168 N.W. 751 | S.D. | 1918
Respondents were convicted in the municipal court of Sioux Falls of violating a city ordinance. They appealed from the judgment of conviction to1 the circuit court of Minnehaha county, where a jury trial resulted in a verdict of acquittal. Upon this verdict a judgment was entered, dismissing the action and awarding respondents 'their costs. After the entry o,f this judgment, the city procured an order from the circuit court, citing re
The question has been before this court on several occasions. In City of Huron v. Carter, 5 S. D. 4, 57 N. W. 947, the question was -made to -depend upon the nature of the offense -charged. In the opinion of the court it w-as said:
In City of Madison v. Horner, 15 S. D. 359, 89 N. W. 474, the court, without disclosing the nature of the offense charged against the defendant, vacated a writ of error on- the ground that suich actions were civil actions and could not be brought to this Court on writ of error, ¡but by appeal only (citing ¡cases -o-n page 474, 89 N. W.) City of Centerville v. Olson, 16 S. D. 526, 94 N. W. 414, originated in the -police justice court of the -city of Center-ville. Defendant was convicted and sentenced to pay a fine. He •thereupon gave oral notice of appeal to -the circuit -court. In the circuit court the plaintiff -moved to dismiss- the 'appeal, on the ground that the -case was a civil action and1 that the circuit court did not acquire jurisdiction, because the notice of .appeal had not been in writing, as is required in -case -of civil 'actions. The motion was- overruled, and such ruling assigned as error. In passing upon the question, this court s-aid:
“The action certainly -partakes of the nature of a criminal action, in. that the defendant may be imprisoned for a failure to pay the fine and costs imposed upon him. As the action is not brought in the name of the state, however, it is not strictly a criminal action, as defined in section 4813 and 4814, ¡Clomp-. Laws 1-887. N is quite apparent from the language used in section 9 [section 9, -art. 11, -c. 37, Laws 1890], above q-uoted, read in connection with the clause in the latter part of section 14 of the same act (page 86), that the Legislature intended that the law as to appeals- -applicable to -criminal actions in justice -Courts should -govern; appeals taken under th-at act. The -clause in section 14 referred to reads as follows : Tn- all -cases, not herein specially provided for, the -process ■and proceedings of said -court shall be governed by the laws regulating proceedings in- justices’ courts in -criminal- cases.’ ”
Following the ru-le -deducible from the foregoing -cases, and what seems to us a reasonable rule to -apply in such cases, the respondents are not entitled to tax th-eir costs- in this action. While the -cause is not prosecuted by the state ,as a party, it -partakes -of all the -other elements lo-f a criminal action. The offense -charged
The -portion of the judgment appealed from is reversed, but no costs will be awarded to either party ion this appeal.