1 S.D. 385 | S.D. | 1890
The plaintiff, John L. Pyle, was district attorney of the county of Hand. During his term of office, he provided himself with an office room and fuel for same, at a cost of some 1270. He presented this bill to the county commissioners, which they refused to allow. He then commenced an action against the county to recover this amount. The county answered, stating that it had furnished suitably
The only question in the case is whether plaintiff is entitled to recover the costs of the action. The action was brought to recover $271.95. The jury returned a verdict of one dollar, and the court rendered judgment for one dollar and costs. Sections 5191 and 5192 of Compiled Laws, which are material to the case at bar, are as follows: “Costs shall be allowed, of course, to the plaintiff upon recovery in the following cases: * * * (3) In the actions of which a court of justice of the peace has no jurisdiction. (4) In an action for the recovery of money, when the plaintiff shall recover fifty dollars. * * * Costs shall be allowed, of course, to the defendant in the actions mentioned in this section unless the plaintiff be entitled to costs therein.” “In actions other than those specified in Section 5191, [above quoted] costs may be allowed or not in the discretion of the court.” It cannot be contended that this Mas an action of which a justice of the peace could have had original jurisdiction. It was not an action on a contract for the recovery of money, but an action founded on a breach of a statutory or public duty, which is a tort, or, as the old pleadings termed it, trespass on the case. The duty alleged to be violated or neglected was not created by contract, but by law.