Mitchell v. Morgan

186 N.W. 568 | S.D. | 1922

GATEIS, P. J.

This cause has already been before us three times. See 43 S. D. 293, 179 N. W. 722; 43 S. D. 589, 181 N. W. 358; 44 S. D. 8, 181 N. W. 958. Particular reference is made to the last citation for an understanding, of the nature of the case. It is now before us on appeal in relation to contempt proceedings.

• The cause, pending in the Third judicial circuit, was tried at Brookings, in said 'circuit, in January, 1920, before Hon. Frank Anderson, judge of the'Fifth'judicial'circuit, sitting at the request of Hon. W. N. Skinner, judge of the Third judicial circuit. Prior thereto a demurrer to the complaint, on the part of defendant Gulk, had 'been overruled, and' an appeal had been taken therefrom to the Supreme Court. The . cause,: upon the merits, was thereafter, submitted upon briefs, and in March, 1920, findings of fact and the conclusions of law and a judgment were signed by Judge Anderson at Webster in his own circuit, and entered in the office of the-clerk'of the court of Brookings .county. Defendants thereafter applied, ex parte; to Judge Anderson, in his 'own circuit, for a modification of the findings and judgment, which modification was granted. At the same time and place defendant Morgan applied for a stay of proceedings which was granted. Eater in the day on which these two orders were signed a warranty deed of the premises in question, from defendant Morgan to his codefendant, Gulk, was filed in the office of the register of ■deeds of Brookings county. Upon the application of plaintiff an ■order was issued by the court, by Judge Anderson in his own circuit, requiring defendants to show cause at Webster, in the Fifth circuit, why they should not be punished for contempt of court because of the transfer of the property in question. The defendants made a special appearance and objected to the jurisdiction ■of Judge Anderson to hear and determine said-matter, and moved ■that the order to show cause be quashed. The objections and motion were overruled. Such special proceeding was tried. Findings of fact, conclusions of law, and judgment were made and entered, adjudging defendants to be guilty’of contempt of court, fining defendant Morgan the sum of $200, and annulling and canceling the deed and the record thereof. Thereafter application was made by defendants to Judge Skinner for an order vacating the order or judgment entered upon the contempt proceedings. Upon the hearing the court, by Judge Skinner, entered an order refusing the relief sought, and adjudged the previous order to be in full force and effect. It is from this order that the appeal is taken by defendants.

[1] One of the reasons advanced for a reversal, and which was urged in the special appearance of defendants, is that Judge Anderson had no authority to hear and try the contempt proceeding at Webster, outside of the Third judicial circuit. Section 2117, Rev. Code 1919, referring to the circuit court, provides:

“It is always open for the purposes of hearing and determining all actions, special proceedings, motions and applications of whatever kind or character, and whether of a civil or criminal nature, arising under the laws of the state, and of which it has jurisdiction, original or appellate, except issues of fact in civil and criminal actions, and all such actions, special proceedings, motions and applications may be heard and determined at any place within the judicial circuit in which is situated the county wherein the same is brought or is pending; but issues of fact in any civil or criminal action must be tried in the county in which the same is brought, or to which the place of trial is changed by order of the court upon the written consent of the parties to such action, or upon the grounds now or hereafter provided by law: Provided, however, nothing in this section contained shall be construed to prevent the judge of any circuit court from making any order at chambers at any place within the state in any matter properly 'before him.”

Subdivision 3 of § 2593, Rev. Code 19x9, provides:

“Motions upon notice must be heard within the circuit in which the action is triable; unless, with consent of the judge, the parties shall otherwise agree; and all orders made on such motions may be made in any part of the state.”

From these sections it is manifest that the Legislature intended that special proceedings and motions on notice should be heard) only within the proper circuit, unless the judge and the parties consent otherwise. The order to show cause was a motion upon notice. McHarg v. Com. Fin. Corp. 44 S. D. 144, 182 N. W. 705; Lingenfelter v. Gehringer, 43 S. D. 275, 178 N. W. 946. The defendants did not agree to hear the matter at Webster; on the contrary, they protested against it. The trial court should therefore have arranged for a hearing at a place within the Third judicial circuit. It had no authority to 'hear the matter at Webster under the circumstances.

[2] It is urged by respondent that the invoking of the jurisdiction of the court at Webster, by the applications for a modification of the findings and for a stay of proceedings, amounted to a consent to try the contempt proceedings at Webster. That does not logically follow. Even Judge 'Skinner could not lawfully have tried the contempt proceeding at Webster without the consent of the parties.

[3] It is urged by respondent that defendants in their special appearance and objections to the jurisdiction, asked for affirmative relief, and thereby converted their special appearance into a general appearance. We do not think the facts justify the conclusion. The fifth ground of defendants’ objection to the jurisdiction was as follows:

“That the honorable circuit court of Brookings county, in this case, on the 3d day of April, 1920, granted) to the said defendant John Morgan a stay of proceedings in the aforesaid case, for a period of 60 days’ time, for the purpose of allowing said defendant Morgan to move for a new trial or appeal to the Supreme Court, should he deem the same necessary; that this 60 days has not expired, and said order is still in full force and effect, and the court has no power or authority to pass upon or hear the motion presented by the plaintiff.”

This did not constitute the seeking of affirmative relief.

[4] It is finally urged by respondent that the findings and judgment rendered by Judge Anderson are not now vulnerable to the objection that they were made outside of the Third judicial circuit, for the reason that defendants applied to Judge Skinner for an order vacating the judgment or order of Judge Anderson, and upon the hearing Judge Skinner made an order that the previous proceedings were “'held in full 'force and effect.” It is claimed that this had the effect of expressly adopting such findings and judgment. The matter was not before Judge Skinner upon the merits of the adjudication of contempt. It was before him solely upon the question of Judge Anderson’s jurisdiction. Appellants contend and respondent concedes that the purpose of the application before Judge Skinner was to lay the foundation for appeal, it having been held by this court that an order made by.a judge outside of his circuit was not an appealable order. We are satisfied that the order made by Judge Skinner did not have the effect of curing the absence of jurisdiction of Judge Anderson to try the contempt proceeding at Webster.

The order appealed from is reversed.

ANDERSON, J., not sitting.