Fritz v. Hall

• Citation: 48 S.D. 577,205 N.W. 378
• Decision Date: 02 October 1925
• Docket Number: 5244
• Parties: AMELIA B. FRITZ, Plaintiff and respondent, v. W. S. HALL et al, Defendants and appellants.
• Court: Supreme Court of South Dakota

48 S.D. 577

205 N.W. 378

AMELIA B. FRITZ, Plaintiff and respondent,

v.

W. S. HALL et al, Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Pennington County, SD Hon. Walter G. Miser, Judge #5244--Reversed Johnson & Simons, Sioux Falls, SD Attorneys for Appellants. Opinion filed October 2, 1925

GATES, P. J.

In Fritz v. Fritz, 187 N.W. 719, appellant Fritz in this case was the appellant there. He there appealed from a judgment adjudging him to be in contempt of court for failure to pay alimony. The judgment was affirmed in the above case.

This action is brought against appellant and the two sureties upon the supersedeas undertaking given upon that appeal. The venue of this action was laid in Pennington county, the county in which the divorce action was tried which resulted in the contempt proceeding. All three of the defendants were residents of and served with process in Lake county. In due time defendants sought a change of venue to Lake county as provided in section 2328, Rev. Code 1919. This appeal is from the order of the trial court denying such change of venue.

Section 2327, Rev. Code 1919, provides that all other actions, aside from those mentioned in the two previous sections, and aside from certain other designated actions, shall be brought in the county in which the defendant or defendants or any of them shall reside at the commencement of the action. Manifestly, the provisions of section 2325 do not apply to this case; nor do the exceptions mentioned in section 2327 so apply; nor do the first and second subdivisions of section 2326 apply. The only ground we can conceive of that might constitute a justification for the ruling: of the trial court is that mentioned in the third subdivision of said section 2326. That secton reads:

"Certain Actions Brought Where Cause of Action Arose.

"Actions for the following causes, or upon the following instrumehts, must tbe tried in the county where the cause, or some part thereof, arose, or the forfeiture was declared, subject to the power of the court to change the place of trial:

"1. For the recovery of a penalty or forfeiture imposed by statute, except that when it is imposed for an offense committed on a lake or river, or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offense committed;

"2. Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who, by his command or his aid, shall do anything touching the duties of such officer;

"3. Upon a forfeited...