Argument for Appellant.

attorneys bind her by stipulation. The judgment not being warranted by the stipulation, the appellants are not estopped from appealing therefrom.

We feel sure that the judgment in this case was entered through inadvertence. Appellants should have made application to the district court to vacate said judgment under section 4229 of the Revised Statutes. Such application, we are satisfied, would have obviated the necessity of this appeal. This being an equitable action, the awarding of costs is in the discretion of the court. Under the circumstances of this case we think that each party should pay his own costs upon this appeal, and it is so ordered. The judgment is reversed, and the cause remanded to the district court, with instructions to find the amount due upon each of the mortgage debts, and to enter a decree directing the sale of the mortgaged premises described in the several mortgages to satisfy the particular debt for which such property has been hypothecated, and directing the clerk to docket judgment against A. O. Miller, only, for such deficiency as may be shown by the sheriff's return of sale to be due on said mortgage debts, and for further proceedings in accordance with law.

Huston, C. J., and Sullivan, J., concur.

(January 24, 1900.)

AH FONG v. McCALLA.

[59 Pac. 930.]

WRIT OF REVIEW-MEDICAL BOARD-PETITION-DEMURRER.-The case considered and held that the action of the district court in sustaining demurrer to appellant's petition for review was error. (Syllabus by the court.)

APPEAL from District Court, Ada County.

D. D. Williams, for Appellant.

After the return of the defendant was before the court, it was the duty of the court to consider it; the affidavit had

Opinion of the Court-Huston, C. J.

performed its full duty and could not be considered further in the case. A demurrer in this case may be a proper pleading if interposed before the return is made and filed, but after that is done the demurrer has no place in the case, and the return was all that the court had before it to consider. (Spooner v. City of Seattle, 6 Wash. 370, 33 Pac. 963.) We have looked in vain for any authority that holds that a demurrer to the petition was proper after the return to the writ was on file. Where a full return has been made the court must hear the parties and give judgment affirming, annulling or modifying the proceedings below. (Rev. Stats., sec. 4669.) When the return is made to the writ, the supreme tribunal tries the case, not upon the allegations contained in the petition for the writ, nor upon any question of fact, but by the record alone as it is returned in obedience to the writ. (Behrens v. Commissioners, 169 Ill. 558, 48 N. E. 579; Smith v. Commissioners, 150 Ill. 385, 36 N. E. 967.)

Samuel H. Hays, Attorney General, for Respondents.

This proceeding is brought under section 9 of the act regulating the practice of medicine (Laws 1899, p. 345), and section 4962 et seq. of the Revised Statutes. The affidavit or petition corresponds to the complaint and the return to an answer in cases of this kind. (Madison v. Piper, 6 Idaho, 137, 53 Pac. 395.) The time of filing the demurrer was unimportant, because the objection that the complaint fails to state facts sufficient to constitute a cause of action may be taken at any time and is never waived. (Rev. Stats., sec. 4178; Miller v. Pine Min. Co., 3 Idaho, 493, 35 Am. St. Rep. 289, 31 Pac. 803.)

HUSTON, C. J.-The appellant made application to the board of state medical examiners for a license to practice as a physician and surgeon within the state of Idaho. His application was refused, and he made application to the district court of Ada county for a writ of certiorari to review the proceedings and action of said medical board. The district court issued its writ of review, to which return was made

Opinion of the Court-Huston, C. J.

by said board. The application of appellant was made and filed on August 5, 1899; writ of review was issued on same day, returnable on the fourth day of September, 1899. The record contains a jumbled mass of papers, without order or method of arrangement. It would seem that on the seventeenth day of August what purports to be a return to the writ of review by the board of medical examiners was filed in the district court. On the twenty-eighth day of August, 1899, a demurrer to the petition of appellant was filed. On the fifth day of September, 1899, a motion for a further return was filed by petitioner. On the same day said order for a further return was granted on consent of counsel for defendants, said return to be made on 8th of September, 1899. On September 8th, the time for making said amended return was extended to September 11th. On September 11th an amended return, showing the action of said board on the 8th of September, 1899, at a special meeting thereof, in the matter of the application of appellant for a license. On the 14th of September, 1899, the cause "came on regularly to be heard before the court on plaintiff's motion to strike out defendants' amended return herein and on defendants' demurrer to plaintiff's application." After argument the court took the matter under advisement, and on the 29th of September, 1899, entered an order sustaining the demurrer of defendants to plaintiff's petition, and ordered judgment acordingly, the plaintiff having declined to amend or answer further. From this action and judgment of the district court this appeal is taken.

The only question presented for our consideration is the correctness of the action of the district court in sustaining the demurrer of defendants to plaintiff's complaint. We think the action of the district court was erroneous. The petition of appellant was sufficient to entitle him to the writ prayed. The order of the district court and the judgment thereon are reversed, and the cause is remanded, with instructions to the district court to overrule the demurrer of defendants, and further proceed in said case according to law. Costs of this appeal to appellant.

Quarles and Sullivan, JJ., concur.

Argument for Respondents.

(January 26, 1900.)

MCGINNESS v. STANFIELD.

[59 Pac. 936.]

PRE-EMPTION AND HOMESTEAD Laws-DIRECTION OF SUPREME COURT TO DISTRICT COURT TO CORRECT FINDINGS.-An appeal from the action of the district court carrying out the directions of this court in correcting its findings and decree. The record examined and held that the district court had correctly followed the direction of this -court.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

N. M. Ruick, for Appellants.

As this appeal so far as we know is without a precedent in this court, it is proper at the outset that we should state its purpose and the object sought to be attained thereby. It is to procure this court to examine the decree entered by the district court to ascertain if it conforms to the mandate of this court, and if it does not so conform to remand the case with appropriate directions for correcting the error. We at once concede that this appeal cannot be entertained for any other purpose than the one stated above, but that it is authorized for such purpose is abundantly supported by authority. (Krantz v. R. G. W. Ry. Co., 13 Utah, 1, 43 Pac. 623, 32 L. R. A. 828; Roberts v. Cooper, 20 How. 467, 480; Humphery v. Baker, 103 U. S. 736; State v. Levelle, 38 S. C. 216, 221, 16 S. E. 717, 17 S. E. 30; Zimmerman v. Turner, 24 Wis. 483; Mackall v. Richards, 116 U. S. 45, 6 Sup. Ct. Rep. 234; Aspen etc. Co. v. Billings, 150 U. S. 31, 14 Sup. Ct. Rep. 4; Smith v. Shoffer, 50 Md. 132; Martin v. Platt, 131 N. Y. 641, 30 N. E. 565.)

E. M. Wolfe and Hawley & Puckett, for Respondents.

The defendants in this appeal, J. J. and Ida McGinnes, rely not upon the transfer of Harvey Glenn, but upon actual appropriation of the waters of Cold Spring creek in the year 1887. The defendant, Ida McGinnes, has used the water of said creek

Opinion of the Court-Huston, C. J.

from 1887, continuously, to the trial of this cause, except during the time that she was forcibly removed and kept out of possession of the same. The circumstances in this case do not warrant the court in saying that she abandoned the premises nor the use of the water thereon. (Welch v. Garrett, 5 Idaho, 639, 51 Pac. 405.)

HUSTON, C. J.-This case was before us, and was decided December 30, 1898. (McGinness v. Stanfield, 55 Pac. 1020.) The order made by this court in that case was that "the judgment of the district court is reversed, and the cause remanded to the district court, with instructions to correct its findings of fact and modify its decree in accordance with the views herein. expressed." Upon the coming down of the remittitur, the district court proceeded to amend its findings and modify its decree in accordance with the judgment and order of this court. From such action of the district court this appeal is taken, it being claimed by the appellants that in its action the district court did. not follow the judgment and order of this court. The action. was originally brought for the purpose of settling the rights of certain parties, plaintiffs and defendants, to the waters of a certain creek or stream known as "Cold Spring creek." In its original findings, the district court found that "J. J. and Ida McGinness were entitled to the use of waters of said creek as follows: Under appropriation June 30, 1877, twenty-one inches; under appropriation June 30, 1882, forty inches; under appropriation June 30, 1887, fifty-nine inches." The evidence in regard to the claim of the said J. J. and Ida McGinness, as the same appears in the record, was as follows: "That on April 19, 1887, one Clark Smith [then the husband of Ida Smith, since and now Ida McGinness, wife of J. J. McGinness] filed a pre-emption claim upon the above-described tract of land [the southwest quarter of the northwest quarter, and the west half of the southwest quarter, and the northeast quarter of the southwest quarter, section 28, township 4 south, range 9 east, containing one hundred and sixty acres], and settled thereon, remaining in possession until some time in February, 1888, at which time he separated from his wife and family, leaving the