*1
from the defendant himself
stating
admitting
amount to
note,
due the
With
plaintiff.
reference to
the answer had
already admitted the
March
payment
thereon on
$59.67
1928.
entirely
answer.had
failed to
either the statute
limita-
plead
tions or fraud
false representations
kind or
counter-
any
any
claim for
damages. There is
leave
prayer
no
to .amend
answer,
and there is not a
forth in
single thing set
the affi-
If
davit
would be admissible under the answer interposed.
existed,
these defenses in truth
defendant
ample
opportunity
them
plead
He
originally.
seeks here to
the case
reopen
an entirely different theory from
that established
his answer.
None of the now claimed defenses could be
under the
proved
joined.
issues
Boekhout,
See Sec. Nat. Bk.
D.
v.
All the Judges concur.
SMITH, Respondent, REID, v. Appellant.
(
L. Sioux Bailey, and T. M. both of Waggoner B. Appellant. Falls, Simons, Sioux both of
Odean Hareid and Blaine Respondent. Smith, RUDOLPH, O. commenced The respondent, Ellis J. Alex the against appellant, in circuit court proceeding the determining December, for the purpose The Falls. of Sioux city city commissioner of
the office of fact dis- quo warranto. is in nature of proceeding It undisputed appellant. concerns pute Smith, day was April, 1923, respondent, on 24th city qualified to hold the office commissioner of Sioux Falls, office, and on date he elected to that and thereafter was duly the office for qualified pursued period the duties of city years, regular five the term for which he At was elected. day election held Sioux of April, Falls on 24th himself, Smith, was a candidate to succeed respondent, Reid. opposed that election Reid received appellant, elected, office, highest number of votes for was declared qualified thereafter assumed the duties the office. Since election Reid has been acting brought commissioner. this action in own name interest in the claiming “special *3 action” under R. 2784, section C. as amend- provisions 1919, of 4, by chapter that, ed 289, Smith 1919; claiming of Raws § election, time a of Reid was not of the 1928 Dakota, that, States or of the state of by of his South virtue (Smith’s)1 in 1923, election he was to entitled the office as a hold- over under provisions of R. trial 7035, section C. The 1919. determined, a fact, as matter of that Reid was not a citizen at the election, time of the that Smith had knowledge no of 1928 fact until shortly action, this the commencement prior to and determined that Reid entitled to hold the office of city commissioner of Sioux Falls. its By judgment the court ousted from office. The court further determined that Smith had never abandoned the office here and that dispute, he (Smith) was entitled to the office virtue of the election. 1923 Reid has from appealed judgment and order denying motion for a new trial. action, Smith,
To maintain the must plaintiff, show that he interest; has special namely, right office. to the Gibbs v. Bergh, 432, 838, D. N. W. The appellant con 51 214 first, tends, office, right Smith has to no reason term city of office of commissioner is years, limited five and the officer does not hold over until his successor is elected. We believe section 7035, 1919, R. C. complete is a answer to this contention of appellant. city The office of commissioner public office within the of that meaning section of Code. The our contention is also made that said section part was no of our 7035 Code, no it was and that prior adoption
law the 1919 intent, in the South Dakota Revised enacting part legislative to the office of applicable Code of make said section 1919, to The agree. With we do not this contention city commissioner. lawful incum- “every unambiguous; applies said section is it the rule office, Conceding term.” any bent with a definite public viz., will not in revision changes as contended the appellant, law, clear that such was unless it is altering be considered as intention, ex- definitely we what could more inquire, language section, include, meaning an intention to within the press term, atatched a definite than every to which is public office was created just The Code commission language quoted? above statutes all “to eliminate chapter 156, power Daws all incorporate or that been repealed, have inoperative all take and include new and to add to or amendments statutes necessary per- to make such laws and statutes whatever fect, 2, Chapter Laws.” and consistent Code of Section complete Revised Code enacted the Dakota South Laws as the state. laws of this that, to the com next prior contends action, office, and of this had abandoned the mencement in the interest therefore had no same or “special True, intention. In action.” all cases abandonment is a *4 acts, the but nonuser does intention be inferred from- mere abandonment, alone suf mere of time lapse amount to nor is Co. v. Edgemont Implement ficient to establish abandonment. Co., 22 trial court N. W. The Tubbs D. Sheep 115 enter the Reid found “that at the time said Alex purported city the of city his -duties as commissioner of said Sioux upon Alex Falls, that the said knowledge the said O. -Smith no Ellis a state of Reid United States or of the was of the Dakota, Smith learned South and that as soon as O. Ellis States, the said Alex Reid not a citizen of was delay Alex Reid that he surrender demanded without of the said him, and that the refusal of the said officeand its -dutiesto immediately insti Alex surrender the said office he said Reid to only as fol finding challenged tuted these proceedings.” This be : would plaintiff presumed lows “For reason that records, had as plaintiff and said knowledge public have Alex Reid of said notice knowledge much of the status of reason conveyed at of said records the time of election public said Alex Reid these pro- as he had the time the institution of of ceedings.”
n Conceding knowledge that the was with charged plaintiff failed what Minnehaha showed public county records of show, record that no charged he was not with certainly knowledge of any court record in land showed the naturalization of a county Reid as citizen. resident Minnehaha although a many years, New might have -beennaturalized in California or simple county York. The Minnehaha fact the records of failed to when show Reid was citizen even coupled could knowledge long county Reid’s residence in Minnehaha no notice that impart citizen. above fact not a finding of trial being challenged court the particular out, set above that the contention being convinced viz., of appellant, lack record naturalization showing n county where person resided long imparts has constructive notice person such not a citizen (if in fact he is not a citi- merit, zen), is without we must finding therefore accept trial and treat as established fact that at time surrendered the knowledge office to Reid he had no that Reid was not a citizen. This court the case Bergh, supra, of Gibbs v. also was a proceeding quo an contesting nature warranto Falls, rule, election in Sioux announced a as follows: ‘‘But before plaintiff and one asserting can [the office] charged with a waiver rights of his he must have full knowledge of his of the facts which will him effec- enable to take ” * * * tual action infringement to prevent rights. In the Hudson, case of Turnipseed v. Miss. Am. Rep. cited with approval 'Case, in the Gibbs-Bergh plaintiff voluntarily surrendered the office to the defendant after signing an agreement election, to abide the results of a certain primary yet the court held there case, *5 was no in abandonment. As so is record here awith replete refutation that the sur- plaintiff rendered the office determination it vacate because he did not wish hold it. surrendered Smith the office to Reid in
honest belief (in mistaken) 'which he now he was contends States; immediately Reid was a citizen of the United satis- belief, himself that fying openly mistaken in he as- office, serted his rights delay and without commenced this it proceeding. We do not can believe be said that “had full Smith knowledge rights of his and the which will enable (would) facts him to take effectual action to of such prevent infringement 1886, rights.” during has lived in Falls since and 'Sioux that time has held public generally office and exercised the privi- of a leges citizen. Reid in was successful this last election as he had been in the city. others in under these naturally Smith acted circumstances, office, surrendered the and refrained voluntarily asserting any right thereto until such time as he learned (we know how) not that there the citizen- question regarding was some Reid, ship of when immediately asserted his office. The trial court did not concluding err abandoned the office. CAMPBELL,
We agree J., with the expressed views P. in his concurring filed herein. opinion disposes ques- This concerned, tion citizenship, of Reid’s so far case as this precludes us from reviewing the determination of this as made by the trial court.
CAMPBELL, P. Explicit findings implicit J. the judgment of the fundamentally court below two essential First, Smith, propositions: respondent, special has a interest action; the matter sufficient to him maintain authorize second, Reid, that appellant, of the United States. I fully concur and in all respects foregoing opinion RUDOLPH, J., which deals with the particularly special Smith, interest of respondent, and now undertake tO' express views of the court with reference to that portion present appeal which review the trial seeks court’s determination a citizen áppellant, is not of the United States. 10 added Act Subdivision to section c. 29, 1906, June Stat. at (34 Large 596), by May Act 9, 1918, c. § (40 Large, 542, 545), May Stat. as amended Act 25, 1932, c. 10 (8 377), reads as follows: person USCA “Any § § enemy, not an alien uninterruptedly who resided within the United *6 I, of during period years July States five next preceding 1920, and on that a date otherwise to become citizen of qualified States, United that of except he had made declaration time, required intention law during and to that prior who because of misinformation status regarding citizenship his erro- neously rights exercised the performed the duties of faith, of the United good States in file the for natur- may petition law alization prescribed by without decla- making preliminary aliens, ration of intention required satisfactory and upon other proof to court that he has acted be so admitted as citizen of the United in all upon complying respects .States * * requirements other of the As (* naturalization law. 10, c. May 25, amended a932, 166.)” Stat. § Shortly prior argument oral this it appeal, was appear Reid, made to by affidavit that his to- appellant, subsequent appeal, and on or about August had proceedings instituted Falls, D., in the District Court United States at Sioux naturalization; seeking in that sought' such proceedings out, avail himself of the statute above alleged set substance many he had for years believed himself a citizen of the rights faith, States exercised the in good discovering December, his mistake until 1931, when circuit citizen; county of Minnehaha determined that was not a defendant, Reid, proceedings federal court under stated oath that he intended and desired renounce “to abso- * ** * * * lutely and allegiance forever all V George ” ** * whom this I a subject. time am Application was made to to order pursuant this court to show asking cause copies certified of the executed various documents and filed be in the federal court proceeding added the record herein and be considered con- nection with the present appeal. Respondent contends that conduct particular of the appellant, pending appeal consideration, matter proper our is decisive parties portion present appeal review adjudication seeks to circuit court that not a citizen United States.
We announced oral during argument We granted. the record would so to application supplement *7 we further the holding, so and are think correct in we were his taking to the subsequent Reid that the conduct of opinion so ad- court records by evidenced of federal appeal copies as any concerns before us far as controls the situation so mitted point. on citizenship review of trial court’s determination court, review, gen- that It is is an its appellate true to matters presented is confined erally speaking, properly court, by be affected ordinarily not and that such review will lower statement, Such taking appeal. to the subsequent events sub- however, some circumstances universally true. Under is not in this court. Or may per- affect the review sequent occurrences subsequent sometimes say that nearly it is more accurate to haps court will situation where an appellate create a happenings matters sought presented review all or some of the refuse to cases cite necessary It is here to or refer by the not appeal. become have by for review questions presented appeal wherein or where subsequent pending moot cases happenings because of voluntarily and sat- performed has appeal party appellant course, cases, In isfied from. such judgment appealed will its review. pres- not further with appellate proceed wherein parallel 'ent to the cases perhaps precisely situation is not question appeal judgment appealed becomes moot pending it is voluntarily by principle from satisfied but appellant, distinguishable cases. Reid, not a judge appellant, The learned circuit held that By the United taking appeal, questioned citizen of States. in this review reversal thereof sought that determination and court, necessarily upon his claim for reversal predicating theory States, citizen the United that the that he was in fact a Having the circuit court by wrong. determination otherwise was he theory, become a suitor asking aid of consistency in his He degree position. must maintain some court, subsequently fast with this nor play should not and loose courts proceedings assume in solemn and formal other a position us, in- entirely before entirely adopted inconsistent with him with the which entitles to a review of theory consistent involved in his to us. The federal statute appeal which invoked an benefit who act for the of those is.not that they claim in fact desire secure citizens and record proof is, by terms, It were thereof. its a statute who express those misinformed to their status and for those who pres- admit ently they erroneously (although faith) have in good exercised the When elected citizenship. appellant, statute, admitted, proceed only by under he sworn therein, declarations of the he filed papers but act of very proceeding, that was not fact actual of the United States, and pre-existent citizen, that his belief that al- words, belief, In though good-faith was a mistaken belief. other conduct, his declaration and truth he admitted the one court, adjudicated ultimate facts him against the circuit *8 wit, adjudication review, he had asking been to that he fact was not a States. citizen of the We do not wish be every understood as admission holding subsequent by or statement a party pending inconsistent with the appeal,, posi- court, tion he has taken in this wherever or however made or evidenced, may be introduced in the record here or considered Indeed, usually this court. such will not be case. We do however, that, hold, when an appellant, pending decision of his appeal, inaugurates his own motion other in a court proceedings state, in record this which proceeding's are maintainable theory consonant with the the ruling correctness of seeking court, is to review in this and when the neces- position sarily voluntarily assumed in appellant subsequent independent proceedings so commenced him utterly is inconsist- theory ent with the that the determination which he is seeking court, review on then appeal wrong, such subsequent this when records, conduct of the appellant properly made in appear its will not further examine at his instance or for his benefit ques- tion of correctness of the determination sought to be reviewed on appeal. cause,
Under the circumstances now appearing appel- this lant, Reid, expect cannot this court to him- do otherwise than he is, court; substance, self has done in the federal to accept as correct the determination of the circuit court that is not a subsequent of the United conduct By States. evidenced case, will appearing
in the and form manner intentionally or appeal (whether deemed to have abandoned his citizenship. so far as concerns the not) feature, with the together the This decision on RUDOLPH, J., foregoing opinion announced in views action, Smith, disposes to maintain respondent, case, appealed all and the and order judgment issues affirmed. ROBERTS, WARREN, concur both POLLEY, JJ., the foregoing opinions. Plaintiff, WILLIAMS, DAKOTA, ex rel OF STATE SOUTH BATEMAN, al, v. Defendants. et N. W.
(244 357.) Opinion 4, 1932.) (File filed No. October