A

have nothing more to do with it. It is you and Gaffney for that." Witness said to Martin, "So you have no mine now," and Martin says, "No; I did have a mine, or an interest in one, but I have sold it out to the boys." W. A. Fabrick testifies to the conversation in practically the same language as the last witness. Harry Dowd testified that he met Mr. Martin (plaintiff) on the Lapwai road between the 10th and 20th of October, 1899,both being on horseback,-when he had a conversation with plaintiff, to wit: "I asked him, 'How is your mining property? He answered, 'I have sold out to the boys,-to Matt and John.' I said, 'Did you make a good deal, Martin?' and he said, 'Yes; I sold out for $500. I got $100 down, and will get the balance after awhile.' I said, 'You are safe if the mine is worthless; you are sure of your money;' and Martin said, 'Yes.'" receipt was introduced by the defendants, to wit: "$100. Lewiston, Idaho, Oct. 9th, 189-. Received from Matt Dowd and John Gaffney $100 in part payment for the John Day mine. D. W. Martin." Frank Peters testified: "Know plaintiff and defendant Dowd. Heard a conversation between them in reference to this deed. It was near the Raymond House. They were sitting down. Mr. Martin says, 'You know, Matt, it is no trade. It was no trade. Mr. Dowd says, 'I know it was not,' and then said, "The only way for you to get your money is to go and see a lawyer,' and he mentioned that two or three times. Martin said, "That is what I am going to do.' They were talking about this mine at the time." Defendant Dowd denies this conversation, and plaintiff Martin denies the conversation testified to by Chas. Dowd, Harry Dowd, and W. A. Fabrick. Plaintiff testified that defendant Dowd paid him $26 in addition to the $100, and that it was not for helping to drive cattle to Lewiston. Dowd explains by saying that: "When we bought the property from Martin, I told him to come to Lewiston, and I hired him to help me from Weippe to Lewiston with a band of cattle. He was on the road three or four days with two horses, and I had to pay him for the work. When he came to Lewiston he bought a saddle, and I paid for the saddle for owing him for the work,-helping me down with the cattle. Did not pay him, or mention anything about owing him, anything on the mining property." Upon this evidence the jury found for the plaintiff, as indicated by their verdict. The rule that where there is a substantial conflict in the evidence the verdict of a jury will not be disturbed is too well settled to require comment or citation of authorities. There is certainly a conflict here, and, to our minds, a very serious one. Whilst to us the preponderance of the evidence seems to largely predominate in favor of the defendants, yet the jury, who had the opportunity to determine who was mistaken or who was telling the truth, passed upon this question by a unanimous verdict. The

learned judge in whose court this case was tried refused to set the verdict aside. He, too, had an opportunity of weighing the evidence as it came from the witnesses, and determining whether the verdict was the result of bias, prejudice, or any misconduct on the part of the jury. The district courts are created and empowered to try cases; this court, only to review them from the record presented.

There being a substantial conflict in the evidence, the verdict must be sustained. Costs are awarded to respondent.

SULLIVAN, J., concurs.

QUARLES, C. J. (dissenting). I agree with my associates that the trial court did not err in calling a jury to try this action, which was brought to recover upon an alleged promise to pay a certain sum of money. The allegation in the complaint to the effect that the deed from the plaintiff to the defendants was intended to secure a loan was matter of inducement, explaining the true nature of the plaintiff's claim. I also agree that when there is a substantial conflict in the evidence the verdict of the jury should not be disturbed. But I am unable to agree to the conclusion in this case, for the reason that, in my opinion, the evidence was not conflicting to the extent that will bring this case within the rule, or, in other words, there is no real, substantial conflict in the evidence. No witness testified to any of the facts necessary to be established on behalf of the plaintiff, except the plaintiff; and the plaintiff is thoroughly impeached, not only by the testimony of the defendants, but by the testimony of three witnesses who were not interested in the subject-matter of the action, and by documentary evidence also. The plaintiff verified his complaint. It is stated in the complaint that "in the month of October, A. D. 1900, the plaintiff, D. W. Martin, borrowed from the defendant Matt Dowd the sum of one hundred ($100) dollars, and at the same time agreed that he would and did convey onefourth interest in said John Day mining claim to the said Matt Dowd and John Gaffney for the purpose of securing said loan of $100, and for the further purpose that they, the said Matt Dowd and John Gaffney, might negotiate a sale of said mining claim, and on the sale thereof retain said sum of $100 and all interest thereon, and pay to this plaintiff one-fourth of any and all purchase money that they might receive from said sale." In his evidence the said plaintiff denied that said deed was made to secure a loan. The plaintiff testified that he did not understand the contents of the deed when he signed and acknowledged it, while the notary who took his acknowledgment to the said deed (H. K. Barnett) testified that he read the portions of the deed which related to the consideration and the description to the plaintiff, and asked him if he understood the deed, before taking

the acknowledgment, to which the plaintiff replied that he did. The witness Barnett is corroborated by the defendant Gaffney, who testified that he was present when the deed was acknowledged, and that "Mr. Barnett read all parts of the deed relating to the description and amount of the consideration to Mr. Martin before he signed it. Mr. Martin was asked if he understood the deed, and if he signed the same voluntarily, and he said that he did." It was testified to by the defendant Matt Dowd, Charles Dowd, and W. A. Fabrick that at the Dowd farm, in Tammany Hollow, in the month of October, 1899, the plaintiff stated in a conversation with said Matt Dowd, in the presence of Charles Dowd and W. A. Fabrick, that he had sold his interest in said mine to the defendants. The plaintiff did not deny having such conversation, but testified that he did not remember it. Such conversation was testified to by said Matt Dowd, Charles Dowd, and W. A. Fabrick, neither one of whom was contradicted or in any manner impeached. Harry Dowd also testified that he met the plaintiff in October, 1899, near Lapwai, and that plaintiff there and then told him that he (plaintiff) had sold his interest in said mine to Matt Dowd and John Gaffney for $500; that he got $100 down, and would get the balance after awhile. Plaintiff denied this conversation. The defendants offered in evidence the following receipt, which was received, to wit: "Lewiston, Idaho, October 9th, 189-. $100.00. Received from Matt Dowd and John Gaffney one hundred dollars in part payment for the John Day mine. D. W. Martin." Thus it was shown by four witnesses and by the written receipt signed by the plaintiff that he had himself, before the action was commenced, when he had no incentive to tell anything except the truth, declared that he had sold the mine to the defendants, and that he sold it for $500. He was impeached upon material points by H. K. Barnett, by both of the defendants, by Charles Dowd, by W. A. Fabrick, and by Harry Dowd, and by the receipt signed by him. By his own statements made out of court the sale and the purchase price are established as claimed by the defendants. Now, against the statements of the two defendants establishing the transaction between the parties; against the testimony of three witnesses not interested in the transaction, to the effect that plaintiff stated before the suit was commenced that he had sold his interest in the mine to the defendants, and had no further interest in it; that he had sold for the sum of $500, and had received the sum of $100, and would get the balance later; in the face of the written receipt showing that $100 had been paid him on the purchase price,-there is no contradictory evidence in the record, except the evidence of the plaintiff himself, who testified that the transaction and contract was that the defendants were to take the deed, and sell the property and give him one-fourth of the

proceeds of the sale, without commission or pay for their trouble, and had loaned him $100. He only owned a fourth interest in the property. Neither the defendants nor their witnesses were impeached, and I cannot see how, under such circumstances, there was a substantial conflict in the evidence. Is a jury to find a verdict arbitrarily in behalf of a plaintiff who is so thoroughly impeached, and no effort is made to bolster up the evidence of such plaintiff, and the verdict to be permitted to stand? If so, the rights of the citizen who may be unfortunate enough to be unp pular, although honest, are not very safe. It was the unquestionable duty of the trial court to set aside the verdict in this case, as it was against law and contrary to the evidence.

(8 Idaho, 463)

KROUTINGER v. BOARD OF EXAMINERS.

EX

(Supreme Court of Idaho. June 3, 1902.) COUNTY-LIABILITY FOR EXTRADITION PENSES-BOARD OF EXAMINERS -MANDAMUS.

1. The expenses incurred by an agent designated in a requisition in returning a fugitive from justice from another state to this state is, under the provisions of section 8425, Rev. St., a state charge, and is not a charge aga nst the county wherein the prosecution against said fugitive from justice may be pending.

2. The board of examiners should allow claims which are by law made a charge against the state, although there may be no appropriation out of which the same can be paid, as, under the provisions of the constitution, the legislature is prohibited from passing upon claims that have not been considered and acted on by said board of examiners.

3. Mandamus will not lie to compel the board of examiners to audit a claim upon which it has already acted. Affirming Pyke v. Steunenberg, 51 Pac. 614.1

(Syllabus by the Court.)

Application by A. W. Kroutinger for a writ of mandamus against the board of examiners. Writ denied.

Miles S. Johnson for plaintiff. Frank Martin, Atty. Gen., for defendants.

QUARLES, C. J. This is an original proceeding for a writ of mandamus compelling the defendants, as members of the board of examiners, to audit the claim of the plaintiff for expenses incurred in going to the state of Tennessee and bringing a fugitive from justice-a prisoner-therefrom to Nez Perce county, under a requisition duly issued by the governor of Idaho, designating the plaintiff as the agent of this state to receive and return said fugitive from justice. The proceedings for said requisition appear to have been regular. To the alternative writ heretofore issued the defendants, members of the state board of examiners, file their return, wherein it is alleged that said board acted upon said claim on the 4th day of

1 See Mandamus, vol. 33, Cent. Dig. § 212.

February, 1902, and rejected the same for the following reasons, to wit: "(a) That said claim was not a proper charge against the state of Idaho; (b) that said claim is a proper charge, and should be borne by the county of Nez Perce, state of Idaho; (c) that the legislature of the state of Idaho has provided no fund and has made no appropriation from which said charges specified in said petition can be paid by the state of Idaho."

The return is in no way controverted. It is therefore apparent that the board of examiners has acted, and under the decision of this court in Pyke v. Steunenberg, 51 Pac. 614, the writ demanded cannot properly be granted. The alternative writ heretofore issued is quashed, and the writ demanded is denied.

But the defendant board asks this court to determine whether or not the claim in question is a charge against the state or against the county of Nez Perce, and both parties so desire. We are also asked to express an opinion as to whether said claim can be paid out of the general fund in the absence of an appropriation made for the purpose of paying such claims. The theory upon which the board of claims held the claim in question to be a charge against Nez Perce county is that it was a part of the cost of a criminal prosecution prosecuted in said county, and therefore not a charge against the state. This theory is based upon the provisions of Act Feb. 9, 1899 (Sess. Acts 1899, p. 120). The second, third, and fourth subdivisions of section 7 of said act are as follows: "Second. The compensation allowed by law to constables and sheriffs for executing process on persons charged with criminal offenses; for services and expenses in conveying criminals to jail; for the service of subpoenas issued by or at the request of the district attorneys and for other services in relation to criminal proceedings. Third. The expenses necessarily incurred in the support of persons charged with or convicted of crime and committed therefor to the county jail. Fourth. The compensation allowed by law to county officers in criminal proceedings, when not otherwise collectible." These provisions have no relation whatever to the claim of the petitioner for expenses incurred in going to another state under the requisition of the governor, and as the agent of this state, to apprehend and bring back to this state a fugitive from justice. Section 8425, Rev. St., make the expenses of such agent a state charge. That section is as follows: "When the governor of this territory, in the exercise of the authority conferred by section 2, article IV, of the constitution of the United States, or by the laws of this territory, demands from the executive authority of any state or territory of the United States, or of any foreign government the surrender to the authorities of this territory, of a fugitive from justice, who has been found and arrested in such state, terri

tory, or foreign government, the accounts of the person employed by him to bring back such fugitive must be audited by the controller and paid out of the territorial treasury." Petitioner was not acting as an officer of Nez Perce county in going to the state of Tennessee and bringing said fugitive from justice back to Idaho, but was acting as the agent of this state, and section 8425, Rev. St., very properly makes his expenses a state charge.

As to the remaining question we are of the opinion that the board of examiners should allow the claim. It is provided in section 18 of article 4 of the constitution, relative to said board, as follows: "They shall also constitute a board of examiners, with power to examine all claims against the state, except salaries or compensation of officers fixed by law, and perform such other duties as may be prescribed by law. And no claim against the state, except salaries and compensation of officers fixed by law, shall be passed upon by the legislature without first having been considered and acted upon by said board." Section 13, art. 7, of the constitution, is as follows: "Sec. 13. No money shall be drawn from the treasury, but in pursuance of appropriations made by law." Section 8425, Rev. St., does not make an appropriation, and it appears that the last session of our legislature failed-doubtless through oversight-to make an appropriation out of which claims like the one in question may be made. Thus, while the board may, and should, if they find the claim to be correct, allow it, yet no warrant can issue to pay it until the legislature should make an appropriation to cover the same. We are treating this as an action to obtain an advisory judgment of this court, and recommend that an appropriation be made by the legislature to pay the claim of the petitioner. No costs to be taxed either party.

SULLIVAN and STOCKSLAGER, JJ., con

cur.

(8 Idaho, 570) AMERICAN HYDRAULIC PLACER CO. et al. v. RICH, Judge. (Supreme Court of Idaho. June 26, 1902.)

MANDATE TO DISTRICT COURT-CONSTRUCTION OF OPINION AND ORDER.

On application for a writ of mandate to the district court to compel obedience to the order of this court, it is proper for this court to construe its own order in connection with its opinion, and, if it finds that the district court has erred or acted beyond its power in construing the mandate or opinion, to correct such mistake by writ of mandate. Quarles, C. J., dissenting. (Syllabus by the Court.)

Application by the American Hydraulic Placer Company and others for writ of mandamus to J. C. Rich, judge. Writ granted.

F. S. Dietrich, for petitioners. James H. Hawley and Milton K. Young, for defendant.

SULLIVAN, J. This is an application for a writ of mandate to the Honorable J. C. Rich, judge of the Fifth judicial district of the state of Idaho, to compel him to enter judgment in the case of Dalliba et al. v. Riggs et al., in compliance with the views expressed in the opinion of this court, as modified upon the rehearing of the appeal in said case. See 67 Pac. 435. That action was brought to foreclose an alleged equitable lien upon certain placer-mining claims situated in Bingham county, and to recover net profits arising from the working of said mines, and to have certain mortgages therein set forth declared fraudulent and void. The case was exhaustively tried, and evidence upon all of the issues submitted, and judgment was entered for plaintiffs. On appeal this court reversed the judgment, holding that, under the contract sued on, the plaintiffs were not entitled to the foreclosure of said alleged equitable mortgage on said mines, and that their lien was on certain shares of stock theretofore deposited and pledged for the payment of the balance of the purchase price of said mines; and the cause was remanded for further proceedings in accordance with the views expressed in said opinion. A petition for a rehearing was filed, and this court in that proceeding passed upon the validity of a certain $75,000 mortgage and a $3,000 mortgage, and on the issue that large profits had been made in operating said mines; holding that said mortgages were valid to the extent of $37,000, and that the evidence failed to show that any profits whatever had been realized from the working of said mines. The cause was thereupon remanded for "further proceedings in conformity with the views expressed in the original opinion herein, as modified by the views expressed herein." Thereafter the remittitur of this court was duly filed with the clerk of the trial court on February 5, 1902; and on March 17, 1902, said trial court convened in regular session in said Bingham county, and counsel moved that judgment be entered in accordance with the provisions of said remittitur, dismissing said action. Thereupon one of the counsel for plaintiffs suggested to the court that he expected his associates to be present, and requested that action be deferred until their presence. At divers times during said term of court, counsel for defendants called the matter to the attention of the court, and demanded that judgment be entered. But the court delayed the matter until April 3, 1902, when counsel for plaintiffs made application for leave to amend the complaint, which application was resisted by counsel for defendant; and after argument the court granted said application, and gave plaintiffs 30 days in which to present their amendments, and the action was continued for the term, thus denying the motion to enter judgment dismissing said action. The facts are fully set out in the affidavit and petition for the writ

If the opinion of this court, as modified by the opinion on the petition for a rehearing in said case, disposed of the issues in said case, and left nothing to be done but the entry of a judgment dismissing said action, then the writ must issue. We are called upon to construe our own opinion. It was held in Gaines v. Caldwell, 148 U. S. 228, 13 Sup. Ct. 611, 37 L. Ed. 432, that it was proper for a court to construe its own. mandate in connection with its opinion, and, if it finds that the trial court erred or acted beyond its province in construing the mandate and opinion, the mistake may be corrected by mandamus. In Soule v. Dawes, 14 Cal. 248, the court said: "The whole case was fully presented on the proofs. This court, upon the pleadings and proofs, decided that the lien of Ritter was paramount to the claim of plaintiffs predicated upon the mechanic's lien. * Afterwards, on the return of the remittitur, the whole case was retried, against the objection of Ritter, the appellant, and a decree rendered against him. In a chancery cause, where all the proofs are in, and the case fully before the lower and the appellate court, the judgment of the latter is conclusive, when it passes upon the merits of the controversy so presented; and, upon the reversal of the decree below, that court can take no further proceedings, unless authorized by the appellate court, except such as are necessary to give effect to the judgment of this court." The opinion in that case is peculiarly applicable to the case at bar. This case was fully tried upon the pleadings and proofs offered, and the case was fully before the trial court, and fully presented to this court. This court passed upon the merits of the controversy so presented, and left nothing for the lower court to do but to dismiss the action and enter judgment of dismissal. Said action, however, does not bar the plaintiffs from protecting their rights in and to the shares of stock deposited with the trustee to secure the payment of the balance of the purchase price of said mines, and to recover any net profits that may be made in the working of said mines; and they may bring an action for that purpose, if they desire to do so.

As the trial court, through a misconstruction of the opinion and order of this court, permitted the respondents to amend their complaint, and refused to enter judgment dismissing said action, the writ of mandate must issue, directing said court to enter judgment dismissing said action, and it is so ordered; the defendant to pay the costs of this proceeding. We presume, of course, that the real parties in interest will see that the defendant is not required to pay any costs herein.

STOCKSLAGER, J., concurs.

QUARLES, C. J. I dissent. When this court reverses a judgment, and remands it

to the district court for the purpose of entering a certain judgment, it should so direct in the remittitur. In Jones v. Stoddart, 67 Pac. 650, this court held that the plaintiff might, by amended complaint, change the nature of his claim. That was an equitable action. The action of this court in this proceeding precludes the respondents in the appeal set forth in the petition from exercising that right.

(8 Idaho, 549)

STEVENS v. HALL et al. (Supreme Court of Idaho. June 13, 1902.) DISTRICT JUDGE-QUALIFICATION.

Where an attorney appears for a defendant in an action, and judgment is entered against such defendant (with other defendants), and said attorney thereafter becomes a judge of the court in which the judgment is entered, and an action is brought therein on such judg ment to revive it, the judge is not disqualified from sitting therein, under the provisions of section 3900, Rev. St., for the reason that in the trial of such action the only issues are as to the regularity of the entry of such judgment and the payment thereof, issues not involved in the original case, and upon which the judge as attorney had not advised or appeared for either party to such suit.

(Syllabus by the Court.)

Appeal from district court, Bear Lake county; J. C. Rich, Judge.

Action by Sidney Stevens against Fremont Hall and others. From a denial of his motion to set aside an order dismissing his action and for a change of venue, plaintiff appeals. Affirmed.

A. B. Gough and T. L. Glenn, for appellant. John A. Bagley, for respondents.

STOCKSLAGER, J. The plaintiff (appellant here) commenced his action in the district court of Bear Lake county against the defendants (respondents), alleging that on the 8th day of April, 1893, in the district court of the Fifth judicial district of the state of Idaho in and for Bear Lake county, a judgment was duly given and made, rendered, and entered by said court against the defendants, and each of them, in favor of this plaintiff, in an action in said court then pending, wherein this plaintiff was plaintiff and said defendants and each of them were defendants, for the sum of $1,888.28, which said judgment bears interest from date at the rate of 10 per cent. per annum. Then follows prayer for judgment. Defendants moved the court to dismiss the action on the ground that there is no such procedure known to our law. This motion was filed January 5, 1900, and on January 25, 1900, the court made the following order: "The court being fully advised in the matter of the motion heretofore made to dismiss in the above-entitled cause, the same is hereby granted." the same day, to wit. January 25, 1900, the court made an order adjourning the term of court. On January 6, 1900, prior to the ruling of the court on the motion, defendants Hall,

On

Brewer, and Bagley filed a demurrer to the complaint, alleging that it did not state facts suficient to constitute a cause of action. On the 7th of May, 1900, an appeal was taken to the supreme court from the order dismissing the action, and on the 15th day of December, 1900, the appeal was dismissed, without prejudice to another appeal, for the reason that an appeal did not lie from such an order. By the record it is shown that on the 21st day of June, 1901, counsel for defendants was served with notice of a motion to set aside order and for change of venue. Thereafter, and on the 30th day of September, 1901, a motion was filed, to wit: "Comes now the plaintiff, by his attorney, and moves the honorable court to vacate and set aside an order of dismissal made and entered in the above-entitled cause on the 25th day of January, 1900, for the reason that the Honorable Joseph C. Rich, judge of the aboveentitled court, the judge sitting in the above-entitled cause, and making said order of dismissal, was disqualified from sitting and acting in said cause, for the reason that he was and acted as the attorney of Chas. Brewer in the case of Sidney Stevens vs. Fremont Hall, John A. Bagley, C. L. French, and Chas. Brewer, pending and tried in the above-entitled court in the month of April, 1893, in which judgment was rendered against said defendants in favor of said plaintiff on the 8th day of April, 1893, and the above-entitled cause being an action to revive said judgment there and then obtained. And the plaintiff, by his attorney, further moves this honorable court for a change of venue in the above-entitled cause, and asks that it be transferred to the district court of the Fourth district of the state of Idaho in and for the county of Lincoln, for the reason that the Honorable Joseph C. Rich, judge of the above-entitled court, and before whom the above-entitled cause is pending, is disqualified from sitting and acting in said cause for the reason that he was and acted as the attorney for defendant Chas. Brewer in the case of Sidney Stevens vs. Fremont Hall, John A. Bagley, C. L. French, and Chas. Brewer, pending and tried in the above-entitled court in April, 1893, in which judgment was rendered against defendants in favor of said plaintiff, and the above-entitled cause being an action for the revival of the aforesaid judgment rendered on the 8th day of April, 1893." On the 20th day of February, 1902, the court, in passing upon the foregoing motion, made the following order: "Plaintiff's motion in this case for a change of venue and to set aside order came regularly on for hearing on this day, and the court, being fully advised of the same, orders that the same be, and is hereby, overruled and denied." From this order the appeal is taken, and the whole thereof.

The suit of Stevens v. Hall et al. was filed in the Bear Lake county district court November 1, 1892. T. L. Glenn was one