In Re the Alleged Mental Illness of Gillespi
397 N.W.2d 476
S.D.
1986
Check Treatment

*1 in this case is 23A- penitentiary escape is considered an scribe the venue SDCL * 16-5, penitentiary.” Defendant ar a criminal action to requires from the which be escape gues county brought. this statute means his should in it is tried where escape from the have been considered an Consequently, proceedings against de- penitentiary in Minnehaha state fendant venued Bon were and therefore the action should have been Homme venued there. judgment trial court The of the af- view, however, 24-2- Our is that SDCL firmed. 27, amended, only before it was intend- clearly ed to more define the offense of Justice, participating. Retired escape prescribe not intended to MILLER, J., having been a member the venue of an offense. As the title of of the court at the time this action was clearly 24-2 it address- SDCL ch. indicates court, participate. did not Pentitentiary Discipline es the “Care and Before amendment Inmates.” 24-2-27 in ch. 23A-16 SDCL subject

generally addressed the of “Juris- and Proceed- Venue Offenses

ings.” legislature has stated we arrangement of their

should consider chapters our

enactments into the various ch.

code. SDCL 2-14-11. Because SDCL generally prescribes the 23A-16 venue Alleged Mental Ill- In the Matter of the criminal should look there we Doe. ness Joan GILLESPI/Jane proper to determine the No. 15254. legislature’s subsequent amendment Supreme Court of South Dakota. to SDCL 24-2-27 reinforces our view that escape the venue of an intend- offense was Considered on Briefs Oct. county escape ed to be the where the actu- Decided Dec. Springs See Hot Ind. ally occurred. Dist. No. 10 v. Fall River

School Land- Ass’n, (S.D.1978)

owners 262 N.W.2d 33

(courts may subsequent amend- consider determining meaning

ment of statute in statute).

Because defendant waived his constitu- rights

tional and to be tried

county or district which the offense was committed,

alleged to the statu- have been

tory preserv- and constitutional rights question those do not control the Compare Graycek, State v.

of venue. (S.D.1979) (constitutional provi- defendant). apparently by

sion asserted rights, defendant

Because waived

only provision pre- can find to other

* prosecution for a statute has since been amended and now 22-11A-2. Venue This pertinent part: escape any facility shall reads in an constituting escape where the acts escape penitentiary An or from a from the provided by place, take unless otherwise law. facility, program out- or service maintained S.D.Sess. Laws ch. 200. penitentiary side the a violation is considered *2 18, 1985,

On November Chavis a motion seeking to the trial court an order holding the Beadle County Treasurer contempt pay of court for to failure his fees. On that date the trial court issued an directing order the County Beadle Treasur- Yankton, er appear to South Dakota on 16, 1985, why December to show cause the requested by relief Chavis should not be granted. The motion and to order show Keller, cause were mailed to Mary County County the Beadle G. Beadle State’s Huron, Attorney. State’s Atty., appellant for These documents were County. Beadle personally never served on the Beadle Chavis, Yankton, appellee. Robert L. for County or County Treasurer a Beadle Com- required by missioner as SDCL 15-6- Judge. Circuit 4(d)(4)®. appeal directing This is an from an order County The Beadle Attorney State’s filed County pay the Beadle Treasurer to attor- a motion jurisdictional to dismiss on ney indigent person behalf fees on of an grounds and a motion for change committed to State Human Services Further, the Beadle County Attor- State’s Center. reverse We on ney and appeared specially be- grounds. fore the trial court and raised these issues September 1985, Joan On Gilles- prior addressing to merits. trial pi/Jane was to the Doe committed South motions, and, court denied the after hear- Dakota Human Services Center Yankton ing merits, directing entered an order County, pursuant South Dakota to emer- payment attorney In its order fees. gency proceedings commitment held in the not any specific court did make deter- County. Beadle Sep- SDCL 27A-10. On mination of attorney tember L. Robert Chavis though agree Even with trial (Chavis) appointed represent was to her in County appro- court that Yankton regular proceedings commitment held in priate order, enforce venue to its own County. Yankton At pro- this commitment directing payment attorney order fees determined, ceeding among it was other must be set aside because the trial things, Gillespi that Ms. awas resident of jurisdiction court’s lack of over Beadle County.1 County Beadle Beadle claimed County County or the Beadle Treasurer. that she a transient or nonresident a of Mailing the and order show cause motion regularly Beadle She was commit- County Attorney to the Beadle State’s ted for treatment at the Human Services Admittedly, insufficient. the state’s attor- period year, Center for a not to exceed one ney for all is counsel officials. day with a ninety review. appropriate SDCL 7-16-9. Service of the 7, 1985, On October Chavis pleadings contemplated by motions and payment attorney voucher for his fees to certainly SDCL 15-6-5 could the trial attorney County court. court ordered Bea- once state’s Beadle However, 15-6-5(b) County pay specifi- dle Treasurer to Chavis party. $126 representation. County cally re- states that “The 15- fees.2 apply pay attorney fused to Chavis’ 6-5 shall not of a service record, original Although part does 1. The record not contain the com- of the settled at- early copy a letter mitment held in October tached to Chavis’ brief is a However, denying the the settled does contain the Beadle Auditor claim on record 18, 1985, findings grounds Gillespi Ms. and order dated indi- was not resident October cating rehearing. it was entered on there. proceeding attendant or which paper process or other summons prin- another considered contempt.” (empha- aids into bring cipal.” “auxiliary It is or subordinate.” supplied) sis (5th ed. Dictionary Law See Black’s juris- for the trial court to have In order 1979). per- contempt proceedings, in these case, and the upon Beadle reviewing service the record in this sonal In *3 provi- under the complaint. There there is no summons and 15-6-4(d)(4)(i) mandato- sions of SDCL is no lawsuit. Beadle has never absent, jurisdic- Because this service is ry. sued. been lacking. totally tion is statutory exception, and If is no there serious, com- mindful of the This court is not, is a there is the summons like that Chavis would pelling, central issue requirement. v. Circuit Court Black court, however, may only addressed; this Circuit, 101 78 S.D. Eighth Jud. which are address those issues (1960); Ayers, 520 Weatherwax & N.W.2d procedural through appropriate Sundback, 81, 58 N.W. 4 Reid v. 5 S.D. Co. steps. (1894). Tooling See Fischer v. Iowa Mold (8th Cir.1982). Co., Inc., 690 F.2d 155 Reversed. failure to issue or Where there has been a summons, has no SABERS, the court file or serve WUEST, C.J., and MORGAN Pearson, v. 312 jurisdiction. Pearson JJ., concur. Oveson, (S.D.1981); 307 34 Deno v. N.W.2d HENDERSON, J., specially. concurs (S.D.1981). way, There is no N.W.2d 862 J., Cir.J., dis- mailing copy of procedurally, simply that (Prior as a appointment to his qualified. cause, state’s attor an order to show to a Justice, A. Miller Robert Supreme Court here, fact constitutes ney, and that is the capacity as a circuit appointed in his of its officers. service on place of Justice judge court to serve is, The reason there no lawsuit matter, the record will Fosheim in this and the order predicate which to existence participated a circuit reflect that he Additionally, require to show cause. judge.) court personal service be patent ment is him in try to hold HENDERSON, (concurring spe- Justice Thomerson, 387 v. Thomerson cially). (S.D.1986); v. 509 Karras Gan law, began, neophyte in the I as a Since (S.D.1984)(both non, citing 345 N.W.2d always years ago, I was under some 35 143 N.W. Krueger Krueger, v. S.D. it to be impression, and still believe 15-6-5(b). (1913)). See law, cause is an that an order to show Therefore, right power and spontane- ancillary proceeding and cannot concerning the adjudicate lower court express au- ously erupt, absent came into existence subject matter never thorization, principal proceeding without was, inceptually, because the 60 C.J.S. Motions existence. See fatally flawed. (and (1969 au- Supp.1986) Orders § therein); 56 Am.Jur.2d Mo- thorities cited (1971).

tions, Rules, and Orders § child, effect,

Here, the order have a mother, cause, there is no

to show but

namely a order to lawsuit which the Ancillary is “aid-

show cause was birthed. upon”; it is “describ-

ing”; it is “attendant