Medbury v. Maloney , 12 Idaho 634 ( 1906 )

SULLIVAN, J.

This action was commenced before a justice of the peace in Bonners Ferry precinct, Kootenai county. The defendants, who are appellants here, appeared and moved for a change of venue on account of the bias and prejudice of the justice of the peace. Said motion was granted and the case transferred to a justice of the peace in Naples precinct in said county. Thereafter appellants filed a motion to dismiss the action on the ground that the court had no jurisdiction, for the reason that said action was not brought in the precinct where the defendants or either of them resided, or where the contract sued on was to be performed. Said motion to dismiss was denied and defendants did not further appear, but failed and refused to make any answer therein. The plaintiffs thereupon introduced evidence on their behalf, and judgment was rendered and entered in their favor for the sum of $104.65 and costs of suit. Thereafter the defendants served their notice of appeal and stated therein that the appeal was “taken on both questions of law and fact.”

The case came on for hearing in the district court, and there is nothing in the transcript showing what occurred there except the order of the court, which is as follows:

“This cause having been heretofore argued and submitted to the court and taken under advisement, now at this time, the court being fully advised, the motion of the appellants herein to remand this cause to the justice court is hereby denied and the judgment entered herein by F. B. Bond, justice of the peace of Naples precinct, on the fourth day of August, 1905, is hereby confirmed and affirmed;

“Wherefore, it is ordered, adjudged and decreed that the said plaintiffs, H. L. Medbury and John O’Hogge, do have and recover of and from the said defendants John Maloney and Nellie Maloney the sum of one hundred and four dollars ($104), with interest at the rate of seven per cent per annum from October 1,1904, and the costs of this action taxed at-dollars.”

It is recited in said order that the cause was argued and submitted on the motion of the appellants to remand the cause to the justice court. and that such motion was denied and judgment entered. The record fails to show the grounds of the motion to remand. In the briefs of counsel, however, it. is conceded that the court passed upon two questions. One was as to the jurisdiction of the justice of the peace who tried the case, and the other was as to defendants’ right to appeal and answer in the district court when he was in default for want of answer in the justice court. But there is no intimation in the record that the court passed on either of those questions. On appeal this court will only pass upon and determine questions that the record shows were passed upon by the trial court, and questions of jurisdiction of the court from which the appeal is taken. The only question passed upon by the trial court, so far as the record shows, was the motion of appellants to remand the cause to the justice court, and as the record fails to show the grounds for that motion, this court is unable to determine whether the court erred or not.

The judgment of the trial court is affirmed, with costs in favor of the respondents.

Stockslager, C. J., and Ailshie, J., concur. (January 2, 1907.)