them that in consideration of the conveying to him, the said Vollmer, by said Schupfer, of 85 lots of land, presumably a portion of the land heretofore mentioned as being owned by said Schupfer in the town of Juliaetta, aforesaid, said Vollmer agreed to construct or cause to be constructed a railroad to said town of Juliaetta by the 1st day of January, 1891, and to construct or cause to be constructed by the 29th day of May, 1891, certain side tracks and depot. It is conceded that the railroad, depot, and side tracks were not constructed and completed by the 1st day of January, 1891, the time stipulated in the bond or writing, but that they were fully completed by the 1st day of June, 1891. No objection was ever made by Schupfer on account of the failure of Yollmer to finish the construction of the railroad, etc., by the time stipulated in the bond. One of the benefits resulting from the construction of the railroad was the construction of the tramway owned by respondent, in which construction it is claimed it expended about $25,000, and an increase in value of the real estate of Schupfer about 100 per cent., as stated. It does not appear that any exception was ever taken by Schupfer to the failure of Vollmer to complete the railroad, etc., within the time specified. On or about the 25th day of August, 1893, Schupfer assigned said bond to the respondent; and on the 27th day of October, 1893, this suit was instituted. This seems to have been the first intimation that respondent had of any claim against it for failure to complete the work in the time stipulated. The instrument, upon its face, purports to be a bond given by Vollmer and Huson to secure the performance of certain services to be performed by Vollmer. No part of the consideration for the services to be performed runs to Huson. There is no description of the lands conveyed, nor of the railroad, etc., to be constructed. In fact, the instrument contains none of the usual requisites of a contract for the conveyance of land. The land was already conveyed, the contract, so far as Schupfer was concerned, was executed, and the consideration paid, and, to secure performance on the part of Vollmer, the bond was executed on the part of Vollmer and Huson, wherein the penalty for nonperformance was fixed at $6,000,-a common, ordinary business transaction, the anticipated benefits flowing from which the obligee had received in full before the assignment of the bond by him to the respondent. We have examined with much care the most of the cases cited by the respondent, but have found none which militate against the conclusion we have reached. In the case of City of Indianola v. Gulf, W. T. & P. Ry., 56 Tex. 594, which seems to be one of the cases most confidently relied upon by counsel, there was a failure to complete the road at all in accordance with the agreement. There was no question of time in the Texas case. There was a complete and absolute failure and refusal to complete the road. And the same may be said of the case of Pearson v. Williams, 26 Wend. 630. It nowhere appears in the record that $6,000 was the agreed price of the lots conveyed by Schupfer to Vollmer, or that that sum was the estimated value of said lots. The proposition that the $6,000 expressed in the bond was intended either as the price of the land if the instrument should be construed as an alternative contract for the sale of land, or as stipulated damages should the writing turn out to be what upon its face it was clearly intended for, to wit, a bond for the building of a railroad, while it seems to have obtained lodgment with the district court, we cannot recognize. There is nothing in the complaint that would support a judgment for damages, and it does not appear that the question of damages was raised or inquired into on the trial. The case was instituted and tried upon the theory that the instrument sued upon is an alternative contract for the sale of land, and it is upon that theory that recovery must be had, if at all. In the case of Railroad Co. v. Alderman, 47 Mo. 349, the court says: "It is admitted that the road has been built, and that the benefits sought to be derived from it, and which were the inducements that led to the subscription here, accrued; and, when such is the case, a party will not be allowed to shirk a just responsibility on such a pretext;" i. e. that the road was not completed within the stipulated time. This rule is peculiarly applicable to the case under consideration, and with it we are in accord. It is claimed by appellants that respondent failed to prove its corporate existence. We do not think that contention is supported by the evidence. There are some other questions raised by the record, but we do not deem them essential to a decision of this case. Our conclusion is that the instrument sued upon is a bond for the performance of the services therein stated, to wit, the constructing of a railroad to the town of Juliaetta, and construction of certain side tracks and depot in connection therewith, and that such was intended to be the object and purport of the instrument by all the parties thereto at the time of its execution; that time was not understood or agreed to be of the essence of the contract at the time it was made by any of the parties; that the condition of the bond has been fully and entirely filled by the obligors; and that the same was recognized and acquiesced in by the original obligee for two years. The judgment of the district court is reversed, with directions to enter judgment for defendants; costs to appellants. Case No. 26, same title as this case, being between same parties, and in relation to same subject-matter, was by agreement of counsel, heard together with this case; and, it being stipulated that the judgment in one case should obtain in both, the same judgment will be entered in each case, except that, there being no necessity for separate appeals from the judgment and the order denying the motion for new trial, the costs of this appeal are awarded to respondent. MORGAN, C. J., and SULLIVAN, J., con cur. (4 Idaho, 415) MASON et al. v. LIEUALLEN. 1. Under the laws of Idaho, the only grounds upon which an attachment can be discharged are that it was improperly or irregularly issued. 2. Where the affidavits in support of a motion to discharge an attachment only go to the question as to whether the property levied upon is a homestead or not, they are insufficient to authorize the judge at chambers to dissolve the attachment. 3. It is not competent or proper practice to determine the homestead character of property in such a proceeding. (Syllabus by the Court.) Appeal from district court, Latah county; W. G. Piper, Judge. Action in attachment by Mason, Ehrman & Co. against J. W. Lieuallen. From an order dissolving the writ, plaintiff's appeal. Reversed. the property upon which the writ was levied was exempt from levy. We have carefully examined every case cited by respondent, and find none of them in point. They are all cases involving the regularity of the issuance of the attachment. These proceedings are statutory, and, before a decision can be accepted as in point, it inust be made to appear that the question decided arose upon a statute similar to our own. In the case of Windt v. Banniza, 2 Wash. 147, 20 Pac. 189, cited by respondent, the motion to dissolve the writ was based upon two grounds, as cited in the opinion of the court: "(1) That the affidavit in the said cause is insufficient upon its face; and (2) that the grounds for said attachment alleged in said affidavit are not true." The statute of Washington is similar to our own. The case of Baer v. Otto, 34 Ohio St. 11, arose upon an attachment issued by a justice of the peace, and the questions involved were the authority of the justice to hear and determine the motion to discharge the writ, and whether the decision of the justice thereon was reversible on error. In Hamilton v. Johnson (Neb.) 49 N. W. 703, the only question involved was the regularity of the issuance of the attachment; the court deciding that the record showed no grounds for its issuance. In Guest v. Ramsey (Kan.) 33 Pac. 17, the motion to dissolve attachment was heard before the court and in term time. The court says in that case: "The motion having been heard by the court, the objection that it was taken up by the judge at chambers without reasonable notice falls." It will be seen that none of these cases involve the questions under consideration in the cause at bar, and the same may be said of all the cases cited by respondent. In the case of Quigley v. McEvony (Neb.) 59 N. W. 767, which is the only case cited where the questions decided are similar to those involved in the case under consideration, the court says: "We do not think it is competent or proper practice, where the writ is levied upon real estate be longing to the debtor, to allow the home. stead character of the property to be drawn in question as one of the grounds for the motion to discharge the attachment. The hearing is upon affidavits more or less skillfully drawn, according to the ability or lack of the same, in this particular branch, of the party who frames them, or his artistic skill, or want of it, in the affidavit line. We think it is unquestionable that the question of whether the premises constitute a homestead should be determined in proceedings instituted in the manner directed by our statutory law, and, if there is any disagreement, then the same can be determined in a proper action in court, in which issues can be regularly joined, and the matter tried in the manner prescribed for the trial of issues of law and in fact, and that the ends of justice will be better subserved by this latter course of pro Forney, Smith & Moore and Cox, Cotton, Teal & Monor, for appellants. Sweet, Steele & J. H. Adams and James E. Babb, for respondent. HUSTON, J. This is an appeal from an order of the judge of the Second district, made at chambers, dissolving an attachment. On the 4th day of October, 1894, the plaintiff's commenced suit against defendant in the district court for Latah county, and caused an attachment to be issued, which was levied upon certain real estate of defendant in said county. On the 24th October, 1894, defendant served upon plaintiffs' attorneys a notice of motion to dissolve the attachment, which motion was noticed to be heard before the judge of said district at chambers, on the 29th day of October, 1894. Said motion was heard by the judge of said district at chambers on the 29th day of October, 1894, and an order made and entered on that day dissolving the attachment. The hearing was had upon affidavit solely, and the order dissolving the attachment was dated October 1st. Why this impossible date was affixed to the order is not apparent. The only ground upon which a court or judge is authorized to discharge an attachment, under the statutes of Idaho, is that the writ has been "improperly or irregularly issued." Rev. St. Idaho, § 4321. It does not appear that the writ in this case was either "improperly or irregularly issued," the sole contention being that ceedings than by determination of the home stead question in the course of a hearing on a motion to discharge an attachment." With this conclusion we fully concur. The statutes of Nebraska do not, as do those of Idaho, limit the grounds upon which a motion to discharge an attachment may be based, to its irregular and improper issuance. There are various other questions suggested by the record and by the briefs of counsel, but, as this is decisive of the case, we do not deem it essential to consider them. The order of the district judge discharging the attachment is reversed, and the cause remanded, with costs to appellants. MORGAN, C. J., and SULLIVAN, J., con cur. (4 Idaho, 424) FRY v. SUMMERS. (Supreme Court of Idaho. April 6, 1895.) QUIETING TITLE-WHEN LIES-SUFFICIENCY OF COMPLAINT. 1. Under section 4538, Rev. St. 1887, ar action to quiet title may be brought by any person against another who claims an estate or interest in real estate adverse to him, for the purpose of determining such adverse claim. 2. Held, the complaint states a cause of action under said section. (Syllabus by the Court.) Appeal from district court, Kootenai county; J. Holleman, Judge. Action to quiet title by Clarence M. Fry, by his guardian, against Milo Summers. From a judgment dismissing the complaint on demurrer, plaintiff appeals. Reversed. Charles L. Heitman and Albert Hagan, for appellant. S. E. Henry and Keat & Fogg, for respondent. SULLIVAN, J. This is an action to quiet title brought by Richard Fry, as guardian ad litem of Clarence M. Fry, an infant. A general demurrer was interposed to the complaint and sustained by the court, and judgment of dismissal entered, from which judgment this appeal was taken. The question for determination is, does the complaint state a cause of action? The complaint alleges that Clarence M. Fry is an infant, and that Richard Fry is the duly appointed, qualified, and acting guardian of said infant, for the purposes of this action; that said infant is an Indian, unmarried, not residing upon any Indian reservation, and for whose tribe no reservation has been provided by treaty, act of congress, or executive order, with other averments, bringing said infant within the provisions of section 4 of an act of the congress of the United States known as the "General Allotment Act," approved February 8, 1887 (see 24 Stat. 388), and amendments thereto approved February 28, 1891 (see 26 Stat. 794); that, by virtue of said act of congress and amendments thereto, said infant, through his mother, Justine Fry, on March 25, 1891, located the land in controversy, it being unsurveyed and unappropriated government land; that after locating said land he, through his said mother, took possession of said land, and improved it; that on July 20, 1891, his mother, in his behalf, filed in the land office at Coeur d'Alene, Idaho, an Indian allotment application for said land; that said lands are agricultural and grazing, and not mineral, lands; that appellant claims title and right to possession by reason of his compliance with the provisions of said acts of congress; that respondent claims an interest in said land adverse to appellant; that respondent's claim is without right; that in July, 1892, respondent took possession of said land, ejected appellant therefrom, and has since held possession of the same. After a careful consideration of this complaint, we are of the opinion that it states a cause of action. Section 4538 of the Revised Statutes provides that "an action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such claim." We think the complaint shows that plaintiff has an interest in, and right of possession to, said land; and the complainant alleges that the defendant claims an estate or interest in said land adversely to the plaintiff, and that such claim is without right. It is not necessary for the plaintiff to set out what interest the defendant claims. That is for the defendant to do. The respondent makes no appearance in this court, and no brief is filed herein on his behalf. The judgment of the lower court is reversed, with instructions to overrule said demurrer and permit defendant to answer. Costs of this appeal in favor of appellant. MORGAN, C. J., and HUSTON, J., con cur. (4 Idaho, 418) MORGAN v. BOARD OF COM'RS OF KOOTENAI COUNTY. (Supreme Court of Idaho. April 6, 1895.) RESTRAINING ISSUE OF BONDS-REMEDY AT LAW. When an order for the issuance and sale of bonds has been made and entered of record by the board of county commissioners of any county, proceedings in equity, to restrain the issuance and sale of such bonds in pursuance to such order, will not lie, the court having no jurisdiction in equity, where there is a plain, speedy, and adequate remedy at law, by appeal from the order of the board. (Syllabus by the Court.) Appeal from district court, Kootenai county; J. Holleman, Judge. Action for an injunction by Samuel B. Morgan against the board of county commissioners of Kootenai county. There was decree for defendant, and plaintiff appeals. Affirmed. Keat, Fogg & Burgan, for appellant. Hagan & Heitman, for respondent. MORGAN, C. J. This suit was brought for the purpose of restraining the defendant, the board of county commissioners, from issuing and disposing of certain bonds to the amount of $80,000, and to restrain the payment to one George B. McAuley of $3,200, as commission for negotiation and sale of said bonds, which were proposed to be issued by said county for the purpose of refunding the outstanding indebtedness of the county of Kootenai, pursuant to and in accordance with the following order issued by the board of county commissioners, and entered of record in their proceedings, upon the 2d and 3d days of May, 1892, as follows, to wit: "In the matter of the sale of Kootenai county bonds: At this time the board proceeded to open bids on file from Farson, Leach & Co., and Lamprecht Brothers, Geo. B. McAuley, and E. L. Mims, for the purchase of Kootenai county bonds heretofore advertised to be sold for the purpose of funding the outstanding indebtedness of said county, and the board, having duly considered said bids, took the matter of the acceptance of any of said bids under advisement. Tuesday, May 3d, 1892. Board met pursuant to adjournment, at 10 o'clock a. m. In the matter of the sale of Kootenai county bonds: The board having taken the bids for the purchase of Kootenai county funding bonds under advisement, and having duly considered the same, and being fully advised, it is now ordered that the bid of George B. McAuley be, and is hereby, accepted according to its terms; and the county of Kootenai agrees to place in escrow at the Kountx Brothers' Bank, in the city of New York, negotiable coupon bonds to the amount of not less than eighty thousand dollars ($80,000), including the amount owing by the county for the building of the county jail, to wit, five thousand five hundred dollars ($5,500), to be delivered to the said George B. McAuley, or to his order, upon the payment of the face value thereof to the credit of the county treasurer of this county; and when all of said bonds are so sold, and the money paid therefor as by the foregoing proposition and this acceptance provided, the said McAuley to receive the sum of 4 per cent. on the amount so received as his commission from said county out of said proceeds, and the treasurer is to pay the same accordingly. Said McAuley is hereby required to deposit with the clerk of this board his check in the amount of twenty-five hundred dollars, as security for the performance of this contract upon his part; said county hereby agreeing to have said bonds on deposit in said bank, duly executed, on or before the 20th day of June, 1892, and to be dated April 1, 1892, as per order of this board made on March 2, 1892. Further ordered that the proposition of George B. McAuley, submitted at this time, to have said bonds prepared and lithographed for Kootenai county for the sum of $300, be, and the same is hereby, accepted. Further ordered that W. J. Pilling, chairman of this board, be, and is hereby, authorized to attend the matter of the issuing of said bonds in behalf of Kootenai county." In this case the record shows that the orders complained of were made and entered on the 3d day of May, 1892, and appeal was not taken by the plaintiff or any other person. An appeal might and should have been taken to the district court from the orders so made. See section 1776, Rev. St., which reads as follows: "An appeal may be taken from any order, decision or action of the board, while acting in an official capacity, by any person aggrieved thereby, or by any tax payer of the county where any demand is allowed against the county, or when he deems any order, decision or action of the board illegal or prejudicial to the public interests." This statute provides a plain, speedy, and adequate remedy at law. When such a remedy is provided by law, the plaintiff has no standing in a court of equity. The court has no jurisdiction of the case. Picotte v. Watt, 2 Idaho, 1154, 31 Pac. 805. In the latter case, decided by this court December 26, 1892, the court uses this language: "The statutory remedy being complete and adequate, the plaintiff must resort to it, and having shown no reason for not doing so, arising from any acts of the defendants, he is precluded from invoking the aid of equity." The court having no jurisdiction in the application for the issuance of a restraining order to prevent the issuing and sale of these bonds in a suit of this kind, the suit should have been dismissed, and the party compelled to seek his remedy at law, by an appeal from the order of the board. It further appears from the brief of the appellant herein that this appeal had been taken with the single object of obtaining a decision of the court on the question of the construction of the constitution and statutes in regard to the right and power of the board of county commissioners to issue bonds for the payment of outstanding indebtedness, without first submitting the question to a vote of the qualified electors of the county. This question was fully considered and determined in the case of Bannock Co. v. C. Bunting & Co. (by this court) 37 Pac. 277. The court having no jurisdiction in equity in this cause, it must be dismissed, and it is so ordered. HUSTON and SULLIVAN, JJ., concur. END OF CASES IN VOL. 39. |