specially concurring.
In Minich v. Gem State Developers, 99 Idaho 911, 921, 591 P.2d 1078, 1088 (1979), I registered my misgivings as to the Court’s wisdom and propriety in judicially amending the legislatively enacted I.C. § 12-121 by Rule 54(e), lamenting that the erroneously promulgated “rule” of this Court was not too unexpected “where the matter comes before the Court administratively rather than in a contested case, wherein we receive the benefit of the argument and authority of able counsel.”
Here, short months later we have a persuasive brief wherein able counsel do discuss that exact proposition. The Court impliedly concludes that it need not be addressed, the barn door having been shut with the horse not in, having heretofore been ridden off with the Court astride. Again I opine here as I did in that case:
“It was the prerogative of the legislature, and the legislature alone, to create law whereby attorney’s fees may be awarded by district courts in all civil actions; where that sparsely worded statute has created confusion and proliferation of litigation, the legislature, not the Court, should amend its own statute, giving it such further definition and delimitation as it concludes to be necessary and desirable.”
99 Idaho at 922, 591 P.2d at 1089.