25 S.D. 106 | S.D. | 1910
This proceeding was instituted in the name of the state of South Dakota, on the relation of the Board of Railroad
We are of the opinion that the motion to dismiss was properly overruled. The Railroad Commissioners are among those who are authorized by section 449, Pol. Code, to institute such a proceeding. By appearing generally and moving to dismiss, and making stipulations as to evidence, defendant submitted t<o the jurisdiction of the circuit court to- hear such proceeding in Spink county. The -order to show cause or alternative writ of mandamus, as it is dominated, fixed the time for service by the court. The main contention of defendants seems to be that, because -the order to show cause made by the court was denominated an alternative writ, and that the paper on which it is based has been denominated an affidavit, it made the proceeding's t®o< formal. It will be observed that this statute provides that the proceedings may be had in a summary way without formal pleadings. We fail to see how the defendants -might be prejudiced in any degree whatever by reason -of the pleadings or process being- too formal. It seems to us that the provisions of section 449 have been substantially complied with, although, possibly, with more formality than was necessary. This section 449 provides that ' may enforce the orders of the Railroad Commissioners by mandate, or otherwise, and this without formal pleadings, and it certainly could not prejudice the defendant by reason of the fact -that he was notified in advance of the mandatory -character of the procedure. Again this section 449 provides that the Board of Rail
Appellants have cited the case of State v. C., M. & St. P. Ry. Co., 11 S. D. 282, 77 N. W. 104, as having some bearing on the care at liar, but we are unable to discover that that case has any application whatever to this case. It was held in that case that judgment could not be rendered and entered on the pleadings alone, where the defendant had appeared and made answer denying all the allegations of the petition, but that it was incumbent -on plaintiff to submit testimony sufficient to establish the allegations of the petition, which in that case the plaintiff failed to' do. In the case at bar -the judgment is not questioned; neither is the sufficiency of the evidence or findings of fact questioned. Defendant’s motion to dismiss, in effect, was an objection only to the sufficiency and form of the procedure by which defendants were brought into' couit.
Finding no error in the record, the judgment of the circuit court is affirmed.