Dennett v. Reisdorfer

• Decision Date: 01 April 1902
• Citation: 15 S.D. 466,90 N.W. 138
• Parties: DENNETT et al. v. REISDORFER et al.
• Court: South Dakota Supreme Court

15 S.D. 466

90 N.W. 138

DENNETT et al.

v.REISDORFER et al.

Supreme Court of South Dakota.

April 1, 1902.

Appeal from circuit court, Hughes county.

Action by Lizzie Dennett and another against Michael Reisdorfer and others. From a judgment for plaintiffs, defendants appeal. Affirmed in part, and reversed in part.Ivan W. Goodner, for appellants. John Sutherland, for respondents.

FULLER, J.

For the purpose of continuing in force a certain restraining order pending an appeal to this court, the defendants, in the capacity of sureties, executed the undertaking made the basis of this suit, and now appeal from a judgment in favor of plaintiffs fixing their liability for a breach thereof at $279.28, exclusive of costs. Charles H. Burke, one of the appellants, being a practicing attorney, it is urged by his counsel that in any event there is no liability as to such surety; and the case of Towle v. Bradley, 2 S. D. 472, 50 N. W. 1057, is considered conclusive upon the proposition. If, as there held, “on grounds of public policy the statute intends to, and does, disqualify an attorney absolutely from entering into any such contract,” and “deprives him of the legal power or ability to become a surety on an undertaking in any action pending in the courts of this state,” it is difficult to see how an act thus prohibited by a mandatory statute can possess any binding qualities. Where the statute or rule of court prohibiting an officer from accepting an attorney as surety is merely directory, he who signs may doubtless be held liable, notwithstanding the restriction; but our statute, as construed by this court, renders impossible the execution of such an undertaking by a practicing attorney, and, as held in the case above cited, there can be no effectual waiver either on his part or that of another. Under a provision prohibiting an alderman from being surety in an undertaking to the city of Fond du Lac, it was squarely held, on the authority of a Wisconsin case mentioned in Towle v. Bradley, supra, that an alderman who had executed such an undertaking as surety in the sum of $100,000 incurred no liability, and an action to recover thereon was dismissed as to him. City of Fond du Lac v. Moore, 58 Wis. 170, 15 N. W. 782. Knowing the law, respondents might have raised the question as an objection to the injunction, and either secured its dissolution, or the procurement of such an undertaking as the statute contemplates. If, as stated by this court, “it is not a personal privilege which an attorney or a party to the action in which an attorney executes an undertaking as surety may waive,” it is difficult to understand how so gross a violation of the statute may operate to destroy its effect, and defeat the very purpose of its enactment, by giving validity to an undertaking which...