Cross References.

District courts,§ 1-701 et seq.

Emergency Interim Executive and Judicial Succession Act,§ 59-1401 et seq.

Investiture of judicial power,Idaho Const., Art. V, § 2.

Judicial department,Idaho Const., Art. V.

Supreme Court,§ 1-201 et seq.

Effective Dates.

Section 2 of S.L. 1969, ch. 108 provided that the act should be effective at 12:01 a.m. on January 11, 1971.

Presumption Attaching to Courts of Record.

Everything is presumed as to proceedings of courts of record, or as to courts of general jurisdiction. Pedersen v. Moore, 32 Idaho 420, 184 P. 475 (1919).

Records Required.

Proceedings of the district court should be recorded either in the minutes or in the reporter’s notes, whichever is appropriate to the nature of the proceedings had. Darrar v. Joseph, 91 Idaho 210, 419 P.2d 211 (1966).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

Section 2 of S.L. 1969, ch. 100 read: “On the effective date of this act [January 11, 1971], all cases pending on the docket of the probate court shall be transferred to the docket of the district court for the county and be pending in such court, without affecting any bond or obligation in such cases. On the effective date of this act, all functions, facilities and services of the probate court shall be transferred to the district court for the county and be continued in the district court. Judgments entered by the probate court but not yet satisfied, shall be enforceable in the manner provided by law for district court judgments. Civil and criminal matters pending before each probate court shall be continued in the district courts and be subject thereafter to the provisions of law and rules of procedure applicable in the district courts on the effective date of this act. All records, funds, bonds, or any other items pertaining to the cases or facilities transferred shall be forwarded forthwith by the clerk of the probate court to the clerk of the district court.”

Section 3 of S.L. 1969, ch. 100 read: “The records and all cases terminated in the probate courts prior to the effective date of this act shall be placed in the custody of the clerk of the district court, and any proceeding to reopen these cases shall be brought there. The clerk of the district court shall have the power to certify the contents of these records in appropriate cases.”

Section 4 of S.L. 1969, ch. 100 read: “(1) On the effective date of this act, all dockets and records of each justice of the peace shall be transferred to the district court of the county in which the justice precinct is located. Judgments entered by the justice of the peace, but not yet satisfied, shall be enforceable in the manner provided by law for district court judgments. Civil and criminal matters pending before each justice of the peace shall be continued in the district courts and be subject thereafter to the provisions of law and rules of procedure applicable in the district courts on the effective date of this act. •Title 1»•Ch. 1»«§ 1-103»

Compiler’s Notes.

Section 2 of S.L. 1969, ch. 100 read: “On the effective date of this act [January 11, 1971], all cases pending on the docket of the probate court shall be transferred to the docket of the district court for the county and be pending in such court, without affecting any bond or obligation in such cases. On the effective date of this act, all functions, facilities and services of the probate court shall be transferred to the district court for the county and be continued in the district court. Judgments entered by the probate court but not yet satisfied, shall be enforceable in the manner provided by law for district court judgments. Civil and criminal matters pending before each probate court shall be continued in the district courts and be subject thereafter to the provisions of law and rules of procedure applicable in the district courts on the effective date of this act. All records, funds, bonds, or any other items pertaining to the cases or facilities transferred shall be forwarded forthwith by the clerk of the probate court to the clerk of the district court.”

Section 3 of S.L. 1969, ch. 100 read: “The records and all cases terminated in the probate courts prior to the effective date of this act shall be placed in the custody of the clerk of the district court, and any proceeding to reopen these cases shall be brought there. The clerk of the district court shall have the power to certify the contents of these records in appropriate cases.”

Section 4 of S.L. 1969, ch. 100 read: “(1) On the effective date of this act, all dockets and records of each justice of the peace shall be transferred to the district court of the county in which the justice precinct is located. Judgments entered by the justice of the peace, but not yet satisfied, shall be enforceable in the manner provided by law for district court judgments. Civil and criminal matters pending before each justice of the peace shall be continued in the district courts and be subject thereafter to the provisions of law and rules of procedure applicable in the district courts on the effective date of this act. “(2) On the effective date of this act, all dockets and records of each police judge shall be transferred to the district court of the county in which the city is located. Judgments entered by the police judge, but not yet satisfied shall be enforceable in the manner provided by law for district court judgments. Criminal matters pending before each police judge shall be continued in the district courts and be subject thereafter to the provisions of law and rules of procedure applicable in the district courts on the effective date of this act.”

Effective Dates.

This section became effective January 11, 1971, as provided in § 7 of S.L. 1969, ch. 100.

Effective Dates.

This section became effective January 11, 1971, as provided in § 7 of S.L. 1969, ch. 100.

Effective Dates.

Section 7 of S.L. 1969, ch. 100 provided that the act should become effective at 12:01 a.m. on January 11, 1971.

Section 2 of S.L. 1971, ch. 255 declared an emergency. Approved March 25, 1971.

Appeal from Magistrate’s Division.

In disposing of defendant’s appeal from his conviction before the magistrate’s division on charges of driving while under the influence of intoxicating beverages, the district court did not err in denying defendant a trial de novo and in electing to hear his appeal on the record made in the magistrate’s division. State v. Griffith, 97 Idaho 52, 539 P.2d 604 (1975).

Cross References.

Clerk of the supreme court, duties, and deputies,§§ 1-402 to 1-408.

Constitutional provisions,Idaho Const., Art. V,§§ 6-10.

Contest of election of supreme court justices,§ 34-2004.

Death sentences, review,§ 19-2827.

Election,§ 34-905.

Idaho Court of Appeals,§ 1-2401 et seq.

Justice not to act as attorney or counsel,§ 1-1803.

Justice not to have law partners,§ 1-1804.

Justices ineligible for other offices,Idaho Const., Art. V, § 7.

Justices’ retirement and compensation,§ 1-2001 et seq.

Marriages, justices may solemnize,§ 32-303.

Salaries of justices,§ 59-502;Idaho Const., Art. V, §§ 17, 27.

Amendments.

The 2014 amendment, by ch. 291, substituted “two thousand dollars ($2,000)” for “one thousand five hundred dollars ($1,500)” in the last sentence in the section.

The 2017 amendment, by ch. 168, substituted “three thousand dollars ($3,000)” for “two thousand dollars ($2,000)” in the last sentence.

Filling of Vacancies.

Under Idaho Const., Art. IV, § 6, it is the duty of the governor to fill a vacancy in the office of justice of the supreme court by appointment, and the appointee holds office for the remainder of the term for which the original incumbent was elected. Budge v. Gifford, 26 Idaho 521, 144 P. 333 (1914). •Title 1»«Ch. 2»•§ 1-201»

Cross References.

Clerk of the supreme court, duties, and deputies,§§ 1-402 to 1-408.

Constitutional provisions,Idaho Const., Art. V,§§ 6-10.

Contest of election of supreme court justices,§ 34-2004.

Death sentences, review,§ 19-2827.

Election,§ 34-905.

Idaho Court of Appeals,§ 1-2401 et seq.

Justice not to act as attorney or counsel,§ 1-1803.

Justice not to have law partners,§ 1-1804.

Justices ineligible for other offices,Idaho Const., Art. V, § 7.

Justices’ retirement and compensation,§ 1-2001 et seq.

Marriages, justices may solemnize,§ 32-303.

Salaries of justices,§ 59-502;Idaho Const., Art. V, §§ 17, 27.

Amendments.

The 2014 amendment, by ch. 291, substituted “two thousand dollars ($2,000)” for “one thousand five hundred dollars ($1,500)” in the last sentence in the section.

The 2017 amendment, by ch. 168, substituted “three thousand dollars ($3,000)” for “two thousand dollars ($2,000)” in the last sentence.

Filling of Vacancies.

Under Idaho Const., Art. IV, § 6, it is the duty of the governor to fill a vacancy in the office of justice of the supreme court by appointment, and the appointee holds office for the remainder of the term for which the original incumbent was elected. Budge v. Gifford, 26 Idaho 521, 144 P. 333 (1914).

Am. Jur. 2d.

C.J.S.

21 C.J.S., Courts, §§ 9, 10.

Cross References.

Certiorari,§ 7-201 et seq.

Claims against state,Idaho Const., Art. V, § 10.

Election contests,§ 34-2001 et seq.

Fee of clerk of supreme court for filing of original writ,§ 1-402.

General powers of all courts,§ 1-1603.

Habeas corpus,§ 19-4201 et seq.

Incidental means to exercise jurisdiction,§ 1-1622.

Incidental powers and duties of judicial officers,§ 1-1901 et seq.

Justices may issue warrants for arrests,§§ 19-502, 19-503.

Mandamus,§ 7-301 et seq.

Original jurisdiction,Idaho Const., Art. V, § 9.

Prohibition,§ 7-401 et seq.

Rule-making power of supreme court,§ 1-212.

Certiorari.

When the Constitution was adopted, jurisdiction was therein granted to the supreme court to issue the writ of certiorari then known and in use in the territory of Idaho, and none other. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

Habeas Corpus.

Upon application for writ of habeas corpus, the supreme court will not exercise the jurisdiction of an appellate court for the examination of questions reviewable on appeal. In re Knudtson, 10 Idaho 676, 79 P. 641 (1905).

The supreme court may make a writ of habeas corpus issued by it returnable before any district court. Jain v. Priest, 30 Idaho 273, 164 P. 364 (1917). The supreme court may take original jurisdiction of an action involving the custody of a child. Jain v. Priest, 30 Idaho 273, 164 P. 364 (1917); Allen v. Williams, 31 Idaho 309, 171 P. 493 (1918).

Where application is made to a district court for a writ of habeas corpus involving the custody of a child, the petitioner can not abandon the proceeding thus initiated and institute a new one in the supreme court, original in character. Allen v. Williams, 31 Idaho 309, 171 P. 493 (1918).

In habeas corpus proceeding in federal district court where state prisoners had filed motions for new trial subsequent to conviction and had appealed to state supreme court where convictions were affirmed and prisoners had not exhausted the remedy of habeas corpus to the state supreme court, federal court assumed jurisdiction to determine petitions raising only the issues previously presented to the state district and supreme courts on the basis that there had been a practical exhaustion of state remedies and a different result appeared unlikely in the state courts. Drapeau v. May, 350 F. Supp. 1321 (D. Idaho 1972).

Mandamus.

A court, by means of writs of mandamus operating upon the officers of legislative bodies, cannot make up the records of the proceedings of these bodies, or cause alterations to be made in such records as prepared by the officer whose duty it was to prepare them. Clough v. Curtis, 134 U.S. 361, 10 S. Ct. 573, 33 L. Ed. 945 (1890).

Mandamus will not lie at the instance of the speaker of the house of representatives to require the secretary of the territory to deliver to him the journal of the house for correction after the adjournment of the session. Burkhart v. Reed, 2 Idaho 503, 22 P. 1 (1889), aff’d, Clough v. Curtis, 134 U.S. 361, 10 S. Ct. 573, 33 L. Ed. 945 (1890).

It is not within the scope of mandamus to confer power upon those to whom it is directed; it only enforces the exercise of power already existing when such exercise is a duty; therefore, the supreme court cannot, by writ of mandamus, require the territorial secretary to determine from the evidence what are the correct minutes of the legislature and to expunge certain matter from those minutes. Clough v. Curtis, 2 Idaho 523, 22 P. 8 (1889), aff’d, 134 U.S. 361, 10 S. Ct. 573, 33 L. Ed. 945 (1890).

Writ of mandate is the proper proceeding to compel the secretary of state to file and certify a ticket entitled to be filed and certified. Williams v. Lewis, 6 Idaho 184, 54 P. 619 (1898), overruled on other grounds, Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904).

Where application for declaratory judgment in mandamus was initiated to compel secretary of state to file petitioner’s declaration of candidacy, the supreme court, in determining its jurisdiction to hear and decide the case, is only concerned with whether the action belongs to that class of cases of which supreme court has original jurisdiction. Boughton v. Price, 70 Idaho 243, 215 P.2d 286 (1950).

Prohibition.

Prohibition as authorized by the Idaho Constitution, is the common law writ and it will not issue to prohibit purely ministerial acts. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904); Taylor v. Girard, 54 Idaho 787, 36 P.2d 773 (1934).

Cited

Writ of prohibition is not available unless there is no plain, speedy and adequate remedy in the ordinary course of law; however, in a proper case, the supreme court has the authority to issue such a writ. Muench v. Paine, 93 Idaho 473, 463 P.2d 939 (1970). Cited Mahler v. Birnbaum, 95 Idaho 14, 501 P.2d 282 (1972); Lenaghen v. Smith, 97 Idaho 383, 545 P.2d 471 (1976); Idaho State Tax Comm’n v. Staker, 104 Idaho 734, 663 P.2d 270 (1982); Idaho Falls Redevelopment Agency v. Countryman, 118 Idaho 43, 794 P.2d 632 (1990); Leavitt v. Craven, 154 Idaho 661, 302 P.3d 1 (2012); Coeur d’Alene Tribe v. Denney (In re Verified Petition for Writ of Mandamus), 161 Idaho 508, 387 P.3d 761 (2015).

Am. Jur. 2d.

A.L.R.

Who is “person acting under” officer of United States or any agency thereof for purposes of availability of right to remove state action to federal court under 28 U.S.C.A. § 1442(a)(1). 166 A.L.R. Fed. 297.

Cross References.

Appeals in general,§ 13-201 et seq.

Appellate jurisdiction as defined byIdaho Const., Art. V, § 9.

Appellate rules, Idaho App. R. 1 et seq.

Industrial accident board, appeals from orders of,Idaho Const., Art. V, § 9.

Industrial commission orders and awards, appellate jurisdiction,§ 72-724.

Public utilities commissions, appeals from orders of,Idaho Const., Art. V, § 9.

Rule-making power of courts,§ 1-212.

Final Judgment.

The allowance of an appeal from an order awarding the plaintiff in a divorce suit alimony for support pending her divorce would, in many instances, defeat the object and purpose of the statute allowing temporary alimony. Wyatt v. Wyatt, 2 Idaho 236, 10 P. 228 (1886).

Order of district court refusing to bring in additional parties, not being a final judgment, was not appealable. Weiser Irrigation Dist. v. Middle Valley Irrigation Ditch Co., 28 Idaho 548, 155 P. 484 (1916).

Appeal from order that denied defendant’s motion for a summary judgment is not authorized by the legislature, which is constitutionally authorized to prescribe a system of appeals; thus, such order was not appealable. Wilson v. DeBoard, 94 Idaho 562, 494 P.2d 566 (1972).

Post-conviction petitioner’s notice of appeal from a district court’s notice of intent to dismiss, though premature and interlocutory in nature, was nevertheless sufficient to effectuate an appeal from a final order dismissing the petition four days after the petitioner’s notice of appeal was filed. Weller v. State, 146 Idaho 652, 200 P.3d 1201 (Ct. App. 2008).

Method of Acquiring.

Jurisdiction of an appeal is acquired by the supreme court upon the filing of notice of appeal and undertaking within the time prescribed by law; but the filing and serving of the transcript within the time fixed by the rules of the court is not jurisdictional. Stout v. Cunningham, 29 Idaho 809, 162 P. 928 (1917).

Premature Appeal.

Since appeal which was prematurely taken did not confer jurisdiction on supreme court, dismissal of such appeal could not be considered to be an affirmance of district court judgment nor would it defeat an appeal regularly taken within the time and in the manner prescribed by law. Stout v. Cunningham, 33 Idaho 83, 189 P. 1107 (1920).

Review of Facts.

Where trial court determined a matter solely on affidavits, supreme court may consider the cause de novo with all of the powers possessed by the trial court. Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252 (1932).

Am. Jur. 2d.

§ 1-205. Disposition of appeals.

The court may reverse, affirm or modify any order or judgment appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. Its judgment must be remitted to the court from which the appeal was taken. The decisions of the court shall be given in writing; and in giving a decision, if a new trial be granted, the court shall pass upon and determine all the questions of law involved in the case presented upon such appeal, and necessary to the final determination of the case.

History.

C.C.P. 1881, § 22; R.S., R.C., & C.L., § 3818; C.S., § 6446; I.C.A.,§ 1-205.

Cross References.

Constitutional provision as to terms of court,Idaho Const., Art. V, § 8.

Opinions, Idaho App. R. 38.

Reporter of decisions,§ 1-501 et seq.

Remittiturs, Idaho App. R. 38.

Application of Section.

If the findings of fact do not support the judgment, the judgment must be reversed. Ponting v. Isaman, 7 Idaho 581, 65 P. 434 (1901).

The provisions of this section apply to all appeals, whether taken on bills of exception or statements of the case both in actions at law and suits in equity; but in no form of appeal is the court required in its decisions to pass upon and determine all the questions of law involved in the case unless a new trial is granted. Work v. Kinney, 8 Idaho 771, 71 P. 477 (1902). •Title 1»«Ch. 2»«§ 1-205»

Cross References.

Constitutional provision as to terms of court,Idaho Const., Art. V, § 8.

Opinions, Idaho App. R. 38.

Reporter of decisions,§ 1-501 et seq.

Remittiturs, Idaho App. R. 38.

Application of Section.

If the findings of fact do not support the judgment, the judgment must be reversed. Ponting v. Isaman, 7 Idaho 581, 65 P. 434 (1901).

The provisions of this section apply to all appeals, whether taken on bills of exception or statements of the case both in actions at law and suits in equity; but in no form of appeal is the court required in its decisions to pass upon and determine all the questions of law involved in the case unless a new trial is granted. Work v. Kinney, 8 Idaho 771, 71 P. 477 (1902). Although supreme court, in considering an appeal, grants a new trial on one assignment of error, it is proper for the court to consider other assignments of error which are necessary to the final determination of the case. State v. Ash, 94 Idaho 542, 493 P.2d 701 (1972).

Consideration of Evidence.

Trial court and reviewing court in passing upon motion of non-suit will consider evidence in the light most favorable to the plaintiff. Koser v. Hornback, 75 Idaho 24, 265 P.2d 988 (1954).

Consideration of New Issues.

Where the court reversed defendant’s conviction for illegal possession of controlled substances on the ground that the search warrant did not describe the place to be searched with particularity, the court properly considered other questions of law pertaining to the issuance of the search warrant which could arise on retrial. State v. Yoder, 96 Idaho 651, 534 P.2d 771 (1975).

Where the trial court found that no use tax return had been filed as to property used by a building contractor on a construction project, the supreme court properly considered the issue of whether part of an asserted deficiency in use tax payments was barred by the statute of limitations notwithstanding the tax commission’s contention that the trial court made no ruling on the effect of the statute of limitations. Leonard Constr. Co. v. State ex rel. State Tax Comm’n, 96 Idaho 893, 539 P.2d 246 (1975).

Constitutional Issues.

Constitutional issues may be considered for the first time on appeal if necessary for subsequent proceedings in the case. Messmer v. Ker, 96 Idaho 75, 524 P.2d 536 (1974).

Correction of Mathematical Errors.

Error of trial court consisting merely in computation of earned premiums on a policy, being susceptible of mathematical computation, may be corrected on appeal without remanding the cause for a new trial. Maryland Cas. Co. v. Boise St. Car Co., 52 Idaho 133, 11 P.2d 1090 (1932).

Directed Verdict.

Where a party is entitled to have a verdict directed in his favor at the close of the evidence and the case is reversed on appeal, a new trial will not be ordered; the case will be remanded, with instructions that judgment be entered in his favor. Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090 (1915).

Finality of Judgment.

The affirmance by the supreme court of a judgment of the trial court determining certain rights of parties is final as to such issues. Idaho Trust & Sav. Bank v. Ridenbaugh, 29 Idaho 647, 161 P. 868 (1916); Idaho Trust & Sav. Bank v. Nampa & Meridan Irrigation Dist., 29 Idaho 658, 161 P. 872 (1916).

Judgment based upon verdict of guilty and infliction of death penalty by jury is decision or judgment within meaning of this section. State v. Ramirez, 34 Idaho 623, 203 P. 279 (1921). Reversal of judgment, with directions to enter judgment for appellant, was a final adjudication, and an order granting a new trial after remittitur was improper. Smith v. Canyon County Consol. School Dist. No. 34, 44 Idaho 187, 255 P. 642 (1927).

An order withholding sentence and placing a defendant on probation is not a final judgment since sentencing is deferred and is distinguishable from a judgment imposing sentence, which is a final judgment, though its execution is suspended. Franklin v. State, 87 Idaho 291, 392 P.2d 552 (1964).

Where final judgment or order of the lower tribunal is correct, but entered upon an incorrect theory, the judgment or order may be affirmed by the appellate court upon the correct theory. Layrite Prods. Co. v. Lux, 91 Idaho 110, 416 P.2d 501 (1966).

Interlocutory Orders.

Subdivision (e) of Idaho App. R. 17 and this section are parallel provisions and both serve the ends of judicial economy; both contemplate that if there is a final appealable order before the supreme court, the court should resolve all interlocutory issues which have been passed upon by the trial court so that possibly another appeal will be avoided. Hence, although an order declaring part of decedent’s property as separate or community was not normally an appealable order, the court addressed this issue where the magistrate court’s order that the decedent’s husband was not an omitted spouse was appealed. Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986).

Issues Not Assigned as Error.

Although failure of the trial court to submit to the jury the issue and law as to sudden peril was not specifically and separately assigned by appellants as error, since it does have a direct bearing on the issue of negligence on the part of a truck driver and since it is necessarily involved in the consideration of such negligence which is an assigned error, and was an issue which was likely to arise upon a new trial, the supreme court deemed it proper to discuss the issue. Barry v. Arrow Transp. Co., 80 Idaho 447, 333 P.2d 1008 (1958).

In disposing of an appeal by granting a new trial, supreme court should determine questions of law which may be necessary for the final determination of the case. Ore-Ida Potato Prods., Inc. v. United Pac. Ins. Co., 87 Idaho 185, 392 P.2d 191 (1964); Cassia Creek Reservoir Co. v. Harper, 91 Idaho 488, 426 P.2d 209 (1967).

Where a case involving sports arena owner’s action against building contractor and architect to recover for damage to sports arena’s artificial turf was to be reversed and remanded, the supreme court was required to confront question raised on appeal regarding the res judicata effect of the summary judgment entered in favor of the architect on the liability of building contractor who asserted as a defense that the architect’s negligence was the cause of the damage. Idaho State Univ. v. Mitchell, 97 Idaho 724, 552 P.2d 776 (1976).

This section requires the supreme court, when remanding a case for further proceedings, to pass upon and determine all the questions of law involved in the case presented upon such appeal and the fact that an issue decided is not specifically and separately assigned by the parties as error does not alter this duty. Neilsen & Co. v. Cassia & Twin Falls County Joint Class A School Dist. 151, 103 Idaho 317, 647 P.2d 773 (Ct. App. 1982); Idaho Power Co. v. State, 104 Idaho 751, 661 P.2d 741 (1983); Olson v. Idaho Dep’t of Water Resources, 105 Idaho 98, 666 P.2d 188 (1983); State v. Stoddard, 105 Idaho 533, 670 P.2d 1318 (Ct. App. 1983). This section allows the supreme court to decide all the issues in a remanded case that will be necessary for the final determination of the case, even though an issue so decided is not specifically and separately assigned by the parties as error. Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986).

Liberal Construction.

This section should be liberally construed and authorizes the supreme court, on affirming a decision of the trial court sustaining a demurrer, to set aside the judgment of that court dismissing the action in order to afford plaintiff an opportunity to amend, or to direct that court to issue a temporary restraining order. City of Boise City v. Artesian Hot & Cold Water Co., 4 Idaho 392, 39 P. 566 (1895).

Under this section a cause may be remanded, with instructions to take such further proceedings therein as may appear to be in accordance with justice, including authority to hear and determine appellant’s motion to amend his complaint. Feehan v. Kendrick, 32 Idaho 220, 179 P. 507 (1918).

Modification of Judgment.

A judgment which improperly directs payment in a specified form of currency may be corrected by the supreme court without directing a new trial. Betts v. Butler, 1 Idaho 185 (1886).

A judgment which is too large in the amount of interest allowed should be modified and not reversed. Taylor v. Peterson, 1 Idaho 513 (1889).

If it reasonably appears that plaintiff might make a case, a new trial, and not an absolute reversal, will be granted. Miller v. Mullan, 17 Idaho 28, 104 P. 660 (1909).

Where decision sustaining demurrer was upon wrong ground, yet plaintiff could have avoided defect by amendment, cause will be remanded with instructions to allow motion for amendment, judgment to stand affirmed if motion not made in time limited. MacLeod v. Stelle, 43 Idaho 64, 249 P. 254 (1926).

Where court modifies judgment on grounds other than those urged on appeal, it may disallow, in its discretion, any costs. MacLeod v. Stelle, 43 Idaho 64, 249 P. 254 (1926).

Where judgment is rendered for full amount of claim and plaintiff conceded counterclaim in certain amount, same should be deducted from amount of recovery in appellate court. La Rocque v. Alho, 43 Idaho 405, 252 P. 675 (1927).

No procedure has been prescribed by the code for vacating a provision in a decree of divorce for the custody and maintenance of minor children of a marriage thereby dissolved. Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252 (1933).

Reversal and Remand.

Where judgment is reversed and cause remanded for a new trial, it is the duty of the supreme court to pass upon and determine all the questions of law involved in the case presented upon such appeal and necessary to the final determination of the case. Bingham County v. Woodin, 6 Idaho 284, 55 P. 662 (1898).

Notwithstanding the provisions of this section, where the jury in an action for conversion was erroneously authorized to award punitive damages and the evidence as to the actual damages is confused and uncertain, the court will remand the cause for new trial rather than enter judgment for a less amount. Unfried v. Libert, 20 Idaho 708, 119 P. 885 (1911).

Where there has been no trial of the facts of the case in the probate court, a trial thereof, in the first instance, cannot be had in the district court upon appeal, but it must be remanded to the tribunal in which it originated. Smith v. Peterson, 31 Idaho 34, 169 P. 290 (1917). This section allows the supreme court to decide all the issues in a remanded case that will be necessary for the final determination of the case, even though an issue so decided is not specifically and separately assigned by the parties as error. Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986).

Liberal Construction.

This section should be liberally construed and authorizes the supreme court, on affirming a decision of the trial court sustaining a demurrer, to set aside the judgment of that court dismissing the action in order to afford plaintiff an opportunity to amend, or to direct that court to issue a temporary restraining order. City of Boise City v. Artesian Hot & Cold Water Co., 4 Idaho 392, 39 P. 566 (1895).

Under this section a cause may be remanded, with instructions to take such further proceedings therein as may appear to be in accordance with justice, including authority to hear and determine appellant’s motion to amend his complaint. Feehan v. Kendrick, 32 Idaho 220, 179 P. 507 (1918).

Modification of Judgment.

A judgment which improperly directs payment in a specified form of currency may be corrected by the supreme court without directing a new trial. Betts v. Butler, 1 Idaho 185 (1886).

A judgment which is too large in the amount of interest allowed should be modified and not reversed. Taylor v. Peterson, 1 Idaho 513 (1889).

If it reasonably appears that plaintiff might make a case, a new trial, and not an absolute reversal, will be granted. Miller v. Mullan, 17 Idaho 28, 104 P. 660 (1909).

Where decision sustaining demurrer was upon wrong ground, yet plaintiff could have avoided defect by amendment, cause will be remanded with instructions to allow motion for amendment, judgment to stand affirmed if motion not made in time limited. MacLeod v. Stelle, 43 Idaho 64, 249 P. 254 (1926).

Where court modifies judgment on grounds other than those urged on appeal, it may disallow, in its discretion, any costs. MacLeod v. Stelle, 43 Idaho 64, 249 P. 254 (1926).

Where judgment is rendered for full amount of claim and plaintiff conceded counterclaim in certain amount, same should be deducted from amount of recovery in appellate court. La Rocque v. Alho, 43 Idaho 405, 252 P. 675 (1927).

No procedure has been prescribed by the code for vacating a provision in a decree of divorce for the custody and maintenance of minor children of a marriage thereby dissolved. Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252 (1933).

Reversal and Remand.

Where judgment is reversed and cause remanded for a new trial, it is the duty of the supreme court to pass upon and determine all the questions of law involved in the case presented upon such appeal and necessary to the final determination of the case. Bingham County v. Woodin, 6 Idaho 284, 55 P. 662 (1898).

Notwithstanding the provisions of this section, where the jury in an action for conversion was erroneously authorized to award punitive damages and the evidence as to the actual damages is confused and uncertain, the court will remand the cause for new trial rather than enter judgment for a less amount. Unfried v. Libert, 20 Idaho 708, 119 P. 885 (1911).

Where there has been no trial of the facts of the case in the probate court, a trial thereof, in the first instance, cannot be had in the district court upon appeal, but it must be remanded to the tribunal in which it originated. Smith v. Peterson, 31 Idaho 34, 169 P. 290 (1917). Where case was required to be remanded for a new trial for error in non-suit of appellants, the rulings of trial court in excluding evidence offered by appellants would be discussed by the supreme court. McKee v. Chase, 73 Idaho 491, 253 P.2d 787 (1953).

If case is to be reversed and remanded for a new trial, it is duty of supreme court to pass on all questions of law presented on the appeal which are necessary to final determination of the case. State v. Spencer, 74 Idaho 173, 258 P.2d 1147 (1953), overruled on other grounds, State v. Perry, 2010 Ida. LEXIS 208 (Dec. 7, 2010).

Supreme court determined other questions presented by the parties after it had reached decision that judgment should be reversed. Head v. Crone, 76 Idaho 196, 279 P.2d 1064 (1955).

Where there was prejudicial error in failing to give instructions on appellant’s theory of the case, necessitating a remand of the action for a new trial, issues raised by the appeal will be considered and resolved for final determination. Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422 (1964).

Upon reversal and remand, the supreme court can undertake to resolve some of the issues raised in hearing below and argued on appeal, even though such proceedings were conducted by a disqualified judge. Lewiston Lime Co. v. Barney, 87 Idaho 462, 394 P.2d 323 (1964).

Scope of Trial Court Action After Remand.

Trial court will restrict its consideration in a remanded action to those questions specified in the mandate and will not reexamine issues already laid to rest by the appellate court affirmance on the preceding appeal. Tolman v. Tolman, 93 Idaho 374, 461 P.2d 433 (1969).

Where a new trial was not mandated by the supreme court in its remand order, district judge’s decision to proceed without conducting a de novo trial was compatible with that order, as it is within a trial court’s discretion to determine whether an existing record is sufficient or should be supplemented, in order to make the required findings of fact and conclusions of law on remand. Capps v. Wood, 117 Idaho 614, 790 P.2d 395 (Ct. App. 1990).

Summary Judgment.

On an appeal from a summary judgment, where the record showed a genuine dispute on material facts and the trial court was in error in granting the motion for summary judgment, the supreme court must decide questions of law presented by the appeal which are necessary to the final determination of the case. Layrite Prods. Co. v. Lux, 86 Idaho 477, 388 P.2d 105 (1964).

Scope of Trial Court Action After Remand.

Trial court will restrict its consideration in a remanded action to those questions specified in the mandate and will not reexamine issues already laid to rest by the appellate court affirmance on the preceding appeal. Tolman v. Tolman, 93 Idaho 374, 461 P.2d 433 (1969).

Where a new trial was not mandated by the supreme court in its remand order, district judge’s decision to proceed without conducting a de novo trial was compatible with that order, as it is within a trial court’s discretion to determine whether an existing record is sufficient or should be supplemented, in order to make the required findings of fact and conclusions of law on remand. Capps v. Wood, 117 Idaho 614, 790 P.2d 395 (Ct. App. 1990).

Summary Judgment.

On an appeal from a summary judgment, where the record showed a genuine dispute on material facts and the trial court was in error in granting the motion for summary judgment, the supreme court must decide questions of law presented by the appeal which are necessary to the final determination of the case. Layrite Prods. Co. v. Lux, 86 Idaho 477, 388 P.2d 105 (1964).

Cross References.

Majority necessary to constitute a quorum or pronounce a decision,Idaho Const., Art. V, § 6.

Cross References.

Majority must concur in decisions,Idaho Const., Art. V, § 6.

Second Rehearing.

Where a rehearing is granted and the court fails to agree upon a decision in the case, it does not lose jurisdiction; and, under this section, another hearing must be ordered. Cameron Lumber Co. v. Stack-Gibbs Lumber Co., 26 Idaho 626, 144 P. 1114 (1914).

Statement of Grounds.

It is not necessary that concurring justices state the grounds of their conclusion. Northwestern & Pac. Hypotheekbank v. Hobson, 59 Idaho 119, 80 P.2d 793 (1938).

Constitutionality.

Provision allowing legislation to alter provisions of Constitution as to terms of supreme court, and where they shall be held, does not warrant legislature to go further and limit place at which cause may be heard, except upon agreement of parties. Talbot v. Collins, 33 Idaho 169, 191 P. 354 (1920).

Cross References.

Constitutional provision as to places of holding court in case of emergency,Idaho Const., Art. V, § 8.

Effective Dates.

Section 2 of S.L. 1957, ch. 314 provided said act should take effect from and after July 1, 1957.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the name of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 1 of S.L. 1994, ch. 180 became effective January 2, 1995.

Cross References.

Determination of rate of allowance,§ 67-2008.

Retirement compensation,§ 1-2001 et seq.

Salaries of justices,§ 59-502.

Cross References.

Powers of courts to make rules for their own government, Idaho R. Civ. P. 1(c).

Rules governing attorneys and admission to bar, power to make,§ 3-408.

Constitutionality.

This section does not delegate legislative power to the supreme court, but recognizes the inherent power of the supreme court in the area of rule-making procedure in all courts. R.E.W. Constr. Co. v. District Court, 88 Idaho 426, 400 P.2d 390 (1965).

Criminal Procedure.

Absent legislative direction, the supreme court not only has the authority, but the duty, to adopt procedure designed to safeguard the rights of an accused to a fair and impartial trial. State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963).

Particular Rules.

Under this act, the supreme court may regulate the waiver of trial by jury. Allen Steel Supply Co. v. Bradley, 89 Idaho 29, 403 P.2d 859 (1965).

Based upon this section and Idaho R. Civ. P. 6(a), which governs computation of time periods, it is clear that the legislature and the supreme court were attempting to compensate for the closure of the clerk’s office on weekends and holidays; in this regard, the time limitation contained in§ 45-510, governing the duration of materialmen’s liens is analogous to a statute of limitation and, when one considers the purpose of the rule and the statute, the only interpretation is that Idaho R. Civ. P. 6(a) is applicable to§ 45-510. Cather v. Kelso, 103 Idaho 684, 652 P.2d 188 (1982).

Rules of Evidence.

Since the supreme court has the inherent power to promulgate procedural rules, it follows that the court also has the inherent power to establish rules of evidence, including a rule which allows a criminal defendant to be impeached by the use of a prior felony conviction. State v. Knee, 101 Idaho 484, 616 P.2d 263 (1980).

Am. Jur. 2d.

C.J.S.

Cross References.

Appellate rules, Idaho App. R. 1 et seq.

Power of district courts to make rules, Idaho R. Civ. P. 1(c).

Criminal Procedure.

Absent legislative direction, the supreme court not only has the authority, but the duty, to adopt procedure designed to safeguard the rights of an accused to a fair and impartial trial. State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963).

Rules of Evidence.

Since the supreme court has the inherent power to promulgate procedural rules, it follows that the court also has the inherent power to establish rules of evidence, including a rule which allows a criminal defendant to be impeached by the use of a prior felony conviction. State v. Knee, 101 Idaho 484, 616 P.2d 263 (1980).

Prior Laws.

Former§ 1-215, which comprised S.L. 1941, ch. 90, § 4, p. 163, was repealed by S.L. 1975, ch. 242, § 1.

Cross References.

Expenses of supreme court officers,§ 1-211.

Oath required of supreme court justices,Idaho Const., Art. V, § 17.

Cross References.

District judge directed by governor or chief justice to serve in another district,§ 1-704.

Compiler’s Notes.

This section, which comprised R.S., §§ 260, 263; compiled and reen. R.C. & C.L., § 212; C.S., § 189; I.C.A.,§ 1-401, was repealed by S.L. 1993, ch. 90, § 1, effective March 18, 1993.

Cross References.

Additional fees for judges’ retirement fund,§ 1-2003.

Appeals, clerk’s fees regarding, Idaho App. R. 23.

Authority of clerk to administer oaths,§ 1-405.

Clerk of supreme court to be appointed by the court,Idaho Const., Art. V, § 15.

Ex-officio reporter of supreme court,§ 1-501.

Motion to Recall Remittitur.

Neither this section nor former court rule provided for fees or costs in connection with a motion to recall a remittitur and modify the judgment. Fite v. French, 54 Idaho 104, 30 P.2d 360 (1934).

Am. Jur. 2d.

C.J.S.

Cross References.

Court seal to be affixed to copies of documents on file in office of clerk,§ 1-1616.

Am. Jur. 2d.

§ 1-404. Responsibility for books and papers.

He is responsible for the safe custody and delivery to his successor of all books and papers belonging to his office.

History.

1864, p. 423, § 5; R.S., § 265; R.C. & C.L., § 215; C.S., § 192; I.C.A.,§ 1-404.

Cross References.

Fee for administering oaths,§ 1-402.

Judicial officers may administer oaths,§ 1-1901.

Oaths of office generally,§ 59-401 et seq.

Cross References.

Additional authority to take acknowledgments,§ 55-701.

Fee for taking acknowledgments,§ 1-402.

Cross References.

Bonds of public officers generally,§ 59-801 et seq.

Compiler’s Notes.

This section, which comprised 1893, p. 63, § 3; 1899, p. 6, § 4; R.C., § 220; reen. C.L., § 220; C.S., § 197; am. 1921, ch. 21, § 1, p. 30; I.C.A.,§ 1-409; am. 1953, ch. 66, § 1, p. 88; am. 1955, ch. 35, § 1, p. 54; am. 1957, ch. 315, § 2, p. 673; am. 1959, ch. 129, § 1, p. 272; am. 1961, ch. 322, § 1, p. 613, was repealed by S.L. 1977, ch. 178, § 11.

Compiler’s Notes.

This section, which comprised 1893, p. 63, § 2; reen. 1899, p. 6, § 5; modified by 1899, p. 6, § 4, and 1903, p. 42, § 12; compiled and reen. R.C. & C.L., § 221; C.S., § 198; am. 1921, ch. 21, § 2, p. 30; I.C.A.,§ 1-410, was repealed by S.L. 1993, ch. 90, § 1, effective March 18, 1993.

Cross References.

Administrative director of the courts,§ 1-611.

Bonds of public officers generally,§ 59-801 et seq.

Department of lands,§ 58-101 et seq.

Division of public works,§ 67-5705.

Amendments.

The 2011 amendment, by ch. 34, added the last three sentences in the section.

Effective Dates.

Section 2 of S.L. 1969, ch. 122 provided that the act should become effective at 12:01 a.m. on January 11, 1971.

Section 2 of S.L. 1978, ch. 152 provided that the act should take effect on and after July 1, 1978.

Compiler’s Notes.

This section, which comprised 1903, p. 367, § 7; reen. R.C. & C.L., § 228; C.S., § 205; I.C.A.,§ 1-507, was repealed by S.L. 2003, ch. 114, § 2.

Cross References.

Clerks of district courts: election,Idaho Const., Art. V, § 16; duties in general,§ 1-1001; deputies,§ 1-1002; bond,§ 31-2015; fees,§ 31-3201.

Stenographic reporters,§ 1-1101 et seq.

Supreme Court crier, bailiff and messenger,§ 1-210.

Compiler’s Notes.

The bracketed word “reporters” was inserted by the compiler.

The words “this code” refer to the Code of Civil Procedure which is a division of the Idaho Code consisting of Titles 1 through 13. The Penal Code is a division of the Idaho Code consisting of Titles 18 through 20.

Effective Dates.

Section 2 of S.L. 1969, ch. 123 provided that the act should be effective at 12:01 a.m. on January 11, 1971.

Amendments.

The 2011 amendment, by ch. 25, substituted “fiscal year” for “calendar year” near the beginning of subsections (a) and (c).

Cross References.

Administrative director, duties,§ 1-612.

Compiler’s Notes.

The words “this act” refer to S.L. 1949, ch. 93 compiled as§§ 1-611 to 1-615.

Compiler’s Notes.

The words “this act” refer to S.L. 1949, ch. 93 compiled as§§ 1-611 to 1-615.

Effective Dates.

Section 6 of S.L. 1967, ch. 39, provided that the act should become effective on and after July 1, 1967.

Cross References.

Child protection actions, procedure, Idaho Juvenile Rules 29 to 50.

Clerk of district court,§ 1-1001 et seq.

Court crier, sheriff to act as,§ 31-2215.

Criminal proceedings, rules of practice, Idaho R. Crim. P. 1 et seq.

Disqualification of judge, Idaho R. Civ. P. 40(d)(1), 40(d)(2), 40(d)(4), 40(d)(5).

District court judges to act as supreme court commissioners,§ 1-301 et seq.

Filling vacancies in judgeship,§ 59-905 et seq.

Holding court out of district,Idaho Const., Art. V, § 12.

Incidental means to exercise jurisdiction,§ 1-1622.

Infraction proceedings, Idaho Infraction Rule 1 et seq.

Inherent powers of courts,§ 1-1603.

Judge not to act as attorney or counsel in certain cases,§§ 1-1802, 1-1803.

Judges pro tem.,Idaho Const., Art. V, § 12.

Judges, qualifications and term of office,Idaho Const., Art. V, §§ 11, 12, 23.

Judges’ retirement and compensation,§ 1-2001 et seq.

Judicial districts,Idaho Const., Art. V, § 11;§ 1-801 et seq.

Misdemeanor criminal proceedings, Idaho Misdemeanor Crim. R. 1 et seq.

Salaries of judges,§ 59-502.

Sheriff to attend court and obey orders and directions,§ 31-2202.

Supreme Court reports to be distributed to each district judge,§ 1-505.

Misnaming Court in Appeal.

Presumption Attaching to Proceedings of Court of General Jurisdiction.

Where on an appeal from a justice court to a district court, the latter is improperly designated, unless it is shown to have misled or deceived the opposite party, the appeal will not be dismissed. Darling v. Fremstadt, 22 Idaho 684, 127 P. 674 (1912). Presumption Attaching to Proceedings of Court of General Jurisdiction.

The rule as to the verity attaching to proceedings of a court of record or a court of general jurisdiction is inapplicable to a case where an officer seeks to justify a levy upon property under a writ of execution or attachment when the property is claimed by a stranger to the writ; then nothing is presumed and everything must be proved; in case of an attachment, the indebtedness to the plaintiff in the attachment suit or action must also be proved. Sears v. Lydon, 5 Idaho 358, 49 P. 122 (1897).

There is no presumption in favor of the proceedings of a court of general jurisdiction unless the court is proceeding according to the course of common law. There is no presumption indulged when a court of general jurisdiction is exercising a statutory power; therefore, no presumption indulged in favor of the validity of proceedings in divorce actions since they are purely statutory and were unknown to the common law. Platts v. Platts, 37 Idaho 149, 215 P. 464 (1923).

C.J.S.

§ 1-702. District judges — Election and term — New district judgeship and appointment to fill vacancy.

The district court is presided over by district judges chosen by the qualified electors of their respective districts for a term of four (4) years, except that upon the creation of a new district judgeship in any district or upon the appointment by the governor to fill a vacancy in a district judgeship in any district, such judge shall be appointed to hold office until the first Monday in January following the next general election for district judges occurring at least one (1) year following the date of the judge’s appointment and until his successor is elected and qualified.

History.

R.C., § 3829; am. 1911, ch. 4, § 1, p. 6; compiled and reen. C.L., § 3829a; C.S., § 6455; I.C.A.,§ 1-702; am. 2002, ch. 214, § 1, p. 593; am. 2007, ch. 1, § 1, p. 3.

Cross References.

Election of district judges,§ 34-616.

Judge not to have law partner,§ 1-1804.

Rule-making power, Idaho R. Civ. P. 1(c).

Supreme Court commissioner, appointment of district judges as,§ 1-301 et seq.

Amendments.

The 2007 amendment, by ch. 1, inserted “the first Monday in January following”.

Effective Dates.

Section 2 of S.L. 2002, ch. 214 declared an emergency. Approved March 22, 2002.

Holding Over.

The provision that district judges shall hold office until the next general election and until their successors are elected and qualified applies only to appointed district judges. Jordan v. Pearce, 91 Idaho 687, 429 P.2d 419 (1967).

Cross References.

Number of judges in each judicial district,§ 1-801 et seq.

Amendments.

The 2014 amendment, by ch. 291, substituted “two thousand dollars ($2,000)” for “one thousand five hundred dollars ($1,500)” in the last sentence in the section.

The 2017 amendment, by ch. 168, substituted “three thousand dollars ($3,000)” for “two thousand dollars ($2,000)” in the last sentence.

Authority of Succeeding District Judge.

District judge who took over for the other district judge upon remand of proceedings was entitled to pass upon motion to strike appellant’s amended answer and cross complaint as well as upon the merits. Land Dev. Co. v. Cannaday, 77 Idaho 237, 290 P.2d 1087 (1955).

Execution after Death of Trial Judge.

Upon the death of the trial judge, any other judge of the district may carry into effect a death sentence imposed by the deceased judge after the conviction had been affirmed on appeal. State v. Van Vlack, 58 Idaho 248, 71 P.2d 1076 (1937).

Order for Change of Venue.

An order for change of venue should not designate the particular judge to try the case, since the senior judge of a district must apportion the business. Callahan v. Callahan, 30 Idaho 431, 165 P. 1122 (1917).

Am. Jur. 2d.

C.J.S.

Cross References.

Constitutional provision,Idaho Const., Art. V, § 12.

Disqualification of judge for bias or prejudice, Idaho R. Civ. P. 40(d)(2).

New judge assigned where judge disqualified, Idaho R. Civ. P. 40(d)(5).

Powers of supreme court to direct district judge to hold court in another district,§ 1-302.

Proceedings on disqualification of judge of district, Idaho R. Civ. P. 40(d)(5).

Selection of new venue upon change of venue, Idaho R. Civ. P. 40(e).

Jurisdiction Presumed Valid.

Where a district judge from one district holds court in another district and no question is raised as to his authority, it will be presumed, unless the record discloses to the contrary, that he was lawfully exercising jurisdiction; such jurisdiction is exercised under color of authority and is not open to collateral attack. Ex parte Allen, 31 Idaho 295, 170 P. 921 (1918). See also Kettenbach v. Walker, 32 Idaho 544, 186 P. 912 (1919).

In an action appointing a receiver ex parte in the second judicial district, the judge was temporarily unable to act; therefore, the judge of the tenth judicial circuit was requested to serve. The matter was presented to such judge, and he had jurisdiction in the appointment of a receiver ex parte. Murphy v. McCarty, 69 Idaho 193, 204 P.2d 1014 (1949).

Place of Signing, Findings of Fact, Conclusions and Judgments.

A judgment rendered by a judge of another county or district called in by a disqualified judge is not invalid because he signed his findings and conclusions and order for the judgment at home and was not in the county of the trial when the judgment was entered. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923).

Power of Substitute Judge.

A judge of one district called into another district to try a case pending in the latter district has all the powers of the judge of that district for the purposes of that case and may make an order extending the time for preparing and presenting any and all papers necessary therefor, or for the filing of affidavits and motions for a new trial. Morris v. Lemp, 13 Idaho 116, 88 P. 761 (1907).

Am. Jur. 2d.

C.J.S.

ALR.

Construction and validity of state provisions governing designation of substitute, pro tempore, or special judge. 97 A.L.R.5th 537.

Cross References.

Aeronautics, Idaho department of, review of actions of,§ 21-120.

Aircraft, jurisdiction of torts committed by or against airman or passenger while in flight over this state,§ 21-207.

Airport zoning regulations, appeal to district courts,§ 21-506.

Appeals from judgment or order in probate matters,§ 17-201.

Awards of industrial commission, decree or judgment to enforce payment,§§ 72-735 to 72-737.

Certiorari,§§ 7-201, 7-202.

Change of name, jurisdiction of district court,§ 7-801.

Divorce, exclusive jurisdiction in district court,§ 32-715.

Divorce on ground of insanity, jurisdiction of district court,§ 32-802.

Election contests, jurisdiction to hear,§ 34-2005.

Eminent domain, jurisdiction in district court,§ 7-706.

Forcible entry and unlawful detainer, actions for,§ 6-305.

Habeas corpus,§ 19-4201 et seq.

Industrial commission hearings, power to enforce attendance of witnesses and production of evidence,§§ 72-709, 72-715.

Industrial commission orders and awards, limitation of jurisdiction,§ 72-733.

Infraction violation judgments, appeal to district court, Idaho Infraction Rule 15.

Initiative and referendum petition, jurisdiction of judicial proceedings concerning,§ 34-1808.

Judges may take proof and acknowledgment of a conveyance of real property or other conveyance,§ 1-1903.

Jurisdiction defined byIdaho Const., Art. V, § 20.

Mandamus,§ 7-301 et seq.

Prohibition,§ 7-401 et seq.

Effective Dates.

Section 2 of S.L. 1969, ch. 107 provided that the act should be effective at 12:01 A.M. on January 11, 1971.

Collateral Attack.

A decision of a district court in Idaho that a court in another jurisdiction was without authority to determine a question before it is unassailable in either a state or federal court when collaterally attacked, except for fraud or lack of jurisdiction within the Idaho court. Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S. Ct. 44, 84 L. Ed. 85 (1939), rehearing denied, 309 U.S. 693, 60 S. Ct. 464, 84 L. Ed. 1034 (1940).

Concurrent Jurisdiction with Federal Courts.

Unless the jurisdiction conferred upon the federal courts is exclusive of the state courts, the latter retain jurisdiction of all actions wherein they are competent to take jurisdiction under their own laws. McCormick v. Smith, 23 Idaho 487, 130 P. 999 (1912).

Jurisdiction in Particular Cases.

The district court had jurisdiction to appoint trustees and receivers for foreign corporation which owned valuable property in the state and was making contracts and carrying on business in the state when such corporation became insolvent, had creditors and was unable to pay the debts of the corporation since there is no question that such corporation can be sued in the courts of the state and the courts acquire jurisdiction by reason of the fact that such corporation has appointed an agent and a principal place of business located in the state. Rowe v. Stevens, 25 Idaho 237, 137 P. 159 (1913).

A district court has jurisdiction of actions to quiet title to land or to construe and determine rights under a contract to convey, even though the mental capacity of one or more of the parties is drawn in question. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937).

Idaho court had jurisdiction to determine whether corporate stock was in custody of Washington probate court or had been distributed to Idaho litigants and its judgment was unassailable collaterally. Treinies v. Sunshine Mining Co., 99 F.2d 651 (9th Cir. 1938), aff’d, 308 U.S. 66, 60 S. Ct. 44, 84 L. Ed. 85 (1939), rehearing denied, 309 U.S. 693, 60 S. Ct. 464, 84 L. Ed. 1034 (1940).

Effective Dates.

District court had jurisdiction to determine custody of minor child whose parents had been divorced in a county other than that in which complaint for custody had been filed, where plaintiff was a resident of the state and personal service had been obtained against defendant within jurisdiction of court, since statutes governing custody of children had not limited original jurisdiction of district court in cases both at law and equity granted byIdaho Const., Art. V, § 20. Clemens v. Kinsley, 72 Idaho 251, 239 P.2d 266 (1951). Effective Dates.

Section 2 of S.L. 1969, ch. 107 provided that the act should be effective at 12:01 A.M. on January 11, 1971.

Collateral Attack.

A decision of a district court in Idaho that a court in another jurisdiction was without authority to determine a question before it is unassailable in either a state or federal court when collaterally attacked, except for fraud or lack of jurisdiction within the Idaho court. Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S. Ct. 44, 84 L. Ed. 85 (1939), rehearing denied, 309 U.S. 693, 60 S. Ct. 464, 84 L. Ed. 1034 (1940).

Concurrent Jurisdiction with Federal Courts.

Unless the jurisdiction conferred upon the federal courts is exclusive of the state courts, the latter retain jurisdiction of all actions wherein they are competent to take jurisdiction under their own laws. McCormick v. Smith, 23 Idaho 487, 130 P. 999 (1912).

Jurisdiction in Particular Cases.

The district court had jurisdiction to appoint trustees and receivers for foreign corporation which owned valuable property in the state and was making contracts and carrying on business in the state when such corporation became insolvent, had creditors and was unable to pay the debts of the corporation since there is no question that such corporation can be sued in the courts of the state and the courts acquire jurisdiction by reason of the fact that such corporation has appointed an agent and a principal place of business located in the state. Rowe v. Stevens, 25 Idaho 237, 137 P. 159 (1913).

A district court has jurisdiction of actions to quiet title to land or to construe and determine rights under a contract to convey, even though the mental capacity of one or more of the parties is drawn in question. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937).

Idaho court had jurisdiction to determine whether corporate stock was in custody of Washington probate court or had been distributed to Idaho litigants and its judgment was unassailable collaterally. Treinies v. Sunshine Mining Co., 99 F.2d 651 (9th Cir. 1938), aff’d, 308 U.S. 66, 60 S. Ct. 44, 84 L. Ed. 85 (1939), rehearing denied, 309 U.S. 693, 60 S. Ct. 464, 84 L. Ed. 1034 (1940).

District court had jurisdiction to determine custody of minor child whose parents had been divorced in a county other than that in which complaint for custody had been filed, where plaintiff was a resident of the state and personal service had been obtained against defendant within jurisdiction of court, since statutes governing custody of children had not limited original jurisdiction of district court in cases both at law and equity granted byIdaho Const., Art. V, § 20. Clemens v. Kinsley, 72 Idaho 251, 239 P.2d 266 (1951). District court had jurisdiction of proceeding by taxpayer to contest result of election to determine whether county commissioners should issue bonds to build a hospital based on contention that non-taxpayers were permitted to vote, regardless of whether suit was in equity or in law. Henley v. Elmore County, 72 Idaho 374, 242 P.2d 855 (1952).

The district court in exercising its appellate jurisdiction in probate matters is limited to deciding the issue previously tried in the probate court and presented by the appeal. Muncey v. Children’s Home Finding & Aid Soc’y, 84 Idaho 147, 369 P.2d 586 (1962).

Where a purported stipulation included minutes which attempted to resolve issues not as yet presented to the probate court nor embraced within the scope of the question presented on the appeal to the district court, i.e., whether the probate court erred in admitting the will to probate, the order of the trial court must be reversed and the appeal reinstated. Muncey v. Children’s Home Finding & Aid Soc’y, 84 Idaho 147, 369 P.2d 586 (1962).

District courts have jurisdiction to quiet title in actions resulting from adverse claims filed in federal patent proceedings. Lewiston Lime Co. v. Barney, 87 Idaho 462, 394 P.2d 323 (1964).

In habeas corpus proceeding in federal district court where state prisoners had filed motions for new trial subsequent to conviction and had appealed to state supreme court where convictions were affirmed and prisoners had not exhausted the remedy of habeas corpus to the state district court, federal court assumed jurisdiction to determine petitions raising only the issues previously presented to the state district and supreme courts on the basis that there had been a practical exhaustion of state remedies and a different result appeared unlikely in the state courts. Drapeau v. May, 350 F. Supp. 1321 (D. Idaho 1972).

Where the subject matter of an action involved alleged proposed unlawful action on the part of the director of insurance which allegedly would cause an insurer irreparable harm, and resolution of the issues raised by the complaint required construction of applicable statutes and determination of the legal effect of a prior administrative decision and order and a prior order of a court of a sister state, the claims presented by the insurer in the district court action involved issues which could be appropriately determined in a declaratory judgment action. Sierra Life Ins. Co. v. Granata, 99 Idaho 624, 586 P.2d 1068 (1978).

The district court had jurisdiction of the surviving spouse’s action to establish ownership of a one-half interest in the airplane jointly owned by the decedent and the defendant and to force a sale of the airplane. Olson v. Kirkham, 111 Idaho 34, 720 P.2d 217 (Ct. App. 1986).

District court acquired subject matter jurisdiction over defendant when the state filed the criminal complaint, and although the district court erred in believing it had a valid warrant for defendant’s arrest in that no warrant had been issued on April 25, 1994, or at any time thereafter, the district court had no intention of relinquishing jurisdiction and postponed sentence for a proper purpose, to have defendant in custody or amenable to the process of the court. State v. Rogers, 140 Idaho 223, 91 P.3d 1127 (2004).

Res Judicata.

Retention of Jurisdiction Exercised.

Where an Idaho district court, in passing on the right to stock under a trust agreement, determined that a court in another state did not have jurisdiction to decide the question of the right to the stock, such a holding necessarily determined a question as to the Idaho court’s jurisdiction so as to preclude relitigation thereof in another suit or action either in the state or federal court. Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S. Ct. 44, 84 L. Ed. 85 (1939), rehearing denied, 309 U.S. 693, 60 S. Ct. 464, 84 L. Ed. 1034 (1940). Retention of Jurisdiction Exercised.

Where the district court has obtained jurisdiction of an action on a contract, its jurisdiction extends to all issues arising out of or connected with the contract, or relating to or depending upon it, and the defendant may file his cross-complaint, if necessary, to have such issues adjudicated. Murphy v. Russell, 8 Idaho 151, 67 P. 427 (1901).

Order denying defendant’s motion for reduction of sentence was upheld where defendant presented no new or additional evidence in support of the motion. The trial court acted within a reasonable time in ruling on the motion and had not lost original jurisdiction when it issued the order denying the motion. State v. Shumway, 144 Idaho 580, 165 P.3d 294 (Ct. App. 2007).

Validity.

The legislature of the territory of Idaho had power to confer on the supreme court of the territory original jurisdiction to issue writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its appellate jurisdiction. Clough v. Curtis, 134 U.S. 361, 10 S. Ct. 573, 33 L. Ed. 945 (1890).

Am. Jur. 2d.

C.J.S.

ALR.

ALR. — Who is “person acting under” officer of United States or any agency thereof for purposes of availability of right to remove state action to federal court under 28 U.S.C.A. § 1442(a)(1). 166 A.L.R. Fed. 297.

Civil actions removable from state court to federal court under 28 U.S.C.A. § 1443. 159 A.L.R. Fed. 377.

Compiler’s Notes.

The following sections were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975:

1-706. (C.C.P. 1881, § 27; am. R.C., art. 6; R.S., § 3831; am. 1909, § 1, p. 77; am. 1911, ch. 4, § 2, p. 6; am. 1915, ch. 98, §§ 1, 2, p. 237; compiled and reen. C.L., § 3831; C.S., § 6458; I.C.A.,§ 1-706; am. 1961, ch. 174, § 1, p. 268).

1-707. (C.C.P. 1881, § 28; R.S., R.C., & C.L., § 3832; C.S., § 6459; I.C.A.,§ 1-707).

1-708. (C.C.P. 1881, § 29; R.S., § 3833; am. 1889, p. 3, § 1; reen. R.C. & C.L., § 3833; C.S., § 6460; I.C.A.,§ 1-708).

1-709. (1890-1891, p. 4, § 1; reen. 1899, p. 3, § 1; reen. R.C., § 3834; am. 1911, ch. 4, § 3, p. 6; compiled and reen. C.L., § 3834; C.S., § 6461; I.C.A.,§ 1-709).

1-710. (1890-1891, p. 4, § 2; reen. 1899, p. 3, § 1; reen. R.C., § 3835; am. 1911, ch. 4, § 4, p. 6; compiled and reen. C.L., § 3835; C.S., § 6462; am. 1927, ch. 4, § 1, p. 9; I.C.A.,§ 1-710).

Am. Jur. 2d.

§ 1-712. Expenses of district judges

Terms held outside district. [Repealed.]

Compiler’s Notes.

This section, which comprised R.C., § 3836; 1911, ch. 107, §§ 2, 3, p. 358; modified by 1915, ch. 98, § 2, p. 237; compiled and reen. C.L., § 3836a; C.S., § 6464; I.C.A.,§ 1-712, was repealed by S.L. 1963, ch. 101, § 2. See§ 1-711.

Prior Laws.

Former chapter 8 which comprised S.L. 1917, ch. 21, §§ 1, 3, 6, p. 50; reen. C.L., ch. 5,§§ 1-11; C.S.,§§ 55-64, 64A; am. 1921, ch. 55, §§ 3, 5, 7-10; I.C.A.,§§ 1-801 — 1-813; am. 1957, ch. 190, § 1, p. 377; am. 1961, ch. 317, § 1, p. 609; am. 1965, ch. 143, § 1, p. 280 was repealed and reenacted by S.L. 1967, ch. 51, § 1.

Prior Laws.

Former§ 1-802 was repealed. See Prior Laws,§ 1-801.

Amendments.

The 2006 amendment, by ch. 266, in subsection (2), substituted “six (6)” for “five (5)”; and in subsection (3)(b), substituted “Four (4)” for “Three (3).”

The 2020 amendment, by ch. 174, substituted “seven (7) district judges” for “six (6) district judges” at the end of subsection (2); and substituted “Two (2) resident chambers” for “One (1) resident chamber” at the beginning of paragraph (3)(a).

Effective Dates.

Section 2 of S.L. 1979, ch. 223 provided that the act should take effect January 1, 1980.

Section 2 of S.L. 1997, ch. 66 provided that the act should be in full force and effect on and after January 1, 1998.

Prior Laws.

Former§ 1-803 was repealed. See Prior Laws,§ 1-801.

Effective Dates.

Section 2 of S.L. 1981, ch. 14 declared an emergency. Approved March 10, 1981.

Actual Residence.

District judge, whose resident chambers was in Idaho County, was required pursuant to§ 1-809 and this section to actually reside in Idaho County. Although the evidence in the record indicated that the judge had not been actually residing in Idaho County for some time, judge was ordered to take action to comply with the law. Bradbury v. Idaho Judicial Council, 149 Idaho 107, 233 P.3d 38 (2009), cert. denied, — U.S. —, 130 S. Ct. 2350, 176 L. Ed. 2d 561 (2010).

Prior Laws.

Former§ 1-804 was repealed. See Prior Laws,§ 1-801.

Amendments.

The 2006 amendment, by ch. 266, in subsection (2), substituted “six (6)” for “five (5)”; and in subsection (3)(b), substituted “Five (5)” for “Four (4).”

The 2013 amendment, by ch. 38, substituted “seven (7)” for “six (6)” in subsection (2) and substituted “Six (6)” for “Five (5)” at the beginning of paragraph (3)(b).

Effective Dates.

Section 2 of S.L. 1977, ch. 26 provided that the act should take effect on and after July 1, 1977.

Section 2 of S.L. 1982, ch. 301 declared an emergency. Approved April 1, 1982.

Section 2 of S.L. 1996, ch. 426 provided that the act shall be in full force and effect on January 1, 1997.

Section 4 of S.L. 2013, ch. 38 provided that the act should take effect on and after October 1, 2013.

Prior Laws.

Former§ 1-805 was repealed. See Prior Laws,§ 1-801.

Amendments.

The 2007 amendment, by ch. 104, in subsection (2), substituted “ten (10) district judges” for “nine (9) district judges”; and in subsection (3)(a), substituted “Nine (9) resident chambers” for “Eight (8) resident chambers.”

The 2013 amendment, by ch. 38, substituted “eleven (11)” for “ten (10)” in subsection (2) and substituted “Ten (10)” for “Nine (9)” at the beginning of paragraph (3)(a).

The 2019 amendment, by ch. 186, substituted “twelve (12)” for “eleven (11)” in subsection (2); and substituted “Eleven (11)” for “Ten (10)” at the beginning of paragraph (3)(a).

Effective Dates.

Section 2 of S.L. 1976, ch. 19, provided that the act should take effect on and after July 1, 1976.

Section 2 of S.L. 1978, ch. 26 provided that the act should take effect on and after July 1, 1978.

Section 2 of S.L. 1982, ch. 102 provided that the act should take effect January 15, 1983.

Section 4 of S.L. 1993, ch. 248 reads: “Section 2 of this act shall be in full force and effect on and after July 1, 1993. Sections 1 and 3 of this act shall be in full force and effect on and after March 1, 1995.”

Section 2 of S.L. 1998, ch. 94 provided this act shall be in full force and effect on and after January 1, 1999.

Section 4 of S.L. 2013, ch. 38 provided that the act should take effect on and after October 1, 2013.

Prior Laws.

Former§ 1-806 was repealed. See Prior Laws,§ 1-801.

Effective Dates.

Section 2 of S.L. 1975, ch. 35 declared an emergency. Approved March 10, 1975.

Section 2 of S.L. 1977, ch. 239 provided that the act should be in full force on and after July 1, 1977.

Section 2 of S.L. 1982, ch. 357 provided that the act should take effect July 1, 1983.

Section 4 of S.L. 1993, ch. 248 read: “Section 2 of this act shall be in full force and effect on and after July 1, 1993. Sections 1 and 3 of this act shall be in full force and effect on and after March 1, 1995.”

Prior Laws.

Former§ 1-807 was repealed. See Prior Laws,§ 1-801.

Effective Dates.

Section 2 of S. L. 1980, ch. 315 provided that the act should take effect on and after January 1, 1981.

Prior Laws.

Former§ 1-808 was repealed. See Prior Laws,§ 1-801.

Amendments.

The 2013 amendment, by ch. 38, substituted “six (6)” for “five (5)” in subsection (2) and added paragraph (3)(d).

Effective Dates.

Section 4 of S.L. 1993, ch. 248 read: “Section 2 of this act shall be in full force and effect on and after July 1, 1993. Sections 1 and 3 of this act shall be in full force and effect on and after March 1, 1995.”

Section 4 of S.L. 2013, ch. 38 provided that the act should take effect on and after October 1, 2013.

Prior Laws.

Former§ 1-809 was repealed. See Prior Laws,§ 1-801.

Effective Dates.

Section 3 of S.L. 1967, ch. 51, provided that the act should be in full force and effect from and after July 1, 1967.

Actual Residence.

District judge, whose resident chambers was in Idaho County, was required pursuant to§ 1-803 and this section to actually reside in Idaho County. Although the evidence in the record indicated that the judge had not been actually residing in Idaho County for some time, judge was ordered to take action to comply with the law. Bradbury v. Idaho Judicial Council, 149 Idaho 107, 233 P.3d 38 (2009), cert. denied, — U.S. —, 130 S. Ct. 2350, 176 L. Ed. 2d 561 (2010).

Compiler’s Notes.

These sections, which comprised R.S., § 3890; 1905, p. 7,§§ 2-4; am. 1907, p. 317, § 1; reen. R.C. & C.L.,§§ 3890-3893; C.S.,§§ 6493-6496; I.C.A.,§§ 1-901 — 1-904, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

This section was made a rule of court by order of the supreme court dated March 19, 1951, which order was rescinded by order of the supreme court of October 24, 1974. It may be superseded by Idaho R. Civ. P. Rule 63.

Absence or Disability of Judge.

Where the judge of the second judicial district, who was temporarily unable to act on a verified complaint and affidavit filed in said second district for the appointment of a receiver, orally requested the judge of the eighth judicial circuit to act upon said application, the ex parte granting the application by the judge of the eighth circuit, while physically within the confines of the tenth circuit, was valid. Murphy v. McCarty, 69 Idaho 193, 204 P.2d 1014 (1949).

Application of Section.

Under this section, jurisdiction is conferred upon a judge of any other district to same extent as judge of district for whom he is acting and he is also bound by the same limitations. Callahan v. Dunn, 30 Idaho 225, 164 P. 356 (1917).

This section is applicable to a junior district judge of the same district, as well as to judges from other districts. Ball v. Parma, 49 Idaho 40, 286 P. 24 (1930).

Death of Judge.

Upon the death of a judge, any other judge of the district may carry into effect the execution of a death sentence. State v. Van Vlack, 58 Idaho 248, 71 P.2d 1076 (1937).

Compiler’s Notes.

This section, which comprised 1905, p. 7, § 6; R.C. & C.L., § 3895; C.S., § 6498; I.C.A.,§ 1-906, was repealed by S.L. 1975, ch. 242, § 1.

Cross References.

District magistrates commission,§ 1-2203.

Amendments.

The 2017 amendment, by ch. 173, deleted former subsection (h), which read: “promulgating a schedule of offenses for which magistrates and clerks of court or other designated persons may accept written appearances, waivers of trial, and pleas of guilty, and establishing a schedule of fines and bails therefor,” and redesignated the subsequent subsections accordingly. •Title 1»«Ch. 9»«§ 1-907•

Cross References.

District magistrates commission,§ 1-2203.

Amendments.

Effective Dates.

The 2017 amendment, by ch. 173, deleted former subsection (h), which read: “promulgating a schedule of offenses for which magistrates and clerks of court or other designated persons may accept written appearances, waivers of trial, and pleas of guilty, and establishing a schedule of fines and bails therefor,” and redesignated the subsequent subsections accordingly. Effective Dates.

Section 2 of S.L. 1969, ch. 102 provided that the act should become effective at 12:01 a.m. on January 11, 1971.

Administrative Judge as Judicial Officer.

This section, which lists the powers and duties of an administrative judge, does not include contempt powers. However,§ 1-1603 provides that “[e]very court has power: . . . [t]o compel obedience to its . . . orders . . .,” and§ 1-1901 equips each “judicial officer” with similar powers, and although there is no case law as to whether an administrative judge is classified as a judicial officer, it is reasonable to assume that he is. Crooks v. Maynard, 913 F.2d 699 (9th Cir. 1990).

County Clerks and Bailiffs as State Employees.

County court clerk, deputy clerk and bailiffs were state employees for the purpose of imposing liability for the alleged negligent destruction of evidence under the Idaho Tort Claims Act, where an administrative judge of the district court, rather than any county official, was the supervisor and controlled the deputy clerks of the court, evidence officer, and bailiffs while performing their judicial clerical functions in the handling and destruction of exhibits. Blankenship v. Kootenai County, 125 Idaho 101, 867 P.2d 975 (1994).

Deputy Court Clerk.

This section empowered an administrative judge to enter an order which prevented a deputy clerk of the district court from working in the court system or interfering with the functioning of other deputy clerks. Crooks v. Maynard, 718 F. Supp. 1460 (D. Idaho 1989), aff’d, 913 F.2d 699 (9th Cir. 1990).

Immunity.

A district judge who was also serving as an administrative district judge was cloaked in absolute judicial immunity from liability when he jailed a clerk and deputy clerk of court pursuant to a contempt order even though the judge was not in chambers nor were the parties involved in an adversary proceeding; jurisdiction is construed broadly where the issue is the immunity of a judge. Crooks v. Maynard, 913 F.2d 699 (9th Cir. 1990).

Supervision of Court Clerks.

Effective Dates.

Administrative law judge properly exercised his administrative authority within subdivision (c) of this section in refusing to accept assignment of deputy clerk to perform job assigned by clerk and his action in entering administrative orders that deputy should not perform such assignment was within his power and authority and not subject to restraint through writ of prohibition. Crooks v. Maynard, 112 Idaho 312, 732 P.2d 281 (1987). Effective Dates.

Section 2 of S.L. 1969, ch. 102 provided that the act should become effective at 12:01 a.m. on January 11, 1971.

Administrative Judge as Judicial Officer.

This section, which lists the powers and duties of an administrative judge, does not include contempt powers. However,§ 1-1603 provides that “[e]very court has power: . . . [t]o compel obedience to its . . . orders . . .,” and§ 1-1901 equips each “judicial officer” with similar powers, and although there is no case law as to whether an administrative judge is classified as a judicial officer, it is reasonable to assume that he is. Crooks v. Maynard, 913 F.2d 699 (9th Cir. 1990).

County Clerks and Bailiffs as State Employees.

County court clerk, deputy clerk and bailiffs were state employees for the purpose of imposing liability for the alleged negligent destruction of evidence under the Idaho Tort Claims Act, where an administrative judge of the district court, rather than any county official, was the supervisor and controlled the deputy clerks of the court, evidence officer, and bailiffs while performing their judicial clerical functions in the handling and destruction of exhibits. Blankenship v. Kootenai County, 125 Idaho 101, 867 P.2d 975 (1994).

Deputy Court Clerk.

This section empowered an administrative judge to enter an order which prevented a deputy clerk of the district court from working in the court system or interfering with the functioning of other deputy clerks. Crooks v. Maynard, 718 F. Supp. 1460 (D. Idaho 1989), aff’d, 913 F.2d 699 (9th Cir. 1990).

Immunity.

A district judge who was also serving as an administrative district judge was cloaked in absolute judicial immunity from liability when he jailed a clerk and deputy clerk of court pursuant to a contempt order even though the judge was not in chambers nor were the parties involved in an adversary proceeding; jurisdiction is construed broadly where the issue is the immunity of a judge. Crooks v. Maynard, 913 F.2d 699 (9th Cir. 1990).

Supervision of Court Clerks.

Cited

Administrative law judge properly exercised his administrative authority within subdivision (c) of this section in refusing to accept assignment of deputy clerk to perform job assigned by clerk and his action in entering administrative orders that deputy should not perform such assignment was within his power and authority and not subject to restraint through writ of prohibition. Crooks v. Maynard, 112 Idaho 312, 732 P.2d 281 (1987). Cited Long v. Hendricks, 109 Idaho 73, 705 P.2d 78 (Ct. App. 1985).

Cross References.

Bond,§ 31-2015.

Clerk to be ex officio auditor and recorder, Idaho Const., Art. XVIII, § 6.

County officers,§ 31-2001.

Court seal to be affixed to copies of documents on file in office of clerk,§ 1-1616.

Deputies,§§ 31-2003 to 31-2008.

Election,§ 34-619.

Exceptions to fee schedule,§ 31-3202.

Fees,§§ 31-3201, 31-3201A.

Jury commission, member,§ 2-205.

Jury selection, duties regarding,§ 2-205 et seq.

Law, practicing or having law partner prohibited,§ 31-2014.

Liability for neglect or nonperformance of duties,§ 1-1003.

Minute entry of court proceedings, Idaho R. Civ. P. 77(b).

Oaths, county officers may administer and certify,§ 31-2011.

Office, when open, Idaho R. Civ. P. 77(c).

Orders not requiring allowance of court, grantable by clerk, Idaho R. Civ. P. 77(c).

Primary elections,§ 34-701 et seq.

Qualifications,§ 34-619.

Recall elections,§ 34-1701 et seq.

Recall elections, duties of clerk of district court,§ 34-1706.

Records of clerk, preparation, Idaho App. R. 27, 28.

Records, preservation or disposition, Idaho R. Civ. P. 79(f).

Salary,§ 31-3106.

Compiler’s Notes.

The Code of Civil Procedure is a division of the Idaho Code consisting of Titles 1 through 13. The Penal Code is a division of the Idaho Code consisting of Titles 18 through 20.

Cross References.

Deputies and assistants,§§ 31-2003 — 31-2008.

Cross References.

Bonds of officers generally,§ 31-2015.

Cross References.

Appeals, preparation of record, fees for, Idaho App. R. 27.

Accounting for Fees.

All fees earned by the reporter or his deputy under the provisions of the reporter statutes,§ 1-1101 et seq., must be turned into the state treasury, and the reporter cannot evade that requirement by reducing the stenographic record to narrative form. Keane v. Pittsburg Lead Mining Co., 18 Idaho 711, 112 P. 214 (1910).

Death of Reporter.

Death of court reporter and a showing that his successor could not prepare the transcript was not ground for reversal. State v. Ricks, 34 Idaho 122, 201 P. 827 (1922).

Reporter’s Notes, Court’s Minutes.

Ordinarily the reporter’s notes do not constitute the court’s minutes proper, although they are a record of certain proceedings of a trial. First Nat’l Bank v. Poling, 42 Idaho 636, 248 P. 19 (1925).

ALR.

Failure or refusal of state court judge to have record made of bench conference with counsel in criminal proceeding. 31 A.L.R.5th 704.

Cross References.

Bonds of officers generally,§ 59-801 et seq.

Oath of office,§ 59-401 et seq.

Amendments.

The 2008 amendment, by ch. 33, rewrote the section to remove obsolete language regarding salaries for court reporters and to remove provisions relating to an oath required of court reporters relating to the appropriate order in which to compile transcripts.

Effective Dates.

Section 2 of S.L. 1953, ch. 16 provided the act should be in full force and effect from and after July 1, 1953.

Section 2 of S.L. 1953, ch. 86 provided the act should be in full force and effect from and after July 1, 1953.

Section 4 of S.L. 1957, ch. 315 provided said act should be in full force and effect on and after July 1, 1957.

Section 2 of S.L. 1961, ch. 324 provided the act should be in full force and effect on and after July 1, 1961.

Section 2 of S.L. 1965, ch. 181 provided that the act should be effective on and after July 1, 1965.

Section 2 of S.L. 1967, ch. 355 provided the act should be effective on and after the first day of July, 1967.

Section 2 of S.L. 1969, ch. 191 provided that the act should become effective at 12:01 a.m. on January 11, 1971.

Section 3 of S.L. 1972, ch. 282 provided that the act should be effective on and after July 1, 1972.

Section 2 of S.L. 1974, ch. 162 provided the act should be in full force and effect on and after July 1, 1974.

State Official.

The court reporter is a state official, in view of provisions of this section. Sills v. Sills, 51 Idaho 299, 6 P.2d 1026 (1931).

Closing Arguments.

Where plaintiffs assigned as grounds for their motion for a new trial certain allegedly improper remarks by defendants’ counsel in his closing arguments, but where the reporter’s transcript did not contain the closing arguments of counsel to the jury, plaintiffs failed to show prejudicial error, since it was incumbent upon plaintiffs to object to the improper remarks at the time they were made and to request that the reporter record what had transpired. Annau v. Schutte, 96 Idaho 704, 535 P.2d 1095 (1975).

Although the failure of the trial court to require the court reporter to record closing arguments of counsel in a robbery prosecution was error, the error was not in itself a basis for the presumption on appeal that prejudicial error lie hidden in the prosecuting attorney’s unrecorded closing argument. State v. Wright, 97 Idaho 229, 542 P.2d 63 (1975).

Court Minutes.

The mandatory requirement of recording all oral proceedings and testimony may be effectuated by stenographic or mechanical recording but court minutes or summaries are insufficient. State v. Wright, 97 Idaho 229, 542 P.2d 63 (1975).

In General.

The receiving of defendant’s plea of guilty and sentencing him with no reporter present to take down the proceedings and no clerk present to record the matter was such a lack of fairness and deviation from established rules of procedure as to necessitate the conclusion by the supreme court that the defendant had not been afforded the protection of the due process clauses of the constitutions of the United States and the state. Ebersole v. State, 91 Idaho 630, 428 P.2d 947 (1967); Martinez v. State, 92 Idaho 148, 438 P.2d 893 (1968). •Title 1»«Ch. 11»«§ 1-1103»

Closing Arguments.

Where plaintiffs assigned as grounds for their motion for a new trial certain allegedly improper remarks by defendants’ counsel in his closing arguments, but where the reporter’s transcript did not contain the closing arguments of counsel to the jury, plaintiffs failed to show prejudicial error, since it was incumbent upon plaintiffs to object to the improper remarks at the time they were made and to request that the reporter record what had transpired. Annau v. Schutte, 96 Idaho 704, 535 P.2d 1095 (1975).

Although the failure of the trial court to require the court reporter to record closing arguments of counsel in a robbery prosecution was error, the error was not in itself a basis for the presumption on appeal that prejudicial error lie hidden in the prosecuting attorney’s unrecorded closing argument. State v. Wright, 97 Idaho 229, 542 P.2d 63 (1975).

Court Minutes.

The mandatory requirement of recording all oral proceedings and testimony may be effectuated by stenographic or mechanical recording but court minutes or summaries are insufficient. State v. Wright, 97 Idaho 229, 542 P.2d 63 (1975).

In General.

The receiving of defendant’s plea of guilty and sentencing him with no reporter present to take down the proceedings and no clerk present to record the matter was such a lack of fairness and deviation from established rules of procedure as to necessitate the conclusion by the supreme court that the defendant had not been afforded the protection of the due process clauses of the constitutions of the United States and the state. Ebersole v. State, 91 Idaho 630, 428 P.2d 947 (1967); Martinez v. State, 92 Idaho 148, 438 P.2d 893 (1968). The absence from the record of five or six pages of testimony due to a temporary mechanical failure of the tape recorder being used to record testimony did not invalidate the proceedings of the trial in the absence of a showing by the appellant that proceedings prejudicial to appellant transpired during the period of which no record was made. State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968), cert. denied, 395 U.S. 977, 89 S. Ct. 2129, 23 L. Ed. 2d 765 (1969).

As pre-trial conferences are not required to be recorded by a court reporter, petitioner’s counsel was not deficient for not requesting a court reporter be present at a pre-trial conference. Goodwin v. State, 138 Idaho 269, 61 P.3d 626 (Ct. App. 2002).

Interpreters.

Requiring every discussion held between the parties and their counsel or interpreter to be transcribed by a necessarily bilingual court reporter would be impracticable and would unduly interfere with well-established court procedures. Gonzales v. State, 120 Idaho 759, 819 P.2d 1159 (Ct. App. 1991).

Tradition and common sense dictates that “proceedings,” when used to define what a court should require as part of the transcript, means the conversations between the judge and the parties, their counsel or their interpreter; therefore, neither this section nor Idaho R. Crim. P. 12(g) require transcription of the conversations held at the defense table between the defendant and the interpreter or the defendant and his attorney because these discussions usually are spoken “sotto voce” and are not intended as communications for the court. Gonzales v. State, 120 Idaho 759, 819 P.2d 1159 (Ct. App. 1991).

Mandatory Requirement.

Since the requirement that the reporter correctly report all oral proceedings and testimony is mandatory, a party has no obligation to request a recording nor must he object to a local practice of not recording all proceedings, and it is only on counsel’s waiver with consent of the judge that the mandatory requirements may be waived. State v. Wright, 97 Idaho 229, 542 P.2d 63 (1975).

Partial Transcript.

Where a voir dire of potential jurors was held in the judge’s chambers to determine whether jurors had viewed or heard about defendant wearing handcuffs as he entered the courtroom, and where the transcript of the official court reporter contained the questions asked, but not the jurors’ responses thereto, the defendant could not complain of the failure to include the responses in light of the fact that the record on appeal contained no motion for an addition to the reporter’s transcript to include the responses of the jurors. State v. Youngblood, 117 Idaho 160, 786 P.2d 551 (1990).

Waiver of Recording.

Cited

Where defendant’s counsel waived recording by court reporter of final arguments, defendant’s lack of knowledge of his right to have arguments recorded or of the possible effect of waiving such right did not vitiate that waiver where defendant produced nothing which suggested that counsel acted improperly or for improper reasons in waiving recordation. State v. Stradley, 102 Idaho 41, 624 P.2d 949 (1981). Cited State v. Salazar, 95 Idaho 305, 507 P.2d 1137 (1973); State v. Lovelace, 140 Idaho 73, 90 P.3d 298 (2004).

Cross References.

Costs, taxation of,§ 12-101.

Reporter’s transcript, Idaho App. R. 19, 24 to 26, 29.

Effective Dates.

Section 3 of S.L. 1949, ch. 255 provided that the act should be in full force and effect on and after July 1, 1949.

Section 2 of S.L. 1963, ch. 98 declared an emergency. Approved March 13, 1963. CASE NOTES

Conflict Between Transcript and Minutes.

Where there was a patent ambiguity between the reporter’s transcript and the clerk’s minutes, the court refused to accept the court reporter’s transcript as prima facie evidence of the court proceedings. State v. Salazar, 95 Idaho 305, 507 P.2d 1137 (1973).

“Copy” Defined.

The copy contemplated by this section is a literal copy of such record, containing the questions and answers, the objections made, the exceptions taken, etc., and such record reduced to narrative form by the stenographic reporter is not such a copy as the law contemplates. Keane v. Pittsburg Lead Mining Co., 18 Idaho 711, 112 P. 214 (1910).

Effect as Minutes of Court.

Notes of official court reporter do not constitute court minutes proper, and an appeal will not ordinarily lie from a ruling or order orally made and found only in the reporter’s transcript. First Nat’l Bank v. Poling, 42 Idaho 636, 248 P. 19 (1926).

This section is intended to refer to the court’s rulings on questions of procedure, the admissibility of evidence, motions to elect, motions for nonsuit or directed verdicts, and kindred subjects directly involved in the trial of the cause, and not to final rulings and orders orally announced on collateral issues not directly affecting the trial itself. First Nat’l Bank v. Poling, 42 Idaho 636, 248 P. 19 (1926).

Court reporter’s notes are only a part of the minutes of the court, and absence of reporter’s notes, or an omission therefrom, cannot be taken to indicate that proceedings not recorded by the reporter were not in fact had. Jackson v. State, 87 Idaho 267, 392 P.2d 695 (1964).

Liability of State for Fees.

Under this section, the state is required to pay the reporter’s transcript fee in criminal appeals and civil appeals, and§ 67-2301, which exempts the state from the payment of fees, is inapplicable. State v. McDermott, 111 Idaho 52, 720 P.2d 640 (1986).

Motion for New Trial.

Where motion for new trial is not based on the “minutes of the court” but upon the “files, documents and exhibits in the cause and the affidavits to be produced,” the court may not resort to the reporter’s notes to determine the sufficiency of the evidence to support the verdict. Poitevin v. Randall, 57 Idaho 649, 66 P.2d 1113 (1936). CASE NOTES

Conflict Between Transcript and Minutes.

Where there was a patent ambiguity between the reporter’s transcript and the clerk’s minutes, the court refused to accept the court reporter’s transcript as prima facie evidence of the court proceedings. State v. Salazar, 95 Idaho 305, 507 P.2d 1137 (1973).

“Copy” Defined.

The copy contemplated by this section is a literal copy of such record, containing the questions and answers, the objections made, the exceptions taken, etc., and such record reduced to narrative form by the stenographic reporter is not such a copy as the law contemplates. Keane v. Pittsburg Lead Mining Co., 18 Idaho 711, 112 P. 214 (1910).

Effect as Minutes of Court.

Notes of official court reporter do not constitute court minutes proper, and an appeal will not ordinarily lie from a ruling or order orally made and found only in the reporter’s transcript. First Nat’l Bank v. Poling, 42 Idaho 636, 248 P. 19 (1926).

This section is intended to refer to the court’s rulings on questions of procedure, the admissibility of evidence, motions to elect, motions for nonsuit or directed verdicts, and kindred subjects directly involved in the trial of the cause, and not to final rulings and orders orally announced on collateral issues not directly affecting the trial itself. First Nat’l Bank v. Poling, 42 Idaho 636, 248 P. 19 (1926).

Court reporter’s notes are only a part of the minutes of the court, and absence of reporter’s notes, or an omission therefrom, cannot be taken to indicate that proceedings not recorded by the reporter were not in fact had. Jackson v. State, 87 Idaho 267, 392 P.2d 695 (1964).

Liability of State for Fees.

Under this section, the state is required to pay the reporter’s transcript fee in criminal appeals and civil appeals, and§ 67-2301, which exempts the state from the payment of fees, is inapplicable. State v. McDermott, 111 Idaho 52, 720 P.2d 640 (1986).

Motion for New Trial.

Taxation of Charges as Costs.

Where motion for new trial is not based on the “minutes of the court” but upon the “files, documents and exhibits in the cause and the affidavits to be produced,” the court may not resort to the reporter’s notes to determine the sufficiency of the evidence to support the verdict. Poitevin v. Randall, 57 Idaho 649, 66 P.2d 1113 (1936). Taxation of Charges as Costs.

In order to entitle a party to tax fees of a stenographer as costs, it must appear that the services for which the fees were charged were rendered by the court stenographer and incurred under the provisions of this section. McDonald v. Burke, 3 Idaho 266, 28 P. 440 (1892).

A proceeding before a judge at chambers upon motion to show cause for an injunction is a “suit” in which the prevailing party is entitled to tax the cost of stenographer’s fees. Raft River Land & Cattle Co. v. Langford, 6 Idaho 30, 51 P. 1027 (1898).

Under the rules of this court and this section, the statutory fee paid by a party to the reporter for a transcript of the evidence, to be used on motion for a new trial and appeal, may be taxed as costs against the party finally defeated on appeal. Young v. Extension Ditch Co., 14 Idaho 126, 93 P. 772 (1908).

Transcript Prima Facie Correct.

The transcript in any case certified by the reporter shall be deemed prima facie a correct statement of the testimony taken and the proceedings had. State v. Wallace, 116 Idaho 930, 782 P.2d 53 (Ct. App. 1989).

Transcripts on Review.

The state is not required to purchase a transcript in every case where a defendant cannot afford the transcript, if adequate and effective alternate means for appellate review are made available to indigent defendants. State v. Easley, 156 Idaho 214, 322 P.3d 296 (2014).

Verity Imputed to Certificate.

Prima facie verity is imputed to reporter’s certificate; and this becomes conclusive if no designations of error are timely filed, in which event the certificate is self-sufficient evidence of settlement. Aker v. Aker, 52 Idaho 50, 11 P.2d 372 (1932).

Which Party to Procure.

Either party to a suit, in which a stenographic record has been made, may demand a typewritten copy of a part or the whole thereof. It is not contemplated that each party must procure a transcript of the evidence to prepare his bill, or statement, or amendments thereto; but it does contemplate that the appellant, in the first instance, shall procure such copy and that the respondent may have the benefit thereof. Keane v. Pittsburg Lead Mining Co., 18 Idaho 711, 112 P. 214 (1910).

ALR.

§ 1-1106. Delivery of copy.

It shall be the duty of the reporter to deliver said copy within thirty days after being requested.

History.

1890-1891, p. 233, § 6; reen. 1899, p. 163, § 6; reen. R.C. & C.L., § 3985; C.S., § 6561; I.C.A.,§ 1-1106.

Cross References.

Time for transcript fixed by court order, extension, Idaho App. R. 24.

Compiler’s Notes.

This section, which comprised 1890-1891, p. 233, § 7; reen. 1899, p. 163, § 7; reen. R.C. & C.L., § 3986; C.S., § 6562; am. 1931, ch. 216, § 1, p. 421; I.C.A.,§ 1-1107; am. 1937, ch. 88, § 1, p. 117, was repealed by S.L. 1963, ch. 169, § 3.

Cross References.

Oath, bond, salary and expenses,§ 1-1102.

Compiler’s Notes.

The “Standard Travel Pay and Allowance Act of 1949,” referred to in this section, is S.L. 1949, ch. 161, compiled as§§ 67-2007, 67-2008.

The bracketed insertion in the section heading was added by the compiler to reflect the actual contents of the section.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 30-34; R.S.,§§ 3840-3844; am. 1907, p. 39, § 1; reen. R.C.,§§ 3840-3844; am. 1911, ch. 96, § 1, p. 340; compiled and reen. C.L.,§§ 3840-3844; C.S.,§§ 6465-6469; I.C.A.,§§ 1-1201 — 1-1205; am. 1949, ch. 60, § 1, p. 103; 1965, ch. 167, § 1, p. 328, were repealed by S.L. 1969, ch. 111, § 13.

Sections 1-3 of S.L. 1969, ch. 100 which became effective at 12:01 a.m., January 11, 1971, read:

“SECTION 1. All probate courts, justice of the peace courts, and police courts shall cease to exist on the date as provided in this act. Wherever the words probate court, justice court or police court appear in the Idaho Code they shall mean the district court, or the magistrate’s division of the district court, as the case may be, and any power, duty, responsibility, function or jurisdiction of the probate court, justice court or police court shall be transferred to the district court or the magistrate’s division of the district court, as the case may be. Wherever the words judge, probate judge, justice of the peace or police judge appear in the Idaho Code they shall mean the district judge or the magistrate of the district court, as the case may be, and any power, duty, responsibility, function or jurisdiction of the probate judge, justice of the peace, or police judge shall be transferred to the district judge or the magistrate of the district court, as the case may be.

“SECTION 2. On the effective date of this act, all cases pending on the docket of the probate court shall be transferred to the docket of the district court for the county and be pending in such court, without affecting any bond or obligation in such cases. On the effective date of this act, all functions, facilities and services of the probate court shall be transferred to the district court for the county and be continued in the district court. Judgments entered by the probate court but not yet satisfied, shall be enforceable in the manner provided by law for district court judgments. Civil and criminal matters pending before each probate court shall be continued in the district courts and be subject thereafter to the provisions of law and rules of procedure applicable in the district courts on the effective date of this act. All records, funds, bonds, or any other items pertaining to the cases or facilities transferred shall be forwarded forthwith by the clerk of the probate court to the clerk of the district court.

“SECTION 3. The records and all cases terminated in the probate courts prior to the effective date of this act shall be placed in the custody of the clerk of the district court, and any proceeding to reopen these cases shall be brought there. The clerk of the district court shall have the power to certify the contents of these records in appropriate cases.”

Compiler’s Notes.

These sections, which comprised R.S., §§ 1835, 1836; reen. R.C. & C.L., §§ 1989, 1990; C.S., §§ 3560, 3561; am. 1921, ch. 214, § 1, p. 426; I.C.A.,§§ 1-1301, 1-1302, were repealed by S.L. 1969, ch. 111, § 10.

Section 1 of S.L. 1969, ch. 100 which took effect at 12:01 a.m. on January 11, 1971, read:

“SECTION 1. All probate courts, justice of the peace courts, and police courts shall cease to exist on the date as provided in this act. Wherever the words probate court, justice court or police court appear in the Idaho Code they shall mean the district court, or the magistrate’s division of the district court, as the case may be, and any power, duty, responsibility, function or jurisdiction of the probate court, justice court or police court shall be transferred to the district court or the magistrate’s division of the district court, as the case may be. Wherever the words judge, probate judge, justice of the peace or police judge appear in the Idaho Code they shall mean the district judge or the magistrate of the district court, as the case may be, and any power, duty, responsibility, function or jurisdiction of the probate judge, justice of the peace, or police judge shall be transferred to the district judge or the magistrate of the district court, as the case may be.”

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 35-39, 56; R.S. & R.C.,§§ 3850-3854, 3885; am. 1909, p. 8, § 1; C.L.,§§ 3850-3854, 3885; C.S.,§§ 6470-6474, 6491; I.C.A.,§§ 1-1401 — 1-1406, were repealed by S.L. 1969, ch. 111, § 12.

Sections 1 and 4 of S.L. 1969, ch. 100 which took effect at 12:01 a.m. on January 11, 1971, read:

“SECTION 1. All probate courts, justice of the peace courts, and police courts shall cease to exist on the date as provided in this act. Wherever the words probate court, justice court or police court appear in the Idaho Code they shall mean the district court, or the magistrate’s division of the district court, as the case may be, and any power, duty, responsibility, function or jurisdiction of the probate court, justice court or police court shall be transferred to the district court or the magistrate’s division of the district court, as the case may be. Wherever the words judge, probate judge, justice of the peace or police judge appear in the Idaho Code they shall mean the district judge or the magistrate of the district court, as the case may be, and any power, duty, responsibility, function or jurisdiction of the probate judge, justice of the peace, or police judge shall be transferred to the district judge or the magistrate of the district court, as the case may be.

“SECTION 4. (1) On the effective date of this act, all dockets and records of each justice of the peace shall be transferred to the district court of the county in which the justice precinct is located. Judgments entered by the justice of the peace, but not yet satisfied, shall be enforceable in the manner provided by law for district court judgments. Civil and criminal matters pending before each justice of the peace shall be continued in the district courts and be subject thereafter to the provisions of law and rules of procedure applicable in the district courts on the effective date of this act.

“(2) On the effective date of this act, all dockets and records of each police judge shall be transferred to the district court of the county in which the city is located. Judgments entered by the police judge, but not yet satisfied shall be enforceable in the manner provided by law for district court judgments. Criminal matters pending before each police judge shall be continued in the district courts and be subject thereafter to the provisions of law and rules of procedure applicable in the district courts on the effective date of this act.”

Compiler’s Notes.

These sections, which comprised S.L. 1923, ch. 177,§§ 1-14, p. 272; I.C.A.,§§ 1-1501 — 1-1514; am. 1945, ch. 25, § 1, p. 32; am. 1951, ch. 40, § 1, p. 50; am. 1951, ch. 56, § 1, p. 83; am. 1953, ch. 50, § 1, p. 68; am. Order of Court, June 19, 1961; am. 1969, ch. 151, § 1, p. 477; am. 1969, ch. 169, § 1, p. 504; am. 1969, ch. 241, § 1, p. 757, were repealed by S.L. 1969, ch. 111, § 19.

For present law, see§ 1-2301 et seq.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 40, 41; R.S., R.C., & C.L., §§ 3860, 3861; C.S., §§ 6475, 6476; I.C.A.,§§ 1-1601, 1-1602, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule see Idaho R. Civ. P. 77(b).

Cross References.

Contempt proceedings,§ 7-601 et seq.

Oaths of officers generally,§ 59-401 et seq.

Similar powers of judicial officers,§ 1-1901.

View of premises or property by jury, Idaho R. Civ. P. 43(f).

Action of the Judge on Misconduct of Others.

It is within the power of the judge to administer an admonition or deliver a rebuke to a counsel, party, bystander, or witness for misconduct or improprieties, and the course of the judge therein rests largely in his sound discretion. It is a dangerous practice to order the arrest of a witness or party for perjury during the trial and in the presence of the jury, as it will generally work a reversal. So, too, the trial judge should be careful even in administering a rebuke and not permit it to take on the aspect of severity; the danger of such rebuke is that it might prejudice the jury against the party who had called the witness. State v. Clark, 27 Idaho 48, 146 P. 1107 (1915).

An assignment claiming prejudicial error for an outcry, “You lie!” by the wife of the complaining witness, while accused was testifying, was held not reviewable, where no request was made to have the jury instructed relative to the incident, nor to have the wife reprimanded, and no exception was taken. State v. Cox, 55 Idaho 694, 46 P.2d 1093 (1935).

Administrative Judge as Judicial Officer.

Section 1-907, which lists the powers and duties of an administrative judge, does not include contempt powers. However, this section provides that “[e]very court has power: . . . [t]o compel obedience to its . . . orders . . . ,” and§ 1-1901 equips each “judicial officer” with similar powers; although there is no case law as to whether an administrative judge is classified as a judicial officer, it is reasonable to assume that he is. Crooks v. Maynard, 913 F.2d 699 (9th Cir. 1990).

Amendment and Control of Orders.

This section does not authorize a motion for a new trial in the supreme court in an original proceeding instituted in and disposed of by that court. People ex rel. Lincoln County v. George, 3 Idaho 108, 27 P. 680 (1891).

Where the probate court, by inadvertence, confirms a sale of real estate to the wrong person, it may subsequently vacate the order of confirmance and enter a proper order. State ex rel. Chemung Mining Co. v. Cunningham, 6 Idaho 113, 53 P. 451 (1898).

Trial court in granting a rehearing on a prior order must protect legitimate rights acquired under the prior order. J.I. Case Co. v. McDonald, 76 Idaho 223, 280 P.2d 1070 (1955).

Trial court, before the time for appeal from order dissolving attachment had expired, was entitled to reconsider its order and grant a rehearing. J.I. Case Co. v. McDonald, 76 Idaho 223, 280 P.2d 1070 (1955).

Amendment and Control of Process.

The court may quash an execution issued without authority of law after the taking of an appeal and filing of a supersedeas bond. Miller v. Pine Mining Co., 3 Idaho 603, 32 P. 207 (1893).

The court may order a summons withdrawn from the files and served after it has become a file of the court. Harpold v. Doyle, 16 Idaho 671, 102 P. 158 (1908).

The court may order a defective summons so amended as to conform to the requirements of the statute and, after amendment, may order it withdrawn from the files and served. Ridenbaugh v. Sandlin, 14 Idaho 472, 94 P. 827 (1908); Empire Mill Co. v. District Court, 27 Idaho 383, 149 P. 499, writ denied, 27 Idaho 400, 149 P. 505 (1915).

Construction.

Where a statute authorizes a court to modify its orders, such a statute should be liberally construed. J.I. Case Co. v. McDonald, 76 Idaho 223, 280 P.2d 1070 (1955).

Contempt Power.

While title 7, chapter 6, Code, provides statutory guidance with respect to contempts, it may not constitutionally circumscribe the judicial power conferred by Const., Art. V, § 2, the power recognized by this section or the inherent common-law contempt power. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Section 7-611, governing contempt by omission, does not preclude alternative civil sanctions under the common law or this section; in such instances, the coercive force may be implemented by means of prospective conditional fines. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Where the primary purpose of the contempt order against defendant, entered after she pled guilty to driving under the influence, was to coerce compliance with the court’s order, the contempt order was a civil contempt order and no statute of limitations applied. State v. Schorzman, 129 Idaho 313, 924 P.2d 214 (1996).

Bail bondsman’s contractual obligation to pay forfeited bond was a civil liability enforceable by the prosecuting attorney in a separate civil action, and district court was without authority to enforce payment of the bond forfeiture under the penalty of contempt. State v. Rocha, 131 Idaho 113, 952 P.2d 1249 (Ct. App. 1998).

Warrants of attachment arise from the contempt power of the court. State v. Hall, 132 Idaho 751, 979 P.2d 624 (1999).

In a dispute over an access easement, the district court did not abuse its discretion by entering an injunction against appellant for contempt because the district court simply ordered the parties to continue abiding by the terms of the stipulated judgment — terms to which they were already bound. That action clearly fell within the judge’s authority to compel obedience. Steiner v. Gilbert, 144 Idaho 240, 159 P.3d 877 (2007).

Correction of Records.

Courts of record always have jurisdiction over their own records to make them conform to the facts. State v. Winter, 24 Idaho 749, 135 P. 739 (1913).

Every court of record has inherent power to correct its records, so that such records will correctly show orders and directions which were made by court, and this power is not lost by lapse of time. State v. Douglass, 35 Idaho 140, 208 P. 236 (1920); Hample v. McKinney, 48 Idaho 221, 281 P. 1 (1929).

Power to correct records of court extends to criminal as well as civil cases. State v. Douglass, 35 Idaho 140, 208 P. 236 (1922).

The court cannot, under the form of amendment of its records, correct a judicial error or make of record an order or judgment that was in fact never given. State v. Douglass, 35 Idaho 140, 208 P. 236 (1922).

In exercise of power of correction of records, a court is not authorized to do more than make records correspond to actual facts. State v. Douglass, 35 Idaho 140, 208 P. 236 (1922).

Where, through mistake, there has been a failure to enter the judgment pronounced, the court has power to correct the matter and to order the proper entry made. Clerical mistakes may be corrected in this way, but judicial errors may only be remedied by motion for new trial or by appeal. Occidental Life Ins. Co. v. Niendorf, 55 Idaho 521, 44 P.2d 1099 (1935).

Where a statute authorizes a court to modify its orders, such a statute should be liberally construed. J.I. Case Co. v. McDonald, 76 Idaho 223, 280 P.2d 1070 (1955).

Contempt Power.

While title 7, chapter 6, Code, provides statutory guidance with respect to contempts, it may not constitutionally circumscribe the judicial power conferred by Const., Art. V, § 2, the power recognized by this section or the inherent common-law contempt power. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Section 7-611, governing contempt by omission, does not preclude alternative civil sanctions under the common law or this section; in such instances, the coercive force may be implemented by means of prospective conditional fines. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Where the primary purpose of the contempt order against defendant, entered after she pled guilty to driving under the influence, was to coerce compliance with the court’s order, the contempt order was a civil contempt order and no statute of limitations applied. State v. Schorzman, 129 Idaho 313, 924 P.2d 214 (1996).

Bail bondsman’s contractual obligation to pay forfeited bond was a civil liability enforceable by the prosecuting attorney in a separate civil action, and district court was without authority to enforce payment of the bond forfeiture under the penalty of contempt. State v. Rocha, 131 Idaho 113, 952 P.2d 1249 (Ct. App. 1998).

Warrants of attachment arise from the contempt power of the court. State v. Hall, 132 Idaho 751, 979 P.2d 624 (1999).

In a dispute over an access easement, the district court did not abuse its discretion by entering an injunction against appellant for contempt because the district court simply ordered the parties to continue abiding by the terms of the stipulated judgment — terms to which they were already bound. That action clearly fell within the judge’s authority to compel obedience. Steiner v. Gilbert, 144 Idaho 240, 159 P.3d 877 (2007).

Correction of Records.

Courts of record always have jurisdiction over their own records to make them conform to the facts. State v. Winter, 24 Idaho 749, 135 P. 739 (1913).

Every court of record has inherent power to correct its records, so that such records will correctly show orders and directions which were made by court, and this power is not lost by lapse of time. State v. Douglass, 35 Idaho 140, 208 P. 236 (1920); Hample v. McKinney, 48 Idaho 221, 281 P. 1 (1929).

Power to correct records of court extends to criminal as well as civil cases. State v. Douglass, 35 Idaho 140, 208 P. 236 (1922).

The court cannot, under the form of amendment of its records, correct a judicial error or make of record an order or judgment that was in fact never given. State v. Douglass, 35 Idaho 140, 208 P. 236 (1922).

In exercise of power of correction of records, a court is not authorized to do more than make records correspond to actual facts. State v. Douglass, 35 Idaho 140, 208 P. 236 (1922).

Where, through mistake, there has been a failure to enter the judgment pronounced, the court has power to correct the matter and to order the proper entry made. Clerical mistakes may be corrected in this way, but judicial errors may only be remedied by motion for new trial or by appeal. Occidental Life Ins. Co. v. Niendorf, 55 Idaho 521, 44 P.2d 1099 (1935). On a mortgage foreclosure, where the decree was defective as first entered in not naming the defendant personally liable for payment of the mortgage debt, the same may be amended at any time by adding a clause designating the defendant personally liable, where the record clearly shows who he is. Donaldson v. Henry, 63 Idaho 467, 121 P.2d 445 (1941).

Record disclosing transferee assumed and promised to pay mortgage debt authorized an amendment of decree of foreclosure. Donaldson v. Henry, 63 Idaho 467, 121 P.2d 445 (1941).

The power of a court to amend its record is limited to making such records correspond to actual facts, but it cannot, under the form of amending its records, correct judicial errors or make of record an order or judgment not in fact given. Donaldson v. Henry, 63 Idaho 467, 121 P.2d 445 (1941).

Record disclosing liability of husband mortgagor authorized an amendment of the foreclosure decree. Donaldson v. Henry, 63 Idaho 467, 121 P.2d 445 (1941).

Dismissal of Proceeding.

Dismissal of proceeding is an appropriate means of enforcing order of court. Perry v. Perkins, 73 Idaho 4, 245 P.2d 405 (1952).

Enforcement of Judgment.

Magistrate court had authority under subsection (1) of this section to consider a wife’s motion to adjust an equalization payment due to her in a divorce proceeding as an action to enforce the judgment. Vierstra v. Vierstra, 153 Idaho 873, 292 P.3d 264 (2012).

Immunity.

A district judge who was also serving as an administrative district judge was cloaked in absolute judicial immunity from liability when he jailed a clerk and deputy clerk of court pursuant to a contempt order even though the judge was not in chambers nor were the parties involved in an adversary proceeding; jurisdiction is construed broadly where the issue is the immunity of a judge. Crooks v. Maynard, 913 F.2d 699 (9th Cir. 1990).

Imposition of Lien.

A district court’s imposition of a “lien” upon a mining partnership’s machinery and claims in order to secure the costs of preparing a land restoration plan and contingent restoration costs was an action which, in effect, replaced the security ordinarily assured by the statutory bond required by§ 47-1317 and was within the inherent power of the court under this section to insure compliance not only with the intent of the statute but also with its own related orders. State ex rel. Evans v. Click, 102 Idaho 443, 631 P.2d 614 (1981), cert. denied, 457 U.S. 1116, 102 S. Ct. 2927, 73 L. Ed. 2d 1328 (1982).

The post-judgment imposition of a “lien” to ensure compliance with a court’s order is within the inherent power of the court to insure compliance with not only the intent of this section, but also its own related orders. When the matter has been appealed, the “lien” may be upheld under Idaho R. Civ. P. 65(e)(3), which grants the court power to grant, suspend or modify an injunction during the pendency of an appeal, upon imposition of sufficient security through bonds or other means to preserve the subject matter of the litigation and the rights of the parties. Wolford v. Montee, 161 Idaho 432, 387 P.3d 100 (2016).

Cited Crooks v. Maynard, 851 F.2d 1562 (9th Cir. 1988); Smith v. Smith, 136 Idaho 120, 29 P.3d 956 (Ct. App. 2001). RESEARCH REFERENCES

Am. Jur. 2d.

46 Am. Jur. 2d, Judgments, § 130 et seq.

C.J.S.

21 C.J.S., Courts, § 274 et seq.

ALR.

Disqualification of judge in proceedings to punish contempt against or involving himself or court of which he is a member. 37 A.L.R.4th 1004.

Construction of provision in federal criminal procedure rule 42(b) that if contempt charges involve disrespect to or criticism of judge, he is disqualified from presiding at trial or hearing except with defendant’s consent. 3 A.L.R. Fed. 420.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 43, 44; R.S., R.C., & C.L., §§ 3863, 3864; C.S., §§ 6478, 6479; I.C.A.,§§ 1-1604, 1-1605, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 1(c).

Cross References.

Legal holidays,§ 73-108.

Effective Dates.

Section 2 of S.L. 1971, ch. 84 declared an emergency. Approved March 8, 1971.

Execution Sales.

An execution sale is a ministerial act, rather than “judicial business” as that term is used in this section, and execution sales conducted on holidays are valid. Ketterer v. Billings, 106 Idaho 832, 683 P.2d 868 (1984).

Particular Acts Permitted.

The statute prohibits judicial but not ministerial acts on a non-judicial day; consequently, the issuance of letters of administration on Christmas is not a void act where the appointment is made on another day. Glendenning v. McNutt, 1 Idaho 592 (1875).

The filing of a complaint on Sunday and the issuance of a summons thereon is a ministerial act and is not prohibited by this section, although the action is not one in which an order of arrest or writ of attachment, injunction or prohibition is sought. Havens v. Stiles, 8 Idaho 250, 67 P. 919 (1902). •Title 1»«Ch. 16»«§ 1-1607»

Cross References.

Legal holidays,§ 73-108.

Effective Dates.

Section 2 of S.L. 1971, ch. 84 declared an emergency. Approved March 8, 1971.

Execution Sales.

An execution sale is a ministerial act, rather than “judicial business” as that term is used in this section, and execution sales conducted on holidays are valid. Ketterer v. Billings, 106 Idaho 832, 683 P.2d 868 (1984).

Particular Acts Permitted.

The statute prohibits judicial but not ministerial acts on a non-judicial day; consequently, the issuance of letters of administration on Christmas is not a void act where the appointment is made on another day. Glendenning v. McNutt, 1 Idaho 592 (1875).

The filing of a complaint on Sunday and the issuance of a summons thereon is a ministerial act and is not prohibited by this section, although the action is not one in which an order of arrest or writ of attachment, injunction or prohibition is sought. Havens v. Stiles, 8 Idaho 250, 67 P. 919 (1902). An objection to the panel of a jury in a criminal prosecution on the ground that some of the jurors were summoned under a special venire on Sunday was properly overruled. State v. Gilbert, 8 Idaho 346, 69 P. 62 (1902).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 47-50; R.S., R.C., & C.L.,§§ 3867-3870; C.S.,§§ 6482-6485; I.C.A.,§§ 1-1608 — 1-1611, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 77(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 51; R.S., R.C., & C.L., § 3871; C.S., § 6486; I.C.A.,§ 1-1612, was repealed by S.L. 2006, ch. 142, § 1.

Prior Laws.

Former§ 1-1613, which comprised C.C.P. 1881, § 52; R.S., R.C., & C.L., § 3872; C.S., § 6487; I.C.A.,§ 1-1613, was repealed by S.L. 1976, ch. 133, § 1.

Effective Dates.

Section 2 of S.L. 1969, ch. 105 provided that the act should be effective at 12:01 a.m. on January 11, 1971.

Effect of Omission of Seal.

The omission of the seal of the court on a writ or process is not fatal. It is a mere irregularity and does not render the process void. Harpold v. Doyle, 16 Idaho 671, 102 P. 158 (1908).

Habeas Corpus.

An order for the temporary care pending the hearing of the person whose custody is the subject of a writ of habeas corpus need not be issued and signed by the clerk under the seal of the court. In re Dowling, 4 Idaho 715, 43 P. 871 (1896).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 67, 68; R.S., R.C., & C.L., §§ 3920, 3921; C.S., §§ 6506, 6507; I.C.A.,§§ 1-1617, 1-1618, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 11(a)(2).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 69; R.S., R.C., & C.L., § 3933; C.S., § 6508; I.C.A.,§ 1-1619, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 70, 71; R.S., R.C., & C.L., §§ 3923, 3924; C.S., §§ 6509, 6510; I.C.A.,§§ 1-1620, 1-1621, were repealed by S.L. 1975, ch. 242, § 1. For present rule see, Idaho R. Civ. P. 10(a)(3).

Compiler’s Notes.

The words “this code” refer to the Code of Civil Procedure, which is currently a division of the Idaho Code consisting of Titles 1 through 13.

Adoption.

This section, which requires the court to adopt any suitable process or mode of process which appears most comfortable to the spirit of the code, is not applicable to permit the court to establish the procedure for adult adoption, for this is an area which is entirely statutory and should be established by the legislature. Melling v. Chaney, 126 Idaho 554, 887 P.2d 1061 (1994). •Title 1»«Ch. 16»«§ 1-1622»

Compiler’s Notes.

The words “this code” refer to the Code of Civil Procedure, which is currently a division of the Idaho Code consisting of Titles 1 through 13.

Adoption.

Alimony.

This section, which requires the court to adopt any suitable process or mode of process which appears most comfortable to the spirit of the code, is not applicable to permit the court to establish the procedure for adult adoption, for this is an area which is entirely statutory and should be established by the legislature. Melling v. Chaney, 126 Idaho 554, 887 P.2d 1061 (1994). Alimony.

Where the court had jurisdiction of both the parties and the subject matter, an order authorizing the withholding of payments to divorced wife under an alimony contract made part of the decree of divorce was not void for want of jurisdiction, however irregular or erroneous such order might be. McDonald v. McDonald, 55 Idaho 102, 39 P.2d 293 (1934).

Where divorce decree did not award alimony and became final by operation of law, no appeal having been taken and the time for modification or amendment having expired, district court was without jurisdiction to entertain petition for modification of divorce decree. McDonald v. McDonald, 56 Idaho 444, 55 P.2d 827 (1936).

Appellate Practice.

This section does not authorize the court to require an undertaking on appeal additional to the one required by statute applicable to the given case. Barnes v. Buffalo Pitts Co., 6 Idaho 519, 57 P. 267 (1899).

The district court, upon the reversal of a judgment on appeal from a probate or justice’s court on question of law alone, where no issue of fact was tendered in the lower court, should remand the cause with instructions to proceed in accordance with the decision and judgment of the district court. Smith v. Clyne, 15 Idaho 254, 97 P. 40 (1908).

Completeness of Jurisdiction.

When jurisdiction is conferred upon a court, as an incident of such grant, there is conferred the power to make same effective by suitable process or mode of procedure. Fox v. Flynn, 27 Idaho 580, 150 P. 44 (1915).

When the court has jurisdiction of subject matter and parties, it may hear and determine all questions essential to a decision on the merits and issue such writs as may be necessary to carry its decree into effect. McDonald v. McDonald, 55 Idaho 102, 39 P.2d 293 (1934).

In the exercise of its inherent judicial power, the court may use the common law or other appropriate method if the statute or rule does not describe the procedure. J.I. Case Co. v. McDonald, 76 Idaho 223, 280 P.2d 1070 (1955).

Contempt.

Although the proper remedy of one adjudged in contempt of court is by extraordinary writ and not by appeal, the supreme court, where the appeal was not challenged by the respondent, had jurisdiction to consider and resolve the appeal on its merits. Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967).

Criminal Procedure.

Absent legislative direction, the supreme court not only has the authority, but the duty, to adopt procedures designed to safeguard the rights of an accused to a fair and impartial trial. State v. Johnson, 86 Idaho 51, 383 P.2d 326 (1963).

Custody of Children on Divorce.

As there is no statutory procedure prescribed for vacating or modifying a decree awarding custody of children on divorce, this section is applicable. Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252 (1933).

Custody of Children on Habeas Corpus.

A temporary order, providing for the custody of a child pending habeas corpus proceedings in relation to the same, may be issued at chambers and without the seal of the court. In re Miller, 4 Idaho 711, 43 P. 870 (1896); In re Dowling, 4 Idaho 715, 43 P. 871 (1896).

In habeas corpus proceedings for custody of a child, the court may issue an order nisi requiring the child to be committed to the custody of the applicant until the hearing, where the facts show that the health of the child is endangered in its present environment and that it is also dangerous, in view of the inclemency of the season or other conditions, to bring the child before the court for immediate hearing. In re Miller, 4 Idaho 711, 43 P. 870 (1896).

Dismissal of Proceeding.

Dismissal of proceeding is an appropriate means of enforcing order of court. Perry v. Perkins, 73 Idaho 4, 245 P.2d 405 (1952).

Inherent Power.

Although a proceeding brought by a city to set aside an order issued pursuant to§ 1-2218, which obligated the city to provide facilities for a magistrate division of the district court, was not truly a civil action, the district judges have an inherent power, codified in this section, to consider the standards in Idaho R. Civ. P. 24(a) and allow a county which would be adversely affected by the set aside, to intervene. City of Boise v. Ada County (In re Facilities & Equip. Provided by the City of Boise), 147 Idaho 794, 215 P.3d 514 (2009).

Physical Examination of Plaintiff.

A court has power to order physical examination of plaintiff, and, where plaintiff refuses to submit thereto, the court also has power to dismiss the plaintiff’s case. Greenhow v. Whitehead’s, Inc., 67 Idaho 262, 175 P.2d 1007 (1946).

It was abuse of discretion for court to order plaintiff to submit to physical examination on the same day of entry of order, precluding plaintiff the opportunity to have her own physician present. Greenhow v. Whitehead’s, Inc., 67 Idaho 262, 175 P.2d 1007 (1946).

In ordering physical examination, court must give due regard to plaintiff’s health, time and place, and, though requiring prompt compliance, the order should be reasonable as to all parties, permitting plaintiff to have present such reasonable number of attendants as she may desire. Greenhow v. Whitehead’s, Inc., 67 Idaho 262, 175 P.2d 1007 (1946).

Powers of Substitute Judge.

A judge of one district, called into another district to try a case pending in that district, has all the powers of the judge of that district for the purposes of the case and may make an order extending the time for preparing and presenting statements and bills of exceptions, or for filing affidavits on motion for new trial. Morris v. Lemp, 13 Idaho 116, 88 P. 761 (1907).

Property Settlement.

Where husband resided in California and a contempt process had no effect upon him, Idaho magistrate, who issued divorce decree, properly exercised continuing jurisdiction by ordering the Air Force Accounting Center to make monthly payments from former husband’s military retirement fund to former wife to make up for arrearages in payments promised in a property settlement for wife’s release of her community interest in those benefits. Ratkowski v. Ratkowski, 115 Idaho 692, 769 P.2d 569 (1989). As there is no statutory procedure prescribed for vacating or modifying a decree awarding custody of children on divorce, this section is applicable. Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252 (1933).

Custody of Children on Habeas Corpus.

A temporary order, providing for the custody of a child pending habeas corpus proceedings in relation to the same, may be issued at chambers and without the seal of the court. In re Miller, 4 Idaho 711, 43 P. 870 (1896); In re Dowling, 4 Idaho 715, 43 P. 871 (1896).

In habeas corpus proceedings for custody of a child, the court may issue an order nisi requiring the child to be committed to the custody of the applicant until the hearing, where the facts show that the health of the child is endangered in its present environment and that it is also dangerous, in view of the inclemency of the season or other conditions, to bring the child before the court for immediate hearing. In re Miller, 4 Idaho 711, 43 P. 870 (1896).

Dismissal of Proceeding.

Dismissal of proceeding is an appropriate means of enforcing order of court. Perry v. Perkins, 73 Idaho 4, 245 P.2d 405 (1952).

Inherent Power.

Although a proceeding brought by a city to set aside an order issued pursuant to§ 1-2218, which obligated the city to provide facilities for a magistrate division of the district court, was not truly a civil action, the district judges have an inherent power, codified in this section, to consider the standards in Idaho R. Civ. P. 24(a) and allow a county which would be adversely affected by the set aside, to intervene. City of Boise v. Ada County (In re Facilities & Equip. Provided by the City of Boise), 147 Idaho 794, 215 P.3d 514 (2009).

Physical Examination of Plaintiff.

A court has power to order physical examination of plaintiff, and, where plaintiff refuses to submit thereto, the court also has power to dismiss the plaintiff’s case. Greenhow v. Whitehead’s, Inc., 67 Idaho 262, 175 P.2d 1007 (1946).

It was abuse of discretion for court to order plaintiff to submit to physical examination on the same day of entry of order, precluding plaintiff the opportunity to have her own physician present. Greenhow v. Whitehead’s, Inc., 67 Idaho 262, 175 P.2d 1007 (1946).

In ordering physical examination, court must give due regard to plaintiff’s health, time and place, and, though requiring prompt compliance, the order should be reasonable as to all parties, permitting plaintiff to have present such reasonable number of attendants as she may desire. Greenhow v. Whitehead’s, Inc., 67 Idaho 262, 175 P.2d 1007 (1946).

Powers of Substitute Judge.

A judge of one district, called into another district to try a case pending in that district, has all the powers of the judge of that district for the purposes of the case and may make an order extending the time for preparing and presenting statements and bills of exceptions, or for filing affidavits on motion for new trial. Morris v. Lemp, 13 Idaho 116, 88 P. 761 (1907).

Property Settlement.

Quo Warranto Proceedings.

Where husband resided in California and a contempt process had no effect upon him, Idaho magistrate, who issued divorce decree, properly exercised continuing jurisdiction by ordering the Air Force Accounting Center to make monthly payments from former husband’s military retirement fund to former wife to make up for arrearages in payments promised in a property settlement for wife’s release of her community interest in those benefits. Ratkowski v. Ratkowski, 115 Idaho 692, 769 P.2d 569 (1989). Quo Warranto Proceedings.

Where, notwithstanding a judgment of ouster in quo warranto proceedings, the person ousted takes possession of the office in open and direct violation of the judgment, the court may issue an order putting the person declared by the judgment entitled to the office in possession thereof. People v. Lindsay, 1 Idaho 394 (1871).

Recall of Remittitur.

Where court has determined a question not properly before it and entered a finding thereon in its judgment, it may recall its remittitur for purpose of correcting its judgment and limiting same to a decision of question presented. Maloney v. Zipf, 41 Idaho 30, 237 P. 632 (1925).

Specific Performance.

Court was empowered to order clerk to make deed to purchaser complying with contract for sale of property. Glancy v. Williams, 50 Idaho 109, 293 P. 665 (1930).

Supreme Court Drafting Procedure.

Supreme court has authority to draft its own procedure in entertaining jurisdiction of petition attacking validity of short title assigned to initiative measure. In re Idaho State Fed’n of Labor, 75 Idaho 367, 272 P.2d 707 (1955).

Trespass of Animals.

In pursuance of the authority of this statute and the right of action conferred by former law regarding limitations on herding sheep, it is proper for a justice’s court to proceed under the provisions of former law regarding the trespass of animals in a case where it is charged that the owner of trespassing sheep is unknown to the plaintiff, and that he is unable to ascertain the name of the owner, and the animals are taken into the possession of the plaintiff in the action and subsequently delivered to the officer who levies upon them under the execution issued by the justice. Cleveland v. Wallace, 23 Idaho 570, 131 P. 10 (1913).

Writ of Assistance.

Writ of assistance, a process issued out of a court of equity to transfer possession of land, the title to which has been adjudicated, is the proper remedy to place purchaser of mortgaged premises in possession; the power to issue the writ in this state is not derived from any statute but from the practice which obtained at common law. Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

Upon application for writ of assistance, no question determined by the original decree can be litigated nor can the original case be reviewed and the sole question is the applicant’s right, as against the party in possession, to use the writ to obtain possession. Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939). The judge may grant a writ of assistance in vacation at chambers where the records showed a stipulation of counsel dictated to the court reporter, and reduced to writing by him, consenting to try a motion for the issuance of such writ at chambers before the judge. Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

ALR.

§ 1-1623. Court technology fund — Annual report.

1. There is hereby created in the office of the state treasurer the court technology fund. Moneys deposited into the fund pursuant to sections 1-2303, 1-2311, 10-1305, 31-3201, 31-3201A, 31-3201H and 31-3221, Idaho Code, upon appropriation by the legislature, shall be used by the supreme court for the purpose of maintaining, replacing and enhancing the court technology program, and other technologies that assist in the efficient management of the courts or that improve access to the courts and court records including, but not limited to, a system for payments by credit card or debit card as provided in section 31-3221, Idaho Code, development of electronic filing of documents in court cases, video conferencing and electronic access to court records. The court technology fund shall be separate and distinct from the state general fund, and expenditures from the court technology fund shall be solely dedicated to the purposes set forth in this section. Moneys deposited into the fund may be allowed to accumulate from year to year for designated maintenance, replacement, extension or enhancement of the court technology program and for other technologies that assist in the efficient management of the courts. Interest earned on the investment of idle moneys in the court technology fund shall be returned to the court technology fund.
2. On or before the first day of each legislative session, the supreme court shall provide an annual report for the previous fiscal year to the governor, the chairman of the judiciary and rules committee of the senate, the chairman of the judiciary, rules and administration committee of the house of representatives and the chairmen of the joint finance-appropriations committee that summarizes the status of the court technology fund, the maintenance, replacement, extension or enhancement of court technology, and the manner and extent to which court technology has advanced the timely resolution of cases, improved access to the courts, produced savings and made more effective use of judicial resources.

History.

I.C.,§ 1-1623, as added by 1997, ch. 28, § 1, p. 48; am. 1998, ch. 76, § 2, p. 274; am. 2005, ch. 240, § 1, p. 743; am. 2006, ch. 73, § 1, p. 226; am. 2010, ch. 205, § 1, p. 446; am. 2014, ch. 190, § 1, p. 506.

Amendments.

The 2006 amendment, by ch. 73, in the first sentence, inserted “and 31-3221” and “including a system for payments by credit card or debit card as provided in section 31-3221, Idaho Code”; and added “and for other technologies that assist in the efficient management of the courts” at the end of the third sentence. •Title 1»«Ch. 16»«§ 1-1623»

Amendments.

The 2006 amendment, by ch. 73, in the first sentence, inserted “and 31-3221” and “including a system for payments by credit card or debit card as provided in section 31-3221, Idaho Code”; and added “and for other technologies that assist in the efficient management of the courts” at the end of the third sentence. The 2010 amendment, by ch. 205, inserted “31-3201H” in the first sentence.

The 2014 amendment, by ch. 190, rewrote the section to the extent that a detailed comparison is impracticable, changing “Idaho statewide trial court automated records system technology fund” or “ISTARS technology fund” to “court technology fund” and adding subsection (2).

Effective Dates.

Section 4 of S.L. 1997, ch. 28, read: “This act shall be in full force and effect on and after July 1, 1997, and the additional fees provided for herein shall apply to criminal and infraction offenses committed on or after July 1, 1997, and shall apply to civil case filing and appearances occurring on or after July 1, 1997.” Approved March 12, 1997.

Cross References.

State tax commission,§ 63-101.

Amendments.

The 2017 amendment, by ch. 277, substituted “such delinquent debts” for “these amounts” at the end of subsection (1); redesignated and rewrote subsection (3), which formerly read: “A ‘debt owed to the courts’ means any assessment of fines, court costs, surcharges, penalties, fees, restitution, moneys expended in providing counsel and other defense services to indigent defendants, or other charges which a court judgment has ordered to be paid to the court or which a party has agreed to pay in criminal or civil cases and includes any interest or penalty on such unpaid amounts as provided for in the judgment or by law, except this section does not apply to a debt owed to the courts which does not exceed the sum of fifty dollars ($50.00). A debt owed to the courts is delinquent when it is not paid according to the terms of the judgment or order or any agreement entered into between the court and the taxpayer for the payment thereof” as present subsections (3), (5) and (6), adding present subsection (4); redesignated former subsections (4) to (10) as present subsections (7) to (13); in present subsection (8), substituted the occurrence of “objection to”, “objection” and “an objection” for “request for an administrative waiver of” near the middle and at the end of the second sentence and near the end of the third sentence in paragraph (d); in present subsection (9), substituted “subsection (8)(d) of this section” for “subsection (5)(d) of this section” near the middle of the first sentence and substituted “objection to” for “request for an administrative waiver of” near the beginning of the second sentence; and substituted “subsection (8)(d) of this section” for “subsection (5)(d) of this section” near the end of present subsection (10).

The 2019 amendment, by ch. 220, rewrote subsection (3), which formerly read: “A ‘debt owed to the courts’ means fines, court costs, surcharges, penalties, fees, restitution, moneys expended in providing counsel and other defense services to indigent defendants, or other charges assessed and contained in a judgment against, or in an agreement by, a defendant in a criminal proceeding and owed to the court, including any interest or penalty on the same as provided for in such judgment, such agreement or by law”; in subsection (4), substituted “subsections (3) and (5) of this section” for “subsections (3) and (6) of this section” near the beginning of the introductory paragraph, and substituted “subsection (7)(d) of this section” for “subsection (8)(d) of this section” near the end of paragraph (d); deleted former subsection (5), which read: “This section does not apply to a debt owed to the courts which does not exceed the sum of fifty dollars ($ 50.00)”, and redesignated the subsequent subsections accordingly; and substituted “subsection (7)(d) of this section” for “subsection (8)(d) of this section” near the middle of the first sentence in subsection (8) and near the end of subsection (9).

Compiler’s Notes.

S.L. 2003, ch. 288, § 1, and ch. 291, § 2, both effective July 1, 2003, purported to enact a new section of chapter 16, title 1, Idaho Code, designated as§ 1-1624. Section 1-1624 as enacted by ch. 288, § 1 was compiled as§ 1-1624, and§ 1-1624 as enacted by ch. 291, § 2, was compiled as § [1-1625] 1-1624. The section added by S.L. 2003, ch. 291 was permanently redesignated as §1-1625 by S.L. 2004, ch. 318, § 1.

Amendments.

The 2010 amendment, by ch. 205, inserted “and 31-3201H.”

The 2016 amendment, by ch. 34, substituted “sections 19-4705 and 23-217” for “sections 19-4705, 23-217 and 31-3201H” near the beginning of the second sentence.

Compiler’s Notes.

S.L. 2003, ch. 288, § 1, and ch. 291, § 2, both effective July 1, 2003, purported to enact a new section of chapter 16, title 1, Idaho Code, designated as§ 1-1624. Section 1-1624 as enacted by ch. 288, § 1 was compiled as§ 1-1624, and§ 1-1624 as enacted by ch. 291, § 2, was compiled as § [1-1625] 1-1624. The section added by S.L. 2003, ch. 291 was permanently redesignated as §1-1625 by S.L. 2004, ch. 318, § 1.

Effective Dates.

Section 14 of S.L. 2004, ch. 318 declared an emergency. Approved March 24, 2004.

Compiler’s Notes.

This section, which comprised R.C. & C.L., § 211; C.S., § 188; I.C.A.,§ 1-1701, was repealed by S.L. 1969, ch. 112, § 1.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 59; R.S., R.C., & C.L., § 3900; C.S., § 6499; I.C.A.,§ 1-1801; am. 1933, ch. 218, § 1, p. 463; am. 1951, ch. 52, § 1, p. 75; am. 1957, ch. 79, § 1, p. 128; am. 1972, ch. 32, § 1, p. 49, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho Civil Procedure Rule 40.

Am. Jur. 2d.

§ 1-1803. Supreme and district judges.

A justice of the Supreme Court or judge of the district court cannot act as attorney or counsel in any court, except in an action or proceeding to which he is a party on the record.

History.

C.C.P. 1881, § 61; R.S., R.C., & C.L., § 3902; C.S., § 6501; I.C.A.,§ 1-1803.

Am. Jur. 2d.

C.J.S.

Cross References.

Similar powers of courts,§ 1-1603.

Compiler’s Notes.

The words “this code” refer to the Code of Civil Procedure, which is currently a division of the Idaho Code consisting of Titles 1 through 13.

Administrative Judge as Judicial Officer.

Section 1-907, which lists the powers and duties of an administrative judge, does not include contempt powers. However,§ 1-1603 provides that “[e]very court has power: . . . [t]o compel obedience to its . . . orders . . . ,” and this section equips each “judicial officer” with similar powers. Although there is no case law as to whether an administrative judge is classified as a judicial officer, it is reasonable to assume that he is. Crooks v. Maynard, 913 F.2d 699 (9th Cir. 1990).

Immunity.

A district judge who was also serving as an administrative district judge was cloaked in absolute judicial immunity from liability when he jailed a clerk and deputy clerk of court pursuant to a contempt order even though the judge was not in chambers nor were the parties involved in an adversary proceeding; jurisdiction is construed broadly where the issue is the immunity of a judge. Crooks v. Maynard, 913 F.2d 699 (9th Cir. 1990).

Cited State ex rel. Evans v. Click, 102 Idaho 443, 631 P.2d 614 (1981); Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983); Reeves v. Reynolds, 112 Idaho 574, 733 P.2d 795 (Ct. App. 1987); Crooks v. Maynard, 851 F.2d 1562 (9th Cir. 1988); Weyyakin Ranch Property Owners’ Ass’n v. City of Ketchum, 127 Idaho 327, 896 P.2d 327 (1995); Smith v. Smith, 136 Idaho 120, 29 P.3d 956 (Ct. App. 2001). •Title 1»«Ch. 19»•§ 1-1901»

Cross References.

Similar powers of courts,§ 1-1603.

Compiler’s Notes.

The words “this code” refer to the Code of Civil Procedure, which is currently a division of the Idaho Code consisting of Titles 1 through 13.

Administrative Judge as Judicial Officer.

Section 1-907, which lists the powers and duties of an administrative judge, does not include contempt powers. However,§ 1-1603 provides that “[e]very court has power: . . . [t]o compel obedience to its . . . orders . . . ,” and this section equips each “judicial officer” with similar powers. Although there is no case law as to whether an administrative judge is classified as a judicial officer, it is reasonable to assume that he is. Crooks v. Maynard, 913 F.2d 699 (9th Cir. 1990).

Immunity.

A district judge who was also serving as an administrative district judge was cloaked in absolute judicial immunity from liability when he jailed a clerk and deputy clerk of court pursuant to a contempt order even though the judge was not in chambers nor were the parties involved in an adversary proceeding; jurisdiction is construed broadly where the issue is the immunity of a judge. Crooks v. Maynard, 913 F.2d 699 (9th Cir. 1990).

Cross References.

Contempt proceedings,§ 7-601 et seq.

Compiler’s Notes.

The words “this code” refer to the Code of Civil Procedure, which is currently a division of the Idaho Code consisting of Titles 1 through 13.

Continuing Contempt.

A recalcitrant witness may be cited for contempt; continued refusal to answer questions within an area results in but a single contempt of a continuing nature and, to counter such contempt, civil as well as criminal contempt sanctions may be imposed although the imposition of multiple criminal sanctions is impermissible. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Hearing of Contempt.

A district judge may hear contempt proceedings in open court or at chambers within his district. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923).

Institution of Contempt by the Judge.

The judge may initiate contempt proceedings on his own motion. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923).

Issues in Main Action.

A judge cannot, when one not a party to a judgment sets up a bona fide claim of right or title to the property involved in the action, determine that issue in a contempt proceeding. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923). •Title 1»«Ch. 19»«§ 1-1902»

Cross References.

Contempt proceedings,§ 7-601 et seq.

Compiler’s Notes.

The words “this code” refer to the Code of Civil Procedure, which is currently a division of the Idaho Code consisting of Titles 1 through 13.

Continuing Contempt.

A recalcitrant witness may be cited for contempt; continued refusal to answer questions within an area results in but a single contempt of a continuing nature and, to counter such contempt, civil as well as criminal contempt sanctions may be imposed although the imposition of multiple criminal sanctions is impermissible. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Hearing of Contempt.

A district judge may hear contempt proceedings in open court or at chambers within his district. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923).

Institution of Contempt by the Judge.

The judge may initiate contempt proceedings on his own motion. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923).

Issues in Main Action.

Venue of Proceeding.

A judge cannot, when one not a party to a judgment sets up a bona fide claim of right or title to the property involved in the action, determine that issue in a contempt proceeding. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923). Venue of Proceeding.

A judge who has tried a case and rendered a judgment in another district than his own can not institute or hear contempt proceedings arising out of matters connected therewith outside of the district in which it was rendered; in other words, the venue of a contempt proceeding is the judicial district in which it was committed. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923).

C.J.S.

§ 1-1903. Judges may take acknowledgments, affidavits and depositions.

The justices of the Supreme Court, the judges of the district courts and the magistrates of the district courts have the power in any part of the state to take and certify:

1. The proof and acknowledgment of a conveyance of real property or any other written instrument.
2. The acknowledgment of a satisfaction of a judgment of any court.
3. An affidavit or deposition to be used in this state.

History.

C.C.P. 1881, § 66; R.S., R.C., & C.L., § 3913; C.S., § 6505; I.C.A.,§ 1-1903; am. 1969, ch. 106, § 1, p. 361.

Cross References.

Power to take acknowledgments generally,§ 55-701 et seq.

Effective Dates.

Section 2 of S.L. 1969, ch. 106 provided that the act should be effective at 12:01 a.m. on January 11, 1971.

Cross References.

Judges’ retirement fund,§ 1-2002.

Public employee retirement system,§ 59-1301 et seq.

Prior Laws.

Former§ 1-2001, which comprised 1947, ch. 104, § 1, p. 210; am. 1949, ch. 130, § 1, p. 231; am. 1961, ch. 197, § 1, p. 304; am. 1965, ch. 308, § 1, p. 835; am. 1967, ch. 301, § 1, p. 853; am. 1969, ch. 183, § 1, p. 543; am. 1974, ch. 244, § 1, p. 1618; am. 1983, ch. 144, § 1, p. 363; am. 1998, ch. 126, § 1, p. 466., was repealed by S.L. 2000, ch. 385, § 1, effective July 1, 2000.

Amendments.

The 2012 amendment, by ch. 330, rewrote the section to the extent that a detailed comparison is impracticable.

Recovery of Overpayment.

State auditor was entitled to recover overpayment paid to a judge due to a mistake of law. State v. McCarty, 76 Idaho 153, 279 P.2d 879 (1955).

Compiler’s Notes.

The phrases “effective date of this act” near the middle of the first paragraph and “effective date hereof” at the end of the second paragraph refer to the effective date of S.L. 1965, ch. 308, which was July 1, 1965.

The phrase “effective date of this act” at the end of the first paragraph refers to the effective date of S.L. 1967, ch. 301, which was July 1, 1967.

Amendments.

The 2012 amendment, by ch. 330, substituted “retirement board” for “supreme court” throughout the section.

Compiler’s Notes.

Pursuant to S.L. 2012, ch. 330, § 13, this section has been amended by S.L. 2012, ch. 330, § 2, effective “on and after the first July 1 occurring at least three months after the Retirement Board has informed the Secretary of State that the Supreme Court has received a determination letter from the Internal Revenue Service ruling that the terms of the judges’ retirement plan meet the applicable requirements of a qualified plan under U.S.C. Section 401(a) and that any changes to the judges’ retirement plan required by the Internal Revenue Service or the determination letter have been made.” On January 23, 2014, the Secretary of State received a letter, dated January 22, 2014, from the PERSI retirement board that noted that the board had received a determination letter from the IRS, dated June 17, 2013, stating that the judges’ retirement plan met the requirements of 26 USCS § 401(a). This receipt of notice made the 2012 amendment of this section effective on July 1, 2014.

Amendments.

The 2012 amendment, by ch. 330, § 4, added “Powers and duties of the retirement board — Indemnification” to the section heading; added the subsection designations; in subsection (1), added “which shall be separate and apart from all public moneys or funds of this state, which shall be maintained in trust exclusively for the purpose of the provisions of this chapter, and” in the first sentence and added the last sentence; added subsection (2), in subsection (3), substituted “retirement board to pay for administrative expenses of” for “administrative director of the courts to pay for necessary actuarial studies to assist in administering”; and added subsection (4).

Compiler’s Notes.

Pursuant to S.L. 2012, ch. 330, § 13, this section has been amended by S.L. 2012, ch. 330, § 4, effective “on and after the first July 1 occurring at least three months after the Retirement Board has informed the Secretary of State that the Supreme Court has received a determination letter from the Internal Revenue Service ruling that the terms of the judges’ retirement plan meet the applicable requirements of a qualified plan under U.S.C. Section 401(a) and that any changes to the judges’ retirement plan required by the Internal Revenue Service or the determination letter have been made.” On January 23, 2014, the Secretary of State received a letter, dated January 22, 2014, from the PERSI retirement board that noted that the board had received a determination letter from the IRS, dated June 17, 2013, stating that the judges’ retirement plan met the requirements of 26 USCS § 401(a). This receipt of notice made the 2012 amendment of this section by ch. 330, § 4, effective on July 1, 2014.

Section 3 of S.L. 2012, chapter 330 was repealed by the same conditions and contingencies which made the amendment of this section by S.L. 2012, ch. 330, § 4 effective July 1, 2014.

Amendments.

The 2012 amendment, by ch. 330, substituted “twenty-six dollars ($26.00)” for “eighteen ($18.00)” throughout the section; in subsection (c), substituted “eighteen dollar ($18.00)” for “ten dollars ($10.00)” twice, substituted “thirteen dollars ($13.00)” for “five dollars ($5.00),” and substituted “industrial commission” for “industrial accident board”; and, in subsection (d), added “Prior to the effective date of section 1-2004A, Idaho Code” and added the last sentence.

Effective Dates.

Section 2 of S.L. 1967 (E.S.), ch. 6 declared an emergency. Approved July 1, 1967.

Section 2 of S.L. 1969, ch. 138 provided that the act should become effective at 12:01 a.m. on January 11, 1971.

Section 7 of S.L. 1979, ch. 219 provided that the act should take effect July 1, 1979.

Section 5 of S.L. 1983, ch. 144 provided that the act should be in full force and effect on and after July 1, 1983 and provided that the amendments to section 1 implemented by the act should apply only to those persons who are in active service on and after July 1, 1983. Approved April 4, 1983.

Cross References.

Judges’ retirement fund,§ 1-2002.

Amendments.

The 2012 amendment, by ch. 330, in subsection (1), inserted “a judge of the court of appeals” and substituted “equal to the following percentages” for “equal to six per cent (6%)” in the introductory paragraph and added paragraphs (a) through (c); and, in subsection (2), substituted “equal to the following percentages” for “equal to seven per cent (7%)” in the introductory paragraph and added the paragraphs (a) through (c).

Effective Dates.

Section 3 of S.L. 1976, ch. 343 provided that the act should be in full force and effect on and after July 1, 1976.

Section 2 of S.L. 1987, ch. 107 provided that the act should take effect on and after July 1, 1987.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the name of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 3 of S.L. 1994, ch. 180 became effective January 2, 1995.

Retirement Benefits.

District judge appointed to bench in 1944 to fill out term of a prior elected judge, and who was subsequently elected to new four-year terms on January 1, 1947, and January 1, 1951, but who rejected compensation plan for retirement in 1947 was not entitled to writ of mandamus to compel state officer to pay retirement benefits following his retirement in 1953 since officer had not deducted 3% of his salary, but he was entitled to retirement compensation if within 20 days after entry of decree he paid 3% of his wages from January 1, 1951 to date of retirement. Wilson v. Nielson, 75 Idaho 145, 269 P.2d 762 (1954).

Compiler’s Notes.

Pursuant to S.L. 2012, ch. 330, § 13, this section has been enacted by S.L. 2012, ch. 330, § 7, effective “on and after the first July 1 occurring at least three months after the Retirement Board has informed the Secretary of State that the Supreme Court has received a determination letter from the Internal Revenue Service ruling that the terms of the judges’ retirement plan meet the applicable requirements of a qualified plan under U.S.C. Section 401(a) and that any changes to the judges’ retirement plan required by the Internal Revenue Service or the determination letter have been made.” On January 23, 2014, the Secretary of State received a letter, dated January 22, 2014, from the PERSI retirement board that noted that the board had received a determination letter from the IRS, dated June 17, 2013, stating that the judges’ retirement plan met the requirements of 26 USCS § 401(a). This receipt of notice made the 2012 enactment of this section effective on July 1, 2014.

Compiler’s Notes.

Pursuant to S.L. 2012, ch. 330, § 13, this section has been enacted by S.L. 2012, ch. 330, § 8, effective “on and after the first July 1 occurring at least three months after the Retirement Board has informed the Secretary of State that the Supreme Court has received a determination letter from the Internal Revenue Service ruling that the terms of the judges’ retirement plan meet the applicable requirements of a qualified plan under U.S.C. Section 401(a) and that any changes to the judges’ retirement plan required by the Internal Revenue Service or the determination letter have been made.” On January 23, 2014, the Secretary of State received a letter, dated January 22, 2014, from the PERSI retirement board that noted that the board had received a determination letter from the IRS, dated June 17, 2013, stating that the judges’ retirement plan met the requirements of 26 USCS § 401(a). This receipt of notice made the 2012 enactment of this section effective on July 1, 2014.

Cross References.

Judges’ retirement fund,§ 1-2002.

Public employees retirement system,§ 59-1301 et seq.

Prior Laws.

Former§ 1-2005, which comprised 1947, ch. 104, § 5, p. 210; am. 1949, ch. 130, § 2, p. 231; am. 1967, ch. 301, § 4, p. 853; am. 1976, ch. 234, § 1, p. 825; am. 1980, ch. 178, § 1, p. 380; am. 1983, ch. 18, § 2, p. 52; am. 1994, ch. 180, § 4, p. 420; am. 1998, ch. 126, § 2, p. 466, was repealed by S.L. 2000, ch. 385, § 4, effective July 1, 2000.

Amendments.

The 2015 amendment, by ch. 61, in subsection (7), substituted “comply with all applicable provisions of the Idaho code of judicial conduct” for “not engage in the practice of law other than as a mediator or arbitrator or similar alternate dispute resolution function; not accept a position in another branch of state government or any political subdivision; not accept a position in the government of the United States or of another state or nation”.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Applicability.

Court properly denied a debtor’s Idaho R. Civ. P. 40(d)(1) disqualification motion in creditors’ quiet title action, because senior judges appointed under this section were excepted from Rule 40(d)(1) motions to disqualify without cause, and a nunc pro tunc order retroactively and properly assigned the judge to the case. Merrill v. Gibson, 139 Idaho 840, 87 P.3d 949, cert. denied, 543 U.S. 926, 125 S. Ct. 311, 160 L. Ed. 2d 225 (2004). (7) To be eligible for assignment, a senior judge must: maintain a residence within the state; comply with all applicable provisions of the Idaho code of judicial conduct; and take, subscribe and file with the secretary of state, the following oath or affirmation:

“I, ..............., do solemnly swear (or affirm, as the case may be) that as a senior judge of the state of Idaho, I will support the Constitution of the United States and the Constitution of the State of Idaho, and that upon hereafter accepting any assignment to serve as a judge of a court of this state I will faithfully discharge the duties thereof to the best of my ability.”.

(8) Except as provided in section 1-2001(2)(b), Idaho Code, any period of service rendered by a senior judge shall not in any way be computed for additional retirement benefits, and the state controller shall not receive or deduct any sum for transfer to the judges’ retirement fund or to the public employee retirement system of Idaho.

History.

I.C.,§ 1-2005, as added by 2000, ch. 385, § 5, p. 1248; am. 2005, ch. 188, § 1, p. 574; am. 2015, ch. 61, § 1, p. 169.

Cross References.

Judges’ retirement fund,§ 1-2002.

Public employees retirement system,§ 59-1301 et seq.

Prior Laws.

Former§ 1-2005, which comprised 1947, ch. 104, § 5, p. 210; am. 1949, ch. 130, § 2, p. 231; am. 1967, ch. 301, § 4, p. 853; am. 1976, ch. 234, § 1, p. 825; am. 1980, ch. 178, § 1, p. 380; am. 1983, ch. 18, § 2, p. 52; am. 1994, ch. 180, § 4, p. 420; am. 1998, ch. 126, § 2, p. 466, was repealed by S.L. 2000, ch. 385, § 4, effective July 1, 2000.

Amendments.

The 2015 amendment, by ch. 61, in subsection (7), substituted “comply with all applicable provisions of the Idaho code of judicial conduct” for “not engage in the practice of law other than as a mediator or arbitrator or similar alternate dispute resolution function; not accept a position in another branch of state government or any political subdivision; not accept a position in the government of the United States or of another state or nation”.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Applicability.

Court properly denied a debtor’s Idaho R. Civ. P. 40(d)(1) disqualification motion in creditors’ quiet title action, because senior judges appointed under this section were excepted from Rule 40(d)(1) motions to disqualify without cause, and a nunc pro tunc order retroactively and properly assigned the judge to the case. Merrill v. Gibson, 139 Idaho 840, 87 P.3d 949, cert. denied, 543 U.S. 926, 125 S. Ct. 311, 160 L. Ed. 2d 225 (2004). Decisions Under Prior Law

Appointments.

A retired district judge may hold a district court position upon the request and order of the chief justice. State v. Pratt, 128 Idaho 207, 912 P.2d 94 (1996).

Compiler’s Notes.

This section, which comprised 1947, ch. 104, § 7, p. 210; am. 1949, ch. 130, § 3, p. 231, was repealed by S.L. 1984, ch. 91, § 1.

Prior Laws.

Former§ 1-2008, which comprised I.C.,§ 1-2008, as added by 1959, ch. 131, § 2, p. 279; am. 1969, ch. 466, § 1, p. 1326; am. 1970, ch. 116, § 1, p. 277; am. 1974, ch. 22, § 55, p. 592, was repealed by S.L. 1990, ch. 247, § 1.

Another former§ 1-2008 which comprised S.L. 1947, ch. 104, § 8, p. 210 was repealed by § 4 of S.L. 1949, ch. 104.

Amendments.

The 2012 amendment, by ch. 330, rewrote the section to the extent that a detailed comparison is impracticable. •Title 1»«Ch. 20»«§ 1-2008»

Prior Laws.

Former§ 1-2008, which comprised I.C.,§ 1-2008, as added by 1959, ch. 131, § 2, p. 279; am. 1969, ch. 466, § 1, p. 1326; am. 1970, ch. 116, § 1, p. 277; am. 1974, ch. 22, § 55, p. 592, was repealed by S.L. 1990, ch. 247, § 1.

Another former§ 1-2008 which comprised S.L. 1947, ch. 104, § 8, p. 210 was repealed by § 4 of S.L. 1949, ch. 104.

Amendments.

Compiler’s Notes.

Pursuant to S.L. 2012, ch. 330, § 13, this section has been amended by S.L. 2012, ch. 330, § 9, effective “on and after the first July 1 occurring at least three months after the Retirement Board has informed the Secretary of State that the Supreme Court has received a determination letter from the Internal Revenue Service ruling that the terms of the judges’ retirement plan meet the applicable requirements of a qualified plan under U.S.C. Section 401(a) and that any changes to the judges’ retirement plan required by the Internal Revenue Service or the determination letter have been made.” On January 23, 2014, the Secretary of State received a letter, dated January 22, 2014, from the PERSI retirement board that noted that the board had received a determination letter from the IRS, dated June 17, 2013, stating that the judges’ retirement plan met the requirements of 26 USCS § 401(a). This receipt of notice made the 2012 amendment of this section effective on July 1, 2014.

The prudent man investment act, referred to in paragraph (1)(b), was enacted by S.L. 1949, ch. 36, §§ 1 to 5. That act was repealed by S.L. 1997, ch. 14, which also enacted the Idaho uniform prudent investor act. See§ 68-501 et seq.

Effective Dates.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the name of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 5 of S.L. 1994, ch. 180 became effective January 2, 1995.

Section 2 of S.L. 2004, ch. 240 declared an emergency retroactively to January 1, 2004. Approved March 23, 2004.

Compiler’s Notes.

This section, which comprised I.C.,§ 1-2008A, as added by 1970, ch. 116, § 2, p. 277; am. 1974, ch. 22, § 56, p. 592, was repealed by S.L. 1990, ch. 247, § 1.

Amendments.

The 2012 amendment, by ch. 330, substituted “retirement board” for “supreme court” in subsection (3).

Compiler’s Notes.

Pursuant to S.L. 2012, ch. 330, § 13, this section has been amended by S.L. 2012, ch. 330, § 11, effective “on and after the first July 1 occurring at least three months after the Retirement Board has informed the Secretary of State that the Supreme Court has received a determination letter from the Internal Revenue Service ruling that the terms of the judges’ retirement plan meet the applicable requirements of a qualified plan under U.S.C. Section 401(a) and that any changes to the judges’ retirement plan required by the Internal Revenue Service or the determination letter have been made.” On January 23, 2014, the Secretary of State received a letter, dated January 22, 2014, from the PERSI retirement board that noted that the board had received a determination letter from the IRS, dated June 17, 2013, stating that the judges’ retirement plan met the requirements of 26 USCS § 401(a). This receipt of notice made the 2012 amendment of this section effective on July 1, 2014.

Effective Dates.

Section 3 of S.L. 1997, ch. 150 read: “This act shall be in full force and effect on and after July 1, 1997, but provided that Section 2 of this act shall apply only in the event of the death of a justice, judge or spouse occurring on or after July 1, 1997.” •Title 1»«Ch. 20»«§ 1-2010»

Amendments.

The 2012 amendment, by ch. 330, substituted “retirement board” for “supreme court” in subsection (3).

Compiler’s Notes.

Pursuant to S.L. 2012, ch. 330, § 13, this section has been amended by S.L. 2012, ch. 330, § 11, effective “on and after the first July 1 occurring at least three months after the Retirement Board has informed the Secretary of State that the Supreme Court has received a determination letter from the Internal Revenue Service ruling that the terms of the judges’ retirement plan meet the applicable requirements of a qualified plan under U.S.C. Section 401(a) and that any changes to the judges’ retirement plan required by the Internal Revenue Service or the determination letter have been made.” On January 23, 2014, the Secretary of State received a letter, dated January 22, 2014, from the PERSI retirement board that noted that the board had received a determination letter from the IRS, dated June 17, 2013, stating that the judges’ retirement plan met the requirements of 26 USCS § 401(a). This receipt of notice made the 2012 amendment of this section effective on July 1, 2014.

Effective Dates.

Section 3 of S.L. 1997, ch. 150 read: “This act shall be in full force and effect on and after July 1, 1997, but provided that Section 2 of this act shall apply only in the event of the death of a justice, judge or spouse occurring on or after July 1, 1997.”

Cross References.

Public employees retirement system,§ 59-1301 et seq.

Amendments.

The 2012 amendment, by ch. 330, substituted “retirement board” for “supreme court”.

Compiler’s Notes.

Pursuant to S.L. 2012, ch. 330, § 13, this section has been amended by S.L. 2012, ch. 330, § 12, effective “on and after the first July 1 occurring at least three months after the Retirement Board has informed the Secretary of State that the Supreme Court has received a determination letter from the Internal Revenue Service ruling that the terms of the judges’ retirement plan meet the applicable requirements of a qualified plan under U.S.C. Section 401(a) and that any changes to the judges’ retirement plan required by the Internal Revenue Service or the determination letter have been made.” On January 23, 2014, the Secretary of State received a letter, dated January 22, 2014, from the PERSI retirement board that noted that the board had received a determination letter from the IRS, dated June 17, 2013, stating that the judges’ retirement plan met the requirements of 26 USCS § 401(a). This receipt of notice made the 2012 amendment of this section effective on July 1, 2014.

Cross References.

Board of commissioners of the Idaho state bar,§ 3-401 et seq.

Political Parties.

Citizens did not have any right to have a member of their political party appointed to the Idaho judicial council member’s seat, and they did not have a right to have someone appointed who would share their political or philosophical beliefs. This section does not require that membership on the council include persons from any particular political party, or that the members even be from a political party. Troutner v. Kempthorne, 142 Idaho 389, 128 P.3d 926 (2006). •Title 1»«Ch. 21»•§ 1-2101»

Cross References.

Board of commissioners of the Idaho state bar,§ 3-401 et seq.

Political Parties.

Separation of Powers.

Citizens did not have any right to have a member of their political party appointed to the Idaho judicial council member’s seat, and they did not have a right to have someone appointed who would share their political or philosophical beliefs. This section does not require that membership on the council include persons from any particular political party, or that the members even be from a political party. Troutner v. Kempthorne, 142 Idaho 389, 128 P.3d 926 (2006). Separation of Powers.

Whether or not the Idaho judicial council member’s appointment violated this section was an issue that the senate could, and did, debate prior to his confirmation vote; it would violate the separation of powers for the appellate court to substitute its view for that of the senate regarding whether the member was qualified to be appointed to the judicial council. Troutner v. Kempthorne, 142 Idaho 389, 128 P.3d 926 (2006).

Amendments.

The 2011 amendment, by ch. 13, added present subsection (5) and redesignated former subsection (5) as subsection (6).

Effective Dates.

Section 9 of S.L. 1985, ch. 29 read: “This act shall be in full force and effect on and after July 1, 1985; provided that notwithstanding the provisions of sections 3, 4, 5 and 6 of this act, it is the intent of the legislature that the provisions of this act, requiring that persons be admitted to the practice of law within this state for at least ten years prior to taking office, shall not apply to justices or judges holding office on the effective date of this act, nor prohibit them from seeking election, reelection or appointment to the office of supreme court justice, court of appeals judge, or district judge, as provided by law.”

Cross References.

Industrial commission, duty to discipline, remove or retire members,§ 72-501.

Amendments.

The 2015 amendment, by ch. 141, substituted “chapter 1, title 74” for “chapter 3, title 9” in the first sentence in the third paragraph.

Effective Dates.

Section 111 of S.L. 1990, ch. 213 as amended by § 16 of S.L. 1991, ch. 329 provided that §§ 3 through 45 and 48 through 110 of this act should take effect July 1, 1993 and that §§ 1, 2, 46 and 47 should take effect July 1, 1990.

Common Law.

Because there exists a statutory mechanism for removing judges, there is no basis to invoke the superseded common law writ of quo warranto. Parsons v. Beebe, 116 Idaho 551, 777 P.2d 1224 (Ct. App. 1989).

Evidence.

After an independent review of the evidence presented to the judicial council, the supreme court found clear and convincing proof that judge’s habitual intemperance, abuse of alcohol, and driving under the influence detracted from public confidence in the integrity of the judiciary. Idaho Judicial Council v. Becker, 122 Idaho 288, 834 P.2d 290 (1992).

Procedure.

While the judicial council fills an important role in the process for considering the discipline, removal, or retirement of judges, the supreme court has the ultimate authority and responsibility to decide what should be done in each case based on a weighing of the evidence presented to the judicial council and any additional evidence the court permits. Idaho Judicial Council v. Becker, 122 Idaho 288, 834 P.2d 290 (1992).

Substantive Due Process.

Statute did not violate substantive due process rights and it satisfied the rational basis test; it required confidentiality only for the limited purpose of allowing the Idaho judicial council to conduct a preliminary investigation into the complaint before determining whether to proceed with a recommendation for discipline. Bradbury v. Idaho Judicial Council, 136 Idaho 63, 28 P.3d 1006 (2001), cert. denied, 534 U.S. 1115, 122 S. Ct. 923, 151 L. Ed. 2d 887 (2002).

Cross References.

Public employees retirement system,§ 59-301 et seq.

Cross References.

Child protection actions, procedure, Idaho Juvenile Rules 29 to 48.

Juvenile Corrections Act, Idaho Juvenile Rules 2 to 25.

Effective Dates.

Section 17 of S.L. 1969, ch. 104 provided that this act,§§ 1-2201 — 1-2216, should become effective January 11, 1971, except for§§ 1-2203 — 1-2206, 1-2215, which become effective July 1, 1969.

Compiler’s Notes.

The words “this act” refer to S.L. 1969, ch. 104, compiled as§§ 1-2201 to 1-2216.

Amendments.

The 2008 amendment, by ch. 38, in the first sentence in subsection (1), deleted “who shall be a nonvoting member” preceding, and “and serve at the pleasure of” following, the third occurrence of “to be appointed by”; in subsection (2)(h), deleted “voting” preceding “member” and inserted “magistrate judge”; in subsection (3), deleted “voting” preceding the first occurrence of “member” and substituted “magistrate judge or district judge” for “and district judge”; in subsection (4), added the fourth sentence; and in subsection (5), inserted “magistrate judge” and deleted “voting” preceding the next-to-last occurrence of “member” in the first sentence and inserted “on the commission” in the third sentence, deleted “having been engaged in the practice of law as a partner of an applicant or” preceding “currently practicing law” and substituted “in the commission’s judicial district, or by an attorney member or a magistrate judge member having been engaged in the practice of law as a partner of such applicant within the last five (5) years” for “in the judicial district of the attorney member” in the third sentence. The 2020 amendment, by ch. 131, in subsection (1), inserted “and a county clerk in the district” near the end of the first sentence; inserted “clerk” near the beginning of subsection (3); in subsection (4), added the next-to-last sentence; and, in subsection (5), inserted “clerk” near the middle of the first sentence and added the fourth and fifth sentences.

Compiler’s Notes.

The words “this act,” in paragraph (2)(g), refer to S.L. 1969, ch. 104, compiled as§§ 1-2201 to 1-2216.

Effective Dates.

Section 2 of S.L. 1972, ch. 359 declared an emergency. Approved March 31, 1972.

Section 17 of S.L. 1969, ch. 104 provided that this section should become effective July 1, 1969.

Amendments.

The 2008 amendment, by ch. 38, in the fifth sentence, deleted “and secretary” following “vice chairman” and substituted “until a successor is elected” for “until their successors be elected”; added the sixth sentence; and in the last sentence, deleted “chairman and” preceding “secretary” and “duplicate” preceding “official minutes.”

Effective Dates.

Section 17 of S.L. 1969, ch. 104 provided that this section should become effective July 1, 1969.

Amendments.

The 2008 amendment, by ch. 38, in subsection (a), substituted “magistrate judges” for “magistrates,” twice inserted “judge” following “magistrate” and added “pursuant to section 31-879, Idaho Code”; in subsection (b), substituted “magistrate judges” for “magistrates”; deleted subsection (c), which formerly read: “To recommend to the legislature the salaries to be paid to the magistrates within the district” and redesignated former subsection (d) as subsection (c); and in the last paragraph, substituted “subsections (a) and (b) of this section” for “subsections (a), (b) and (c) hereof.”

Effective Dates.

Section 17 of S.L. 1969, ch. 104 provided that this section should become effective July 1, 1969.

Magistrates.

Plaintiff’s argument that Idaho law required that the judge be subject to an election for retention failed because the statute’s plain language was not susceptible of any meaning beyond requiring a magistrate to run for retention in the county for which he was appointed, and not in any or all counties where the magistrate heard cases. Ackerman v. Bonneville County, 140 Idaho 307, 92 P.3d 557 (Ct. App. 2004).

Amendments.

This section was amended by two 1982 acts which appear to be compatible and have been compiled together.

The 1982 amendment, by ch. 217, added the language following “test” in subsection (2) and added subsection (4). The 1982 amendment, by ch. 298, in subsection (1), inserted “State of Idaho. He shall reside in the,” deleted “and shall reside there” following “appointed,” and deleted “except that qualified nonresidents may be appointed as magistrates when no qualified resident elector is available” at the end of the subsection.

The 2015 amendment, by ch. 310, rewrote subsections (1) and (2), which formerly read: “(1) A magistrate shall be a qualified elector of the state of Idaho. He shall reside in the county for which he is appointed so long as he serves as magistrate. (2) No person shall be eligible for appointment to the office of magistrate unless he is a graduate of a high school or has attained the equivalent of a high school education as indicated by the possession of a certificate of equivalency issued by the state department of education based upon the record made on the general education development test and unless he shall have attained the age of thirty (30) years prior to taking office, provided that in addition no person shall be eligible for appointment as an attorney magistrate unless prior to taking office he shall have been admitted to the practice of law for at least five (5) years and is currently licensed to practice law in the state of Idaho.”

The 2019 amendment, by ch. 185, substituted “within one (1) year of taking office for the first time as magistrates, attend” for “not take office for the first time as magistrates until they have attended” near the beginning of the first sentence in subsection (3).

Compiler’s Notes.

The phrase “effective date of this act,” in subsection (4), refers to the effective date of S.L. 1982, ch. 217, which was July 1, 1982.

Section 1 of S.L. 1969, ch. 100, abolished probate courts, justice of the peace courts and police courts as of 12:01 a.m. on January 11, 1971, and provided that where the words “probate court,” “justice court” or “police court” appear in the Idaho Code they shall mean the district court or magistrate’s division of the district court as the case may be and further provided that where the words “probate judge,” “justice of the peace” or “police judge” appear in the Idaho Code they shall mean district judge or magistrate of the district court as the case may be.

Effective Dates.

Section 17 of S.L. 1969, ch. 104 provided that this section should become effective July 1, 1969.

Section 2 of S.L. 1982, ch. 298 declared an emergency. Approved April 1, 1982.

Compiler’s Notes.

The phrase “effective date of this act,” in subsection (3), refers to the effective date of S.L. 1977, ch. 233, which was July 1, 1977.

Cross References.

Industrial commission orders and awards, limitation of jurisdiction,§ 72-733.

Amendments.

The 2006 amendment, by ch. 263, in subsections (1)(a) and (c), substituted “five thousand dollars” for “four thousand dollars.”

Compiler’s Notes.

This section was amended by § 7 of S.L. 1981, ch. 223, effective July 1, 1982; however such amendment was repealed by § 3 of S.L. 1982, ch. 353, effective April 2, 1982.

Effective Dates.

Section 2 of S.L. 1970, ch. 29 provided that this act should become effective at 12:01 a.m., January 11, 1971.

Assignment of Felony Trial Permitted.

The only aspects of felony cases that are usually assignable to a magistrate are the first appearance, the setting of bail and the preliminary hearing; however, the trial and related hearings with regard to felony proceedings may be assigned to attorney magistrates when approved by the administrative district judge of the district and when approved by order of the supreme court upon application of the administrative district judge. State v. Smith, 117 Idaho 891, 792 P.2d 916 (1990).

Contempt Power.

The attorney magistrate, in conducting habeas corpus proceedings, exercises the judicial power of the state and, in order to vindicate his jurisdiction and proper function, the magistrate is vested with the judicial contempt power; while this power has been recognized by statute (title 7, chapter 6, Idaho Code), its source lies in the constitution and the common law. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Criminal Cases.

A magistrate clearly had jurisdiction to hear a criminal case which had been dismissed after a preliminary hearing and was subsequently refiled. Rufener v. Shaud, 98 Idaho 823, 573 P.2d 142 (1977).

Cross References.

Industrial commission orders and awards, limitation of jurisdiction,§ 72-733.

Amendments.

The 2006 amendment, by ch. 263, in subsections (1)(a) and (c), substituted “five thousand dollars” for “four thousand dollars.”

Compiler’s Notes.

This section was amended by § 7 of S.L. 1981, ch. 223, effective July 1, 1982; however such amendment was repealed by § 3 of S.L. 1982, ch. 353, effective April 2, 1982.

Effective Dates.

Section 2 of S.L. 1970, ch. 29 provided that this act should become effective at 12:01 a.m., January 11, 1971.

Assignment of Felony Trial Permitted.

The only aspects of felony cases that are usually assignable to a magistrate are the first appearance, the setting of bail and the preliminary hearing; however, the trial and related hearings with regard to felony proceedings may be assigned to attorney magistrates when approved by the administrative district judge of the district and when approved by order of the supreme court upon application of the administrative district judge. State v. Smith, 117 Idaho 891, 792 P.2d 916 (1990).

Contempt Power.

The attorney magistrate, in conducting habeas corpus proceedings, exercises the judicial power of the state and, in order to vindicate his jurisdiction and proper function, the magistrate is vested with the judicial contempt power; while this power has been recognized by statute (title 7, chapter 6, Idaho Code), its source lies in the constitution and the common law. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Criminal Cases.

A magistrate clearly had jurisdiction to hear a criminal case which had been dismissed after a preliminary hearing and was subsequently refiled. Rufener v. Shaud, 98 Idaho 823, 573 P.2d 142 (1977). Where no fundamental principle of justice was infringed by the supreme court’s appointment of a magistrate as the trial judge, the defendants’ due process rights were not violated. McGill v. Lester, 105 Idaho 692, 672 P.2d 570 (Ct. App. 1983), appeal dismissed and cert. denied, 467 U.S., 1247, 104 S. Ct. 3527, 82 L Ed. 2d 834 (1984).

Although the parole commission’s decisions are not directly reviewable under the administrative procedures act, because the appeal was from a denial of habeas corpus petition based on a constitutional challenge, judicial review was available. Therefore the district court, or the magistrate division thereof, had jurisdiction in the habeas corpus proceeding to make a limited review of the commission’s decision to revoke defendant’s parole. Craig v. State, 123 Idaho 121, 844 P.2d 1371 (Ct. App. 1992).

Discretion of Magistrate.

Where a claim for unlawful detainer was brought before the magistrate and subsequently dismissed upon the magistrate’s realization that the parties involved did not have a landlord-tenant relationship, the magistrate’s order dismissing the claim, granting leave to file amended complaint, and transferring amended complaint to the district court was properly within the magistrate’s discretion. Nationsbanc Mtg. Corp. v. Cazier, 127 Idaho 879, 908 P.2d 572 (Ct. App. 1995), cert. denied, 519 U.S. 864, 117 S. Ct. 172, 136 L. Ed. 2d 113 (1996).

In General.

An attorney magistrate is a judicial officer of the district court whose jurisdiction is established by legislation, under the Idaho constitution, by rule of the Idaho supreme court, and by the rules of the respective district courts. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Jurisdiction.

The magistrate court erred in summarily terminating a driver’s license suspension proceeding and returning the license to a driver on the ground that the court did not have jurisdiction to proceed on the basis of fact that the affidavit filed by the officer was invalid; with both jurisdiction over the subject matter and personal jurisdiction over the parties, the magistrate court erred when it concluded that “the court does not have jurisdiction to proceed.” Hanson v. State, 121 Idaho 507, 826 P.2d 468 (1992).

Magistrate had jurisdiction to entertain a charge against defendant of driving a motor vehicle without a valid license in violation of§ 49-301 because that charge was a misdemeanor. State v. Wilder, 138 Idaho 644, 67 P.3d 839 (Ct. App. 2003).

Post-Conviction Proceedings.

Attorney magistrates may be assigned post-conviction proceedings stemming from misdemeanor judgments entered in their courts; furthermore, if there is an objection to the assignment of a case to a magistrate, it must be expressed in writing prior to hearing or trial, or the objection is waived. Parsons v. State, 113 Idaho 421, 745 P.2d 300 (Ct. App. 1987).

Probate and Estates.

Idaho R. Civ. P. 82(c)(1) and 82(c)(2) create independent grounds for magistrate jurisdiction — one based upon subject matter and the other based upon the amount in controversy. Clearly the $10,000 value limit of paragraph (A) of Idaho R. Civ. P. 82(c)(2) does not apply to the separate conferral upon magistrates of jurisdiction for probate and estate administration proceedings under paragraph (A) of Idaho R. Civ. P. 82(c)(1) and subsection (2) of this section. Keeven v. Estate of Keeven, 126 Idaho 290, 882 P.2d 457 (Ct. App. 1994). Where no fundamental principle of justice was infringed by the supreme court’s appointment of a magistrate as the trial judge, the defendants’ due process rights were not violated. McGill v. Lester, 105 Idaho 692, 672 P.2d 570 (Ct. App. 1983), appeal dismissed and cert. denied, 467 U.S., 1247, 104 S. Ct. 3527, 82 L Ed. 2d 834 (1984).

Although the parole commission’s decisions are not directly reviewable under the administrative procedures act, because the appeal was from a denial of habeas corpus petition based on a constitutional challenge, judicial review was available. Therefore the district court, or the magistrate division thereof, had jurisdiction in the habeas corpus proceeding to make a limited review of the commission’s decision to revoke defendant’s parole. Craig v. State, 123 Idaho 121, 844 P.2d 1371 (Ct. App. 1992).

Discretion of Magistrate.

Where a claim for unlawful detainer was brought before the magistrate and subsequently dismissed upon the magistrate’s realization that the parties involved did not have a landlord-tenant relationship, the magistrate’s order dismissing the claim, granting leave to file amended complaint, and transferring amended complaint to the district court was properly within the magistrate’s discretion. Nationsbanc Mtg. Corp. v. Cazier, 127 Idaho 879, 908 P.2d 572 (Ct. App. 1995), cert. denied, 519 U.S. 864, 117 S. Ct. 172, 136 L. Ed. 2d 113 (1996).

In General.

An attorney magistrate is a judicial officer of the district court whose jurisdiction is established by legislation, under the Idaho constitution, by rule of the Idaho supreme court, and by the rules of the respective district courts. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Jurisdiction.

The magistrate court erred in summarily terminating a driver’s license suspension proceeding and returning the license to a driver on the ground that the court did not have jurisdiction to proceed on the basis of fact that the affidavit filed by the officer was invalid; with both jurisdiction over the subject matter and personal jurisdiction over the parties, the magistrate court erred when it concluded that “the court does not have jurisdiction to proceed.” Hanson v. State, 121 Idaho 507, 826 P.2d 468 (1992).

Magistrate had jurisdiction to entertain a charge against defendant of driving a motor vehicle without a valid license in violation of§ 49-301 because that charge was a misdemeanor. State v. Wilder, 138 Idaho 644, 67 P.3d 839 (Ct. App. 2003).

Post-Conviction Proceedings.

Attorney magistrates may be assigned post-conviction proceedings stemming from misdemeanor judgments entered in their courts; furthermore, if there is an objection to the assignment of a case to a magistrate, it must be expressed in writing prior to hearing or trial, or the objection is waived. Parsons v. State, 113 Idaho 421, 745 P.2d 300 (Ct. App. 1987).

Probate and Estates.

Idaho R. Civ. P. 82(c)(1) and 82(c)(2) create independent grounds for magistrate jurisdiction — one based upon subject matter and the other based upon the amount in controversy. Clearly the $10,000 value limit of paragraph (A) of Idaho R. Civ. P. 82(c)(2) does not apply to the separate conferral upon magistrates of jurisdiction for probate and estate administration proceedings under paragraph (A) of Idaho R. Civ. P. 82(c)(1) and subsection (2) of this section. Keeven v. Estate of Keeven, 126 Idaho 290, 882 P.2d 457 (Ct. App. 1994). The $10,000 value limit of Idaho R. Civ. P. 82(c)(2)(A) does not apply to the separate conferral upon magistrates of general jurisdiction for probate and estate administration proceedings under this section. Bingham Mem. Hosp. v. Boyd, 134 Idaho 669, 8 P.3d 664 (Ct. App. 2000).

Trial court and the parties mistakenly believed that the contract establishing the survivor’s estate contained provisions relating to the determination of the beneficiary’s entitlement, and because there was confusion regarding what expenses, particularly attorney fees, could be deducted from his share, the judge handling the probate was best positioned to determine the net share of any estate beneficiary, considering all expenses, the overall scheme of distribution, and the effect of one beneficiary’s entitlement upon that of the others; by following the intent of the applicable statutes and rules pertaining to assignment of probate proceedings to the magistrate division, confusion could be averted or alleviated. Miller v. Estate of Prater, 141 Idaho 208, 108 P.3d 355 (2005).

Since magistrate judges have been assigned responsibility for probate proceedings, all matters related to decedents’ estates should first be considered and determined by the magistrate judge in a probate proceeding. Smith v. Smith (In re Estate of Smith), 164 Idaho 457, 432 P.3d 6 (2018).

Youth Rehabilitation Law.

Proceedings under the former youth rehabilitation act (see now§ 20-501 et seq.) may be heard by the magistrate’s division of the district court only when assignable cases have been assigned to the magistrates by the senior district judge. Hayes v. Gardner, 95 Idaho 137, 504 P.2d 810 (1972).

Amendments.

The 2006 amendment, by ch. 263, substituted “five thousand dollars ($5,000)” for “four thousand dollars ($4,000)” in subsection (1)(a).

Compiler’s Notes.

The words “this act,” in paragraph (1)(a), refer to S.L. 1969, ch. 104, which is compiled as§§ 1-2201 to 1-2216.

Effective Dates.

Section 3 of S.L. 1972, ch. 36 declared an emergency. Approved February 28, 1972.

Section 2 of S.L. 1972, ch. 313 declared an emergency. Approved March 27, 1972.

Criminal Cases.

Where no fundamental principle of justice was infringed by the Idaho supreme court’s appointment of a magistrate as the trial judge, the defendants’ due process rights were not violated. McGill v. Lester, 105 Idaho 692, 672 P.2d 570 (Ct. App. 1983), appeal dismissed and cert. denied, 467 U.S., 1247, 104 S. Ct. 3527, 82 L Ed. 2d 834 (1984).

Divorce.

Since by virtue of this section and Idaho R. Civ. P. 82(c)(2) and a rule of the third judicial circuit, lawyer magistrates had subject matter jurisdiction in divorce action, where after holding a hearing on the matter he found that a common-law marriage existed and ordered defendant to pay alimony pendente lite and attorney fees, district court erred in issuing writ of prohibition forbidding any further action by the magistrate in the proceedings. Freiburghaus v. Freiburghaus, 100 Idaho 730, 604 P.2d 1209 (1980).

If an attorney magistrate is properly assigned a particular proceeding, he is necessarily assigned all ancillary proceedings incident to the underlying proceeding, regardless of the dollar amount of the controversy involved in the ancillary matters; thus, the assignment of the divorce proceeding to the presiding attorney magistrate carried with it the assignment of all ancillary proceedings to that divorce, including accountings between the parties, arising out of or related to the divorce proceedings. Carr v. Magistrate Court, 108 Idaho 546, 700 P.2d 949 (1985).

Habeas Corpus.

An attorney magistrate may be empowered and clothed with jurisdiction to conduct proceedings in habeas corpus and child custody matters. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

The attorney magistrate, in conducting habeas corpus proceedings, exercises the judicial power of the state and, in order to vindicate his jurisdiction and power function, the magistrate is vested with the judicial contempt power; while this power has been recognized by statute (title 7, chapter 6, Idaho Code), its source lies in the constitution and the common law. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Improper Assignment.

Where neither party objected to assignment of case to magistrate prior to the beginning of hearing, such failure constituted a statutory waiver of any improper assignment to the magistrate. Carr v. Magistrate Court, 108 Idaho 546, 700 P.2d 949 (1985).

Approval of Accountings.

Until the magistrate approves the administration, distribution and closing of the estate, the approval of accountings by the magistrate is not ripe for review; however, there is no impediment to special review of interlocutory orders approving interim accountings by certification under Idaho R. Civil P. 54(b), concerning the appeal from the magistrate division to the district court, and under Idaho R. Civ. P. 54(b) or Idaho App. R. 12, concerning the appeal from the district court to the supreme court. Spencer v. Idaho First Nat’l Bank, 106 Idaho 316, 678 P.2d 108 (Ct. App. 1984).

Denial of Summary Judgment.

Where the district court lacked jurisdiction to hear an appeal from a magistrate’s order denying a motion for summary judgment, all subsequent orders entered by the district court based upon the law as established in that proceeding in which the district court acted without jurisdiction would be reversed. State, Dep’t of Law Enforcement v. One 1955 Willys Jeep, 100 Idaho 150, 595 P.2d 299 (1979), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., — Idaho —, — P.3d —, 2011 Ida. LEXIS 149 (Nov. 9, 2011).

District Judge.

Error of Magistrate.

In appeal from the magistrate court to the district court, the district judge shall evaluate the record as an appellate court. In re Estate of Stibor, 96 Idaho 162, 525 P.2d 357 (1974). Error of Magistrate.

The district court erred in affirming magistrate’s decision where magistrate ignored portions of testimony and failed to make specific findings of fact in arriving at his order. In re Estate of Stibor, 96 Idaho 162, 525 P.2d 357 (1974).

Evaluation of Evidence.

Where the district court reviewed on the record the decision of the magistrate that a parent-child relationship should be terminated because the father abandoned the child, it was bound by standards of appellate review to determine the factual sufficiency of the record to sustain the magistrate’s finding, and it was error for the district court to substitute its evaluation of the evidence for that of the magistrate. In re Matthews, 97 Idaho 99, 540 P.2d 284 (1975).

Remand.

The fact that the district court held a pre-trial conference did not limit its discretion to remand case back to the magistrate division for a new trial. Blackadar v. Austin, 121 Idaho 529, 826 P.2d 490 (Ct. App. 1992).

Where the magistrate judge convicted defendant of misdemeanor domestic battery, the district court ruled that the magistrate erred by applying the beyond a reasonable doubt standard to defendant’s self-defense claim. The district court, acting its in appellate capacity, had the discretion to remand the case to the magistrate to reconsider the testimony applying the correct burden of proof without ordering a new trial. State v. Jones, 146 Idaho 297, 193 P.3d 457 (Ct. App. 2008).

Reviewing Case as Appeal.

Where original magistrate fell ill following first day of testimony by state on termination of parental rights and second magistrate, hearing case by stipulation of both parties, heard only testimony on behalf of mother, district court’s failure to hear case as trial de novo instead of reviewing case as appeal from magistrate level was not error, since counsel of record had implied authority to enter into stipulation and agreements respecting matters of procedure. State, Dep’t of Health & Welfare v. Holt, 102 Idaho 44, 625 P.2d 398 (1981).

Reviewing Case on Record.

Where the only issue on appeal was the sufficiency of the evidence, the district court’s refusal to observe a video tape taken of defendant several hours after his arrest for driving while under the influence of intoxicating beverages, but electing instead to consider defendant’s appeal on the basis of the record made in the magistrates division, was not reversible error, since there was other substantial and competent evidence to sustain the judgment of conviction. State v. Griffith, 97 Idaho 52, 539 P.2d 604 (1975).

Trial De Novo.

Where the magistrate’s findings of fact are confused or in conflict, or where findings on a particular issue are lacking, and resort to the record does not show clearly what findings are correct, the district court ordinarily will not modify the judgment, but will either remand for new findings or, alternatively, conduct a partial or whole trial de novo. Hawkins v. Hawkins, 99 Idaho 785, 589 P.2d 532 (1978). The district court, having undertaken the task of conducting an appellate review, is not, as a result, precluded from conducting a trial de novo; when circumstances prevent a decisive, complete, or meaningful appellate review, it may be advisable for the district court to augment the trial record or create a new record in order to completely resolve the controversy. Winn v. Winn, 101 Idaho 270, 611 P.2d 1055 (1980).

The district court may conduct an appellate review of a magistrate’s decision just as the supreme court would conduct a review of a district court decision, or the district court may choose to wipe the slate clean by ordering a trial de novo and beginning the case anew. Winn v. Winn, 101 Idaho 270, 611 P.2d 1055 (1980).

District court did not err when it ordered a trial de novo after having heard appellate argument, but before issuing an appellate decision. Latham Motors, Inc. v. Phillips, 123 Idaho 689, 851 P.2d 985 (Ct. App. 1993).

Compiler’s Notes.

The bracketed word “collateral” was inserted by the compiler.

Procedure for Objection.

Attorney magistrates may be assigned post-conviction proceedings stemming from misdemeanor judgments entered in their courts; if there is an objection to the assignment of a case to a magistrate, it must be expressed in writing prior to hearing or trial, or the objection is waived. Parsons v. State, 113 Idaho 421, 745 P.2d 300 (Ct. App. 1987).

Waiver.

Where neither of the parties objected to the supreme court’s appointment of a magistrate to sit as a district judge for the purpose of trying their case and neither of the parties objected when the appointed judge later proceeded to try the case and rendered his decision, any procedural objections to the appointment were waived. McGill v. Lester, 105 Idaho 692, 672 P.2d 570 (Ct. App. 1983), appeal dismissed and cert. denied, 467 U.S., 1247, 104 S. Ct. 3527, 82 L Ed. 2d 834 (1984).

Where neither party objected to the assignment of the case to the magistrate prior to the beginning of the hearings, such failure to object constituted a statutory waiver of any improper assignment to the magistrate. Carr v. Magistrate Court, 108 Idaho 546, 700 P.2d 949 (1985).

Effective Dates.

Section 17 of S.L. 1969, ch. 104 provided that this section should become effective July 1, 1969.

Effective Dates.

Section 17 of S.L. 1969, ch. 104 provided that §§ 3, 4, 5, 6 and 15 of the act should be in full force and effect from and after July 1, 1969, and the remaining sections of the act should be effective at 12:01 a.m. on January 11, 1971.

Payments by City.

City did not meet its burden to show good and sufficient cause for setting aside a§ 1-2218 order from 1980, requiring the city to provide facilities for a magistrate division of the district court. While Twin Falls County v. Cities of Twin Falls and Filer , 143 Idaho 398, 146 P.3d 664 (2006), precluded the district judges from ordering a city to reimburse a county for use of county-owned facilities, the decision did not absolve the city of its responsibilities under the order. Additionally, the construction of a new county courthouse and the fact that the city voluntarily transferred its rights to all fees collected under§ 31-3201A to the county did not relieve the city of its responsibilities under the order. City of Boise v. Ada County (In re Facilities & Equip. Provided by the City of Boise), 147 Idaho 794, 215 P.3d 514 (2009).

Repealed effective July 1, 2023.

This section is repealed effective July 1, 2023, pursuant to S.L. 2018, ch. 264, § 5.

Amendments.

The 2018 amendment, by ch. 264, added the last two sentences in the section.

Effective Dates.

Section 6 of S.L. 2018, ch. 264 provided: “An emergency existing therefor, which emergency is hereby declared to exist, Section 1 of this act [this section] shall be in full force and effect on and after passage and approval.” Approved March 26, 2018.

Action on Order.

Although a proceeding brought by a city to set aside an order issued pursuant to this section, which obligated the city to provide facilities for a magistrate division of the district court, was not truly a civil action, the district judges have an inherent power, codified in§ 1-1622, to consider the standards in Idaho R. Civ. P. 24(a) and allow a county which would be adversely affected by the set aside, to intervene. City of Boise v. Ada County (In re Facilities & Equip. Provided by the City of Boise), 147 Idaho 794, 215 P.3d 514 (2009). •Title 1»«Ch. 22»«§ 1-2218»

Repealed effective July 1, 2023.

This section is repealed effective July 1, 2023, pursuant to S.L. 2018, ch. 264, § 5.

Amendments.

The 2018 amendment, by ch. 264, added the last two sentences in the section.

Effective Dates.

Section 6 of S.L. 2018, ch. 264 provided: “An emergency existing therefor, which emergency is hereby declared to exist, Section 1 of this act [this section] shall be in full force and effect on and after passage and approval.” Approved March 26, 2018.

Action on Order.

Although a proceeding brought by a city to set aside an order issued pursuant to this section, which obligated the city to provide facilities for a magistrate division of the district court, was not truly a civil action, the district judges have an inherent power, codified in§ 1-1622, to consider the standards in Idaho R. Civ. P. 24(a) and allow a county which would be adversely affected by the set aside, to intervene. City of Boise v. Ada County (In re Facilities & Equip. Provided by the City of Boise), 147 Idaho 794, 215 P.3d 514 (2009). When cities were ordered to contribute to the costs of facilities for the magistrate’s division of the district court, but were not assessed any specific amount of support, the cities’ appeal of that order did not present a justiciable controversy because nothing showed the cities suffered any harm, as (1) the cities had not been required to pay anything, and (2) there was no plan regarding what the cities had to do to comply with the order. Ada County v. City of Garden City, 155 Idaho 914, 318 P.3d 904 (2014).

Burden of Proof.

In an action to set aside an order issued pursuant to this section, a city has the burden to show good and sufficient cause, which may be satisfied by demonstrating that the order is no longer justified because of either a change in the law or a change in the factual circumstances. City of Boise v. Ada County (In re Facilities & Equip. Provided by the City of Boise), 147 Idaho 794, 215 P.3d 514 (2009).

Continuing Responsibility.

City did not meet its burden to show good and sufficient cause for setting aside an order under this section from 1980, requiring the city to provide facilities for a magistrate division of the district court. While Twin Falls County v. Cities of Twin Falls and Filer , 143 Idaho 398, 146 P.3d 664 (2006), precluded the district judges from ordering a city to reimburse a county for use of county-owned facilities, the decision did not absolve the city of its responsibilities under the order. Additionally, the construction of a new county courthouse and the fact that the city voluntarily transferred its rights to all fees collected under§ 31-3201A to the county did not relieve the city of its responsibilities under the order. City of Boise v. Ada County (In re Facilities & Equip. Provided by the City of Boise), 147 Idaho 794, 215 P.3d 514 (2009).

Due Process.

For a city to receive suitable process in the creation and issuance of an order under this section, it must have the opportunity to appear and be heard in court before being required to provide any specific quarters, facilities, equipment or expenses. Ada County v. City of Garden City, 155 Idaho 914, 318 P.3d 904 (2014).

Payments to County.

Scope of Order.

An order issued by a district court under this section, requiring a city to provide suitable and adequate quarters for a magistrate division of the district court, did not impose a tax or raise general revenue and, thus, did not implicate the prohibition in Idaho Const., Art. VII, § 5 against duplicative and non-uniform taxes. City of Boise v. Ada County (In re Facilities & Equip. Provided by the City of Boise), 147 Idaho 794, 215 P.3d 514 (2009). OPINIONS OF ATTORNEY GENERAL

The staff personnel provided by the county or city are not given specific statutory authorization to perform any of the functions of court attendants, nor are they recognized as peace officers; thus, they are not competent to perform the full range of security functions of court attendants.OAG 87-3.

Effective Dates.

Section 4 of S.L. 1969, ch. 121 provided that the act should be effective at 12:01 a.m. on January 11, 1971.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Voting on Magistrates.

Plaintiff’s argument that Idaho law required that the judge be subject to an election for retention failed because the statute’s plain language was not susceptible of any meaning beyond requiring a magistrate to run for retention in the county for which he was appointed, and not in any or all counties where the magistrate heard cases. Ackerman v. Bonneville County, 140 Idaho 307, 92 P.3d 557 (Ct. App. 2004).

Cross References.

Public employees retirement system,§ 59-1301 et seq.

Prior Laws.

Former§ 1-2221, which comprised I.C.,§ 1-2221, as added by 1975, ch. 25, § 1, p. 40; am. 1993, ch. 82, § 1, p. 212; am. 1994, ch. 180, § 6, p. 420., was repealed by S.L. 2000, ch. 385, § 8, effective January 1, 2000.

Amendments.

The 2015 amendment, by ch. 61, in subsection (7), substituted “comply with all applicable provisions of the Idaho code of judicial conduct” for “not engage in the practice of law other than as a mediator or arbitrator or similar alternate dispute resolution function; not accept a position in another branch of state government or any political subdivision; not accept a position in the government of the United States or of another state or nation”.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 21 of S.L. 1989, ch. 155 provided that the act should take effect January 15, 1990.

Cross References.

Public employees retirement system,§ 59-1301 et seq.

Effective Dates.

Section 3 of S.L. 2006, ch. 267 provided that the act should take effect on and after July 1, 2006, and shall apply only to full-time magistrate judges who retire on or after July 1, 2006.

Amendments.

The 2006 amendment, by ch. 263, twice substituted “five thousand dollars ($5,000)” for “four thousand dollars ($4,000).”

Effective Dates.

Section 16 of S.L. 1969, ch. 103 provided that this act, enacting§§ 1-2301 — 1-2315, should become effective January 11, 1971.

Section 2 of S.L. 2002, ch. 74 declared an emergency. Approved March 11, 2002.

Corporations.

Since a corporation is a person with the ordinary rights of a person, county hospital was not barred from suing in the small claims department because it is not a natural person. Bissett v. Unnamed Members of Political Compact, 111 Idaho 863, 727 P.2d 1291 (Ct. App. 1986).

Cross References.

Dishonor of check by nonacceptance or nonpayment, liability for interest, costs and attorney’s fees,§ 28-22-105. •Title 1»«Ch. 23»«§ 1-2301A»

Cross References.

Dishonor of check by nonacceptance or nonpayment, liability for interest, costs and attorney’s fees,§ 28-22-105. Dishonor of negotiable instruments,§ 28-3-501 et seq,

Theft,§ 18-2401 et seq.

Compiler’s Notes.

This section, which was formerly compiled as§ 18-3107, was amended and redesignated by S.L. 1983, ch. 192, § 2 as this section.

Amendments.

The 2008 amendment, by ch. 347, in the first sentence, substituted “license issued” for “permit issued” and updated the section reference in light of 2008 legislation.

Bankruptcy Code.

Debtor was convicted of passing bad checks arising out of a purchase by debtor of cattle from the other party to the transaction. The state criminal court placed debtor on probation and ordered that he pay other party restitution. Several months later debtor and his wife filed for Chapter 7 bankruptcy relief. Under applicable state law, other party held a claim against debtor based on the dishonor of the checks independent from any obligation created via the criminal prosecution. Accordingly, the court found that the defendant was a creditor of debtor at the time of its receipt of the restitution payments, and that those payments were avoidable by the bankruptcy trustee under the Bankruptcy Code. Zimmerman v. Itano Farms, Inc. (In re Currey), 144 Bankr. 490 (Bankr. D. Idaho 1992).

Where defendant admitted to the state court in a prosecution under§ 18-3106 that he delivered checks to plaintiff knowing that he did not have the funds on deposit to cover the checks and that he did so wilfully and with the intent to defraud plaintiff, such findings supported a claim in favor of plaintiff over defendant under this section for the amount of the checks and, in addition supported a finding that the indebtedness created thereby was exempted from defendant’s discharge under the federal Bankruptcy Code. Itano Farms, Inc. v. Currey, 154 Bankr. 977 (Bankr. D. Idaho 1993).

Cross References.

Court technology fund,§ 1-1623.

District court fund,§ 31-867.

Senior magistrate judges fund,§ 1-2224.

Prior Laws.

Former§ 1-2303, which comprised 1969, ch. 103, § 3, p. 348; am. 1979, ch. 219, § 5, p. 607, was repealed by S.L. 2000, ch. 250, § 4, effective January 1, 2001.

Amendments.

The 2009 amendment, by ch. 80, rewrote the last paragraph, which formerly read: “The court shall collect in advance upon each claim the sum of seven dollars ($7.00), which shall be in addition to the costs necessary to effect service of the claim upon the defendant, and which shall be paid to the county treasurer for deposit in the district court fund of the county.”

The 2014 amendment, by ch. 190, added the subsection designations; in present subsection (3), substituted “thirty-three dollars ($33.00)” for “thirteen dollars ($13.00)” in the first sentence and added “and twenty dollars ($20.00) shall be paid to the county treasurer who shall, within five (5) days after the end of the month, pay such fees to the state treasurer for deposit into the court technology fund” at the end. •Title 1»«Ch. 23»«§ 1-2303»

Cross References.

Court technology fund,§ 1-1623.

District court fund,§ 31-867.

Senior magistrate judges fund,§ 1-2224.

Prior Laws.

Former§ 1-2303, which comprised 1969, ch. 103, § 3, p. 348; am. 1979, ch. 219, § 5, p. 607, was repealed by S.L. 2000, ch. 250, § 4, effective January 1, 2001.

Amendments.

The 2009 amendment, by ch. 80, rewrote the last paragraph, which formerly read: “The court shall collect in advance upon each claim the sum of seven dollars ($7.00), which shall be in addition to the costs necessary to effect service of the claim upon the defendant, and which shall be paid to the county treasurer for deposit in the district court fund of the county.”

The 2014 amendment, by ch. 190, added the subsection designations; in present subsection (3), substituted “thirty-three dollars ($33.00)” for “thirteen dollars ($13.00)” in the first sentence and added “and twenty dollars ($20.00) shall be paid to the county treasurer who shall, within five (5) days after the end of the month, pay such fees to the state treasurer for deposit into the court technology fund” at the end. The 2018 amendment, by ch. 126, substituted “twenty-one (21) days” for “twenty (20) days” in the last sentence of subsection (1) and in subsection (2).

Prior Laws.

Former§ 1-2304, which comprised 1969, ch. 103, § 4, p. 348; am. 1999, ch. 115, § 2, p. 348, was repealed by S.L. 2000, ch. 250, § 4, effective January 1, 2001.

Decisions Under Prior Law

Award of Fee.

District court erred by including the $17.50 small claims filing fee as part of the award of costs allowed on appeal pursuant to Idaho R. Civ. P. 81(p), as the fee for filing the small claims action, which the magistrate awarded in the small claims trial, was not a cost on appeal, and plaintiff respondent was, therefore, entitled to the additional $17.50 awarded by the magistrate; hence the judgment would be modified to add $17.50 costs to respondent’s award. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

Prior Laws.

Former§ 1-2306, which comprised 1969, ch. 103, § 6, p. 348; am. 1982, ch. 363, § 1, p. 913, was repealed by S.L. 2000, ch. 250, § 8, effective January 1, 2001.

Prior Laws.

Former§ 1-2307, which comprised 1969, ch. 103, § 7, p. 348; am. 1996, ch. 373, § 2, p. 1269, was repealed by S.L. 2000, ch. 250, § 8, effective January 1, 2001.

Compiler’s Notes.

This section, which was formerly compiled as§ 1-2308, was amended and redesignated as this section, effective January 1, 2001.

The bracketed designation was added to the first paragraph by the compiler, as it was mistakenly not included in the 2000 amendment.

Effective Dates.

Section 13 of S.L. 2000, ch. 250 provided that the act shall apply to all actions filed on and after January 1, 2001.

Decisions Under Prior Law

Denial of Right to Counsel.

Procedural due process is not denied either a plaintiff or a defendant in a small claims court where each cannot be represented by counsel, because a plaintiff, by knowingly commencing his action therein cannot thereafter object to a denial of counsel, and a defendant may avail himself of the right under§ 1-1511 (repealed) to appeal to the district court and a trial de novo with assistance of counsel. Foster v. Walus, 81 Idaho 452, 347 P.2d 120 (1959).

Compiler’s Notes.

This section is amended and redesignated as§ 1-2307, effective January 1, 2001, pursuant to S.L. 2000, ch. 250, § 10.

Amendments.

The 2006 amendment, by ch. 263, added the last two sentences.

Cross References.

Court technology fund,§ 1-1623.

Amendments.

The 2014 amendment, by ch. 190, added the last sentence in the section.

Attorney’s Fee.

Section 12-121’s general award of attorney fees is inconsistent with the more specific provision of this section in regard to awarding attorney fees to prevailing parties in an appeal from the small claims department, and§ 12-121 is, therefore, not applicable to the award of attorney fees on such appeals. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

Idaho R. Civ. P. 8 [now Small Claim Rule 15] merely restates the statutory provision for the award of attorney fees in small claims court found in this section. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982). •Title 1»«Ch. 23»«§ 1-2311»

Cross References.

Court technology fund,§ 1-1623.

Amendments.

The 2014 amendment, by ch. 190, added the last sentence in the section.

Attorney’s Fee.

Section 12-121’s general award of attorney fees is inconsistent with the more specific provision of this section in regard to awarding attorney fees to prevailing parties in an appeal from the small claims department, and§ 12-121 is, therefore, not applicable to the award of attorney fees on such appeals. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

Constitutionality.

Idaho R. Civ. P. 8 [now Small Claim Rule 15] merely restates the statutory provision for the award of attorney fees in small claims court found in this section. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982). Constitutionality.

Since this section and§ 1-2312 and Idaho R. Civ. P. 81 (l) [now Small Claim Rule 15] require that a person be deprived of his property before he has had a full due process hearing, the bond requirements of said sections are unconstitutional. However, the filing fee ($20.00) is not in the nature of a bond, and, therefore, is not unconstitutional Frizzell v. Swafford, 104 Idaho 823, 663 P.2d 1125 (1983) (decision prior to 1985 amendment of this section and§ 1-2312).

Jurisdictional Amount.

The limitations on jurisdictional amount in magistrate courts do not apply in district court, a district court hearing a small claims appeal de novo is not a small claims court, and a district court damage award may exceed the limitation of what a small claims court could award. Gilbert v. Moore, 108 Idaho 165, 697 P.2d 1179 (1985).

Taking Without Due Process.

To allow execution on a small claims judgment before either an appeal has been made final or the time for filing such appeal has expired is a taking without due process. Frizzell v. Swafford, 104 Idaho 823, 663 P.2d 1125 (1983).

Time for Filing.

The time for appeal from a small claims decision begins to run upon the filing of the judgment in the clerk’s office and not upon the signing of the judgment by the judge; accordingly, where notice of appeal was filed more than 30 days after judgment was signed but within 30 days after judgment was filed by clerk, appeal was timely. Smethers v. Wilson, 106 Idaho 159, 676 P.2d 734 (Ct. App. 1984).

Constitutionality.

Since§ 1-2311, this section and Idaho R. Civ. P. 81( l ) require that a person be deprived of his property before he has had a full due process hearing, the bond requirements of said sections are unconstitutional. However, the filing fee ($20.00) is not in the nature of a bond, but is a nonrecoverable fee and, therefore, is not unconstitutional. Frizzell v. Swafford, 104 Idaho 823, 663 P.2d 1125 (1983) (decision prior to 1985 amendment of this section and§ 1-2311).

Taking Without Due Process.

To allow execution on a small claims judgment before either an appeal has been made final or the time for filing such appeal has expired is a taking without due process. Frizzell v. Swafford, 104 Idaho 823, 663 P.2d 1125 (1983).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the 1969 Session Laws.

Effective Dates.

Section 16 of S.L. 1969, ch. 103 provided that the act should be effective at 12:01 a.m. on January 11, 1971.

Compiler’s Notes.

The bracketed word “known” was inserted by the compiler.

The words “this act” refer to S.L. 1980, ch. 245, which is compiled as§§ 1-2401 to 1-2411.

Effective Dates.

Section 2 of S. L. 1980, ch. 245 read: “This act shall be in full force and effect on and after July 1, 1981. After this date, the supreme court may transfer nonargued appeals pending before it to the court of appeals for hearing and decision, consistent with this act.”

Cross References.

Idaho supreme court,§ 1-201 et seq.

Compiler’s Notes.

The words “this act” refer to S.L. 1980, ch. 245, which is compiled as§§ 1-2401 to 1-2411.

Cross References.

Public employee retirement system,§ 59-1301 et seq.

Amendments.

The 2008 amendment, by ch. 24, in subsection (1), substituted “four (4) judges” for “three (3) judges”; at the end of paragraph (4)(a), deleted “except that no judge of the court of appeals shall serve beyond the limits set forth in section 1-2007, Idaho Code”; and added paragraph (4)(g).

The 2014 amendment, by ch. 291, deleted “shall receive an annual salary in an amount of one thousand dollars ($1,000) less than the annual salary of a supreme court justice and” following “court of appeals” in subsection (5).

The 2015 amendment, by ch. 310, substituted “Election — Selection — Compensation” for “Selection — Election — Compensation” in the section heading and rewrote subsection (2), which formerly read: “No person shall be appointed or elected to the office of judge of the court of appeals unless he has attained the age of thirty (30) years at the time of his appointment or election, is a citizen of the United States, shall have been admitted to the practice of law for at least ten (10) years prior to taking office, and is admitted to practice law in the state of Idaho, and has resided within this state two (2) years next preceding his appointment or election”.

Compiler’s Notes.

The phrase “effective date of this act,” in paragraph (4)(c), refers to the effective date of S.L. 1981, ch. 271, which was July 1, 1981. (e) Nominations and appointments to fill initial or subsequent vacancies shall be made with due regard for balanced geographical membership of the court of appeals.

(f) Subsequent terms of office of a judge who has been appointed to the court of appeals shall be subject to a statewide nonpartisan election to be held in the primary election next preceding the expiration of an appointed term in the same method and manner as a justice of the supreme court.

(g) A fourth judge of the court of appeals shall be appointed by the governor effective the first Monday of January, 2009, for an initial term to expire on the first Monday of January, 2013. Thereafter, the term of office for this position shall be six (6) years. The judicial council shall submit the names of not less than two (2) nor more than four (4) persons for the initial vacancy in this position under the procedure set forth in section 1-2102, Idaho Code. This position shall be subject to all of the provisions relating to qualifications, removal, discipline, retirement, filling of vacancies, election and compensation set forth in this chapter.

(5) Judges of the court of appeals, except for judges who have made an election to remain in the public employee retirement system of Idaho pursuant to section 1-2011, Idaho Code, shall receive compensation upon retirement as provided in chapter 20, title 1, Idaho Code.

History.

I.C.,§ 1-2404, as added by 1980, ch. 245, § 1, p. 565; am. 1981, ch. 271, § 1, p. 572; am. 1985, ch. 29, § 5, p. 52; am. 1998, ch. 126, § 4, p. 466; am. 2008, ch. 24, § 1, p. 36; am. 2014, ch. 291, § 4, p. 734; am. 2015, ch. 310, § 2, p. 1215.

Cross References.

Public employee retirement system,§ 59-1301 et seq.

Amendments.

The 2008 amendment, by ch. 24, in subsection (1), substituted “four (4) judges” for “three (3) judges”; at the end of paragraph (4)(a), deleted “except that no judge of the court of appeals shall serve beyond the limits set forth in section 1-2007, Idaho Code”; and added paragraph (4)(g).

The 2014 amendment, by ch. 291, deleted “shall receive an annual salary in an amount of one thousand dollars ($1,000) less than the annual salary of a supreme court justice and” following “court of appeals” in subsection (5).

The 2015 amendment, by ch. 310, substituted “Election — Selection — Compensation” for “Selection — Election — Compensation” in the section heading and rewrote subsection (2), which formerly read: “No person shall be appointed or elected to the office of judge of the court of appeals unless he has attained the age of thirty (30) years at the time of his appointment or election, is a citizen of the United States, shall have been admitted to the practice of law for at least ten (10) years prior to taking office, and is admitted to practice law in the state of Idaho, and has resided within this state two (2) years next preceding his appointment or election”.

Compiler’s Notes.

Effective Dates.

The phrase “effective date of this act,” in paragraph (4)(c), refers to the effective date of S.L. 1981, ch. 271, which was July 1, 1981. Effective Dates.

Section 9 of S.L. 1985, ch. 29 read: “This act shall be in full force and effect on and after July 1, 1985; provided that notwithstanding the provisions of sections 3, 4, 5 and 6 of this act, it is the intent of the legislature that the provisions of this act requiring that persons be admitted to the practice of law within this state for at least ten years prior to taking office, shall not apply to justices or judges holding office on the effective date of this act, nor prohibit them from seeking election, reelection or appointment to the office of supreme court justice, court of appeals judge, or district judge, as provided by law.”

Cross References.

Industrial commission,§ 72-501 et seq.

Public utilities commission,§ 61-201 et seq.

Augmentation of Record.

The court of appeals will not address the issue of a denied motion to augment the record made before the supreme court, absent some basis for renewing the motion. This may occur via a renewed motion, with new evidence to support it, filed with the court of appeals or the presentation of refined, clarified, or expanded issues on appeal that demonstrates the need for additional records or transcripts, in effect renewing the motion. State v. Cornelison, 154 Idaho 793, 302 P.3d 1066 (Ct. App. 2013). •Title 1»«Ch. 24•«§ 1-2406»

Cross References.

Industrial commission,§ 72-501 et seq.

Public utilities commission,§ 61-201 et seq.

Augmentation of Record.

The court of appeals will not address the issue of a denied motion to augment the record made before the supreme court, absent some basis for renewing the motion. This may occur via a renewed motion, with new evidence to support it, filed with the court of appeals or the presentation of refined, clarified, or expanded issues on appeal that demonstrates the need for additional records or transcripts, in effect renewing the motion. State v. Cornelison, 154 Idaho 793, 302 P.3d 1066 (Ct. App. 2013). RESEARCH REFERENCES

A.L.R.

§ 1-2407. Administration — Employees and clerical assistance for court — Official seal and court of record — Place of sessions.

1. The court of appeals shall be subject to the administrative policies and procedures which may be established by the supreme court.
2. Appointment of employees by the court of appeals shall be governed by personnel policies approved by rule of the supreme court.
3. The clerk of the supreme court shall be the clerk of the court of appeals.
4. The court of appeals shall have an official seal and shall be a court of record.
5. The principal office of the court of appeals and chambers of its judges, except those serving pursuant to section 1-2405, Idaho Code, shall be at Boise, Idaho.
6. The court of appeals shall sit in Boise, but also may sit in such other places as it considers convenient for the conduct of its business.
7. All proceedings of the court of appeals shall be governed by rules of the supreme court and by rules of the court of appeals approved by the supreme court.

History.

I.C.,§ 1-2407, as added by 1980, ch. 245, § 1, p. 565.

Amendments.

The 2014 amendment, by ch. 291, added the last sentence in the section.

The 2017 amendment, by ch. 168, substituted “three thousand dollars ($3,000)” for “two thousand dollars ($2,000)” in the last sentence.

Effective Dates.

Section 5 of S.L. 1981, ch. 271 provided that the act should become effective July 1, 1981.

Compiler’s Notes.

The words “this act” refer to S.L. 1980, ch. 245, which is compiled as§§ 1-2401 to 1-2411.

Effective Dates.

Section 2 of S. L. 1980, ch. 245 read: “This act shall be in full force and effect on and after July 1, 1981. After this date, the supreme court may transfer nonargued appeals pending before it to the court of appeals for hearing and decision, consistent with this act.”