State v. Dunning
11 S.D. 585
S.D.
1899
Check Treatment
Corson, P. J.

This case comes before us on two motions, one on the part of the attorney general to dismiss the writ of error sued out in this case, and the second on the part of the plaintiffs in error for leave to serve a citation, abstract and brief upon the attorney general. The two motions were heard together. It. appears from the moving papers on the part of the plaintiffs in error that a writ of error was issued out of this court in December, 1898, and served on the clerk of the circuit court of Beadle county, and that a citation was also issued at the same time, directed to the state’s attorney of Beadle county and the attorney general, and was served upon the state’s attorney, H. S. Mouser,. Esq., but not upon the attorney general. The case was placed' upon the calender of the present term of this court, and when called for argument, the attorney general, appearing specially for that purpose, objected to the hearing of the case for the reason that no citation, abstract, and brief had been served upon him, and this ’ court held that the case could not 'proceed until the citation, abstract, and brief were *587so served. Counsel- for plaintiffs in error thereupon gave notice’ of the present motion, and the attorney general presented his counter motion for a dismissal of the appeal on the ground that this court has no jurisdiction of the case, no citation having been served upon him. The attorney general contends that the service of the citation upon him in a case where a writ of error is issued is essential to confer jurisdiction upon this court over the cause, and that when the citation, as in this case has only been served upon the state’s attorney, and returned to the office of clerk of this court, this court has acquired no jurisdiction of the cause. Section 7512, Comp. Laws, provides: “Immediately after the issuing of the writ, a citation to the adverse party to be and appear at the supreme court, to be issued by the clerk thereof, shall be served on him 'or his attorney, giving at least ten days’ notice thereof;” and rule 16 of this court provides as follows: “In all cases in which by law the attorney general is required to appear for the state in this court, and in which the state is a party, respondent or defendant in error, the notice of appeal or cita tion in error, as the case may be, and the abstracts and briefs prescribed by law or the rules of this court, shall be served upon the attorney general, and in criminal causes the citation shall also be served upon the state’s attorhey of the proper county. ” While the statute requires the citation to be issued, and both statute and rule require the citation to be served, we are of the opinion that the jurisdiction of this court does not depend upon such service, but that its jurisdiction over the cause is conferred by the issuing of the writ of error. The cause is then transferred to this court, and the only object of the citation is to notify, the state’s attorney and attorney general *588that the cause has been so transferred to this court, that they may take the proper proceedings to protect the interests of the state. The issuance of the citation and its service constitute procedure only, -which is under the control of- the court. In case the plaintiff in error fails to have, the citation, abstract, and brief properly served, the writ may be dismissed under rule-27, which provides as follows: “A failure to comply with any of the requirements contained in these rules within the times therein provided, will, in the discretion of the court, be cause for dismissal of the appeal, or writ of error, or affirmance of the judgment, as the case may demand.” It will be observed that by rule 16 the abstract apd brief are required to be served upon the. attorney general, and they, as well as the citation, must be served upon him, as he represents the state in this court. Section 95, Comp. Laws. These rules were promulgated as early as 1884 by the late territorial supreme court, and wrere readopted by the present supreme court. They in no way conflict with the statute, and are in .harmony with it. While this court has the power to dismiss the writ of error in this case under rule 27, we think the plaintiffs in error have shown satisfactory excuse for a failure to comply with rule 16, and their motion for leave to serve citation, abstract and brief upon the attorney general is granted, and the motion of the attorney general to dismiss is denied.