14 S.D. 149 | S.D. | 1900
This is an appeal by Marshall county from an order of the circuit court of that county made on the 8th day of August, 1900, denying the motion to vacate and set aside an order made by the Honorable Frank B. Smith, in the above entitled action, and ap- . proved by the Honorable A. W. Campbell, judge of the Fifth circuit, which order reads as follows: “The above entitled action having been taken to the supreme court on a writ of error; and it being necessary that A. Sherin, the attorney appointed by the court to prosecute said action, should attend to said case in the supreme court, and prepare the amended abstract and brief in the case, and said A. Sherin having prepared the amended abstract and brief, and having appeared in the supreme court on the 4th day of April to argue said case and look after the interest of the state in the same, it is there
It is contended by the appellant that after the case was transferred to the supreme court the conduct of the same devolved upon the attorney general of the state, and that the state’s attorney, or the person appointed to try the case- in his stead in the court below,, had no duties to perform in relation to the case after the writ of error was issued; and it relies upon the provisions of Section 95 of the Compiled Laws, which, as amended, provides, among other things, the attorney general “shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court in which the state shall be. interested as a party.” The statute conferring power upon, the circuit court to appoint a state’s attorney in certain cases is found in Section 434, Comp. Laws, as amended by Chapter 59 of the Laws of 1889, and reads as follows: “Each of the district (circuit) courts, whenever there shall be no district attorney for the county, or when the district attorney shall be absent from the court or unable to attend to his duties, may, if the court shall deem it necessary, appoint, by an order to be entered in the minutes of the court, some suitable person, an attorney at law, to perform, for the time being, the duties required by law to be performed by the district attorney, and the person so appointed shall thereupon