31 N.W.2d 766 | S.D. | 1948
This is a proceeding brought to exclude three sections of land from the Town of South Sioux Falls. Petitions for such exclusion were presented to and denied by the Town Board of Trustees, after which the petitions were presented to the circuit court. There an order was entered excluding the land described in the petitions from the municipality. Then the town appealed to the circuit court.
In the circuit court the respondents alleged that there was another action pending in the same court for the same cause, and that these proceedings should therefore be abated. A motion for abatement on the grounds stated in the answer was presented to the circuit court at the opening of the *217 hearing and was denied. The decision has been assigned as error.
[1-4] It is a well settled principle at common law and in equity that a party is entitled to have an action abated when there is another action pending in a court of competent jurisdiction, between the same parties and for the same cause. 1 C.J.S., Abatement and Revival, §§ 17 and 18. This right to an abatement depends primarily upon whether both proceedings are "actions". That term is defined in SDC 33.0102 as follows: "(1) An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement, determination, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Every other remedy is a special proceeding; * * *".
Under this statute actions are ordinary proceedings. They are such proceedings as were formerly known to the common law and to courts of equity, and they are regulated by our modern codes of procedure. Dow v. Lillie,
[5, 6] Appellant refers to the fact that telephone lines, light and power lines, and pipe lines are located on the territory described in the petitions and contends that these properties represent an interest in the land in the nature of easements or franchises and that their value must be considered in determining whether the petitions have been signed "by the owners of not less than three-fourths in value of the property" which the petitioners seek to exclude from the municipality, as required by SDC 45.2901, as amended by Ch. 191, S.L. 1939. The above statute refers to the exclusion of "territory". That term as so used "includes all the various pieces or parcels of land sought to be excluded * * *." Oehler v. Big Stone City,
[7, 8] Appellant also contends that this land may not be excluded from the city because a portion of it has been *219
platted. SDC 45.2901 states several conditions precedent to exclusion, one of which is that the property has not been "laid out into lots and blocks." This means such lots and blocks "as cities usually have, for convenience in city uses, for arrangement into groups, with streets and alleys between * * *", as distinguished from "rural subdivisions for agricultural purposes, and from divisions for partition." Webster v. City of Little Rock,
Judgment affirmed.
All of the Judges concur. *220