*1 854 (S.D.1982),
Bingen, manage 99 it does N.W.2d courts to their calendars and cases appear not the indictment here was that persons so that all affected are not incon- any grounds vulnerable under con- litigation venienced and can be promptly record, in From the tained the statute. it disposed of. Trial courts cannot tolerate appears that trial court dismissed pretrial last minute prosecutori- motions or proceed case State would not because proceed. al refusal to To allow such activi- prosecution. proceed State’s refusal to hamper judicial ties would and/or stifle the totally was the trial court’s based process. unique under the cir- that belief the evidence would be insuffi- here, coupled strong cumstances cient, and the trial court’s denial of State’s position express- taken the trial court motions for or a continuance to dismiss ing evidentiary considerations, views on the prejudice. As State without we stated prosecutor was left with no alternative Hoekstra, (S.D.1979), 286 N.W.2d attempt charges to dismiss the un- inquire legality trial court cannot into the der SDCL 23A-44-2. or sufficiency of the evidence which The decision the circuit court af- considering an indictment is when based part, firmed in part, reversed in and re- dismissal SDCL 23A-8-2. manded.4 We also note that jeopardy had not All the Justices concur. prosecution attached Schladweil- jury yet ers not been impaneled It well jeopardy sworn. settled that commences,
attaches when a trial
jury jury that occurs Bretz,
impaneled and sworn. See Crist v.
28,
2156,
U.S.
S.Ct.
L.Ed.2d 24
States,
(1978);
Pahl,
Downum v. United
Gene
HARTMAN and
C.E.
734,
1033,
U.S.
83 S.Ct.
Appellants,
L.Ed.2d
Plaintiffs
(1963). See also State v.
Sol
Standing
dier,
(S.D.1980).
important desirability need and of trial (7) grand jury When the which filed the diction to hear this case because State’s notice legal authority inquire indictment had appeal untimely. was Under SDCL 23A-32- into offense because it not was within prosecution ap- a criminal case must jurisdiction grand jury or because the peal days ten within after written notice of jurisdiction court was without of the offense entry judgment of a or order. The trial court charged; entered a written order which dismissal (8) person permitted When a to be February filed on 1988. Schladweilers did present during grand jury the session any not serve entry State with notice of an of an charge while the embraced the indictment appears contemplated by order as consideration, except provided was under appeal 23A-32-6. State’s notice of was dated 23A-5-11; in § or 18, 1988, days’ March excess the ten limit. (9) charged by When a defendant informa- correctly argues State that this court considered preliminary tion did not waive a and denied Schladweilers’ motions dismiss hearing before the information was filed. appeal Thus, July 1988. Schladweil- review, By argument
4. concerning notice of James ar- ers' Schladweiler this court’s gues juris- jurisdiction in his brief that this court is without is without merit.
Irving R. A. Hinderaker and David Strait Austin, Hinderaker, Hopper, Hackett & Watertown, plaintiffs appellants. and Duffy Bergren Duffy,
Bernard E. & Pierre, appellees. Fort for defendants and MILLER, Justice.
ACTION (Hartman) and Pahl Gene Hartman C.E. granted summary judgment appeal (Woods) Wiky Wood favor Wallace specific perform- in Hartman’s action for of a contract for Hartman also ance deed. fees appeals attorney’s an award have made a motion for Woods. Woods on appeal. affirm in We part part. and remand reverse motion for Woods’ is denied.
FACTS
In 1976
entered into
contract
parcel
of real
for deed for
sale of
Ranch,
property
Vernon Garrett
Inc.
(Garrett).
required Woods to
The contract
property
fee title to the
deliver Garrett
completed
pay-
all of the
Garrett
when
for in the contract for deed.
ments called
accomplished
Delivery of fee title
to this re-
through an escrow. Pursuant
warranty
executed a
quirement, Woods
naming
property,
Garrett
deed
deposited the
with an
grantee, to deliver the
The escrow was
escrow.
made
all
deed to Garrett
Garrett
property.
payments
deposited the
After Woods
prior to
Garrett’s
deed with the escrow
purchase price
full
payment of the
for deed went
the contract
Garrett
through
transactions.
numerous
for deed to a related
assigned the contract
partnership
partnership. Garrett and
assigned
subsequently
their interests
Mutual
for deed to Connecticut
contract
security
on a
Company
Life Insurance
Mutual later fore-
mortgage. Connecticut
mortgage
purchased the con-
closed
sale. Connecti-
for deed at a sheriff’s
tract
assigned its interest
Mutual then
cut
First
sale to the
Na-
certificate of
sheriff’s
Minneapolis.
expira-
against
After
formance
conveyance
tional Bank
vendor
redemption period,
a sheriff's
property).
title to
neither
property
deed to
issued
Threshing
Hardman nor J.I.
address
Case
First
First National Bank.
National
a situation such
inas
this case where the
assigned
turn
in the
its interest
contract
already deposited warranty
vendor has
Hartman,
giving
for deed to
also
property
deed to the
with an
Ac-
escrow.
*3
warranty
property.
a
to
limited
deed
the
cordingly, further
to-
review
directed
duly
All of these transactions were
record-
of
transferring
ward the role
the escrow in
Register
ed
of
Deeds.
title
property.
to the
payments
of
completed
Hartman
all
the
Generally,
property
title to
under a
required under the contract for deed and
deposited
deed
into
transfers
escrow
accepted
payments.
Woods
the
Hartman
the escrow delivers the deed or when the
convey
then
asked W'oodsto
new warran-
placed upon
delivery
conditions
its
have
ty
property
deed to
(bypassing
the deed
been
Am.Jur.2d Escrow 29§
escrow).
previously placed
Woods
(1966).
(grant
See also SDCL 43-4-11
de
give
Woods refused to
a new
Hartman
posited with an escrow takes effect on de
warranty
authorizing
instead
deed
release
escrow).
by
livery
excep
There is an
of the
deed to
Hartman.
holding
tion to this rule
transfer
brought
present
Hartman
action
relating
title
deed will be treated as
specific performance
compel
to
to
Woods
original deposit
back to the deed’s
es
into
warranty
proper-
execute new
deed to the
crow where resort to this
fiction
neces
ty
granted
in issue. The trial court
sum-
give
sary to
the deed effect. 28 Am.Jur.2d
mary judgment for Woods and awarded
(1966).
Escrow
Thus:
§
their
Woods
fees.
grantee
deed,
Where the
an escrow
deposit
ISSUE ONE
after the
of the
instrument
performance
escrow but before the
granting
Whether the trial court erred in
upon
the condition
which it was to be
summary judgment?
Woods
delivered,
conveyance
makes
of the
A summary judgment will be affirmed
to
person,
land
a third
the escrow deed
only if
genuine
there
are
issues mate-
original deposit,
relates back to its
legal questions
rial fact and the
have been
condition,
performance
of the
so as
correctly
Gordon,
Bego
decided.
conveyance
to validate the
made
(S.D.1987).
parties agree
N.W.2d
The
added).
grantee,
(emphasis
that the material facts of this matter are
Annotation,
Id. at
35. See also
Escrow-
dispute. Therefore,
§
not in
this court’s re-
Passing
Back,
Title-Relation
117 A.L.
present-
view centers on the
question
R.
question
ed
this action. The
is whether
assignee
purchaser
of a
under a con-
precisely
This is
the situation confronted
tract for
deed
entitled to a
performance
case.
Prior
deed from the vendor when the
has
vendor
conditions
previously deposited warranty
deed with
assigned
Garrett
proper-
interest
an
purchaser
escrow for
to the
on ty
assign-
party.
another
Successive
payment
purchase
price?
parties
ments
made to
were
additional
until
escrow,
performed
Absent the factor of the
Hart-
conditions for de-
compel
livery
man’s entitlement to
spe-
Applying
Woods to
of the escrow deed.
perform
rule,
cifically
obligation to convey
above
the escrow deed should be
property
fee title to the
having
would be clear.
proper-
treated
vested title to the
Lasell,
ty
See Hardman v.
55 S.D.
in Garrett at the time the deed was
(1929);
N.W. 301
Threshing
J.I.
Case
escrow. This would have the
Farnsworth,
Mach.
Co. v.
validating
S.D.
134 effect of
the “subsequent” con-
(1912) (assignee
N.W. 819
veyances
property by
contract for
Garrett and its
may
specific
(e.g.
maintain action for
per-
successors in interest
the sheriff’s
A court
fees to a
may
award
warranty deed
limited
deed and the
only in
party to an action
those cases
Hartman).
specifically provided
it is
stat-
where
discussion,
foregoing
Based
15-17-7;
ute.
Lowe v. Steele Const.
SDCL
performance
specific
Hartman’s action
(S.D.1985).
Co.,
ap-
award ISSUE TWO by preponderance of evidence proving such an award. Com’rs. entitlement to discre- court abused its Whether the trial Auslaender, 745 P.2d City v. attorney’s awarding Woods their tion Jefferson against (Colo.1987). party whom “The fees? appro- given must be motion is directed against Hartman counterclaimed Woods opportunity to contro- priate notice and an attorney’s fees incurred for an award 1001. It follows Id. at vert the motion.” contending that Hart- defending the action attorney’s ruling on a motion for that in complaint “frivolous” under was man’s find- obliged to enter the trial court 15-17-35: that will conclusions of law ings of fact and against any person of action If a cause review of its meaningful, appellate permit dismissed, determines and the court Id. of the motion. See disposition the cause of action frivolous purposes, the court brought for malicious for award the standards Because pay any or all plaintiff to may order the by the Colora ing attorney’s fees followed defending person in incurred costs with are also accord Supreme Court do action, including reasonable the cause of (see authorities federal pertinent those of fees, added). (emphasis attorney’s Inc., supra) we Realty, United Western as our own. adopt these standards hereby com found Hartman’s The trial court instant foregoing rules to the and, Applying accordingly, awarded plaint frivolous * hearing specif note that in its we attorney’s fees of $846.58 Woods frivolity Hartman’s action ic issue of the contends that Hartman now judgment. prior court by the trial conducted trial court’s was an abuse of the this award was attorney’s fees. We awarding Woods discretion. * by Woods. attorney’s sub- mitted upon an Based affidavit damages. the trial court failed
further observe that These appellants are re- adopt findings of questing appellees, fact conclusions a second meaningful, appel- which, essence, permit would law that would boil down to the fees. late review of the award appellees warranting title inasmuch as clear, This is understandable we free of all encumbrances. What set previously forth the neces- have never happens to intervening purchases, con- awarding attorney’s sary guidelines tracts, easements, assignments, liens, and Nevertheless, fees under SDCL 15-17-35. rights-of-way placed of record comply procedur- order above property in question, is an impactual ques- safeguards, al we reverse award and vitally influences the rationale of attorney’s fees to Woods remand this this writer. I should mention that the ac- appropriate hearing for an matter and the general damages tion for supposed is for requisite findings entry of of fact and wrongful to convey refusal title. support conclusions law an award of theory, pleaded by This appellants, appears fees. complaint appellees even though deed, placed executed warranty init
ISSUE THREE
escrow, and
there
Whether Woods should be awarded their
simply
asking
appellants
attorney’s fees
appeal?
incurred
this
agent.
from the
It is noted
are twenty-four entries,
writer that there
also
contend that Hartman’s
since
execution of the contract for deed
appeal in this
matter
frivolous and
*5
deed,
placement
and
and the
should, therefore,
they
be entitled to
thereof
an escrow file.
say,
Needless to
defending
incurred in
subject
of the sale of
this
appeal. Having
concluded that there is
sale,
after its
has an influx
subsequently
inadequately developed
an
evidentiary
recorded documents in the
chain
title. It
legitimacy
record in this matter on the
why appellees
is understandable
are not
action,
nothing
Hartman’s
find
we
interested in
negotiating
now
a new war-
concerning
which to base a determination
ranty deed and to strangers
strangers in
—
frivolity
appeal.
Hartman’s
Accord
appellants
the sense that
were not
ingly,
for
Woods motion
attor
privy
original
contract for deed.
ney’s fees is denied.
rule,
This all brings
to a
us
or let us call
summary judgment
We affirm
for
exception,
it an
known as “relation back to
reverse and
but
remand for a hear-
the first delivery.” Simply
it
put, means:
ing on the issue of Woods’ claim for attor-
upon
That
final
of an escrow in
ney’s
grounds
on the
frivolity.
by
agent
upon
strument
or
WUEST, C.J., and
performance
MORGAN and
of the
conditions
the es
SABERS, JJ.,
agreement,
concur.
crow
the escrow instrument
(here
deed)
a warranty
will be treated as
HENDERSON, J., concurs in result
relating back to the
original
time of its
part
part.
and concurs in
deposit
escrow;
it will take effect at the
HENDERSON,
(concurring
Justice
in re-
original deposit
time
in escrow. Fun
in part
concurring
sult
and
in part).
damentally,
dealing
we are
awith fiction to
Essentially,
pertains
this case
time— prevent injustice
and to effectuate the in
opera-
time when an instrument becomes
parties.
tention of the
v.
Cowden Broder
tive.
In this
Calvert,
it
a warranty deed
434,
ick &
131 Tex.
114 S.W.2d
appellees, vendors,
1166,
(1938).
117
Regarding
A.L.R. 61
this
bank,
agent,
naming
an escrow
Ver-
fictional
theory,”
“relation back
it is an
Ranch, Inc.,
non Garrett
attempt
engineer
A
legally
vendee.
an avoidance of
party
transaction,
third
to this
injury
deed,
pertain
the effect
Pahl,
total strangers to
ing
the contract
entries on the
title between a first
deed,
sue
specific
performance
both
delivery.
second
Historically, this
Case,
thought
vendors
& Baker’s
whelmed
from Butler
rule devolved
(1591),
They
25a,
Eng. Reprint
performed
their contract.
fulfilled
3 Coke
expressed:
bargain.
subsequent
All of the
trans-
wherein Lord Coke
actions,
property sold
regarding this
all its force
delivery hath
second
[T]he
the contract for
were
actions of
delivery, and
second
the first
in interest.
of the
vendee and its successors
Fic-
consummation
an execution and
first;
necessity,
passing
in case of
must
based
tional
of title
be
and therefore
quam pereat, it
magis
Wampler
ut
valeat
et
res
fulfillment
conditions.
his
315,
Wampler,
shall have relation
La.
strument is to take Broderick, supra, in escrow. 90. A.L.R.
S.W.2d rule back” should not be of “relation inten-
applied
it does not effectuate the
if
it does
parties
not avoid
hardship.
Rhode
Island Ins.
Vierneisel
McGRIFF,
Gertrude
Gertrude
a/k/a
Co.,
Dredging v.Co. Furthermore, agree I
P.2d 1039 holds, opinion which un majority Kallstrom, nothing left
der that there specifically perform.
for Woods to Since briefs,
reading I have been over- these