has appropriated waters for sale, rental or distribution, to continue the diversion of the water. If it should cease to have water consumers or users, and cease to apply the water to a beneficial use, its right to divert the water would cease. That principle has been recognized by see. 38 of the act above mentioned, wherein it requires that where a company has works capable of diverting more water than it is then applying to a beneficial use, the decree shall not allow it to exceed four years thereafter in which to apply the water to a beneficial use. It is most strenuously urged by the appellant here that the court erred in not ordering all these water consumers under the several ditches brought in as parties to this action for the purpose of determining and adjudicating their various rental rights. Counsel insist that they were indispensable parties. That contention is wholly unfounded. They would have been proper parties, and the court might, perhaps, have ordered any one or all of them in, and on application of any of the parties litigant the court would doubtless have made an order directing that they be brought in, but a failure to bring them into court in no way avoids or vitiates the decree as between the parties who were in court or participated in this action. The appropriation of waters carried in the ditch operated for sale, rental and distribution of waters does not belong to the water users, but rather to the ditch company. The right to the use of such water after having \\\"once been sold, rented or distributed to any person who has settled upon or improved land for agricultural purposes,\\\" becomes a perpetual right subject to defeat only by failure to pay annual water rents and comply with the lawful requirements as to the conditions of the use. (Sec. 3, art. 15 of the Constitution; Bardsley v. Boise Irr. & Land Co., 8 Ida. 155, 67 Pac. 428; Wilterding v. Green, 4 Ida. 773, 45 Pac. 134.) A decree in favor of a water user from such ditch could not relieve him from any constitutional or statutory requirements, nor could it put him in any better position or condition than he already finds himself. His presence in the action is in no respect essential to the adjudication of the rights of the several appropriators from the stream itself. Any controversy he may have is with the ditch company from which he receives water or with other consumers under the ditch over the question of priority of use. The appellant in this action answered the plaintiff's complaint but made no suggestion of want of necessary parties. It also filed a cross-complaint and made no offer or attempt to bring in any other parties, nor did it make any request to the court to order any other parties brought into the action. In view of these facts, it cannot now be heard for the first time on such objections in urging a reversal of the judgment.\\nIn paragraph 3 of the findings of fact, the court made a general finding as to the quantity of water required for the successful irrigation of the lands irrigated from the Boise river. It found that \\\"for bench lands 1 inch per acre\\\" is necessary, and that \\\"for bottom lands 1-1/10 inch per acre\\\" is necessary. The appellant assigns this finding as error on the ground that the court has not described the lands he terms bench lands and those he terms bottom lands. The appellant is in no position on this appeal to question the finding for the following reason: This finding No. 3 is merely a finding of the basis on which the court has concluded to apportion the water; the quantity of water per acre he intended to allow the several appropriators. \\\"When the court came to making the specific findings as to the number of inches of water each appropriator was entitled to, he found the date from which such appropriator was entitled to take his water and the number of inches to which he was entitled for the lands described in his complaint or cross-complaint. The latter finding was presumably made upon the basis of one inch for bench lands and one and one-tenth inch for bottom lands. We assume the court followed that standard.. If, in fact, he has not, the failure to do so must appear, from the evidence, and would necessarily have to be reviewed on the motion for a new trial or appeal from an order denying the same. On this appeal, we must presume that the court made its decree to the various appropriators on this basis. No evidence has been brought here. If, on the contrary, the basis or standard laid down by the court as the one it intended to follow is not supported by the evidence, that, too, must be determined from the evidence and cannot be passed upon on this appeal from the judgment.\\nAgain, complaint is made by the appellant of the action of the court in apportioning among the various parties to the action the expense of making the survey and maps and plats by the state engineer, which amounted to $10,804.60, and the \\\"expense incurred in preparing findings and decrees herein and in filing and recording the same in the counties of Ada and Canyon,\\\" which amounted to the sum of $468.66. This total sum of $11,273.26 the court \\\"apportioned to the several parties in the proportion as water is herein allotted to them.\\\" Appellant complains of this principally upon the grounds that no cost-bill was filed, contending that under the provisions of sec. 4912, Rev. Stat., as amended, it was entitled to have a cost-bill served on it and the opportunity of opposing or resisting the taxation of the whole or any part thereof. In Boise Irrigation & Land Co. v. Stewart, 10 Ida. 38, 77 Pac. 25, 321, this court sustained the right and power of the district judge to order the surveys, and also held that the cost thereof would be properly apportioned to the several parties to the action, and that each would have the right to contest the whole or any part thereof. A party dissatisfied with any part of the expense of this survey that was assessed to him bad a right to appear in court and move against such assessment and that part of the judgment, and would have been entitled to a hearing thereon. It was not necessary to have a cost-bill filed in order to enable the dissatisfied party to avail himself of the right of contesting the costs taxed against him for this purpose. These costs are clearly not within the purview or contemplation of the statute which requires the filing of a cost-bill. Presumably, no one had paid such costs. The engineer was not employed by any one of the parties litigant, and consequently no one had become personally liable for the costs. The court had directed the survey, but evidently did not pay the bill and was not a party to the litigation. The expense of the survey was a proper charge against all the litigants, and it was entirely proper and clearly within the jurisdiction and authority of the trial court to apportion these costs as he did, and enter judgment against the several parties to the action as was done in this case.\\nThere was no error in the action of the court in this respect. The judgment should'be affirmed, and it is so ordered. Costs awarded in favor of respondents.\\nSullivan, J., concurs.\\nStewart, J., took no part in the decision.\"}"
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+"{\"id\": \"8585948\", \"name\": \"GREEN v. STATE BOARD OF CANVASSERS\", \"name_abbreviation\": \"Green v. State Board of Canvassers\", \"decision_date\": \"1896-12-24\", \"docket_number\": \"\", \"first_page\": \"130\", \"last_page\": \"145\", \"citations\": \"5 Idaho 130\", \"volume\": \"5\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:36:16.355948+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sullivan, J., concurs.\", \"parties\": \"GREEN v. STATE BOARD OF CANVASSERS.\", \"head_matter\": \"(December 24, 1896.)\\nGREEN v. STATE BOARD OF CANVASSERS.\\n[47 Pac. 259.]\\nAmending Constitution \\u2014 Section 1, Article 20, Construed. \\u2014 Under-the provisions of section 1, article 20, of tbe constitution of Idaho, providing for the amendment of the constitution, where a majority of the electors voting upon that question vote in favor of the amendment, the same is ratified, although the votes thus, east are not a majority of the votes cast at the general election! for state officers.\\n(Syllabus by the court.)\\nOriginal proceeding in supreme court by writ of review.\\nHawley & Puckett, W. E. Borah and Miles W. Tate, for Plaintiff.\\nUnder provisions of the constitution an amendment will' carry when it is properly submitted to the people, and a majority of those voting upon the question east their ballots in its favor, regardless of tbe number of voters voting upon other questions. {City of South Bend v. Lewis, 138 Ind. 535, 37 N. E. 986.) Judge Cooley, in his work on Constitutional Limitations, sixth edition, note 1, page 747, cites a large number of authorities bearing upon the questions involved, and frankly says it is impossible to harmonize the cases. (Walker v. Oswaldj 68 Md. 146, 31 Atl. 711; Dayton v. City of St. Paul, 22 Minn. 40\\u00d3.) The constitution of Minnesota, section 2, article 14, provides, as does section 3 of article 20 of our constitution, that, in the matter of voting for a constitutional convention, a majority of all the voters voting at the election is required. (Taylor v. Taylor, 10 Minn. 181; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636.) The supreme court of the United States in St. Joseph Township v. Rogers, 16 Wall. 644, construed the effect of the phrase \\u201ca majority of the legal voters of a township\\u201d as referring only to the majority of the legal voters voting at an election, and not a majority of all the voters. (County of Cass v. Johnston, 95 U. S. 360; Carroll v. Smith, 111 U. S. 556, 4 Sup. Ct. Eep. 539; State ex rel. Lardbee v. Barnes, 3 N. Dak. 319, 55 N. W. 883; People v. Clute, 50 N. Y. 461, 10 Am. Eep. 508; Board v. Winkley, 29 Kan. 36; Armor Bros. v. Commissioners, 41 Fed. 321; Metcalfe v. City of Seattle, 1 Wash. 308, 25 Pac. 1010; Constitutional Provisions Amendments, 24 Kan. 700; Gillespie v. Palmer, 20 Wis. 544; Sanford v. Prentice, 28 Wis. 358; Louisville R. R. v. County Court, 1 Sneed, 637-692, 62 Am. Dec. 424; State v. Mayor etc., 37 Mo. 270; State v. Satterfield, 54 Mo. 391; Mc-Crary on Elections, secs. 87, 173; Angel\\u00ed and Ames on Corporations, secs. 499, 500; State v. Echols, 41 Kan. 1, 20 Pac. 523; Southworth v. Palmrya etc., 2 Mich. 287; Pacific Imp. Co. v. City etc., 74 Fed. 528; Endlieh on Interpretation of Statutes, sec. 388, note B, p. 543; State v. Babcock, 17 Neb. 188, 22 N. W. 372.) It is fair to assume that both the legislature and the constitutional convention would, if it was their intention to require a majority of all the electors in the state, or all that registered, or all that voted, to vote in favor of the proposed amendment, to have outlined some method of determining the actual number of such electors. (Carroll County v. Smith, 111 U. S. 564, 565, 4 Sup. Ct. Eep. 539.)\\nGeorge M. Parsons, Attorney General, and Johnson & Johnson, for Defendants.\\nIndiana has an identical provision with ours in her constitution regarding amendments. (Ind. Const., art. 16, sec. 1.) In, construing it that court declares that there can be no amendment by a plurality. (State v. Swift, 69 Ind. 505.) A distinction will be observed in our constitution, as well as that of Indiana, between voting to ratify an amendment to the constitution and voting to elect an officer \\u2014 a plurality wote will elect an officer, but a majority vote is required in case of amendment. (Compare sec. 2, art. 4, and sec. 1, art. SO.) An examination of our constitution may be profitable. Compare the words used in section 1, of article 20, \\u201cif a majority of the electors shall ratify the same/5 and the words used in section 3 of the same article, \\u201ca majority of all the electors voting at said election.55 The wording of .the last section creates a limitation in requiring only a majority of those actually voting at the election, while in the first section the constitution directs that the question of the adoption of the amendment shall be submitted to the \\u201celectors of the state/5 and that a majority of them shall vote in favor of the proposed amendment before it is ratified and made a part of our fundamental law. The authorities, even those cited by counsel on the other side, will show that courts, in construing constitutional or statutory provisions that prescribed that a majority of the electors of a county, a township or a district .-should vote upon a given proposition in order to carry it, have .only compelled the harsh lines of the law to yield to judicial \\u25a0construction to the extent that it would be presumed by the .courts that all the electors had discharged their duty by casting their votes, and, as said by Justice Clifford (16 Wall. 664), dhat fact \\u201cwould necessarily be determined by a count of the /ballots.55 (People v. Warfield^ 20 Ill. 163; People v. Gardner, \\u25a047 Ill. 246; People v. Wiant, 48 Ill. 263; Louisville etc. B. B. ,v. Davidson Go., 1 Sneed, 692, 62 Am. Dec. 424; Gass Go. v. Johnston 95 U. S. 360; City of South Bend v. Lewis, 138 Ind. 4512, 37 N. E. 986; State v. Brassfield, 67 Mo. 331, 340; Hawkins v. Garroll Go., 50 Miss. 735, 736; Gocke v. Gooch, 45 Heisk. 294, 310; Fort Worth v. Davis, 57 Tex. 225, 234.) Indifference is not tlie test; an active and expressed approval is necessary. (Duke v. Brown, 96 N. C. 127, 131, 1 S. E. 873; Bayard v. Klinge, 16 Minn. 249; Taylor v. Taylor, 10 Minn. 81; Everiit v. Smith, 22 Minn. 53; People v. VYiant, 48 IIL 263, 266; Qhestnutwood v. Hood, 68 Ill. 132.) The construction for which we contend is clearly sustained by the cases of State v. Winhlemeier, 35 Mo. 103; State v. Sutterfield, 54 Mo. 391; State v. Brass-field, 67 Mo. 331; State v. Mayor, 73 Mo. 435, 437; Hawkins v. Carroll Co., 50 Miss. 735; Norment v\\u201e City of Charlotte, 85 N. C. 387; Duke v. Brown, 96 N. C. 127, 1 S. E. 873; Sutherland v, Goldsborough, 96 N. C. 49P 1 S. E. 760; Cocke v. Goosh, 5 Hcisk. 294; Braden v. Siumph, 16 Lea, 581; Hoagland v. Labaw, 32 N. J. L. 269; People v\\u00ab Trustees, 70 N. Y. 28; State v. Lancaster Co., 6 Neb. 474; State v. Babcock, 17 Neb. 188, 22 N. W. 375; State v. Anderson, 26 Neb. 517, 42 N. \\\"W. 422; Wilson v. Florence, 39 S. C. 397, 17 S. E. 835; Stebbins v. Judge Superior Court, 108 Mich. 693, 66 N. W. 594; People v. Berkeley, 102 Cal. 298y 36 Pac. 591. In State v. Langlie, 5 S. Dak. 594, 67 N. W. 959, the supreme court of North Dakota says: \\u201cIt is to be observed that when the law-making power of a state has desired to make the highest vote at the same election the standard, it has said so in unambiguous terms, as by requiring that there shall be a majority, etc.\\u201d (Bnyart v. Trustees, 25 Ohio St. 618; State v. Roper, 46 Neb. 729, 61 N. W. 753.) A majority of the electors voting is required under section 1, article 20. It is a constitutional provision that must be regarded. (State v. Babcock, 17 Neb. 188, 22 N. W. 375; State v. Anderson, 26 Neb. 517, 42 N. W. 422; People v. Brown, 11 Ill. 480; People v. Wiant, 48 Ill. 266; Everett v. Smith, 22 Minn. 53.)\", \"word_count\": \"6020\", \"char_count\": \"33871\", \"text\": \"HESTON, J.\\nThe constitution of the state of Idaho eon-tains the following provisions in regard to amendments of that instrument:\\n\\\"Article 20.\\n\\\"Amendments.\\n\\\"Section 1. Any amendment or amendments to this constitution may be proposed in either branch of the legislature,, and if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or ameiidments shall, with the yeas and nays thereon, be entered on their journals; and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at' the next general election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of general circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution.\\n\\\"Sec. 2. If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately.\\n\\\"See. 3. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the electors to vote at the next general election for or against a convention; and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall, at the next session, provide by law for calling the same; and siich convention shall consist of a number of members not less than double the number of the most numerous branch of the legislature.\\n\\\"Sec. 4. Any constitution adopted by such convention shall have no validity until it has been submitted to, and adopted by, the people.\\\"\\nThe legislative assembly of the state of Idaho, at its third session, submitted to the people, under said constitutional provisions, the following amendment of the constitution: \\\"Shall section 2 of article 6 of the constitution of the state of Idaho be so amended as to extend to women the equal right of suffrage ?\\\" The vote as returned by the canvassing board upoD' said question was as follows: \\\"For proposed amendment extending to women the equal right of suffrage: For, twelve thousand ' one hundred and twenty-six; against, six thousand two hundred and eighty-two.\\\" And upon this return said board declares said amendment not adopted; and petitioner brings her action for a review of the action of said board of canvassers in this behalf.\\nThe only question submitted to us for decision is as to the construction to be given to the last paragraph of section 1 of article 20,'above quoted: \\\"And if the majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution.\\\" The question presented is by no means a novel one. In fact, so able and experienced a jurist as Judge Thomas M. Cooley admits (Cooley's Constitutional Limitations, 6th ed., 747, note 1) that \\\"it must be confessed that it is impossible to harmonize the cases.\\\" An examination of the large number of authorities cited by counsel in the argument of this case accentuates the statement of Judge Cooley, and perhaps we shall not bo obnoxious to the charge of evading a duty should we decline to enter upon a task which so eminent a jurist declares to be hopeless. We confess ourselves unable to appreciate the argument which would make the language of section 1 of article 20 and section 3 of said article synonymous or expressive of the same intention. If they were, as counsel for defendants contend, intended to mean the same thing, why was not the same language used? We know of no rule of construction, nor has our attention been called to any, that would warrant us in arbitrarily saying that the language used in the two sections was intended to mean the same thing. -On the contrary, the reason seems to us to be the other way. We can understand why the makers of the constitution should apply a different and more stringent rule in the adoption of a call for a constitutional convention from what they would in the matter of a mere amendment. It is true, the amendment under consideration is one of vast importance, but so, likewise, are the other amendments submitted at the same time. With the character or importance of the amendment we have nothing to do in this consideration. Was the amendment adopted as required by the terms and provisions of the constitution? To hold that it was not is virtually to say that no amendment of the constitution is practicable. In fact, counsel do not strenuously contend for a construction involving such a conclusion, but rather insist that the words \\\"majority of the electors,\\\" in sec tion 1, should be construed to mean tbe same as the words 'majority of all the electors voting at such election,\\\" in section 3. Even the authorities cited by counsel do not go to such an extent or sustain such a conclusion.\\nFor us to go into an analysis of all the authorities cited and read upon the argument would accomplish nothing. We have carefully examined them all, in the light of the able arguments of couusel, and we find ourselves unable to base our conclusions upon any apparent weight of authority. We must decide this case upon the provisions of our constitution as the same appear to us, and, so doing, we are compelled to say that the construction contended for by the petitioner is the correct one. Experience has shown that it is almost, if not quite, an impossibility to secure an expression from every elector upon any question, and, above all, upon a question of an amendment of the constitution; and it is equally difficult to ascertain the actual number of electors at any given time. To rely upon the vote cast upon some other question at the same election would be entirely unsatisfactory, and such a construction is, we think, at least impliedly negatived by the provisions of section 3. While it is true that some ten thousand or more electors would seem to have been entirely indifferent upon the question of the adoption of this and the other amendments, still all were \\u2014 must have been \\u2014 fully advised as to the importance of the questions submitted, and should their indifference be taken as conclusive of their opposition to the amendments? TJpon what rule of honesty or righteousness can this be claimed ? Is it not more reasonable, as well as more righteous, to say that in a matter about which they manifest such indifference their silence shall be taken as assent? We hold that the amendment imder discussion is adopted, and has become a part of the constitution of the state of Idaho.\\nSullivan, J., concurs.\"}"
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+"{\"id\": \"8586493\", \"name\": \"Merrie Jo BANTZ and Kirk Bantz, Individually and as Husband and Wife, Plaintiffs-Respondents, v. Neal T. BONGARD, E.L. Murphy Trucking Co., and Carrier's Insurance Company of Iowa, all by and through the Minnesota Insurance Guaranty Association, a quasi-governmental entity, created by the laws of the state of Minnesota, Defendants, and Mutual of Enumclaw Insurance Company, a Washington corporation authorized to do business in the state of Idaho, on Behalf of C. Benjamin HAMILTON, Defendant-Appellant, North Pacific Insurance Company, an Oregon corporation authorized to do business in the state of Idaho, Defendant; Merrie Jo BANTZ and Kirk Bantz, Individually and as Husband and Wife, Plaintiffs-Respondents, v. Neal T. BONGARD, E.L. Murphy Trucking Co., and Carrier's Insurance Company of Iowa, all by and through the Minnesota Insurance Guaranty Association, a quasi-governmental entity, created by the laws of the state of Minnesota, Defendants-Appellants, and Mutual of Enumclaw Insurance Company, a Washington Corporation authorized to do business in the state of Idaho, on behalf of C. Benjamin Hamilton; North Pacific Insurance Company, an Oregon corporation authorized to do business in the state of Idaho, Defendants\", \"name_abbreviation\": \"Bantz v. Bongard\", \"decision_date\": \"1993-11-29\", \"docket_number\": \"Nos. 19665, 19695\", \"first_page\": \"780\", \"last_page\": \"788\", \"citations\": \"124 Idaho 780\", \"volume\": \"124\", \"reporter\": \"Idaho Reports\", \"court\": \"Idaho Supreme Court\", \"jurisdiction\": \"Idaho\", \"last_updated\": \"2021-08-10T20:13:43.564146+00:00\", \"provenance\": \"CAP\", \"judges\": \"TROUT, J., and REINHARDT, J. Pro Tem., concur.\", \"parties\": \"Merrie Jo BANTZ and Kirk Bantz, Individually and as Husband and Wife, Plaintiffs-Respondents, v. Neal T. BONGARD, E.L. Murphy Trucking Co., and Carrier\\u2019s Insurance Company of Iowa, all by and through the Minnesota Insurance Guaranty Association, a quasi-governmental entity, created by the laws of the state of Minnesota, Defendants, and Mutual of Enumclaw Insurance Company, a Washington corporation authorized to do business in the state of Idaho, on Behalf of C. Benjamin HAMILTON, Defendant-Appellant, North Pacific Insurance Company, an Oregon corporation authorized to do business in the state of Idaho, Defendant. Merrie Jo BANTZ and Kirk Bantz, Individually and as Husband and Wife, Plaintiffs-Respondents, v. Neal T. BONGARD, E.L. Murphy Trucking Co., and Carrier\\u2019s Insurance Company of Iowa, all by and through the Minnesota Insurance Guaranty Association, a quasi-governmental entity, created by the laws of the state of Minnesota, Defendants-Appellants, and Mutual of Enumclaw Insurance Company, a Washington Corporation authorized to do business in the state of Idaho, on behalf of C. Benjamin Hamilton; North Pacific Insurance Company, an Oregon corporation authorized to do business in the state of Idaho, Defendants.\", \"head_matter\": \"864 P.2d 618\\nMerrie Jo BANTZ and Kirk Bantz, Individually and as Husband and Wife, Plaintiffs-Respondents, v. Neal T. BONGARD, E.L. Murphy Trucking Co., and Carrier\\u2019s Insurance Company of Iowa, all by and through the Minnesota Insurance Guaranty Association, a quasi-governmental entity, created by the laws of the state of Minnesota, Defendants, and Mutual of Enumclaw Insurance Company, a Washington corporation authorized to do business in the state of Idaho, on Behalf of C. Benjamin HAMILTON, Defendant-Appellant, North Pacific Insurance Company, an Oregon corporation authorized to do business in the state of Idaho, Defendant. Merrie Jo BANTZ and Kirk Bantz, Individually and as Husband and Wife, Plaintiffs-Respondents, v. Neal T. BONGARD, E.L. Murphy Trucking Co., and Carrier\\u2019s Insurance Company of Iowa, all by and through the Minnesota Insurance Guaranty Association, a quasi-governmental entity, created by the laws of the state of Minnesota, Defendants-Appellants, and Mutual of Enumclaw Insurance Company, a Washington Corporation authorized to do business in the state of Idaho, on behalf of C. Benjamin Hamilton; North Pacific Insurance Company, an Oregon corporation authorized to do business in the state of Idaho, Defendants.\\nNos. 19665, 19695.\\nSupreme Court of Idaho, Boise,\\nJanuary 1993 Term.\\nNov. 29, 1993.\\nCantrill, Skinner, Sullivan & King, Boise, for appellant Mut. of Enumclaw. Robert D. Lewis, argued.\\nSmith & Beeks, Twin Falls, for appellant MN Ins. Guar. Ass\\u2019n. Paul M. Beeks, argued.\\nSkinner, Fawcett & Mauk, Boise, for respondents Merrie Jo Bantz and Kirk Bantz. W. Craig James, argued.\", \"word_count\": \"3981\", \"char_count\": \"25231\", \"text\": \"BISTLINE, Justice.\\nThis is an insurance coverage case which involves the questions of: 1) whether Mer-rie Jo Bantz (Bantz), who is a third-party beneficiary of an uninsured motorist insurance policy, has waived that insurance coverage by settling with some parties before trial without the permission of the insurance company or by failing to give timely notice of her claim to the insurance company, and 2) whether the Minnesota Insurance Guaranty Association (MIGA) may refuse to pay the damages assessed against an individual insured by an insolvent Minnesota insurance company until the plaintiffs have followed certain administrative claim procedures set forth by Minnesota law.\\nSTATEMENT OF THE CASE AND PROCEEDINGS\\nThe Accident\\nA multiple vehicle accident occurred on November 30, 1983. Merri Jo Bantz suffered injuries to her back when she was thrown about the inside of the parked Lincoln Continental she occupied as a passenger. The vehicle owner, Benjamin Hamilton, was also thrown about the vehicle while seated in the driver's seat, but he was not injured. The vehicle was manufactured by Ford Motor Company. Before the accident, Hamilton had been driving up a snow and ice covered hill. He experienced traction difficulties, so he pulled off the right side of the road and parked.\\nA tractor-trailer rig was also parked on the right shoulder of the road, some distance ahead of the Hamilton/Bantz vehicle. It was owned by Davis Transport and operated by Shawn Ellis. Ellis was putting out reflectors near his parked tractor-trailer rig when he observed an Oldsmobile coming from the other direction. The Oldsmobile was owned by Richard Featherston and operated by Dan Featherston. The vehicle was manufactured by General Motors Corporation.\\nEllis considered the Featherston vehicle to be traveling at a high rate of speed. As it passed him, he waved or \\\"flagged\\\" Featherston. Featherston apparently applied his brakes and lost control of the vehicle. The vehicle then crossed the center line and collided head-on with a tractor-trailer rig that was passing the Hamilton/Bantz vehicle. The impact knocked the trailer into the side of the Hamilton/Bantz vehicle, allegedly causing Bantz's injuries. This tractor-trailer was owned by E.L. Murphy Trucking Company and operated by Neil T. Bongard.\\nThe Complaint for Damages\\nBantz and her husband, Kirk Bantz, filed a complaint for damages naming as defendants Hamilton, Murphy Trucking and Bon-gard, Davis Transport and Ellis, Feather-ston, Ford Motors, and General Motors. The Bantzes settled their claims against Davis Transport and Ellis, General Motors, and Featherston before trial. They voluntarily dismissed Ford from the suit. The defendants who settled received Pierringer releases. Hamilton's insurance company, Mutual of Enumclaw, did not give written permission to the Bantzes authorizing these settlements.\\nThe Bantzes went to trial against Hamilton and Bongard/Murphy Trucking. The jury, by special verdict, apportioned liability as follows:\\n1. Merrie Jo Bantz 3%\\n2. Hamilton 3%\\n3. Bongard 17%\\n4. Featherston 65%\\n5. Ellis 12%\\nThe amount of damages awarded by the jury was $131,175.00 to Merrie Jo Bantz and $5,000 to her husband, Kirk. Howev er, the trial court ordered a conditional additur which increased the award to $238,-500. The parties have stipulated that the Bantzes' right to recovery on the $238,500 judgment against each party is as follows:\\n1. Hamilton -0-\\n2. Bongard $39,328\\n3. Featherston $150,374 (settled for $17,500)\\n4. Ellis $27,761 (settled for $5,000)\\nBongard has refused to accept the terms of the conditional additur and a new trial on the issue of damages has been ordered. The new trial has been stayed pending resolution of the declaratory judgment action discussed below.\\nThe Action for Declaratory Judgment\\nThe insurance coverage of the defendants who went to trial is as follows:\\n1) Hamilton was insured by Mutual of Enumclaw. His policy included uninsured motorist coverage.\\n2) E.L. Murphy Trucking and Bongard were insured by Carrier's Insurance Company. This policy had a self-insured retention of $25,000. Carrier became insolvent in 1986, and the Minnesota Insurance Guaranty Association (MIGA) undertook Carrier's defense obligations. Additionally, Bantz had uninsured motorist insurance from North Pacific. After the trial, MIGA refused to pay the judgment.\\nThe Bantzes then filed a declaratory judgment action seeking a determination that they are entitled to payment of uninsured/underinsured motorist coverage under insurance policies issued by North Pacific and Mutual of Enumclaw, and that they are entitled to payment by MIGA of the judgment entered against Bongard.\\nAll four parties filed motions for summary judgment. The Bantzes argued that they were entitled to collect from both insurance companies and MIGA under the terms of the respective policies. Mutual of Enumclaw and North Pacific argued the Bantzes lost their right to coverage in settling several claims without the permission of the respective carriers. Mutual also argued that it was not timely notified of the claim. MIGA argued that it was not required under Minnesota law to pay anything until all uninsured motorist coverage had been exhausted and because certain administrative procedures mandated by Minnesota law had not yet been followed.\\nThe district court ruled as follows:\\n1) It granted North Pacific's motion holding that the Bantzes had waived policy coverage by entering into settlement agreements without North Pacific's permission. The court noted that although no Idaho appellate decision has ever addressed the issue of whether \\\"consent-to-settle\\\" clauses in insurance policies are enforceable or void for public policy, the majority of state courts have held them to be enforceable. The court adopted the majority view. This order has not been appealed.\\n2) Mutual of Enumclaw's motion was denied, the district court holding that its consent-to-settle clause was not enforceable against Bantz because: a) of the conflict of interest between Mutual who defended Hamilton against the Bantzes' complaint and the Bantzes, and b) the Bantzes were not signatories to Hamilton's policy and no reported case has extended the reach of a consent-to-settle provision to cover a third-party beneficiary.\\n3) MIGA's motion was also denied, the district court holding that the Bantzes were not barred from recovering from MIGA even though they had waived their North Pacific policy coverage.\\n4) It granted the Bantzes' motion as to MIGA and Mutual of Enumclaw for the reasons above.\\n5) It denied the Bantzes' motion as to North Pacific for the reasons above.\\nMutual of Enumclaw and MIGA both appealed from the court's order and those appeals have been consolidated by order of the Court.\\nDISCUSSION\\nMutual of Enumclaw raises the following issues on appeal:\\n1. Was Bantz required to comply with the consent-to-settle provisions of Hamilton's policy in order to obtain uninsured motorist benefits?\\n2. Did Bantz lose her right to uninsured motorist coverage because she failed to promptly notify Mutual of her claim?\\nMIGA raises these issues:\\n1. Do the Idaho courts have jurisdiction to order MIGA to pay the judgment against Bongard?\\n2. Does the Bantzes' loss of their North Pacific Insurance Company uninsured motorist benefits constitute an \\\"exhaustion\\\" of benefits so as to trigger MIGA coverage?\\n3. Is MIGA entitled to offset the available uninsured motorist coverage and the Carrier insurance policy $25,000 self-insured retention before it is required to pay the Bantzes?\\nWe hold that the consent-to-settle clause in the insurance policy in this case is valid and can be asserted against Bantz if Mutual can show upon remand that it was materially prejudiced by the unauthorized settlement agreements entered into by Bantz. We also hold that Bantz substantially complied with the prompt notification clause in the Mutual policy. As to MIGA's appeal, although the plaintiffs have established liability against Bongard (the insured of the insurance company which MIGA now stands in the shoes of) the amount of damages will be established in the new trial now set for that purpose, we hold that the Bantzes must avail themselves of Minnesota administrative procedures in order to collect on their monetary claim against MIGA.\\nThe rationale for our holdings is set forth below.\\nMutual of Enumclaw's Claims\\n1. The consent-to-settle provision is valid and will bar any recovery under the uninsured motorist policy if Mutual can show, upon remand, that it was prejudiced by the unauthorized settlements.\\nAn insurance policy is a contract and the parties' rights and obligations are primarily set forth within the four corners of the policy. Kootenai County v. Western Casualty & Sur. Co., 113 Idaho 908, 910, 750 P.2d 87, 89 (1988). The Mutual policy states that it would \\\"not provide Uninsured Motorist Coverage for bodily injury sustained by any person . [i]f that person . settles any part of this claim without our written consent.\\\" (Emphasis in original.) Bantz did not ask for or receive written consent to settle her claims and therefore, as Mutual would have it, she cannot collect under the Mutual policy.\\nThis Court has never ruled on the validity of consent-to-settle clauses. The results of the out-of-state cases considering the issue are mixed. It appears that the majority of out of state courts have held the clauses are enforceable. The rationale of those cases is that the insurer may structure the insurance policy in such a way as to protect its right to subrogation. Therefore any settlement which forecloses the insurer from seeking reimbursement from the settling party appropriately terminates the insurance company's obligation under the policy. In this case, there is no dispute that Mutual would have a subrogation right against those defendants who settled with Bantz. Thus, according to the majority of jurisdictions, the consent-to-settle clause in this case is enforceable.\\nHowever, the district court held, and Bantz argues on appeal that the consent-to-settle provision is not enforceable due to the conflict of interest between Mutual and Bantz caused by Mutual's defense of Hamilton against Bantz's lawsuit.\\nMutual responds that the potential for a conflict of interest is inherent in uninsured motorist coverage and therefore it is not unusual for insurance companies to face this situation. For example, the same problem exists when the plaintiff and defendant have the same insurance company. Mutual argues that such conflicts do not provide a basis to preclude enforcement of the consent-to-settle provision. See Nationwide Mutual Ins. Co. v. Webb, 291 Md. 721, 436 A.2d 465, 467-68 (App.1981).\\nWe hold that the potential conflict of interest between Bantz and Mutual does not mandate that this Court hold the consent-to-settle provision void as against public policy. Some conflict will inherently exist in uninsured motorist claims and this is not a case where Mutual unreasonably withheld approval of a settlement offer. Bantz simply never sought approval from Mutual of the settlements she entered into. The potential conflict of interest in this case never ripened into a problem and, thus, cannot form the basis upon which to ignore the plain language of the policy.\\nAs an alternative basis for its decision, the district court held the consent-to-settle clause invalid because Bantz was not a signatory to the policy and should not be strictly held to its terms. We are not persuaded to so hold. Although the parties have not drawn our attention to, nor has our research discovered any cases where an insurance company has sought to enforce a consent-to-settle clause against a third party beneficiary, other courts have held that an additional insured must comply with the obligations of a policy in order to benefit therefrom. See McClelland v. United Services Auto. Ass'n, 525 S.W.2d 271, 272 (Tex.App.1975) (enforcing consent-to-settle provision against minor child when mother, the named insured, settled claims without insurer's consent); Johnson v. Atlanta Casualty Co., 187 Ga.App. 306, 370 5.E.2d 157, 158 (1988), cert. den., June 9, 1988 (enforcing prompt notification provision); Jeanes v. Arrow Ins. Co., 16 Ariz. App. 589, 592, 494 P.2d 1334, 1337 (1972) (mandatory arbitration clause enforced).\\nAfter considering the above authority, we conclude that a third party beneficiary of an insurance policy must comply with all the terms and provisions of an insurance policy which apply to that beneficiary. It would be manifestly unfair to allow a third party beneficiary to collect the benefits of the insurance policy without fulfilling the obligations therein. The consent-to-settle clause in the Mutual policy states that no uninsured motorist coverage will be provided to any \\\"person\\\" if that \\\"person\\\" settles a claim without Mutual's consent. This clause applies to all potential beneficiaries, not just the named insured, and Bantz was obliged to comply with it.\\nHowever, the lone fact that the insured has violated the consent-to-settle provision does not necessarily mean the insurance coverage has been forfeited. Several courts require an insurance company to prove that the unapproved settlement prej udiced it before the consent-to-settle clause will be enforced.\\nBefore settlement with an uninsured motorist can be regarded as a breach of the no-consent-to-settlement exclusion clause sufficient to relieve the insurer of its liability under the uninsured motorist endorsement, such breach must be shown to be prejudicial to the insurer.\\nIf the insured's settlement with the uninsured motorist was clearly fair and reasonable, representing substantially the total amount which could reasonably have been recovered from the uninsured motorist after full pursuit of the insured's claim, that settlement would not exclude uninsured motorist coverage by operation of the no-consent-to-settlement clause, notwithstanding that such settlement was obtained without the carrier's consent.\\nThompson v. American States Ins. Co., 687 F.Supp. 559, 564 (M.D.Ala.1988). The Florida Court of Appeals refused to enforce a consent-to-settle clause in a case where the insured settled with \\\"an impoverished maid\\\" who was \\\"completely judgment proof.\\\" The court noted that when the insurance company \\\"lost the opportunity to secure the judgment, it lost nothing\\\" and an \\\"illusory 'loss' of this kind cannot result in forfeiture of insurance coverage.\\\" Southeastern Fidelity Ins. Co. v. Earnest, 395 So.2d 230, 231 (Fla.App.1981); see also Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 378 S.E.2d 21, 26-27 (1989); Kapadia v. Preferred Risk Mut. Ins. Co., 418 N.W.2d 848, 852 (Iowa 1988).\\nIn line with the above authority, we have determined that a consent-to-settle clause should not be enforced so as to work a forfeiture of uninsured motorist coverage unless the insurer can show actual prejudice from the unconsented-to settlement. To hold otherwise would produce an undeserved windfall to the insurance company while depriving an otherwise deserving insured person of recovery. Accordingly, we remand the cause to the district court with directions to allow Mutual an opportunity to demonstrate that prejudice resulted from the settlements.\\n2. Bantz substantially complied with the prompt notification requirement in the Mutual policy.\\nThe Mutual policy requires an insured to promptly notify the insurer of any claim for uninsured motorist coverage. Section IY of the policy provides:\\nYou must promptly notify us or our agent of any accident or loss. You must tell us how, when and where the accident or loss happened. You must assist in obtaining the names and address of any injured persons and witnesses.\\n(Emphasis in original.)\\nBantz did not give notice of the claim until August 1989. By that time, Bantz had already settled with General Motors, Featherston, and Ellis.\\nThe trial court held that Mutual had constructive notice of the claim because Hamilton notified them of the accident and Mutual fully defended him at trial. We agree. This Court has long held that only substantial compliance with a contractual notice provision is required. Berg v. Ass'n Employers, Reciprocal & Illinois Indem. Exch., 47 Idaho 386, 392, 279 P. 627, 628 (1929).\\nHere Hamilton filed an automobile loss notice which notified Mutual that Bantz was a passenger in the car at the time of the accident, and that she was going to file medical claims. It further states: \\\"[pjlease refer all inquires to Mary [sic] Jo Bantz's attorney per attached letter.\\\" This notice gave adequat\\u00e9 notice to Mutual of Bantz's claim and she did not need to file another notice in order to so advise Mutual. The district court did not err in concluding that Hamilton's notice also gave Mutual constructive notice of Bantz's claim.\\nMIGA's Claims\\n1. Idaho Courts do not have jurisdiction to determine the extent of MIGA's coverage of its insured.\\nMIGA argues, for the first time on appeal, that the Idaho courts are without jurisdiction to order it to pay the judgment against Bongard. In support of its argument, MIGA cites to Minnesota Statutes \\u00a7 60C.10 which provides that \\\"the board shall determine whether claims submitted for payment are covered claims.\\\" Other provisions in the Minnesota Code provide for an appeal if the board rejects a claim. The Minnesota Supreme Court has held that unless the statutory procedure for submitting claims is followed, MIGA is not liable to pay the claim. Taft v. Advance United Expressways, 464 N.W.2d 725 (Minn.1991). In this case, Bantz has not submitted her claims to the board.\\nWe first note that the jurisdictional issue is properly before the Court. A challenge to the jurisdiction of a court will be considered for the first time on appeal. Nycum v. Triangle Diary Co., 109 Idaho 858, 862 n. 6, 712 P.2d 559, 563 n. 6 (1985); Aram v. Edwards, 9 Idaho 333, 337, 74 P. 961, 962 (1903). We further note that MIGA does not contend that the trial court was without jurisdiction to determine whether its insured, Neil Bongard, was liable to the Bantzes. The only question before us is whether, notwithstanding Bongard's liability, MIGA is excused, under the Minnesota laws which created it, from covering the amount of damages for which the Idaho courts have determined that Bongard is liable. In light of the Minnesota statutory scheme and the ease noted above, we conclude that MIGA is not yet required to pay Bantz's claim. We hold that the question of whether the MIGA fund covers a particular claim, as opposed to whether MIGA's insured is liable, or the amount of damages arising from that liability, must be determined under Minnesota administrative procedure.\\n2. The question of whether the Bantzes have exhausted their other insurance coverage must also be determined pursuant to the Minnesota administrative proceedings scheme.\\nMinnesota Statute \\u00a7 60C.13 requires claimants to exhaust any rights under other insurance policies before MIGA is required to pay. MIGA claims that it is not responsible for any coverage because the Bantzes have failed to exhaust their own North Pacific coverage by settling claims without North Pacific's consent. Similarly, MIGA argues that the Mutual coverage has not been exhausted if it is determined upon remand that the Bantzes waived the Mutual uninsured motorist coverage by virtue of their unapproved settlements.\\nWe need not reach this issue because of our determination that the Bantzes must avail themselves of the Minnesota administrative procedures to collect their claim against Bongard. The questions regarding the extent of MIGA's coverage will be dealt with during those procedures. Minnesota Statute \\u00a7 60C.10.\\nCONCLUSION\\nThe order granting summary judgment in favor of the Bantzes against Mutual of Enumclaw is reversed. That cause is remanded for further proceedings. The order granting summary judgment in favor of the Bantzes against MIGA is also reversed. We dismiss the declaratory judgment action against MIGA for lack of jurisdiction. This cause is remanded for a new trial on the issue of damages as per the order of the district court.\\nNo attorney fees on appeal. Costs on appeal to MIGA and Mutual of Enumclaw.\\nTROUT, J., and REINHARDT, J. Pro Tem., concur.\\nMcDEVITT, C.J., concurs in the result.\\n.See Pierringer v. Hoger, 124 N.W.2d 106 (1963). A Pierringer release is an agreement whereby a plaintiff releases one (or more) co-defendant[s] but reserves the right to proceed against the remaining defendants.\\n. See, e.g., Virginia Farm Bureau Mut. Ins. Co. v. Gibson, 236 Va. 433, 374 S.E.2d 58, 63 (1988); Aetna Casualty & Sur. Co. v. Poirier, 371 Mass. 257, 356 N.E.2d 452, 455 (1976); Annotation, Validity, Construction, and Effect of \\\"No-Consent-toSettlement Exclusion Clauses in Automobile Insurance Policy,\\\" 18 A.L.R. 4th, 249-97 (1982).\\n. The accident in this case occurred prior to the legislative abolition of joint and several liability. See I.C. \\u00a7 6-803(3) (establishing individual rule of liability).\\n.Those courts which have held that consent-to-settle clauses are invalid do so because they perceive the clause to be in conflict with their state's uninsured motorist insurance statutes. The courts reason that consent-to-settle clauses are void for public policy because they infringe on the uninsured motorist coverage which is mandated by their respective state statutes. See, e.g., Hebert v. Green, 311 So.2d 223, 229 (La.1975); Wescott v. Allstate Ins., 397 A.2d 156, 169 (Me.1979). By contrast, the Idaho uninsured motorist statute, I.C. \\u00a7 41-2502, only requires insurance companies to offer such cover age. Miller v. Farmers Ins. Co., 108 Idaho 896, 898, 702 P.2d 1356, 1358 (1985).\\n. At the same time, we share the concern of the district court about the conflict of interest. However, we note that the Court has already held that parties to an insurance policy have a duty to act in good faith. Openshaw v. Allstate Ins. Co., 94 Idaho 192, 194, 484 P.2d 1032, 1034 (1971). Along that same line, some state courts have held that a consent-to-settle clause may not be enforced if the insurance company fails to agree to a reasonable settlement offer. See, e.g., Prudential Property & Casualty Ins. Co. v. Nayerahamadi, 593 F.Supp. 216, 194 (D.C.Pa.1984); Evans v. Florida Farm Bureau Cas. Ins. Co., 384 So.2d 959, 962 (Fla.App.1980), appeal after remand 419 So.2d 709 (Fla.App.1982); Stanko v. Hartford Accident & Indemnity Co., 121 R.I. 331, 397 A.2d 1325, 1326 (1979). But in this case, we are not faced with that situation.\\n. We note that Bantz does not claim that she was taken unawares by this provision. To the contrary, it appears that she had at least constructive notice of provision in that she had in her possession a copy of the insurance policy before she entered into any settlement agreements.\"}"
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