Mathison v. Felton ( 1965 )

SMITH and KNUDSON, Justices

(concurring in part and dissenting in part).

We agree with the majority opinion that the trial court had jurisdiction to issue the judgment of contempt and that the evidence submitted was sufficient to sustain the conviction. However, since the scope of our review of this proceeding is limited to a determination of the jurisdiction of the trial court to issue the judgment, and having found that the court had jurisdiction, we do not concur in the conclusion that a portion of the judgment has become a nullity or that we may set any part of it aside.

We quote the material portions of the judgment as follows:

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

“1. That the defendant, Wendell Mathison is guilty of Contempt of Court.

“2. That the defendant, Wendell Mathison, is hereby fined the sum of FIVE HUNDRED ($500.00) DOLLARS lawful money of the United States of America, and sentenced to serve the term of FIVE (5) days in the County Jail of Nez Perce County, Idaho.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED:

“That the said Five-day jail sentence-will be suspended in the event that the-said Defendant, Wendell Mathison, prior to January 15, 1965, removes the obstructions on the road which were placed by him.

“In the event that this is not done prior to January 15, 1965, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that his five-day jail sentence shall begin on January 16, 1965, at the hour of 8:00 A.M., and end on January 22, 1965, at the hour of 8:00 A.M.”

The judgment shows that the trial court made no distinction between the two elements of the penalty imposed, i. e. the fine and the jail servitude.

The jail sentence was conditionally suspended if Mathison would remove the road obstruction, which he never did. Rather he petitioned for a review and the writ issued. This court in the companion case, No. 9485, released November 24, 1965, 90 Idaho 76, 408 P.2d 450, has held that the road had been abandoned and that Mathison was under no duty to remove the obstruction.

While we are 'of the view that neither element of the judgment, i. e. the jail sentence or the fine became void, nevertheless we recognize jurisdiction in the trial court to remit the whole or any part of the penalty imposed. In view of the decision of this court that Mathison was rightfully in possession of the property involved, although technically in violation of a court order, we trust that the trial court will consider remission of such portions of the penalty as may seem advisable in the premises.