Coburn v. Board of Com'rs of Brown County

• Decision Date: 05 April 1898
• Parties: COBURN v. BOARD OF COM'RS OF BROWN COUNTY et al.
• Court: South Dakota Supreme Court

74 N.W. 1026

10 S.D. 552

COBURN v. BOARD OF COM'RS OF BROWN COUNTY et al.

Supreme Court of South Dakota

April 5, 1898

Appeal from circuit court, Brown county.

Action by H. C. Coburn against the board of county commissioners of Brown county and others. From orders overruling a demurrer to the petition, and denying a motion to vacate a writ of prohibition, defendants took separate appeals. Dismissed.

Haney J., dissenting.

S. H Cranmer, for appellants. J. H. Hauser, for respondent.

FULLER J.

From an examination of the record as to the points suggested by respondent's motion to dismiss this appeal, we find that an order of the circuit court, made May 1, 1897, overruling defendants' demurrer to plaintiff's petition for a writ of prohibition, was neither filed nor entered as a record of that court until the 21st day of the following September, and that defendants appealed therefrom to this court on the 11th day of May, 1897, and filed a defective undertaking on appeal, upon which no return or admission of service appears. Again, on the 20th day of September of that year, they served and filed a second notice of appeal stating therein that they appealed from an order made on the 27th day of May, 1897, overruling a motion to vacate and set aside a writ of prohibition theretofore issued in the case and notifying respondent that a reversal of the order from which the first appeal was taken would be insisted upon. The undertaking upon appeal, in this instance, like the former, was objectionable, in that the sureties, in justifying, failed to state that they were each worth double the amount specified in property within this state above all debts, liabilities, and exemptions. After the orders above mentioned had been entered in the court below, and on the 1st day of October, 1897, the following notice of appeal, being the one upon which appellant now relies, was served and filed, but no further undertaking on appeal was in any manner provided: "Please take notice that the above-named defendants hereby appeal to the supreme court of the state of South Dakota from the whole of the judgment and order of the circuit court heretofore made and entered herein, overruling defendants' demurrer to the plaintiff's complaint herein. And you are further notified that said defendants hereby appeal to said supreme court of the state of South Dakota from the whole of the judgment and order of said circuit court heretofore made and entered herein, whereby the said circuit court denied the motion of said defendants to vacate and set aside the peremptory writ of prohibition issued herein on the 12th day of May, 1897."

Upon the hearing of the motion to dismiss these appeals, counsel for appellants...