City of Plankinton v. Kieffer

• Decision Date: 25 February 1944
• Docket Number: 8673,8672
• Parties: CITY OF PLANKINTON, et al, Appellants, v. JOE KIEFFER and Max Wetzel, Respondents.
• Court: South Dakota Supreme Court

69 SD 597, 13 NW2d 298 (1944)

CITY OF PLANKINTON, et al, Appellants v. JOE KIEFFER and Max Wetzel,

Respondents.

South Dakota Supreme Court

Appeals from Circuit Court, Aurora County, SD

Hon. Boyd M. Benson and Hon. A. B. Beek, Judges

#8672-8673—Motion denied

Davenport, Evans & Hurwitz, Sioux Falls, SD

Attorney for Appellants

Danforth & Seacat, of Alexandria, and Fellows & Fellows, of Plankinton, SD

Attorney for Respondents

Opinion filed Feb 25, 1944

ROBERTS, J.

Plaintiffs in these two actions commenced in the Circuit Court of Aurora county sought to enjoin the removal of a dwelling house from the corporate limits of the city of Plankinton. The complaint in the action commenced September 25, 1942, alleges that plaintiff A. V. DePue is the mayor of the city of Plankinton and is a taxpayer therein; that he brings the action for himself individually and on behalf of all other residents, electors and taxpayers in the city; that the city has an indebtedness of $6,491.55 represented by registered warrants; that the Plankinton Independent School District has outstanding bonds in the amount of $13,000 and registered warrants in the amount of $9,949.54; that the, sinking fund levy for the payment of principal and interest of the bonded indebtedness is irrepealable until such debt is paid; that if defendant Kieffer is permitted to remove from the corporate limits the dwelling house purchased by him, it will cause irreparable injury to plaintiffs in that the taxes on the remaining property will be increased; that this and other removal of buildings, if permitted, will severely impair the ability of taxpayers to pay taxes levied for current expenses and the payment of principal and interest of such bonded indebtedness. On November 5, 1942, the court entered a so-called order vacating a temporary restraining order previously entered and dismissing the complaint.

The second action was commenced on November 16, 1942. This action was brought against Joe Kieffer and Max Wetzel whom defendant Kieffer employed to remove the dwelling house in question. The complaint alleges substantially the same facts as contained in the first action and further alleges that defendants failed to comply with an ordinance requiring a permit for the removal of a building. Plaintiffs sought likewise in this action an injunction pendente lite and after hearing and upon motion of defendants to dismiss the action the trial court on December 14, 1942, made and entered its decision termed “an order” denying the application for an injunction pendente lite, dissolving the temporary restraining order issued at the time of the commencement of the action and dismissing the action upon the merits and awarding costs.

On July 8, 1943, plaintiffs served and thereafter filed notices of appeal reciting that the appeals are from judgments heretofore entered. Appellants did not seek the fixing of supersedeas bonds or furnish cost bonds. Respondents, defendants below, moved for the dismissal of the appeals upon the following grounds: first, that the appeals are from intermediate orders and that plaintiffs are not entitled to appeal therefrom as a matter of right; second, that the appeals were not taken within 60 days after written notices of the entry thereof; third, that the controversies are moot; and fourth, that appellants have not filed cost bonds on appeal.

Counsel for appellants insist that the determinations of the trial court in these actions are not orders, but are judgments and are governed by the statutes relating to appeals from judgments. SDC 33.0702 in force at the time of the entry of these so-called orders placed a limit of 60 days after written notice of the filing of an order within which to appeal to this court and a limit of one year from the time of entry within which to appeal from a judgment. Before the appeals herein were perfected, the time within which an appeal may be taken from a judgment was changed. § 33.0702, supra, was amended by Ch. 124, Laws 1943, to read as follows

“An appeal to the Supreme Court must be taken within sixty days after written notice of the filing of the order shall have been given to the party appealing. Every other appeal allowed must be taken within six months after the judgment shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party.”

A judgment is defined by statutes as “the judicial act of the Court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and the verdict or decision” and “every direction of a Court or Judge, made or entered in writing and not included in a judgment, is denominated an order.” SDC 33.1701.

The question whether the determination of a court is an order or judgment is not governed by considerations of form, but by its contents and substance. Heegaard et al. v. Dakota Loan & Trust Co., 3 SD 569, 54 NW 656; 8 Bancroft Code, Practice and Remedies, § 6318. In the case of Lawrence County v. Meade County, 6 SD 626, 62 NW 957, this court was concerned with a decision sustaining an objection to the introduction of evidence on the ground that the complaint did not state facts sufficient to constitute a cause of action. In that case this court said

“The so-called ‘order’ was a final judgment, dismissing the action, and awarding costs to the defendant. That it was a judgment clearly appears from the concluding portion, which is as follows: ‘And, the court being fully advised in the premises, it is ordered and adjudged that said objection be sustained, and the complaint herein be dismissed, with costs, and that the defendant have and recover of plaintiff its costs, taxed at,’ etc. This was a final determination of the action.”

The case of Northwestern Engineering Co. v. Ellerman, 69 SD 397, 10 NW2d 879, is not controlling herein. The order considered in that case adjudged that the motion of defendants to dismiss be sustained and that defendants “have judgment thereon.” It was not the final determination of the action, but contemplated the entry of a final judgment. Considering the nature and substance of the judicial acts in question, they constitute final determinations of the rights of the parties and are judgments within the contemplation of the statute.

The appeals were taken, as we have indicated, after the effective date of the statutory amendment referred to and more than six months after the entry of the judgments appealed from and hence the question whether the statute terminated the right of appeal is presented. While the amendment purportedly applies to all judgments, whether rendered before or after its enactment, we think it was the legislative intention not to give it retroactive operation so as to terminate the right of appeal which existed at the time the amendment took effect. In Wilson v. Kryger, 26 ND 77, 143 NW 764, 766, 51 LRA, NS, 760, the same question was presented. The court therein said

“In order to give effect to the evident legislative intent we are required to hold that the new act applies only to those judgments the time for appealing from which under the old statute would extend more than six...