The Idaho world. [volume] (Idaho City, Idaho Territory) 1864-1918, 1873-05-01
IMPORTANT DECIsIoN.

Montana, has recently rendered an importan
decision on the question ofpractice i "a
Territorial courts, andso one that is Of great in
terest not only TO the lawyers Of that Terrific
|ry, but also to the lawyers of Idaho, as well
lin fact, as to lawyers throughout the Terrific
ries generally. The case in which the decision
was rendered was r. w. Jeffries vs.. D. Y
Sherman and E. H. Wilson for the foreclosure
of a mortgage, wherein decree was asked il
the complaint for sale of the mortgaget
premises, and, for any balance that might re
main unsatisied, docketed judgment and ex
ecution thereon against any other propert,
owned by the defendants.
A demurrer was interposed by defendants
counsel, the grounds of which were-1st. Fol
misioinder of causes of action. I'd. Joinder
or blending of law and equity. Sd. Want Of
sufficient facts stated. 4th. Ambiguity o.
pleadings. The demurrer Of course brought
in question the right of the Territorial Lesis'
lature to regulate the practice. or prescribe
the mode OF proceeding in the courts OF the
Territory. The opinion of Judge Servis was
not reported in full, but from synopsis which
we End in the BozemAn Audnt Courier, it ID
evident that the Judge took sound, practical
and common.sense view d the right Of the
Legislature to regulate the mode Of proceed
ing in the Territorial courts in all cases where
the courts were not setting as United States
g.. %ho <r:0 ~ of or AaP fho
constitution and laws Of the United States.
In his premises, Judge Servis lays down the
doctrine enunciatsd by the Supreme Court Of
the United States in the celebrated case Of
Clinton Va. Engelbrecht, that I" the theory upon
which the various governments for portions Of
the territory Of the United States have been
organized, has ever been that Of leaving to the
inhabitants all the powers Of selfgovernmeht
consistent with the supremacy and supervision
Of national authority aud with certain funda-
mental principles established by Congress-"
He states that he holds no such absurd doctrine
that there is Supreme Court Of the United
States 10 Territory. nor any District Court Of
the United States, in the sense Of the Con.
stitution: That they are legislative courts Of
the Territory. created by virtue Of the clause
of the Constitution which authorizes Congress
to make all needful rules and regulations re-.
specting the Territories and other property Of
the United States; and says there is no con.
6ict between the decision Of the Supreme
Court Of the United States in the case Of
Noonan IS. Lee. in ID Blacks reports. aud the
decision of the same court in the case Of The
American Insurance Co. IS. Canter, in lst
Peters. He refers to the case Of Orchard vs..
Hughes, reported in lst Wallace, and the sub
'equent adoption of the 92d rule Of the Su.
'reme Court, allowing an execution to issue
or the balance due on a judgment after the
ale Of the mortgaged premises. And in re-
erring to the case of Dunphy vs.. Klenschmidt,
which went up from Montana, Judge Servis
avs that the decision 10 that case. ~ in the
thers referred to. only decided that Terri.
orial Legislature could not take away and an
ul the chaucery and common law jurisdiction
4 the courts in the Territories; and in none
f the cases has it been held that the Legislature
4 Territory could not regulate the practice
n the courts. He holds that the Territorial
legislature is not prohibited from prescribing
nodes Of exercising Jurisdiction. except 10
ases where the laws Of the United States are
ought to be enforced under chancery and
ommon law jurisdiction. Judge Servis winds
p bis decision as follows:
hold that the laws and practice act Of this Terri
)ry must prevail In the case at bar-and In All other
lses OF similar character. And this holding I Il
link Is fully sustained In the case Of Clinton w.
nglebrecht, In 18th Wallace. The demurrer will
,erefore be oyerruled.
The Judge who rendered this important de.
ision has but recently been appointed one Of
10 Associate Justices Of the Supreme Court
Montana; and, If we are correctly informed.
from Ohio, having, but a short time ago, Of.
.r his appointment, gone to Montana. He is
Vidently possessed Of brains and ability, and
tainted with none Of that bias aad prejudice
gainst the people Of Territory which char
cterized the course and conduct of judge
'ewis. sVho endeavored to convert order into
baos. and ride rough-shod over the rights oil
10 people Of Idaho. There is quite contrast
etween the course of Judge Servis in Mon.
Ina and that Of the puritanical bigot and "a
ATTIC, Mexican, Of Utah. who conceives that
has mission tn fulfill, and, in his crazy Of.
'rt' to suppress Mormonism. tramples under
'ot every law, Territorial and National. Ac. Il
'rding to the decision Of Judge Servis, up.
'lding the practice act adopted by the Mon. 0