15 S.D. 415 | S.D. | 1902
The purpose of this special proceeding is to compel the treasurer of Beadle county and the treasurer of the board of education of the city of Huron to receive two alleged school warrants in satisfaction of school taxes due from the plaintiffs to the board of education. The alleged warrants are the same, except as to amount, one of which reads as follows: “$200.00. Territory of Dakota, County of Beadle. Huron, February 15th, 1881. To L. J. Corbin, Treasurer of School District Number One; On the 15th day of February, 1884, pay to C. C. Hills or bearer, the sum of two hundred dollars, for cash, out of any money in your hands belonging to the school house fund, not otherwise appropriated, belonging to said district, with -interest at ten per cent per annum, payable annually. O. A. Cheney, District Clerk. T. J. Nichol,
“Sec. 44. School Orders — Payment of. The clerk shall draw all warrants or orders for the payment of money for teachers’ wages, or any other purpose legally ordered by the school board, or by the voters at any district meeting. Said orders shall also be signed by the director, and paid by the treasurer on presentation. Each order shall specify whether the money is to be paid from the teachers’ fund, the contingent fund or the school house fund; and in case the treasurer has no money in the fund drawn upon to pay such school warrant, he shall indorse it ‘Not paid for want of funds” and all orders so presented and indorsed shall draw ten per cent interest after presentation until paid, unless otherwise expressed in writing. If there be money in his hands to pay a portion of such warrant, he shall pay such money and indorse the amount so paid upon the warrant, and interest at ten per cent shall accrue upon the amount unpaid.”
’ “Sec. 92. The form of order on the district treasurer may be as follows: ‘To-, treasurer of school district number-of the county of-. Pay to the order of-, the sum of - dollars for -, out of any money in your hands belonging to the - fund, not otherwise appropriated, belong
Daws Dak. 1879, c. 14, §§ 44, 92.
In view of these provisions of .the statute, it seems clear that the school district was not authorized to issue warrants or orders payable by their terms at a future date. Whether the instruments in suit are valid for any purpose we do not decide; but they were not school warrants when -issued, and therefore are not receivable for taxes under the law of 1891. Again, the co-called warrants are.not under seal. They were issued February 15, 1881, and were, by their terms, payable February 15, 1884. This proceeding was comnjenced in June, 1896. If these instruments are of any validity whatever, they are express contracts falling within the six-years limitation. Comp. Laws, § 4850. They are not, nor do they purport-to be, ordinary school warrants, payable upon presentation Jn the order of registration, or when sufficient funds shall have been accumulated for the purpose. They are express, promises to pay specified sums at specified times, upon which causes of action accrued February 15, 1884. It is contended, however, that the limitations upon civil actions prescribed by the code of civil procedure have no application to special proceedings of a civil nature. The only authority cited by respondent in support of this contention is Pelton v. Supervisors, 10 Wis. 63. That was an action upon a county order or warrant. The defendant pleaded the statute of limitations. After having decided the only question involved by holding that such orders are simple contracts barred in six years from date of presentation for payment, the court suggests that: “Although the action might be barred upon them in six years, still orders are available to the amount of their face in payment of county taxes under the provisions of the statute; -so that, though an action
It appears from the abstract that the decision and judgment of the lower court were rendered February 3, 1898, and that the bill of exceptions was settled March 7, 1899. Neither the trial court nor the judge thereof is authorized to extend the time for serving and settling a bill of exceptions or statement, or to fix another time in which the same may be served and settled after the statutory and extended time has expired, except by consent of the adverse party, or for “good cause shown.” McGillycuddy v. Morris, 7 S. D. 592,65 N. W. 14. In the absence, however, of any showing to the contrary, where exceptions appear to have been settled after the statutory period has elapsed, it will be presumed that the time was extended by consent or for good cause shown. In the absence of an additional abstract, the court on appeal will assume that a bill of exceptions was properly settled, though such fact does not affirmatively appear from the abstract. State v. Evans, 12 S. D. 473, 81 N. W. 893. If it shall appear, when this proceeding has been remanded, that the defendants, or either of them, shall have complied with the plaintiffs’ demand after the appeal was taken, or if for any reason a peremptory writ of mandamus should not be issued, the circuit court can make such disposition of [he matter as shall be consistent with the changed conditions and the views herein expressed.
The judgment is reversed.