City of Sioux Falls v. Mansors

• Decision Date: 03 September 1918
• Docket Number: 4326
• Citation: 168 N.W. 751,41 S.D. 105
• Parties: CITY OF SIOUX FALLS, Plaintiff and appellant, v. JOE MANSORS and ALBERT MANORS, Defendants and respondents.
• Court: South Dakota Supreme Court

41 S.D. 105

168 N.W. 751

CITY OF SIOUX FALLS, Plaintiff and appellant, v. JOE MANSORS and ALBERT MANORS,

Defendants and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

#4326--Reversed

D. J. Conway, Lewis Larson

Attorneys for Appellant.

Kirby, Kirby & Kirby

Attorneys for Respondents.

Opinion filed September 3, 1918. Rehearing denied December 31, 1918

POLLEY, J.

Respondents were convicted in the municipal court of Sioux Palls of violating a City ordinance. They appealed from the judgment of conviction to the circuit court of Minnehaha county, where a jury trial resulted in a verdict of acquittal. Upon this verdict a judgment was entered, dismissing the action and awarding respondents their costs. After the entry of this judgment, the city procured an order from the circuit court, citing respondents to show cause why the said judgment should not be modified, by striking out the portion thereof awarding costs to the respondents. Upon a hearing by the court, the order to show cause was vacated, and the relief sought thereby denied. Thereafter the city appealed to this court from both the judgment and the order vacating the said order to show cause.

Respondents now move this court to dismiss the appeal, on the ground that it is an attempt to bring up for review two separate orders on a single appeal. In support of their contention that this is a double appeal, respondents cite and rely upon the decisions of this court in Anderson v. Hultman, 80 N.W. 165, and Ewing v. Lunn, 109 N.W. 642. But, upon an, examination of these cases, the facts are found to be so different from the facts, in this case that those decisions are not applicable to this case. In Anderson v. Hultman the appeal is from one order refusing to vacate an attachment and from another order denying a motion to vacate and set aside the summons in the same action. These were two separate and distinct orders, and each one presented matters for review that were not presented by the other. It was in fact a double appeal. In Ewing v. Lunn the appeal was from an order vacating a verdict and judgment and granting a new trial, and also from a second judgment on a new trial in the same case, and from an order denying a new trial. As stated in the opinion, the abstract contained the record of two separate and distinct trials, including two bills of exceptions, with assignments of error predicted on each, and the case was argued in the brief as a double appeal. In Hackett v. Gunderson, 47 N.W. 546, the appeal was from an order of the territorial district court denying 'a motion to vacate a verdict on the ground of insufficiency of the evidence, and also from an order made later by the state circuit court denying a motion for a new trial on the ground of newly discovered evidence. These two orders presented entirely distinct and separate matters for review.

But no such situation is presented by the record in this case. The motion to modify the judgment was an attempt to secure a review by the trial court of the portion of the judgment awarding costs to the respondents. The motion was in the nature of a motion for a new trial, and, for the purposes of appeal, should be treated the same as a motion for a new trial. The only question presented by the motion was the right of the respondents to recover their costs, and the only question presented by this appeal is the right of respondents to recover such costs. This identical question, and this question only, would have been presented, had the appeal been from either the judgment or the order alone. Either the judgment or the order could be eliminated from the notice of appeal without in any wise affecting the question presented for review. This being true, it cannot be said that the appeal is double. It has become the established rule in this state, sanctioned by the decisions of this court, to permit a judgment and an order allowing or denying a motion for a new trial to be brought up and reviewed on a single appeal, and this rule should be applied in this case. McVay v. Bridgman, 97 N.W. 20; Hawkins v. Hubbard, 51 N.W. 774; Williams v. Williams, 61 N.W. 38; Kountz v. Kountz, 87 N.W. 523; Peters v. Lohr, 124 N.W. 853. The motion to dismiss the appeal is denied.

This brings us to the merits of the case, and the only question presented for consideration is whether or not respondents are entitled to recover their costs. As there is no provision of law under which a defendant in a criminal action can tax his costs, the right to tax such costs must depend upon whether the action is civil or criminal. Section 14, Code Civ. Proc., divides actions into two kinds, civil and criminal, and section 15 defines a criminal action as one prosecuted by the state as a party, against a person charged with a public offense, for the punishment thereof. All other actions are civil action's. This action is not prosecuted by the state as a party, but by the city of Sioux Falls. Therefore it does not dome within the terms of the statute defining criminal actions. But, while it is not prosecuted in the name of the state as a party, it has all the other attributes of a criminal action. The offense charged is one that is criminal under the general statutes of the state. The punishment is by fine or imprisonment, or both, and the proceedings had in connection therewith are all governed by the rules prescribed for the trial of criminal actions.

The question has been before this court on several occasions. In City of Huron v. Carter, 57 N.W. 947, the question was made to depend upon the nature of the offense charged. In the opinion of the...