11 S.D. 105 | S.D. | 1898
The judgment herein having been affirmed, (10 S. D. 127, 72 N. W. 84), defendant petitioned for a rehearing on the ground that the court below w,as without jurisdiction. Ordinarily a rehearing will not be granted upon questions not discussed by counsel in .their briefs or which are not presented by the assignments of error. Tolman Co. v. Bowerman, 6 S. D. 206, 60, N. W. 751. But where circumstances are exceptional, and 'the question one that can be raised for the first time in this court, it may be the duty of the court to permit the presentation of such question by granting a rehearing. When the petition was pending in this proceeding, the attention of the court was called to the complicated condition of legislation relative to the procedure in bastardy cases, and the conclusion was reached that the bastardy act of 1893, so far, at least, as it is applicable to counties having less than 20,000 population, ceased to have any force after the first Monday of January, 1895. State v. Knowles (10 S. D.
As stated, the court has heretofore decided that the remedy provided by the act of 1893 ceased to exist, in all counties having less than 20,000 population, in January, 1895. State v. Knowles, supra. Did it continue in force in counties having more than that number of people? An act which took effect on the first Monday of January, 189.3, and which repealed all acts and parts of acts inconsistent with itself, contains the following:
“Section 1. The cofinty court of each county having a population of twenty thousand or over, shall have jurisdiction in all civil actions cognizable by a justice^ of the peace, except actions for the forcible entry or detainer of real property in all cases where the debt, damage, claim or value of the property involved shall not exceed one thousand dollars, and criminal jurisdiction in all cases of misdemeanor; and exclusive original jurisdiction in all matterá of probate, guardianship and settlement of estates of deceased persons.
‘ ‘Sec. 2. In all counties having a population of less than twenty thousand the county court shall have exclcusive original jurisdiction in all matters of probate, guardianship and settlement of estates of deceased persons, and no other jurisdiction whatever.”
Laws 1893, c. 64.
It is doubtless unfortunate that so much confusion should have arisen regarding the procedure in this class of cases, but this court*is not responsible for it, and it has gone further than usual in this case for the purpose of removing all doubt concerning the rights of parties affected by the conflicting legislation on this important subject; the result of our decisions being to leave the law as it existed when the act of 1893 was adopted. State v. Knowles, supra. If the remedy afforded by the former statute should be deemed inadequate, the legislature can remove its defects by more careful and wisely-considered legislation. The review of this proceeding by means of a writ of error not having been objected to in this court, the judgment is reversed, and the case remanded to the county court, with directions to dismiss the proceeding'for want of jurisdiction.