Behrensmeyer v. Gwinn
Idaho Supreme Court
An application for a writ of prohibition to Hon. James G. Gwinn, Judge of the Ninth Judicial District for the County of Bonneville. The ten-day limit fixed by sec. 4430 within which to prepare and serve a bill of exceptions is jurisdictional. (Lydon v. Piper, 5 Ida. 541, 51 Pac. 101.) Under see. 4441 the defendant should either have given his notice of intention within the ten days or should, within the same ten days, have had the time extended.
Read the full summary
An application for a writ of prohibition to Hon. James G. Gwinn, Judge of the Ninth Judicial District for the County of Bonneville. The ten-day limit fixed by sec. 4430 within which to prepare and serve a bill of exceptions is jurisdictional. (Lydon v. Piper, 5 Ida. 541, 51 Pac. 101.) Under see. 4441 the defendant should either have given his notice of intention within the ten days or should, within the same ten days, have had the time extended. (Burton v. Todd, 68 Cal. 485, at 487, 9 Pac. 663.) The same proposition applies to an attempt to settle a bill of exceptions under sec. 4430. Under…
1DissentAilshie, C. J.
(Dissenting from Conclusion Ordering Peremptory Writ.) — It occurs to me that the judgment and order of this court prohibiting a district judge from proeeedr ing to settle a bill of exceptions or to hear a motion for a new trial in a case pending before him will strike the profession of this state with as much surprise as it does me. I am perfectly clear that this court has no right or authority to issue a writ of prohibition against Judge Gwinn restraining and prohibiting him from hearing and considering an application for settlement of a bill of exceptions or hearing and passing upon a…
2Cases cited2 opinions
- McCrea v. McCrewIdaho Supreme Court · 1903
- Smith v. American Falls Canal & Power Co.Idaho Supreme Court · 1908