State v. McNichols , 62 Idaho 616 ( 1941 )

In my opinion, no useful purpose can be served by prolonging litigation in the above entitled cause. Under no circumstances is respondent entitled to return of the money (Dorrell v.Clark, (Mont.) 4 P.2d 712; Asher v. Johnson,79 P.2d 457), which is the material question in controversy, and that the parties seek to have determined. The motion for the return of the money made by respondent in the District Court vested that Court with no jurisdiction. Likewise, the order returning the money to respondent made by the District Court was without and beyond its jurisdiction, and unenforceable (MacWatters v.Stockslager, 29 Idaho 803), all of which appear from the files and records now before this Court.

Respondent strenuously contends, and rightly so, that the order directing the return of the money was absolutely void because the District Court had no jurisdiction to make it, and urges that the appeal should be dismissed. A dismissal of the appeal on the ground that the order was absolutely void, would necessitate that the order be vacated, and would result in a denial of the right of respondent to the money in question, and thus end the litigation.

The appeal should be dismissed with instructions to the District Court to vacate its order returning the money to respondent.