*1 WUEST, addition, MORGAN, Arthur’s share in operation. SABERS, JJ., purchased by the new- HENDERSON and partnership was paid for with concur. corporation and ly-created funds. corporate YOUNG, concerning Frost’s status as a Testimony J., disqualified. Plain- proves equally as tenuous.
partner to Frost in only made three references tiffs reference con- The first
their case-in-chief. potato in the
cerned Frost’s involvement 15, July 1987. This testi- prior to
contracts Larkin, II. given by Charles
mony signing prior to
Larkin testified that 7, 1987, July Roe in- contract on Terry Frost him that was “with formed SALES, INC., SALEM Plaintiff The second reference Frost came me.” Appellee, testimony His testi- during the of Arthur. mony June he and Frost revealed BROWN, agreed capacity verbally that Arthur would Robert L. and Roe in his as partnership. How- County; bought out of Hanson Dakota; ever, agreement was not finalized until County, South Sherman Letcher, Lloyd stated: “It took July. Arthur the 15th of Kunkel and William Pierson, until the 15th of capacities from that time June in their official got everybody July finally to- before we Commissioners Dakota, Defendants, got Party gether at the same time and Third —and agreement.” The final reference Appellants, made an Plaintiffs and during testimony to Frost occurred Larkin, III. Larkin stated that Charles NORWEST BANK OF SOUTH signing of the contracts with after DAKOTA, N.A., Party Third Farms he had a conversation Cobb Creek Appellees. Defendants and Kings’s Frost at the bar Inn. with indicated to Larkin that At that time Frost No. 16480. “he connected.” Larkin further testi- Supreme Court of South Dakota. any fied Frost did not make guarantees Viewing to Larkin. evi- April Considered on Briefs 1989. light plain- dence in a most favorable to the July Decided 1989. giving plaintiffs tiffs and benefit inferences, hold that all reasonable we granting not err in a directed
trial court did
verdict. for both sides have ad
Counsel piercing corporate
dressed the ego theory establishing
veil and the alter liability
Frost’s as a shareholder in the However,
corporation. these issues were such,
not raised at the trial court level. As not consider them for
we will the first time Stone, appeal.
on Sobolik v. 420 N.W.2d Fendrich, Mayrose (S.D.1984). of the trial court is af-
firmed.
15 Leroy Goehring Defendants and Lucille Goehring to be forthwith removed from described above and to grant to the Plaintiff [Norwest Bank] peaceable possession above named there- of, and to make return of this execution you with what have done endorsed there- on ... writ,
Pursuant
to this
in
per-
and
duties,
formance of his
Sheriff Brown con-
moving
tracted with Salem to
him in
assist
Goehrings’ property
off of Norwest
estate. Salem
Bank’s real
did so and sub-
$3,735.00
mitted a
bill
Sheriff Brown.
dispute
There is neither a
as to the reason-
dispute
ableness of the bill nor a
about the
turn,
facts. Sheriff
in
submitted
Davies, Alexandria,
R.
for defen-
James
the bill to Norwest Bank which refused to
dants,
party plaintiffs
appellants.
and
contending
pay the bill
that these fees and
Wilson, Mitchell,
party
Mike
for third
were,
statute,
costs
not taxable. Sher-
appellees.
defendants and
County
iff
and Hanson
Brown
refuse to
pay
contending that
the bill
these fees are
GROSSHANS,
Judge.
Circuit
chargeable against
properly
Norwest Bank
acting
because Sheriff Brown was
as its
ACTION
executing
agent in
the writ and because a
appeal
This is an
from the decisions of
implied power
charge
sheriff has
granting summary judg-
the circuit court
litigation
in
expenses incurred
civil
to the
ment in
of
favor
Norwest Bank of South
party on whose behalf he incurs the ex-
(Norwest Bank)
Sales,
Dakota
and Salem
penses.
(Salem)
against
County
Inc.
(Sheriff Brown)
R.
Sheriff Robert
Brown
ISSUE
County.
and Hanson
affirm.
expenses
Are the reasonable
incurred
executing
a circuit court’s
a sheriff
writ
PACTS
chargeable
expenses
of execution
Norwest Bank obtained a
against
party
proceeding
in a
absent
civil
against Leroy
foreclosure
Lucille
statutory
any specific
authorization?
Goehring (Goehrings) concerning certain
County.
farm real estate Hanson
After
DECISION
redemption period
expired,
had
It is well settled
this state that
sold the real
Brown
estate to Norwest
the taxation of costs was
to the
unknown
Bank and a sheriffs deed was issued.
law,
common
and that courts are without
Goehrings
possession.
The
remained in
power to
The au
the inherent
tax costs.
brought
an action for forc-
thority to tax such costs should not be
entry
judg-
ible
and detainer and obtained a
legisla
implied,
upon
must rest
a clear
but
result,
courts,
ment. As a
the clerk of
grant
power
tive
to do so. Lowe v.
court,
under the seal of the circuit
issued a
Co.,
Steele Construction
Black Hills WUEST, C.J., (fees (1939). disqualified. 7-12-18 N.W. SDCL sheriff) traveling chargeable by Circuit charge a sheriff to does not authorize MORGAN, J., disqualified. 7- moving expenses in this case. SDCL pre- requires sheriff to 12-1 Judge, for *3 peace. to empowered He is call serve SABERS, J., disqualified. persons or his assistance such to (concurring specially). Justice necessary. required He is also to he deems concur, Although impor- I I it is believe execute directed to him serve and all writs (as judge point to out did the trial tant statutory dispossession by the courts. opinion) memorandum this case entitled to have proceedings, citizen is distinguished typical from a fore- must be process by appropriate executed proceed- closure or execution of duty Sheriff public officer. Brown’s is ing made for the benefit which a peacefully place was to instance circumstances, In those recovery creditor. possession property of its to of a sheriff’s costs and are clear- Goehrings. reasonably eject trespassing permitted. See, ly e.g., SDCL 16-18-38. officer, public man- required perform dated to those services compelled I I do feel to observe that find by look to the statutes him law. He must interesting, if perplexing, it not that al- compensation If for his or reimbursement. though recognized defendants provided for, expense is one none is indispensible party joined bank was an to all of the citi- government be bom they through third-party pleadings, it did contrary To hold zens. otherwise would Goehrings, join join or seek not to might public policy. sound It have the to subject personal property whose tendency to citizens from foreclose some they the action. It seem that were would exercising just pos- rights peaceful their indispensible parties. though Even also property they of their own because session they may great money, not have a deal of A could not afford the costs. sheriffs they obviously had some expensive duty peace is an seeking, according to since worth duty, of the citi- one best absorbed all spent here the some $5400 record sheriff zens. having property. it removed from the real presented. affirm on all HENDERSON, Acting
Judges, concur.
MILLER, J., specially. concurs