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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 India nola 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. 319, 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 judg. ment 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

In

case should obtain in both, the same judg- the property upon which the writ was levied ment will be entered in each case, except was exempt from levy. We have carefully that, there being no necessity for separate examined every case cited by respondent, appeals from the judgment and the order and find none of them in point. They are denying the motion for new trial, the costs all cases involving the regularity of the is. of this appeal are awarded to respondent. suance of the attachment. These proceed

ings are statutory, and, before a decision can MORGAN, C. J., and SULLIVAN, J., con- be acrepted as in point, it ipust be made to cur.

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, (4 Idaho, 415)

cited by respondent, the motion to dissolve MASON et al. v. LIEUALLEN.

the writ was based upon two grounds, as (Supreme Court of Idaho. April 5, 1895.) cited in the opinion of the court: "(1) That DISSOLUTION OF ATTACHMENT-EXEMPTIONS

the affidavit in the said cause is insufficient POWER OF JUDGE AT CHAMBERS.

upon its face; and (2) that the grounds for 1. Under the laws of Idaho, the only said attachment alleged in said affidavit are grounds upon which an attachment can be dis

not true." The statute of Washington is charged are that it was improperly or irregularly issued.

similar to our own. The case of Baer v. 2. Where the affidavits in support of a mo- Otto, 34 Ohio St. 11, arose upon an attachtion to discharge an attachment only go to the ment issued by a justice of the peace, and question as to whether the property levied upon is a homestead or not, they are insufficient to

the questions involved were the authority of authorize the judge at chambers to dissolve the the justice to hear and determine the motion attachment.

to discharge the writ, and whether the de3. It is not competent or proper practice to determine the homestead character of property

cision of the justice thereon was reversible in such a proceeding.

on error. In Hamilton v. Johnson (Neb.) 49 (Syllabus by the Court.)

N. W. 703, the only question involved was

the regularity of the issuance of the attachAppeal from district court, Latah county;

ment; the court deciding that the record W. G. Piper, Judge.

showed no grounds for its issuance. Action in attachment by Mason, Ehrman

Guest v. Ramsey (Kan.) 33 Pac. 17, the mo& Co. against J. W. Lieuallen. From an or

tion to dissolve attachment was heard before der dissolving the writ, plaintiffs appeal. Re

the court and in term time. The court says versed.

in that case: “The motion having been heard Forney, Smith & Moore and Cox, Cotton, by the court, the objection that it was taken Teal & Monor, for appellants. Sweet, Steele up by the judge at chambers without rea& J. H. Adams and James E. Babb, for re sonable notice falls.” It will be seen that spondent.

none of these cases involve the questions un

der consideration in the cause at bar, and the HUSTON, J. This is an appeal from an same may be said of all the cases cited by order of the judge of the Second district, respondent. In the case of Quigley V. Mcmade at chambers, dissolving an attachment. Evony (Neb.) 59 N. W. 767, which is the On the 4th day of October, 1894, the plaintiffs only case cited where the questions decided commenced suit against defendant in the dis- are similar to those involved in the case untrict court for Latah county, and caused an der consideration, the court savs: “We do attachment to be issued, which was levied not think it is competent or proper practice, upon certain real estate of defendant in said where the writ is levied mpon real estate becounty. On the 24th October, 1894, defend- longing to the debtor, to allow the homs. ant served upon plaintiffs' attorneys a no- stead character of the property to be drawn tice of motion to dissolve the attachment, in question as one of the grounds for the which motion was noticed to be heard be. motion to discharge the attachment. The fore the judge of said district at chambers, hearing is upon affidavits more or less skillon the 29th day of October, 1894. Said mo- fully drawn, according to the ability or lack tion was heard by the judge of said district. of the same, in this particular branch, of the at chambers on the 29th day of October, 1894, party who frames them, or his artistic skill, and an order made and entered on that day or want of it, in the affidavit line. We think it dissolving the attachment. The hearing was is unquestionable that the question of whethhad upon affidavit solely, and the order dis- er the premises constitute a homestead should solving the attachment was dated October be determined in proceedings instituted in 1st. Why this impossible date was affixed the manner directed by our statutory law, to the order is not apparent. The only ground and, if there is any disagreement, then the upon which a court or judge is authorized to same can be determined in a proper action discharge an attachment, under the statutes in court, in which issues can be regularly of Idaho, is that the writ has been "improp- joined, and the matter tried in the manner erly or irregularly issued." Rev. St. Idaho, ß prescribed for the trial of issues of law and 4321. It does not appear that the writin fact; and that the ends of justice will be this case was either “improperly or irregu- better subserved by this latter course of prolarly issued,” the sole contention beirs that ceedings than by determination of the home.

stead question in the course of a hearing on land in controversy, it being unsurveyed and a motion to discharge an attachment." With unappropriated government land; that after this conclusion we fully concur. The statutes locating said land he, through his said mothof Nebraska do not, as do those of Idaho, limit er, took possession of said land, and imthe grounds upon which a motion to dis- proved it; that on July 20, 1891, his mother, charge an attachment may be based, to its in his behalf, filed in the land office at Coeur irregular and improper issuance. There are d'Alene, Idaho, an Indian allotment applivarious other questions suggested by the cation for said land; that said lands are record and by the briefs of counsel, but, as agricultural and grazing, and not mineral, this is decisive of the case, we do not deem lands; that appellant claims title and right it essential to consider them. The order of to possession by reason of his compliance the district judge discharging the attachment with the provisions of said acts of congress; is reversed, and the cause remanded, with that respondent claims an interest in said costs to appellants.

land adverse to appellant; that respondent's

claim is without right; that in July, 1892, MORGAN, C. J., and SULLIVAN, J., con- respondent took possession of said land, cur.

ejected appellant therefrom, and has since held possession of the same.

After a careful consideration of this com(4 Idaho, 424)

plaint, we are of the opinion that it states a FRY V. SUMMERS.

cause of action. Section 4538 of the Re(Supreme Court of Idaho. April 6, 1895.) vised Statutes provides that “an action may QUIETING TITLE-WHEN LIES-SUFFICIENCY OF

be brought by any person against another COMPLAINT.

who claims an estate or interest in real 1. Under section 4.338. Rev. St. 1887, ar property adverse to him for the purpose of action to quiet title may be brought by any per

determining such claim." We think the son against another who claims an estate or interest in real estate adverse to him, for the pur

complaint shows that plaintiff has an interpose of determining such adverse claim.

est in, and right of possession to, said land; 2. Held, the complaint states a cause of ac- and the complainant alleges that the defendtion under said section.

ant claims an estate or interest in said land (Syllabus by the Court.)

adversely to the plaintiff, and that such Appeal from district court, Kootenai coun. claim is without right. It is not necessary ty; J. Holleman, Judge.

for the plaintiff to set out what interest the Action to quiet title by Clarence M. Fry, defendant claims. That is for the defendby his guardian, against Milo Summers. ant to do. The respondent makes no apFrom a judgment dismissing the complaint | pearance in this court, and no brief is filed on demurrer, plaintiff appeals. Reversed. herein on his behalf. The judgment of the Charles L. Heitman and Albert Hagan, for

lower court is reversed, with instructions appellant. S. E. Henry and Keat & Fogg,

to overrule said demurrer and permit defor respondent.

fendant to answer. Costs of this appeal in

favor of appellant. SULLIVAN, J. This is an action to quiet title brought by Richard Fry, as guardian MORGAN, C. J., and HUSTON, J., conad litem of Clarence M. Fry, an infant. A cur, general demurrer was interposed to the complaint and sustained by the court, and judgment of dismissal entered, from which judg.

(4 Idaho, 418) ment this appeal was taken.

MORGAN V. BOARD OF COM'RS OF The question for determination is, does the

KOOTENAI COUNTY. complaint state a cause of action? The complaint alleges that Clarence M. Fry is

(Supreme Court of Idaho. April 6, 1895.) an infant, and that Richard Fry is the duly RestRAINING Issue of Boxps -Remedy at Law. appointed, qualified, and acting guardian of

When an order for the issuance and sale said infant, for the purposes of this action; of bonds has been made and entered of record that said infant is an Indian, unmarried, not

by the board of county commissioners of any

county, proceedings in equity, to restrain the residing upon any Indian reservation, and

issuance and sale of such bonds in pursuance for whose tribe no reservation has been pro- to such order, will not lie, the court having no vided by treaty, act of congress, or executive

jurisdiction in equity, where there is a plain,

speedy, and adequate remedy at law, by appeal order, with other averments, bringing said

from the order of the board. infant within the provisions of section 4 of

(Syllabus by the Court.) an act of the congress of the United States known as the "General Allotment Act," ap- Appeal from district court, Kootenai counproved February 8, 1887 (see 24 Stat. 388), ty; J. Holleman, Judge. and amendments thereto approved February Action for an injunction by Samuel B. 28, 1891 (see 26 Stat. 791); that, by virtue Morgan against the board of county commisof said act of congress and amendments sioners of Kootenai county. There was de thereto, said infant, through his mother, cres for defendant, and plaintiff appeals. Justine Fry, on March 25, 1891, located the | Affirmed.

son.

Keat, Fogg & Burgan, for appellant. Ha- 20th day of June, 1892, and to be dated gan & Heitman, for respondent.

April 1, 1892, as per order of this board made

on March 2, 1892. Further ordered that the MORGAN, C. J. This suit was brought proposition of George B. McAuley, submitfor the purpose of restraining the defendant, ted at this time, to have said bonds prepared the board of county commissioners, from and lithographed for Kootenai county for the issuing and disposing of certain bonds to the sum of $300, be, and the same is hereby, acamount of $80,000, and to restrain the pay- cepted. Further ordered that W. J. Pilling, ment to one George B. McAuley of $3,200, chairman of this board, be, and is hereby, as commission for negotiation and sale of., authorized to attend the matter of the issusaid bonds, which were proposed to be is- ing of said bonds in behalf of Kootenai counsued by said county for the purpose of re- ty.” In this case the record shows that the funding the outstanding indebtedness of the orders complained of were made and entered county of Kootenai, pursuant to and in ac- on the 3d day of May, 1892, and appeal was cordance with the following order issued by not taken by the plaintiff or any other perthe board of county commissioners, and en

An appeal might and should have been tered of record in their proceedings, upon taken to the district court from the orders the 2d and 30 days of May, 1892, as follows, so made. See section 1776, Rev. St., which to wit: "In the matter of the sale of Koot- reads as follows: "An appeal may be taken enai county bonds: At this time the board from any order, decision or action of the proceeded to open bids on file from Farson, board, while acting in an official capacity, by Leach & Co., and Lamprecht Brothers, Geo. any person aggrieved thereby, or by any tax B. McAuley, and E. L. Mims, for the pur- payer of the county where any demand is alchase of Kootenai county bonds heretofore lowed against the county, or when he deems advertised to be sold for the purpose of fund- any order, decision or action of the board ing the outstanding indebtedness of said illegal or prejudicial to the public interests." county, and the board, having duly consid- This statute provides a plain, speedy, and adered said bids, took the matter of the ac- equate remedy at law. When such a remeceptance of any of said bids under advise- dy is provided by law, the plaintiff has no ment. Tuesday, May 30, 1892. Board met standing in a court of equity. The court has pursuant to adjournment, at 10 o'clock a. m. no jurisdiction of the case. Picotte v. Watt, In the matter of the sale of Kootenai county 2 Idaho, 1154, 31 Pac. 805. In the latter bonds: The board having taken the bids for case, decided by this court December 26, the purchase of Kootenai county funding 1892, the court uses this language: “The bonds under advisement, and having duly statutory remedy being complete and adeconsidered the same, and being fully advised, quate, the plaintiff must resort to it, and it is now ordered that the bid of George B. having shown no reason for not doing so, McAuley be, and is hereby, accepted accord- arising from any acts of the defendants, he ing to its terms; and the county of Kootenai is precluded from invoking the aid of eqagrees to place in escrow at the Kountx uity.” The court having no jurisdiction in Brothers' Bank, in the city of New York, ne- the application for the issuance of a restraingotiable coupon bonds to the amount of not

ing order to prevent the issuing and sale of less than eighty thousand dollars ($80,000), these bonds in a suit of this kind, the suit including the amount owing by the county should have been dismissed, and the party for the building of the county jail, to wit, compelled to seek his remedy at law, by an five thousand five hundred dollars ($5,500), | appeal from the order of the board. It furto be delivered to the said George B. Mc- ther appears from the brief of the appellant Auley, or to his order, upon the payment of herein that this appeal had been taken with the face value thereof to the credit of the the single object of obtaining a decision of county treasurer of this county; and when the court on the question of the construction all of said bonds are so sold, and the money of the constitution and statutes in regard to paid therefor as by the foregoing proposition the right and power of the board of county and this acceptance provided, the said Mc- commissioners to issue bonds for the pay. Auley to receive the sum of 4 per cent. on ment of outstanding indebtedness, without the amount so received as his commission first submitting the question to a vote of the from said county out of said proceeds, and qualified electors of the county. This questhe treasurer is to pay the same accordingly. tion was fully considered and determined in Said McAuley is hereby required to deposit the case of Bannock Co. v. C. Bunting & with the clerk of this board his check in the Co. (by this court) 37 Pac. 277. The court amount of twenty-five hundred dollars, as having no jurisdiction in equity in this security for the performance of this con- cause, it must be dismissed, and it is so ortract upon his part; said county hereby dered. agreeing to have said bonds on deposit in said bank, duly executed, on or before the HUSTON and SULLIVAN, JJ., concur.

END OF CASES IN VOL 39.

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