Williams v. Sherman
Idaho Supreme Court
APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. James G. Gwinn, Judge. Action in foreclosure. Appeal from order denying motion to vacate writ of assistance and order striking appellant’s affidavit in support thereof. The affidavit of Sherman was not in fact a collateral attack upon the decree of the court.
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APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. James G. Gwinn, Judge. Action in foreclosure. Appeal from order denying motion to vacate writ of assistance and order striking appellant’s affidavit in support thereof. The affidavit of Sherman was not in fact a collateral attack upon the decree of the court. (Mills v. Smiley, 9 Ida. 325, 76 Pac. 783; O’Neill v. Potvin, 13 Ida. 721, 93 Pac. 20, 257.) In an application for writ of assistance, if the judgment be attacked, it is a direct and not a collateral attack. (Noble v. Harris, 33 Ida. 401, 195 Pac.…
1Concurrence
LEE, J.,
Specially Concurring. — I concur with Mr. Justice McCarthy in holding that the writ of assistance should be quashed for the reasons expressed in the foregoing opinion. This cause was before the court in Williams v. Sherman, 34 Ida. 63, 199 Pac. 646, and from the statement of facts therein contained, which are again set up by the affidavit of E. H. Sherman on this appeal, the ultimate question-*175which appellant is' endeavoring to have determined remains undecided, because in neither of these appeals has the record presented that question in such manner that it could be determined.…
2Cases cited8 opinions
- Anderson v. CarkinsSupreme Court of the United States · 1890
- Ruddy v. RossiSupreme Court of the United States · 1918
- Mellison v. AllenSupreme Court of Kansas · 1883
- Hafemann v. GrossSupreme Court of the United States · 1905
- Seymour v. SandersU.S. Circuit Court for the District of Minnesota · 1874
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