(Dissenting from Conclusion Ordering Peremptory Writ.) — It occurs to me that the judgment and order of this court prohibiting a district judge from proeeedr ing to settle a bill of exceptions or to hear a motion for a new trial in a case pending before him will strike the profession of this state with as much surprise as it does me. I am perfectly clear that this court has no right or authority to issue a writ of prohibition against Judge Gwinn restraining and prohibiting him from hearing and considering an application for settlement of a bill of exceptions or hearing and passing upon a motion for a new trial.
*193Now, preliminary to what I shall say in this ease, I may observe that I am in entire harmohy with what the majority of the court has said with reference to the neglect and laches on the part of the defendant in the ease of Behrensmeyer et al. v. Plank, and that under such circumstances if his motion for a new trial should be denied by the trial court and he should appeal to this court, the appeal would undoubtedly be dismissed for the same reason that appeals were dismissed by this court in the cases of Smith v. American Falls etc. Co., 15 Ida. 89, 95 Pac. 1059, and McCrea v. McGrew, 9 Ida. 382, 75 Pac. 67. Litigants must act with reasonable diligence and that certainly has not been done in this case. It must be remembered, however, that in the cases above cited and all the other cases dealing with the question of laches, the point has been discussed by the court in the exercise of its appellate jurisdiction and in considering a case on appeal. The determination of the question as to when a party is guilty of laches involves the exercise of discretion. Indeed, its determination signifies the exercise of discretion. The majority of the court do not pretend to hold that Judge Gwinn has lost jurisdiction by reason of the lapse of some statutory 'period prescribed for the doing of a thing, but they rather hold that he has lost jurisdiction by reason of the laches of a party to the action. This, I presume, is the first time that it has been announced by a court that the alleged laches of a party to an action deprived the court of jurisdiction to act upon the matter in which the party is charged to have been guilty of laches. The sole reason stated by the court for denying the jurisdiction of the district judge to hear or settle a bill of exceptions and to hear and pass upon the motion for a new trial is stated as follows: ‘ ‘ The record in the present case does not show diligence upon the part of the appellant to bring about a hearing upon his motion for a new trial and fails to show that the appellant has prosecuted the appeal in good faith. We, therefore, hold in this case that Hon. James G. Gwinn, judge of the district court . . . . had no jurisdiction or authority to settle the bill of exceptions .... and also has no jurisdiction to proceed any fur*194ther in this ease.” Now, it is clear that the district judge has original jurisdiction to settle bills of exceptions and hear motions for a new trial. It is equally clear that the ease of Behrensmeyer v. Plank is pending in the district court over which Judge Gwinn presides, and it is equally clear that he has jurisdiction of the subject matter involved in the action, and it is likewise clear that this court has not pointed out any statutory limitation of time beyond or after which a trial judge cannot act in such matters. Who knows that the trial judge may not, when he comes to consider the settling of this bill of exceptions, conclude that the party is guilty of such laches as to justify him in denying the application and declining to certify the same? Or suppose he settles this bill of exceptions, who can say that he will not deny a motion for a new trial, in which event his judgment would be final unless the defendant appealed to this court. We awe not confronted with the question as to whether or not the court is committing' an error against one party or the other. We are confronted with the question as to whether he is acting without jurisdiction or not, and this court has so held so matny times that it is needless to cite the amthorities. If he' commits an error in a case where he has jurisdiction, the aggrieved party has a plain, speedy and adequate remedy to correct the same by appeal. If he has jurisdiction of the parties and the subject matter, then he has jurisdiction to commit the error, if any is committed, of which the parties complain. If the determination of the question of when a party is guilty of laches is one that appeals to the discretion of a court, as it undoubtedly does, then certainly the trial judge has a right in the first instance to determine whether or not this party has moved with due diligence or whether his seeming negligence is excusable for any reason, and the action and decision of the judge thereon will be subject to review by this court, and under the uniform holdings up to the present time this court would not disturb the -decision of the trial court thereon, unless it could say that the trial judge had abused the legal discretion which was called in operation in deciding upon the question. p
*195It is said in the majority opinion tbat “On October 28,19Í3, Judge Gwinn stated to plaintiffs’ attorney tbat he bad decided in favor of bis jurisdiction to settle tbe bill of exceptions and would settle tbe same and entertain and bear a motion for a new trial.” Tbe district judge, on tbe contrary, certifies in bis return to tbe writ as follows:
“Tbat prior to tbe service of tbe alternative writ of prohibition in this cause this defendant found no time nor opportunity on account of tbe press of court business to examine into or consider any of the objections interposed by counsel for tbe plaintiffs to tbe settlement of said bill of exceptions, except tbe jurisdiction of tbe subject matter as hereinbefore set out, and tbat up until tbe time of tbe service of tbe alternative writ of prohibition in this cause this defendant bad never decided nor considered such objections, bad not decided tbat be would settle tbe said bill of exceptions, or that be would entertain and bear tbe motion for a new trial on behalf of tbe defendant in said cause, and had given out no notice of any nature of any such decision, for tbe reason tbat no such decision bad at tbat time been reached.”
Tbe reporter’s notes of tbe proceedings bad in court tend to support the return of tbe judge on this point.
The question raised by tbe plaintiff in this court as to whether the defendant took tbe necessary action in tbe first place within the statutory time or secured a proper extension thereof is not considered or discussed by tbe majority of tbe court, and so I refrain from considering tbat at this time. Neither do they consider the more serious and important question presented here of tbe right of tbe trial court to stay proceedings or to recall tbe execution previously issued and stay the levy of execution and sale of property.
While I disagree with the majority of tbe court in issuing a writ of prohibition in this case, I agree tbat there has been such negligence and laches in tbe case as would justify this court in dismissing an appeal if the case were here on appeal.