1 S.D. 249 | S.D. | 1890
This action was originally commenced in justice court, where the defendant had judgment. Prom this judgment plaintiff appealed to the district court, and demanded a new trial. Upon this appeal the cause was on the trial calendar of the district court for Beadle county at a term of said court begun and held on the 25th day of February, 1889. On the 23d day of March, 1889, of said term, being regularly reached for trial, the cause was called. The defendant responded, and was ready for trial, but the plaintiff and appellant, was not present, and did not respond either in person or by attorney. Whereupon, on motion of the attorney for defendant and respondent, the court made and entered an order dismissing the appeal, and affirming the judgment appealed from. From this order plaintiff appeals to this court, and assigns as error: (1) The court erred in assuming jurisdiction to try and determine this cause at a torm of the district court in and for Beadle county begun and held upon a day other than a day fixed by law for holding terms of the district court in and for said county. (2) The court erred in dismissing the appeal from justice court. (3) The court erred in affirming the judgment of the said justice court.
The question sought to be raised by the first assignment is the legality of the term of court which made the order appealed from; the appellant contending that the judge of said district had no power to hold a term in the county of Beadle upon a day other than the day fixed by la^r for holding terms in said county. The laws of congress which constituted the organic act of the Territory of Dakota provided: “The judges of the supreme court * * * are authorized to hold court within their respective district-s, in the counties wherein, by the laws of the territory, courts have been or may be established.” Organic Law, § 38. The general power of determining where and when courts should be held in the several counties of each
The appellant contends that, while it was competent for the legislature to leave it to the judges to call terms at such times as they thought would best subserve the interests of the people, yet when it (the legislature) by law fixed the times for holding terms in any particular county, such action must be taken as a plain indication of an intention to withdraw from the judges the power conferred by said section, and an implied repeal, pro tanto, of such authority, and that consequently, in such county, no authority was left with the judges to call or hold any terms except those specifically named by the law, and that this view is strengthened by the fact that simultaneously with the passage of said Chapter 79, Laws 1885, they struck out the word “additional,” as above noticed; thus showing their intention that the judges were not to order .additional terms— that is, terms besides those fixed by law — but that they still
The force of this argument is greatly impaired by the fact that said Section 9, c. 27, Laws 1879, was part of an act, the other sections of which did for the territory precisely what Chapter 79, Laws 1885, did for the fifth judicial district, to-wit: fix the dates, generally, of its ternas of court; and said Section 9 was no more out of harmony with the law of 1885 than with the law of 1879, of which it was a consistent part. Between 1879 and 1885 many new counties had been organized, and new judicial districts created, and the legislature evidently thought it desirable that .the dates of the court terms, in some of the counties not included in the law of 1879, should be definitely fixed by law, and so passed the law of 1885. The law of 1885 was not different in character or purpose from the law of 1879. They were only different as to the counties to which they applied. If, as a provision of the law of 1879, said Section 9 was intended to be and was a consistent part of the plan for holding the necessary terms of court in the several counties therein named, it is equally consistent with and it sustains the same relation to the law of 1885. It is very plain that the legislature did not regard the authority conferred on the judges by said section 9 as provisional, or only to be exercised in cases where terms were not fixed by law, for they deliberately made it a part of a general plan for fixing.the terms in the counties of the territory. They declared by law that certain terms should be held, and fixed their dates, and, no doubt anticipating that other terms might be required in at least some of the counties, they authorized the judges to appoint them. Nor did the striking out of the word “additional,” as applied to the terms to be appointed by the judges, have the effect of depriving the judges of the power to order Germs in counties where terms were fixed by legislative act. While we are unable now to declare authoritatively just what thought was in the legislative mind in making this change, there is no reason for supposing that more was meant than was said. As the law then was, and continued to be, up to the action of the last legislature, there were quite a
It is also strenuously insisted by the appellant that ‘ ‘the judge could not hold a term of court in Beadle county, other than upon the day fixed by law, at a time when the statute directs the holding of a term in another county of his district. Neither could he continue to hold a term in Beadle county, previously begun, over the day fixed by law for the holding of a term in another county of his district.” The facts appear tobe that the term, the legality of which we are considering, was begun on the 25th day of February, 1889, and continued up to the 28d day of March, 1889, upon which day the order was made which is the subject of this appeal; that by chapter 79, Laws 1885, hereinbefore referred to, a term of court was fixed for Grant county, in the said fifth judicial district, for the third Tuesday in March, which would necessarily occur during the time the district judge was holding court as above, in said Beadle county; and the contention of appellant is that the judge had no power to hold his court in Beadle county at a time when he was required by law to be holding court in Grant county. If the duty of the judge to hold court in Grant county on the third Tuesday in March were inevitable, there would seem to
The appellant, however, insists that, as issues of fact had been joined in this case, it was triable by a jury, and only at a regular term of the court, (Section 5033, Comp. Laws;) but said Section 426, which we hold was still in proper force, and under which this term was called, distinctly makes such called terms “in all respects the same as the general terms provided in this act,” and the general terms provided in such act were the very “regular terms” referred to in said Section 5033. This term was therefore, by the express provision of the statute, a “regular term” at which the court had jurisdiction to hear and dispose of this case. Prior to the passage of Chapter 5, Laws 1881, an appeal was put upon the trial calendar of the district court as any other action, by notice of trial and note of issue; but by said Chapter 5, now a part of Section 6136, Comp. Laws, it was provided that no notice of trial or note of issue should be required in cases of appeal, but that the same should be entered on the calendar by the clerk, and should stand for trial as soon as reached in the regular call of the calendar thereafter. Thus by the law itself the parties were put in the same position with reference to triabas though the case had been noticed by both sides. In this case the appeal was from the whole judgment, both upon questions of law and fact, and in the notice of appeal a now trial was demanded; so that clearly it
When the case was reached upon the calendar, the court and the parties stood in relation to the trial as though it were a case originally commenced in that court. The plaintiff failing to appear, the defendant might, unless the court, for good cause directed otherwise, proceed with his case, take a dismissal of the complaint, or a verdict or judgment, as the case might require. Section 5035, Id.
The pleadings brought up from tie justice court were the pleading,-.', in the district court, and the issues were the same. In this case there was the claim of the plaintiff, as set forth in his compdaint, and the counter-claim of the defendant, as stated in his answer, and this case was before the court for a new trial. Upon failure of plaintiff to appear, the defendant might, as above indicated, have either asked to have plaintiff’s complaint dismissed, or he might have proceeded with his case, presented his evidence in support of his counter-claim, and taken such judgment as his evidence entitled him to; but he did neither. He asked to have the appeal dismissed, and the judgment of the court below affirmed. This, upon the facts presented, the court had no power to do. It might dismiss the appeal for faiLure to prosecute, or unnecessary delay in bringing it to a hearing, but only upon notice to appellant. In this, case there was no notice, but the appeal was summarily dismissed for failure of the plaintiff and appellant to appear when the case was called for trial. The appeal should not have been dismissed, because that could only be done after notice to appellant, and there was none. The judgment of the justice court should not have been affirmed, because no question of affirmance or reversal was before the court; the case being before it for a new trial on the merits, subject only to the power of the court to dismiss the appeal for the reasons, and in the manner, provided by law. The application for dismissal of the
While proceeding under that section, the court does not and cannot judicially know that the case is one of appeal, but it is to be considered and treated as an action originally brought in that court. Under that section the defendant might have asked and taken a dismissal of plaintiff’s complaint, or he might have proved his counter-claim, and taken judgment against plaintiff therefor, because that is authorized by such section; but he could not take judgment for a dismissal of plaintiff’s appeal, because that is neither authorized nor contemplated by that section. The dismissal of the complaint, and the dismissal of the appeal, are distinctively and radically different in substance and effect. Dismissal of the complaint leaves the parties as they were before the complaint was made; dismissal of the appeal leaves them as they were before the appeal was taken. The judgment of the court was not merely wrong in form, as suggested by respondent, but wrong in substance, and must be reversed. The judgment of the district court is reversed, and the case remanded, to be placed upon the calendar for trial.