Carlson v. West River Oil Co., 9417
| Decision Date | 05 May 1954 |
| Docket Number | No. 9417,9417 |
| Citation | 75 S.D. 333,64 N.W.2d 294 |
| Parties | CARLSON et al. v. WEST RIVER OIL CO. et al. |
| Court | South Dakota Supreme Court |
Bangs & McCullen, H. F. Fellows, Rapid City, for plaintiffs and respondents.
Russell C. Molstad, Sturgis, for defendants and appellants.
E. V. Morrill, Sturgis, for intervenor and appellant.
This action was brought on behalf of the City of Faith, a Municipal Corporation, by Louis W. Carlson and R. J. Kovarik, as plaintiffs, against West River Oil Company, a Corporation, and Virgil R. Nesland, for money claimed to be due the city. The complaint alleges that defendant Nesland received money from the city, directly or indirectly, for goods and merchandise sold to the city while he was a member of the city council. The City of Faith intervened and served a complaint admitting the truth of the facts alleged in plaintiffs' complaint, and alleged as a defense that the articles so sold by Nesland were necessary for municipal purposes, were used by the city as such, and that the prices paid by the city therefor were the fair and reasonable value thereof; that the articles so purchased could not have been purchased elsewhere for less money, and have now been consumed or have become worthless; that such articles cannot be restored; that no fraud or collusion was practiced in the purchase and sale of any of said property; that the purchases and payments made therefor by the city were not prohibited by law. The municipal corporation prays for judgment relieving defendant from any liability to the city. Judgment was entered for the city against the defendant, and the city appealed. Respondents then moved to dismiss the appeal of the City of Faith on the ground that the judgment does not affect a substantial right of the city, and that the city is not an aggrieved party.
The question thus presented by the motion is not whether the city was entitled to intervene, but whether the city had the right to appeal from a judgment in its favor.
Prior to the adoption of the Revised Code of 1939 it was provided by statute that any judgment or order 'may be reviewed upon an appeal by the party aggrieved'. Rev.Code 1919, Sec. 3145. The right of appeal is now granted by SDC 33.0701, but the clause 'by the party aggrieved' was omitted from the text. It is the contention of the appellant in this case that because of this change in the statute the city has a right to appeal in this case, whether it was aggrieved or not.
Since the adoption of the Rev.Code of 1939 similar questions have been presented to this court in Nilsson v. Krueger, 69 S.D. 312, 9 N.W.2d 783; Hodkinson v. Parker, 70 S.D. 272, 16 N.W.2d 924, and Danforth v. City of Yankton, 71 S.D. 406, 25 N.W.2d 50.
In Nilsson v. Krueger, supra, this court said [69 S.D. 312, 9 N.W.2d 785]: 'A party cannot appeal from a judgment or decree in his favor since he is not thereby aggrieved'. The case of Hodkinson v. Parker, supra, was one in...
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...the decision appealed from. See In re Estate of Bartholow, 2006 S.D. 107, ¶ 5, 725 N.W.2d 259, 261 (citing Carlson v. W. River Oil Co., 75 S.D. 333, 335, 64 N.W.2d 294, 295 (1954); Quinn v. Mouw–Quinn, 1996 S.D. 103, ¶ 20, 552 N.W.2d 843, 847). They argue that these requirements help define......
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...those parties or persons prejudiced or aggrieved by the decision from which the appeal is taken. In support see Carlson v. West River Oil Co., 75 S.D. 333, 64 N.W.2d 294, 295; In re Fidelity Assur. Ass'n, 247 Wis. 619, 20 N.W.2d 638, 641; 4 C.J.S. Appeal and Error § IV. The question is whet......
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