Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 724; R.S., R.C., & C.L., § 4955; C.S., § 7240; I.C.A.,§ 13-101, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 1(a) and 3(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 725; R.S., R.C., & C.L., § 4956; C.S., § 7241; I.C.A.,§ 13-102, was repealed by S.L. 1975, ch. 242, § 1.

Cross References.

Abbreviations and numbers used in pleadings, Idaho R. Civ. P. 10(a)(3).

Appeals, Idaho App. R. 3, 5.

Costs allowed as of course to defendant, Idaho R. Civ. P. 54(d)(1).

Court seal to be affixed to writs,§ 1-1616.

Court terms abolished, Idaho R. Civ. P. 77(a).

Fees of clerk of supreme court upon filing application for writ,§ 1-402.

New trials, Idaho R. Civ. P. 59(a) to 59(e).

Proceedings to be in English language, Idaho R. Civ. P. 10(a)(3).

Statute of limitations applicable to special proceedings of a civil nature,§ 5-240.

Stenographic record to be furnished by court reporter,§ 1-1105.

Successive applications for orders, Idaho R. Civ. P. 11(a)(2).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Nature of Writ.

In adoption and ratification of constitution, power to issue writ therein granted to supreme court was limited to writ then known and in use in territory. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

Review is limited to sole question of whether or not the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer. Beus v. Terrell, 46 Idaho 635, 269 P. 593 (1928).

Review Denied.

A notice of appeal will not serve as a petition for a writ of review or certiorari as provided in this section. State v. Berlin, 95 Idaho 225, 506 P.2d 122 (1973). Review Denied.

Where state did not appeal from order withholding judgment, it could not appeal from previous order reducing charges from felony to misdemeanor as such order did not fall within the language of Idaho App. R. 11(c)(3) or (6); nor would supreme court exercise its plenary power to hear such appeal, underIdaho Const., Art. V, § 9, or treat the appeal as a petition for a writ of review under this section. State v. Molinelli, 105 Idaho 833, 673 P.2d 433 (1983).

Am. Jur. 2d.

C.J.S.

Cross References.

Jurisdiction of district court,§ 1-705.

Jurisdiction of supreme court,Idaho Const., Art. V, § 9;§ 1-202.

Another Adequate Remedy.

If a court undertakes to proceed in a matter without or in excess of its jurisdiction, remedy of one who is affected by such contemplated action is by writ of prohibition, not by writ of review. Gunderson v. District Court, 14 Idaho 478, 94 P. 166 (1908).

Writ of review will be denied where relief can be obtained by writ of mandate. Kootenai County v. State Bd. of Equalization, 31 Idaho 155, 169 P. 935 (1917).

Constitutional writ is not available when there is plain, speedy, and adequate remedy at law. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

Writ of review will not be granted unless trial court has exceeded its jurisdiction and no speedy or adequate remedy by appeal or otherwise is available. Beus v. Terrell, 46 Idaho 635, 269 P. 593 (1928); Vaught v. District Court, 46 Idaho 642, 269 P. 595 (1928).

Even if there is a lack or excess of jurisdiction, prohibition will not ordinarily issue if there is another adequate remedy of review. Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953). •Title 7»«Ch. 2»«§ 7-202»

Cross References.

Jurisdiction of district court,§ 1-705.

Jurisdiction of supreme court,Idaho Const., Art. V, § 9;§ 1-202.

Another Adequate Remedy.

If a court undertakes to proceed in a matter without or in excess of its jurisdiction, remedy of one who is affected by such contemplated action is by writ of prohibition, not by writ of review. Gunderson v. District Court, 14 Idaho 478, 94 P. 166 (1908).

Writ of review will be denied where relief can be obtained by writ of mandate. Kootenai County v. State Bd. of Equalization, 31 Idaho 155, 169 P. 935 (1917).

Constitutional writ is not available when there is plain, speedy, and adequate remedy at law. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

Writ of review will not be granted unless trial court has exceeded its jurisdiction and no speedy or adequate remedy by appeal or otherwise is available. Beus v. Terrell, 46 Idaho 635, 269 P. 593 (1928); Vaught v. District Court, 46 Idaho 642, 269 P. 595 (1928).

Appeal.

Even if there is a lack or excess of jurisdiction, prohibition will not ordinarily issue if there is another adequate remedy of review. Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953). Appeal.

Allegation in a petition for writ of certiorari that, if appeal be taken, expense will be heavy and disproportionate to amount plaintiff will recover is not a reason why appeal will not be a plain, speedy, and adequate remedy, and does not warrant the supreme court in reviewing judgment by writ of certiorari. Canadian Bank of Commerce v. Wood, 13 Idaho 794, 93 P. 257 (1907).

Supreme court cannot entertain an appeal directly from an order of the public utilities commission. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

Order in divorce suit granting alimony, suit money, and attorney’s fees is not appealable order. Crosslin v. Crosslin, 35 Idaho 765, 208 P. 402 (1922); Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

“No appeal,” as used in this section, means direct appeal from particular order in question. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

Writ of review will not lie when there is remedy by appeal. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924); Malloy v. Keel, 43 Idaho 211, 250 P. 389 (1926).

When the legislature provided for an “appeal” from any order of the state board of education, the supreme court could not hold that it intended to say “writ of review,” such appeal involving a petition to detach an area from one school district and join it to another. Electors v. State Bd. of Educ., 78 Idaho 602, 308 P.2d 225 (1957).

Applicability.

Writ of review will lie:

To review an order appointing a receiver. Sweeny v. Mayhew, 6 Idaho 455, 56 P. 85 (1899).

To review an order of probate judge in supplementary proceedings requiring garnishee to pay certain money, claimed to be exempt, to sheriff in satisfaction of judgment. Gans v. Steele, 7 Idaho 143, 61 P. 286 (1900).

To review an order disbarring an attorney made without application therefor or notice to attorney. Good v. Steele, 8 Idaho 538, 69 P. 319 (1902).

To review and correct an order of district court quashing jury panel made in excess of jurisdiction of court. Heitman v. Morgan, 10 Idaho 562, 79 P. 225 (1905).

To review an order granting alimony and suit money, although such result might be accomplished by appeal from final judgment in case. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

To determine the sufficiency of an appeal from the justice or the probate court to the district court; if the appeal as a matter of fact has been properly perfected, the district court has no jurisdiction except to try the case de novo or dismiss on the merits and dismissal of appeal would be excess of jurisdiction. State v. Stokes, 55 Idaho 51, 37 P.2d 404 (1934).

To review the action of the state board of equalization under a writ of review and determine whether it has exceeded its jurisdiction. Ada County v. Bottolfsen, 61 Idaho 64, 97 P.2d 599 (1939).

Contempt Order.

A writ of review is a proper method to seek a higher court’s review of a lower court’s jurisdiction to issue a contempt order. Beeman v. Petrie, 123 Idaho 838, 853 P.2d 583 (1993).

A contempt order of a magistrate judge that is certified by the magistrate judge to be final as provided by Idaho R. Civ. P. 54(b) is appealable to the district judge. Beeman v. Petrie, 123 Idaho 838, 853 P.2d 583 (1993).

If a contempt order is properly certified to be final, the party who seeks review of the order must appeal, rather than pursue a writ of review; however, if a party wishes only to challenge the jurisdiction of the court to issue the contempt order, and if the order has not been properly certified as final pursuant to Idaho R. Civ. P. 54(b), the party may pursue a writ of review. Beeman v. Petrie, 123 Idaho 838, 853 P.2d 583 (1993).

Where defendant did not request certification of the magistrate judge’s finding of contempt and order pursuant to Idaho R. Civ. P. 54(b), defendant did not have the right to appeal, but only to challenge, by means of a writ of review, the magistrate judge’s jurisdiction to issue a contempt order. Beeman v. Petrie, 123 Idaho 838, 853 P.2d 583 (1993).

Extent of Review.

In reviewing an order holding a party in contempt of court, while the reviewing court may not weigh the evidence, it has the right to examine the record to determine whether there is any substantial evidence to support the order of the trial court; for if there is a lack of evidence, then the trial court would have acted in excess of its jurisdiction. Mathison v. Felton, 90 Idaho 87, 408 P.2d 457 (1965).

In a petition for writ of review, the sole question before the court was whether the district court acted within its jurisdiction in finding the petitioner in contempt for violation of a previously issued injunction and whether substantial competent evidence supported the court’s findings; the fact that the proceeding resulted from a contempt adjudication did not change that standard of review. Shaub v. District Court of Fifth Judicial Dist., 96 Idaho 924, 539 P.2d 277 (1975).

Operating Property.

Idaho tax commission was required to first determine if property should be classified as operating property. Then, and only then, could an assessor either petition for a writ of review to dispute the classification or assess the property, if it was non-operating property, depending upon the commission’s definition of operating property. Therefore, a district court properly granted summary judgment in favor of a taxpayer in a case where a county assessor assessed property as non-operating after the same property had already been assessed as operating by the commission. Union Pac. Land Res. Corp. v. Shoshone County Assessor, 140 Idaho 528, 96 P.3d 629 (2004).

Time of Application.

Time within which an appeal may be taken in appealable cases will be deemed to be limit of a reasonable time for an application for writ of review, unless exceptional circumstances be shown which justify extension of time. Pullman Co. v. State Bd. of Equalization, 31 Idaho 316, 171 P. 260 (1918).

To Whom Issued.

Writ may issue out of the supreme court to state board of equalization to review its action in improperly reducing or increasing assessed valuation of classes of property. Orr v. State Bd. of Equalization, 3 Idaho 190, 28 P. 416 (1891). A writ of review is a proper method to seek a higher court’s review of a lower court’s jurisdiction to issue a contempt order. Beeman v. Petrie, 123 Idaho 838, 853 P.2d 583 (1993).

A contempt order of a magistrate judge that is certified by the magistrate judge to be final as provided by Idaho R. Civ. P. 54(b) is appealable to the district judge. Beeman v. Petrie, 123 Idaho 838, 853 P.2d 583 (1993).

If a contempt order is properly certified to be final, the party who seeks review of the order must appeal, rather than pursue a writ of review; however, if a party wishes only to challenge the jurisdiction of the court to issue the contempt order, and if the order has not been properly certified as final pursuant to Idaho R. Civ. P. 54(b), the party may pursue a writ of review. Beeman v. Petrie, 123 Idaho 838, 853 P.2d 583 (1993).

Where defendant did not request certification of the magistrate judge’s finding of contempt and order pursuant to Idaho R. Civ. P. 54(b), defendant did not have the right to appeal, but only to challenge, by means of a writ of review, the magistrate judge’s jurisdiction to issue a contempt order. Beeman v. Petrie, 123 Idaho 838, 853 P.2d 583 (1993).

Extent of Review.

In reviewing an order holding a party in contempt of court, while the reviewing court may not weigh the evidence, it has the right to examine the record to determine whether there is any substantial evidence to support the order of the trial court; for if there is a lack of evidence, then the trial court would have acted in excess of its jurisdiction. Mathison v. Felton, 90 Idaho 87, 408 P.2d 457 (1965).

In a petition for writ of review, the sole question before the court was whether the district court acted within its jurisdiction in finding the petitioner in contempt for violation of a previously issued injunction and whether substantial competent evidence supported the court’s findings; the fact that the proceeding resulted from a contempt adjudication did not change that standard of review. Shaub v. District Court of Fifth Judicial Dist., 96 Idaho 924, 539 P.2d 277 (1975).

Operating Property.

Idaho tax commission was required to first determine if property should be classified as operating property. Then, and only then, could an assessor either petition for a writ of review to dispute the classification or assess the property, if it was non-operating property, depending upon the commission’s definition of operating property. Therefore, a district court properly granted summary judgment in favor of a taxpayer in a case where a county assessor assessed property as non-operating after the same property had already been assessed as operating by the commission. Union Pac. Land Res. Corp. v. Shoshone County Assessor, 140 Idaho 528, 96 P.3d 629 (2004).

Time of Application.

Time within which an appeal may be taken in appealable cases will be deemed to be limit of a reasonable time for an application for writ of review, unless exceptional circumstances be shown which justify extension of time. Pullman Co. v. State Bd. of Equalization, 31 Idaho 316, 171 P. 260 (1918).

To Whom Issued.

Writ may issue out of the supreme court to state board of equalization to review its action in improperly reducing or increasing assessed valuation of classes of property. Orr v. State Bd. of Equalization, 3 Idaho 190, 28 P. 416 (1891). Board of county commissioners is not a judicial tribunal to which writ of review may issue. Rogers v. Hayes, 3 Idaho 597, 32 P. 259 (1893).

Writ may issue out of district court to probate or justice’s courts. Gans v. Steele, 7 Idaho 143, 61 P. 286 (1900).

Writ will not issue out of supreme court to review judgment of justice of peace. Nordyke & Marmon Co. v. McConkey, 7 Idaho 562, 64 P. 893 (1901).

State board of canvassers, in canvassing election returns sent up by boards of canvassers of several counties and computing total vote received by each candidate and certifying to secretary of state names of persons who received majority or plurality, of all votes cast for each respective office, is discharging a ministerial duty rather than a judicial function; mathematical computation and calculation does not constitute exercise of judicial functions. Lansdon v. State Bd. of Canvassers, 18 Idaho 596, 111 P. 133 (1910).

When Issued.

For writ of certiorari to be granted under this section it must appear: (1) That lower court exceeded its jurisdiction; (2) that there was no appeal; (3) that there was no other plain, speedy or adequate remedy. People v. Lindsay, 1 Idaho 394 (1871); Dahlstrom v. Portland Mining Co., 12 Idaho 87, 85 P. 916 (1906); Beus v. Terrell, 46 Idaho 635, 269 P. 593 (1928); Vaught v. District Court, 46 Idaho 642, 269 P. 595 (1928).

Writ will only issue where officer or board has exceeded jurisdiction, not for erroneous action. First Nat’l Bank v. Washington County, 17 Idaho 306, 105 P. 1053 (1909); Beus v. Terrell, 46 Idaho 635, 269 P. 593 (1928).

Upon writ of review issued upon order for imprisonment for contempt until performance of act, review extends to evidence itself to extent of inquiring whether there was any evidence to furnish substantial basis for adjudging party guilty of contempt and that act is “in power of person to perform.” Vollmer v. Vollmer, 46 Idaho 97, 266 P. 677 (1928).

Petition to determine validity of title selected by attorney-general for initiated measure is in the nature of a proceeding for a writ of certiorari or review. In re Idaho State Fed’n of Labor, 75 Idaho 367, 272 P.2d 707 (1954).

Issue presented was whether plaintiff, who was appointed by county commissioners, or defendant, elected in the general election, is probate judge for period from general election on November 3, 1964, to date set by legislature for assumption of office by county elective officers, following general election; therefore, the proceeding being both for review (certiorari) and for writ of mandate, supreme court had jurisdiction to determine the issue. White v. Young, 88 Idaho 188, 397 P.2d 756 (1964).

When Not Issued.

Writ of review will not issue:

To review judgment while case is still pending on motion for new trial. People v. Lindsay, 1 Idaho 394 (1871).

To review illegal acts of board of county commissioners from which appeal will lie. Rogers v. Hayes, 3 Idaho 597, 32 P. 259 (1893); Bobbitt v. Blake, 25 Idaho 53, 136 P. 211 (1913).

To review order denying change of venue in disbarment proceedings. State v. Goode, 4 Idaho 730, 44 P. 640 (1896). To review ministerial act on part of city council, such as letting of paving contract. Adleman v. Pierce, 6 Idaho 294, 55 P. 658 (1898).

To review order made after judgment, from which appeal will lie. Porter v. Steele, 7 Idaho 414, 63 P. 187 (1900); Dahlstrom v. Portland Mining Co., 12 Idaho 87, 85 P. 916 (1906).

To pass upon constitutionality of an act upon application of private person for protection of his private property rights. McConnell v. State Bd. of Equalization, 11 Idaho 652, 83 P. 494 (1905). See also Weiser Nat’l Bank v. Washington County, 30 Idaho 332, 164 P. 1014 (1917).

To review decision of district judge appointing commissioners in eminent domain proceedings unless he has exceeded his jurisdiction. Coeur d’Alene Mining Co. v. Woods, 15 Idaho 26, 96 P. 210 (1908).

To review order made by district court within jurisdiction of such court and after having acquired jurisdiction of person and subject-matter, however erroneous it may have been. Utah Ass’n of Credit Men v. Budge, 16 Idaho 751, 102 P. 390 (1909); Shumake v. Shumake, 17 Idaho 649, 107 P. 42 (1910); Beus v. Terrell, 46 Idaho 635, 269 P. 593 (1928).

To review a judgment of conviction in police court, appeal from which is pending. State v. Hosford, 27 Idaho 185, 147 P. 286 (1915).

To review exercise of discretion or judgment in performance of official duties by state elective officers. Northwest Light & Power Co. v. Alexander, 29 Idaho 557, 160 P. 1106 (1916).

For purpose of having lawfulness of an original order or decision of public utilities commission inquired into and determined. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

To review order restraining party to action from alienating, encumbering or disposing of his property, since appeal lies from such order. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

To review order in foreclosure suit joining tenants, appointing receiver, and enjoining tenants from disposing of rent during redemption period. Malloy v. Keel, 43 Idaho 211, 250 P. 389 (1926).

To inquire into weight or sufficiency of evidence, under ordinary circumstances. Vollmer v. Vollmer, 46 Idaho 97, 266 P. 677 (1928).

To review order in condemnation proceeding adjudging necessity for taking land and appointing commissioners to view and value premises. Northwestern & Pac. Hypotheekbank v. Sutphen, 50 Idaho 720, 300 P. 496 (1931).

A writ of review will not lie from a decision of a district court acting within its jurisdiction and hearing de novo a case on appeal from a municipal court. State v. Berlin, 95 Idaho 225, 506 P.2d 122 (1971).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 728 — 732; R.S., R.C., & C.L., §§ 4963 — 4967; C.S., §§ 7244 — 7248; I.C.A.,§§ 13-203 — 13-207, were repealed by S.L. 1977, ch. 170, § 3.

Action of Governor in Removing Officer.

As long as the action of the governor in removing an officer is within the limits of power conferred upon him, the courts will not interfere to arrest his action or to review the proceedings, except to determine the question of jurisdiction; the governor, so far as the courts are concerned, is the exclusive judge of the sufficiency of proof of the charges, and the court will not review the facts upon which he acted except for the purpose of ascertaining if there is any evidence which supports his findings and order. Hawley v. Bottolfsen, 61 Idaho 101, 98 P.2d 634 (1940).

Constitutionality of Statutes.

In proceedings upon writ of review, constitutionality of statute upon which inferior tribunal based its authority cannot be passed upon. Weiser Nat’l Bank v. Washington County, 30 Idaho 332, 164 P. 1014 (1917).

Contempt Order.

The supreme court cannot reverse an order holding a party in contempt of court for disobedience of an order based upon a judgment which has since been reversed, but a provision in the order sentencing the party to jail, with sentence suspended upon his compliance with the order based upon such judgment, will be set aside. Mathison v. Felton, 90 Idaho 87, 408 P.2d 457 (1965).

A judgment of the trial court holding the appellant in contempt of court was sustained where the record showed evidence sufficient to sustain a finding that appellant had violated an order which a previous appeal had determined to be valid. Berry v. District Court, 91 Idaho 600, 428 P.2d 519 (1967).

While the supreme court has plenary power underIdaho Const., Art. V, § 9, to review a contempt case and contempt orders, a writ of review remains the proper method of securing review of a contempt order in the usual case. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983). •Title 7»«Ch. 2»«§ 7-208»

Action of Governor in Removing Officer.

As long as the action of the governor in removing an officer is within the limits of power conferred upon him, the courts will not interfere to arrest his action or to review the proceedings, except to determine the question of jurisdiction; the governor, so far as the courts are concerned, is the exclusive judge of the sufficiency of proof of the charges, and the court will not review the facts upon which he acted except for the purpose of ascertaining if there is any evidence which supports his findings and order. Hawley v. Bottolfsen, 61 Idaho 101, 98 P.2d 634 (1940).

Constitutionality of Statutes.

In proceedings upon writ of review, constitutionality of statute upon which inferior tribunal based its authority cannot be passed upon. Weiser Nat’l Bank v. Washington County, 30 Idaho 332, 164 P. 1014 (1917).

Contempt Order.

The supreme court cannot reverse an order holding a party in contempt of court for disobedience of an order based upon a judgment which has since been reversed, but a provision in the order sentencing the party to jail, with sentence suspended upon his compliance with the order based upon such judgment, will be set aside. Mathison v. Felton, 90 Idaho 87, 408 P.2d 457 (1965).

A judgment of the trial court holding the appellant in contempt of court was sustained where the record showed evidence sufficient to sustain a finding that appellant had violated an order which a previous appeal had determined to be valid. Berry v. District Court, 91 Idaho 600, 428 P.2d 519 (1967).

While the supreme court has plenary power underIdaho Const., Art. V, § 9, to review a contempt case and contempt orders, a writ of review remains the proper method of securing review of a contempt order in the usual case. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983). Where orders of contempt are examined under a writ of review, the prime question for determination is whether the inferior tribunal exceeded its jurisdiction. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Discretionary Acts.

Where state elective officers are invested with certain discretion, involving exercise of judgment in performance of their official duties, no court has right by writ of certiorari to interpose its judgment or influence their action. Northwest Light & Power Co. v. Alexander, 29 Idaho 557, 160 P. 1106 (1916).

Nature of Writ.

In the adoption and ratification of constitution, power to issue the writ therein granted to the supreme court was limited to the writ then known and in use in territory. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

Review is limited to the sole question of whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer. Hawley v. Bottolfsen, 61 Idaho 101, 98 P.2d 634 (1940).

A “writ of review” brings up the record of the tribunal, board, or body whose acts are to be examined and is issued for reviewing the law applicable to the case, instead of examining the facts of the case, except as an examination of the facts is necessary in the determination of jurisdiction; the purpose of the review is to determine primarily the law applicable to the case rather than the facts of the case. Hawley v. Bottolfsen, 61 Idaho 101, 98 P.2d 634 (1940).

Petition to determine validity of title selected by attorney-general for initiated measure is in the nature of a proceeding for a writ of certiorari or review. In re Idaho State Fed’n of Labor, 75 Idaho 367, 272 P.2d 707 (1954).

Question of Jurisdiction.

On certiorari to review an order of board of equalization raising an assessment, only question which can be considered is jurisdiction of board; mere irregularities will not be reviewed. Murphy v. Board of Comm’rs, 6 Idaho 745, 59 P. 715 (1899); Coeur d’Alene Mining Co. v. Woods, 15 Idaho 26, 96 P. 210 (1908); State Ins. Fund v. Hunt, 52 Idaho 639, 17 P.2d 354 (1932).

Where writ of review is asked upon ground that judge of district court had exceeded his jurisdiction in hearing and determining cause at chambers, and the return, which contains a copy of court record, shows that cause was heard and determined at a regular term, writ will be discharged. Porter v. Steele, 7 Idaho 414, 63 P. 187 (1900).

Certiorari and not mandate is the proper remedy to review and correct an order of the district court quashing a jury panel made in excess of jurisdiction. Heitman v. Morgan, 10 Idaho 562, 79 P. 225 (1905).

Writ of review is not a remedy for correcting errors and mistakes of judgment or for purpose of reviewing facts upon which inferior tribunal, board, or officer acted, but its province is limited to a review of questions of law, confined to the specific question as to whether or not the action complained of was in excess of jurisdiction conferred on tribunal, board, or officer. McConnell v. State Bd. of Equalization, 11 Idaho 652, 83 P. 494 (1905).

Error of law or fact committed by inferior tribunal within the limits of its jurisdiction does not constitute an excess of its jurisdiction. Beus v. Terrell, 46 Idaho 635, 269 P. 593 (1928). Sole issue in determination of writ of review is whether the trial court exceeded its jurisdiction in making disputed order. Specialty Sales, Inc. v. Graf, 73 Idaho 113, 245 P.2d 820 (1952).

Where a case is brought before the supreme court on a writ of review, the sole question for determination is whether the inferior tribunal exceeded its jurisdiction. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

On a petition for writ of review, the sole question before the court was whether the district court acted within its jurisdiction in finding the petitioner in contempt for violation of a previously issued injunction and whether substantial competent evidence supported the court’s findings; the fact that the proceeding resulted from a contempt adjudication did not change that standard of review. Shaub v. District Court of Fifth Judicial Dist., 96 Idaho 924, 539 P.2d 277 (1975).

Review of Evidence.

On certiorari to review an order appointing a receiver, court may review evidence introduced in district court, so far as is necessary to determine whether jurisdictional facts authorizing such appointment were proved. Sweeny v. Mayhew, 6 Idaho 455, 56 P. 85 (1899).

The writ does not lie to review facts, except insofar as facts are essential to determine jurisdictional question. First Nat’l Bank v. Washington County, 17 Idaho 306, 105 P. 1053 (1909); Lansdon v. State Bd. of Canvassers, 18 Idaho 596, 111 P. 133 (1910); Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

On the original writ of review in the supreme court to review the action of the Governor in removing a commissioner of the Idaho fish and game commission, inquiry is limited to whether the charges filed against the commissioner constitute charges of inefficiency, neglect of duty, or misconduct in office, and whether there was any evidence adduced to support the charges sustained by the order of removal. Hawley v. Bottolfsen, 61 Idaho 101, 98 P.2d 634 (1940).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 734 — 736; R.S., R.C., & C.L., §§ 4969 — 4971; C.S., §§ 7250 — 7252; I.C.A.,§§ 13-209 — 13-211, were repealed by S.L. 1977, ch. 170, § 3.

Cross References.

Abbreviations and numbers, use in pleadings, Idaho R. Civ. P. 10(a)(3).

Appeals, Idaho R. Civ. P. 62(c), Idaho App. R. 3.

Costs allowed, Idaho R. Civ. P. 54(d)(1).

Court seal to be affixed to writs,§ 1-1616.

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

General or special verdict authorized, Idaho R. Civ. P. 49(a), 49(b).

Initiative and referendum elections, secretary of state may be compelled to file,§ 34-1808.

Jury trial, Idaho R. Civ. P. 38(b).

New trials, Idaho R. Civ. P. 59(a) to 59(e).

Proceedings to be in English language, Idaho R. Civ. P. 10(a)(3).

Special writs, Idaho App. R. 5.

Statute of limitations applicable to special proceedings, of a civil nature,§ 5-240.

Successive application for writs, Idaho R. Civ. P. 11(a)(2).

Trial by jury may be waived, Idaho R. Civ. P. 38(d).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Distinguished from Prohibition.

Writ of mandate is distinguished from writ of prohibition in that the element want of jurisdiction is not present in this statute but is an indispensable element of prohibition. Taylor v. Girard, 54 Idaho 787, 36 P.2d 773 (1934).

Filing of Tax Returns.

The legislature in providing for the use of a writ of mandate to compel the filing of tax returns under§ 63-3030A obviously intended the statute to be read in pari materia to the general writ of mandate statutes. Mitchell v. Agents of State, 105 Idaho 419, 670 P.2d 520 (1983).

When Issued.

A writ of mandate was the proper remedy to compel county treasurer and ex officio tax collector to allow the redemption of certain lands from tax deed made as a result of failure to pay taxes on such lands. Winans v. Swisher, 68 Idaho 364, 195 P.2d 357 (1948).

Cross References.

Jurisdiction of district court,§ 1-705.

Jurisdiction of supreme court,§ 1-202 andIdaho Const., Art. V.

Affidavit.

Verified complaint satisfies the requirement that the writ must be issued upon affidavit. State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649 (1938).

Another Adequate Remedy.

Where a bondholder has a plain, speedy, and adequate remedy for the collection of principal or interest due from property owners who have failed to pay assessments made by the city authorities on property within a special improvement district, a writ of mandamus may not be resorted to for the collection of the bonded indebtedness and interest thereon. New First Nat’l Bank v. City of Weiser, 30 Idaho 15, 166 P. 213 (1916).

Where an order is appealable, mandate will not lie. Aker v. Aker, 51 Idaho 555, 8 P.2d 777 (1932).

Where, through fault of the city clerk, the assessment roll, standing as security for the payment of special or local improvement district bonds, was inadequate, bondholders’ only adequate relief was to have the property in the district exclusive of lots sold for general taxes and reassessed for payment of deficit, with interest from the date of the maturity of the bonds. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942).

Board of Land Commissioners.

The state board of land commissioners is required to use considerable judgment in the granting of mineral leases; thus, a writ of mandate would not be available to compel them to issue a lease in the absence of conduct that is arbitrary, capricious or discriminatory. Allen v. Smylie, 92 Idaho 846, 452 P.2d 343 (1969).

Conclusiveness of Judgment.

Judgment in mandamus is as conclusive as judgment in any other action and operates as an estoppel against further investigation in another action between same parties of any facts necessarily in issue or which were pleaded and decided therein. Lawrence v. Corbeille, 32 Idaho 114, 178 P. 834 (1919).

Defendant commissioner appealed from judgment of trial court in mandamus proceedings requiring his approval as to form and content and return to plaintiff of articles of incorporation for a bank and issuance to it of certificate or charter authorizing it to engage in the banking business when the trial court had held that the right of the plaintiffs to recover was to be determined by facts existing at the time of the commencement of the action and their right could not be prejudiced or affected by the subsequent action of the defendant in thereafter making findings of fact. Leuhrs v. Spaulding, 80 Idaho 326, 328 P.2d 582 (1958).

Injunction Distinguished.

When a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have injunction to prevent it; in such cases, writs of mandamus and injunction are somewhat correlative to each other. Murtaugh Hwy. Dist. v. Merritt, 59 Idaho 603, 85 P.2d 685 (1938).

Jurisdiction.

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). Where a bondholder has a plain, speedy, and adequate remedy for the collection of principal or interest due from property owners who have failed to pay assessments made by the city authorities on property within a special improvement district, a writ of mandamus may not be resorted to for the collection of the bonded indebtedness and interest thereon. New First Nat’l Bank v. City of Weiser, 30 Idaho 15, 166 P. 213 (1916).

Where an order is appealable, mandate will not lie. Aker v. Aker, 51 Idaho 555, 8 P.2d 777 (1932).

Where, through fault of the city clerk, the assessment roll, standing as security for the payment of special or local improvement district bonds, was inadequate, bondholders’ only adequate relief was to have the property in the district exclusive of lots sold for general taxes and reassessed for payment of deficit, with interest from the date of the maturity of the bonds. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942).

Board of Land Commissioners.

The state board of land commissioners is required to use considerable judgment in the granting of mineral leases; thus, a writ of mandate would not be available to compel them to issue a lease in the absence of conduct that is arbitrary, capricious or discriminatory. Allen v. Smylie, 92 Idaho 846, 452 P.2d 343 (1969).

Conclusiveness of Judgment.

Judgment in mandamus is as conclusive as judgment in any other action and operates as an estoppel against further investigation in another action between same parties of any facts necessarily in issue or which were pleaded and decided therein. Lawrence v. Corbeille, 32 Idaho 114, 178 P. 834 (1919).

Defendant commissioner appealed from judgment of trial court in mandamus proceedings requiring his approval as to form and content and return to plaintiff of articles of incorporation for a bank and issuance to it of certificate or charter authorizing it to engage in the banking business when the trial court had held that the right of the plaintiffs to recover was to be determined by facts existing at the time of the commencement of the action and their right could not be prejudiced or affected by the subsequent action of the defendant in thereafter making findings of fact. Leuhrs v. Spaulding, 80 Idaho 326, 328 P.2d 582 (1958).

Injunction Distinguished.

When a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have injunction to prevent it; in such cases, writs of mandamus and injunction are somewhat correlative to each other. Murtaugh Hwy. Dist. v. Merritt, 59 Idaho 603, 85 P.2d 685 (1938).

Jurisdiction.

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). Issue presented was whether plaintiff, who was appointed by county commissioners, or defendant, elected in the general election, is probate judge for period from general election on November 3, 1964, to date set by legislature for assumption of office by county elective officers, following general election; therefore, the proceeding being both for review (certiorari) and for writ of mandate, supreme court had jurisdiction to determine the issue. White v. Young, 88 Idaho 188, 397 P.2d 756 (1964).

Once the supreme court has asserted its original jurisdiction, it may issue writs of mandamus and/or prohibition. Mead v. Arnell, 117 Idaho 660, 791 P.2d 410 (1990).

Limitations and Laches.

Where mandamus to compel reassessment of property within a special or local improvement district was brought some 18 months after actual notice of the deficiency, through the city clerk’s fault, the action was not barred by limitation. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942).

Other Adequate Remedies.

Where an agency petitioned for a writ of mandamus to require agency officials to sign a resolution for the issuance of certain bonds, and to proceed to publish notice and execute the bonds, since the agency had available to it other adequate remedies at law and sufficient time within which to pursue those remedies, all mandamus relief requested by the agency could have been accomplished at the district court level by a declaratory judgment action or in other proceedings, and the petition for issuance of a writ of mandamus was denied. Idaho Falls Redevelopment Agency v. Countryman, 118 Idaho 43, 794 P.2d 632 (1990).

Prerequisites to Issuance.

It should appear in order for a mandamus to issue from the applicatory affidavit and proofs: First, that a duty is imposed upon defendant that it is sought to have him fulfill; second, that plaintiff has the right to demand performance of that duty; third, that legal demand has been made accompanied with a payment or tender of whatever is required as a concomitant of the demand imposed by law; fourth, that defendant has the ability to comply without impairing rights of nonparty, third persons; fifth, that defendant has no plain, speedy and adequate remedy otherwise. Lewis v. Mountain Home Coop. Irrigation Co., 28 Idaho 682, 156 P. 419 (1916).

Before writ of mandate will issue commanding certain acts to be done, there must be a demand and a refusal. Pfirman v. Success Mining Co., 30 Idaho 468, 166 P. 216 (1917); Berding v. Varian, 34 Idaho 587, 202 P. 567 (1921).

Writ will not issue unless petitioner has clear legal right to performance of act demanded and it is clear legal duty of officer to act. Brooks v. Edgington, 40 Idaho 432, 233 P. 514 (1925).

Where it sufficiently appears from application that applicant seeks “to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station,” motion to dismiss will be denied. State ex rel. Capital Inv. Co. v. Lukens, 48 Idaho 357, 283 P. 527 (1929).

Mandamus will not issue unless petitioner has a clear legal right to have the act done for which he seeks the writ and the allowance or refusal of the writ is discretionary with the court hearing the application. Aker v. Aker, 51 Idaho 555, 8 P.2d 777 (1932); Reynard v. City of Caldwell, 53 Idaho 62, 21 P.2d 527 (1933). Party seeking writ of mandamus must have the clear legal right to have act done and there must be a clear legal duty for officer to act. Vandenberg v. Welker, 74 Idaho 508, 264 P.2d 1029 (1953).

In no case, as a condition to the right to mandamus are the plaintiffs required to make a definite and specific written demand upon a defendant that he do and perform the act sought. Leuhrs v. Spaulding, 80 Idaho 326, 328 P.2d 582 (1958).

Under this section, the court has repeatedly held that mandamus will not lie unless party seeking it has clear legal right to have done that for which he seeks the writ and unless it is clear legal duty of officer to act, and it will not lie to coerce or control discretion of the district court. Freeman v. McQuade, 80 Idaho 387, 331 P.2d 263 (1958); Fitzpatrick v. Welch, 96 Idaho 280, 527 P.2d 313 (1974).

When there was no duty resting on the defendant to make the tax levy, the writ of mandate was properly denied. Board of Trustees v. Board of County Comm’rs, 88 Idaho 250, 398 P.2d 442 (1965).

Under this section, writ of mandate will not lie where district court had no legal right to enter judgment in quiet title action and party seeking writ had blocked prompt entry of judgment by failing to comply with court’s orders regarding selection of a surveyor and had obtained a survey which failed to comply with court’s explicit directions. Felton v. Prather, 95 Idaho 280, 506 P.2d 1353 (1973).

Where an agency simply alleged in its verified petition for a writ of mandamus that, if agency officials do not sign a resolution for the issuance of certain bonds and proceed to publish notice and execute the bonds, the urban renewal project to be funded by such bonds cannot be completed and the will of the citizens would be thwarted, and where there was no proof to support the agency’s assertion that it had no other plain, speedy or adequate remedy, the agency failed to prove that a writ of mandamus was its only adequate remedy under the circumstances; the law requires more than conclusions and allegations to warrant the issuance of such a writ, and the petition for issuance of a writ of mandamus was denied. Idaho Falls Redevelopment Agency v. Countryman, 118 Idaho 43, 794 P.2d 632 (1990).

Proper Remedy.

Proceeding for writ of mandate against county equalization board and county assessor was proper remedy rather than payment of tax and suit for refund, where state tax board reduced assessment made by county assessor and affirmed by county equalization board. Utah Oil Ref. Co. v. Hendrix, 72 Idaho 407, 242 P.2d 124 (1952).

Where county board of canvassers certifies to county auditor name of first candidate as Republican candidate for probate judge, but auditor mistakenly issues certificate of nomination to another who declines it and second candidate is then designated Republican candidate by Republican county central committee, following which auditor issues certificate of nomination to first candidate, writ of mandamus is the proper procedure to determine whether county auditor should be required to cause second candidate’s name as Republican candidate for probate judge to be included on the general election ballot. Hansen v. Devaney, 82 Idaho 488, 356 P.2d 57 (1960).

Mandamus was proper to compel a county treasurer to remit to the state treasurer tax withheld from current taxes as the state’s pro rata share of a court-ordered refund of taxes erroneously collected in previous years. State ex rel. Williams v. Adams, 90 Idaho 195, 409 P.2d 415 (1965). Mandamus is an appropriate means of enforcing the right to inspect public records. Dalton v. Idaho Dairy Prods. Comm’n, 107 Idaho 6, 684 P.2d 983 (1984).

A district court has the power, through the writ of mandamus, to compel a county official’s performance of an act which the law enumerates as a duty of office. Adams County Abstract Co. v. Fisk, 117 Idaho 513, 788 P.2d 1336 (Ct. App. 1990).

Scope of Review.

Where a teacher seeks a writ of mandate, not for reinstatement during the term of a contract, but to compel continued employment after a first-year contract has expired, judicial review is limited to determining whether the teacher has a clear legal right to the relief sought. The judicial inquiry does not extend to whether the school board acted arbitrarily, unjustly and in abuse of discretion. Knudson v. Boundary County School Dist. No. 101, 104 Idaho 93, 656 P.2d 753 (Ct. App. 1982).

Scope of Writ.

Writ of mandate can not be used to correct errors of district court or inferior tribunal, in passing upon questions regularly submitted to it in course of judicial proceeding or to control exercise of its discretion. Board of County Comm’rs v. Mayhew, 5 Idaho 572, 51 P. 411 (1897).

On application for writ of mandate to compel district court to comply with an order of supreme court, latter court will construe its own order in connection with its opinion and, if it finds that district court has erred or acted beyond its power in construing such order or opinion, error will be corrected by issuance of writ. American Hydraulic Placer Co. v. Rich, 8 Idaho 570, 69 P. 280 (1902).

Mandamus may be resorted to whenever an officer or person refuses to perform a duty enjoined upon him by law, although the act may have been an isolated one disconnected with any proceeding leading up to that which the recalcitrant official or individual refused to perform. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904).

Writ of mandate will not issue where officer against whom same is prayed for has performed acts sought to be compelled before issuance of writ. Chemung Mining Co. v. Morgan, 11 Idaho 232, 81 P. 384 (1905).

The general rule is that it is the proper office of a writ of mandamus, in case an inferior court refuses to act in matters over which it has jurisdiction, to compel such assumption of jurisdiction. Connolly v. Woods, 13 Idaho 591, 92 P. 573 (1907).

Writ of mandate can be used to compel court to act in matter where the law enjoins a duty, but not to control its discretion or direct its decision. Connolly v. Woods, 13 Idaho 591, 92 P. 573 (1907); Blackwell Lumber Co. v. Flynn, 27 Idaho 632, 150 P. 42 (1915); St. Michaels Monastery v. Steele, 30 Idaho 609, 167 P. 349 (1917).

Where statute or city ordinance vests in city official discretion in performance of a duty, and no provision is made for reviewing such action, determination of such matter by such official is final and can not be controlled by mandamus. Darby v. Pence, 17 Idaho 697, 107 P. 484 (1910).

Writ must be directed to a specific act or actions. Evans v. Van Deusen, 31 Idaho 614, 174 P. 122 (1918).

A citizen has a right to a writ of mandate to compel public officers to perform statutory public duty, even though he may have a right of action against a private individual which would redress private injury to himself. Beem v. Davis, 31 Idaho 730, 175 P. 959 (1918). The merits of judge’s findings and order that he is disqualified are not before the court in a proceeding for writ of mandate to compel change of venue for disqualification of the judge. Newman v. District Court, 32 Idaho 607, 186 P. 922 (1920).

The courts will not issue a command to municipal officers with which they cannot comply. Cowan v. Lineberger, 35 Idaho 403, 206 P. 805 (1922).

Mandamus will not lie to coerce or control the discretion of the district court. Aker v. Aker, 51 Idaho 555, 8 P.2d 777 (1932).

Chief clerk and assistant clerk of house of representatives for 32nd session could be mandamused to deliver daily journals to secretary of state but could not be mandamused to designate same as the permanent journals. Vandenberg v. Welker, 74 Idaho 508, 264 P.2d 1029 (1953).

When the acts of a municipal corporation are discretionary and not mandatory, a writ of mandate will not lie to compel the performance of such acts. Lisher v. City of Potlatch, 101 Idaho 343, 612 P.2d 1190 (1980).

To Whom Directed.

In an action for a writ of mandate to compel enforcement of a village ordinance, members of board of trustees of village and chairman thereof are officers to whom writ should be directed. Beem v. Davis, 31 Idaho 730, 175 P. 959 (1918).

When Issued.

Writ of mandate will issue:

To require water company to deliver water after court has fixed reasonable compensation which must be paid for use of water. Wilterding v. Green, 4 Idaho 773, 45 P. 134 (1896).

To compel mayor of a city to sign warrants allowed and ordered by council. Rice v. Gwinn, 5 Idaho 394, 49 P. 412 (1897).

To compel board of examiners to pass upon a claim. Pyke v. Steunenberg, 5 Idaho 614, 51 P. 614 (1897), overruled on other grounds, Jewett v. Williams, 84 Idaho 93, 369 P.2d 590 (1962).

To compel administrator to execute a conveyance pursuant to an order of court confirming a sale. State ex rel. Chemung Mining Co. v. Cunningham, 6 Idaho 113, 53 P. 451 (1898).

To compel the secretary of state to file and certify a proper political nominating ticket. Williams v. Lewis, 6 Idaho 184, 54 P. 619 (1898), overruled on other grounds, Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904).

To require district court to proceed with a criminal case triable in such court. Hays v. Stewart, 7 Idaho 193, 61 P. 591 (1900).

To compel a county auditor to file a ticket duly nominated by a legal county convention. Addle v. Davenport, 7 Idaho 282, 62 P. 681 (1900).

To compel a court to consider a cause after it has erroneously determined that it has no jurisdiction. Hill v. Morgan, 9 Idaho 718, 76 P. 323 (1904).

To require a trial court to try a cause in accordance with a prior opinion of the supreme court after trial court has nonsuited plaintiff in disregard of such opinion. Kroetch v. Morgan, 10 Idaho 172, 77 P. 19 (1904).

To compel clerk of the district court to file an information presented by prosecuting attorney. State v. Quarles, 13 Idaho 252, 89 P. 636 (1907). To compel clerk of district court to enter judgment. Oliver v. Kootenai County, 13 Idaho 281, 90 P. 107 (1907); Santti v. Hartman, 29 Idaho 490, 161 P. 249 (1916).

To compel court to act where it has jurisdiction. Connolly v. Woods, 13 Idaho 591, 92 P. 573 (1907); St. Michaels Monastery v. Steele, 30 Idaho 609, 167 P. 349 (1917).

Against public service water company to regulate charges and rates. Hatch v. Consumers’ Co., 17 Idaho 204, 104 P. 670 (1909), aff’d, 224 U.S. 148, 32 S. Ct. 465, 56 L. Ed. 703 (1912).

To compel a Carey Act company to sell a water right. State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039 (1911), error dismissed, 235 U.S. 690, 35 S. Ct. 205, 59 L. Ed. 427 (1914).

To compel public officers to perform their official duties, though details of such performance are left to their discretion. Beem v. Davis, 31 Idaho 730, 175 P. 959 (1918).

To compel state board of land commissioners to allow an entry on a Carey Act land segregation, by a person possessing statutory qualifications and who has complied with statutory conditions precedent. Furbee v. Alexander, 31 Idaho 738, 176 P. 97 (1918).

To compel a disqualified judge to grant a change of venue. Newman v. District Court, 32 Idaho 607, 186 P. 922 (1920).

To compel state board of land commissioners to put up at public auction lands for lease to the highest bidder. East Side Blaine County Livestock Ass’n v. State Bd. of Land Comm’rs, 34 Idaho 807, 198 P. 760 (1921).

To compel trustees of common school district to return to the place where it was lawfully established a school unlawfully moved without authority from people of district. People ex rel. Thompson v. Cothern, 36 Idaho 340, 210 P. 1000 (1922).

To compel hearing of one imprisoned for contempt in not paying alimony as ordered, but petitioner’s right must be clear and his application for hearing made in compliance with statute. Brooks v. Edgington, 40 Idaho 432, 233 P. 514 (1925).

To compel issuance of stock certificates, but no one is entitled to the writ whose right is not clear and unquestionable. Savic v. Kramlich, 52 Idaho 156, 12 P.2d 260 (1932).

To compel state fish and game warden to certify claim of employee of his department for salary due and payable to such employee. Doolittle v. Eckert, 53 Idaho 384, 24 P.2d 36 (1933).

To compel state treasurer to pay a warrant issued by state auditor against the Idaho fruit and vegetable advertising and development fund. State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649 (1938).

To compel a reassessment to take care of the inadequacy of the assessment roll and failure to make annual levies for payment of interest on special or local improvement bonds. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942).

To test jurisdiction of trial court. State v. Winstead, 66 Idaho 504, 162 P.2d 894 (1945).

Where under the facts the granting of the bank charter by defendant commissioner was purely a ministerial act, the writ of mandamus would be properly issued, defendant having determined that banking corporators had complied with all statutory provisions required to entitle such bank to engage in banking, stockholders and officers were of such character and general fitness as to command confidence in the community, the additional bank was justified in that area, such bank was entitled lawfully to commence business in the community, and stockholders would command confidence in the community. Leuhrs v. Spaulding, 80 Idaho 326, 328 P.2d 582 (1958).

Writ of mandamus will issue to compel state board of examiners to allow a claim. Jewett v. Williams, 84 Idaho 93, 369 P.2d 590 (1962). Where the record indicated that a landowner possessed all the qualifications, and none of the disqualifications, set by statute and ordinance as prerequisites for the issuance of a license to operate a beer tavern, the city council had no discretion to deny him a license; its duty to issue the license was merely ministerial, and the district court, therefore, erred in not issuing its writ of mandate to compel the city council to perform this duty. Mickelsen v. City of Rexburg, 101 Idaho 305, 612 P.2d 542 (1980).

A writ of mandate would issue to compel a district judge to credit defendant’s presentence confinement against his five-year prison sentence. Law v. Rasmussen, 104 Idaho 455, 660 P.2d 67 (1983).

The issuance of the writ is discretionary and not a matter of right and it is used only to compel performance of a clear legal duty, i.e., ministerial duty which does not involve the exercise of discretion. Mitchell v. Agents of State, 105 Idaho 419, 670 P.2d 520 (1983).

A writ of mandate will issue to any party who has a clear legal right to have an act performed if the officer against whom the writ is sought has a clear duty to act and if the act sought to be compelled is ministerial in nature and does not require an exercise of discretion. Dalton v. Idaho Dairy Prods. Comm’n, 107 Idaho 6, 684 P.2d 983 (1984).

The mere act of turning over public documents for inspection is purely ministerial in nature, involving no exercise of discretion by the officer or agency charged with its execution; thus, mandamus is indeed the correct remedy for a person requesting such an inspection to seek and mandamus must issue if the document at issue is in fact a public record. Dalton v. Idaho Dairy Prods. Comm’n, 107 Idaho 6, 684 P.2d 983 (1984).

Mandamus will lie if the officer against whom the writ is brought has a clear legal duty to perform the desired act, and if the act sought to be compelled is ministerial or executive in nature; thus, mandamus was a proper remedy to compel the mayor of a city to execute a public contract, since the signing of public contracts is authorized by§ 50-607. Utah Power & Light Co. v. Campbell, 108 Idaho 950, 703 P.2d 714 (1985).

When Not Issued.

Writ of mandate will not issue:

To make up or alter records of proceedings of legislative bodies, by operating upon officers of such bodies. Clough v. Curtis, 134 U.S. 361, 10 S. Ct. 573, 33 L. Ed. 945 (1890).

To inquire into acts of a state legislative body where necessary to determine the question upon verbal testimony, and where the act has for its object correction of the record of the legislature; neither will the act lie to supply the record where none was made, for the legislative journal can be corrected only by the body that made it, not by the courts on a writ of mandamus. 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).

To direct a state board to allow claim which it has rejected and had authority so to do. Payne v. State Bd. of Wagonroad Comm’rs, 4 Idaho 384, 39 P. 548 (1895).

To compel county auditor to draw his warrant for a claim prior to allowance thereof by board of commissioners. Jolly v. Woodward, 4 Idaho 496, 42 P. 512 (1895).

To compel county commissioners to act on a claim against county. Wright v. Kelley, 4 Idaho 624, 43 P. 565 (1895).

To compel issuance of an order to show cause why decedent’s real estate should not be sold to pay debts. State ex rel. Missoula Mercantile Co. v. Whelan, 6 Idaho 78, 53 P. 2 (1898).

To compel a railroad to permit a telephone company to install instruments in railroad depots. Idaho Indep. Tel. Co. v. Oregon Short Line R.R., 8 Idaho 175, 67 P. 318 (1901). Where the record indicated that a landowner possessed all the qualifications, and none of the disqualifications, set by statute and ordinance as prerequisites for the issuance of a license to operate a beer tavern, the city council had no discretion to deny him a license; its duty to issue the license was merely ministerial, and the district court, therefore, erred in not issuing its writ of mandate to compel the city council to perform this duty. Mickelsen v. City of Rexburg, 101 Idaho 305, 612 P.2d 542 (1980).

A writ of mandate would issue to compel a district judge to credit defendant’s presentence confinement against his five-year prison sentence. Law v. Rasmussen, 104 Idaho 455, 660 P.2d 67 (1983).

The issuance of the writ is discretionary and not a matter of right and it is used only to compel performance of a clear legal duty, i.e., ministerial duty which does not involve the exercise of discretion. Mitchell v. Agents of State, 105 Idaho 419, 670 P.2d 520 (1983).

A writ of mandate will issue to any party who has a clear legal right to have an act performed if the officer against whom the writ is sought has a clear duty to act and if the act sought to be compelled is ministerial in nature and does not require an exercise of discretion. Dalton v. Idaho Dairy Prods. Comm’n, 107 Idaho 6, 684 P.2d 983 (1984).

The mere act of turning over public documents for inspection is purely ministerial in nature, involving no exercise of discretion by the officer or agency charged with its execution; thus, mandamus is indeed the correct remedy for a person requesting such an inspection to seek and mandamus must issue if the document at issue is in fact a public record. Dalton v. Idaho Dairy Prods. Comm’n, 107 Idaho 6, 684 P.2d 983 (1984).

Mandamus will lie if the officer against whom the writ is brought has a clear legal duty to perform the desired act, and if the act sought to be compelled is ministerial or executive in nature; thus, mandamus was a proper remedy to compel the mayor of a city to execute a public contract, since the signing of public contracts is authorized by§ 50-607. Utah Power & Light Co. v. Campbell, 108 Idaho 950, 703 P.2d 714 (1985).

When Not Issued.

Writ of mandate will not issue:

To make up or alter records of proceedings of legislative bodies, by operating upon officers of such bodies. Clough v. Curtis, 134 U.S. 361, 10 S. Ct. 573, 33 L. Ed. 945 (1890).

To inquire into acts of a state legislative body where necessary to determine the question upon verbal testimony, and where the act has for its object correction of the record of the legislature; neither will the act lie to supply the record where none was made, for the legislative journal can be corrected only by the body that made it, not by the courts on a writ of mandamus. 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).

To direct a state board to allow claim which it has rejected and had authority so to do. Payne v. State Bd. of Wagonroad Comm’rs, 4 Idaho 384, 39 P. 548 (1895).

To compel county auditor to draw his warrant for a claim prior to allowance thereof by board of commissioners. Jolly v. Woodward, 4 Idaho 496, 42 P. 512 (1895).

To compel county commissioners to act on a claim against county. Wright v. Kelley, 4 Idaho 624, 43 P. 565 (1895).

To compel issuance of an order to show cause why decedent’s real estate should not be sold to pay debts. State ex rel. Missoula Mercantile Co. v. Whelan, 6 Idaho 78, 53 P. 2 (1898).

To compel a railroad to permit a telephone company to install instruments in railroad depots. Idaho Indep. Tel. Co. v. Oregon Short Line R.R., 8 Idaho 175, 67 P. 318 (1901). To review an order of district court quashing a jury panel when such order is made in excess of jurisdiction of court. Heitman v. Morgan, 10 Idaho 562, 79 P. 225 (1905).

To require a trial judge to proceed with a term of court in one county where it is shown that a regular term for another county convenes immediately after date set for hearing of application for writ. Heitman v. Morgan, 10 Idaho 562, 79 P. 225 (1905).

To correct an order of court in passing on motion to strike out portion of pleading, where court is acting within its jurisdiction. Connolly v. Woods, 13 Idaho 591, 92 P. 573 (1907).

To compel commission of a crime. Crescent Brewing Co. v. Oregon Short Line R.R., 24 Idaho 106, 132 P. 975 (1913).

To litigate or determine a permanent or perpetual water right. Lewis v. Mountain Home Coop. Irrigation Co., 28 Idaho 682, 156 P. 419 (1916).

To compel holding of an election. Perrault v. Robinson, 29 Idaho 267, 158 P. 1074 (1916). See City of Boise City v. Keep the Commandments Coalition (In re Initiative Petition for a Ten Commandments Display), 143 Idaho 254, 141 P.3d 1123 (2006).

To punish for contempt, officer using his best and honest judgment. Potlatch Lumber Co. v. Board of County Comm’rs, 29 Idaho 516, 160 P. 260 (1916).

To compel a Carey Act construction company to issue shares of stock to a purchaser of state school land where shares of stock already sold are far in excess of available water supply, and contract between construction company and state was entered into under a mutual mistake of a material fact. State v. Twin Falls-Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220 (1916).

To control discretion or direct decision of inferior court. St. Michaels Monastery v. Steele, 30 Idaho 609, 167 P. 349 (1917).

To compel an officer to perform his duties generally. Evans v. Van Deusen, 31 Idaho 614, 174 P. 122 (1918).

To compel the clerks of school districts to collect from teachers therein the amount prescribed under a statute respecting annuities or teachers’ retirement fund. State v. Kingsley, 35 Idaho 262, 205 P. 892 (1922).

To compel a delivery of water by an irrigation district to the water users, when the district is without funds or the necessary credit to pay for the delivery of water. Cowan v. Lineberger, 35 Idaho 403, 206 P. 805 (1922).

To compel the performance of an act which would result injuriously to a third party, as where it is sought to compel the delivery of water by Carey Act project when the water could only be delivered by taking it from another, since the project had no surplus water. Boley v. Twin Falls Canal Co., 37 Idaho 318, 217 P. 258 (1923).

To control discretion of district court with respect to certification of reporter’s transcript. Aker v. Aker, 51 Idaho 555, 8 P.2d 777 (1932).

The action of the trial judge in denying plaintiff’s motion for stay of proceedings in proceeding involving custody of children falls clearly within the exercise of the lawful discretion of the trial judge, and such discretion cannot be coerced or controlled by mandamus. Freeman v. McQuade, 80 Idaho 387, 331 P.2d 263 (1958).

Mandamus will not lie unless party seeking it has a clear legal right to have the act done for which he seeks the writ; and, unless it is the clear legal duty of the officer to act, it will not lie to coerce or control discretion of the officer. Allen v. Smylie, 92 Idaho 846, 452 P.2d 343 (1969). Where writ of mandate was sought to compel municipal officers to declare and certify passage of bond issue on ground that a two third (2/3) affirmative vote requirement was unconstitutional and that a majority of votes cast were for passage, there was no clear statutory or constitutional duty demanded of such officers as would have been required for such a mandate; in fact, the opposite was true. Bogert v. Kinzer, 93 Idaho 515, 465 P.2d 639 (1970), appeal dismissed, 403 U.S. 914, 91 S. Ct. 2224, 29 L. Ed. 2d 691 (1971).

A writ of mandate will not lie under this section to control discretionary acts of courts acting within their jurisdiction. Felton v. Prather, 95 Idaho 280, 506 P.2d 1353 (1973).

As§ 67-6519 gives counties the discretion to grant or deny any application for a permit authorized or mandated by the Local Planning Act of 1975, a writ of mandate is not available to compel the issuance of such a permit. McCuskey v. Canyon County, 123 Idaho 657, 851 P.2d 953 (1993); Brady v. City of Homedale, 130 Idaho 569, 944 P.2d 704 (1997).

Am. Jur. 2d.

C.J.S.

ALR.

Judgment granting or denying writ of mandamus or prohibition as res judicata. 21 A.L.R.3d 206.

Right or duty to refuse telephone, telegraph, or other wire service in aid of illegal gambling operations. 30 A.L.R.3d 1143.

Mandamus to compel disciplinary investigation or action against physician or attorney. 33 A.L.R.3d 1429.

Mandamus to compel zoning officials to cancel permit granted in violation of zoning regulation. 68 A.L.R.3d 166.

Rights and remedies of parents inter se with respect to the names of their children. 40 A.L.R.5th 697.

Allowance of Attorneys’ fees in mandamus proceedings. 34 A.L.R.4th 457.

Mandamus as remedy to compel disqualification of federal judge. 56 A.L.R. Fed. 494.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Adequacy of Remedy.

Court, in a case that does not involve private rights of litigants, cannot be required to determine whether or not particular bodies of persons constituted a lawful legislative assembly. Clough v. Curtis, 134 U.S. 361, 10 S. Ct. 573, 33 L. Ed. 945 (1890).

Where appeal is given by law and such appeal is not a plain, speedy, and adequate remedy in due course of law, resort may be had to mandamus. Fenton v. Board of Comm’rs, 20 Idaho 392, 119 P. 41 (1911).

While the court calendar may be congested, court cannot take into consideration the annoyance, expense, or delay incident to prosecution of the usual remedies provided by law in determining whether or not writ of mandamus or prohibition should issue. Blackwell Lumber Co. v. Flynn, 27 Idaho 632, 150 P. 42 (1915).

Writ of mandate is not available to party having remedy by appeal. St. Michaels Monastery v. Steele, 30 Idaho 609, 167 P. 349 (1916); Berding v. Varian, 34 Idaho 587, 202 P. 567 (1921).

Existence of adequate remedy in the ordinary course of law, either legal or equitable in its nature, will prevent issuance of writ. Beem v. Davis, 31 Idaho 730, 175 P. 959 (1918).

A writ of mandate, rather than claim and delivery, was the proper remedy to require defendants to return books and records to plaintiff corporations, since under former law defendant could have posted a redelivery bond and retained possession of the books and records, perhaps defeating furtherance of business of plaintiff corporations; additionally, where a writ of mandamus directs the restitution of property by corporate officer as performance of his duty, it is not necessary to describe such property with the particularity required in a replevin proceeding. Silver Bowl, Inc. v. Equity Metals, Inc., 93 Idaho 487, 464 P.2d 926 (1970). •Title 7»«Ch. 3»«§ 7-303»

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Adequacy of Remedy.

Court, in a case that does not involve private rights of litigants, cannot be required to determine whether or not particular bodies of persons constituted a lawful legislative assembly. Clough v. Curtis, 134 U.S. 361, 10 S. Ct. 573, 33 L. Ed. 945 (1890).

Where appeal is given by law and such appeal is not a plain, speedy, and adequate remedy in due course of law, resort may be had to mandamus. Fenton v. Board of Comm’rs, 20 Idaho 392, 119 P. 41 (1911).

While the court calendar may be congested, court cannot take into consideration the annoyance, expense, or delay incident to prosecution of the usual remedies provided by law in determining whether or not writ of mandamus or prohibition should issue. Blackwell Lumber Co. v. Flynn, 27 Idaho 632, 150 P. 42 (1915).

Writ of mandate is not available to party having remedy by appeal. St. Michaels Monastery v. Steele, 30 Idaho 609, 167 P. 349 (1916); Berding v. Varian, 34 Idaho 587, 202 P. 567 (1921).

Existence of adequate remedy in the ordinary course of law, either legal or equitable in its nature, will prevent issuance of writ. Beem v. Davis, 31 Idaho 730, 175 P. 959 (1918).

A writ of mandate, rather than claim and delivery, was the proper remedy to require defendants to return books and records to plaintiff corporations, since under former law defendant could have posted a redelivery bond and retained possession of the books and records, perhaps defeating furtherance of business of plaintiff corporations; additionally, where a writ of mandamus directs the restitution of property by corporate officer as performance of his duty, it is not necessary to describe such property with the particularity required in a replevin proceeding. Silver Bowl, Inc. v. Equity Metals, Inc., 93 Idaho 487, 464 P.2d 926 (1970). An action in mandamus was the proper procedure for corporation to follow in obtaining the return of its corporate books and records from its former legal counsel, bookkeeping corporation, and bookkeeping corporation’s president and owner. Nancy Lee Mines, Inc. v. Harrison, 93 Idaho 652, 471 P.2d 39 (1970).

Where county commissioners refused to perform ministerial duty to contribute their share of funds to public health district as required by statute, which would diminish ability of public health district to furnish services and reduce its matching funds from state, writ of mandate was properly issued to require commissioners to appropriate and pay required sum, since the public health district had no speedy or adequate remedy in the ordinary course of law. District Bd. of Health v. Chancey, 94 Idaho 944, 500 P.2d 845 (1972).

Where a criminal case was dismissed and refiled, no writ of mandamus to require the judge to dismiss the case or reassign it to the original magistrate would issue since defendants were not precluded from their normal right to appeal and would not be subjected to any hardships exceeding those ordinarily borne by a defendant in a criminal prosecution. Rufener v. Shaud, 98 Idaho 823, 573 P.2d 142 (1977).

The legislature did not intend the requirement of the general writ of mandate statute that there be no “plain, speedy and adequate remedy in the ordinary course of law” to apply to the use of the writ under§ 63-3030A to compel the filing of tax returns. Mitchell v. Agents of State, 105 Idaho 419, 670 P.2d 520 (1983).

Where an agency petitioned for a writ of mandamus to require agency officials to sign a resolution for the issuance of certain bonds, and to proceed to publish notice and execute the bonds, since the agency had available to it other adequate remedies at law and sufficient time within which to pursue those remedies, all mandamus relief requested by the agency could have been accomplished at the district court level by a declaratory judgment action or in other proceedings, and the petition for issuance of a writ of mandamus was denied. Idaho Falls Redevelopment Agency v. Countryman, 118 Idaho 43, 794 P.2d 632 (1990).

Where an agency simply alleged in its verified petition for a writ of mandamus that, if agency officials do not sign a resolution for the issuance of certain bonds and proceed to publish notice and execute the bonds, the urban renewal project to be funded by such bonds cannot be completed, and that the will of the citizens would be thwarted, and there was no proof to support the agency’s assertion that it had no other plain, speedy or adequate remedy, the agency failed to prove that a writ of mandamus was its only adequate remedy under the circumstances; the law requires more than conclusions and allegations to warrant the issuance of such a writ, and the petition for issuance of a writ of mandamus was denied. Idaho Falls Redevelopment Agency v. Countryman, 118 Idaho 43, 794 P.2d 632 (1990).

Summary judgment for respondent was proper where plaintiff failed to state a claim, and any procedural issues related to plaintiff’s DUI trial were not an appropriate basis for writs because plaintiff had an adequate remedy at law — a direct appeal. Ackerman v. Bonneville County, 140 Idaho 307, 92 P.3d 557 (Ct. App. 2004).

Discretion of Court.

Individual or Official Capacity.

In answer to respondents’ contention that since they had no plain, speedy or adequate remedy at law, a writ of mandate must issue, the court set forth that it had repeatedly held that mandamus is not a writ of right and that the allowance or refusal of such writ is a matter of discretion with the court before whom the application for it is heard. Hunke v. Foote, 84 Idaho 391, 373 P.2d 322 (1962). Individual or Official Capacity.

If a citizen has a right to a writ of mandamus to compel a public officer to perform a statutory public duty and a concurrent right of action against a private individual, even if it would in a measure redress the private injury to himself, he is entitled to resort to mandamus. Beem v. Davis, 31 Idaho 730, 175 P. 959 (1918).

Jurisdiction Sole Question.

Mandamus cannot be used to correct an order of the court in passing upon motions during the progress of the proceeding, provided the court is acting within its jurisdiction in passing upon the same. Connolly v. Woods, 13 Idaho 591, 92 P. 573 (1907).

Standard of Review.

The standard of review in a request for writ of mandate to compel reinstatement following a teacher termination by a school board is limited to an examination of whether the party seeking the writ has a clear legal right to have an act performed, and whether the action basically is ministerial, not discretionary; if it is discretionary, mandamus will not lie unless it clearly appears that the board has acted arbitrarily, unjustly and in abuse of its discretion and there is not available any other plain, speedy and adequate remedy in the ordinary course of law. Kolp v. Board of Trustees, 102 Idaho 320, 629 P.2d 1153 (1981).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

To Whom Writ Directed.

In an action for writ of mandamus to require the enforcement of an ordinance, for example, one prescribing fire limitations and providing for the demolishing of buildings erected in the violation thereof, members of the board of trustees or governing council of a municipality are the proper parties to whom the writ should be directed. Beem v. Davis, 31 Idaho 730, 175 P. 959 (1918).

Cross References.

Special writs, Idaho App. R. 5.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951, which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

When Peremptory Writ Issues.

Peremptory writ of mandate will issue in the first instance to require trial court to try cause in conformity with prior opinion rendered in said cause by supreme court. Kroetch v. Morgan, 10 Idaho 172, 77 P. 19 (1904).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 742; R.S., R.C., & C.L., § 4981; C.S., § 7258; I.C.A.,§ 13-306, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 74(c).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 743; R.S., R.C., & C.L., § 4982; C.S., § 7259; I.C.A.,§ 13-307, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. P. 74(d).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951, which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Cross References.

New trial, general rules applicable, Idaho Civil Procedure Rules 59(a) through 59(e).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951, which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Supreme Court.

Motion for new trial is not proper proceeding in supreme court to obtain a rehearing on issues of law when said court is proceeding under its original jurisdiction. People ex rel. Lincoln County v. George, 3 Idaho 108, 27 P. 680 (1891).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951, which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Cross References.

Execution generally,§ 11-101 et seq.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Consolidation of Claims.

Although a litigant may combine a claim for damages with a petition for a writ of mandamus, it is not mandatory that the damage and mandamus proceedings be consolidated. Heaney v. Board of Trustees, 98 Idaho 900, 575 P.2d 498 (1978).

Costs.

In finding in favor of taxpayer in application for writ of prohibition against state tax commission, taxpayer was entitled to recover costs against commission, since costs are recoverable under writ of mandate under this section. Chastain’s Inc. v. State Tax Comm’n, 72 Idaho 344, 241 P.2d 167 (1952).

Liability for Damages.

Judge against whom writ of mandate is granted by supreme court, because of error he made in a matter pending before him, is not liable to injured party for damages. Hill v. Morgan, 9 Idaho 777, 76 P. 765 (1904).

Water user under irrigation project may recover damages for expenses of employing writ against water master in order to compel him to furnish legal supply of water, but right to such damages cannot be litigated in collateral action. Carter v. Niday, 46 Idaho 505, 269 P. 91 (1928). •Title 7»«Ch. 3»«§ 7-312»

Cross References.

Execution generally,§ 11-101 et seq.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Consolidation of Claims.

Although a litigant may combine a claim for damages with a petition for a writ of mandamus, it is not mandatory that the damage and mandamus proceedings be consolidated. Heaney v. Board of Trustees, 98 Idaho 900, 575 P.2d 498 (1978).

Costs.

In finding in favor of taxpayer in application for writ of prohibition against state tax commission, taxpayer was entitled to recover costs against commission, since costs are recoverable under writ of mandate under this section. Chastain’s Inc. v. State Tax Comm’n, 72 Idaho 344, 241 P.2d 167 (1952).

Liability for Damages.

Judge against whom writ of mandate is granted by supreme court, because of error he made in a matter pending before him, is not liable to injured party for damages. Hill v. Morgan, 9 Idaho 777, 76 P. 765 (1904).

Cited

Water user under irrigation project may recover damages for expenses of employing writ against water master in order to compel him to furnish legal supply of water, but right to such damages cannot be litigated in collateral action. Carter v. Niday, 46 Idaho 505, 269 P. 91 (1928). Cited Aero Serv. Corp. W. v. Benson, 84 Idaho 416, 374 P.2d 277 (1962).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951, which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

The subject matter of this section appears to at least in part have been abrogated, affected or covered by Idaho R. Civ. P. 4(d).

Cross References.

Disposition of fines,§ 19-4705.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951, which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Imprisonment.

It is not contemplated that the extreme sanction of imprisonment be imposed unless the duty is clear and the writ is specific in its directions as to the duty to be performed. Mitchell v. Agents of State, 105 Idaho 419, 670 P.2d 520 (1983).

The application for writ of habeas corpus did not show the petitioner to be unlawfully imprisoned or restrained in light of the established facts that he failed to file a tax return containing the required verification or certification and such failure to file a return with a proper verification or certification constituted a refusal and failure to obey a writ of mandate without just excuse and justified his imprisonment pursuant to this section until the writ was obeyed; accordingly, the application for a writ of habeas corpus would be denied. Mitchell v. Agents of State, 105 Idaho 419, 670 P.2d 520 (1983).

Cross References.

Abbreviations and numbers, use in pleadings, Idaho R. Civ. P. 10(a)(3).

Costs, Idaho R. Civ. P. 54(d)(1) to 54(d)(7).

Court seal to be affixed to writs,§ 1-1616.

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

New trials, Idaho R. Civ. P. 59(a) through 59(e).

Proceedings to be in English language, Idaho R. Civ. P. 10(a)(3).

Special writs, Idaho App. R. 5.

Statute of limitations, application to special proceedings of a civil nature,§ 5-240.

Successive applications for writs, Idaho R. Civ. P. 11(a)(2).

Alternative Remedy Available.

The extraordinary writs of prohibition and mandamus are not available where an adequate remedy exists in the ordinary course of law, either legal or equitable, and in this case lowest bid public works contractor had the remedies of the Uniform Declaratory Judgment Act,§ 10-1201 et seq. available; therefore, the writ of prohibition was vacated. Agricultural Servs., Inc. v. City of Gooding, 120 Idaho 627, 818 P.2d 331 (Ct. App. 1991).

Summary judgment for respondent was proper where plaintiff failed to state a claim, and any procedural issues related to plaintiff’s DUI trial were not an appropriate basis for writs because plaintiff had an adequate remedy at law — a direct appeal. Ackerman v. Bonneville County, 140 Idaho 307, 92 P.3d 557 (Ct. App. 2004). •Title 7»«Ch. 4»•§ 7-401»

Cross References.

Abbreviations and numbers, use in pleadings, Idaho R. Civ. P. 10(a)(3).

Costs, Idaho R. Civ. P. 54(d)(1) to 54(d)(7).

Court seal to be affixed to writs,§ 1-1616.

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

New trials, Idaho R. Civ. P. 59(a) through 59(e).

Proceedings to be in English language, Idaho R. Civ. P. 10(a)(3).

Special writs, Idaho App. R. 5.

Statute of limitations, application to special proceedings of a civil nature,§ 5-240.

Successive applications for writs, Idaho R. Civ. P. 11(a)(2).

Alternative Remedy Available.

The extraordinary writs of prohibition and mandamus are not available where an adequate remedy exists in the ordinary course of law, either legal or equitable, and in this case lowest bid public works contractor had the remedies of the Uniform Declaratory Judgment Act,§ 10-1201 et seq. available; therefore, the writ of prohibition was vacated. Agricultural Servs., Inc. v. City of Gooding, 120 Idaho 627, 818 P.2d 331 (Ct. App. 1991).

Boards and Commissions.

Summary judgment for respondent was proper where plaintiff failed to state a claim, and any procedural issues related to plaintiff’s DUI trial were not an appropriate basis for writs because plaintiff had an adequate remedy at law — a direct appeal. Ackerman v. Bonneville County, 140 Idaho 307, 92 P.3d 557 (Ct. App. 2004). Boards and Commissions.

Prohibition is inapplicable to control administrative or ministerial acts of boards, commissions and public officers; yet, when such agency is acting in a judicial or even quasi-judicial capacity and exceeds its jurisdiction, the writ will lie to curb operation without the ambit of lawful jurisdiction. Bragaw v. Gooding, 14 Idaho 288, 94 P. 438 (1908), overruled in part, Jewett v. Williams, 84 Idaho 93, 369 P.2d 590 (1962).

Costs.

In finding in favor of taxpayer in application for writ of prohibition against state tax commission, taxpayer was entitled to recover costs against commission, since costs are recoverable under§ 7-404. Chastain’s Inc. v. State Tax Comm’n, 72 Idaho 344, 241 P.2d 167 (1952).

“Counterpart” Construed.

The word “counterpart” cannot be given the meaning of the exact reverse or opposite without doing away with the limitation in the second clause whereby prohibition is confined to the cases in which the court, corporation, officer or person has already exceeded the powers conferred by law; it is used in the more general sense that prohibition arrests while mandamus commands action. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904).

Executive Department.

Under the Idaho constitution and form of government, which recognizes the independence of the three distinct departments of government, the judicial department cannot prohibit the executive department from acting within the recognized scope of authority of that branch of the government. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904).

Extent of Inquiry.

This section limits supreme court’s inquiry in an application under it to a determination of whether the district court is acting within the jurisdiction conferred upon it by law, where it appears that the district court had jurisdiction of the parties and of the subject-matter in a suit to foreclose a chattel mortgage; and in such case it did not exceed its jurisdiction in appointing a receiver and ordering sale of the mortgaged property. Skeen v. District Court, 29 Idaho 331, 158 P. 1072 (1916).

In an original proceeding in supreme court to prohibit trial judge from exceeding his powers in divorce action, order for alimony and suit money cannot be made. Callahan v. Dunn, 30 Idaho 225, 164 P. 356 (1917).

Court will take judicial notice of expiration of term of district judge and refuse to issue writ when he is no longer in office. Boise-Kuna Irrigation Dist. v. Hartson, 48 Idaho 572, 285 P. 456 (1929).

Jurisdiction.

“Jurisdiction,” as used in this section, means right to hear and determine a matter and carries with it the idea of exercising judicial or quasi-judicial functions. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904). The original jurisdiction of the supreme court is fixed by the constitution and cannot be broadened or extended by the legislature. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

The district court only has the authority to issue a writ of prohibition against the director of the department of water resources if the director was without, or in excess of, his jurisdiction. Briggs v. Golden Valley Land & Cattle Co., 97 Idaho 427, 546 P.2d 382 (1976).

Where the only remaining actions to be taken on a tax roll were within the jurisdiction of a board of equalization, no writ of prohibition would be issued to prevent such actions. Clark v. Ada County Bd. of Comm’rs, 98 Idaho 749, 572 P.2d 501 (1977).

The word “jurisdiction,” in the context of the statute defining the writ of prohibition, pertains to the exercise of judicial or quasi-judicial functions. Crane Creek Country Club v. City of Boise, 121 Idaho 485, 826 P.2d 446 (1990).

Nature of Writ.

A writ of prohibition to prevent proceedings before a district court or the judge thereof will not be issued in any case unless it is so clear that such court or judge is acting outside of or beyond its or his jurisdiction that there is no reasonable doubt. In re Miller, 4 Idaho 711, 43 P. 870 (1896).

Writ of prohibition is extraordinary remedy which is sometimes granted, not as matter of right but in sound discretion of court, to restrain inferior tribunal from exceeding its jurisdiction; where inferior court has jurisdiction expressly conferred upon it by statute, supreme court will not presume in advance that such court will exceed its jurisdiction. Since it is an extraordinary writ, it will not issue in doubtful cases, nor in any case where a plain, speedy, and adequate remedy of law exists. And where it appears that the act sought to be prohibited may speedily be reviewed in supreme court by appeal from order of inferior tribunal, or if appeal will not lie then upon writ of error or certiorari, writ of prohibition will not issue. Rust v. Stewart, 7 Idaho 558, 64 P. 222 (1901).

Writ of prohibition as authorized by the constitution and laws of this state is the writ as known and recognized at common law. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904).

The writ of prohibition will not issue to restrain purely ministerial acts. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904); Taylor v. Girard, 54 Idaho 787, 36 P.2d 773 (1934).

This section must be construed with§ 7-402, and, when so construed, it is clear that two contingencies must arise before writ of prohibition will issue, namely, that the tribunal, corporation, board, or person is proceeding without or in excess of jurisdiction of such tribunal, corporation, board or person, and that there is not a plain, speedy, and adequate remedy of law. Olden v. Paxton, 27 Idaho 597, 150 P. 40 (1915); Taylor v. Girard, 54 Idaho 787, 36 P.2d 773 (1934); Roark v. Koelsch, 62 Idaho 626, 115 P.2d 95 (1941).

It is no part of the office of a writ of prohibition to perform the true function of appeal; it does not concern itself with the correction of errors or irregularities of a tribunal so long as that tribunal is acting within its lawful jurisdiction, although it may be improperly exercising such jurisdiction; and when the inquiry is made and answered as to whether or not an inferior court or tribunal has jurisdiction of the subject-matter and of the person, the true function of a writ has been performed. Gropp v. Huyette, 35 Idaho 683, 208 P. 848 (1922).

Writ of prohibition is used to arrest proceedings involving lack of or excess of jurisdiction and not to attack errors committed in exercise of jurisdiction. Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953). A writ of prohibition may be granted if the proceedings of the court are without or in excess of its jurisdiction. Hubbard v. Morse, 76 Idaho 494, 285 P.2d 483 (1955).

A special prosecuting attorney did not become a party to civil action involving party seeking discovery by petitioning district court for protective order to prevent inquiry into certain aspects of criminal investigation during taking of depositions; therefore, a writ of prohibition rather than an appeal was the proper remedy to prevent enforcement of district court’s assessment of discovery costs against special prosecuting attorney. Frost v. Hofmeister, 97 Idaho 757, 554 P.2d 935 (1976).

The writ of prohibition serves a fundamental but narrow purpose of determining whether a body whose action is challenged was attempting to act without or in excess of its jurisdiction. Clark v. Meehl, 98 Idaho 641, 570 P.2d 1331 (1977).

A writ of prohibition was not an available means of relief for property owners against a hospital district for levying taxes. Idaho County Property Owners Ass’n v. Syringa Gen. Hosp. Dist., 119 Idaho 309, 805 P.2d 1233 (1991).

Standard of Review.

The standard of review for an appeal of the dismissal of a petition for writ of prohibition is the same as the summary judgment standard. All facts and inferences from the record will be viewed in favor of the nonmoving party to determine whether the motion should be granted. Rim View Trout Co. v. Idaho Dep’t of Water Resources, 119 Idaho 676, 809 P.2d 1155 (1991).

When Issued.

Writ of prohibition will issue:

Whenever proper facts are shown for its issuance, even though there be an appeal, if such appeal is not a plain, speedy and adequate remedy in the ordinary course of law. Cronan v. District Court, 15 Idaho 184, 96 P. 768 (1908).

Against state board of land commissioners, as such, even though the governor is member of board. Balderston v. Brady, 17 Idaho 567, 107 P. 493 (1910).

To restrain county commissioners from proceeding in cases without or in excess of their jurisdiction. Baker v. Gooding County, 25 Idaho 506, 138 P. 342 (1914).

To prohibit holding of an illegal, unauthorized, invalid election. Perrault v. Robinson, 29 Idaho 267, 158 P. 1074 (1916). See City of Boise City v. Keep the Commandments Coalition (In re Initiative Petition for a Ten Commandments Display), 143 Idaho 254, 141 P.3d 1123 (2006).

Where judge is about to proceed in case in disregard of intention of statute, exercise of sound discretion requires granting of writ. Spivey v. District Court, 37 Idaho 774, 219 P. 203 (1923).

To restrain issuance of injunction when lower court acts in excess of its jurisdiction. Evans v. District Court, 47 Idaho 267, 275 P. 99 (1929).

Where the judge refuses to recognize his recusation. Anderson v. Winstead, 65 Idaho 161, 140 P.2d 233 (1943).

Before a writ of prohibition will issue to an inferior court, it must appear both that the inferior court is proceeding without or in excess of its jurisdiction and that there is not a plain, speedy and adequate remedy in the ordinary course of law. Smith v. Young, 71 Idaho 31, 225 P.2d 466 (1950); Freiburghaus v. Freiburghaus, 100 Idaho 730, 604 P.2d 1209 (1980). A writ of prohibition may be granted if the proceedings of the court are without or in excess of its jurisdiction. Hubbard v. Morse, 76 Idaho 494, 285 P.2d 483 (1955).

Supreme court has jurisdiction to issue extraordinary writs in aid of its appellate jurisdiction, and a writ of prohibition is available to arrest the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. Coeur d’Alene Turf Club, Inc. v. Cogswell, 93 Idaho 324, 461 P.2d 107 (1969).

When Not Issued.

Writ of prohibition will not issue:

To restrain district court from proceeding to try cross-complaint, demurrer to which has been overruled. Willman v. District Court, 4 Idaho 11, 35 P. 692 (1894).

To restrain an act which has been performed. Bellevue Water Co. v. Stockslager, 4 Idaho 636, 43 P. 568 (1895).

To prevent further proceedings before district court, unless it is claimed that that court is acting outside of its jurisdiction, and there is no reasonable doubt of the fact. In re Miller, 4 Idaho 711, 43 P. 870 (1896).

To restrain purely ministerial acts. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904); Taylor v. Girard, 54 Idaho 787, 36 P.2d 773 (1934).

To restrain district court from hearing an appeal from probate court in probate matters. Fraser v. Davis, 29 Idaho 70, 156 P. 913, 158 P. 233 (1916).

To restrain district court from appointing receiver in foreclosing a chattel mortgage; only question is whether district court is acting within jurisdiction. Skeen v. District Court, 29 Idaho 331, 158 P. 1072 (1916).

To restrain public utilities commission from proceeding with hearing of order to show cause in matter relating to regulation of rates. Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348 (1921).

To determine whether court reporter copied and certified papers not introduced in evidence in case pending on appeal. Evans v. District Court, 50 Idaho 60, 293 P. 323 (1930).

To restrain county board of equalization from assessing, levying or equalizing any tax on the shares of capital stock of a state bank. State ex rel. Bank of Eagle v. Leonardson, 51 Idaho 646, 9 P.2d 1028 (1932).

To prevent the secretary of state from performing a clerical or ministerial act which the law makes it his duty to perform. Taylor v. Girard, 54 Idaho 787, 36 P.2d 773 (1934).

To review, under the statute making a homestead subject to execution in satisfaction of a judgment obtained on a debt secured by a materialman’s lien, decree of foreclosure of such lien and order issuing a writ of assistance directing the sheriff to place the holder of sheriff’s deed in possession. Roark v. Koelsch, 62 Idaho 626, 115 P.2d 95 (1941).

An application for a writ of prohibition to prohibit a special judge from further enforcing a receivership, after he had denied a motion to discharge the receiver, will be denied where the judge had jurisdiction of the subject matter and the person. Murphy v. McCarty, 69 Idaho 193, 204 P.2d 1014 (1949).

In proceedings supplemental to execution by judgment creditors in a justice of peace court wherein judgment creditors summoned in third party relative to certain property allegedly belonging to judgment debtor and in the possession of the third party, and the third party claimed the property belonged to it, the justice did not abuse his discretion by continuing the hearing and ordering the third party to bring in books and records, hence district court had no right to issue writ of prohibition restraining further action by justice. Hubbard v. Morse, 76 Idaho 494, 285 P.2d 483 (1955). A writ of prohibition may be granted if the proceedings of the court are without or in excess of its jurisdiction. Hubbard v. Morse, 76 Idaho 494, 285 P.2d 483 (1955).

Supreme court has jurisdiction to issue extraordinary writs in aid of its appellate jurisdiction, and a writ of prohibition is available to arrest the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. Coeur d’Alene Turf Club, Inc. v. Cogswell, 93 Idaho 324, 461 P.2d 107 (1969).

When Not Issued.

Writ of prohibition will not issue:

To restrain district court from proceeding to try cross-complaint, demurrer to which has been overruled. Willman v. District Court, 4 Idaho 11, 35 P. 692 (1894).

To restrain an act which has been performed. Bellevue Water Co. v. Stockslager, 4 Idaho 636, 43 P. 568 (1895).

To prevent further proceedings before district court, unless it is claimed that that court is acting outside of its jurisdiction, and there is no reasonable doubt of the fact. In re Miller, 4 Idaho 711, 43 P. 870 (1896).

To restrain purely ministerial acts. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904); Taylor v. Girard, 54 Idaho 787, 36 P.2d 773 (1934).

To restrain district court from hearing an appeal from probate court in probate matters. Fraser v. Davis, 29 Idaho 70, 156 P. 913, 158 P. 233 (1916).

To restrain district court from appointing receiver in foreclosing a chattel mortgage; only question is whether district court is acting within jurisdiction. Skeen v. District Court, 29 Idaho 331, 158 P. 1072 (1916).

To restrain public utilities commission from proceeding with hearing of order to show cause in matter relating to regulation of rates. Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348 (1921).

To determine whether court reporter copied and certified papers not introduced in evidence in case pending on appeal. Evans v. District Court, 50 Idaho 60, 293 P. 323 (1930).

To restrain county board of equalization from assessing, levying or equalizing any tax on the shares of capital stock of a state bank. State ex rel. Bank of Eagle v. Leonardson, 51 Idaho 646, 9 P.2d 1028 (1932).

To prevent the secretary of state from performing a clerical or ministerial act which the law makes it his duty to perform. Taylor v. Girard, 54 Idaho 787, 36 P.2d 773 (1934).

To review, under the statute making a homestead subject to execution in satisfaction of a judgment obtained on a debt secured by a materialman’s lien, decree of foreclosure of such lien and order issuing a writ of assistance directing the sheriff to place the holder of sheriff’s deed in possession. Roark v. Koelsch, 62 Idaho 626, 115 P.2d 95 (1941).

An application for a writ of prohibition to prohibit a special judge from further enforcing a receivership, after he had denied a motion to discharge the receiver, will be denied where the judge had jurisdiction of the subject matter and the person. Murphy v. McCarty, 69 Idaho 193, 204 P.2d 1014 (1949).

In proceedings supplemental to execution by judgment creditors in a justice of peace court wherein judgment creditors summoned in third party relative to certain property allegedly belonging to judgment debtor and in the possession of the third party, and the third party claimed the property belonged to it, the justice did not abuse his discretion by continuing the hearing and ordering the third party to bring in books and records, hence district court had no right to issue writ of prohibition restraining further action by justice. Hubbard v. Morse, 76 Idaho 494, 285 P.2d 483 (1955). The district court acted within its jurisdiction in finding divorced wife in contempt for refusing her divorced husband his reasonable child visitation rights, so that writ of prohibition was improperly sought, improvidently issued and was quashed since such a writ is to issue only when a court acts in excess of its jurisdiction and no other adequate remedy exists. Dey v. Cunningham, 93 Idaho 684, 471 P.2d 71 (1970).

Where a party seeking discovery moved the district court to assess discovery costs against special prosecutor, who had petitioned the district court for protective order to prevent inquiry into certain aspects of criminal investigation, a writ of prohibition would not be issued against the party seeking discovery who exercised no judicial or quasi-judicial power but who was merely a private citizen attempting to use the courts. Frost v. Hofmeister, 97 Idaho 757, 554 P.2d 935 (1976).

Where a complaint filed by a person other than the county prosecutor was nonetheless sufficient to institute a criminal action for forgery and to confer jurisdiction on the magistrate, a writ of prohibition was properly quashed. Clark v. Meehl, 98 Idaho 641, 570 P.2d 1331 (1977).

Where a criminal case was dismissed and refiled, no writ of prohibition would issue to require the trial judge to dismiss the case or reassign it to the original magistrate since the magistrate clearly had jurisdiction of the case. Rufener v. Shaud, 98 Idaho 823, 573 P.2d 142 (1977).

Since by virtue of§ 1-2210, and Idaho R. Civ. P. 82(c)(2) and a rule of the third judicial circuit, lawyer magistrate 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).

State was not entitled to a writ of prohibition to enjoin a district court from assessing fees for a special master against the state because the appointment of special masters and the assessment of special master costs were matters within the discretion of the district courts. Clear statutory authority existed for the award of such fees, as well direction as to how costs awarded against the state were to be paid. State v. District Court, 143 Idaho 695, 152 P.3d 566 (2007).

Cross References.

Jurisdiction of Supreme Court,Idaho Const., Art. V, § 9;§ 1-202.

Nonjudicial days, writs of prohibition may be issued and served on,§ 1-1607.

Absence of Interest.

Writ of prohibition will not issue to restrain judge from holding court at a certain place, on ground that act purporting to create county of which place is the county seat is unconstitutional, where petitioner has no interest in question of the constitutionality of such act, but his interest depends on his being litigant in case pending in court of such judge, and no reason is apparent from the petition why case in which he is interested cannot as well be tried at place in question as at any other place. Bellevue Water Co. v. Stockslager, 4 Idaho 636, 43 P. 568 (1895).

Adequacy of Other Remedy.

Adequacy of remedy is not to be tested by the convenience or inconvenience of parties to a particular case. Willman v. District Court, 4 Idaho 11, 35 P. 692 (1894); Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348 (1921).

The supreme court cannot anticipate error or that a trial court, board or commission will exceed its jurisdiction and thereupon take jurisdiction before that court has heard and determined the matter which it has jurisdiction to hear and determine, and where the act sought to be prohibited may speedily be reviewed in the supreme court by appeal from the order of the inferior tribunal, or if an appeal will not lie, then upon a writ of error or certiorari the writ of prohibition will not issue. In re Miller, 4 Idaho 711, 43 P. 870 (1896); Rust v. Stewart, 7 Idaho 558, 64 P. 222 (1901); Olden v. Paxton, 27 Idaho 597, 150 P. 40 (1915); Skeen v. District Court, 29 Idaho 331, 158 P. 1072 (1916); Gropp v. Huyette, 35 Idaho 683, 208 P. 848 (1922).

A writ of prohibition will be issued upon proper complaint or petition to arrest proceedings which are without or in excess of the jurisdiction of a tribunal, corporation, board or person, in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. Cronan v. District Court, 15 Idaho 184, 96 P. 768 (1908); Little v. Broxon, 31 Idaho 303, 170 P. 918 (1918); Evans v. District Court, 47 Idaho 267, 275 P. 99 (1929); State ex rel. Bank of Eagle v. Leonardson, 51 Idaho 646, 9 P.2d 1028 (1932).

Appellate court will not entertain jurisdiction where there is adequate remedy at law, unless record shows that refusal of writ will result in denial of substantial justice. Thompson v. Adair, 36 Idaho 790, 214 P. 214 (1923).

In plain case of district judge permitting motion for new trial to be renewed and reversing his former order, remedy by appeal is neither speedy nor adequate enough to prevent issuance of writ. Spivey v. District Court, 37 Idaho 774, 219 P. 203 (1923).

Appeal from order denying change of venue, where judge is disqualified from sitting on case, does not stay proceedings; in such case writ of prohibition lies to forbid judge sitting on case. Hultner-Wallner v. Featherstone, 48 Idaho 507, 283 P. 42 (1929).

The question of fact as to whether the court reporter has copied and certified as exhibits certain files and papers not introduced in evidence which defendants intended to transmit as exhibits to the supreme court might properly be postponed to be determined on hearing of appeal. Evans v. District Court, 50 Idaho 60, 293 P. 323 (1930).

Prohibition will not lie for the purpose of correcting errors or irregularities committed by an inferior court of probate jurisdiction. Pfirman v. Probate Court of Shoshone County, 57 Idaho 304, 64 P.2d 849 (1937).

Under the statute making a homestead subject to execution in satisfaction of a judgment obtained on a debt secured by a materialman’s lien, the court, in decreeing the foreclosure of such lien and in issuing a writ of assistance directing the sheriff to place the holder of sheriff’s deed in possession, was not subject to writ of prohibition. Roark v. Koelsch, 62 Idaho 626, 115 P.2d 95 (1941).

Prohibition will not lie to restrain justice court from proceeding with the prosecution of an offense, where defendant’s remedy at law by appeal was adequate. Kaseris v. Justice Court, 65 Idaho 347, 144 P.2d 469 (1943).

A right of appeal is regarded as a plain, speedy and adequate remedy at law in the absence of a showing of exceptional circumstances or of the inadequacy of an appeal to protest existing rights, and it never was the intention or meaning of this section that writs of prohibition should take the place of appeals. Smith v. Young, 71 Idaho 31, 225 P.2d 466 (1950). Before a writ of prohibition will issue to an inferior court, it must appear both that the inferior court is proceeding without or in excess of its jurisdiction and that there is not a plain, speedy and adequate remedy in the ordinary course of law. Smith v. Young, 71 Idaho 31, 225 P.2d 466 (1950).

Writ of prohibition will not be issued, if there is a right of appeal by statute, since appeal is an adequate remedy. Common Sch. Dist. No. 58 v. Lunden, 71 Idaho 486, 233 P.2d 806 (1951).

Where the petitioners sought to prohibit county boards from interfering with the assessor’s office but there was no showing that they had attempted to appeal from the actions complained of, the petitioners did not establish lack of an adequate remedy at law and no writ of prohibition would issue. Clark v. Ada County Bd. of Comm’rs, 98 Idaho 749, 572 P.2d 501 (1977).

Where a criminal case was dismissed and refiled no writ of prohibition would issue to require the trial judge to dismiss the case or reassign it to the original magistrate since defendants were not precluded from their normal right to appeal and would not be subjected to any hardships exceeding those ordinarily borne by a defendant in a criminal prosecution. Rufener v. Shaud, 98 Idaho 823, 573 P.2d 142 (1977).

Plaintiff who had been ordered by the department of water resources to install measuring and recording devices on rim of plaintiff’s water diversion of creek had statutory appeals process available to it when district court dismissed its petition for writ of prohibition against department and since the right to an appeal, although unexercised and since expired, was an adequate remedy at law and the issues raised in the petition were the same ones that could have been brought in a petition for judicial review, dismissal of petition was proper. Rim View Trout Co. v. Idaho Dep’t of Water Resources, 119 Idaho 676, 809 P.2d 1155 (1991).

It is fundamental that a writ of prohibition will not function as the equivalent of an appeal or a petition for review. Rim View Trout Co. v. Idaho Dep’t of Water Resources, 119 Idaho 676, 809 P.2d 1155 (1991).

Summary judgment for respondent was proper where plaintiff failed to state a claim, and any procedural issues related to plaintiff’s DUI trial were not an appropriate basis for writs because plaintiff had an adequate remedy at law — a direct appeal. Ackerman v. Bonneville County, 140 Idaho 307, 92 P.3d 557 (Ct. App. 2004).

Idaho department of land’s motion to dismiss the attorney general’s writ of prohibition was granted, as there was a plain, speedy, and adequate remedy in the ordinary course of law, such that an extraordinary writ of prohibition would be improper. Injunctive relief would be at least as effective as issuance of the writ, if not more so. State v. Idaho State Bd. of Land Comm’rs (In re Verified Petition), 150 Idaho 547, 249 P.3d 346 (2010).

Basis for Issuance.

Before a writ of prohibition will issue to an inferior court, it must appear both that the inferior court is proceeding without or in excess of its jurisdiction and that there is no plain speedy and adequate remedy in the ordinary course of law. Freiburghaus v. Freiburghaus, 100 Idaho 730, 604 P.2d 1209 (1980).

Discretion of Court.

The issuance of this writ is discretionary with the court and especially where another remedy exists. Maxwell v. Terrell, 37 Idaho 767, 220 P. 411 (1923). State was not entitled to a writ of prohibition to enjoin a district court from assessing fees for a special master against the state because the appointment of special masters and the assessment of special master costs were matters within the discretion of the district courts. Clear statutory authority existed for the award of such fees, as well direction as to how costs awarded against the state were to be paid. State v. District Court, 143 Idaho 695, 152 P.3d 566 (2007).

Issuance by Supreme Court.

Once the supreme court has asserted its original jurisdiction, it may issue writs of mandamus and/or prohibition. Mead v. Arnell, 117 Idaho 660, 791 P.2d 410 (1990).

Issuance Error.

Since by virtue of§ 1-2210, and Idaho R. Civ. P. 82(c)(2) and a rule of the third judicial circuit, lawyer magistrate 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).

Jurisdictional Question Essential.

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).

The legislature did not intend by these sections that the writ be used to prevent all acts, when wrongfully threatened, which mandate may compel, when wrongfully refused, for excess, or want of, jurisdiction is an indispensable element of the writ of prohibition. Taylor v. Girard, 54 Idaho 787, 36 P.2d 773 (1934).

A writ of prohibition will not issue unless it is made to appear that the tribunal, corporation, board, or person is proceeding without or in excess of jurisdiction, and also that there is no plain, speedy, and adequate remedy in the ordinary course of law. Roark v. Koelsch, 62 Idaho 626, 115 P.2d 95 (1941).

The district court acted within its jurisdiction in finding divorced wife in contempt for refusing her divorced husband his reasonable child visitation rights, so that writ of prohibition was improperly sought, improvidently issued and was quashed since such a writ is to issue only when a court acts in excess of its jurisdiction and no other adequate remedy exists. Dey v. Cunningham, 93 Idaho 684, 471 P.2d 71 (1970).

Multiplicity of Parties and Witnesses.

Prohibition lies to stay proceedings that would entail bringing in hundreds of parties defendant and require a multitude of witnesses to sustain the issues tendered. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

Parties.

Same degree of strictness in regard to parties is not maintained in prohibition as in mandate; writ of prohibition may be issued on application of any person shown to be interested in the litigation; he need not necessarily be named as a party in the original action; he may make himself a party by showing that he has an interest in controversy and by moving to set aside judgment or order made without or in excess of jurisdiction. Cronan v. District Court, 15 Idaho 184, 96 P. 768 (1908). State was not entitled to a writ of prohibition to enjoin a district court from assessing fees for a special master against the state because the appointment of special masters and the assessment of special master costs were matters within the discretion of the district courts. Clear statutory authority existed for the award of such fees, as well direction as to how costs awarded against the state were to be paid. State v. District Court, 143 Idaho 695, 152 P.3d 566 (2007).

Issuance by Supreme Court.

Once the supreme court has asserted its original jurisdiction, it may issue writs of mandamus and/or prohibition. Mead v. Arnell, 117 Idaho 660, 791 P.2d 410 (1990).

Issuance Error.

Since by virtue of§ 1-2210, and Idaho R. Civ. P. 82(c)(2) and a rule of the third judicial circuit, lawyer magistrate 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).

Jurisdictional Question Essential.

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).

The legislature did not intend by these sections that the writ be used to prevent all acts, when wrongfully threatened, which mandate may compel, when wrongfully refused, for excess, or want of, jurisdiction is an indispensable element of the writ of prohibition. Taylor v. Girard, 54 Idaho 787, 36 P.2d 773 (1934).

A writ of prohibition will not issue unless it is made to appear that the tribunal, corporation, board, or person is proceeding without or in excess of jurisdiction, and also that there is no plain, speedy, and adequate remedy in the ordinary course of law. Roark v. Koelsch, 62 Idaho 626, 115 P.2d 95 (1941).

The district court acted within its jurisdiction in finding divorced wife in contempt for refusing her divorced husband his reasonable child visitation rights, so that writ of prohibition was improperly sought, improvidently issued and was quashed since such a writ is to issue only when a court acts in excess of its jurisdiction and no other adequate remedy exists. Dey v. Cunningham, 93 Idaho 684, 471 P.2d 71 (1970).

Multiplicity of Parties and Witnesses.

Prohibition lies to stay proceedings that would entail bringing in hundreds of parties defendant and require a multitude of witnesses to sustain the issues tendered. Nampa & Meridian Irrigation Dist. v. Barclay, 56 Idaho 13, 47 P.2d 916 (1935).

Parties.

Past Acts.

Same degree of strictness in regard to parties is not maintained in prohibition as in mandate; writ of prohibition may be issued on application of any person shown to be interested in the litigation; he need not necessarily be named as a party in the original action; he may make himself a party by showing that he has an interest in controversy and by moving to set aside judgment or order made without or in excess of jurisdiction. Cronan v. District Court, 15 Idaho 184, 96 P. 768 (1908). Past Acts.

An applicant bears the burden of showing that a respondent is acting without or in excess of its jurisdiction and that the writ will effectively prevent the respondent from so acting and, accordingly, a past act is not subject to a writ. Clark v. Ada County Bd. of Comm’rs, 98 Idaho 749, 572 P.2d 501 (1977).

Where the petitioners requested the court to prohibit the state tax commission from certifying a tax roll or interfering with the management of the assessor’s office and to prohibit the board of equalization from acting on the tax roll, such of these actions as had already been completed would not be prohibited. Clark v. Ada County Bd. of Comm’rs, 98 Idaho 749, 572 P.2d 501 (1977).

Purpose of Writ.

Writ of prohibition is used to arrest proceedings involving lack of or excess of jurisdiction and not to attack errors committed in exercise of jurisdiction. Gasper v. District Court, 74 Idaho 388, 264 P.2d 679 (1953).

Stay of Contempt Proceedings.

Writ of prohibition is proper remedy when a district judge assumes to act in a case to which he is a party and in which he has a direct interest, as where he attempts to punish one for contempt of court as if the contempt had been committed in the immediate view and presence of the court, when such is not the case. Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923).

Sufficiency of Petition and Showing.

Upon an application for a writ of prohibition, the petition must show all facts necessary to entitle the petitioner to the writ, and if it does not, the writ will be denied. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904).

Am. Jur. 2d.

C.J.S.

ALR.

Judgment granting or denying writ of mandamus or prohibition as res judicata. 21 A.L.R.3d 206.

Availability of writ of prohibition against acts of public prosecutor, 16 A.L.R.4th 112.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 755, 756; R.S., R.C., & C.L., §§ 5000, 5005; C.S., §§ 7271, 7272; I.C.A.,§§ 13-501, 13-502, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule see, Idaho App. R. 5.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 757; R.S., R.C., & C.L., § 5006; C.S., § 7273; I.C.A.,§ 13-503, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. R. 62(c) and Idaho App. R. 3.

Cross References.

Abbreviation and numbers, use in pleadings, Idaho R. Civ. P. 10(a)(3).

Aeronautics, failure to obey court order compelling compliance with subpoena of Idaho department of transportation,§ 21-116.

Aeronautics, violation of court orders under uniform state aeronautics department act,§ 21-121. •Title 7»«Ch. 6»•§ 7-601»

Cross References.

Abbreviation and numbers, use in pleadings, Idaho R. Civ. P. 10(a)(3).

Aeronautics, failure to obey court order compelling compliance with subpoena of Idaho department of transportation,§ 21-116.

Aeronautics, violation of court orders under uniform state aeronautics department act,§ 21-121. Artificial insemination of domestic animals, refusal to obey court order for hearing upon revocation of license to practice,§ 25-810.

Attachment for refusal to appear before state board of bar examiners,§ 3-414.

Attorney practicing without license,§ 3-104.

Attorneys, board of commissioners of Idaho state bar, disobedience to court order enforcing subpoena a contempt,§ 3-414.

Certain contempts a misdemeanor,§ 18-1801.

Civil arrest of person responding to subpoena as contempt,§ 9-1304.

Contempt also punishable as crime,§ 18-302.

Costs, Idaho R. Civ. P. 54(d)(1) through 54(d)(7).

Depositions, refusal of witness to attend for taking a contempt, Idaho R. Civ. P. 37(b).

Deposit of money in court, contempt in disobeying an order for,§ 8-703.

Disobedience to a subpoena,§ 9-708, Idaho R. Civ. P. 45(h).

Grand juror participating in deliberation after challenge sustained against him is guilty of contempt,§ 19-1007.

Inherent powers of courts,§ 1-1603.

Inherent powers of judicial officers to preserve order in court, and compel obedience to their orders,§ 1-1901.

Judicial officers may punish for contempt,§ 1-1902.

Legislature, subpoena to appear before, contempt in disobedience of,§ 67-409.

Liquor law enforcement, failure to testify or respond to summons a contempt,§ 23-807.

Liquor nuisance, violation of abatement order a contempt,§ 23-710.

Mandate, disobedience to writ of, penalty,§ 7-314.

Moral nuisances, violation of injunction and order of abatement of,§§ 52-402, 52-413.

Proceedings supplementary to execution, disobedience of orders a contempt,§ 11-508.

Proceedings to be in English language, Idaho R. Civ. P. 10(a)(3).

Rescue as criminal offense,§ 18-2501.

Service of contempt papers must be on party, Idaho R. Civ. P. 5(a), 5(b).

Statute of limitations applicable to special proceedings of a civil nature,§ 5-240.

Successive applications for orders, Idaho R. Civ. P. 11(a)(2).

Supplementary proceedings, contempt in refusal to obey orders of a referee in,§ 11-508.

Water rates, subpoenas issued by county commissioners in fixing, contempt in refusing to obey,§ 42-1004.

Witness, arrest when privileged from, a contempt of court,§ 9-1304.

Writ of mandate, contempt in disobeying,§ 7-314.

Administrative Judges.

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§ 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).

Attorney Magistrate.

The attorney magistrate, in conducting habeas corpus proceedings, exercises the judicial power of the state of Idaho 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), its source lies in the Constitution and the common law. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Award of Attorney Fees.

An injunction which prohibited defendants from engaging in mining operations until they received a permit to do so was a valid and lawful order of the court, violation of which was grounds for contempt; accordingly, the award of attorney fees pursuant to a contempt finding was proper. 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).

Contractual Obligation.

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).

Construction and Application.

Since§§ 7-601 to 7-604 were copied from the California Code, and had been construed by the highest court of that state at time of their adoption by the legislature of this state, the supreme court accepted the construction placed upon them by courts of the state from which they were taken. In re Niday, 15 Idaho 559, 98 P. 845 (1908).

Free criticism of all decisions of court is allowed and invited, but criticism ceases and contempt begins when malicious slander, vilification and defamation bring courts and administration of the law into dishonor and disrepute among the people. McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913). Immunity.

Administrative Judges.

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§ 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).

Attorney Magistrate.

The attorney magistrate, in conducting habeas corpus proceedings, exercises the judicial power of the state of Idaho 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), its source lies in the Constitution and the common law. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Award of Attorney Fees.

An injunction which prohibited defendants from engaging in mining operations until they received a permit to do so was a valid and lawful order of the court, violation of which was grounds for contempt; accordingly, the award of attorney fees pursuant to a contempt finding was proper. 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).

Contractual Obligation.

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).

Construction and Application.

Since§§ 7-601 to 7-604 were copied from the California Code, and had been construed by the highest court of that state at time of their adoption by the legislature of this state, the supreme court accepted the construction placed upon them by courts of the state from which they were taken. In re Niday, 15 Idaho 559, 98 P. 845 (1908).

Free criticism of all decisions of court is allowed and invited, but criticism ceases and contempt begins when malicious slander, vilification and defamation bring courts and administration of the law into dishonor and disrepute among the people. McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913). Probate courts, or judges thereof, have jurisdiction over matters of contempt as provided in this chapter. Harkness v. Hyde, 31 Idaho 784, 176 P. 885 (1918).

Contempt proceedings will not lie against party for wrongfully diverting water to his own use where its use has been decreed to others, when his conduct does not otherwise violate any judgment, order, or process of court. Albrethson v. Ensign, 32 Idaho 687, 186 P. 911 (1920).

Contempt is not proper proceeding to determine issue when person not party to judgment sets up bona fide claim to title of property involved in such judgment. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923).

A contempt proceeding under this section is a special proceeding criminal in nature, since a violation thereof is punishable by fine or imprisonment. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

Custody Order.

In a case where the mother granted her consent to her 17-year-old child’s marriage, but the father did not, the district court erred in affirming the magistrate’s judgment holding the mother in contempt for violating the order modifying custody, because the order did not clearly and unequivocally prohibit the mother from consenting to the child’s marriage. Thompson v. Bybee, 161 Idaho 158, 384 P.3d 405 (Ct. App. 2016).

Due Process.

Because of the criminal nature of a contempt proceeding, a person charged with contempt under this section is entitled to certain procedural due process protections before the court can impose sanctions: he is entitled to notice of the exact charges against him, proof that he had knowledge of the terms of the court’s order that he was alleged to have violated, notice of the sanctions which might be imposed against him (fine or jail term), and a trial or hearing on the charges raised. Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988).

An order to show cause is not fatally defective if it does not contain notice of possible sanctions, and as long as the contemnor is provided notice of the possible sanctions before admitting or denying the contempt allegation, due process, insofar as notice of the possible sanctions, is satisfied. Muthersbaugh v. Neumann, 133 Idaho 677, 991 P.2d 865 (Ct. App. 1999).

In contempt proceedings for illegal practice of law, a demurrer would not lie to a single paragraph of the petition on the ground that it did not state facts sufficient to constitute practicing law, since the petition was sufficient if taken as a whole, and if it stated facts as a whole to constitute a charge of contempt, that is all that is required. In re Matthews, 57 Idaho 75, 62 P.2d 578 (1936).

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).

In General.

While this chapter provides statutory guidance with respect to contempts, it may not constitutionally circumscribe the judicial power conferred byIdaho Const., Art. V, § 2, the power recognized by§ 1-1603, or the inherent common-law contempt power. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983). Probate courts, or judges thereof, have jurisdiction over matters of contempt as provided in this chapter. Harkness v. Hyde, 31 Idaho 784, 176 P. 885 (1918).

Contempt proceedings will not lie against party for wrongfully diverting water to his own use where its use has been decreed to others, when his conduct does not otherwise violate any judgment, order, or process of court. Albrethson v. Ensign, 32 Idaho 687, 186 P. 911 (1920).

Contempt is not proper proceeding to determine issue when person not party to judgment sets up bona fide claim to title of property involved in such judgment. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923).

A contempt proceeding under this section is a special proceeding criminal in nature, since a violation thereof is punishable by fine or imprisonment. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

Custody Order.

In a case where the mother granted her consent to her 17-year-old child’s marriage, but the father did not, the district court erred in affirming the magistrate’s judgment holding the mother in contempt for violating the order modifying custody, because the order did not clearly and unequivocally prohibit the mother from consenting to the child’s marriage. Thompson v. Bybee, 161 Idaho 158, 384 P.3d 405 (Ct. App. 2016).

Due Process.

Because of the criminal nature of a contempt proceeding, a person charged with contempt under this section is entitled to certain procedural due process protections before the court can impose sanctions: he is entitled to notice of the exact charges against him, proof that he had knowledge of the terms of the court’s order that he was alleged to have violated, notice of the sanctions which might be imposed against him (fine or jail term), and a trial or hearing on the charges raised. Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988).

An order to show cause is not fatally defective if it does not contain notice of possible sanctions, and as long as the contemnor is provided notice of the possible sanctions before admitting or denying the contempt allegation, due process, insofar as notice of the possible sanctions, is satisfied. Muthersbaugh v. Neumann, 133 Idaho 677, 991 P.2d 865 (Ct. App. 1999).

In contempt proceedings for illegal practice of law, a demurrer would not lie to a single paragraph of the petition on the ground that it did not state facts sufficient to constitute practicing law, since the petition was sufficient if taken as a whole, and if it stated facts as a whole to constitute a charge of contempt, that is all that is required. In re Matthews, 57 Idaho 75, 62 P.2d 578 (1936).

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).

In General.

Labor Disputes.

While this chapter provides statutory guidance with respect to contempts, it may not constitutionally circumscribe the judicial power conferred byIdaho Const., Art. V, § 2, the power recognized by§ 1-1603, or the inherent common-law contempt power. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983). Labor Disputes.

The circuit court of appeals which had granted a decree enforcing back pay against an employer, on petition of the board, granted injunction restraining estranged wives and creditors of the employees entitled to the back pay from maintaining actions in the state courts for the purpose of carrying into effect attachment writs, and injunctive orders against the employer for the purpose of reaching back pay, since the power to punish contempt was not an adequate remedy. NLRB v. Sunshine Mining Co., 125 F.2d 757 (9th Cir. 1942).

Review.

While the supreme court has plenary power underIdaho Const., Art. V, § 9, to review a contempt case and contempt orders, a writ of review remains the proper method of securing review of a contempt order in the usual case. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Sufficiency of Affidavit.

Since contempt proceedings are quasi-criminal in nature, even though designed to impose punishment for violation of an order made in a civil action, no intendments or presumptions may be indulged to aid the sufficiency of the affidavit charging the contempt. First Sec. Bank v. Hansen, 107 Idaho 472, 690 P.2d 927 (1984).

Plaintiff’s affidavit, wherein she alleged that a lawful court order existed requiring that defendant pay child support, that defendant had knowledge of that order, and that defendant had failed to comply with that order, was sufficient to vest the magistrate with jurisdiction over the contempt action. Muthersbaugh v. Neumann, 133 Idaho 677, 991 P.2d 865 (Ct. App. 1999).

Void Orders.

Disobedience of void order is not punishable as contempt of court. MacWatters v. Stockslager, 29 Idaho 803, 162 P. 671 (1917).

A violation of an order which is void because of lack of jurisdiction to make it is not a contempt of court and no one is under compulsion to obey it. State v. McNichols, 62 Idaho 616, 115 P.2d 104 (1941).

Water Rights.

The testimony clearly showed a course of wilful and persistent violation on the part of both defendants of the district court’s restraining order to cease interfering with plaintiff landowners’ use of water and by virtue thereof, factually, the district court was justified in adjudging defendants and each of them in contempt of its order. Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959).

Willfulness.

An allegation of willfulness is not required in the initiating affidavit of an indirect contempt proceeding for enforcement of court ordered child support. Muthersbaugh v. Neumann, 133 Idaho 677, 991 P.2d 865 (Ct. App. 1999). Definition of “willful” as an indifferent disregard of duty or a remissness and failure in performance of a duty but not a deliberately and maliciously planned dereliction of duty applies to contempt proceedings. Watson v. Weick (In re Weick), 142 Idaho 275, 127 P.3d 178 (2005).

Witnesses.

When an attorney is called as a witness and declines to answer questions or to produce letters or documents on the ground of privilege, the burden is upon him to establish the general privileged character of the communications or documents. In re Niday, 15 Idaho 559, 98 P. 845 (1908).

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).

Am. Jur. 2d.

C.J.S.

ALR.

Release of information concerning forthcoming or pending trial as ground for contempt proceedings or other disciplinary measures against member of the bar. 11 A.L.R.3d 1104.

Appealability of acquittal from or dismissal of charge of contempt of court. 24 A.L.R.3d 650.

Prejudicial effect of holding accused in contempt of court in presence of jury. 29 A.L.R.3d 1399.

Appealability of contempt adjudication or conviction. 33 A.L.R.3d 448.

Contempt adjudication or conviction as subject to review other than by appeal or writ of error. 33 A.L.R.3d 589.

Publication or broadcast, during course of trial, of matter prejudicial to criminal defendant as contempt. 33 A.L.R.3d 1116.

Attorney’s refusal to accept appointment to defend indigent, or to proceed in such defense, as contempt. 36 A.L.R.3d 1221.

Attack on judiciary as a whole as indirect contempt. 40 A.L.R.3d 1204.

Defense of entrapment in contempt proceedings. 41 A.L.R.3d 418.

Allowance of attorneys’ fees in civil contempt proceedings. 43 A.L.R.3d 793.

Right of counsel in contempt proceedings. 52 A.L.R.3d 1002.

Mortgagor’s interference with property subject to order of foreclosure and sale as contempt of court. 54 A.L.R.3d 1242.

Picketing court or judge as contempt. 58 A.L.R.3d 1297.

Assault on attorney as contempt. 61 A.L.R.3d 500. Addressing allegedly insulting remarks to court during course of trial as contempt. 68 A.L.R.3d 273.

Conduct of attorney in connection with making objections or taking exceptions as contempt of court. 68 A.L.R.3d 314.

Refusal to answer questions before state grand jury as direct contempt of court. 69 A.L.R.3d 501.

Affidavits or motion for disqualification of judge as contempt. 70 A.L.R.3d 797.

Contempt for violation of compromise on settlement the term of which was approved by court but not incorporated in court order, decree, or judgment. 84 A.L.R.3d 1047.

Right of injured party to award of compensatory damages or fine in contempt proceedings. 85 A.L.R.3d 895.

Attorney’s failure to attend court, or tardiness, as contempt. 13 A.L.R.4th 122.

Disqualification of judge in state proceedings to punish contempt against or involving himself in open court and in his actual presence. 37 A.L.R.4th 1004.

Holding jurors in contempt under state law. 93 A.L.R.5th 493.

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.

Cross References.

Malicious injury to real property as criminal offense,§ 18-7001.

Amendments.

The 2012 amendment, by ch. 20, substituted “the court shall immediately” for “or justice of the peace must immediately” near the beginning of the last sentence.

Affidavit.

The function of the affidavit provided for in this section is to apprise the alleged contemner of the particular facts of which he is accused so that he may meet such accusations at the hearing. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

— Elements.

Jurisdiction of a district court in indirect contempt proceedings initiated under this section is founded upon an initiating affidavit which must set out all the essential elements of the contempt, and one of the essential elements is knowledge on the part of the contemner or his attorney of the order in which he is alleged to be in contempt. State v. Palmlund, 95 Idaho 150, 504 P.2d 1199 (1972). •Title 7»«Ch. 6»«§ 7-603»

Affidavit.

The function of the affidavit provided for in this section is to apprise the alleged contemner of the particular facts of which he is accused so that he may meet such accusations at the hearing. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

— Elements.

Jurisdiction of a district court in indirect contempt proceedings initiated under this section is founded upon an initiating affidavit which must set out all the essential elements of the contempt, and one of the essential elements is knowledge on the part of the contemner or his attorney of the order in which he is alleged to be in contempt. State v. Palmlund, 95 Idaho 150, 504 P.2d 1199 (1972). The initiating affidavit must allege that the contemnor or his attorney was served with the order which he is charged as having violated, or that he had actual knowledge of it. First Sec. Bank v. Hansen, 107 Idaho 472, 690 P.2d 927 (1984).

In an indirect contempt proceeding, the court acquires no jurisdiction to proceed unless a sufficient affidavit is presented; the initiating affidavit must allege that the contemnor or his attorney has been served with or has actual knowledge of the order and that the order has been violated. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

— Function.

The function of the affidavit is to apprise the alleged contemnor of the particular facts of which he is accused, so that he may meet such accusations at the hearing. Reeves v. Reynolds, 112 Idaho 574, 733 P.2d 795 (Ct. App. 1987).

— Sufficiency.

An affidavit by the clerk of the court charging a party with contempt of court by violation of a support order in a divorce case which did not allege that the party was served with the order or that he had actual knowledge of it was insufficient, even though the record showed that the party had appeared personally in the case. Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967).

The court is without jurisdiction if the affidavit required by this section fails to recite with particularity on its face the substantive facts which constitute, or might constitute, a contempt. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

In evaluating the sufficiency of an affidavit relied upon as the basis of a contempt proceeding, a court cannot indulge in any intendments or presumptions in its favor. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972); First Sec. Bank v. Hansen, 107 Idaho 472, 690 P.2d 927 (1984).

The affidavit required by this section failed to state a prima facie case against the petitioner-lawyer in that it did not allege the particular acts or omissions which constituted violations of his duties as an attorney or as guardian of an estate. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

Where the affidavit required by this section fails to allege all essential material facts, such a deficiency cannot be cured by proof supplied at the hearing or by judicial notice of the court’s own records. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972); Reeves v. Reynolds, 112 Idaho 574, 733 P.2d 795 (Ct. App. 1987).

When an affidavit is required by this section, the court presiding over the contempt hearing acquires no jurisdiction to proceed until a sufficient affidavit is presented. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

Where the affidavit forming the basis for the trial court’s finding of contempt was insufficient, the trial court lacked jurisdiction to make a finding and its order of contempt and attendant fine had to be reversed. First Sec. Bank v. Hansen, 107 Idaho 472, 690 P.2d 927 (1984).

Where, in an action to modify child support payments, the magistrate found the father in contempt of court for his failure to pay child support prior to his incarceration. The wife averred in her affidavit that the father had been served with the default divorce decree or had actual knowledge of it, that she had received no child support payments from him since the order was entered, and that accrued payments totaling $7200 were due. The affidavit presented a prima facie case for contempt and was sufficient to provide the magistrate with jurisdiction. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988). The initiating affidavit must allege that the contemnor or his attorney was served with the order which he is charged as having violated, or that he had actual knowledge of it. First Sec. Bank v. Hansen, 107 Idaho 472, 690 P.2d 927 (1984).

In an indirect contempt proceeding, the court acquires no jurisdiction to proceed unless a sufficient affidavit is presented; the initiating affidavit must allege that the contemnor or his attorney has been served with or has actual knowledge of the order and that the order has been violated. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

— Function.

The function of the affidavit is to apprise the alleged contemnor of the particular facts of which he is accused, so that he may meet such accusations at the hearing. Reeves v. Reynolds, 112 Idaho 574, 733 P.2d 795 (Ct. App. 1987).

— Sufficiency.

An affidavit by the clerk of the court charging a party with contempt of court by violation of a support order in a divorce case which did not allege that the party was served with the order or that he had actual knowledge of it was insufficient, even though the record showed that the party had appeared personally in the case. Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967).

The court is without jurisdiction if the affidavit required by this section fails to recite with particularity on its face the substantive facts which constitute, or might constitute, a contempt. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

In evaluating the sufficiency of an affidavit relied upon as the basis of a contempt proceeding, a court cannot indulge in any intendments or presumptions in its favor. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972); First Sec. Bank v. Hansen, 107 Idaho 472, 690 P.2d 927 (1984).

The affidavit required by this section failed to state a prima facie case against the petitioner-lawyer in that it did not allege the particular acts or omissions which constituted violations of his duties as an attorney or as guardian of an estate. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

Where the affidavit required by this section fails to allege all essential material facts, such a deficiency cannot be cured by proof supplied at the hearing or by judicial notice of the court’s own records. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972); Reeves v. Reynolds, 112 Idaho 574, 733 P.2d 795 (Ct. App. 1987).

When an affidavit is required by this section, the court presiding over the contempt hearing acquires no jurisdiction to proceed until a sufficient affidavit is presented. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972).

Where the affidavit forming the basis for the trial court’s finding of contempt was insufficient, the trial court lacked jurisdiction to make a finding and its order of contempt and attendant fine had to be reversed. First Sec. Bank v. Hansen, 107 Idaho 472, 690 P.2d 927 (1984).

Application.

Where, in an action to modify child support payments, the magistrate found the father in contempt of court for his failure to pay child support prior to his incarceration. The wife averred in her affidavit that the father had been served with the default divorce decree or had actual knowledge of it, that she had received no child support payments from him since the order was entered, and that accrued payments totaling $7200 were due. The affidavit presented a prima facie case for contempt and was sufficient to provide the magistrate with jurisdiction. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988). Application.

Bringing an action against a judge is not contempt if it is brought in good faith and allegations of the pleadings are appropriate to the kind of action. Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923).

Filing of complaint against judge in one county while court is not in session there and judge was holding court in another county, if a contempt, is not one committed in the immediate view and presence of court. Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923).

Party cannot be punished for contempt for disobedience of order that court did not have jurisdiction to make. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

Contemnor’s Prior History.

A contemnor’s prior history can be considered in determining the appropriate sanction; therefore, there was no error in considering the prior history of the attorney’s difficulty in being in court at the appointed time. State v. Delezene, 120 Idaho 473, 817 P.2d 139 (1991).

Defenses.

To justify a coercive sanction, a person held in civil contempt must be able to comply with the court order in question; even if a defendant is unable to attack an enforcement order on the ground that he was unable to comply when the order was issued, he still may assert a present inability to comply as a defense to the contempt, but the burden of proving plainly and unmistakably that compliance is impossible rests with the contemnor. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

Failure to Appear.

An attorney’s failure to appear is a direct contempt and, as such, no affidavits were required for the court to initiate contempt proceedings against the absent counsel. State v. Epperson, 130 Idaho 905, 950 P.2d 1244 (1997).

Hearing Required.

An attorney’s failure to be present in court when scheduled without valid excuse constitutes a hybrid form of direct contempt because the circumstances surrounding the absence were readily apparent to the court, but notice of the charges and a hearing were necessary; therefore, the court must issue an order to show cause and conduct a hearing to allow the attorney to explain the absence, and proof of knowledge by the attorney of the original court order must also be shown. State v. Delezene, 120 Idaho 473, 817 P.2d 139 (1991).

Incarceration.

Judge as Witness.

The incarceration of the contemnor is not a voluntary or bad faith change in circumstance in the sense that the contemnor’s act is self-disabling; therefore, a change of economic circumstances due to incarceration may form a valid basis for inability to comply with a contempt order. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988). Judge as Witness.

Both this section and the Idaho criminal rules of court allow, if not require, that the judge who witnessed the conduct punish such conduct; therefore, because the judge is to preside at the hearing and the judge cannot be called as a witness, there is no right to call the judge as a witness in summary contempt proceedings. State v. Delezene, 120 Idaho 473, 817 P.2d 139 (1991).

Notice.

Statements made by defendant attorney and magistrate in contempt proceeding showed defendant had sufficient knowledge of the possible sanctions, and, therefore, there was no error by failing to include notice of the possible sanctions in the order to show cause. State v. Delezene, 120 Idaho 473, 817 P.2d 139 (1991).

Because once an attorney has been given the opportunity to explain the absence to the court, all elements of direct contempt are present and the attorney’s absence is a direct contempt and because the attorney was notified of the contempt charge and the order, the district court did not err in treating the attorney’s failure to be present as a direct contempt. State v. Owen, 126 Idaho 871, 893 P.2d 818 (Ct. App. 1995).

Procedure.

Where alleged contempt occurs outside presence of court, affidavit is complaint and must set forth acts which constitute contempt. Harkness v. Hyde, 31 Idaho 784, 176 P. 885 (1918); Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

Where facts as set out negative idea that contempt was “committed in the immediate view and presence of the court or judge at chambers,” summary method of punishment provided by this section should not be followed. Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923).

Where district court judge tries cause in district other than his own, he cannot hear contempt proceedings arising out of enforcement of judgment in such cause outside the district in which judgment was rendered. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923).

Personal service of order and demand are not necessary where party complained of has personal notice of order. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

Alleged contemner in indirect contempt proceedings who did not raise the defense of failure to allege knowledge of the order of contempt in the affidavit by motion at the trial stage and all of the essential elements of the contempt being proved at the trial, cannot for the first time on appeal raise the issue of the sufficiency of the initiating affidavit. State v. Palmlund, 95 Idaho 150, 504 P.2d 1199 (1972).

— On Review.

Where attorney argued there was no substantial and competent evidence to support the district court’s finding of contempt where attorney failed to appear at client’s criminal trial, the only evidence which the court of appeals could properly consider supported the district court’s finding of contempt as attorney failed to attend the show cause hearing and therefore no transcripts demonstrating that the attorney ever offered his explanations before the district court in the course of a hearing where available for review. State v. Owen, 126 Idaho 871, 893 P.2d 818 (Ct. App. 1995).

Judge as Witness.

Because when the contempt is an indirect contempt, an affidavit must be presented to the court and in this case it was not included in the record, reviewing court had to conclude the contempt order was properly served. State v. Schorzman, 129 Idaho 313, 924 P.2d 214 (1996). Judge as Witness.

Both this section and the Idaho criminal rules of court allow, if not require, that the judge who witnessed the conduct punish such conduct; therefore, because the judge is to preside at the hearing and the judge cannot be called as a witness, there is no right to call the judge as a witness in summary contempt proceedings. State v. Delezene, 120 Idaho 473, 817 P.2d 139 (1991).

Notice.

Statements made by defendant attorney and magistrate in contempt proceeding showed defendant had sufficient knowledge of the possible sanctions, and, therefore, there was no error by failing to include notice of the possible sanctions in the order to show cause. State v. Delezene, 120 Idaho 473, 817 P.2d 139 (1991).

Because once an attorney has been given the opportunity to explain the absence to the court, all elements of direct contempt are present and the attorney’s absence is a direct contempt and because the attorney was notified of the contempt charge and the order, the district court did not err in treating the attorney’s failure to be present as a direct contempt. State v. Owen, 126 Idaho 871, 893 P.2d 818 (Ct. App. 1995).

Procedure.

Where alleged contempt occurs outside presence of court, affidavit is complaint and must set forth acts which constitute contempt. Harkness v. Hyde, 31 Idaho 784, 176 P. 885 (1918); Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

Where facts as set out negative idea that contempt was “committed in the immediate view and presence of the court or judge at chambers,” summary method of punishment provided by this section should not be followed. Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923).

Where district court judge tries cause in district other than his own, he cannot hear contempt proceedings arising out of enforcement of judgment in such cause outside the district in which judgment was rendered. Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923).

Personal service of order and demand are not necessary where party complained of has personal notice of order. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

Alleged contemner in indirect contempt proceedings who did not raise the defense of failure to allege knowledge of the order of contempt in the affidavit by motion at the trial stage and all of the essential elements of the contempt being proved at the trial, cannot for the first time on appeal raise the issue of the sufficiency of the initiating affidavit. State v. Palmlund, 95 Idaho 150, 504 P.2d 1199 (1972).

— On Review.

Where attorney argued there was no substantial and competent evidence to support the district court’s finding of contempt where attorney failed to appear at client’s criminal trial, the only evidence which the court of appeals could properly consider supported the district court’s finding of contempt as attorney failed to attend the show cause hearing and therefore no transcripts demonstrating that the attorney ever offered his explanations before the district court in the course of a hearing where available for review. State v. Owen, 126 Idaho 871, 893 P.2d 818 (Ct. App. 1995).

— Summary Contempt Proceedings.

Because when the contempt is an indirect contempt, an affidavit must be presented to the court and in this case it was not included in the record, reviewing court had to conclude the contempt order was properly served. State v. Schorzman, 129 Idaho 313, 924 P.2d 214 (1996). — Summary Contempt Proceedings.

Because the necessities of the summary contempt proceeding require that the judge who witnessed the conduct preside at the hearing and Idaho rules of evidence bar a judge from serving as both judge and witness in the same proceeding, there is no right to call a judge as a witness in summary contempt proceedings. State v. Owen, 126 Idaho 871, 893 P.2d 818 (Ct. App. 1995).

Recusal by Judge.

A judge is not automatically prejudiced because it is the judge that is bringing the motion to show cause in a contempt proceeding; therefore, requiring recusal by a judge because it is the judge that institutes the contempt proceedings would not serve the interests of justice. State v. Delezene, 120 Idaho 473, 817 P.2d 139 (1991).

Contempt proceedings are unique, criminal rules are used for guidance only, and they are not mandatory; therefore, in a proceeding for direct contempt, there is no right to disqualify the involved judge where the conduct of the attorney was not a personal affront to the magistrate. State v. Delezene, 120 Idaho 473, 817 P.2d 139 (1991).

Sanctions.

The exercise of the broad power to impose civil sanctions is not without limitation; the sanctions imposed will be subject to appellate review under an abuse of discretion standard. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Where reporter was adamant regarding her refusal to answer the questions first propounded in habeas corpus proceeding, which resulted in but a single contempt of a continuing nature, and magistrate first imposed a civil sanction by ordering reporter incarcerated until she purged herself of the contempt, there was no error in this ruling. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Magistrate’s subsequent modification of contempt order, which originally imposed incarceration, to impose a daily $500.00 fine for each day that reporter continued to refuse to answer the questions put to her in a habeas corpus proceeding was to coerce her testimony; this modification did not result in multiple criminal sanctions, but rather constituted a continuing coercive force terminable by compliance of the contemnor — the answering of the questions. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Where reporter refused to answer questions in habeas corpus proceeding seeking to return child to father’s custody, the compelling state interests — the sanctity of the writ of habeas corpus and the safety of the child — outweighed any public interest in an unfettered press and magistrate did not abuse discretion in imposing contempt sanctions of incarceration and fines on reporter. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Wilfulness.

Where in an action to modify child support the father was intermittently employed prior to his incarceration, had paid some of his attorney fees and had acquired a new motor vehicle, the record was sufficiently clear to preclude the necessity of additional findings by the trial court regarding his ability to pay support, and there was no error in the court’s conclusion that he was in contempt of court for diverting funds to his criminal defense instead of paying child support. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988). Wilfulness.

An indifferent disregard of a duty—not deliberately and with malice—is a proper standard for determining wilfulness when an attorney fails to appear in court, and the burden of producing exculpatory evidence rests on the attorney. State v. Epperson, 130 Idaho 905, 950 P.2d 1244 (1997).

Where attorney failed to appear at the continued arraignment because he neglected to calendar the hearing, this failure amounted to an indifferent disregard of a duty to the court and was contemptuous. State v. Epperson, 130 Idaho 905, 950 P.2d 1244 (1997).

ALR.

§ 7-604. Contempt out of court’s presence — Attachment.

When the contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer, or, without a previous arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted; and no warrant of commitment can be issued without such previous attachment to answer, or such notice or order to show cause.

History.

C.C.P. 1881, § 833; R.S., R.C., & C.L., § 5158; C.S., § 7386; I.C.A.,§ 13-604.

Cross References.

Civil arrest,§ 8-101 et seq.

Affidavit, When Required.

Probate and justice’s courts have jurisdiction in matters of contempt as provided by law, but, where any alleged contempt is not committed in the immediate view and presence of the court or judge, no jurisdiction of the contempt is acquired by the court or judge until an affidavit has been presented to such court or judge as required by law. Harkness v. Hyde, 31 Idaho 784, 176 P. 885 (1918) (decision prior to repeal of law establishing probate and justice’s courts).

Contempt as Collateral Issue.

The issue of defendant’s contempt for failure to support the child of the parties was an issue to be decided in contempt proceedings and, without such procedure, could not be considered as a defense to a motion to modify support order merely on allegation in plaintiff’s answer that he was in contempt, since such allegation cannot be substituted for the procedural requisites of the statute on contempt, especially where the alleged contempt was not one committed before the court. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

Procedural Requirement.

A mere allegation that a party is in contempt cannot be substituted for the procedural requisites of this section. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

Cited Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923); Greene v. Edgington, 37 Idaho 1, 214 P. 751 (1923). •Title 7»«Ch. 6»«§ 7-604»

Cross References.

Civil arrest,§ 8-101 et seq.

Affidavit, When Required.

Probate and justice’s courts have jurisdiction in matters of contempt as provided by law, but, where any alleged contempt is not committed in the immediate view and presence of the court or judge, no jurisdiction of the contempt is acquired by the court or judge until an affidavit has been presented to such court or judge as required by law. Harkness v. Hyde, 31 Idaho 784, 176 P. 885 (1918) (decision prior to repeal of law establishing probate and justice’s courts).

Contempt as Collateral Issue.

The issue of defendant’s contempt for failure to support the child of the parties was an issue to be decided in contempt proceedings and, without such procedure, could not be considered as a defense to a motion to modify support order merely on allegation in plaintiff’s answer that he was in contempt, since such allegation cannot be substituted for the procedural requisites of the statute on contempt, especially where the alleged contempt was not one committed before the court. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963).

Procedural Requirement.

A mere allegation that a party is in contempt cannot be substituted for the procedural requisites of this section. Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988).

Procedure.

Legislature may prescribe any reasonable procedure to be followed in contempt prosecutions; but it has failed to provide any procedure, and under§ 1-1622, when procedure is not provided by legislature, any suitable process or mode of proceeding may be adopted which may appear most conformable to spirit of code. McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913) (see Idaho R. Crim. P. 42 et seq.).

Proceeding to punish summarily for contempt is not a criminal action and person charged with contempt is not entitled to jury trial, and the statutes regarding informations, indictments, and the trial of criminal cases are not applicable to contempt proceedings. McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913) (see Idaho R. Crim. P. 42 et seq.).

Cross References.

Dispositions of fines,§ 19-4705.

Amendments.

The 2013 amendment, by ch. 207, inserted “provided that a person who is guilty of contempt for neglecting to attend or serve as a juror when summoned to do so, or for failing to appear as a prospective juror when summoned by the jury commission under section 2-208(4), Idaho Code, shall be fined in an amount not exceeding five hundred dollars ($500), or may be imprisoned not exceeding five (5) days, or both; and” in the first sentence.

Attorney Fees.

Magistrate court did not abuse its discretion in awarding a wife attorney fees in a husband’s contempt proceeding, which was dismissed without prejudice; a court can determine that a party is a prevailing party even when the proceedings against the party are dismissed without prejudice, because the dismissal terminates the proceedings against that party. Charney v. Charney, 159 Idaho 62, 356 P.3d 355 (2015).

Magistrate court did not abuse its discretion in awarding a wife attorney fees in a husband’s contempt proceeding, which was dismissed without prejudice, because the order dismissing the contempt proceedings without prejudice was a final order; a final judgment includes a dismissal of all claims for relief without prejudice. Charney v. Charney, 159 Idaho 62, 356 P.3d 355 (2015).

Neither a husband nor a wife were entitled to appellate attorney fees in an appeal concerning enforcement of a property settlement agreement because there was no prevailing party, as the husband prevailed in a challenge to the trial court’s jurisdiction to hold him in contempt, but the wife prevailed in a challenge to the trial court’s imposition of sanctions in a related appeal. Kantor v. Kantor, 160 Idaho 803, 379 P.3d 1073 (2016).

Excessive Punishment.

A fine or sentence in excess of that authorized by law is valid to the extent that the court had jurisdiction to impose it, but void as to the excess, and such is not grounds for reversal. Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959).

When this section limited any sanction or penalty for contempt under§ 7-601 to a fine of $500 or 5 days in jail, the court’s action in imposing $100,000 attorney fees and $17,000 costs as sanctions against the defendants exceeded his statutory authority under this section by $116,500.00. Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988) (maximum fine now $5000).

This section authorizes a court to impose a maximum of five days imprisonment as a penalty for contempt in those cases where contempt is not based upon disobedience of a judgment or order for the support of minor children; therefore, where defendant was found in contempt for failing to comply with plaintiff’s discovery request, the district court exceeded the limits of its discretion by ordering that defendant be incarcerated for thirty days. Smith v. Smith, 136 Idaho 120, 29 P.3d 956 (Ct. App. 2001).

Inherent Power of Court.

Power of court to punish summarily for contempt is essential to its very existence; this power is not derived from the legislature which has no authority to restrict such power, so far as courts of record are concerned. McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913).

Even though the finding of contempt and fine against purchaser for his disobedience of the district court’s order mandating his signature on a redraft agreement was predicated on an order later found by the court of appeals to be erroneous, the finding of contempt for disobedience of the order was appropriate. Conley v. Whittlesey, 126 Idaho 630, 888 P.2d 804 (Ct. App. 1995).

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). Notice.

Attorney Fees.

Magistrate court did not abuse its discretion in awarding a wife attorney fees in a husband’s contempt proceeding, which was dismissed without prejudice; a court can determine that a party is a prevailing party even when the proceedings against the party are dismissed without prejudice, because the dismissal terminates the proceedings against that party. Charney v. Charney, 159 Idaho 62, 356 P.3d 355 (2015).

Magistrate court did not abuse its discretion in awarding a wife attorney fees in a husband’s contempt proceeding, which was dismissed without prejudice, because the order dismissing the contempt proceedings without prejudice was a final order; a final judgment includes a dismissal of all claims for relief without prejudice. Charney v. Charney, 159 Idaho 62, 356 P.3d 355 (2015).

Neither a husband nor a wife were entitled to appellate attorney fees in an appeal concerning enforcement of a property settlement agreement because there was no prevailing party, as the husband prevailed in a challenge to the trial court’s jurisdiction to hold him in contempt, but the wife prevailed in a challenge to the trial court’s imposition of sanctions in a related appeal. Kantor v. Kantor, 160 Idaho 803, 379 P.3d 1073 (2016).

Excessive Punishment.

A fine or sentence in excess of that authorized by law is valid to the extent that the court had jurisdiction to impose it, but void as to the excess, and such is not grounds for reversal. Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959).

When this section limited any sanction or penalty for contempt under§ 7-601 to a fine of $500 or 5 days in jail, the court’s action in imposing $100,000 attorney fees and $17,000 costs as sanctions against the defendants exceeded his statutory authority under this section by $116,500.00. Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988) (maximum fine now $5000).

This section authorizes a court to impose a maximum of five days imprisonment as a penalty for contempt in those cases where contempt is not based upon disobedience of a judgment or order for the support of minor children; therefore, where defendant was found in contempt for failing to comply with plaintiff’s discovery request, the district court exceeded the limits of its discretion by ordering that defendant be incarcerated for thirty days. Smith v. Smith, 136 Idaho 120, 29 P.3d 956 (Ct. App. 2001).

Inherent Power of Court.

Power of court to punish summarily for contempt is essential to its very existence; this power is not derived from the legislature which has no authority to restrict such power, so far as courts of record are concerned. McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913).

Even though the finding of contempt and fine against purchaser for his disobedience of the district court’s order mandating his signature on a redraft agreement was predicated on an order later found by the court of appeals to be erroneous, the finding of contempt for disobedience of the order was appropriate. Conley v. Whittlesey, 126 Idaho 630, 888 P.2d 804 (Ct. App. 1995).

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). When appellants’ minor daughter was placed on probation for petit theft, the magistrate court violated appellants’ Fourth Amendment rights by requiring appellants to submit to random urine testing for drugs. While the magistrate had the authority to impose a probation condition under subsection (1)(j) of§ 20-520, a violation of the probation was punishable by criminal contempt under§ 7-601 and the exclusionary rule applied. Requiring appellants to undergo urinalysis testing constituted a search that was presumptively invalid without a warrant. State v. Doe, 149 Idaho 353, 233 P.3d 1275 (2010).

Insufficient Basis for Contempt.

On appeal, a finding of contempt of court against defense counsel was vacated because a legitimate misunderstanding between the district court and counsel as to what was expected did not justify summarily imposing criminal contempt upon counsel, especially when the court’s order was subject to different interpretations and counsel’s interpretation was reasonable. Because counsel complied with one option outlined in the district court’s order, she should not have been held in contempt of court for failing to comply with the order. State v. Rice (In re Elliott), 145 Idaho 554, 181 P.3d 480 (2008).

Jurisdiction of Court.

Where plaintiffs were awarded damages for crop damage due to defendants’ depriving them of their decreed irrigation waters both prior to and after the issuance of a court order restraining defendants, such award did not grow out of or depend upon defendants’ violation of the restraining order, and the court did not exceed its jurisdiction in fining defendants for contempt of the restraining order, since the amount assessed was assessed as a fine and not as plaintiffs’ damages, and no part of the fine was adjudged to be paid to the plaintiffs or either of them. Nordick v. Sorensen, 81 Idaho 117, 338 P.2d 766 (1959).

Limitation on Punishment.

This section limits punishment that may be imposed in contempt proceedings, and court cannot assess damages in form of pecuniary indemnity to party injured. Levan v. Richards, 4 Idaho 667, 43 P. 574 (1896).

There can be no punishment for contempt in failing to obey order which court had no jurisdiction to make. Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924).

Although a father was held in contempt for failure to pay child support, a trial court’s affirmance of a magistrate court order that denied him the ability to seek modification of child custody and support was error, because denial of access to the courts was not a possible criminal contempt sanction. State Dep’t of Health & Welfare v. Slane, 155 Idaho 274, 311 P.3d 286 (2013).

Notice.

Magistrate court’s reference to the statute of limitations for criminal contempt did not constitute an abuse of discretion regarding its decision to award a wife attorney fees in a husband’s contempt proceeding; absent legislative action, a criminal contempt sanction cannot be imposed for contempt unless the contempt proceedings are initiated within one year of the commission of the contempt. Charney v. Charney, 159 Idaho 62, 356 P.3d 355 (2015). Notice.

Statements made by defendant attorney and magistrate in contempt proceeding showed defendant had sufficient knowledge of the possible sanctions and, therefore, there was no error by failing to include notice of the possible sanctions in the order to show cause. State v. Delezene, 120 Idaho 473, 817 P.2d 139 (1991).

Review of Evidence.

Writ of review upon an order of imprisonment for contempt extends to the evidence itself, when questioned, to the extent of inquiring whether there was any evidence to furnish a substantial basis for adjudging the person guilty of contempt and that the act is yet in the power of the person to perform. Vollmer v. Vollmer, 46 Idaho 97, 266 P. 677 (1928).

Application.

This statute is applicable to probate court in case where witness refuses to appear or testify or to produce letters and documents ordered by court. In re Niday, 15 Idaho 559, 98 P. 845 (1908).

To justify imprisonment for failure to pay alimony that has accrued from failure to meet regular payments, it must appear that it was within power of person to make the payments at time of commitment. In re Hamberg, 37 Idaho 550, 217 P. 264 (1923); Vollmer v. Vollmer, 46 Idaho 97, 266 P. 677 (1928).

Justice’s court did not exceed its jurisdiction in ordering imprisonment of appellant until compliance with the order of the court where contempt in question consisted in the omission to perform an act which was yet in the power of the person to perform. Bean v. State, 58 Idaho 797, 79 P.2d 540 (1938).

There was no abuse of discretion in the district court’s order that defendant remain incarcerated beyond the five-day term until the amount he was ordered to pay was paid, because this portion of the contempt order was not punitive but was designed to compel compliance with the order for payment of attorney fees. Smith v. Smith, 136 Idaho 120, 29 P.3d 956 (Ct. App. 2001).

Father who was held in contempt for failure to pay child support was not held under civil contempt because he was required to pay sums in addition to the amount for which he had been found in contempt. State Dep’t of Health & Welfare v. Slane, 155 Idaho 274, 311 P.3d 286 (2013).

Where the allegedly required acts have already been performed, the magistrate court may not have impose a civil sanction; only a criminal contempt sanction may be imposed. Charney v. Charney, 159 Idaho 62, 356 P.3d 355 (2015).

Burden of Proof.

Burden is on party to show inability to comply with court order by making a full and fair disclosure of his financial condition. Vollmer v. Vollmer, 46 Idaho 97, 266 P. 677 (1928). •Title 7»«Ch. 6»«§ 7-611»

Application.

This statute is applicable to probate court in case where witness refuses to appear or testify or to produce letters and documents ordered by court. In re Niday, 15 Idaho 559, 98 P. 845 (1908).

To justify imprisonment for failure to pay alimony that has accrued from failure to meet regular payments, it must appear that it was within power of person to make the payments at time of commitment. In re Hamberg, 37 Idaho 550, 217 P. 264 (1923); Vollmer v. Vollmer, 46 Idaho 97, 266 P. 677 (1928).

Justice’s court did not exceed its jurisdiction in ordering imprisonment of appellant until compliance with the order of the court where contempt in question consisted in the omission to perform an act which was yet in the power of the person to perform. Bean v. State, 58 Idaho 797, 79 P.2d 540 (1938).

There was no abuse of discretion in the district court’s order that defendant remain incarcerated beyond the five-day term until the amount he was ordered to pay was paid, because this portion of the contempt order was not punitive but was designed to compel compliance with the order for payment of attorney fees. Smith v. Smith, 136 Idaho 120, 29 P.3d 956 (Ct. App. 2001).

Father who was held in contempt for failure to pay child support was not held under civil contempt because he was required to pay sums in addition to the amount for which he had been found in contempt. State Dep’t of Health & Welfare v. Slane, 155 Idaho 274, 311 P.3d 286 (2013).

Where the allegedly required acts have already been performed, the magistrate court may not have impose a civil sanction; only a criminal contempt sanction may be imposed. Charney v. Charney, 159 Idaho 62, 356 P.3d 355 (2015).

Burden of Proof.

Evidence.

Burden is on party to show inability to comply with court order by making a full and fair disclosure of his financial condition. Vollmer v. Vollmer, 46 Idaho 97, 266 P. 677 (1928). Evidence.

Trial court finding that defendant was guilty of contempt was not subject to attack based on ground that defendant was not able to make payment of support due where evidence showed that defendant had the financial ability to make the payment. In re Martin, 76 Idaho 179, 279 P.2d 873 (1955).

Habeas Corpus.

Petitioner for writ of habeas corpus was entitled to release where order of trial court sentencing him for contempt to six months or until further order of court for refusal to pay $645 due for support did not include a specific finding that petitioner had the ability to pay $645. Kinner v. Steg, 74 Idaho 382, 262 P.2d 994 (1953).

Sanctions.

The exercise of the broad power to impose civil sanctions is not without limitation; the sanctions imposed will be subject to appellate review under an abuse of discretion standard. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

This section does not preclude alternative civil sanctions under the common law or§ 1-1603; 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 reporter was adamant regarding her refusal to answer the questions first propounded in habeas corpus proceeding, which resulted in but a single contempt of a continuing nature, and magistrate first imposed a civil sanction by ordering reporter incarcerated until she purged herself of the contempt, there was no error in this ruling. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Magistrate’s subsequent modification of contempt order, which originally imposed incarceration, to impose a daily $500.00 fine for each day that reporter continued to refuse to answer the questions put to her in a habeas corpus proceeding was to coerce her testimony; this modification did not result in multiple criminal sanctions, but rather constituted a continuing coercive force terminable by compliance of the contemnor — the answering of the questions. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Where reporter refused to answer questions in habeas corpus proceeding seeking to return child to father’s custody, the compelling state interests — the sanctity of the writ of habeas corpus and the safety of the child — outweighed any public interest in an unfettered press and magistrate did not abuse discretion in imposing contempt sanctions of incarceration and fines on reporter. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

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).

Compiler’s Notes.

Former§ 7-612 was amended and redesignated as§ 7-614 by S.L. 1998, ch. 112, § 1.

Compiler’s Notes.

Former§ 7-613 was redesignated as§ 7-615 by S.L. 1998, ch. 112, § 2.

Compiler’s Notes.

This section was formerly compiled as§ 7-612.

Former§ 7-614 was redesignated as§ 7-616 by S.L. 1998, ch. 112, § 3.

Compiler’s Notes.

This section was formerly compiled as§ 7-613.

Compiler’s Notes.

This section was formerly compiled as§ 7-614.

Criminal Acts.

The making of certain acts crimes does not limit the power of the court to punish the same acts as contempts. McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913).

Discretion of Supreme Court.

Although plaintiff could not appeal as a matter of right from that part of the order holding him in contempt for failure to pay alimony and attorney fees, the supreme court nevertheless may, in its discretion, consider such an appeal from the district court. Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967); Parker v. Parker, 97 Idaho 209, 541 P.2d 1177 (1975), superseded on other grounds, Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002).

Although the judgment and orders of the court or judge, made in cases of contempt, are final and conclusive, under the supreme court’s constitutional prerogative to review, upon appeal, any decision of the district courts, the court has discretion to hear an appeal in a contempt case. Lester v. Lester, 99 Idaho 250, 580 P.2d 853 (1978).

No Appeal.

Where district court keeps within its jurisdiction in contempt proceedings and does not abuse its discretion, no appeal lies from its judgment. Levan v. Richards, 4 Idaho 667, 43 P. 574 (1896); Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923).

An order holding a person in contempt is not an appealable order under this section. Glenn Dale Ranches, Inc. v. Shaub, 95 Idaho 853, 522 P.2d 61 (1974); Parker v. Parker, 97 Idaho 209, 541 P.2d 1177 (1975), superseded on other grounds, Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002). •Title 7»«Ch. 6»«§ 7-616•

Compiler’s Notes.

This section was formerly compiled as§ 7-614.

Criminal Acts.

The making of certain acts crimes does not limit the power of the court to punish the same acts as contempts. McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913).

Discretion of Supreme Court.

Although plaintiff could not appeal as a matter of right from that part of the order holding him in contempt for failure to pay alimony and attorney fees, the supreme court nevertheless may, in its discretion, consider such an appeal from the district court. Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967); Parker v. Parker, 97 Idaho 209, 541 P.2d 1177 (1975), superseded on other grounds, Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002).

Although the judgment and orders of the court or judge, made in cases of contempt, are final and conclusive, under the supreme court’s constitutional prerogative to review, upon appeal, any decision of the district courts, the court has discretion to hear an appeal in a contempt case. Lester v. Lester, 99 Idaho 250, 580 P.2d 853 (1978).

No Appeal.

Where district court keeps within its jurisdiction in contempt proceedings and does not abuse its discretion, no appeal lies from its judgment. Levan v. Richards, 4 Idaho 667, 43 P. 574 (1896); Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923).

An order holding a person in contempt is not an appealable order under this section. Glenn Dale Ranches, Inc. v. Shaub, 95 Idaho 853, 522 P.2d 61 (1974); Parker v. Parker, 97 Idaho 209, 541 P.2d 1177 (1975), superseded on other grounds, Stephens v. Stephens, 138 Idaho 195, 61 P.3d 63 (Ct. App. 2002). Since there is no appeal as of right from a contempt order, an attempt to appeal from such an order did not divest the jurisdiction of the magistrate under Idaho App. R. 13(b) governing stays on appeal. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Remedies When Court Exceeds Jurisdiction.

This section means simply that no appeal lies from judgment or order. It is not intended to declare that such judgments, when rendered without jurisdiction, may not be annulled in proper proceeding. Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923).

If it appears that judicial officer is about to exceed jurisdiction by trying for contempt without legal authority, party threatened may stay proceeding by writ of prohibition; if he actually adjudges complainant in contempt without jurisdiction, judgment may be annulled by certiorari, and if imprisonment follows, prisoner may be discharged on habeas corpus. Poff v. Scales, 36 Idaho 762, 213 P. 1019 (1923).

Writ of review may be used to inquire whether there was any evidence to furnish substantial basis for adjudging person guilty of contempt, and that act is yet in power of the person to perform. Vollmer v. Vollmer, 46 Idaho 97, 266 P. 677 (1928).

Review.

While, under the provisions of this section, the order holding a person in contempt of court is not an appealable order, the writ of review has been recognized as a proper method by which the actions of a trial court can be reviewed in a contempt proceeding. Mathison v. Felton, 90 Idaho 87, 408 P.2d 457 (1965).

While the order holding a person in contempt under§ 18-1801 is not appealable under this section, the writ of review is a proper method by which actions of a court in a contempt proceeding can be reviewed. Barnett v. Reed, 93 Idaho 319, 460 P.2d 744 (1969).

Cross References.

Aeronautics department act, condemnation of property authorized under,§ 21-106.

Airport zoning act, acquisition of easements to remove hazards,§ 21-508.

Airports and air navigation facilities, right to acquire property for,§ 21-106.

Cemeteries, power of eminent domain to acquire grounds and property,§ 50-320.

Constitutional authorization,Idaho Const., Art. I, § 14.

Costs, Idaho R. Civ. P. 54(d)(2).

Ditches and reservoirs on state lands, right of way for,§ 58-601.

Ditches constructed by the authority of the United States, right of way on state lands for,§ 58-604.

Drainage districts, assessment of damages for property taken or injured by,§ 42-2926.

Drains, right of way for,§ 42-1107.

Irrigation districts may exercise right of eminent domain,§ 43-908.

Irrigation, right of way for,§ 42-1101 et seq.

Joint interstate irrigation districts,§ 43-1406.

Mining claim, right of way to cross with tunnels, cross-cuts and the like,§ 47-1001.

Mining purposes, rights of way for,§ 47-901 et seq.

Mining railroads, tramways, ditches, flumes, rights of way for,§ 47-902.

Municipalities given enlarged powers comparable to those herein enumerated,§ 7-720.

Railroad may condemn lands for roads and highways when a change of route is made necessary by the construction of the road,§ 62-206.

Railroad may condemn right of way to cross other lines of railroad,§ 62-204.

Statute of limitations, application to special proceedings of a civil nature,§ 5-240.

Successive applications for orders, Idaho R. Civ. P. 11(a)(2).

Effective Dates.

Section 2 of S.L. 1974, ch. 136 declared an emergency. Approved March 28, 1974.

Access for Irrigation.

Where an owner of land is denied access for irrigation water across the lands of an adjacent landowner, the owner may condemn a right-of-way to supply the water under the law of eminent domain. White v. Marty, 97 Idaho 85, 540 P.2d 270 (1975), overruled on other grounds, Carr v. Magistrate Court, 108 Idaho 546, 700 P.2d 949 (1985).

The irrigation and reclamation of arid lands is a well recognized public use, even if the irrigation project is ostensibly intended to benefit only private individuals, and the right to condemn for individual use is supported on the theory that the development of individual property tends to the complete development of the entire state. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Where an irrigation company had purchased approximately 300 cfs of Snake River water and sought to put that water to beneficial use on land located west of an existing canal system, but where the irrigation company had no canal and there existed no natural waterway by which its water could be transported by gravity to its stockholders’ lands, the irrigation company could condemn the right to enlarge and use the existing canal in common with the canal company and thus the irrigation company could divert its water from the Snake River into the canal company’s canal system and then reclaim a like amount, with due allowance for seepage and evaporation, at a headgate closer to its irrigation project site. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Appeal.

On appeal from final order of condemnation, court will review the original judgment of condemnation which was invalid and was never entered because of the correction of an error in it as made by respondent. State v. Styner, 58 Idaho 233, 72 P.2d 699 (1937).

Where the state was responsible for an incorrect method of correcting a clerical error in a judgment of condemnation of property, the state could not take advantage of mistake so as to preclude property owners from obtaining a review of the judgment. State v. Styner, 58 Idaho 233, 72 P.2d 699 (1937).

Burden of Proof.

In an action to enjoin trespasses on the plaintiff’s land by a reservoir company, which asserted ownership of a water right and right-of-way and easement for a reservoir and ditches on the land, where there was substantial evidence to support the trial court’s finding and judgment for the plaintiff, the supreme court was required to affirm the judgment. Condie v. Swainston, 62 Idaho 472, 112 P.2d 787 (1940). Burden of Proof.

Where landowners specifically alleged that the condemnors had alternative means of access and produced evidence of such alternative means of access, including one road then in use by the condemnors pursuant to a license agreement, it was incumbent upon the condemnors to prove that the alternative means of access were not available to them or that such means of access were not reasonably adequate or sufficient for their purposes. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978).

Byroads.

Where condemnor fails to show that the way he now has is so insufficient as to reasonably justify condemning another way, he is not entitled to the establishment of the way as a necessity. Eisenbarth v. Delp, 70 Idaho 266, 215 P.2d 812 (1950).

A complaint which referred to plaintiff’s land as a farm and alleged the necessity for a roadway from the public highway to that farm was sufficient under subdivision 5 of this section against a motion to dismiss for failure to state a cause of action upon which relief can be granted, it not being for the court to decide whether or not plaintiff could prove his property was a farm. McKenney v. Anselmo, 88 Idaho 197, 398 P.2d 226 (1964).

Whether existing roads constitute a reasonably convenient way to a residence or farm is a question of fact to be determined by the evidence in an action to condemn a roadway across respondent’s land under subsection 5 of this section. McKenney v. Anselmo, 88 Idaho 197, 398 P.2d 226 (1965).

Plaintiff was not entitled to have a byroad across defendant’s land to the highway when he had access to highways over two other roads across other land. McKenney v. Anselmo, 91 Idaho 118, 416 P.2d 509 (1966).

The fact that the plaintiffs’ existing access was by way of a license, rather than an easement across the land of other adjoining property owners, does not destroy either the evidence or the finding of the court that alternative access routes existed nor the trial court’s holding based thereon that necessity for condemnation did not exist. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978).

Use of condemnation to secure an easement to a landlocked piece of property that was not farmland and did not include any residence was not a “reasonable” method for satisfying a condition precedent to a land sales contract; condemnation is relevant only in matters involving byroads leading to and from farm land and residences, and a condemnation proceeding would likely have been a protracted and hostile affair. Dengler v. Hazel Blessinger Family Trust, 141 Idaho 123, 106 P.3d 449 (2005).

Condemnation.

Condemnation is an act of public power vested by statute in a private plaintiff who may never have engaged — and whose predecessors may never have engaged — in any previous transaction with the current or prior owners of land across which an easement is sought. MacCaskill v. Ebbert, 112 Idaho 1115, 739 P.2d 414 (Ct. App. 1987).

Burden of Proof.

City lacked extraterritorial eminent domain power to condemn easements located outside of its boundaries for the purpose of constructing electric transmission lines, because there is no express grant of extraterritorial eminent domain power in§ 7-720 or this section, indicating that the Idaho legislature did not grant, and did not intend to grant, such power in the general eminent domain statutes. Alliance v. City of Idaho Falls, 742 F.3d 1100 (9th Cir. 2013). Burden of Proof.

Where landowners specifically alleged that the condemnors had alternative means of access and produced evidence of such alternative means of access, including one road then in use by the condemnors pursuant to a license agreement, it was incumbent upon the condemnors to prove that the alternative means of access were not available to them or that such means of access were not reasonably adequate or sufficient for their purposes. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978).

Byroads.

Where condemnor fails to show that the way he now has is so insufficient as to reasonably justify condemning another way, he is not entitled to the establishment of the way as a necessity. Eisenbarth v. Delp, 70 Idaho 266, 215 P.2d 812 (1950).

A complaint which referred to plaintiff’s land as a farm and alleged the necessity for a roadway from the public highway to that farm was sufficient under subdivision 5 of this section against a motion to dismiss for failure to state a cause of action upon which relief can be granted, it not being for the court to decide whether or not plaintiff could prove his property was a farm. McKenney v. Anselmo, 88 Idaho 197, 398 P.2d 226 (1964).

Whether existing roads constitute a reasonably convenient way to a residence or farm is a question of fact to be determined by the evidence in an action to condemn a roadway across respondent’s land under subsection 5 of this section. McKenney v. Anselmo, 88 Idaho 197, 398 P.2d 226 (1965).

Plaintiff was not entitled to have a byroad across defendant’s land to the highway when he had access to highways over two other roads across other land. McKenney v. Anselmo, 91 Idaho 118, 416 P.2d 509 (1966).

The fact that the plaintiffs’ existing access was by way of a license, rather than an easement across the land of other adjoining property owners, does not destroy either the evidence or the finding of the court that alternative access routes existed nor the trial court’s holding based thereon that necessity for condemnation did not exist. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978).

Use of condemnation to secure an easement to a landlocked piece of property that was not farmland and did not include any residence was not a “reasonable” method for satisfying a condition precedent to a land sales contract; condemnation is relevant only in matters involving byroads leading to and from farm land and residences, and a condemnation proceeding would likely have been a protracted and hostile affair. Dengler v. Hazel Blessinger Family Trust, 141 Idaho 123, 106 P.3d 449 (2005).

Condemnation.

Condemnation is an act of public power vested by statute in a private plaintiff who may never have engaged — and whose predecessors may never have engaged — in any previous transaction with the current or prior owners of land across which an easement is sought. MacCaskill v. Ebbert, 112 Idaho 1115, 739 P.2d 414 (Ct. App. 1987).

Constitutionality and Construction.

City lacked extraterritorial eminent domain power to condemn easements located outside of its boundaries for the purpose of constructing electric transmission lines, because there is no express grant of extraterritorial eminent domain power in§ 7-720 or this section, indicating that the Idaho legislature did not grant, and did not intend to grant, such power in the general eminent domain statutes. Alliance v. City of Idaho Falls, 742 F.3d 1100 (9th Cir. 2013). Constitutionality and Construction.

This section is not subject to the constitutional objection of depriving persons of property without due process of law. Baillie v. Larson, 138 F. 177 (C.C.D. Idaho 1905).

Person or corporation who exercises power of eminent domain assumes certain obligations to the public, and the granting of that right carries with it right of public supervision and reasonable control. Potlatch Lumber Co. v. Peterson, 12 Idaho 769, 88 P. 426 (1906).

This section, which limits exercise of the right of eminent domain to public uses therein enumerated, was an act of the territorial legislature, which did not specifically mention all the necessary uses of lands declared to be such by the constitution; the uses defined in the constitution can be enforced regardless of whether the legislature repeats the provisions of the constitution in defining for what public uses the right of eminent domain may be exercised. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916).

Condemnation is a “special proceeding” to which the intervention statute applies. State ex rel. McKelvey v. Barnes, 55 Idaho 578, 45 P.2d 293 (1935).

Elements of Severance Damage.

Where a part of the owner’s contiguous land is taken in a condemnation proceeding, all inconveniences resulting to the owner’s remaining land, including an easement or access to a road or right of way formerly enjoyed, which decrease the value of the land retained by the owner, are elements of severance damage for which compensation should be paid. State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60 (1958).

Jurisdiction of Magistrate.

Where an attorney magistrate was without jurisdiction to try an eminent domain case and was not serving in the role of a master or a properly constituted district judge pro tempore, the magistrate’s purported judgment entered in a proceeding for condemnation of a right-of-way to carry irrigation water across defendants’ land was void and of no effect. White v. Marty, 97 Idaho 85, 540 P.2d 270 (1975).

Pleading, Practice, Procedure.

The allegations of the complaint must be in substantial compliance with the requirements of this section. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

Condemnor must disclose purpose for which he is seeking to condemn property and the general nature and character of improvement or structure he expects to erect to entitle him to maintain his condemnation proceedings. Idaho-Western R.R. v. Columbia Conference Synod, 20 Idaho 568, 119 P. 60 (1911).

Determination of necessity of highway improvement for which land is sought for highway is ultimately a judicial question, on which landowner is entitled to hearing. Grangeville Hwy. Dist. v. Ailshie, 49 Idaho 603, 290 P. 717 (1930).

Constitutionality and Construction.

Under our special condemnation statute, there are three judgments or two judgments and a final order made after judgment to be entered seriatim, the first adjudicating the power, right and necessity of condemning, the second determining the damages and the third and final order of condemnation which gives possession and passes title; the first two, with payment in court or to the owner, are conditions precedent to the third. State ex rel. McKelvey v. Styner, 57 Idaho 144, 63 P.2d 152 (1936). Constitutionality and Construction.

This section is not subject to the constitutional objection of depriving persons of property without due process of law. Baillie v. Larson, 138 F. 177 (C.C.D. Idaho 1905).

Person or corporation who exercises power of eminent domain assumes certain obligations to the public, and the granting of that right carries with it right of public supervision and reasonable control. Potlatch Lumber Co. v. Peterson, 12 Idaho 769, 88 P. 426 (1906).

This section, which limits exercise of the right of eminent domain to public uses therein enumerated, was an act of the territorial legislature, which did not specifically mention all the necessary uses of lands declared to be such by the constitution; the uses defined in the constitution can be enforced regardless of whether the legislature repeats the provisions of the constitution in defining for what public uses the right of eminent domain may be exercised. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916).

Condemnation is a “special proceeding” to which the intervention statute applies. State ex rel. McKelvey v. Barnes, 55 Idaho 578, 45 P.2d 293 (1935).

Elements of Severance Damage.

Where a part of the owner’s contiguous land is taken in a condemnation proceeding, all inconveniences resulting to the owner’s remaining land, including an easement or access to a road or right of way formerly enjoyed, which decrease the value of the land retained by the owner, are elements of severance damage for which compensation should be paid. State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60 (1958).

Jurisdiction of Magistrate.

Where an attorney magistrate was without jurisdiction to try an eminent domain case and was not serving in the role of a master or a properly constituted district judge pro tempore, the magistrate’s purported judgment entered in a proceeding for condemnation of a right-of-way to carry irrigation water across defendants’ land was void and of no effect. White v. Marty, 97 Idaho 85, 540 P.2d 270 (1975).

Pleading, Practice, Procedure.

The allegations of the complaint must be in substantial compliance with the requirements of this section. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

Condemnor must disclose purpose for which he is seeking to condemn property and the general nature and character of improvement or structure he expects to erect to entitle him to maintain his condemnation proceedings. Idaho-Western R.R. v. Columbia Conference Synod, 20 Idaho 568, 119 P. 60 (1911).

Determination of necessity of highway improvement for which land is sought for highway is ultimately a judicial question, on which landowner is entitled to hearing. Grangeville Hwy. Dist. v. Ailshie, 49 Idaho 603, 290 P. 717 (1930).

Private Agency.

Under our special condemnation statute, there are three judgments or two judgments and a final order made after judgment to be entered seriatim, the first adjudicating the power, right and necessity of condemning, the second determining the damages and the third and final order of condemnation which gives possession and passes title; the first two, with payment in court or to the owner, are conditions precedent to the third. State ex rel. McKelvey v. Styner, 57 Idaho 144, 63 P.2d 152 (1936). Private Agency.

In an action for condemnation of land for a private road of necessity, the deference accorded the election by a public agency as to necessity and route was not applicable to a private agency, especially where the latter party has an existing way. Eisenbarth v. Delp, 70 Idaho 266, 215 P.2d 812 (1950).

Public Use.

When Idaho became a state, it assumed the power of eminent domain as one of the inalienable rights of sovereignty, and Congress, when it admitted Idaho into the Union and provided that all school lands granted to the state should not be sold for less than ten dollars ($10.00) per acre, did not intend to deprive the state of the power of eminent domain; the state may exercise such right over all state lands and may grant in such manner as the legislature may provide easements for all of the public uses mentioned inIdaho Const., Art. I, § 14. Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

Absolute necessity need not exist for taking property for public use; it is sufficient if necessity be a reasonable one. Marsh Mining Co. v. Inland Empire Mining & Milling Co., 30 Idaho 1, 165 P. 1128 (1916); Grangeville Hwy. Dist. v. Ailshie, 49 Idaho 603, 290 P. 717 (1930).

Property may be taken under eminent domain proceedings for any purpose the sovereign chooses. Codd v. McGoldrick Lumber Co., 48 Idaho 1, 279 P. 298 (1929).

As a general rule, the right of eminent domain is granted on behalf of public uses only; and what is a public use, or whether or not a claimed right is within the constitution designating as public all uses necessary to development of the material resources of the state so as to entitle claimant to the right of eminent domain, is a judicial question for the courts. Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722 (1931).

The power of eminent domain extends to every kind of property authorized by law within the jurisdiction of the state, when taken for a public use, including the right of access to and from a public highway. State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60 (1958).

The proposed use of property for urban renewal projects, which plaintiff sought to condemn pursuant to the Idaho Urban Renewal Law (§ 50-2001 et seq.) constituted a public use, as required by the Idaho constitution and various Idaho statutes, even though the majority of buildings would be constructed and occupied by private commercial enterprises, and the taking of property for such purpose would not be a denial of property without due process. Boise Redevelopment Agency v. Yick Kong Corp., 94 Idaho 876, 499 P.2d 575 (1972).

Private individuals may not take the property of other private individuals in order to enhance their purely private enjoyment of their own property; the proposed use need not be strictly public, but it must benefit the public welfare or the economy of the state. Backman v. Lawrence, 147 Idaho 390, 210 P.3d 75 (2009).

— County Highway Proceedings.

— Electric Lines.

County taking land for highway for money consideration plus the construction of “substantial fences on each side of the road” could not acquire title to the highway strip until the fence was built and is liable for damages to growing crops caused by trespassing animals resulting from failure to build such fences. Bel v. Benewah County, 60 Idaho 791, 97 P.2d 397 (1939). — Electric Lines.

Furnishing of electricity for lighting, transportation, power, and other purposes is a public use for which land may be taken. Hollister v. State, 9 Idaho 8, 71 P. 541 (1903).

Corporation organized to generate and furnish electric energy is a public service corporation authorized to exercise right of eminent domain, though it does not render service directly to public, but furnishes electricity for distribution to consumers by other persons and corporations. Washington Water Power Co. v. Waters, 186 F. 572 (C.C.D. Idaho 1910).

This section recognizes that somewhere exists the power of condemning lands for power sites and power stations, for generating electrical current and electrical energy, and with it runs the implied power to do those things necessary to generate electrical current that is to be transmitted over the lines. Washington Water Power Co. v. Waters, 19 Idaho 595, 115 P. 682 (1911).

— Electric Railroads.

Electric railroad has power of eminent domain to acquire right of way. Boise Valley Constr. Co. v. Kroeger, 17 Idaho 384, 105 P. 1070 (1909).

— Limited Access Highway.

The state is authorized to condemn land to be used for a limited access highway and acquire the fee title to privately owned property, limiting or curtailing entry of an adjoining landowner which would ordinarily be appurtenant to the land not taken. State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60 (1958).

Offer of state to build a cattle underpass under a proposed limited access highway which offer was not accepted by defendant, a part of whose land was being taken for such highway, was not binding on state after refusal and state could not be required as part of its plans and specifications to construct the underpass. State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60 (1958).

— Logging Roads.

Where temporary logging road is necessary to complete development of material resources of the state, the necessary use of land for right of way is a public use and may be acquired as provided by statute. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916).

— Municipal Purposes.

In acquiring land for municipal purpose by exercise of power of eminent domain, city council’s determination of location of land required will not be disturbed if made in good faith. Boise City v. Boise City Dev. Co., 41 Idaho 294, 238 P. 1006 (1925).

— Pipe Line.

Condemnation of a right of way for pipe line was a use authorized by law. Yellowstone Pipe Line Co. v. Drummond, 77 Idaho 36, 287 P.2d 288 (1955).

— Railroad Right of Way.

Condemnation of an easement to construct a pipeline for irrigation purposes, a beneficial use, was authorized and reasonably necessary to reduce conveyance losses. Telford Lands LLC v. Cain, 154 Idaho 981, 303 P.3d 1237 (2013). — Railroad Right of Way.

Congress, in authorizing railroad companies to traverse public lands, did not intend to give them a right to run line of their roads at pleasure, regardless of the rights of settlers. Washington & I.R.R. v. Osborn, 160 U.S. 103, 16 S. Ct. 219, 40 L. Ed. 356 (1895).

— Reservoirs.

Construction of a dam to reservoir the waters for storage to be used for power purposes is a public use. Washington Water Power Co. v. Waters, 19 Idaho 595, 115 P. 682 (1911).

The necessary use of lands for the construction of reservoirs over state lands is subject to the regulation and control of the state. Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

— Sewerage Systems.

Sewerage system is public use within meaning of this section. Twin Falls v. Stubbs, 15 Idaho 68, 96 P. 195 (1908).

If, by its enactment of subdivision 7 of this section, it was the intention of the legislature to restrict the exercise of eminent domain by a sewer district to uses within incorporated cities, then that provision can have no valid effect because the legislature cannot thus annul a provision of the constitution, such asIdaho Const., Art. I, § 14, which clearly includes a sewer district and which authorizes any use necessary to the preservation of the health of the state’s inhabitants. It is more likely that the legislature intended no such territorial restriction. Payette Lakes Water & Sewer Dist. v. Hays, 103 Idaho 717, 653 P.2d 438 (1982).

Where a water and sewer district sought to obtain temporary construction easements and permanent sewer easements across property owners’ land for the purpose of constructing a sewerage facility to transport sewage to a treatment plant, the district’s purpose was a public use within the meaning ofIdaho Const., Art. I, § 14, and was, therefore, an authorized use as contemplated by§ 7-721 for purposes of determining the sewer district’s entitlement to possession of the property pending trial. Payette Lakes Water & Sewer Dist. v. Hays, 103 Idaho 717, 653 P.2d 438 (1982).

— Stream Floatability.

Necessary use of lands for storage basins and improvement of the floatability of nonnavigable streams may be obtained by exercise of power of eminent domain. Potlatch Lumber Co. v. Peterson, 12 Idaho 769, 88 P. 426 (1906).

Phrase “streams not navigable” means all streams not navigable in fact, and legislature cannot impress character of navigability on stream that is not navigable. Potlatch Lumber Co. v. Peterson, 12 Idaho 769, 88 P. 426 (1906).

One who exercises right of eminent domain in improvement of nonnavigable streams in the state for purpose of floating logs and timber products does not thereby secure exclusive use and control of such streams; but they are open to the use of anyone who may have occasion to use them for any purpose. Potlatch Lumber Co. v. Peterson, 12 Idaho 769, 88 P. 426 (1906).

— Telegraph Right of Way.

This section supplements a special act authorizing clearing and straightening of channels of navigable stream without specific provision for compensation. St. Joe Imp. Co. v. Laumierster, 19 Idaho 66, 112 P. 683 (1910). — Telegraph Right of Way.

This provision, standing alone, unaffected by other statutory enactments, confers upon telegraph company authority to condemn right of way upon right of way of railway company, provided that it does not in any way interfere with the use to which the right of way is already dedicated. Oregon Short Line R.R. v. Postal Tel. Cable Co., 111 F. 842 (9th Cir. 1901).

— Use in Another State.

Condemnation cannot be had in this state for the lone purpose of serving public use in another state, but where the use for which condemnation is sought is a public use in this state and will serve citizens of this state, fact that it may incidentally also benefit citizens and industries of neighboring state will not defeat right of condemnation. Washington Water Power Co. v. Waters, 19 Idaho 595, 115 P. 682 (1911).

State Land.

Since§ 7-703 includes land owned by state in private property subject to taking, the state thereby has given its consent to be sued in condemnation proceedings, and district court had jurisdiction to entertain private individual’s action for easement right of way for ingress and egress over state land. Petersen v. State, 87 Idaho 361, 393 P.2d 585 (1964).

Am. Jur. 2d.

C.J.S.

ALR.

Valuation at time of original wrongful entry by condemnor or at time of subsequent initiation of condemnation proceedings. 2 A.L.R.3d 1038.

Compensable property right, restrictive covenant or right to enforcement thereof as. 4 A.L.R.3d 1137.

Right to condemn property in excess of needs for particular public purpose. 6 A.L.R.3d 297.

Zoning as factor in determination of damages in eminent domain. 9 A.L.R.3d 291.

Deduction of benefits in determining compensation or damages in proceedings involving opening, widening, or otherwise altering highway. 13 A.L.R.3d 1149.

Power to condemn property or interest therein to replace other property taken for public use. 20 A.L.R.3d 862.

Existence of restrictive covenant as element in fixing value of property condemned. 22 A.L.R.3d 961. Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves. 35 A.L.R.3d 1293.

Validity of “freezing” ordinances or statutes preventing prospective condemnee from improving, or otherwise changing, the condition of his property. 36 A.L.R.3d 751.

Plotting or planning in anticipation of improvement as taking or damaging of property affected. 37 A.L.R.3d 127.

Cost of substitute facilities as measure of compensation paid to state or municipality for condemnation of public property. 40 A.L.R.3d 143.

Validity and construction of “zoning with compensation” regulation. 41 A.L.R.3d 636.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway. 42 A.L.R.3d 148.

Measure of damages for condemnation of cemetery lands. 42 A.L.R.3d 1314.

Propriety of court’s consideration of ecological effects of proposed project in determining right of condemnation. 47 A.L.R.3d 1267.

Traffic noise and vibration from highway as element of damages in eminent domain. 51 A.L.R.3d 860.

Condemned property’s location in relation to proposed site of building complex or similar improvement as factor in fixing compensation. 51 A.L.R.3d 1050.

Good will or “going concern” value as element of lessee’s compensation for taking leasehold in eminent domain. 58 A.L.R.3d 566.

Loss of liquor license as compensable and condemnation proceeding. 58 A.L.R.3d 581.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking. 59 A.L.R.3d 488.

Consideration of fact to that landowner’s remaining land will be subject to special assessment in fixing severance damages. 59 A.L.R.3d 534.

Salting for snow removal as taking or damaging abutting property for eminent domain purposes. 64 A.L.R.3d 1239.

Determination of just compensation for condemnation of billboards or other advertising signs. 73 A.L.R.3d 1122.

Right to condemn property owned or used by private educational, charitable, or religious organization. 80 A.L.R.3d 833.

Validity of appropriation of property for anticipated future needs. 80 A.L.R.3d 1085.

Good will as element of damages for condemnation of property on which private business is conducted. 81 A.L.R.3d 198.

Zoning regulations limiting use of property near airport as taking of property. 18 A.L.R.4th 542.

Airport operations or flight of aircraft as taking or damaging of property. 22 A.L.R.4th 863.

Eminent domain: measure and elements of damages or compensation for condemnation of public transportation system. 35 A.L.R.4th 1263.

Validity of extraterritorial condemnation by municipality. 44 A.L.R.6th 259.

Zoning scheme, plan, or ordinance as temporary taking. 55 A.L.R.6th 635.

Amendments.

The 2015 amendment, by ch. 122, in subsection (2), inserted “following” near the end of the introductory paragraph of paragraph (b)(ii) and added paragraph (c).

Idaho Law Review.

Idaho Law Review. — What’s the Tiff About TIF?: An Incremental Approach to Improving the Perception, Awareness, and Effectiveness of Urban Renewal in Idaho, Comment. 50 Idaho L. Rev. 273 (2014)

Easements.

Easements are included in the classification of estates and rights in lands which may be taken for public use. Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958).

Since§ 7-703 includes land owned by state in private property subject to taking, the state thereby has given its consent to be sued in condemnation proceedings, and district court had jurisdiction to entertain private individual’s action for easement right-of-way over state land. Petersen v. State, 87 Idaho 361, 393 P.2d 585 (1964).

Rights of way may be condemned for the purposes of concurrent use in common with the existing owners; in such cases, the original easement owner is not really being deprived of his easement outright, only its exclusive use, and the condemnation imposes a form of concurrent ownership where both the condemnor and condemnee will enjoy the right to use the easement. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Fee Simple.

Since a dam is a permanent structure, fee simple title must be taken in condemnation proceedings against land on which dam is to be located. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

In condemnation of state school lands for reservoir, condemnor may take fee simple title, but he is not compelled to. Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

Limitation of Time of Use.

Where condemnor will not use logging road more than year, court will limit use of property taken. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916). •Title 7»«Ch. 7»«§ 7-702»

Easements.

Easements are included in the classification of estates and rights in lands which may be taken for public use. Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958).

Since§ 7-703 includes land owned by state in private property subject to taking, the state thereby has given its consent to be sued in condemnation proceedings, and district court had jurisdiction to entertain private individual’s action for easement right-of-way over state land. Petersen v. State, 87 Idaho 361, 393 P.2d 585 (1964).

Rights of way may be condemned for the purposes of concurrent use in common with the existing owners; in such cases, the original easement owner is not really being deprived of his easement outright, only its exclusive use, and the condemnation imposes a form of concurrent ownership where both the condemnor and condemnee will enjoy the right to use the easement. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Fee Simple.

Since a dam is a permanent structure, fee simple title must be taken in condemnation proceedings against land on which dam is to be located. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

In condemnation of state school lands for reservoir, condemnor may take fee simple title, but he is not compelled to. Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

Limitation of Time of Use.

Public Use in General.

Where condemnor will not use logging road more than year, court will limit use of property taken. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916). Public Use in General.

The district court, or judge thereof, has jurisdiction to determine the right and necessity for the exercise of the right of eminent domain; and if, on a hearing of an application to appoint commissioners to assess damages, he rejects certain evidence offered in regard to the location of the right of way sought to be condemned, or the necessity thereof, his action may be reviewed on an appeal, but cannot be reviewed on certiorari. Coeur d’Alene Mining Co. v. Woods, 15 Idaho 26, 96 P. 210 (1908).

The courts have the authority to determine the question of the necessary use of lands to the complete development of the material use of resources of the state, since such use is declared to be a public use by the provision ofIdaho Const., Art. I, § 14. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916).

Right of way for temporary logging road was “public use.” Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916).

The constitutional provision (Idaho Const., Art. I, § 14) making the use of lands for irrigation and mining purposes a “public use” includes individual uses affected with a public interest. Codd v. McGoldrick Lumber Co., 48 Idaho 1, 279 P. 298 (1929).

ALR.

§ 7-703. Private property subject to taking.

The private property which may be taken under this chapter includes:

1. All real property belonging to any person.
2. Lands belonging to the government of the United States, to this state, or to any county, incorporated city, or city and county, village or town, not appropriated to some public use.
3. Property appropriated to public use; but such property shall not be taken unless for a more necessary public use than that to which it has been already appropriated.
4. Franchises for toll roads, toll bridges and ferries, and all other franchises; but such franchises shall not be taken unless for free highways, railroads or other more necessary public use.
5. All rights of way for any and all the purposes mentioned in section 7-701[, Idaho Code], and any and all structures and improvements thereon, and the lands held or used in connection therewith, shall be subject to be connected with, crossed or intersected by any other right of way or improvements or structures thereon. They shall also be subject to a limited use, in common with the owners thereof, when necessary, but such uses, crossings, intersections and connections shall be made in the manner most compatible with the greatest public benefit and least private injury.
6. All classes of private property not enumerated may be taken for public use when such taking is authorized by law.

History.

C.C.P. 1881, § 853; R.S. & R.C., § 5212; am. 1911, ch. 75, § 1, p. 229; reen. C.L., § 5212; C.S., § 7406; I.C.A.,§ 13-703.

Cross References.

Court to regulate common use mentioned in subdivision 5 of this section,§ 7-710.

Compiler’s Notes.

The bracketed insertion in subdivision 5 was added by the compiler to conform to the statutory citation style.

Federal Government.

The United States could condemn and acquire land for an irrigation canal right of way and a migratory waterfowl refuge. United States v. Forty Acres, More or Less, of Land, 24 F. Supp. 390 (D. Idaho 1938).

More Necessary Public Use.

Property already devoted to a public use cannot be taken by eminent domain unless the condemnor proposes to put the property to a “more necessary public use,” however, the condemnor need not demonstrate a “more necessary public use” when condemning only the right to the common use of an existing right of way previously appropriated for public use. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Where the former owner’s use is defeated or seriously impaired, the condemnation amounts to an outright taking rather than an appropriation of concurrent ownership, thereby triggering the greater necessity requirement. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Nature of Power of Eminent Domain.

Private property of all classifications may be taken for public use. Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958).

Since this section of the condemnation statute includes land owned by state in private property subject to taking, the state thereby has given its consent to be sued in condemnation proceedings, and district court had jurisdiction to entertain private individual’s action for easement right of way over state land. Petersen v. State, 87 Idaho 361, 393 P.2d 585 (1964).

Property Already Devoted to Public Use.

Use of that portion of railway right of way, which is idle or vacant ground, by telegraph company for erection of telegraph line is of greater public utility than use to which such portion of right of way is put by railroad company and authorizes condemnation thereof by the telegraph company. Postal Tel. Cable Co. v. Oregon Short Line R.R., 104 F. 623 (C.C.D. Idaho 1900), aff’d, 111 F. 842 (9th Cir. 1901).

In suit in equity to compel the joint use of right of way already condemned by another, and to obtain the benefits thereof, on theory that condemnation was made for public use, and that appellants are members of public for whom such condemnation has been adjudged, there being no allegation showing necessity for such common use, and nothing to show that appellants cannot proceed and condemn right of way, the relief prayed for will be denied. Headrick v. Larson, 152 F. 93 (9th Cir. 1907).

Where the effort is to condemn that part of right of way not being actually used as a canal for carrying water, so that a larger canal may be constructed, question as to proposed work being a more necessary public work does not arise. Portneuf Irrigation Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909).

Property held for public use cannot be taken to be used for the same purpose to which it is already being applied, if defeat of that purpose will result. Marsh Mining Co. v. Inland Empire Mining & Milling Co., 30 Idaho 1, 165 P. 1128 (1916).

Property of an electric power cooperative within territory newly annexed to a city was not immune to eminent domain condemnation by such city because of its public use. Unity Light & Power Co. v. City of Burley, 92 Idaho 499, 445 P.2d 720 (1968).

The United States could condemn and acquire land for an irrigation canal right of way and a migratory waterfowl refuge. United States v. Forty Acres, More or Less, of Land, 24 F. Supp. 390 (D. Idaho 1938).

More Necessary Public Use.

Property already devoted to a public use cannot be taken by eminent domain unless the condemnor proposes to put the property to a “more necessary public use,” however, the condemnor need not demonstrate a “more necessary public use” when condemning only the right to the common use of an existing right of way previously appropriated for public use. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Where the former owner’s use is defeated or seriously impaired, the condemnation amounts to an outright taking rather than an appropriation of concurrent ownership, thereby triggering the greater necessity requirement. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Nature of Power of Eminent Domain.

Private property of all classifications may be taken for public use. Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958).

Since this section of the condemnation statute includes land owned by state in private property subject to taking, the state thereby has given its consent to be sued in condemnation proceedings, and district court had jurisdiction to entertain private individual’s action for easement right of way over state land. Petersen v. State, 87 Idaho 361, 393 P.2d 585 (1964).

Property Already Devoted to Public Use.

Use of that portion of railway right of way, which is idle or vacant ground, by telegraph company for erection of telegraph line is of greater public utility than use to which such portion of right of way is put by railroad company and authorizes condemnation thereof by the telegraph company. Postal Tel. Cable Co. v. Oregon Short Line R.R., 104 F. 623 (C.C.D. Idaho 1900), aff’d, 111 F. 842 (9th Cir. 1901).

In suit in equity to compel the joint use of right of way already condemned by another, and to obtain the benefits thereof, on theory that condemnation was made for public use, and that appellants are members of public for whom such condemnation has been adjudged, there being no allegation showing necessity for such common use, and nothing to show that appellants cannot proceed and condemn right of way, the relief prayed for will be denied. Headrick v. Larson, 152 F. 93 (9th Cir. 1907).

Where the effort is to condemn that part of right of way not being actually used as a canal for carrying water, so that a larger canal may be constructed, question as to proposed work being a more necessary public work does not arise. Portneuf Irrigation Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909).

Property held for public use cannot be taken to be used for the same purpose to which it is already being applied, if defeat of that purpose will result. Marsh Mining Co. v. Inland Empire Mining & Milling Co., 30 Idaho 1, 165 P. 1128 (1916).

Rights of Way.

Property of an electric power cooperative within territory newly annexed to a city was not immune to eminent domain condemnation by such city because of its public use. Unity Light & Power Co. v. City of Burley, 92 Idaho 499, 445 P.2d 720 (1968). Rights of Way.

Rights of way may be condemned for the purposes of concurrent use in common with the existing owners; in such cases, the original easement owner is not really being deprived of his easement outright, only of its exclusive use, and the condemnation imposes a form of concurrent ownership where both the condemnor and condemnee will enjoy the right to use the easement. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

State Lands.

This section authorizes action in district court to condemn state lands for public use. Hollister v. State, 9 Idaho 8, 71 P. 541 (1903); Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178 (1912), overruled on other grounds, Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

The effect of the “consent” given by this section was to render the state a private property owner for purposes of eminent domain condemnation actions, and, if the legislature had wished that the state not stand in that posture with respect to the old soldiers’ home property, it would have used clear and explicit language to achieve that end. County of Ada v. State, 93 Idaho 830, 475 P.2d 367 (1970).

Indian Land.

Suit to determine the validity of the order of the United States district court of the district of Idaho decreeing condemnation of an easement for the construction and maintenance of an electric transmission line over and along a portion of a tract of land which was allotted in severalty to an enrolled member of an Indian tribe, the title to which land is held in trust for such member by the United States, was brought and the procedure followed by the district court, in accordance with Idaho law, this section, and the federal rules of civil procedure. Nicodemus v. Washington Water Power Co., 264 F.2d 614 (9th Cir. 1959).

Interest Allowed.

The condemnee should be allowed interest upon the compensation and damages awarded from the time the condemnor either takes possession, or becomes entitled to possession, of the property. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957).

Where the order for possession in a condemnation proceeding was filed March 29, 1955, interest would be allowed at the legal rate from such date rather than from the date of May 15, 1951, which was the date of the institution of proceedings, plaintiff being unable to take possession of the property until such first mentioned date in 1955 due to litigation on part of the owners but interest would only be recoverable from the time that the order for possession was filed. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957). •Title 7»«Ch. 7»«§ 7-704»

Indian Land.

Suit to determine the validity of the order of the United States district court of the district of Idaho decreeing condemnation of an easement for the construction and maintenance of an electric transmission line over and along a portion of a tract of land which was allotted in severalty to an enrolled member of an Indian tribe, the title to which land is held in trust for such member by the United States, was brought and the procedure followed by the district court, in accordance with Idaho law, this section, and the federal rules of civil procedure. Nicodemus v. Washington Water Power Co., 264 F.2d 614 (9th Cir. 1959).

Interest Allowed.

The condemnee should be allowed interest upon the compensation and damages awarded from the time the condemnor either takes possession, or becomes entitled to possession, of the property. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957).

Necessity.

Where the order for possession in a condemnation proceeding was filed March 29, 1955, interest would be allowed at the legal rate from such date rather than from the date of May 15, 1951, which was the date of the institution of proceedings, plaintiff being unable to take possession of the property until such first mentioned date in 1955 due to litigation on part of the owners but interest would only be recoverable from the time that the order for possession was filed. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957). Necessity.

Use, necessity, and other requirements of this section should be tried and found by court before commissioners are appointed. Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909); Pyle v. Woods, 18 Idaho 674, 111 P. 746 (1910).

After court has determined use is public use, question of extent of enterprise and necessity for taking should be left in large measure to judgment and discretion of agency seeking condemnation. Washington Water Power Co. v. Waters, 19 Idaho 595, 115 P. 682 (1911); Boise City v. Boise City Dev. Co., 41 Idaho 294, 238 P. 1006 (1925).

The use of land necessary to the complete development of the material resources of the state is declared byIdaho Const., Art. I, § 14 to be a public use. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916).

Question of necessity is one of fact, and findings based on substantial conflict in evidence will not be disturbed. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916).

Necessity is not measured by extent to which use is applied. Property devoted to or held for public use is subject to power of eminent domain if right is given by constitutional provision or legislative enactment; but it cannot be taken to be used in same manner and for same purpose to which it is already applied or held if by so doing that purpose will be defeated. Marsh Mining Co. v. Inland Empire Mining & Milling Co., 30 Idaho 1, 165 P. 1128 (1916).

If reasonable but not absolute necessity exists to take property for public use, it is sufficient. Marsh Mining Co. v. Inland Empire Mining & Milling Co., 30 Idaho 1, 165 P. 1128 (1916); Grangeville Hwy. Dist. v. Ailshie, 49 Idaho 603, 290 P. 717 (1930).

Determination of necessity of taking particular piece of land sought is ultimately a judicial question on which defendant is entitled to a hearing. Grangeville Hwy. Dist. v. Ailshie, 49 Idaho 603, 290 P. 717 (1930).

Under this statute, the condemner must first establish that the taking is necessary to the intended use and since this gives the property owner the right to litigate that issue, he should not be penalized for so doing. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957).

The fact that the plaintiffs’ existing access was by way of a license, rather than an easement across the land of other adjoining property owners, does not destroy either the evidence or the finding of the court that alternative access routes existed nor the trial court’s holding based thereon that necessity for condemnation did not exist. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978).

Where landowners specifically alleged that the condemnors had alternative means of access and produced evidence of such alternative means of access, including one road then in use by the condemnors pursuant to a license agreement, it was then incumbent upon the condemnors to prove that the alternative means of access were not available to them or that such means of access were not reasonably adequate or sufficient for their purposes. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978).

Public Use.

Condemnation of an easement to construct a pipeline for irrigation purposes, a beneficial use, was authorized and reasonably necessary to reduce conveyance losses. Telford Lands LLC v. Cain, 154 Idaho 981, 303 P.3d 1237 (2013). Public Use.

Where no public use was associated with right-of-way to public highway sought by lot owners, eminent domain was not the appropriate remedy to settle purely private dispute. Cohen v. Larson, 125 Idaho 82, 867 P.2d 956 (1993).

Subsequent Condemnation.

This section, by implication, authorizes a second condemnation, and under it a telegraph company may condemn right of way for its line over right of way of railroad, where court finds that it is necessary and that it will not interfere with use of the property for the purpose of railroad, and that the second use is more necessary than the first. Oregon Short Line R.R. v. Postal Tel. Cable Co., 111 F. 842 (9th Cir. 1901); Pacific Postal Telegraph-Cable Co. v. Oregon & C.R.R., 163 F. 967 (D. Or. 1908).

This section authorizes annexation by a city of property of an electric power cooperative within territory newly annexed to the city because the use by the municipal corporation was a more necessary one than the use by a private corporation. Unity Light & Power Co. v. City of Burley, 92 Idaho 499, 445 P.2d 720 (1968).

Property already devoted to a public use cannot be taken by eminent domain unless the condemnor proposes to put the property to a more necessary public use, however, the condemnor need not demonstrate a more necessary public use when condemning only the right to the common use of an existing right of way previously appropriated for public use. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Where the former owner’s use is defeated or seriously impaired, the condemnation amounts to an outright taking rather than an appropriation of concurrent ownership, thereby triggering the greater necessity requirement. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Cross References.

Condemnation of rights-of-way for public highway,§ 40-606.

Compiler’s Notes.

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

Cross References.

Commencement of actions, Idaho R. Civ. P. 3(a).

Immunity of State.

Where the state inflicts permanent and irreparable injury on land without making any compensation, there is a taking contrary to the provisions of theIdaho Const., Art. I, § 14, and a suit to recover damages for such injury is, in essence, a condemnation proceeding in reverse, and the immunity of the state from suit is waived. Renninger v. State, 70 Idaho 170, 213 P.2d 911 (1950).

State Surveys Presumed Correct.

Acts of state or its agents in surveying and locating land to be taken should, in absence of evidence to contrary, be presumed correct and lawful. Boise City v. Boise City Dev. Co., 41 Idaho 294, 238 P. 1006 (1925).

ALR.

Depreciation in value, from project for which land is condemned, as a factor and fixing compensation. 5 A.L.R.3d 901.

How to obtain jury trial in eminent domain, waiver. 12 A.L.R.3d 7.

Propriety and effect, in eminent domain proceeding, of argument or evidence as to landowner’s unwillingness to sell property. 17 A.L.R.3d 1449. •Title 7»«Ch. 7»«§ 7-706»

Cross References.

Commencement of actions, Idaho R. Civ. P. 3(a).

Immunity of State.

Where the state inflicts permanent and irreparable injury on land without making any compensation, there is a taking contrary to the provisions of theIdaho Const., Art. I, § 14, and a suit to recover damages for such injury is, in essence, a condemnation proceeding in reverse, and the immunity of the state from suit is waived. Renninger v. State, 70 Idaho 170, 213 P.2d 911 (1950).

State Surveys Presumed Correct.

Acts of state or its agents in surveying and locating land to be taken should, in absence of evidence to contrary, be presumed correct and lawful. Boise City v. Boise City Dev. Co., 41 Idaho 294, 238 P. 1006 (1925).

ALR.

Depreciation in value, from project for which land is condemned, as a factor and fixing compensation. 5 A.L.R.3d 901.

How to obtain jury trial in eminent domain, waiver. 12 A.L.R.3d 7.

Propriety and effect, in eminent domain proceeding, of argument or evidence as to landowner’s unwillingness to sell property. 17 A.L.R.3d 1449. Propriety and effect, in eminent domain proceeding, of argument or evidence as to source of funds to pay for property. 19 A.L.R.3d 694.

Propriety and effect, in eminent domain proceeding, of instruction to the jury as to landowner’s unwillingness to sell property. 20 A.L.R.3d 1081.

Charging landowner with rent or use value of land where he remains in possession after condemnation. 20 A.L.R.3d 1164.

Propriety and effect of argument or evidence as to financial status of parties in eminent domain proceeding. 21 A.L.R.3d 936.

Admissibility, on issue of value of condemned real property, of rental value of other real property. 23 A.L.R.3d 724.

Admissibility of photographs or models of property condemned. 23 A.L.R.3d 825.

Admissibility of evidence of proposed or possible subdivision or platting of condemned land on issue of value in eminent domain proceedings. 26 A.L.R.3d 780.

Right to enter land for preliminary survey or examination. 29 A.L.R.3d 1104.

Payment or deposit of award in court as affecting condemnor’s right to appeal. 40 A.L.R.3d 203.

Good will or “going concern” value as element of lessee’s compensation for taking leasehold in eminent domain. 58 A.L.R.3d 566.

What constitutes abandonment of eminent domain proceedings so as to charge condemnor with liability for condemnee’s expenses or the like. 68 A.L.R.3d 610.

Eminent domain: measure and elements of lessee’s compensation for condemnor’s taking or damaging of leasehold. 17 A.L.R.4th 337.

Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding. 23 A.L.R.4th 631.

Eminent domain: compensability of loss of view from owner’s property — state cases. 25 A.L.R.4th 671.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel. 59 A.L.R.4th 308.

Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable, or noncommercial use. 29 A.L.R.5th 36.

Jury trial under Rule 71A(h) of Federal Rules of Civil Procedure (Fed. Rules Civ. Proc., Rule 71A(h), 28 U.S.C.S.) in condemnation proceedings by United States. 164 A.L.R. Fed. 341.

Cross References.

Contents of complaint in actions in district court, Idaho R. Civ. P. 7(a) et seq.

Amendments.

The 2006 amendment, by ch. 450, added subdivision 6 and redesignated former subdivision 6 as subsection 7.

Burden of Proof.

Where landowners specifically alleged that the condemnors had alternative means of access and produced evidence of such alternative means of access, including one road then in use by the condemnors pursuant to a license agreement, it was then incumbent upon the condemnors to prove that the alternative means of access were not available to them or that such means of access were not reasonably adequate or sufficient for their purposes. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978).

Construction With Other Statutes.

While neither this section nor§ 40-1310 purport to state whether it is the order of condemnation or the complaint initiating the eminent domain action that is determinative in defining what land or what rights are sought to be condemned, this section is more specific and, thus, controlling. Ada County Hwy. Dist. v. Sharp, 135 Idaho 888, 26 P.3d 1225 (Ct. App. 2001).

Description of Land.

In action brought to condemn right of way through a farm or a legal subdivision, such right of way should be described in complaint by such subdivision; but in action to condemn right of way on established railroad right of way, locus of which is accurately fixed by survey of which there are accessible records, complaint is sufficiently specific when it describes railroad right of way in general terms, giving the termini and the counties through which it runs. Postal Tel. Cable Co. v. Oregon Short Line R.R., 104 F. 623 (C.C.D. Idaho 1900), aff’d, 111 F. 842 (9th Cir. 1901).

Description of land sought to be taken for public use must be such that from it the number of square feet, yards, or rods or the number of acres sought to be taken may be ascertained. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

Designation of Owners.

Complaint in condemnation proceedings which fails to allege that defendants are the owners of land sought to be taken, or that names of the owners are unknown, is fatally defective. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

Evidence.

By default, a defendant admits all of the allegations of the complaint that seeks condemnation, including facts shown by a map and annexed to and made a part of the complaint by reference as an exhibit, as well as the allegations found in the body of the complaint. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

Evidence will be liberally admitted in a proceeding to condemn property for a highway, and the broadest latitude should be allowed in the admission of evidence to show the value of property. State v. Styner, 58 Idaho 233, 72 P.2d 699 (1937). Evidence.

Burden of Proof.

Where landowners specifically alleged that the condemnors had alternative means of access and produced evidence of such alternative means of access, including one road then in use by the condemnors pursuant to a license agreement, it was then incumbent upon the condemnors to prove that the alternative means of access were not available to them or that such means of access were not reasonably adequate or sufficient for their purposes. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978).

Construction With Other Statutes.

While neither this section nor§ 40-1310 purport to state whether it is the order of condemnation or the complaint initiating the eminent domain action that is determinative in defining what land or what rights are sought to be condemned, this section is more specific and, thus, controlling. Ada County Hwy. Dist. v. Sharp, 135 Idaho 888, 26 P.3d 1225 (Ct. App. 2001).

Description of Land.

In action brought to condemn right of way through a farm or a legal subdivision, such right of way should be described in complaint by such subdivision; but in action to condemn right of way on established railroad right of way, locus of which is accurately fixed by survey of which there are accessible records, complaint is sufficiently specific when it describes railroad right of way in general terms, giving the termini and the counties through which it runs. Postal Tel. Cable Co. v. Oregon Short Line R.R., 104 F. 623 (C.C.D. Idaho 1900), aff’d, 111 F. 842 (9th Cir. 1901).

Description of land sought to be taken for public use must be such that from it the number of square feet, yards, or rods or the number of acres sought to be taken may be ascertained. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

Designation of Owners.

Complaint in condemnation proceedings which fails to allege that defendants are the owners of land sought to be taken, or that names of the owners are unknown, is fatally defective. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

Evidence.

By default, a defendant admits all of the allegations of the complaint that seeks condemnation, including facts shown by a map and annexed to and made a part of the complaint by reference as an exhibit, as well as the allegations found in the body of the complaint. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

Evidence will be liberally admitted in a proceeding to condemn property for a highway, and the broadest latitude should be allowed in the admission of evidence to show the value of property. State v. Styner, 58 Idaho 233, 72 P.2d 699 (1937). In a proceeding to condemn property for a highway, evidence of rental, position, and accessibility of the property to railroad, and most valuable possible use; evidence of property’s location and the flow of traffic near it; evidence of zoning ordinance restricting use of surrounding property; and evidence as to the structural and reproduction costs and value of buildings on the land was admissible to determine the market value of the entire property. State v. Styner, 58 Idaho 233, 72 P.2d 699 (1937).

In a proceeding to condemn property for a highway, photographs of the property are admissible in the evidence. State v. Styner, 58 Idaho 233, 72 P.2d 699 (1937).

In a proceeding to condemn property for a highway, evidence of the price paid for the property when purchased from an estate was inadmissible since such sale was in the nature of a forced sale and not pertinent in proving the market value; nor was evidence of the amount of assessed value for tax purposes admissible since the amount did not prove the market value. State v. Styner, 58 Idaho 233, 72 P.2d 699 (1937).

The fact that the plaintiffs’ existing access was by way of a license, rather than an easement across the land of other adjoining property owners, does not destroy either the evidence or the finding of the court that alternative access routes existed, nor the trial court’s holding based thereon that necessity for condemnation did not exist. Erickson v. Amoth, 99 Idaho 907, 591 P.2d 1074 (1978).

Nature of Condemnation Proceeding.

The district court or judge thereof has jurisdiction to determine the right and necessity for the exercise of the right of eminent domain; and if, on a hearing of an application to appoint commissioners or assess damages, he rejects certain evidence offered in regard to the location of the right of way sought to be condemned or the necessity thereof, his action may be reviewed on an appeal, but cannot be reviewed on certiorari. Coeur d’Alene Mining Co. v. Woods, 15 Idaho 26, 96 P. 210 (1908).

Action in condemnation is purely an action to determine value of property sought to be taken. No title can pass to condemnor until after payment of value of the property has been made. Ryan v. Weiser Valley Land & Water Co., 20 Idaho 288, 118 P. 769 (1911).

Offer to Purchase.

The supreme court did not agree with the contention of the state in a condemnation proceeding that the mere act of making a good faith offer to an owner by letter was sufficient to satisfy the requirements of this section. State ex rel. Rich v. Bair, 83 Idaho 475, 365 P.2d 216 (1961).

Where the evidence showed that plaintiff power company was building a 230 kv high tension power transmission line and needed a three-quarters of a mile right-of-way across defendants’ land to erect three self-supporting double circuit steel towers in connection with that project, that plaintiff made some 20 contacts over a period of 13 months in an attempt to purchase the right-of-way, that plaintiff had two independent appraisals of the land made in addition to its own, and referred defendants to two other appraisers, that plaintiffs offered the defendants the top appraisal figure after making several upward adjustments based upon possible future commercial potential, and that defendants consistently refused while failing to offer any other appraisal in support of their position, the trial court correctly held that plaintiff had satisfied the requirements of this section. Idaho Power Co. v. Lettunich, 100 Idaho 582, 602 P.2d 540 (1979). The good faith negotiations requirement of this section was met, even if the negotiations did not occur until after the installation of an irrigation pipeline. However, a good faith effort to resolve the dispute must only be made prior to the filing of a lawsuit. Telford Lands LLC v. Cain, 154 Idaho 981, 303 P.3d 1237 (2013).

Order of Condemnation Not Determinative.

Where no access was being condemned because property owner’s rights of access to the road were unchanged by the highway district’s actions, the order of condemnation was not determinative to defining the scope of the take and property owner’s access rights were not altered by the highway district’s actions. Ada County Hwy. Dist. v. Sharp, 135 Idaho 888, 26 P.3d 1225 (Ct. App. 2001).

Parties.

In condemnation proceedings, all persons claiming easements in property sought to be condemned should be made parties. Lewiston v. Brinton, 41 Idaho 317, 239 P. 738 (1925).

Purpose of Condemnation.

Condemnor must disclose purpose for which he is seeking to condemn property and the general nature and character of the improvement or structure he expects to erect to entitle him to maintain his condemnation proceedings. Idaho-Western R.R. v. Columbia Conference Synod, 20 Idaho 568, 119 P. 60 (1911).

Sufficiency in General.

Complaint in condemnation proceedings must substantially comply with requirements of this section, but, in ascertaining whether or not there is such compliance, the same rule will be applied as in consideration of sufficiency of other pleadings. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

Unless complaint in condemnation proceedings contains substantially every fact required by this section, court acquires no jurisdiction over defaulting defendant. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

In condemnation proceedings by the state to acquire a right of way for a highway, an allegation that the state tried in good faith to purchase the property was sufficient to support proceedings where a municipality, which had contracted jointly with the state for the construction of the highway necessitating the condemnation, had tried in good faith to purchase the property. State v. Styner, 58 Idaho 233, 72 P.2d 699 (1937).

The requirements of this section are not to be lightly regarded and must be satisfied before an action in eminent domain may be entertained. State ex rel. Rich v. Bair, 83 Idaho 475, 365 P.2d 216 (1961).

When applicable, this section requires an allegation by the plaintiff of two items; first, that plaintiff sought in good faith to purchase the property and settle for severance damages; second, that plaintiff was unable to make any reasonable bargain therefor, or settlement of such damages. State ex rel. Rich v. Bair, 83 Idaho 475, 365 P.2d 216 (1961).

In an action by a water and sewer district to condemn an easement for a sewer line, where appraiser testified that in his opinion the district’s offer was for the maximum value of an easement over the land based on studies of comparable utility easements, and where landowners had informed the district that they did not want any easement on their property, there was substantial evidence to support the district court’s finding that the district had negotiated in good faith. Southside Water & Sewer Dist. v. Murphy, 97 Idaho 881, 555 P.2d 1148 (1976). The good faith negotiations requirement of this section was met, even if the negotiations did not occur until after the installation of an irrigation pipeline. However, a good faith effort to resolve the dispute must only be made prior to the filing of a lawsuit. Telford Lands LLC v. Cain, 154 Idaho 981, 303 P.3d 1237 (2013).

Order of Condemnation Not Determinative.

Where no access was being condemned because property owner’s rights of access to the road were unchanged by the highway district’s actions, the order of condemnation was not determinative to defining the scope of the take and property owner’s access rights were not altered by the highway district’s actions. Ada County Hwy. Dist. v. Sharp, 135 Idaho 888, 26 P.3d 1225 (Ct. App. 2001).

Parties.

In condemnation proceedings, all persons claiming easements in property sought to be condemned should be made parties. Lewiston v. Brinton, 41 Idaho 317, 239 P. 738 (1925).

Purpose of Condemnation.

Condemnor must disclose purpose for which he is seeking to condemn property and the general nature and character of the improvement or structure he expects to erect to entitle him to maintain his condemnation proceedings. Idaho-Western R.R. v. Columbia Conference Synod, 20 Idaho 568, 119 P. 60 (1911).

Sufficiency in General.

Complaint in condemnation proceedings must substantially comply with requirements of this section, but, in ascertaining whether or not there is such compliance, the same rule will be applied as in consideration of sufficiency of other pleadings. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

Unless complaint in condemnation proceedings contains substantially every fact required by this section, court acquires no jurisdiction over defaulting defendant. Hollister v. State, 9 Idaho 651, 77 P. 339 (1904).

In condemnation proceedings by the state to acquire a right of way for a highway, an allegation that the state tried in good faith to purchase the property was sufficient to support proceedings where a municipality, which had contracted jointly with the state for the construction of the highway necessitating the condemnation, had tried in good faith to purchase the property. State v. Styner, 58 Idaho 233, 72 P.2d 699 (1937).

The requirements of this section are not to be lightly regarded and must be satisfied before an action in eminent domain may be entertained. State ex rel. Rich v. Bair, 83 Idaho 475, 365 P.2d 216 (1961).

When applicable, this section requires an allegation by the plaintiff of two items; first, that plaintiff sought in good faith to purchase the property and settle for severance damages; second, that plaintiff was unable to make any reasonable bargain therefor, or settlement of such damages. State ex rel. Rich v. Bair, 83 Idaho 475, 365 P.2d 216 (1961).

In an action by a water and sewer district to condemn an easement for a sewer line, where appraiser testified that in his opinion the district’s offer was for the maximum value of an easement over the land based on studies of comparable utility easements, and where landowners had informed the district that they did not want any easement on their property, there was substantial evidence to support the district court’s finding that the district had negotiated in good faith. Southside Water & Sewer Dist. v. Murphy, 97 Idaho 881, 555 P.2d 1148 (1976). The director of the Idaho transportation board has the power to sign an order of condemnation on behalf of the board. Such an order is deemed “entered” under this section. State DOT v. HJ Grathol, 153 Idaho 87, 278 P.3d 957 (2012).

Cross References.

Form and service of summons, Idaho Civil Procedure Rules 4(d)(1) through 4(e)(2).

Failure to Join Interested Parties.

Plaintiffs in condemnation proceeding having actual knowledge of appellants’ interest in property, it was incumbent on them to join appellants as parties defendant so that the latter might present their case to the trial court; upon their failure to do so, it was an abuse of discretion for the trial court to refuse to set aside appellants’ default, reopen the case and permit appellants to submit proof, including presentation of evidence as to severance damages. Rich v. Wylie, 84 Idaho 58, 367 P.2d 763 (1962).

Compiler’s Notes.

The bracketed insertion in subdivision 1 was added by the compiler to conform to the statutory citation style.

Amendments.

The 2006 amendment, by ch. 452, in subsection 1, substituted “minimum amount for damages shall be the greater of the assessed value” for “shall be used as the minimum amount for damages” and inserted “or the plaintiff’s highest prelitigation appraisal”.

Compiler’s Notes.

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

Attorney Fees.

The basis for the discretionary award of attorney fees to the condemnee without a showing and finding that the action was brought frivolously or unreasonably is that, otherwise, a condemnee who is determined by the trial court to be a prevailing party will be deprived of part of the just compensation to which he is entitled. State ex rel. Smith v. Jardine, 130 Idaho 318, 940 P.2d 1137 (1997).

Burden of Proof.

The burden of proving just compensation is borne by the landowner. Conclusory assertions and denials of a utility’s pleadings on the value of the property are not sufficient. Rocky Mt. Power v. Jensen, 154 Idaho 549, 300 P.3d 1037 (2012).

Business Damages.

Intervenors were entitled to make a claim for business damages, because one business was effectively owned by the owners, the other business was located on a remaining portion of the owners’ property, which was immediately adjacent to the condemned land, and the intervenors had been on the owners’ property for over five years. City of McCall v. Seubert, 142 Idaho 580, 130 P.3d 1118 (2006).

There was no reason that the relocation expenses should not be included as part of the business damages, because they were reasonably caused by the taking, when the relocation costs awarded by the jury included the cost of moving the business operations to other portions of the property and the expense of widening the city’s roadway to include additional lanes so that trucks could access the property safely, which became necessary because of the 11-foot drop between the city’s new roadway and the surrounding property. City of McCall v. Seubert, 142 Idaho 580, 130 P.3d 1118 (2006).

In an inverse condemnation action based on the state’s decision to acquire a portion of defendant’s property for a highway improvement project, the district court correctly dismissed defendant’s inverse condemnation claim and request for business damages. Defendant’s claims based on restricted traffic flow and the reduced visibility of its hotel were not compensable takings under Idaho law, as it was undisputed that motorists still had free access to and from defendant’s property. State v. HI Boise, LLC, 153 Idaho 334, 282 P.3d 595 (2012). Attorney fees.

Attorney Fees.

The basis for the discretionary award of attorney fees to the condemnee without a showing and finding that the action was brought frivolously or unreasonably is that, otherwise, a condemnee who is determined by the trial court to be a prevailing party will be deprived of part of the just compensation to which he is entitled. State ex rel. Smith v. Jardine, 130 Idaho 318, 940 P.2d 1137 (1997).

Burden of Proof.

The burden of proving just compensation is borne by the landowner. Conclusory assertions and denials of a utility’s pleadings on the value of the property are not sufficient. Rocky Mt. Power v. Jensen, 154 Idaho 549, 300 P.3d 1037 (2012).

Business Damages.

Intervenors were entitled to make a claim for business damages, because one business was effectively owned by the owners, the other business was located on a remaining portion of the owners’ property, which was immediately adjacent to the condemned land, and the intervenors had been on the owners’ property for over five years. City of McCall v. Seubert, 142 Idaho 580, 130 P.3d 1118 (2006).

There was no reason that the relocation expenses should not be included as part of the business damages, because they were reasonably caused by the taking, when the relocation costs awarded by the jury included the cost of moving the business operations to other portions of the property and the expense of widening the city’s roadway to include additional lanes so that trucks could access the property safely, which became necessary because of the 11-foot drop between the city’s new roadway and the surrounding property. City of McCall v. Seubert, 142 Idaho 580, 130 P.3d 1118 (2006).

Compensatory Benefits.

In an inverse condemnation action based on the state’s decision to acquire a portion of defendant’s property for a highway improvement project, the district court correctly dismissed defendant’s inverse condemnation claim and request for business damages. Defendant’s claims based on restricted traffic flow and the reduced visibility of its hotel were not compensable takings under Idaho law, as it was undisputed that motorists still had free access to and from defendant’s property. State v. HI Boise, LLC, 153 Idaho 334, 282 P.3d 595 (2012). Compensatory Benefits.

Under this section increased transportation facilities are not special and direct benefits to land not taken. Benefits which may be set off against lands not sought to be condemned must be such as relate to land and not to owner. Tyson Creek R.R. v. Empire Mill Co., 31 Idaho 580, 174 P. 1004 (1918).

Damages to Portion Not Taken.

Damages for land not taken, caused by construction outside land of defendants, cannot be considered by jury. Oregon-Washington R.R. & Nav. Co. v. Campbell, 34 Idaho 601, 202 P. 1065 (1921).

While reasonable market value of property sought to be taken is true measure of damages for part taken, jury should also be instructed on damages which might accrue to maintain portion of land not sought to be condemned. Lewiston v. Brinton, 41 Idaho 317, 239 P. 738 (1925).

Where a part of the owner’s contiguous land is taken in a condemnation proceeding, all inconveniences resulting to the owner’s remaining land, including an easement of access to a road or right of way formerly enjoyed, which decrease the value of the land retained by the owner, are elements of severance damage for which compensation should be paid. State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60 (1958).

This section makes it the mandatory duty of the court, jury or referee to ascertain and assess the value of the property sought to be condemned; and, if such property constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of the severance, and the construction of any improvement, likewise must be ascertained and assessed. Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958).

The private landowner is entitled to damages accruing to property not taken by reason of the severance and the construction of any improvement. State ex rel. Symms v. Thirteenth Judicial Dist., 91 Idaho 237, 419 P.2d 679 (1966).

Fixtures.

It is incumbent upon a condemnor to designate clearly, and establish by competent evidence, which particular items are claimed as fixtures, so that no issue can later arise as to the inclusion or exclusion of these items. State ex rel. Flandro v. Seddon, 94 Idaho 940, 500 P.2d 841 (1972).

Judgment.

Upon damages being assessed by court, jury, or referee, under provisions of this section, judgment should be rendered by court in the common, ordinary form for recovery of money in favor of defendant against plaintiff, where damages are allowed and such judgment is the final judgment mentioned in§ 7-714, and is a judgment in personam against plaintiff for such damages. Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912).

Compensatory Benefits.

In the light of the agreement and stipulation that the court in an eminent domain proceeding should determine the freeboard area and estimate the value thereof taken by the irrigation district and the severance damages, the irrigation district’s assignment of error that the ruling of the trial court required condemnation to a higher elevation than sought was without merit as the court by such agreement and stipulation was required to make a finding on the extent of the area to be taken and necessity for taking whereupon the district’s pleadings were deemed amended. Big Lost River Irrigation Dist. v. Zollinger, 83 Idaho 401, 363 P.2d 706 (1961). Compensatory Benefits.

Under this section increased transportation facilities are not special and direct benefits to land not taken. Benefits which may be set off against lands not sought to be condemned must be such as relate to land and not to owner. Tyson Creek R.R. v. Empire Mill Co., 31 Idaho 580, 174 P. 1004 (1918).

Damages to Portion Not Taken.

Damages for land not taken, caused by construction outside land of defendants, cannot be considered by jury. Oregon-Washington R.R. & Nav. Co. v. Campbell, 34 Idaho 601, 202 P. 1065 (1921).

While reasonable market value of property sought to be taken is true measure of damages for part taken, jury should also be instructed on damages which might accrue to maintain portion of land not sought to be condemned. Lewiston v. Brinton, 41 Idaho 317, 239 P. 738 (1925).

Where a part of the owner’s contiguous land is taken in a condemnation proceeding, all inconveniences resulting to the owner’s remaining land, including an easement of access to a road or right of way formerly enjoyed, which decrease the value of the land retained by the owner, are elements of severance damage for which compensation should be paid. State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60 (1958).

This section makes it the mandatory duty of the court, jury or referee to ascertain and assess the value of the property sought to be condemned; and, if such property constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of the severance, and the construction of any improvement, likewise must be ascertained and assessed. Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958).

The private landowner is entitled to damages accruing to property not taken by reason of the severance and the construction of any improvement. State ex rel. Symms v. Thirteenth Judicial Dist., 91 Idaho 237, 419 P.2d 679 (1966).

Fixtures.

It is incumbent upon a condemnor to designate clearly, and establish by competent evidence, which particular items are claimed as fixtures, so that no issue can later arise as to the inclusion or exclusion of these items. State ex rel. Flandro v. Seddon, 94 Idaho 940, 500 P.2d 841 (1972).

Judgment.

Upon damages being assessed by court, jury, or referee, under provisions of this section, judgment should be rendered by court in the common, ordinary form for recovery of money in favor of defendant against plaintiff, where damages are allowed and such judgment is the final judgment mentioned in§ 7-714, and is a judgment in personam against plaintiff for such damages. Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912).

Larger Parcel.

In the light of the agreement and stipulation that the court in an eminent domain proceeding should determine the freeboard area and estimate the value thereof taken by the irrigation district and the severance damages, the irrigation district’s assignment of error that the ruling of the trial court required condemnation to a higher elevation than sought was without merit as the court by such agreement and stipulation was required to make a finding on the extent of the area to be taken and necessity for taking whereupon the district’s pleadings were deemed amended. Big Lost River Irrigation Dist. v. Zollinger, 83 Idaho 401, 363 P.2d 706 (1961). Larger Parcel.

The fact that land taken in condemnation proceedings is not being used for the same purpose as the remaining land does not mean that the land taken and the land remaining do not constitute parts of a “larger parcel” within the meaning of this section. State ex rel. Symms v. Mountain Home, 94 Idaho 528, 493 P.2d 387 (1972).

Loss of Visibility.

Loss of visibility is not a compensable property right for a business in and of itself, unless some of the improvements alleged to obstruct visibility are located on land taken from the business through condemnation. State v. HI Boise, LLC, 153 Idaho 334, 282 P.3d 595 (2012).

Measure of Damages.

In proceedings for the condemnation of land for railroad purposes, the value of the land at the time it is taken is the measure of damages, and it is error to admit evidence of value at the time of trial. Spokane & Palouse Ry. v. Lieuallen, 3 Idaho 381, 29 P. 854 (1892).

This section contemplates assessment of damages upon basis of the market value of property sought to be condemned. Portneuf-Marsh Valley Irrigating Co. v. Portneuf Irrigating Co., 19 Idaho 483, 114 P. 19 (1911); Tyson Creek R.R. v. Empire Mill Co., 31 Idaho 580, 174 P. 1004 (1918); Oregon-Washington R. & Nav. Co. v. Campbell, 34 Idaho 601, 202 P. 1065 (1921); Idaho Farm Dev. Co. v. Brackett, 36 Idaho 748, 213 P. 696 (1923); Lewiston v. Brinton, 41 Idaho 317, 239 P. 738 (1925).

Measure of damages where property of educational institution is taken for railroad purposes, see Idaho-Western R.R. v. Columbia Conference Synod, 20 Idaho 568, 119 P. 60 (1911).

Noise usually incident to operation of railway trains should not be taken into consideration as elements of damages in ordinary condemnation cases; but where property is already devoted to such a special use and, a portion only being taken, noise will be a private nuisance as to remainder, it will be considered in ascertaining damages to remainder. Idaho-Western R.R. v. Columbia Conference Synod, 20 Idaho 568, 119 P. 60 (1911).

Full compensation shall be paid for all lands taken for a public use. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916).

Just compensation must be awarded, whether property has market value or not. Idaho Farm Dev. Co. v. Brackett, 36 Idaho 748, 213 P. 696 (1923).

Compensation must be reckoned from standpoint of what landowner loses by taking of property and not from benefit property may be to condemnor, and it is error to admit evidence of necessities of latter and value of property to him for purposes for which he intends to apply it. Idaho Farm Dev. Co. v. Brackett, 36 Idaho 748, 213 P. 696 (1923).

If the jury does not find from the evidence that any actual damage results, nominal damages need not be returned. Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722 (1931).

The defendant in a condemnation suit is entitled to be paid in money for the value of the land taken and for the damage to the land not taken because of the severance. State ex rel. Rich v. Dunclick, Inc., 77 Idaho 45, 286 P.2d 1112 (1955). The state in a condemnation proceeding for taking of land of manufacturing concern used as storage by the defendant was not entitled to contend that there was available to the defendant for storage other state owned land, since the defendant was entitled to cash for the damage sustained by it and was not required to take other land in exchange. State ex rel. Rich v. Dunclick, Inc., 77 Idaho 45, 286 P.2d 1112 (1955).

The power of eminent domain extends to every kind of property taken for public use, including the right of access to public streets, such being an estate or interest in and appurtenant to real property; and since such right of access constitutes an interest in, by virtue of being an easement appurtenant to, a larger parcel, the court must ascertain and assess the damages which will accrue to the portion not sought to be condemned by reason of the severance of the portion — the right of access — sought to be condemned and the construction of the improvement. Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958).

In an eminent domain proceeding, it is the mandatory duty of the court, jury or referee to assess the value of the property sought to be condemned, and if such property constitutes a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of the severance, and the construction of any improvement in the manner proposed by the condemnor, likewise must be ascertained and assessed. Big Lost River Irrigation Dist. v. Zollinger, 83 Idaho 401, 363 P.2d 706 (1961).

In an eminent domain proceeding where expert witnesses were of the opinion that the land taken by the improvement would cause a reduction by the amount of land taken in the animal units of feed produced thus reducing the animal carrying capacity of the ranch, such reduction, resulting in a loss of at least $7,000 annually, was a damage that must be ascertained and assessed. Big Lost River Irrigation Dist. v. Zollinger, 83 Idaho 401, 363 P.2d 706 (1961).

Where the court’s findings specifically set out each item of property taken and the value thereof, but do not delineate whether the various items of damage constituted valuations for property taken or severance damages, any error in the form of such damages was rendered harmless by the court’s conclusion of law to the effect that the owners were entitled to judgment for $5,222. State ex rel. Burns v. Blair, 91 Idaho 137, 417 P.2d 217 (1966).

To permit the state to offset the benefits to the remainder of land taken by condemnation against the value of the land taken where land taken constituted an independent economic unit, would be contrary toIdaho Const., Art. I, § 14 as denying the owner just compensation. Orofino v. Swayne, 95 Idaho 125, 504 P.2d 398 (1972).

Although damages assessed in a condemnation action include the value of the improvements pertaining to the realty, supreme court could not determine whether alleged fixtures removed by condemnee were considered by the jury in arriving at its award in the absence of findings by the trial court or a proper jury instruction, and condemnor was not entitled to the alleged fixtures. State ex rel. Flandro v. Seddon, 94 Idaho 940, 500 P.2d 841 (1972).

The state is required to pay just compensation for the value of land taken through eminent domain and for any damages caused to other property by the severance; however, the compensation is not affected by land which is taken or damaged due to the exercise of police powers or land which may be divided among persons with various interests including leaseholds. State ex rel. Moore v. Bastian, 97 Idaho 444, 546 P.2d 399 (1976).

Corporation’s counsel indicated only a small fraction of the total damages awarded by the jury were for value of the actual property taken, even though a substantial amount of the damages were due to severance of the corporation’s property; although severance damages could be estimated before a taking occurred, they could be more accurately and satisfactorily determined after completion of construction. C & G, Inc. v. Canyon Highway Dist. No. 4, 139 Idaho 140, 75 P.3d 194 (2003). The state in a condemnation proceeding for taking of land of manufacturing concern used as storage by the defendant was not entitled to contend that there was available to the defendant for storage other state owned land, since the defendant was entitled to cash for the damage sustained by it and was not required to take other land in exchange. State ex rel. Rich v. Dunclick, Inc., 77 Idaho 45, 286 P.2d 1112 (1955).

The power of eminent domain extends to every kind of property taken for public use, including the right of access to public streets, such being an estate or interest in and appurtenant to real property; and since such right of access constitutes an interest in, by virtue of being an easement appurtenant to, a larger parcel, the court must ascertain and assess the damages which will accrue to the portion not sought to be condemned by reason of the severance of the portion — the right of access — sought to be condemned and the construction of the improvement. Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958).

In an eminent domain proceeding, it is the mandatory duty of the court, jury or referee to assess the value of the property sought to be condemned, and if such property constitutes a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of the severance, and the construction of any improvement in the manner proposed by the condemnor, likewise must be ascertained and assessed. Big Lost River Irrigation Dist. v. Zollinger, 83 Idaho 401, 363 P.2d 706 (1961).

In an eminent domain proceeding where expert witnesses were of the opinion that the land taken by the improvement would cause a reduction by the amount of land taken in the animal units of feed produced thus reducing the animal carrying capacity of the ranch, such reduction, resulting in a loss of at least $7,000 annually, was a damage that must be ascertained and assessed. Big Lost River Irrigation Dist. v. Zollinger, 83 Idaho 401, 363 P.2d 706 (1961).

Where the court’s findings specifically set out each item of property taken and the value thereof, but do not delineate whether the various items of damage constituted valuations for property taken or severance damages, any error in the form of such damages was rendered harmless by the court’s conclusion of law to the effect that the owners were entitled to judgment for $5,222. State ex rel. Burns v. Blair, 91 Idaho 137, 417 P.2d 217 (1966).

To permit the state to offset the benefits to the remainder of land taken by condemnation against the value of the land taken where land taken constituted an independent economic unit, would be contrary toIdaho Const., Art. I, § 14 as denying the owner just compensation. Orofino v. Swayne, 95 Idaho 125, 504 P.2d 398 (1972).

Although damages assessed in a condemnation action include the value of the improvements pertaining to the realty, supreme court could not determine whether alleged fixtures removed by condemnee were considered by the jury in arriving at its award in the absence of findings by the trial court or a proper jury instruction, and condemnor was not entitled to the alleged fixtures. State ex rel. Flandro v. Seddon, 94 Idaho 940, 500 P.2d 841 (1972).

The state is required to pay just compensation for the value of land taken through eminent domain and for any damages caused to other property by the severance; however, the compensation is not affected by land which is taken or damaged due to the exercise of police powers or land which may be divided among persons with various interests including leaseholds. State ex rel. Moore v. Bastian, 97 Idaho 444, 546 P.2d 399 (1976).

Corporation’s counsel indicated only a small fraction of the total damages awarded by the jury were for value of the actual property taken, even though a substantial amount of the damages were due to severance of the corporation’s property; although severance damages could be estimated before a taking occurred, they could be more accurately and satisfactorily determined after completion of construction. C & G, Inc. v. Canyon Highway Dist. No. 4, 139 Idaho 140, 75 P.3d 194 (2003). Paragraph (2)(a) provides that, following the taking of a parcel of land through eminent domain, just compensation includes any decrease in the value of remaining property based on the future existence of any planned improvements to the taken property and the planned uses of those improvements. Just compensation does not include any physical damages that accrue to the remaining property during the construction of any improvements on the taken property. Claims for such damages must be brought in tort. Ada Cty. Highway Dist. v. Brooke View, Inc., 162 Idaho 138, 395 P.3d 357 (2017).

Nature of Condemnation Proceeding.

Action in condemnation is purely action to determine value of property sought to be taken. Ryan v. Weiser Valley Land & Water Co., 20 Idaho 288, 118 P. 769 (1911).

It is the duty of court, jury, or referee, before whom a hearing is had, to ascertain and assess damages under provisions of this section, and to make findings upon each of the elements of damages as described herein; in assessing such damages, if the benefits shall be less than the damages so assessed, the benefits should be deducted from the damages. Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912).

Prospective Future Interference.

When an easement owner loses the exclusive right to use his easement, he may well be damaged by the prospective future interference with his use, even if such interference does not prevent or seriously impair his enjoyment of the easement. Canyon View Irrigation Co. v. Twin Falls Canal Co., 101 Idaho 604, 619 P.2d 122 (1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1983, 68 L. Ed. 2d 301 (1981).

Separate Parcels.

It is not necessary that jury find value of each legal subdivision of tract sought to be condemned; if, however, there is more than one parcel of land, or several separate parcels of tracts, each separated from the other, then it is necessary for jury to determine value of each separate tract or parcel; but where tract is a single or consolidated tract, the value may be fixed as a single parcel or tract. Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912).

This section does not require each lot in a platted subdivision to be appraised separately where all the lots being taken constitute a single quadrangular consolidated body of land under a single ownership. Caldwell v. Roark, 92 Idaho 99, 437 P.2d 615 (1968).

In proceedings by state to condemn real estate allegedly part of a larger tract owned by the city, jury award of severance damages for diminution of value of the remainder of real estate was warranted where jury could determine from evidence that property sought to be condemned constituted “only a part of a larger parcel” and severance damages could be assessed under this section. State ex rel. Symms v. Mountain Home, 94 Idaho 528, 493 P.2d 387 (1972).

Special Benefits.

This section forbids offsetting benefits to the remaining property against the fair market value of the property taken in arriving at just compensation. State ex rel. Symms v. Collier, 93 Idaho 19, 454 P.2d 56 (1969). In determining just compensation in land condemnation proceedings under this section, benefits which may accrue to the remainder of the land not condemned may not be considered except as a set off against damages that have accrued to the remainder by reason of the severance from the portion condemned. State ex rel. Symms v. Collier, 93 Idaho 19, 454 P.2d 56 (1969); Orofino v. Swayne, 95 Idaho 125, 504 P.2d 398 (1972).

Special Verdict.

In an eminent domain action, special verdict which conformed with this section but also contained a space for the jury to indicate its total award, which corresponded with the total of the compensation due for the property plus the damage caused by severance, was not erroneous. State ex rel. Moore v. Bastian, 98 Idaho 888, 575 P.2d 486 (1978).

Value.

“Value” is not what any one person would give for land for his own particular use, but what could probably be obtained for it if a sale were desirable and a purchaser sought, applying ordinary business methods to find him and to dispose of property. Weiser Valley Land & Water Co. v. Ryan, 190 F. 417 (9th Cir. 1911).

While evidence of value for specific purpose as an independent fact is inadmissible, a witness may, in arriving at an estimate of the value, take into consideration the most advantageous use to which land may be applied, including purpose for which it is sought. Weiser Valley Land & Water Co. v. Ryan, 190 F. 417 (9th Cir. 1911).

Market value of property is price it will bring when offered for sale by one who desires but is not obliged to sell, and the property is bought by one who is not obliged to purchase property. Idaho Farm Dev. Co. v. Brackett, 36 Idaho 748, 213 P. 696 (1923).

In eminent domain proceedings, the only issue for submission to a jury is the question of the value of the property sought to be taken or the amount of compensation for the taking. State ex rel. Flandro v. Seddon, 94 Idaho 940, 500 P.2d 841 (1972).

ALR.

Zoning scheme, plan, or ordinance as temporary taking. 55 A.L.R.6th 635.

May Easement or Right of Way Be Appurtenant Where Servient Tenement Is Not Adjacent to Dominant. 15 A.L.R.7th 1.

Amendments.

The 2014 amendment, by ch. 268, inserted “or if hand delivered to such person who acknowledges receipt of the form in writing on the form” at the end of the first subsection (9).

Compiler’s Notes.

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

Contractual Agreements for Interest.

Where plaintiff entered into a contractual agreement providing, inter alia, for plaintiff to pay defendants 6% interest per annum from April 1, 1967, the date of plaintiff’s taking possession of property, on amount of award above a deposit paid into court by plaintiff, it was correct for court to enter judgment comprised of the fair market value of the property less the deposit, interest thereon from April 1, 1967, until date of judgment, and costs, plus an allowance of interest of 6% per annum on the total judgment, including interest and costs, from its entry until paid; although a different result might have been reached as to interest had it been due as a result of this section, rather than the agreement, as affected by§ 28-22-104 and former§ 28-22-105. State ex rel. Symms v. Collier, 93 Idaho 19, 454 P.2d 56 (1969).

Date for Valuation.

In eminent domain proceeding wherein court and parties used date of possession by plaintiff instead of the date of summons as the valuation date, without objection at the trial or thereafter, ruling on this point was not necessary on appeal; and if there was error it was not reversible error, since there was less than three months difference between the two dates. State ex rel. Symms v. Collier, 93 Idaho 19, 454 P.2d 56 (1969). •Title 7»«Ch. 7»«§ 7-712»

Contractual Agreements for Interest.

Where plaintiff entered into a contractual agreement providing, inter alia, for plaintiff to pay defendants 6% interest per annum from April 1, 1967, the date of plaintiff’s taking possession of property, on amount of award above a deposit paid into court by plaintiff, it was correct for court to enter judgment comprised of the fair market value of the property less the deposit, interest thereon from April 1, 1967, until date of judgment, and costs, plus an allowance of interest of 6% per annum on the total judgment, including interest and costs, from its entry until paid; although a different result might have been reached as to interest had it been due as a result of this section, rather than the agreement, as affected by§ 28-22-104 and former§ 28-22-105. State ex rel. Symms v. Collier, 93 Idaho 19, 454 P.2d 56 (1969).

Date for Valuation.

In eminent domain proceeding wherein court and parties used date of possession by plaintiff instead of the date of summons as the valuation date, without objection at the trial or thereafter, ruling on this point was not necessary on appeal; and if there was error it was not reversible error, since there was less than three months difference between the two dates. State ex rel. Symms v. Collier, 93 Idaho 19, 454 P.2d 56 (1969). The value of property taken in an eminent domain proceeding and the damage caused by the severance to any remaining property is computed from the date of issuance of the summons and not from the date the property is actually taken. State ex rel. Moore v. Bastian, 97 Idaho 444, 546 P.2d 399 (1976).

In eminent domain action, if error occurred in the admission of evidence regarding capitalization of annual rentals accruing after the time of the taking, it was cured by instructions explicitly directing the jury to determine value as of the date of the taking. State ex rel. Moore v. Bastian, 98 Idaho 888, 575 P.2d 486 (1978).

Double Recovery.

Where respondent had recovered a judgment liquidating his flood damage (as yet not segregated from his crop damages) and the district by eminent domain had taken the premises in a condition undamaged or without deduction or depreciation due to the flooding, the payment of both judgments in toto would afford him double recovery. Zollinger v. Big Lost River Irrigation Dist., 83 Idaho 411, 364 P.2d 176 (1961).

Improvements.

Improvements appertaining to the land sought to be condemned are assessed as a part of the realty, and the finding of the value of realty includes improvements. Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912).

Prospect hole on placer claim is not an improvement in the sense in which the word is used in this section. Tyson Creek R.R. v. Empire Mill Co., 31 Idaho 580, 174 P. 1004 (1918).

Interest.

Interest may be allowed from date of summons to date of judgment although defendant continued to receive rents and profits, since plaintiff could have obtained possession in shorter time. Brown v. United States, 263 U.S. 78, 44 S. Ct. 92, 68 L. Ed. 171 (1923).

Under this section, owner is entitled to interest on damages awarded for land taken from the date of summons. Weiser Valley Land & Water Co. v. Ryan, 190 F. 417 (9th Cir. 1911).

The condemnee should be allowed interest upon the compensation and damages awarded from the time the condemnor either takes possession, or becomes entitled to possession, of the property. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957).

Where the order for possession in a condemnation proceeding was filed March 29, 1955 interest would be allowed at the legal rate from such date rather than from the date of May 15, 1951, which was the date of the institution of proceedings, plaintiff being unable to take possession of the property until such first mentioned date in 1955 due to litigation on part of the owners but interest would only be recoverable from the time that the order for possession was filed. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957).

Under the eminent domain statutes, it is clear that a defendant is entitled to interest running from the date of the summons. Eagle Sewer Dist. v. Hormaechea, 109 Idaho 418, 707 P.2d 1057 (Ct. App. 1985); City of McCall v. Seubert, 142 Idaho 580, 130 P.3d 1118 (2006).

Inverse Condemnation.

Since this section chronologically limits the right to compensation from the date of the summons in an eminent domain proceeding, this section cannot be construed to govern the right to compensation in an inverse condemnation action, which is an action predicated on the proposition that a taking occurred without such formal proceedings. City of Lewiston v. Lindsey, 123 Idaho 841, 853 P.2d 596 (Ct. App. 1993). The value of property taken in an eminent domain proceeding and the damage caused by the severance to any remaining property is computed from the date of issuance of the summons and not from the date the property is actually taken. State ex rel. Moore v. Bastian, 97 Idaho 444, 546 P.2d 399 (1976).

In eminent domain action, if error occurred in the admission of evidence regarding capitalization of annual rentals accruing after the time of the taking, it was cured by instructions explicitly directing the jury to determine value as of the date of the taking. State ex rel. Moore v. Bastian, 98 Idaho 888, 575 P.2d 486 (1978).

Double Recovery.

Where respondent had recovered a judgment liquidating his flood damage (as yet not segregated from his crop damages) and the district by eminent domain had taken the premises in a condition undamaged or without deduction or depreciation due to the flooding, the payment of both judgments in toto would afford him double recovery. Zollinger v. Big Lost River Irrigation Dist., 83 Idaho 411, 364 P.2d 176 (1961).

Improvements.

Improvements appertaining to the land sought to be condemned are assessed as a part of the realty, and the finding of the value of realty includes improvements. Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912).

Prospect hole on placer claim is not an improvement in the sense in which the word is used in this section. Tyson Creek R.R. v. Empire Mill Co., 31 Idaho 580, 174 P. 1004 (1918).

Interest.

Interest may be allowed from date of summons to date of judgment although defendant continued to receive rents and profits, since plaintiff could have obtained possession in shorter time. Brown v. United States, 263 U.S. 78, 44 S. Ct. 92, 68 L. Ed. 171 (1923).

Under this section, owner is entitled to interest on damages awarded for land taken from the date of summons. Weiser Valley Land & Water Co. v. Ryan, 190 F. 417 (9th Cir. 1911).

The condemnee should be allowed interest upon the compensation and damages awarded from the time the condemnor either takes possession, or becomes entitled to possession, of the property. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957).

Where the order for possession in a condemnation proceeding was filed March 29, 1955 interest would be allowed at the legal rate from such date rather than from the date of May 15, 1951, which was the date of the institution of proceedings, plaintiff being unable to take possession of the property until such first mentioned date in 1955 due to litigation on part of the owners but interest would only be recoverable from the time that the order for possession was filed. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957).

Under the eminent domain statutes, it is clear that a defendant is entitled to interest running from the date of the summons. Eagle Sewer Dist. v. Hormaechea, 109 Idaho 418, 707 P.2d 1057 (Ct. App. 1985); City of McCall v. Seubert, 142 Idaho 580, 130 P.3d 1118 (2006).

Inverse Condemnation.

Measure of Damages.

Since this section chronologically limits the right to compensation from the date of the summons in an eminent domain proceeding, this section cannot be construed to govern the right to compensation in an inverse condemnation action, which is an action predicated on the proposition that a taking occurred without such formal proceedings. City of Lewiston v. Lindsey, 123 Idaho 841, 853 P.2d 596 (Ct. App. 1993). Measure of Damages.

Value of land at time it is taken, and not its value at time of trial, is the measure of damages, and it is error to admit evidence as to its value at latter date. Spokane & Palouse Ry. v. Lieuallen, 3 Idaho 381, 29 P. 854 (1892).

If the damages are paid to the landowner, the fact that the plaintiff in condemnation may subsequently commit waste or damage on the lands so condemned, and may not prosecute the proceeding to final judgment, can in no way prejudice the landowner whose damages are assessed as of a previous date. Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909).

A corporation having the power of eminent domain has no right to enter upon and take possession of the premises sought to be condemned until it either pays to the owner of the property the amount assessed and found as damages by commissioners duly appointed or, in case the owner refuses to accept the award, has paid the same to the clerk of the court to abide the result of the action. Pyle v. Woods, 18 Idaho 674, 111 P. 746 (1910).

For instruction as to measure of damages in condemnation proceeding, see Portneuf-Marsh Valley Irrigating Co. v. Portneuf Irrigating Co., 19 Idaho 483, 114 P. 19 (1911).

Evidence of discovery of mineral deposits upon lands sought to be condemned for railroad right of way, after issuance of summons, is admissible for purpose of enabling jury to determine whether market value of the land was affected thereby at time of issuance of summons; in such cases it is not permissible to draw distinction between actual value and market value. Tyson Creek R.R. v. Empire Mill Co., 31 Idaho 580, 174 P. 1004 (1918).

Ordinarily in determining market value of property to be taken, court would come as nearly as practicable to actual value thereof, and supreme court has adopted market value as measure of compensation. Oregon-Washington R.R. & Nav. Co. v. Campbell, 34 Idaho 601, 202 P. 1065 (1921).

Under this section requiring determination of damages for the area taken in the eminent domain proceeding as of June 27, 1958, deduction for existing flood damage for which recovery was sought in this action would have to be made in determining the valuation of the premises sought to be taken. Zollinger v. Big Lost River Irrigation Dist., 83 Idaho 411, 364 P.2d 176 (1961).

Where the state restricted access to plaintiff’s business property from the adjacent highway by the erection of curbs in front of their property along the highway without instituting condemnation proceedings and causing summons to be issued, damages will be assessed as of the time of the constructive taking and where plaintiffs were not advised at said time that such taking was for five years only after which full access to the property would be restored, the temporary character of such taking cannot be considered in assessing damages. Lobdell v. State ex rel. Bd. of Hwy. Dirs., 89 Idaho 559, 407 P.2d 135 (1965).

Payment in Money.

Where a group of contiguous lots in a platted subdivision is taken as a unit, the jury is required to fix the value of the entire parcel as a unit as of the time the summons is issued and not by aggregating the individual sales values which separate lots may bring when sold to individual prospective homebuilders over a period of time in the future. Caldwell v. Roark, 92 Idaho 99, 437 P.2d 615 (1968). Payment in Money.

The state in a condemnation proceeding for taking of land of manufacturing concern used as storage by the defendant was not entitled to contend that there was available to the defendant for storage other state owned land, since the defendant was entitled to cash for the damage sustained by it and was not required to take other land in exchange. State ex rel. Rich v. Dunclick, Inc., 77 Idaho 45, 286 P.2d 1112 (1955).

The defendant in a condemnation suit is entitled to be paid in money for the value of the land taken and for the damage to the land not taken because of the severance. State ex rel. Rich v. Dunclick, Inc., 77 Idaho 45, 286 P.2d 1112 (1955).

Subsequent Damages.

If damages sustained are fixed as of the date of issuance of summons and landowner receives that compensation, it can make no difference to him how much damage or waste may thereafter be committed upon the property. Portneuf Irrigation Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909).

Damages not reasonably anticipatory at date of summons are properly excluded. Oregon-Washington R. & Nav. Co. v. Campbell, 34 Idaho 601, 202 P. 1065 (1921).

Cross References.

Fences and cattle guards, cost of construction assessed as damages,§ 7-711.

Judgments in Condemnation Proceedings.

In eminent domain proceedings, court enters two judgments; one in favor of defendant for damages assessed under§ 7-711, the other in favor of plaintiff for condemnation of property after the first judgment is paid, as provided in§ 7-716. Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912).

Cross References.

Execution in civil actions,§ 11-101 et seq.

Constitutionality.

The fact that the statute grants to a defendant in condemnation proceedings the right to a trial subsequent to the assessment made by the commissioners, and also the right of appeal, does not render the provision of the statute, authorizing the appointment of the commissioners and assessment of damages and the taking of possession after payment of the amount so assessed, obnoxious to the constitution. Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909).

Payment of Judgment.

Pursuant to§ 7-714, the plaintiff is required to pay the final judgment entered for damages assessed under§ 7-711 within 30 days after judgment is entered. Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912).

Personal Judgment.

Under this section a personal judgment may be properly rendered against plaintiff for the damages ascertained. Weiser Valley Land & Water Co. v. Ryan, 190 F. 417 (9th Cir. 1911).

Costs.

Costs should be awarded to landowners against the state regardless of who are the successful parties. State ex rel. McKelvey v. Styner, 57 Idaho 144, 63 P.2d 152 (1936).

Judgments in Condemnation Proceedings.

It is improper to render judgment of condemnation until award of compensation has been paid. Weiser Valley Land & Water Co. v. Ryan, 190 F. 425 (9th Cir. 1911).

Plaintiff is not left to his own discretion as to whether or not he will pay judgment, and leave defendant’s property charged with a liability to be taken at the will or convenience of plaintiff. To guard against such possible condition, the legislature provided for a personal judgment and for means by which the same could be enforced. Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912).

Under provisions of this section and§§ 7-714, 7-715 there are two judgments to be entered by trial court; first, in favor of defendant for damages as assessed under provisions of§ 7-711, and second, in favor of plaintiff for condemnation, describing property and purpose of condemnation, entered after payment of the first judgment, as prescribed under this section. Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160, 121 P. 88 (1912).

When Title Passes.

No title can pass to condemnor until after payment of the value of the property has been made. Ryan v. Weiser Valley Land & Water Co., 20 Idaho 288, 118 P. 769 (1911).

Cross References.

Election to build fences and cattle guards, bond,§ 7-714.

Notice by mail,§ 60-109A.

Compiler’s Notes.

The bracketed word “be” in the third sentence of the second paragraph was inserted by the compiler.

The bracketed insertion at the end of the second paragraph was added by the compiler to conform to the statutory citation style.

A 1953 amendment (S.L. 1953, ch. 252) did not provide due process of law, as required byIdaho Const., Art. I, § 13, for the determination of just compensation for the taking of land sought to be condemned to be paid to the landowner, or deposited in court for his use and benefit if he refused to accept same, prior to the appropriation and taking possession of such land and thereby offended the provision ofIdaho Const., Art. I, § 14, requiring that just compensation must be paid prior to the taking. In Yellowstone Pipe Line Co. v. Drummond , 77 Idaho 36, 287 P.2d 288 (1955), such amendment was found to be unconstitutional and void.

Appeals.

Appellate court denied condemnee’s motion to dismiss the state’s appeal because the appeal was not moot even though the state tendered a check to the condemnee in satisfaction of the judgment before filing its appeal. If the appellate court determined that the jury rendered a verdict in excess of just compensation and ordered the condemnee to refund to the state funds in excess of that amount, the appeal would not be moot because the judicial determination would have a practical effect on the outcome, in that the state would recover some of its money. State Ex Rel. Winder v. Canyon Vista Family Ltd. P’ship, 148 Idaho 718, 228 P.3d 985 (2010).

Constitutionality.

This section is not in violation of eitherIdaho Const., Art. I, § 14, orIdaho Const., Art. I, § 7. Under the constitution, private property cannot be taken for a public use without payment of a just compensation therefor in advance of the taking, but tender of the amount assessed, in manner prescribed by law, or, in case of his refusal to accept same, a payment thereof into court to await determination of the action is a sufficient compliance with the constitutional requirement as to payment to authorize court in letting a party into possession of property that he seeks to condemn. Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909). See also Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178 (1912), overruled on other grounds, Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

Plaintiff, who took immediate possession of right of way condemned for pipe line under provisions of 1953 amendment of this section, which the supreme court held unconstitutional was entitled to continue in possession until final outcome of litigation under terms of order which placed it in possession, providing the plaintiff prosecuted proceedings to final judgment and paid the determined value and damages sustained by defendant in the taking, otherwise the cash deposited under the order would be liable for reasonable rental value and damages sustained by the occupation. Yellowstone Pipe Line Co. v. Drummond, 77 Idaho 36, 287 P.2d 288 (1955).

Service of notice for immediate possession of land sought to be condemned under the provisions of Session Laws 1953, ch. 252 amending this section, is defective in that it does not provide for action by the clerk to notify defendants or to send copies of moving papers to non-resident defendants, and does not provide for either actual service or constructive service of notice of motion; hence, the service does not conform to due process of law. Yellowstone Pipe Line Co. v. Drummond, 77 Idaho 36, 287 P.2d 288 (1955).

Session Laws 1953, ch. 252, amending this section by providing that the plaintiff in an eminent domain proceeding may file an affidavit appraising the damages and that the court upon the filing of such affidavit may enter an order that, upon payment of double such amount, the plaintiff may take immediate possession is unconstitutional, since it does not provide for an impartial tribunal to fix the damages and violates requirement that compensation must be paid before the taking. Yellowstone Pipe Line Co. v. Drummond, 77 Idaho 36, 287 P.2d 288 (1955). Interest allowed upon order for possession.

Appeals.

Appellate court denied condemnee’s motion to dismiss the state’s appeal because the appeal was not moot even though the state tendered a check to the condemnee in satisfaction of the judgment before filing its appeal. If the appellate court determined that the jury rendered a verdict in excess of just compensation and ordered the condemnee to refund to the state funds in excess of that amount, the appeal would not be moot because the judicial determination would have a practical effect on the outcome, in that the state would recover some of its money. State Ex Rel. Winder v. Canyon Vista Family Ltd. P’ship, 148 Idaho 718, 228 P.3d 985 (2010).

Constitutionality.

This section is not in violation of eitherIdaho Const., Art. I, § 14, orIdaho Const., Art. I, § 7. Under the constitution, private property cannot be taken for a public use without payment of a just compensation therefor in advance of the taking, but tender of the amount assessed, in manner prescribed by law, or, in case of his refusal to accept same, a payment thereof into court to await determination of the action is a sufficient compliance with the constitutional requirement as to payment to authorize court in letting a party into possession of property that he seeks to condemn. Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909). See also Tobey v. Bridgewood, 22 Idaho 566, 127 P. 178 (1912), overruled on other grounds, Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 27 Idaho 695, 151 P. 998 (1915).

Plaintiff, who took immediate possession of right of way condemned for pipe line under provisions of 1953 amendment of this section, which the supreme court held unconstitutional was entitled to continue in possession until final outcome of litigation under terms of order which placed it in possession, providing the plaintiff prosecuted proceedings to final judgment and paid the determined value and damages sustained by defendant in the taking, otherwise the cash deposited under the order would be liable for reasonable rental value and damages sustained by the occupation. Yellowstone Pipe Line Co. v. Drummond, 77 Idaho 36, 287 P.2d 288 (1955).

Service of notice for immediate possession of land sought to be condemned under the provisions of Session Laws 1953, ch. 252 amending this section, is defective in that it does not provide for action by the clerk to notify defendants or to send copies of moving papers to non-resident defendants, and does not provide for either actual service or constructive service of notice of motion; hence, the service does not conform to due process of law. Yellowstone Pipe Line Co. v. Drummond, 77 Idaho 36, 287 P.2d 288 (1955).

Improvements Prior to Taking.

Session Laws 1953, ch. 252, amending this section by providing that the plaintiff in an eminent domain proceeding may file an affidavit appraising the damages and that the court upon the filing of such affidavit may enter an order that, upon payment of double such amount, the plaintiff may take immediate possession is unconstitutional, since it does not provide for an impartial tribunal to fix the damages and violates requirement that compensation must be paid before the taking. Yellowstone Pipe Line Co. v. Drummond, 77 Idaho 36, 287 P.2d 288 (1955). Improvements Prior to Taking.

Where a corporation invested with the power of eminent domain enters upon land without the consent of the owner, express or implied, and places improvements thereon, and subsequently institutes proceedings to condemn the same land, the common-law rule that a structure erected by a tort-feasor becomes a part of the land does not apply and the owner is not entitled to the value of the improvements thus wrongfully erected. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265, appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 2d 1372 (1916).

Injunction.

Condemnor, proceeding under this statute, may be enjoined from possession upon refusal to pay award ( Weiser Valley Land & Water Co. v. Ryan , 190 F. 425, 9th Cir. 1911) and in other cases where ends of justice require it. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 236, 158 P. 792, subsequent appeal, 29 Idaho 421, 160 P. 265 (1916), appeal dismissed, 244 U.S. 651, 37 S. Ct. 744, 61 L. Ed. 1372 (1917). See also Ryan v. Weiser Valley Land & Water Co., 20 Idaho 288, 118 P. 769 (1911).

Interest Allowed Upon Order for Possession.

The condemnee should be allowed interest upon the compensation and damages awarded from the time the condemnor either takes possession, or becomes entitled to possession, of the property. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957).

Where the order for possession in a condemnation proceeding was filed March 29, 1955, interest would be allowed at the legal rate from such date rather than from the date of May 15, 1951, which was the date of the institution of proceedings, plaintiff being unable to take possession of the property until such first mentioned date in 1955 due to litigation on part of the owners but interest would only be recoverable from the time that the order for possession was filed. Independent Sch. Dist. v. C.B. Lauch Constr. Co., 78 Idaho 485, 305 P.2d 1077 (1957).

Judgment.

Upon award of commissioners in condemnation proceedings, if amount awarded is paid by plaintiff and accepted by defendant, a decree confirming such action of the parties will be in substance a decree by consent or confession and will come as fully within purview of the statute as if the case had gone to trial before a jury and judgment and decree had been entered on the verdict. Pyle v. Woods, 18 Idaho 674, 111 P. 746 (1910).

Jurisdiction.

Under statute granting power of eminent domain, district court, or judge thereof, has jurisdiction to determine right or necessity for exercise of that right; it may pass on the competency of testimony offered and order appointment of commissioners; and its action may be reviewed on an appeal, but cannot be reviewed on certiorari. Coeur d’Alene Mining Co. v. Woods, 15 Idaho 26, 96 P. 210 (1908).

Use, necessity, and all the requirements of§ 7-704 should be tried and found by court before commissioners are appointed. Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909); Pyle v. Woods, 18 Idaho 674, 111 P. 746 (1910). This section confers all the jurisdiction necessary to a hearing and assessment of damages; and the means necessary to carry the proceedings into effect are given by§ 1-1622. Pyle v. Woods, 18 Idaho 674, 111 P. 746 (1910).

Possession Upon Deposit in Court.

If the condemnor offers to pay the amount found due by the commissioners and in case of defendant’s refusal to receive the same, deposits the money with the clerk of the district court to abide the result of the action, the plaintiff may, by decree of the court then enter upon and take possession of and use, property mentioned in the complaint. Pacific N.W. Pipeline Corp. v. Waller, 80 Idaho 105, 326 P.2d 388 (1958).

Right to Jury.

Right of trial by jury in proceedings for condemnation of property to public use does not exist as a constitutional right unless the constitution itself contains a specific grant and guaranty of such right. Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909).

Primarily right of trial by jury is accorded equally to both parties to action; as a substitute therefor there is accorded to plaintiff the right of having commissioners appointed to assess the damages that will be sustained by defendant, and if plaintiff pays such award and defendant accepts same, right of trial by jury is ended; if, on the other hand, plaintiff pays the award and defendant refuses to accept it, plaintiff may no longer demand a jury, but defendant may still demand a jury to assess the damages that he will sustain. Pyle v. Woods, 18 Idaho 674, 111 P. 746 (1910).

When the condemnor refuses to abide by the finding of the commissioners, he does not secure possession of the land before the damages have been ultimately determined and he is entitled to have his remedy prosecuted in a district court proceeding before a jury as in a civil action. Pacific N.W. Pipeline Corp. v. Waller, 80 Idaho 105, 326 P.2d 388 (1958).

After the commissioners have made an award, either party may refuse to be bound thereby, and the remedy of a jury trial is common to both parties. Pacific N.W. Pipeline Corp. v. Waller, 80 Idaho 105, 326 P.2d 388 (1958).

Service of Notice.

Service on March 31 for hearing April 10 was sufficient. Empire Mill Co. v. District Court, 27 Idaho 383, 149 P. 499, writ denied, 27 Idaho 400, 149 P. 505 (1915).

Stay of Proceedings.

Appeal may be taken from a final judgment in eminent domain proceeding, and such appeal does not stay rights of either party to proceed in district court or upon appeal as provided by law. McLean v. District Court, 24 Idaho 441, 134 P. 536 (1913). See also Thomas v. Boise City, 25 Idaho 522, 138 P. 1110 (1914).

Proceedings in condemnation proceedings may be stayed pending appeal from condemnation order upon appellant filing bond to indemnify for delay. Grangeville Hwy. Dist. v. Ailshie, 48 Idaho 592, 285 P. 481 (1929).

Taking Possession.

In an ordinary condemnation action, the condemnor is not entitled to possession of the premises until such time as a deposit in the amount fixed by appointed commissioners has been paid into court. Lobdell v. State ex rel. Bd. of Hwy. Dirs., 89 Idaho 559, 407 P.2d 135 (1965). This section confers all the jurisdiction necessary to a hearing and assessment of damages; and the means necessary to carry the proceedings into effect are given by§ 1-1622. Pyle v. Woods, 18 Idaho 674, 111 P. 746 (1910).

Possession Upon Deposit in Court.

If the condemnor offers to pay the amount found due by the commissioners and in case of defendant’s refusal to receive the same, deposits the money with the clerk of the district court to abide the result of the action, the plaintiff may, by decree of the court then enter upon and take possession of and use, property mentioned in the complaint. Pacific N.W. Pipeline Corp. v. Waller, 80 Idaho 105, 326 P.2d 388 (1958).

Right to Jury.

Right of trial by jury in proceedings for condemnation of property to public use does not exist as a constitutional right unless the constitution itself contains a specific grant and guaranty of such right. Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 100 P. 1046 (1909).

Primarily right of trial by jury is accorded equally to both parties to action; as a substitute therefor there is accorded to plaintiff the right of having commissioners appointed to assess the damages that will be sustained by defendant, and if plaintiff pays such award and defendant accepts same, right of trial by jury is ended; if, on the other hand, plaintiff pays the award and defendant refuses to accept it, plaintiff may no longer demand a jury, but defendant may still demand a jury to assess the damages that he will sustain. Pyle v. Woods, 18 Idaho 674, 111 P. 746 (1910).

When the condemnor refuses to abide by the finding of the commissioners, he does not secure possession of the land before the damages have been ultimately determined and he is entitled to have his remedy prosecuted in a district court proceeding before a jury as in a civil action. Pacific N.W. Pipeline Corp. v. Waller, 80 Idaho 105, 326 P.2d 388 (1958).

After the commissioners have made an award, either party may refuse to be bound thereby, and the remedy of a jury trial is common to both parties. Pacific N.W. Pipeline Corp. v. Waller, 80 Idaho 105, 326 P.2d 388 (1958).

Service of Notice.

Service on March 31 for hearing April 10 was sufficient. Empire Mill Co. v. District Court, 27 Idaho 383, 149 P. 499, writ denied, 27 Idaho 400, 149 P. 505 (1915).

Stay of Proceedings.

Appeal may be taken from a final judgment in eminent domain proceeding, and such appeal does not stay rights of either party to proceed in district court or upon appeal as provided by law. McLean v. District Court, 24 Idaho 441, 134 P. 536 (1913). See also Thomas v. Boise City, 25 Idaho 522, 138 P. 1110 (1914).

Proceedings in condemnation proceedings may be stayed pending appeal from condemnation order upon appellant filing bond to indemnify for delay. Grangeville Hwy. Dist. v. Ailshie, 48 Idaho 592, 285 P. 481 (1929).

Taking Possession.

Cited

In an ordinary condemnation action, the condemnor is not entitled to possession of the premises until such time as a deposit in the amount fixed by appointed commissioners has been paid into court. Lobdell v. State ex rel. Bd. of Hwy. Dirs., 89 Idaho 559, 407 P.2d 135 (1965). Cited Brown v. United States, 263 U.S. 78, 44 S. Ct. 92, 68 L. Ed. 171 (1923); Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 236, 158 P. 792 (1916); Bel v. Benewah County, 60 Idaho 791, 97 P.2d 397 (1939); Eagle Sewer Dist. v. Hormaechea, 109 Idaho 418, 707 P.2d 1057 (Ct. App. 1985).

Application of Section.

It would clearly be an abuse of discretion of trial court, under this statute, to refuse to allow defendant costs where plaintiff had procured appointment of commissioners and had a hearing, entailed all the costs incident to production of witnesses and attendance on the meeting of the commissioners, and then dismissed the action. Chicago, M. & St. P. Ry. v. Trueman, 18 Idaho 687, 112 P. 210 (1910).

In suit in condemnation, under the constitution and statutes of this state, costs of the proceeding and cost of appeal should be taxed against condemnor where the appeal has been prosecuted by party seeking condemnation. Rawson-Works Lumber Co. v. Richardson, 26 Idaho 37, 141 P. 74 (1914).

Costs are not allowed to successful defendants in proceeding instituted by government. United States v. Wade, 40 F.2d 745 (D. Idaho 1926).

Notwithstanding this section, the condemnor must pay just compensation for the property taken and all costs. Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722 (1931).

Attorney’s Fees.

An award of reasonable attorneys’ fees to the condemnee in an eminent domain proceeding is a matter for the trial court’s guided discretion and, as in other areas of the law, such award will be overturned only upon a showing of abuse; the condemnee’s costs may be awarded under Idaho R. Civ. P. 54(d)(1)(C) or 54(d)(1)(D). Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

Attorneys’ fees and costs are allowable, in eminent domain proceedings, under Idaho R. Civ. P. 54(d)(1); however, such fees and costs are not mandatory as within the definition of just compensation. Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

Attorneys’ fees and other expenses are not recoverable in a condemnation proceeding, except as authorized by statute. Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

In determining award of attorneys’ fees to a condemnee, the court should consider the following factors: whether the condemnor reasonably made a timely offer of settlement of at least 90 percent of the ultimate jury verdict and whether such offer was made within a reasonable period after the institution of the action; any controverting of the public use and necessity allegations; the outcome of any hearing thereon and any modification in the plans or design of the condemnor’s project resulting from the condemnee’s challenge; and whether the condemnee voluntarily granted possession of the property pending resolution of the just compensation issue. As to the amount of attorneys’ fees awardable, the criteria outlined in Idaho R. Civ. P. 54(e)(3) are appropriate in condemnation, as in all other civil cases; however, the court should not automatically adopt any contingent fee or contractual arrangement, but rather the fee awarded may be more or less than that provided in the lawyer-client contract. Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015). •Title 7»«Ch. 7»«§ 7-718»

Application of Section.

It would clearly be an abuse of discretion of trial court, under this statute, to refuse to allow defendant costs where plaintiff had procured appointment of commissioners and had a hearing, entailed all the costs incident to production of witnesses and attendance on the meeting of the commissioners, and then dismissed the action. Chicago, M. & St. P. Ry. v. Trueman, 18 Idaho 687, 112 P. 210 (1910).

In suit in condemnation, under the constitution and statutes of this state, costs of the proceeding and cost of appeal should be taxed against condemnor where the appeal has been prosecuted by party seeking condemnation. Rawson-Works Lumber Co. v. Richardson, 26 Idaho 37, 141 P. 74 (1914).

Costs are not allowed to successful defendants in proceeding instituted by government. United States v. Wade, 40 F.2d 745 (D. Idaho 1926).

Notwithstanding this section, the condemnor must pay just compensation for the property taken and all costs. Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722 (1931).

Attorney’s Fees.

An award of reasonable attorneys’ fees to the condemnee in an eminent domain proceeding is a matter for the trial court’s guided discretion and, as in other areas of the law, such award will be overturned only upon a showing of abuse; the condemnee’s costs may be awarded under Idaho R. Civ. P. 54(d)(1)(C) or 54(d)(1)(D). Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

Attorneys’ fees and costs are allowable, in eminent domain proceedings, under Idaho R. Civ. P. 54(d)(1); however, such fees and costs are not mandatory as within the definition of just compensation. Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

Attorneys’ fees and other expenses are not recoverable in a condemnation proceeding, except as authorized by statute. Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015).

In determining award of attorneys’ fees to a condemnee, the court should consider the following factors: whether the condemnor reasonably made a timely offer of settlement of at least 90 percent of the ultimate jury verdict and whether such offer was made within a reasonable period after the institution of the action; any controverting of the public use and necessity allegations; the outcome of any hearing thereon and any modification in the plans or design of the condemnor’s project resulting from the condemnee’s challenge; and whether the condemnee voluntarily granted possession of the property pending resolution of the just compensation issue. As to the amount of attorneys’ fees awardable, the criteria outlined in Idaho R. Civ. P. 54(e)(3) are appropriate in condemnation, as in all other civil cases; however, the court should not automatically adopt any contingent fee or contractual arrangement, but rather the fee awarded may be more or less than that provided in the lawyer-client contract. Ada County Hwy. Dist. ex rel. Fairbanks v. Acarrequi, 105 Idaho 873, 673 P.2d 1067 (1983), overruled on other grounds, State v. Grathol, — Idaho —, 343 P.3d 480 (2015). Landowners could not recover attorney fees incurred in defending a condemnation claim, because this section provides for the awarding of court costs, not attorney fees. Telford Lands LLC v. Cain, 154 Idaho 981, 303 P.3d 1237 (2013).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 869; R.S., R.C., & C.L., § 5228; C.S., § 7422; I.C.A.,§ 13-719, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho App. R. 2.

Cross References.

Creation and vacation of city streets; eminent domain,§ 50-311.

Amendments.

The 2009 amendment, by ch. 11, deleted “sections 50-1124 and 50-1125, in like manner and to the same extent as for any of the purposes mentioned in” preceding “section 7-701.”

Compiler’s Notes.

The reference to “this code” in the first sentence is to the Code of Civil Procedure, a division of the Idaho Code, consisting of Titles 1 through 13.

The practice part of the Code is now contained in the Idaho Rules of Civil Procedure.

Extraterritorial Powers.

City lacked extraterritorial eminent domain power to condemn easements located outside of its boundaries for the purpose of constructing electric transmission lines, because there was no express grant of extraterritorial eminent domain power in§ 7-701(11) or this section, indicating that the Idaho legislature did not grant, or intend to grant, such power in the general eminent domain statutes. Alliance v. City of Idaho Falls, 742 F.3d 1100 (9th Cir. 2013).

Amendments.

The 2006 amendment, by ch. 451, in the introductory paragraph, substituted “for the acquisition of real property” for “whereby the state of Idaho, or any board, agency or political subdivision thereof, or municipality therein, is seeking to acquire real property necessary for the construction, maintenance, alteration, and repair of freeways, expressways, highways, roads, streets, airports, and any necessary structures or appurtenances needed in connection therewith, or the construction and extension of culinary water systems, sewers and sewerage systems, including sewerage treatment facilities” and made stylistic changes.

Effective Dates.

Section 2 of S.L. 1975, ch. 141 declared an emergency. March 26, 1975.

Section 2 of S.L. 2006, ch. 451 declared an emergency. Approved April 14, 2006.

Authorized Use.

Where a water and sewer district sought to obtain temporary construction easements and permanent sewer easements across property owners’ land for the purpose of constructing a sewerage facility to transport sewage to a treatment plant, the district’s purpose was a public use within the meaning ofIdaho Const., Art. I, § 14, and was, therefore, an authorized use as contemplated by subdivision (2)(b) of this section for purposes of determining the sewer district’s entitlement to possession of the property pending trial. Payette Lakes Water & Sewer Dist. v. Hays, 103 Idaho 717, 653 P.2d 438 (1982).

Valuation in condemnation proceedings.

The Idaho transportation board negotiated in good faith for property condemned to facilitate the widening of a highway and the creation of an interchange. The valuation by the board was fair and did not have to take into account a possible increase in value due to a proposed extension of an unrelated road. Neither the order of condemnation nor the complaint proposed condemnation of any portion of the property at issue for the purpose of the extension. State DOT v. HJ Grathol, 153 Idaho 87, 278 P.3d 957 (2012).

Cross References.

Costs, Idaho Civil Procedure Rules 54(d)(1) through 54(d)(7).

Statute of limitations applicable to special proceedings of a civil nature,§ 5-240.

Am. Jur. 2d.

C.J.S.

ALR.

Commercial enterprise: change in name, location, composition, or structure of obligor commercial enterprise subsequent to execution of guarantee or surety agreement as affecting liability of guarantor or surety to the obligee. 69 A.L.R.3d 567.

Circumstances justifying grant or denial of petition to change adult’s name. 79 A.L.R.3d 562.

Cross References.

Contents of complaint in actions in district court, Idaho R. Civ. P. 7 through 9.

Proceedings to be in English language, Idaho R. Civ. P. 10(a)(3).

Statute of limitations applicable to special proceedings of a civil nature,§ 5-240.

Successive applications for orders, Idaho R. Civ. P. 11(a)(2).

Amendments.

The 2017 amendment, by ch. 191, designated the existing provisions of the section as subsection (1); rewrote subsection (1), which formerly read: “All applications for change of names must be made to the district court of the county where the person whose name is proposed to be changed resides, by petition, signed by such person; and if such person is under the age of eighteen (18) years, by one (1) of the parents, if living; or if both be dead, then by the guardian; and if there be no guardian, then by some near relative or friend. The petition must specify the place of birth and residence of such person, his or her present name, the name proposed, and reason for such change of name, and must, if the father of such person be not living, name, as far as known to the petitioner, the near relatives of such person, and their place of residence”; and added subsections (2) and (3). •Title 7»«Ch. 8»«§ 7-802»

Cross References.

Contents of complaint in actions in district court, Idaho R. Civ. P. 7 through 9.

Proceedings to be in English language, Idaho R. Civ. P. 10(a)(3).

Statute of limitations applicable to special proceedings of a civil nature,§ 5-240.

Successive applications for orders, Idaho R. Civ. P. 11(a)(2).

Amendments.

Compiler’s Notes.

The 2017 amendment, by ch. 191, designated the existing provisions of the section as subsection (1); rewrote subsection (1), which formerly read: “All applications for change of names must be made to the district court of the county where the person whose name is proposed to be changed resides, by petition, signed by such person; and if such person is under the age of eighteen (18) years, by one (1) of the parents, if living; or if both be dead, then by the guardian; and if there be no guardian, then by some near relative or friend. The petition must specify the place of birth and residence of such person, his or her present name, the name proposed, and reason for such change of name, and must, if the father of such person be not living, name, as far as known to the petitioner, the near relatives of such person, and their place of residence”; and added subsections (2) and (3). Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

History.

C.C.P. 1881, § 873; R.S., R.C., & C.L., § 5247; C.S., § 7426; I.C.A.,§ 13-803; am. 1945, ch. 32, § 1, p. 39; am. 2007, ch. 90, § 1, p. 246; am. 2010, ch. 250, § 1, p. 640; am. 2017, ch. 191, § 2, p. 439.

Amendments.

The 2007 amendment, by ch. 90, inserted “(3)” in the first sentence.

The 2010 amendment, by ch. 250, rewrote the notice of hearing, removing reference to certain personal identifying information.

The 2017 amendment, by ch. 191, added “and notice” at the end of the section heading; designated the existing provisions of the section as subsection (1) and rewrote the introductory paragraph, which formerly read: “A notice of hearing of such petition signed by the clerk and issued under the seal of the court, must be published for four (4) successive weeks in some newspaper printed in the county, if a newspaper be printed therein, but if no newspaper be printed in the county a copy of such notice of hearing must be posted at three (3) of the most public places in the county for a like period, and proofs must be made of such publication or posting before the petition can be considered. The notice of hearing may be substantially in the following form”; and added subsections (2) and (3).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

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

Idaho Law Review.

Idaho Law Review. — Way out West: A Comment Surveying Idaho State’s Legal Protection of Transgender and Gender Non-Conforming Individuals, Comment. 49 Idaho L. Rev. 587 (2013).

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order the supreme court promulgated October 24, 1974, effective January 1, 1975.

Legitimacy of Child.

The changing of a child’s name pursuant to§ 7-801 et seq. from her father’s surname to her mother’s surname does not have any effect upon the child’s legitimacy. In re Toelkes, 97 Idaho 406, 545 P.2d 1012 (1976).

Idaho Law Review.

Idaho Law Review. — Way out West: A Comment Surveying Idaho State’s Legal Protection of Transgender and Gender Non-Conforming Individuals, Comment. 49 Idaho L. Rev. 587 (2013).

Cross References.

Central sexual offender registry,§ 18-8305.

Prior Laws.

Former chapter 9 which comprised C.C.P. 1881,§§ 875-884; R.S., R.C., & C.L.,§§ 5260-5269; C.S.,§§ 7428-7437; I.C.A.,§§ 13-901 — 13-910, was repealed by S.L. 1975, ch. 117, § 1.

Compiler’s Notes.

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

The words “this act” refer to S.L. 1975, ch. 117, § 2, compiled as§§ 7-901 to 7-922.

Agreement Enforced.

Because a dispute over the amount an insurer was obliged to pay fell within the scope of an arbitration clause in an insurance policy which called for an arbitrator to decide whether medical expenses were reasonable and necessary, the parties had agreed to arbitrate, and the insurer’s motion to compel arbitration should have been granted. Mason v. State Farm Mut. Auto. Ins. Co., 145 Idaho 197, 177 P.3d 944 (2007).

Application of Chapter.

Where the record contained no showing that the arbitration was intended to, or did in fact, involve spiritual matters rather than secular disputes concerning the farm lease and other commercial arrangements, the mere fact that the arbitrators were members of the designated church did not, without more, place the arbitration proceedings beyond the broad subject matter scope of this chapter; thus, the arbitrators’ decision was entitled to court confirmation under§ 7-911. Orr v. Orr, 108 Idaho 874, 702 P.2d 912 (Ct. App. 1985). •Title 7»«Ch. 9»•§ 7-901»

Prior Laws.

Former chapter 9 which comprised C.C.P. 1881,§§ 875-884; R.S., R.C., & C.L.,§§ 5260-5269; C.S.,§§ 7428-7437; I.C.A.,§§ 13-901 — 13-910, was repealed by S.L. 1975, ch. 117, § 1.

Compiler’s Notes.

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

The words “this act” refer to S.L. 1975, ch. 117, § 2, compiled as§§ 7-901 to 7-922.

Agreement Enforced.

Because a dispute over the amount an insurer was obliged to pay fell within the scope of an arbitration clause in an insurance policy which called for an arbitrator to decide whether medical expenses were reasonable and necessary, the parties had agreed to arbitrate, and the insurer’s motion to compel arbitration should have been granted. Mason v. State Farm Mut. Auto. Ins. Co., 145 Idaho 197, 177 P.3d 944 (2007).

Application of Chapter.

Where the record contained no showing that the arbitration was intended to, or did in fact, involve spiritual matters rather than secular disputes concerning the farm lease and other commercial arrangements, the mere fact that the arbitrators were members of the designated church did not, without more, place the arbitration proceedings beyond the broad subject matter scope of this chapter; thus, the arbitrators’ decision was entitled to court confirmation under§ 7-911. Orr v. Orr, 108 Idaho 874, 702 P.2d 912 (Ct. App. 1985). Arbitration agreement in insured’s short-term health insurance policy was not unenforceable as unconscionable because there was no showing that the insured had limited ability to investigate other health insurance contracts in order to avoid those with arbitration clauses; the insured had purchased a similar contract in the past and, therefore, could not claim lack of notice of the policy’s arbitration provision; the cost of arbitrating was not unreasonable given the insured’s potential recovery because by right she could have recovered much of her costs if she prevailed in arbitration. Lovey v. Regence Blueshield of Idaho, 139 Idaho 37, 72 P.3d 877 (2003).

An agreement to arbitrate was unenforceable where large arbitration costs precluded the insured from effectively vindicating his federal statutory rights in the arbitral forum; the arbitration provision, which required each party to bear the cost of the arbitrator, plus the costs of witnesses and attorney fees, was unconscionable based upon the relatively small amount claimed under the policy by the insured. Murphy v. Mid-West Nat’l Life Ins. Co., 139 Idaho 330, 78 P.3d 766 (2003).

Review by a district court of an arbitration award is restricted to a determination of whether any grounds for relief stated in this chapter exists. Reece v. U. S. Bancorp Piper Jaffray, Inc., 139 Idaho 487, 80 P.3d 1088 (2003).

Idaho Uniform Arbitration Act,§ 7-901 et seq., rather than the Federal Arbitration Act (FAA), 9 U.S.C.S. § 1 et seq., governed the parties’ asset purchase agreement and employment agreements in arbitration proceedings pursuant to the clear language in the agreements stating that the agreement shall be construed in accordance with and governed for all purposes by the laws of the state of Idaho applicable to contracts executed and wholly-performed within the state. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

Arbitration panel did not have authority to award attorney fees pursuant to American Arbitration Association (AAA) rules incorporated into an asset purchase agreement and Idaho statutory law because the agreement clearly stated that AAA rules governed procedural rather than substantive issues. Idaho law, which included the Idaho Uniform Arbitration Act,§ 7-901 et seq., applied to interpretation of the parties’ contract terms under the agreement and the parties contracted for a zero dollar amount or claim with respect to an award of attorney’s fees. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

Although time limitations are imposed for vacating, modifying, or correcting an award, no limitations exist in the Idaho Uniform Arbitration Act,§ 7-901 et seq., which restrict the time as to when an application for confirmation of an arbitration award may be filed. Once a court enters an order confirming, modifying or correcting an award, a judgment or decree shall be entered and enforced as any other judgment. S.D. Sanders, Inc. v. Hazard (In re Hazard), 543 B.R. 650 (Bankr. D. Idaho 2015).

Attorney Fees.

Claims Against Counties.

Attorney fees were not awarded where the party did little more than ask the appellate court to re-evaluate the well-reasoned opinion of the district court, arguing that the Idaho Uniform Arbitration Act (UAA),§ 7-901 et seq., did not apply to his employment agreement. That argument ignored the language of§ 7-901 that the UAA applied to employment contracts where the parties had so agreed and the parties had not so agreed in the case at bar. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005). Claims Against Counties.

The legislature, in passing the Uniform Arbitration Act, did not exempt governmental entities from its operation; thus, it appears that in Idaho there exists no statutory prohibition against a county’s submission of a claim to arbitration but, rather, a strong public policy favors arbitration of disputes. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

The arbitration power of a county does not conflict with the right of a taxpayer to appeal claims paid by a county, because a taxpayer has that right only if a claim is allowed. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

A board of commissioners is forbidden to pay a claim asserted against it until certain procedures are followed; these procedures merely require a claim to be submitted to the commission before an aggrieved party can take further action and there is no reason why an aggrieved party cannot then submit his claim to arbitration rather than commencing a district court action. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

Jurisdiction.

In action to enforce an arbitration agreement, district court’s decision to decline jurisdiction on the ground that another action was pending in California was reasonable where none of the parties resided in Idaho and having a hand in the application of Idaho laws applicable to the arbitration was a negligible consideration for the court. Diet Ctr., Inc. v. Basford, 124 Idaho 20, 855 P.2d 481 (Ct. App. 1993).

Parties.

Compelling a nonparty to a contract containing an arbitration clause to submit to arbitration because the nonparty is an agent of one of the parties to the contract would be inconsistent with this section. Clearwater REI, LLC v. Boling, 155 Idaho 954, 318 P.3d 944 (2014).

Am. Jur. 2d.

C.J.S.

ALR.

Appealability of judgment confirming or setting aside arbitration award. 7 A.L.R.3d 608.

Availability and scope of declaratory judgment actions in determining rights of parties, or powers and exercise thereof by arbitrators, under arbitration agreements. 12 A.L.R.3d 854. Validity and effect, and remedy in respect, of contractual stipulation to submit disputes to arbitration in another jurisdiction. 12 A.L.R.3d 892.

Validity and construction of provisions for arbitration of disputes as to alimony or support payments, or child visitation or custody matters. 38 A.L.R.5th 69.

Municipal corporation’s power to submit to arbitration. 20 A.L.R.3d 569.

Validity and enforceability of provision for binding arbitration, and waiver thereof. 24 A.L.R.3d 1325.

Delay in asserting contractual right to arbitration as precluding enforcement thereof. 25 A.L.R.3d 1171.

Waiver, or estoppel to assert, substantive right or right to arbitrate as question for court or arbitrator. 26 A.L.R.3d 604.

Breach or repudiation of contract as affecting right to enforce arbitration clause therein. 32 A.L.R.3d 377.

Participation in arbitration proceedings as waiver of objections to arbitrability. 33 A.L.R.3d 1242.

Comment note on determination or validity of arbitration award under requirement that arbitrators shall pass on all matters submitted. 36 A.L.R.3d 649.

Power of arbitrator to correct, or power of court to correct or resubmit, nonlabor award because of incompleteness or failure to pass on all matters submitted. 36 A.L.R.3d 939.

Comment note on power of court to resubmit matter to arbitrators for correction or clarification, because of ambiguity or error in, or omission from, arbitration award. 37 A.L.R.3d 200.

Setting aside arbitration award on ground of interest or bias of arbitrators. 56 A.L.R.3d 697.

Construction and defect of contractual or statutory provisions fixing time within which arbitration award must be made. 56 A.L.R.3d 815.

Liability of parties to arbitration for costs, fees, and expenses. 57 A.L.R.3d 633.

State’s court’s power to consolidate arbitration proceedings. 64 A.L.R.3d 528.

Filing of mechanics’ lien or proceeding for its enforcement as affecting right to arbitration. 73 A.L.R.3d 1066.

Refusal of arbitrators to receive evidence, or to permit briefs or arguments, on particular issues as grounds for relief from award. 75 A.L.R.3d 132.

Admissibility of affidavit or testimony of arbitrator to impeach or explain award. 80 A.L.R.3d 155.

Modern status of rules respecting concurrence of all arbitrators as condition of binding award under private agreement not specifying unanimity. 83 A.L.R.3d 996.

Arbitrator’s power to award putative damages. 83 A.L.R.3d 1037.

Laches or statute of limitations as bar to arbitration under agreement. 94 A.L.R.3d 533.

Appealability of state court’s order or decree compelling or refusing to compel arbitration. 6 A.L.R.4th 652.

Claim of fraud in inducement of contract as subject to compulsory arbitration clause contain in contract. 11 A.L.R.4th 774.

Arbitration of medical malpractice claims. 24 A.L.R.5th 1.

Validity and effect under state law of arbitration agreement provision for alternative method of appointment of arbitrator where one party fails or refuses to follow appointment procedure specified in agreement. 75 A.L.R.5th 595. Enforcement of arbitration agreement contained in construction contract by or against nonsignatory. 100 A.L.R.5th 481.

Validity and effect under Federal Arbitration Act (9 U.S.C.A. §§ 1 et seq.) of arbitration agreement provision for alternative method of appointment of arbitrator where one party fails or refuses to follow appointment procedure specified in agreement. 159 A.L.R. Fed. 1.

Access to Courts.

Application of the Uniform Arbitration Act did not violate plaintiff’s right of access to the courts by precluding a meaningful review of the arbitrators’ decision, as the plaintiff challenged the validity of the clause in her insurance contract that permitted the insurer to require binding arbitration by opposing its motion in district court to compel arbitration, but failed to preserve this option. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Arbitrability.

The question of arbitrability is a question of law properly for determination by the court. A court reviewing an arbitration clause will order arbitration unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts are to be resolved in favor of coverage. Storey Constr., Inc. v. Hanks, 148 Idaho 401, 224 P.3d 468 (2009).

Due Process.

Lack of a record and the arbitrators’ failure to prepare written findings of fact and conclusions of law in arbitration under insurance contract did not deny plaintiff due process. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Judicial Review.

Where an examination of the record of the district court’s hearing, at which the court found that a valid arbitration agreement existed, did not show that the court unduly restricted the appellant’s right to present contrary evidence, nor that the court’s finding of a valid agreement to arbitrate was clearly erroneous, the supreme court would not disturb the district court’s finding. Loomis, Inc. v. Cudahy, 104 Idaho 106, 656 P.2d 1359 (1982).

An order granting a motion to stay arbitration is appealable, as a matter of right, under Idaho App. R. 11(a)(8). Clearwater REI, LLC v. Boling, 155 Idaho 954, 318 P.3d 944 (2014).

Limitation of Court’s Inquiry.

When a district court entertains cross-motions to compel or stay arbitration under this section, the court’s inquiry must be limited in scope to whether there is a valid agreement to arbitrate or not; it would be inappropriate for the court to review the merits of the dispute as such would in many instances emasculate the benefits of arbitration. Loomis, Inc. v. Cudahy, 104 Idaho 106, 656 P.2d 1359 (1982).

ALR.

Application of equitable estoppel against nonsignatory to compel arbitration under federal law. 43 A.L.R. Fed. 2d 275.

Appointment Appropriate.

In an insured’s suit against an insurer for payment for medical treatment, a trial court erred in concluding that, based on a change in the American Arbitration Association’s policy regarding appointment of an arbitrator, the entire arbitration agreement between the parties failed. There was no reason why the arbitration could not proceed with a different arbitrator, and the case was remanded for the appointment of an arbitrator pursuant to this section. Deeds v. Regence Blueshield of Idaho, 143 Idaho 210, 141 P.3d 1079 (2006).

Compiler’s Notes.

The words “this act” refer to S.L. 1975, ch. 117, § 2, compiled as§§ 7-901 to 7-922.

Attendance.

To vacate an award under§ 7-912(a)(4), a party must demonstrate that the arbitrator was shown “sufficient cause” for postponement, and, it is not “sufficient cause” to merely be unable to attend a hearing when given adequate notice. Loomis, Inc. v. Cudahy, 104 Idaho 106, 656 P.2d 1359 (1982).

Where a party waited until the day before a scheduled arbitration hearing to formally notify the arbitrator that she would be unable to attend the hearing due to alleged personal problems, even though she had been aware of the problems for at least three weeks, the arbitrator was not shown “sufficient cause” for postponement under§ 7-912(a)(4) and the arbitrator’s findings would not be vacated. Loomis, Inc. v. Cudahy, 104 Idaho 106, 656 P.2d 1359 (1982).

Due Process.

Due process does not necessarily require judicial action, but may be satisfied by fair arbitration proceedings. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Attendance.

To vacate an award under§ 7-912(a)(4), a party must demonstrate that the arbitrator was shown “sufficient cause” for postponement, and, it is not “sufficient cause” to merely be unable to attend a hearing when given adequate notice. Loomis, Inc. v. Cudahy, 104 Idaho 106, 656 P.2d 1359 (1982).

Where a party waited until the day before a scheduled arbitration hearing to formally notify the arbitrator that she would be unable to attend the hearing due to alleged personal problems, even though she had been aware of the problems for at least three weeks, the arbitrator was not shown “sufficient cause” for postponement under§ 7-912(a)(4) and the arbitrator’s findings would not be vacated. Loomis, Inc. v. Cudahy, 104 Idaho 106, 656 P.2d 1359 (1982).

Due Process.

Due process does not necessarily require judicial action, but may be satisfied by fair arbitration proceedings. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

ALR.

§ 7-906. Representation by attorney.

A party has the right to be represented by an attorney at any proceeding or hearing under this act. A waiver thereof prior to the proceeding or hearing is ineffective.

History.

I.C.,§ 7-906, as added by 1975, ch. 117, § 2, p. 240.

Compiler’s Notes.

The words “this act” refer to S.L. 1975, ch. 117, § 2, compiled as§§ 7-901 to 7-922.

ALR.

ALR. — Discovery in federal arbitration proceedings under discovery provision of Federal Arbitration Act (FAA), 9 USC § 7, and Federal Rules of Civil Procedure, as permitted by Fed. R. Civ. P. 81(a)(6)(B). 45 A.L.R. Fed. 2d 51.

No Interest on Award.

An arbitrator’s award is not self-enforcing; such an award requires the imprimatur of a court to be enforced. The award becomes enforceable when a court enters judgment on the award; thus, the arbitrator’s award is not a judgment of a tribunal for the purpose of applying the interest rate applicable to judgments under§ 28-22-104. Bingham County Comm’n v. Interstate Elec. Co., 108 Idaho 181, 697 P.2d 1195 (Ct. App. 1985).

Written Findings and Conclusions.

This section does not require written findings of fact or conclusions of law. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Decisions Under Prior Law

Time for Making, Extension.

As a general rule, an award not made within time limited in agreement invalidates it, yet where one of the parties participates in proceedings without objection it will constitute waiver and have the effect of extending the time in which award can be made for at least a reasonable time after hearings began. Rexburg Inv. Co. v. Dahle & Eccles Constr. Co., 36 Idaho 552, 211 P. 552 (1922).

Attorney Fees.

District court properly vacated arbitration panel’s award of attorney fees on an earnings holdback claim in an asset purchase agreement because the agreement required that the parties were to bear their own costs and fees of arbitration, including specifically attorney fees. The panel’s award of attorney fees on the holdback claim contravened that express language and was, therefore, beyond the scope of the arbitrators’ authority. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

District court sufficiently referenced the key language of this section and its supporting case law to make application of the statute an issue properly before the appellate court on appeal when it held that an award of attorney fees was not within the arbitration panel’s power to award absent a contractual provision and that there was a contractual provision and it provided just the opposite. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

Federal Arbitration Act (FAA), 9 U.S.C.S. § 1 et seq., is not intended to prevent enforcement of agreements to arbitrate under terms different than those specified in the FAA; thus, the FAA did not trump application of this section regarding the award of attorney fees. Even if the FAA was applicable, it required enforcement of the parties’ contract terms and the parties had expressly agreed that attorney fees would not be awarded. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

Attorney fees can be awarded in an arbitration proceeding only if provided for in the parties’ agreement to arbitrate. Barbee v. WMA Securities, Inc., 143 Idaho 391, 146 P.3d 657 (2006).

Authority of Arbitrator.

This section on its face militates against the power of an arbitrator to award attorney fees to one of the parties absent a contractual agreement to do so; accordingly, where no such agreement existed in the contract of the parties, it was beyond the power of the arbitrator to award such fees. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983). •Title 7»«Ch. 9»«§ 7-910»

Attorney Fees.

District court properly vacated arbitration panel’s award of attorney fees on an earnings holdback claim in an asset purchase agreement because the agreement required that the parties were to bear their own costs and fees of arbitration, including specifically attorney fees. The panel’s award of attorney fees on the holdback claim contravened that express language and was, therefore, beyond the scope of the arbitrators’ authority. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

District court sufficiently referenced the key language of this section and its supporting case law to make application of the statute an issue properly before the appellate court on appeal when it held that an award of attorney fees was not within the arbitration panel’s power to award absent a contractual provision and that there was a contractual provision and it provided just the opposite. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

Federal Arbitration Act (FAA), 9 U.S.C.S. § 1 et seq., is not intended to prevent enforcement of agreements to arbitrate under terms different than those specified in the FAA; thus, the FAA did not trump application of this section regarding the award of attorney fees. Even if the FAA was applicable, it required enforcement of the parties’ contract terms and the parties had expressly agreed that attorney fees would not be awarded. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

Attorney fees can be awarded in an arbitration proceeding only if provided for in the parties’ agreement to arbitrate. Barbee v. WMA Securities, Inc., 143 Idaho 391, 146 P.3d 657 (2006).

Authority of Arbitrator.

This section on its face militates against the power of an arbitrator to award attorney fees to one of the parties absent a contractual agreement to do so; accordingly, where no such agreement existed in the contract of the parties, it was beyond the power of the arbitrator to award such fees. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983). Absent agreement to the contrary, an arbitrator has authority and jurisdiction to award prejudgment interest. Schilling v. Allstate Ins. Co., 132 Idaho 927, 980 P.2d 1014 (1999), overruled on other grounds, Greenough v. Farm Bureau Mut. Ins. Co., 142 Idaho 589, 130 P.3d 1127 (2006) and Cranney v. Mutual of Enumclaw Ins. Co., 145 Idaho 6, 175 P.3d 168 (2007).

Arbitrator had authority under this section to award prejudgment interest since, in his first award, the arbitrator recognized that he had the authority and jurisdiction to award prejudgment interest and he recognized the insurer’s argument that the compensatory damages award may be subject to subrogation for workers’ compensation benefits, and the arbitrator properly calculated the maximum allowed by the contract without taking into consideration the workers’ compensation claim or rights to subrogation. Am. Foreign Ins. Co. v. Reichert, 140 Idaho 394, 94 P.3d 699 (2004).

Due Process.

If a party wishes to take the precaution of preparing a record, it is not unreasonable to require the party to temporarily bear the cost. As in the judicial system, these costs may ultimately be awarded to the prevailing party; thus, the initial imposition of this cost upon one party is not sufficient to constitute a denial of due process. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Prejudgment Interest.

Wolfe v. Farm Bureau Insurance Co. , 128 Idaho 398, 913 P.2d 1168 (1996), and its progeny, are overruled insofar as they hold that this section either authorizes arbitrators to award prejudgment interest or requires prejudgment interest to be submitted to arbitrators along with other issues. This section has absolutely nothing to do with prejudgment interest. Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015).

Recovery of Costs.

Insured could not recover costs and prejudgment interest incurred during arbitration in his motion for confirmation of the arbitration award or in his breach of insurance contract action. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015).

Limitation set forth in this section did not limit a district court’s authority to award attorney fees in proceedings to confirm an arbitration award given the very limited scope of challenges to an arbitration award. Driver v. SI Corp., 139 Idaho 423, 80 P.3d 1024 (2003).

Appeal.

Because motion to confirm an arbitrator’s award was filed, and granted, under this section, it was appealable as a matter of right under Idaho App. R. 11(a)(8) and subsection (a)(3) of§ 7-919. Harrison v. Certain Underwriters at Lloyd’s, 149 Idaho 201, 233 P.3d 132 (2010).

Application of Section.

Where the record contained no showing that the arbitration was intended to, or did in fact, involve spiritual matters rather than secular disputes concerning the farm lease and other commercial arrangements, the mere fact that the arbitrators were members of a designated church did not, without more, place the arbitration proceedings beyond the broad subject matter scope of this chapter; thus, the arbitrators, decision was entitled to court confirmation under this section. Orr v. Orr, 108 Idaho 874, 702 P.2d 912 (Ct. App. 1985).

Insurer’s payment in full of the arbitration award did not preclude insured from seeking confirmation of the award; confirmation request after payment of award did not create a moot question between insured and insurer and did not divest jurisdiction from court to confirm award. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015).

Although time limitations are imposed for vacating, modifying, or correcting an award, no limitations exist in the Idaho Uniform Arbitration Act,§ 7-901 et seq., which restrict the time as to when an application for confirmation of an arbitration award may be filed, and district court had jurisdiction to confirm insured’s arbitration award. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015).

An application seeking the confirmation of an arbitration award is not an action in court to recover attorney fees pursuant to§ 41-1839. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015). •Title 7»«Ch. 9»«§ 7-911»

Appeal.

Because motion to confirm an arbitrator’s award was filed, and granted, under this section, it was appealable as a matter of right under Idaho App. R. 11(a)(8) and subsection (a)(3) of§ 7-919. Harrison v. Certain Underwriters at Lloyd’s, 149 Idaho 201, 233 P.3d 132 (2010).

Application of Section.

Where the record contained no showing that the arbitration was intended to, or did in fact, involve spiritual matters rather than secular disputes concerning the farm lease and other commercial arrangements, the mere fact that the arbitrators were members of a designated church did not, without more, place the arbitration proceedings beyond the broad subject matter scope of this chapter; thus, the arbitrators, decision was entitled to court confirmation under this section. Orr v. Orr, 108 Idaho 874, 702 P.2d 912 (Ct. App. 1985).

Insurer’s payment in full of the arbitration award did not preclude insured from seeking confirmation of the award; confirmation request after payment of award did not create a moot question between insured and insurer and did not divest jurisdiction from court to confirm award. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015).

Although time limitations are imposed for vacating, modifying, or correcting an award, no limitations exist in the Idaho Uniform Arbitration Act,§ 7-901 et seq., which restrict the time as to when an application for confirmation of an arbitration award may be filed, and district court had jurisdiction to confirm insured’s arbitration award. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015).

An application seeking the confirmation of an arbitration award is not an action in court to recover attorney fees pursuant to§ 41-1839. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015). Because no timely proceedings had been brought to vacate, modify, or correct the arbitration award, the district court was required to enter an order confirming it, even though all sums owing under the award had been paid. Storey Constr., Inc. v. Hanks, 148 Idaho 401, 224 P.3d 468 (2009).

Although time limitations are imposed for vacating, modifying, or correcting an award, no limitations exist in the Idaho Uniform Arbitration Act,§ 7-901 et seq., which restrict the time as to when an application for confirmation of an arbitration award may be filed. Once a court enters an order confirming, modifying or correcting an award, a judgment or decree shall be entered and enforced as any other judgment. S.D. Sanders, Inc. v. Hazard (In re Hazard), 543 B.R. 650 (Bankr. D. Idaho 2015).

Arbitration.

Once a judgment is entered by the court after an arbitration proceeding, that judgment is entitled to be treated in all respects as any other judgment; therefore, where adjudicatory procedures were present in the arbitration proceeding, the parties were given notice, they were able to formulate the issues of law and fact in their memos to the arbitrator, they had the right to present evidence and legal arguments, and most importantly, the arbitration matter was deemed to be a final resolution between the parties, and where the record indicated the nature of the claims made by the parties, as well as the findings and conclusions, the judgment entered reflected the ultimate award entered by the arbitrator after the respective awards to parties were offset, and there had been a final judgment entered from which the courts could determine the applicability of the bar of collateral estoppel. Western Indus. & Envtl. Servs., Inc. v. Kaldveer Assocs., 126 Idaho 541, 887 P.2d 1048 (1994).

Judgment entered against plaintiff based on the arbitration award was a final judgment on the merits for the purposes of a collateral estoppel analysis, and the elements of collateral estoppel had been met. Thus, the district court was correct in granting summary judgment on the basis of issue preclusion. Western Indus. & Envtl. Servs., Inc. v. Kaldveer Assocs., 126 Idaho 541, 887 P.2d 1048 (1994).

Architect’s decision in favor of the homeowner in a dispute with the contractor did not constitute an arbitration award for purposes of this section because the architect was not an arbitrator under the Idaho Uniform Arbitration Act; however, because the contractor failed to substantially comply with the demand for arbitration provision of the contract, the judgment was properly affirmed by the trial court because the architect’s award became final and binding for failure to timely pursue arbitration. Martel v. Bulotti, 138 Idaho 451, 65 P.3d 192 (2003).

No Interest on Award.

An arbitrator’s award is not self-enforcing; such an award requires the imprimatur of a court to be enforced. The award becomes enforceable when a court enters judgment on the award; thus, the arbitrator’s award is not a judgment of a tribunal for the purpose of applying the interest rate applicable to judgments under§ 28-22-104(2). Bingham County Comm’n v. Interstate Elec. Co., 108 Idaho 181, 697 P.2d 1195 (Ct. App. 1985).

Compiler’s Notes.

The bracketed colon in the introductory paragraph in subsection (a) was inserted by the compiler.

Access to Courts.

Application of the Uniform Arbitration Act,§ 7-901 et seq., did not violate the plaintiff’s right of access to the courts by precluding a meaningful review of the arbitrator’s decision, as the plaintiff challenged the validity of the clause in her insurance contract that permitted the insurer to require binding arbitration by opposing its motion in district court to compel arbitration, but failed to preserve this option. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Arbitrator Exceeding Powers.

Normally, courts construe the phrase “exceeded his [their] powers” in subdivision (a)(3) of this section to mean that the arbitrator considered an issue not submitted to him by the parties, or exceeded the bounds of the contract between the parties. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

Where the arbitrator, in a dispute between a county and an electrical contractor, made an award within the submission of the dispute of the parties, under a reasonable construction of the parties’ contract, he did not exceed his powers; thus, the award of the arbitrator must be confirmed. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

Because the arbitrator considered an issue that was clearly submitted to him and did not exceed any limitations contained in the parties’ agreement, he did not exceed his powers in concluding that the element of causation was missing and entering an award granting judgment to attorney in a professional malpractice claim. Chicoine v. Bignall, 127 Idaho 225, 899 P.2d 438 (1995).

Arbitrator’s first award, in which he simply awarded the maximum prejudgment interest amount, was reinstated since by modifying his award, the arbitrator took into consideration that the insurer may be entitled to subrogation rights from the workers’ compensation claim and, thus, exceeded the bounds of the contract between the parties. Am. Foreign Ins. Co. v. Reichert, 140 Idaho 394, 94 P.3d 699 (2004).

Attorney’s fees.

The mere fact that an arbitrator’s interpretation of a prior case is unsatisfactory to a party is not, of itself, a valid basis for appeal; thus, where the nonprevailing party presented no cogent argument as to why settled law did not apply, the appeal was pursued frivolously and without foundation and attorney, prevailing in professional malpractice case, was entitled to attorney fees. Chicoine v. Bignall, 127 Idaho 225, 899 P.2d 438 (1995). District court properly vacated arbitration panel’s award of attorney fees on an earnings holdback claim in an asset purchase agreement because the agreement required that the parties were to bear their own costs and fees of arbitration, including specifically attorney fees. The panel’s award of attorney fees on the holdback claim contravened that express language and was, therefore, beyond the scope of the arbitrators’ authority. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

Denial of the claimant’s request for an award of attorney fees was affirmed because, where the parties clearly submitted the issue of attorney fees for decision and the arbitrator determined the issue, the arbitrator did not exceed his powers; the appellate court would not review the propriety of the arbitrator’s factual determinations or the correctness of his determinations regarding applicable Idaho law. Mumford v. Miller, 143 Idaho 99, 137 P.3d 1021 (2006).

Due Process.

Lack of a record and the arbitrators’ failure to prepare written findings of fact and conclusions of law in arbitration under insurance contract did not deny plaintiff due process. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Estoppel.

Even where no arbitration agreement exists, a party belatedly objecting to binding arbitration is estopped. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Grounds.

An application filed under this section and 7-913 must identify the specific grounds upon which the court should vacate or modify the arbitration award within the 90-day time limit. Driver v. SI Corp., 139 Idaho 423, 80 P.3d 1024 (2003).

Insufficient Cause.

Magistrate did not err as a matter of law in entering a divorce decree containing property division provisions from an arbitration award without making specific findings of fact as to the character and value of the property divided and as to the fairness of the property division. Hughes v. Hughes, 123 Idaho 711, 851 P.2d 1007 (Ct. App. 1993).

Purchaser of a company had not filed a proper motion to vacate or modify an arbitration award on claims against an escrow account arising from the sale of a company within the 90-day time limit set forth in this section where it had not identified any specific ground listed in this section for vacating the award before the 90-day deadline had passed, but had identified the specific ground in its brief filed after the 90-day time period had ended. Driver v. SI Corp., 139 Idaho 423, 80 P.3d 1024 (2003).

Prejudgment Interest.

Arbitration panel properly awarded prejudgment interest but not costs on an earnings holdback claim because the asset purchase agreement required the parties to bear their own fees and costs of arbitration but, the agreement did not preclude the arbitration panel from making an award of prejudgment interest on any claim arising out of the contract. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

Scope of Review.

Judicial review of arbitrators’ decisions is much more limited than review of a trial and an inquiry by a district court is limited to an examination of the award to discern if any of the grounds for relief stated in this section exist. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

Judicial review of arbitrators’ decisions is much more limited than review of a trial. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Review of the arbitrators’ decision is governed and limited by this section. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Where the plaintiff, in district court, failed to present sufficient grounds to vacate the award against the uninsured motorist insurer under this section, the district judge properly confirmed the award. To grant de novo review of the arbitrators’ decision would annul the purpose of arbitration and accomplish indirectly what plaintiff was estopped to do directly. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Although a reviewing court might believe that some of the arbitrator’s rulings are erroneous, the decision is nevertheless binding unless one of the grounds for relief set forth in this section is present. Chicoine v. Bignall, 127 Idaho 225, 899 P.2d 438 (1995); Carroll v. MBNA Am. Bank, — Idaho —, 220 P.2d 1080 (2009).

Sufficient Cause.

To vacate an award under subdivision (a)(4) of this section, a party must demonstrate that the arbitrator was shown “sufficient cause” for postponement, and, it is not “sufficient cause” to merely be unable to attend a hearing when given adequate notice. Loomis, Inc. v. Cudahy, 104 Idaho 106, 656 P.2d 1359 (1982).

Where a party waited until the day before a scheduled arbitration hearing to formally notify the arbitrator that she would be unable to attend the hearing due to alleged personal problems, even though she had been aware of the problems for at least three weeks, the arbitrator was not shown “sufficient cause” for postponement under subdivision (a)(4) of this section and the arbitrator’s findings would not be vacated. Loomis, Inc. v. Cudahy, 104 Idaho 106, 656 P.2d 1359 (1982).

Time Limitation.

The time limitation of subsection (b) of this section is strictly construed and must be complied with before a court can vacate any award, even if the party seeking to vacate the award asserts a valid ground under the act; a court cannot extend this 90-day period. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

Because the time limit under subsection (b) of this section is strictly construed, failure to comply with that time limit raises an absolute bar to a motion to vacate. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

Where county did not raise the ground asserted for vacation of arbitration award until nearly 11 months after the arbitrator’s decision, the motion was untimely and should have been denied by the trial court. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

A timely motion must be made, even if the party seeking to set aside the arbitrators’ decision asserts a valid ground for doing so under this chapter; failure to comply with the 90-day time limit set forth in subsection (b) of this section raises an absolute bar to a motion to vacate under this section. Orr v. Orr, 108 Idaho 874, 702 P.2d 912 (Ct. App. 1985).

Judicial review of arbitrators’ decisions is much more limited than review of a trial and an inquiry by a district court is limited to an examination of the award to discern if any of the grounds for relief stated in this section exist. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

Judicial review of arbitrators’ decisions is much more limited than review of a trial. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Review of the arbitrators’ decision is governed and limited by this section. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Where the plaintiff, in district court, failed to present sufficient grounds to vacate the award against the uninsured motorist insurer under this section, the district judge properly confirmed the award. To grant de novo review of the arbitrators’ decision would annul the purpose of arbitration and accomplish indirectly what plaintiff was estopped to do directly. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Although a reviewing court might believe that some of the arbitrator’s rulings are erroneous, the decision is nevertheless binding unless one of the grounds for relief set forth in this section is present. Chicoine v. Bignall, 127 Idaho 225, 899 P.2d 438 (1995); Carroll v. MBNA Am. Bank, — Idaho —, 220 P.2d 1080 (2009).

Sufficient Cause.

To vacate an award under subdivision (a)(4) of this section, a party must demonstrate that the arbitrator was shown “sufficient cause” for postponement, and, it is not “sufficient cause” to merely be unable to attend a hearing when given adequate notice. Loomis, Inc. v. Cudahy, 104 Idaho 106, 656 P.2d 1359 (1982).

Where a party waited until the day before a scheduled arbitration hearing to formally notify the arbitrator that she would be unable to attend the hearing due to alleged personal problems, even though she had been aware of the problems for at least three weeks, the arbitrator was not shown “sufficient cause” for postponement under subdivision (a)(4) of this section and the arbitrator’s findings would not be vacated. Loomis, Inc. v. Cudahy, 104 Idaho 106, 656 P.2d 1359 (1982).

Time Limitation.

The time limitation of subsection (b) of this section is strictly construed and must be complied with before a court can vacate any award, even if the party seeking to vacate the award asserts a valid ground under the act; a court cannot extend this 90-day period. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

Because the time limit under subsection (b) of this section is strictly construed, failure to comply with that time limit raises an absolute bar to a motion to vacate. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

Where county did not raise the ground asserted for vacation of arbitration award until nearly 11 months after the arbitrator’s decision, the motion was untimely and should have been denied by the trial court. Bingham County Comm’n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983).

A timely motion must be made, even if the party seeking to set aside the arbitrators’ decision asserts a valid ground for doing so under this chapter; failure to comply with the 90-day time limit set forth in subsection (b) of this section raises an absolute bar to a motion to vacate under this section. Orr v. Orr, 108 Idaho 874, 702 P.2d 912 (Ct. App. 1985). No timely motion was ever made by the trucking company requesting relief from the arbitration award as subsection (b) of this section required a party seeking to vacate an arbitration award to file a motion in the district court within 90 days after delivery of a copy of the award; as a result, the trucking company did not preserve the issue for appeal. Pac. Alaska Seafoods, Inc. v. Vic Hoskins Trucking, Inc., 139 Idaho 472, 80 P.3d 1073 (2003).

Waiver.

The general rule is that participation in an arbitration hearing on the merits is a waiver of the right to raise the issue of arbitrability, unless preserved by a timely objection before a hearing on the merits. Cady v. Allstate Ins. Co., 113 Idaho 667, 747 P.2d 76 (Ct. App. 1987).

Attorney Fees.

Attorney fees can be awarded in an arbitration proceeding only if provided for in the parties’ agreement to arbitrate. Barbee v. WMA Securities, Inc., 143 Idaho 391, 146 P.3d 657 (2006).

Exceeding Scope of Agreement.

District court properly modified arbitration award where arbitrator exceeded the scope of the arbitration agreement by determining an insurance guarantee association’s liability. Modification preserved the issues of causation and damages which were properly considered under the arbitration agreement. Norton v. California Ins. Guar. Ass’n, 143 Idaho 922, 155 P.3d 1161 (2007).

Grounds.

An application filed under§ 7-912 and this section must identify the specific grounds upon which the court should vacate or modify the arbitration award within the 90-day time limit. Driver v. SI Corp., 139 Idaho 423, 80 P.3d 1024 (2003). •Title 7»«Ch. 9»«§ 7-913»

Attorney Fees.

Attorney fees can be awarded in an arbitration proceeding only if provided for in the parties’ agreement to arbitrate. Barbee v. WMA Securities, Inc., 143 Idaho 391, 146 P.3d 657 (2006).

Exceeding Scope of Agreement.

District court properly modified arbitration award where arbitrator exceeded the scope of the arbitration agreement by determining an insurance guarantee association’s liability. Modification preserved the issues of causation and damages which were properly considered under the arbitration agreement. Norton v. California Ins. Guar. Ass’n, 143 Idaho 922, 155 P.3d 1161 (2007).

Grounds.

Interest Calculation.

An application filed under§ 7-912 and this section must identify the specific grounds upon which the court should vacate or modify the arbitration award within the 90-day time limit. Driver v. SI Corp., 139 Idaho 423, 80 P.3d 1024 (2003). Interest Calculation.

Award of prejudgment interest in an arbitration award of benefits under an underinsured motorist policy, although arguably erroneous, could not be modified by a reviewing court because it was not a mathematical error. Cranney v. Mut. of Enumclaw Ins. Co., 145 Idaho 6, 175 P.3d 168 (2007).

Merits of the Controversy.

Where the relief claimed by employee was reconsideration of the factual conclusions of the arbitrator as to the extent of employer’s liability, such relief could not be considered a correction of the form of the award “not affecting the merits of the controversy” as required by subdivision (a)(3) of this section. Landmark v. Mader Agency, Inc., 126 Idaho 74, 878 P.2d 773 (1994).

No Evident Miscalculation.

Arbitrator’s February 16, 2001 award contained no evident miscalculation or misdescription pursuant to subdivision (a)(1) of this section where there was no mathematical error and the arbitrator was not to concern himself with the potential worker’s compensation claim and/or the subrogation issues, and the parties agreed to allow the arbitrator to calculate this type of award. Am. Foreign Ins. Co. v. Reichert, 140 Idaho 394, 94 P.3d 699 (2004).

Remand to Arbitrator.

The provision for modification of a procedurally imperfect award contained in subdivision (a)(3) of this section fails to provide an appropriate basis for remanding the award to the arbitrator for reconsideration. Landmark v. Mader Agency, Inc., 126 Idaho 74, 878 P.2d 773 (1994).

Time Limitations.

Record was devoid of any motion by the trucking company to modify the arbitrator’s decision within the 90 day statutory period of subsection (1) of this section; therefore, the issue was not preserved for appeal. Pac. Alaska Seafoods, Inc. v. Vic Hoskins Trucking, Inc., 139 Idaho 472, 80 P.3d 1073 (2003).

Arbitration.

Once a judgment is entered by the court after an arbitration proceeding, that judgment is entitled to be treated in all respects as any other judgment; therefore, where adjudicatory procedures were present in the arbitration proceeding, the parties were given notice, they were able to formulate the issues of law and fact in their memos to the arbitrator, they had the right to present evidence and legal arguments, and most importantly, the arbitration matter was deemed to be a final resolution between the parties, and where the record indicated the nature of the claims made by the parties, as well as the findings and conclusions, the judgment entered reflected the ultimate award entered by the arbitrator after the respective awards to parties were offset, and there had been a final judgment entered from which the courts could determine the applicability of the bar of collateral estoppel. Western Indus. & Envtl. Servs., Inc. v. Kaldveer Assocs., 126 Idaho 541, 887 P.2d 1048 (1994).

Judgment entered against plaintiff based on the arbitration award was a final judgment on the merits for the purposes of a collateral estoppel analysis, and the elements of collateral estoppel had been met. Thus, the district court was correct in granting summary judgment on the basis of issue preclusion. Western Indus. & Envtl. Servs., Inc. v. Kaldveer Assocs., 126 Idaho 541, 887 P.2d 1048 (1994).

Attorney Fees.

District court was allowed to consider an award of attorney fees under this section because interpreting “disbursements” to include attorney fees was consistent with the purposes of the Uniform Arbitration Act,§ 7-901 et seq. and arbitration in general. Driver v. SI Corp., 139 Idaho 423, 80 P.3d 1024 (2003).

Owners of a company were granted attorney fees on a purchaser’s appeal of an arbitration award on claims against an escrow account involving the sale of the company, where the purchaser appealed the award on grounds beyond the scope permitted by the Uniform Arbitration Act,§ 7-901 et seq. Driver v. SI Corp., 139 Idaho 423, 80 P.3d 1024 (2003). •Title 7»«Ch. 9»«§ 7-914»

Arbitration.

Once a judgment is entered by the court after an arbitration proceeding, that judgment is entitled to be treated in all respects as any other judgment; therefore, where adjudicatory procedures were present in the arbitration proceeding, the parties were given notice, they were able to formulate the issues of law and fact in their memos to the arbitrator, they had the right to present evidence and legal arguments, and most importantly, the arbitration matter was deemed to be a final resolution between the parties, and where the record indicated the nature of the claims made by the parties, as well as the findings and conclusions, the judgment entered reflected the ultimate award entered by the arbitrator after the respective awards to parties were offset, and there had been a final judgment entered from which the courts could determine the applicability of the bar of collateral estoppel. Western Indus. & Envtl. Servs., Inc. v. Kaldveer Assocs., 126 Idaho 541, 887 P.2d 1048 (1994).

Judgment entered against plaintiff based on the arbitration award was a final judgment on the merits for the purposes of a collateral estoppel analysis, and the elements of collateral estoppel had been met. Thus, the district court was correct in granting summary judgment on the basis of issue preclusion. Western Indus. & Envtl. Servs., Inc. v. Kaldveer Assocs., 126 Idaho 541, 887 P.2d 1048 (1994).

Attorney Fees.

District court was allowed to consider an award of attorney fees under this section because interpreting “disbursements” to include attorney fees was consistent with the purposes of the Uniform Arbitration Act,§ 7-901 et seq. and arbitration in general. Driver v. SI Corp., 139 Idaho 423, 80 P.3d 1024 (2003).

Owners of a company were granted attorney fees on a purchaser’s appeal of an arbitration award on claims against an escrow account involving the sale of the company, where the purchaser appealed the award on grounds beyond the scope permitted by the Uniform Arbitration Act,§ 7-901 et seq. Driver v. SI Corp., 139 Idaho 423, 80 P.3d 1024 (2003). Insured appealing district court’s modification of arbitration agreement was denied the award of attorney fees, since he was not the prevailing party below or on appeal. Norton v. California Ins. Guar. Ass’n, 143 Idaho 922, 155 P.3d 1161 (2007).

Where plaintiff filed a breach of contract action against defendants and defendants moved to compel arbitration, where discovery was conducted before the trial court ordered the matter to proceed to arbitration, and where defendants prevailed in arbitration, defendants were entitled to recover costs incurred in defending the litigation against them and in compelling arbitration. However, defendants were not entitled to recover attorney fees for the actual arbitration proceeding because such an award was prohibited by§ 7-910; the district court did not err in declining to award attorney fees for proceedings for the confirmation of the arbitration award because such an award was discretionary under this section. The Grease Spot, Inc. v. Harnes, 148 Idaho 582, 226 P.3d 524 (2010).

Insurers could recover a discretionary award of attorney fees incurred responding to an untimely appeal. Harrison v. Certain Underwriters at Lloyd’s, 149 Idaho 201, 233 P.3d 132 (2010).

Award Not In Error.

Magistrate did not err as a matter of law in entering a divorce decree containing property division provisions from an arbitration award without making specific findings of fact as to the character and value of the property divided and as to the fairness of the property division. Hughes v. Hughes, 123 Idaho 711, 851 P.2d 1007 (Ct. App. 1993).

In General.

An application seeking the confirmation of an arbitration award is not an action in court to recover attorney fees pursuant to§ 41-1839. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015).

Although time limitations are imposed for vacating, modifying, or correcting an award, no limitations exist in the Idaho Uniform Arbitration Act,§ 7-901 et seq., which restrict the time as to when an application for confirmation of an arbitration award may be filed. Once a court enters an order confirming, modifying or correcting an award, a judgment or decree shall be entered and enforced as any other judgment. S.D. Sanders, Inc. v. Hazard (In re Hazard), 543 B.R. 650 (Bankr. D. Idaho 2015).

No Interest on Award.

An arbitrator’s award is not self-enforcing; such an award requires the imprimatur of a court to be enforced. The award becomes enforceable when a court enters judgment on the award; thus, the arbitrator’s award is not a judgment of a tribunal for the purpose of applying the interest rate applicable to judgments under§ 28-22-104. Bingham County Comm’n v. Interstate Elec. Co., 108 Idaho 181, 697 P.2d 1195 (Ct. App. 1985).

Compiler’s Notes.

The words “this act” refer to S.L. 1975, ch. 117, § 2, compiled as§§ 7-901 to 7-922.

Compiler’s Notes.

The words “this act” refer to S.L. 1975, ch. 117, § 2, compiled as§§ 7-901 to 7-922.

Confirmation.

Insurer’s payment in full of the arbitration award did not preclude insured from seeking confirmation of the award; confirmation request after payment of award did not create a moot question between insured and insurer and did not divest jurisdiction from court to confirm award. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015).

Although time limitations are imposed for vacating, modifying, or correcting an award, no limitations exist in the Idaho Uniform Arbitration Act,§ 7-901 et seq., which restrict the time as to when an application for confirmation of an arbitration award may be filed, and district court had jurisdiction to confirm insured’s arbitration award. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015).

District court erred when it held that insured’s second motion for confirmation of arbitration award, attorney fees, costs and prejudgment interest was barred by res judicata. Although parties agreed that district court lacked personal jurisdiction in insured’s first motion for confirmation, since court lacked personal jurisdiction it did not have authority to rule on any substantive issues, such as subject matter jurisdiction, and insured’s second confirmation motion was not barred. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 913 P.2d 1168 (1996), overruled on other grounds, Jackson Hop, LLC v. Farm Bureau Mut. Ins. Co., 158 Idaho 894, 354 P.3d 456 (2015).

No Interest on Award.

An arbitrator’s award is not self-enforcing; such an award requires the imprimatur of a court to be enforced. The award becomes enforceable when a court enters judgment on the award; thus, the arbitrator’s award is not a judgment of a tribunal for the purpose of applying the interest rate applicable to judgments under§ 28-22-104. Bingham County Comm’n v. Interstate Elec. Co., 108 Idaho 181, 697 P.2d 1195 (Ct. App. 1985).

Cross References.

New trial in civil actions, Idaho Civil Procedure Rules 59(a) to 59(d).

Compiler’s Notes.

The words “this act” refer to S.L. 1975, ch. 117, § 2, compiled as§§ 7-901 to 7-922.

Applicability.

Supreme court had jurisdiction to hear an appeal from an order dismissing a case alleging violations of the Idaho Consumer Protection Act,§ 48-601 et seq., on the grounds that the parties had entered into a contract that included a provision requiring them to arbitrate disputes between them; although the order dismissed the case, it had the effect of compelling arbitration. Dan Wiebold Ford, Inc. v. Universal Computer Consulting Holding, Inc., 142 Idaho 235, 127 P.3d 138 (2005).

Because motion to confirm an arbitrator’s award was filed, and granted, under§ 7-911, it was appealable as a matter of right under Idaho App. R. 11(a)(8) and subsection (a)(3) of this section. Harrison v. Certain Underwriters at Lloyd’s, 149 Idaho 201, 233 P.3d 132 (2010).

An order granting a motion to stay arbitration is appealable, as a matter of right, under Idaho App. R. 11(a)(8). Clearwater REI, LLC v. Boling, 155 Idaho 954, 318 P.3d 944 (2014).

Final Appealable Order.

An order denying a motion to compel arbitration or an order vacating an earlier order to arbitrate is final and is, therefore, appealable as a matter of right. Deeds v. Regence Blueshield of Idaho, 143 Idaho 210, 141 P.3d 1079 (2006).

ALR.

ALR. — Adoption of manifest disregard of law standard as nonstatutory ground to review arbitration awards governed by Uniform Arbitration Act (UAA). 14 A.L.R.6th 491.

Compiler’s Notes.

The words “this act” refer to S.L. 1975, ch. 117, § 2, compiled as§§ 7-901 to 7-922.

Compiler’s Notes.

The words “this act” refer to S.L. 1975, ch. 117, § 2, compiled as§§ 7-901 to 7-922.

Compiler’s Notes.

The words “this act” refer to S.L. 1975, ch. 117, § 2, compiled as§§ 7-901 to 7-922.

Section 3 of S.L. 1975, ch. 117 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Cross References.

Wages of parents, assignment for child support,§ 8-704.

Prior Laws.

Former§§ 7-1001 to 7-1020, which comprised S.L. 1951, ch. 238,§§ 1-21, p. 492, were repealed by S.L. 1953, ch. 246, § 27.

Amendments.

The 2006 amendment, by ch. 252, renumbered this section from§ 7-1058.

Compiler’s Notes.

Former§ 7-1001, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1002, pursuant to S.L. 2006, ch. 252, § 2.

The numbering of the Idaho version of the Uniform Interstate Family Support Act differs from the numbering of the official version as approved by the National Conference of Commissioners on Uniform State Laws in that the official version was numbered as §§ 101 to 903 and the Idaho version is numbered as§§ 7-1001 to 7-1062.

Following§§ 7-1001 through 7-1062, Uniform Interstate Family Support Act, appear “Official Comment” which are the comments prepared by National Conference of Commissioners on Uniform State Laws. These Comments are reprinted with the permission of the National Conference of Commissioners on Uniform State Laws.

Effective Dates.

In some instances the subsection, subdivision, etc. designations in the Idaho version of a section of the Uniform Interstate Family Support Act are different than those of the official version. For instance,§ 7-1011, Idaho Code contains subsections (1) to (8) with subsection (2) containing subdivisions (a) to (c) and subdivision (b) containing clauses (i) and (ii). The official version of this provision, Section 207, contains subsections (a) to (h) with subsection (b) containing subdivisions (1) to (3) and subdivision (2) containing clauses (A) and (B). Therefore, a reference in the official comments to subsection (b)(2)(A) would be a reference to subsection (2)(b)(ii) in the Idaho version. In these instances, in the official comments, the compiler has added in brackets the references to the Idaho version of the section. Also the references in the official comments to “Act” should be translated as “Chapter” for the Idaho version and where the official comments refer to “Part” of a certain “Article” the corresponding reference to the Idaho version has been added in brackets. Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Idaho Law Review.

Idaho Law Review. — Choice of Law in Idaho: A Survey and Critique of Idaho Cases, Andrew S. Jorgensen. 49 Idaho L. Rev. 547 (2013).

Prior Laws.

Another former§ 7-1002 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1001 and updated the title reference in subsection (6); in subsection (7), deleted “or under a law or procedure substantially similar to the uniform reciprocal enforcement of support act, or the revised uniform reciprocal enforcement of support act” from the end; in subsection (10), substituted “Issuing” for “Initiating”; added subsections (14) and (15), and redesignated the remaining subsections accordingly; in subsection (18), inserted “or procedure” and deleted “or under a law or procedure substantially similar to the uniform reciprocal enforcement of support act, or the revised uniform reciprocal enforcement of support act” from the end; in the introductory paragraph in subsection (21), deleted “the Commonwealth of” preceding “Puerto Rico” and inserted “the United States Virgin Islands”; in the introductory paragraph in subsection (21)(b), substituted “country or political subdivision” for “jurisdiction”; added subsections (21)(b)(i) and (ii) and the subsection (19)(b)(iii) designation; in subsection (21)(b)(iii), deleted “or the procedures under the uniform reciprocal enforcement of support act or the revised uniform enforcement of support act” from the end; added subsection (22)(e); and in subsection (23), inserted “or directive” and “issued by a tribunal.”

The 2015 (1st E.S.) amendment, by ch. 1, rewrote the section to the extent that a detailed comparison is impracticable.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” (29) “Tribunal” means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage of a child.

History.

I.C.,§ 7-1001, as added by 1994, ch. 207, § 2, p. 639; am. 1997, ch. 198, § 1, p. 556; am. and redesig. 2006, ch. 252, § 2, p. 764; am. 2015 (1st E.S.), ch. 1, § 1, p. 5.

Prior Laws.

Another former§ 7-1002 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1001 and updated the title reference in subsection (6); in subsection (7), deleted “or under a law or procedure substantially similar to the uniform reciprocal enforcement of support act, or the revised uniform reciprocal enforcement of support act” from the end; in subsection (10), substituted “Issuing” for “Initiating”; added subsections (14) and (15), and redesignated the remaining subsections accordingly; in subsection (18), inserted “or procedure” and deleted “or under a law or procedure substantially similar to the uniform reciprocal enforcement of support act, or the revised uniform reciprocal enforcement of support act” from the end; in the introductory paragraph in subsection (21), deleted “the Commonwealth of” preceding “Puerto Rico” and inserted “the United States Virgin Islands”; in the introductory paragraph in subsection (21)(b), substituted “country or political subdivision” for “jurisdiction”; added subsections (21)(b)(i) and (ii) and the subsection (19)(b)(iii) designation; in subsection (21)(b)(iii), deleted “or the procedures under the uniform reciprocal enforcement of support act or the revised uniform enforcement of support act” from the end; added subsection (22)(e); and in subsection (23), inserted “or directive” and “issued by a tribunal.”

The 2015 (1st E.S.) amendment, by ch. 1, rewrote the section to the extent that a detailed comparison is impracticable.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1002, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1003, pursuant to S.L. 2006, ch. 252, § 3.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Am. Jur. 2d.

73 Am. Jur. 2d, Support of Persons, §§ 25 to 39.

C.J.S.

67A C.J.S., Parent and Child, § 73.

ALR.

Long-arms statutes: obtaining jurisdiction over nonresident parent in filiation or support proceeding. 76 A.L.R.3d 708.

Determination of paternity of child as within scope of proceeding under Uniform Enforcement of Support Act. 81 A.L.R.3d 1175.

Laches or acquiescences as defense, so as to bar recovery of arrearages or permanent alimony or child support. 5 A.L.R.4th 1015.

Withholding visitation rights for failure to make alimony or support payments. 65 A.L.R.4th 1155. Construction and application of Uniform Interstate Family Support Act. 90 A.L.R.5th 1.

Prior Laws.

Another former§ 7-1003 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2015 (1st E.S.) amendment, by ch. 1, substituted the present section heading for “Tribunals of this state”, designated the existing provisions of the section as subsection (1), and added subsection (2).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” •Title 7»«Ch. 10»«§ 7-1003»

Prior Laws.

Another former§ 7-1003 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2015 (1st E.S.) amendment, by ch. 1, substituted the present section heading for “Tribunals of this state”, designated the existing provisions of the section as subsection (1), and added subsection (2).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Compiler’s Notes.

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” Compiler’s Notes.

Former§ 7-1003, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1004, pursuant to S.L. 2006, ch. 252, § 4.

Amendments.

The 2006 amendment, by ch. 252, renumbered this section from§ 7-1002.

Compiler’s Notes.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Authority of Court.

Since the district court is permitted to delegate to attorney magistrates the authority granted it to hear paternity and child support cases, the magistrate court had subject matter jurisdiction to determine paternity, enter an order of filiation and order child support. State Dep’t of Health & Welfare ex rel. Oregon v. Conley, 132 Idaho 266, 971 P.2d 332 (Ct. App. 1999).

Prior Laws.

Another former§ 7-1004 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1003 and, in subsection (1), added “including the recognition of a support order of a foreign country or political subdivision on the basis of comity” and added subsection (2).

The 2015 (1st E.S.) amendment, by ch. 1, substituted “other law or the recognition of a foreign support order” for “other law, including the recognition of a support order of a foreign country or political subdivision” in subsection (1).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” •Title 7»«Ch. 10»«§ 7-1004»

Prior Laws.

Another former§ 7-1004 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1003 and, in subsection (1), added “including the recognition of a support order of a foreign country or political subdivision on the basis of comity” and added subsection (2).

The 2015 (1st E.S.) amendment, by ch. 1, substituted “other law or the recognition of a foreign support order” for “other law, including the recognition of a support order of a foreign country or political subdivision” in subsection (1).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1004, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1005, pursuant to S.L. 2006, ch. 252, § 5.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” •Title 7»«Ch. 10»«§ 7-1004A»

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Compiler’s Notes.

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” Compiler’s Notes.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Another former§ 7-1005 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2015 (1st E.S.) amendment, by ch. 1, in subsection (1), inserted “of a child” in the introductory paragraph and in paragraph (g); and, in subsection (2), substituted “7-1053, Idaho Code, are met, or in the case of a foreign support order, unless the requirements of section 7-1057, Idaho Code, are met” for “or 7-1057” at the end.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” •Title 7»«Ch. 10»«§ 7-1005»

Prior Laws.

Another former§ 7-1005 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2015 (1st E.S.) amendment, by ch. 1, in subsection (1), inserted “of a child” in the introductory paragraph and in paragraph (g); and, in subsection (2), substituted “7-1053, Idaho Code, are met, or in the case of a foreign support order, unless the requirements of section 7-1057, Idaho Code, are met” for “or 7-1057” at the end.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1005, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1006, pursuant to S.L. 2006, ch. 252, § 6.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1004; in the introductory paragraph in subsection (1), deleted “or modify” following “enforce”; in subsection (1)(b), inserted “in a record”; and added subsection (2).

Compiler’s Notes.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Applicability.

A resident of the state could not rely on this section to argue that the trial court lacked personal jurisdiction over him, since this section defines the basis for the exercise of personal jurisdiction over nonresidents in proceedings to establish, enforce, or modify a support order or to determine parentage. State Dep’t of Health & Welfare ex rel. Oregon v. Conley, 132 Idaho 266, 971 P.2d 332 (Ct. App. 1999).

Because the trial court relied on the conception of the child within Idaho and the fact that the father had previously resided in Idaho, not just the fact that the father had submitted to jurisdiction in the paternity case under former§ 7-1026 [now§ 7-1029], and because the child resided in Idaho with the mother, the State of Idaho had personal jurisdiction over the father pursuant to§ 7-1004(5) and (6) [now§ 7-1005(1)(e) and (1)(f)]. Lohman v. Flynn, 139 Idaho 312, 78 P.3d 379 (2003).

Prior Laws.

Another former§ 7-1006 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1005 and rewrote the section, which formerly read: “Under this chapter, a tribunal of this state may serve as an initiating tribunal to forward proceedings to another state and as a responding tribunal for proceedings initiated in another state.”

Compiler’s Notes.

Former§ 7-1006, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1007, pursuant to S.L. 2006, ch. 252, § 7.

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Prior Laws.

Another former§ 7-1007 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered this section from§ 7-1006.

The 2015 (1st E.S.) amendment, by ch. 1, in the section heading, deleted “this” preceding “state”; and, in the section text, inserted “a tribunal of” near the middle and “or foreign country” at the end.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” •Title 7»«Ch. 10»«§ 7-1007»

Prior Laws.

Another former§ 7-1007 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered this section from§ 7-1006.

The 2015 (1st E.S.) amendment, by ch. 1, in the section heading, deleted “this” preceding “state”; and, in the section text, inserted “a tribunal of” near the middle and “or foreign country” at the end.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Compiler’s Notes.

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” Compiler’s Notes.

Former§ 7-1007, as enacted by Laws 1994, ch. 207, has been redesignated as§ 7-1008, pursuant to S.L. 2006, ch. 252, § 17.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Another former§ 7-1008 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1007; in the section heading, deleted “in another state” from the end; and in the introductory paragraph in subsection (1), deleted “petition or comparable” preceding “pleading is filed in another state”.

The 2015 (1st E.S.) amendment, by ch. 1, inserted “or a foreign country” for “or the foreign country” throughout the section.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” •Title 7»«Ch. 10»«§ 7-1008»

Prior Laws.

Another former§ 7-1008 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1007; in the section heading, deleted “in another state” from the end; and in the introductory paragraph in subsection (1), deleted “petition or comparable” preceding “pleading is filed in another state”.

The 2015 (1st E.S.) amendment, by ch. 1, inserted “or a foreign country” for “or the foreign country” throughout the section.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1008, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1009, pursuant to S.L. 2006, ch. 252, § 9.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Another former§ 7-1009 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1008 and in the section heading, added “to modify child support order”; and rewrote the section to the extent that a detailed comparison is impracticable.

Compiler’s Notes.

Former§ 7-1009, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1010, pursuant to S.L. 2006, ch. 252, § 10.

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Jurisdiction Present.

Court erred in finding that it did not have jurisdiction to hear a father’s motion to modify the conditions of his child support obligation where the bureau of child support had initiated withholding from the father’s income while he was incarcerated. State v. Smith, 136 Idaho 775, 40 P.3d 133 (Ct. App. 2001).

Prior Laws.

Another former§ 7-1010 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1009; rewrote the section heading, which formerly read: “Enforcement and modification of support order by tribunal having continuing jurisdiction”; in the introductory paragraph in subsection (1), inserted “that has issued a child support order consistent with the law of this state,” and deleted “or modify a support order issued in that state” from the end; added subsections (1)(a) and (1)(b); in subsection (2), deleted “exclusive” preceding “jurisdiction” and deleted the last sentence, which pertained to the receipt of evidence from another state and application of relevant code sections; and deleted subsection (3), which pertained to modification of spousal support orders of another state.

The 2015 (1st E.S.) amendment, by ch. 1, in subsection (1), substituted “the uniform interstate family support act” for “this chapter” in paragraph (a) and inserted “of a tribunal” in paragraph (b).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” •Title 7»«Ch. 10»«§ 7-1010»

Prior Laws.

Another former§ 7-1010 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1009; rewrote the section heading, which formerly read: “Enforcement and modification of support order by tribunal having continuing jurisdiction”; in the introductory paragraph in subsection (1), inserted “that has issued a child support order consistent with the law of this state,” and deleted “or modify a support order issued in that state” from the end; added subsections (1)(a) and (1)(b); in subsection (2), deleted “exclusive” preceding “jurisdiction” and deleted the last sentence, which pertained to the receipt of evidence from another state and application of relevant code sections; and deleted subsection (3), which pertained to modification of spousal support orders of another state.

The 2015 (1st E.S.) amendment, by ch. 1, in subsection (1), substituted “the uniform interstate family support act” for “this chapter” in paragraph (a) and inserted “of a tribunal” in paragraph (b).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1010, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1011, pursuant to S.L. 2006, ch. 252, § 11.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

In General.

A support order made in an Idaho court in a Uniform Reciprocal Enforcement of Support Act case does not nullify an existing support order which has been entered in this state. Nomer v. Kossman, 100 Idaho 898, 606 P.2d 1002 (1980).

Proper Venue.

Other than in unusual circumstances, where the party required to pay support is found in Idaho, an appropriate proceeding should be brought in the court which entered the original decree. Nomer v. Kossman, 100 Idaho 898, 606 P.2d 1002 (1980).

Prior Laws.

Another former§ 7-1011 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1010; in the section heading, substituted “Determination” for “Recognition”; and rewrote the section to the extent that a detailed comparison is impracticable.

The 2015 (1st E.S.) amendment, by ch. 1, in subsection (2), substituted “state, another state or a foreign country” for “state or another state” near the middle and added “and must be recognized” at the end of the introductory paragraph and deleted “and must be so recognized” from the end of paragraph (a).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” (8) An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made pursuant to this section must be recognized in proceedings under this chapter.

History.

I.C.,§ 7-1010, as added by 1994, ch. 207, § 2, p. 639; am. 1997, ch. 198, § 5, p. 556; am. and redesig. 2006, ch. 252, § 11, p. 764; am. 2015 (1st E.S.), ch. 1, § 9, p. 5.

Prior Laws.

Another former§ 7-1011 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1010; in the section heading, substituted “Determination” for “Recognition”; and rewrote the section to the extent that a detailed comparison is impracticable.

The 2015 (1st E.S.) amendment, by ch. 1, in subsection (2), substituted “state, another state or a foreign country” for “state or another state” near the middle and added “and must be recognized” at the end of the introductory paragraph and deleted “and must be so recognized” from the end of paragraph (a).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Compiler’s Notes.

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” Compiler’s Notes.

Former§ 7-1011, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1012, pursuant to S.L. 2006, ch. 252, § 12.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Another former§ 7-1012 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1011, deleted “multiple” from the beginning of the section heading; and deleted “multiple” preceding “registrations” and “orders had been issued.”

The 2015 (1st E.S.) amendment, by ch. 1, inserted “or a foreign country” near the end of the section.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” •Title 7»«Ch. 10»«§ 7-1012»

Prior Laws.

Another former§ 7-1012 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1011, deleted “multiple” from the beginning of the section heading; and deleted “multiple” preceding “registrations” and “orders had been issued.”

The 2015 (1st E.S.) amendment, by ch. 1, inserted “or a foreign country” near the end of the section.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Compiler’s Notes.

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” Compiler’s Notes.

Former§ 7-1012, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1013, pursuant to S.L. 2006, ch. 252, § 13.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Another former§ 7-1013 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1012 and rewrote the section, which formerly read: “Amounts collected and credited for a particular period pursuant to a support order issued by a tribunal of another state must be credited against the amounts accruing or accrued for the same period under a support order issued by the tribunal of this state.”

The 2015 (1st E.S.) amendment, by ch. 1, substituted “this state, another state or a foreign country” for “this or another state” at the end of the section.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1013, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1016, pursuant to S.L. 2006, ch. 252, § 16.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Another former§ 7-1014 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2015 (1st E.S.) amendment, by ch. 1, substituted “foreign support order” for “support order of a foreign country or political subdivision on the basis of comity” and substituted “outside this state” for “another state” in three places in the first sentence.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” •Title 7»«Ch. 10»«§ 7-1014»

Prior Laws.

Another former§ 7-1014 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2015 (1st E.S.) amendment, by ch. 1, substituted “foreign support order” for “support order of a foreign country or political subdivision on the basis of comity” and substituted “outside this state” for “another state” in three places in the first sentence.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1014, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1017, pursuant to S.L. 2006, ch. 252, § 17.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Another former§ 7-1015 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2015 (1st E.S.) amendment, by ch. 1, inserted “or a foreign country” and “or foreign country” in subsection (2).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” •Title 7»«Ch. 10»«§ 7-1015»

Prior Laws.

Another former§ 7-1015 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2015 (1st E.S.) amendment, by ch. 1, inserted “or a foreign country” and “or foreign country” in subsection (2).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1015, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1018, pursuant to S.L. 2006, ch. 252, § 17.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Applicability.

Spousal support obligation arose from a contract between the parties, and the provision was not incorporated into the divorce decree. This section was not applicable. Davidson v. Soelberg, 154 Idaho 227, 296 P.3d 433 (Ct. App. 2013).

Prior Laws.

Another former§ 7-1016 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1013; deleted former subsection (2), which was a listing of proceedings provided for by chapter 10; and redesignated former subsection (3) as (2) and therein substituted “initiate” for “commence.”

The 2015 (1st E.S.) amendment, by ch. 1, inserted “or a foreign country” near the end of subsection (2).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1016, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1019, pursuant to S.L. 2006, ch. 252, § 19.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Another former§ 7-1017 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1014 and, in the section heading, substituted “Proceeding” for “Action.”

Compiler’s Notes.

Former§ 7-1017, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1020, pursuant to S.L. 2006, ch. 252, § 20.

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Prior Laws.

Another former§ 7-1018 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1015 and deleted “including the rule on choice of law” following “substantive law” in subsection (1).

Compiler’s Notes.

Former§ 7-1018, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1021, pursuant to S.L. 2006, ch. 252, § 21.

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Prior Laws.

Another former§ 7-1019 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1016, in the introductory paragraph in subsection (1), deleted “three (3) copies of” preceding “the petition”; and in subsection (2), substituted “If requested by the responding tribunal” for “If a responding state has not enacted this chapter or a law or procedure substantially similar to this chapter” and “shall issue” for “may issue” in the first sentence and rewrote the last sentence which formerly read: “If the respondent state is a foreign jurisdiction, the tribunal may specify the amount of support sought and provide other documents necessary to satisfy the requirements of the responding state.”

The 2015 (1st E.S.) amendment, by ch. 1, in the second sentence in subsection (2), substituted “tribunal is in a foreign country” for “state is a foreign country or political subdivision” near the beginning and substituted “foreign tribunal” for “state” at the end.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” •Title 7»«Ch. 10»«§ 7-1019»

Prior Laws.

Another former§ 7-1019 was repealed. See Prior Laws,§ 7-1001.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1016, in the introductory paragraph in subsection (1), deleted “three (3) copies of” preceding “the petition”; and in subsection (2), substituted “If requested by the responding tribunal” for “If a responding state has not enacted this chapter or a law or procedure substantially similar to this chapter” and “shall issue” for “may issue” in the first sentence and rewrote the last sentence which formerly read: “If the respondent state is a foreign jurisdiction, the tribunal may specify the amount of support sought and provide other documents necessary to satisfy the requirements of the responding state.”

The 2015 (1st E.S.) amendment, by ch. 1, in the second sentence in subsection (2), substituted “tribunal is in a foreign country” for “state is a foreign country or political subdivision” near the beginning and substituted “foreign tribunal” for “state” at the end.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1019, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1022, pursuant to S.L. 2006, ch. 252, § 22.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Other former§§ 7-1021 to 7-1047, which comprised S.L. 1953, ch. 246, §§ 1 to 30, p. 379, were repealed by S.L. 1959, ch. 135, § 37, p. 284.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1018 and substituted “the tribunal” for “it.”

The 2015 (1st E.S.) amendment, by ch. 1, substituted “tribunal of this state” for “tribunal in this state” near the end of the section.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” •Title 7»«Ch. 10»«§ 7-1021»

Prior Laws.

Other former§§ 7-1021 to 7-1047, which comprised S.L. 1953, ch. 246, §§ 1 to 30, p. 379, were repealed by S.L. 1959, ch. 135, § 37, p. 284.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1018 and substituted “the tribunal” for “it.”

The 2015 (1st E.S.) amendment, by ch. 1, substituted “tribunal of this state” for “tribunal in this state” near the end of the section.

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Compiler’s Notes.

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.” Compiler’s Notes.

Former§ 7-1021, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1024, pursuant to S.L. 2006, ch. 252, § 24.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Another former§ 7-1022 was repealed. See Prior Laws,§ 7-1021.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1019; in subsections (2)(d) and (e), substituted “notice in a record” and “communication in a record” for “a written notice” and “a written communication”; and added subsections (3) to (5); and redesignated former subsection (3) as (6).

The 2015 (1st E.S.) amendment, by ch. 1, substituted “of this state, another state or a foreign country” for “in this state or another state” in subsection (2)(a).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.”

Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1022, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1025, pursuant to S.L. 2006, ch. 252, § 25.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Official Comment

The focus of Subsection (a) [(1)] is on providing services to a petitioner, and not merely on “representing” the obligee. Care should be exercised in the use of terminology given this substantial alteration of past practice under RURESA. Not only may either the obligee or the obligor request services, but that request may be in the context of the establishment of an initial child-support order, enforcement or review and adjustment of an existing child-support order, or a modification of that order (upward or downward). Note that the Act does not distinguish between child support and spousal support for purposes of providing services. Note also, that the services available may differ significantly; for example, modification of spousal support is limited to the issuing State, see Section 205(f) [§ 7-1015], supra .

Prior Laws.

Another former§ 7-1023 was repealed. See Prior Laws,§ 7-1021.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1020; added the subsection (1) designation; and added subsection (2).

The 2015 (1st E.S.) amendment, by ch. 1, deleted “or political subdivision” following “foreign country” in subsection (2).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they sister states or foreign countries, is vital to ensure that the children and others of this state receive the support to which they are entitled and on which they depend. It is further the intent of the Legislature that the processes and procedures established by this act be used only for the important purposes for which they are intended. The Department of Health and Welfare shall, pursuant to Section 67 of this act [§ 56-1003], develop and maintain safeguards necessary to ensure that sensitive information about Idaho residents is not inappropriately disclosed so as to protect the privacy, safety or security of Idaho residents. If the petitioner is the subject of a no-contact order or similar protective order, the information disclosed shall not include the location of the Idaho resident. The state shall take all necessary steps to ensure the security of data and prevent disclosure to unauthorized persons, entities or jurisdictions. The Legislature finds that nothing in this act expands access to its databases beyond the access that already exists, and nothing in this act shall be construed to prohibit the exchange of data or information with other jurisdictions.” Section 69 of S.L. 2015 (1st E.S.), ch. 1, provided: “Report — Legislative Intent. The Governor or the Governor’s designee shall monitor proceedings affecting Idaho residents that are conducted pursuant to the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and make a report of such proceedings to the Legislature upon request. If at any time it appears that such proceedings are imperiling Idaho residents or affecting Idaho residents in an unjust manner, it is the intent of the Legislature that request be made to the federal government to file a denunciation under Article 64 of the Convention on behalf of the State of Idaho.”

Compiler’s Notes.

Former§ 7-1023, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1026, pursuant to S.L. 2006, ch. 252, § 26.

Section 70 of S.L. 2015 (1st E.S.), ch. 1, provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Section 71 of S.L. 2015 (1st E.S.), ch. 1 declared an emergency. Approved May 19, 2015.

Prior Laws.

Another former§ 7-1024 was repealed. See Prior Laws,§ 7-1021.

Amendments.

The 2006 amendment, by ch. 252, renumbered this section from§ 7-1021, pursuant to S.L. 2006, ch. 252, § 24.

Compiler’s Notes.

Former§ 7-1024, as enacted by Laws 1994, ch. 207, § 2, has been redesignated as§ 7-1027, pursuant to S.L. 2006, ch. 252, § 27.

Effective Dates.

Section 63 of S.L. 2006, ch. 252 provided that the act should take effect on and after July 1, 2007.

Prior Laws.

Another former§ 7-1025 was repealed. See Prior Laws,§ 7-1021.

Amendments.

The 2006 amendment, by ch. 252, renumbered the section from§ 7-1022; in subsection (2)(b), inserted “names and addresses of”; and, in subsection (2)(c), substituted “county” for “place” and “obligee who is an individual” for “individual obligee.”

The 2015 (1st E.S.) amendment, by ch. 1, substituted “another state or a foreign country” for “an initiating tribunal or the state information agency of the initiating state” at the end of subsection (2)(c).

Legislative Intent.

Section 68 of S.L. 2015 (1st E.S.), ch. 1, provided: “Legislative Intent. It is the intent of the Legislature that the State of Idaho ensure the welfare of its residents by conducting its child and family support enforcement responsibilities with all due care. Cooperation with other jurisdictions, be they