G. H. Lindekugel & Sons, Inc. v. South Dakota State Highway Commission, No. 10969

CourtSupreme Court of South Dakota
Writing for the CourtANDERST; HANSON, P.J., and BIEGELMEIER; ANDERST, Circuit Judge, sitting for WINANS; BIEGELMEIER; WOLLMAN
Citation202 N.W.2d 125,87 S.D. 32
Docket NumberNo. 10969
Decision Date21 November 1972
PartiesG. H. LINDEKUGEL & SONS, INC., a corporation, Plaintiff and Appellant, v. SOUTH DAKOTA STATE HIGHWAY COMMISSION a/k/a State of South Dakota By and Through its State Highway Commission, Defendant, Third Party Plaintiff and Respondent, v. Wendell C. FRITZEL et al., and Woodward-Clyde-Sherard and Associates, Soil Consultants, Third Party Defendants and Respondents.

Page 125

202 N.W.2d 125
87 S.D. 32
G. H. LINDEKUGEL & SONS, INC., a corporation, Plaintiff and
Appellant,
v.
SOUTH DAKOTA STATE HIGHWAY COMMISSION a/k/a State of South
Dakota By and Through its State Highway
Commission, Defendant, Third Party
Plaintiff and Respondent,
v.
Wendell C. FRITZEL et al., and Woodward-Clyde-Sherard and
Associates, Soil Consultants, Third Party
Defendants and Respondents.
No. 10969.
Supreme Court of South Dakota.
Nov. 21, 1972.

[87 S.D. 33]

Page 127

Morgan & Fuller, Mitchell, Simons, Gibbs & Feyder, Sioux Falls, for plaintiff and appellant.

John B. Wehde, Huron, for defendant, third party plaintiff and respondent.

[87 S.D. 34] Davenport, Evans, Hurwitz & Smith, Sioux Falls, for third party defendant and respondent architects.

Stephens, Riter, Mayer & Hofer, Pierre, for third party defendant and respondent soil consultants.

ANDERST, Circuit Judge.

The plaintiff contracted with the defendant on or about May 3, 1965, to construct a state highway department office and laboratory building. The building consists of two connected sections, referred to as the 'A' section and 'B' section. The contract provided the 'B' section was to be completed by September 1, 1966, and the 'A' section was to be completed by December 1, 1966. The plaintiff was subsequently given an extension of the completion date on each section. The 'B' section was actually completed on January 8, 1967, or 85 days later than the extended dateline, and the 'A' section was completed on March 19, 1967, or 63 days later than the extended dateline on that section. The defendant retained $280 per day on each section as liquidated damages under the terms of the contract, or a total retained of $41,440.

This action was initiated by the plaintiff, G. H. Lindekugel & Sons, Inc., against the defendant, South Dakota State Highway Commission, pursuant to the provisions of Ch. 110, S.L.1964, now SDCL 31--2--34 through 31--2--39. The plaintiff's complaint asserted two causes of action. The first cause of action sought damages of $118,543.48 for additional labor and materials because of alleged impossibility of performance, claimed misrepresentation, and breach of warranty with respect to the foundation of the building. The second cause of action is divided into two parts. The first paragraph seeks ddmages of $28,407.98 for extra work and materials alleged to have been made necessary by faulty plans and specifications. The second paragraph seeks return of the amount asserted to have been wrongfully retained by the state as liquidated delay damages.

The defendant joined the architects, Wendell G. Fritzel, Jean R. Kroeger, Edward L. Griffin, Milton L. Berg, d/b/a [87 S.D. 35] Fritzel, Kroeger, Griffin & Berg, and the soil consultants, Woodward-Clyde-Sherard, as third party defendants. Defendant thereafter moved to dismiss the plaintiff's complaint. An order dismissing the first cause of action, as well as that part of the second cause of action for alleged additional compensation, because there was no appropriation for such claims, was granted. The defendant's motion to dismiss the second paragraph of the second cause of action seeking recovery of the liquidated damages withheld was denied. As to that issue, a court trial was held and judgment was entered in favor of defendant and against plaintiff. Separate judgments were entered between the defendant, State Highway Commission, and the third party defendants, the architects and the soil consultants.

The plaintiff appealed from the judgment which dismissed its action against defendant State, and assigned as error the entry of the above mentioned order which dismissed two of plaintiff's claims and the judgment for defendant on the merits as to its third claim.

The judgments between defendant, as third party plaintiff, and third party defendants, architects and soil consultants, have not been appealed to this Court, thus we have no jurisdiction to grant the motion to dismiss that appeal or take other action except to note the record shows no appeal as to them.

The South Dakota Constitution, Article III, § 27, provides:

'The Legislature shall direct by law in what manner and in what courts suits may be brought against the state.'

Page 128

Of further importance is Article XI, § 9:

'* * * No indebtedness shall be incurred or money expended by the state, and no warrant shall be drawn upon the state treasurer except in pursuance of an appropriation for the specific purpose first made. * * *'

This suit is brought under the provisions of SDCL 31--2--34 wherein:

[87 S.D. 36] 'The state of South Dakota may be sued and made defendant in any court in which an action is brought against the South Dakota state highway commission respecting any claim, right, or controversy arising out of the work performed, or by virtue of the provisions of any construction contract entered into by the South Dakota state highway commission. * * *'

Further, SDCL 31--2--38 provides that any successful litigant obtaining a judgment shall be paid.

'out of the state highway fund from all the moneys levied and collected by the state by general state taxation for state highway purposes, or appropriated for state highway purposes'.

See also SDCL 31--2--39. Plaintiff contends this proision is an appropriation statute with a continuing appropriation to pay any judgment for damages which might be obtained thereunder. With this contention we cannot agree.

SDCL 31--2--34 through 31--2--39 is very similar in nature to SDCL 21--32--10 through 21--32--14. The main distinction is the former provides suit may be initiated in any court while the latter provides for original jurisdiction in the Supreme Court. Of special interest is a similarity to SDCL 31--2--39 and SDCL 21--32--14 stating how payment of any judgment obtained therein is made.

This court has held on numerous occasions, Griffis v. State, 69 S.D. 439, 11 N.W.2d 138; Griffis v. State, 68 S.D. 360, 2 N.W.2d 666; Kansas City Bridge Co. v. State, 61 S.D. 580, 250 N.W. 343; and Sigwald v. State, 50 S.D. 37, 208 N.W. 162, that SDCL 21--32--14 was not an appropriation statute. It is further well settled law this court is without jurisdiction to render judgment (under SDCL 21--32--10 through 21--32--14) in the absence of an appropriation available for their payment. Griffis v. State, 68 S.D. 360, 2 N.W.2d 666, and Kansas City Bridge Co. v. State, supra.

The expenditure of moneys levied and collected for state highway purposes, or appropriated for state highway purposes, is [87 S.D. 37] limited by SDCL 31--5--8 to 'laying out, marking, constructing, reconstructing, or maintaining public highways forming the trunk highway system', and "such sums as are required for the maintenance of the state highway commission". As stated in Griffis v. State, 69 S.D. 439, 445, 11 N.W.2d 138, 141:

'In view of Section 9, Article XI, State Constitution, * * * this court in Sigwald v. State, supra, held that moneys (levied and...

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12 practice notes
  • Arcon Const. Co., Inc. v. South Dakota Cement Plant, Nos. 14139
    • United States
    • Supreme Court of South Dakota
    • 2 d3 Maio d3 1984
    ...purpose of a lawsuit, a court is without jurisdiction to render judgment. See G.H. Lindekugel & Sons, Inc. v. South Dakota St. Hy. C., 87 S.D. 32, 202 N.W.2d 125 (1972); Griffis v. State, 68 S.D. 360, 2 N.W.2d 666 However, article XI of the South Dakota Constitution must be interpreted ......
  • Thomas O'Connor & Co., Inc. v. City of Medford
    • United States
    • Appeals Court of Massachusetts
    • 1 d5 Julho d5 1983
    ...contracts do not protect commission from breach of its own valid contract). But see Lindekugel & Sons v. S.D. St. Highway Commn., 87 S.D. 32, 35, 39, 202 N.W.2d 125 (1972), where under a constitutional provision that "[n]o indebtedness shall be incurred ... and no warrant shall be ......
  • Associated General Contractors of South Dakota, Inc. v. Schreiner, No. 17917
    • United States
    • Supreme Court of South Dakota
    • 25 d3 Novembro d3 1992
    ...Co. v. S.D. State Highway Comm., 87 S.D. 71, 202 N.W.2d 861 (1972); G.H. Lindekugel & Sons, Inc. v. S.D. State Highway Commission, 87 S.D. 32, 202 N.W.2d 125 (1972); State ex rel. Mills v. Wilder, supra; State ex rel. Parker v. Youngquist, 69 S.D. 423, 11 N.W.2d 84 (1943). Parker, Volk,......
  • Northern Imp. Co., Inc. v. South Dakota State Highway Commission, No. 11789
    • United States
    • South Dakota Supreme Court
    • 15 d4 Junho d4 1978
    ...was previously raised by paragraph VI of its original complaint. Relying on G. H. Lindekugel & Sons, Inc. v. State Highway Comm., 87 S.D. 32, 202 N.W.2d 125, we upheld the dismissal of plaintiff's claim for damages for defective project plans as being one for breach of contract and henc......
  • Request a trial to view additional results
12 cases
  • Arcon Const. Co., Inc. v. South Dakota Cement Plant, Nos. 14139
    • United States
    • Supreme Court of South Dakota
    • 2 d3 Maio d3 1984
    ...purpose of a lawsuit, a court is without jurisdiction to render judgment. See G.H. Lindekugel & Sons, Inc. v. South Dakota St. Hy. C., 87 S.D. 32, 202 N.W.2d 125 (1972); Griffis v. State, 68 S.D. 360, 2 N.W.2d 666 However, article XI of the South Dakota Constitution must be interpreted ......
  • Thomas O'Connor & Co., Inc. v. City of Medford
    • United States
    • Appeals Court of Massachusetts
    • 1 d5 Julho d5 1983
    ...contracts do not protect commission from breach of its own valid contract). But see Lindekugel & Sons v. S.D. St. Highway Commn., 87 S.D. 32, 35, 39, 202 N.W.2d 125 (1972), where under a constitutional provision that "[n]o indebtedness shall be incurred ... and no warrant shall be ......
  • Associated General Contractors of South Dakota, Inc. v. Schreiner, No. 17917
    • United States
    • Supreme Court of South Dakota
    • 25 d3 Novembro d3 1992
    ...Co. v. S.D. State Highway Comm., 87 S.D. 71, 202 N.W.2d 861 (1972); G.H. Lindekugel & Sons, Inc. v. S.D. State Highway Commission, 87 S.D. 32, 202 N.W.2d 125 (1972); State ex rel. Mills v. Wilder, supra; State ex rel. Parker v. Youngquist, 69 S.D. 423, 11 N.W.2d 84 (1943). Parker, Volk,......
  • Northern Imp. Co., Inc. v. South Dakota State Highway Commission, No. 11789
    • United States
    • South Dakota Supreme Court
    • 15 d4 Junho d4 1978
    ...was previously raised by paragraph VI of its original complaint. Relying on G. H. Lindekugel & Sons, Inc. v. State Highway Comm., 87 S.D. 32, 202 N.W.2d 125, we upheld the dismissal of plaintiff's claim for damages for defective project plans as being one for breach of contract and henc......
  • Request a trial to view additional results

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