Opinion
No. 8470.
July 20, 1956.
APPEAL FROM DISTRICT COURT.
Ronald D. Spanton, pro se.
Graydon W. Smith, Atty. Gen., Edward J. Aschenbrener, T.J. Jones, III, Asst. Attys. Gen., for respondent.
This case and cause of action does come under the meaning of extraordinary circumstances. Article 5, Section 9, Idaho Constitution.
The Supreme Court of Idaho will issue such writs and entertain proceedings thereon only in extraordinary cases. In re Barlow, 48 Idaho 309, 1929, 282 P. 380.
Ordinarily, a Writ of Habeas Corpus will not be granted if the petitioner has an adequate remedy by appeal or Writ of Error. Salinger v. Loisel, 265 U.S. 224, 44 S. Ct. 519, 68 L.Ed. 989; 25 Am.Jur. 157.
The record presented in the case at bar, disclosing as it does that petitioner originally called in to exercise the jurisdiction of the District Court, proceeded to an adverse determination of all the issue involved herein in that court, and brought the whole matter to this Court for review on appeal. An orderly course of procedure requires that the petitioner does not abandon his appeal from that action but proceeds to a determination of the cause on the grounds of his appeal already perfected herein. Allen v. Williams, 31 Idaho 309, 171 P. 493.
Petitioner filed original application with this court for writ of habeas corpus June 11, 1956. Writ issued June 13, 1956. The defendant filed a motion to quash and a return, to which petitioner answered. By these pleadings it is shown that petitioner had previously made application to the district court of the Third Judicial District for writ of habeas corpus, upon the same ground upon which writ was issued herein; writ was issued by the district court and a hearing had upon the return thereto; petitioner appealed from the order of the district court quashing the writ and remanding petitioner to defendant. 78 Idaho 234, 299 P.2d 1103. Under such circumstances the writ was inadvertently issued by this court.
It is, therefore, ordered that the writ be quashed, and the proceedings dismissed.
KEETON, PORTER, ANDERSON and SMITH, JJ., concur.