17 S.D. 83 | S.D. | 1903
The plaintiff alleges that he is the owner and holder of the following order or warrant, which was presented for payment and payment refused on. October 10, 1894, no part of which has been paid: “$1,500.00. South Dakota, County of Aurora. May 5th, 1893. To the Treasurer of White Lake Township, S. D.: Pay to the order of Alfred Short, per H. M. Miles, the sum of fifteen hundred dollars, for No. 2 artesian well, drilling 500 feet, at $3.00 per foot, out of any money in your hands belonging to the artesian well fund not otherwise appropriated, belonging to said township. [Signed] A. H. Hall,- Clerk. G. W. Cooper, Chairman, pro tern. No. 22” He also alleges that at or about the time the payment of said
Respondent’s contention that this appeal should be dismissed because it was taken before the judgment roll was filed is untenable. The roll was filed July 2, 1901. Notice of appeal was served on respondent’s attorney June 27, 1901, and on the clerk July 3, 1901. An appeal is taken by service of notice in writing on the adverse party and on the clerk of the court in which the judgment or order appealed from is entered. Comp. Laws 1887, § 5215. Where a party has an attorney in in the action, service must be made upon the attorney, instead of the party. Id. § 5336. Service on the clerk is as essential as service on the attorney of the adverse party. V. C. Land Co. v. Schone, 2 S. D. 344, 50 N. W. 356. The statute declares that ‘ ‘the appeal shall be deemed taken by the service of the notice of appeal.” (Comp. St. 1887, § 5215); that is to say, by service on the adverse party and on the clerk. Hence the appeal in this case was not taken until service was made on the clerk, and before that was done the roll- had been filed. As respondent’s position would not be more favorable under the law
It is conceded, and properly so, that the contract in suit falls within the six-years limitation. Comp. Laws 1887, § 4850. This action was commenced on June 2, 1900. Therefore the inquiry arises whether plaintiff’s cause of action accrued within the six years next preceeding that date. Id. § 4833. Evidence was introduced tending to establish these facts: Bonds were sold by the defendant corporation for the purpose of se: curing funds with which to construct certain artesian wells.' Had the proceeds of such bonds not been embezzled by a former town treasurer, there would have been sufficient money in
In anticipation of the issues likely to arise on a second trial, it is proper to observe that the warrant sued on should be regarded as representing but one indivisible cause of action; and
The judgment of the circuit court is reversed, and a new trial ordered.