Gillespi, Matter of
| Decision Date | 22 October 1986 |
| Docket Number | No. 15254,15254 |
| Citation | 397 N.W.2d 476 |
| Parties | In the Matter of the Alleged Mental Illness of Joan GILLESPI/Jane Doe. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mary G. Keller, Beadle County State's Atty., Huron, for appellant Beadle County.
Robert L. Chavis, Yankton, for appellee.
This is an appeal from an order directing the Beadle County Treasurer to pay attorney fees on behalf of an indigent person committed to the State Human Services Center. We reverse on jurisdictional grounds.
On September 27, 1985, Joan Gillespi/Jane Doe was committed to the South Dakota Human Services Center in Yankton County, South Dakota pursuant to emergency commitment proceedings held in Beadle County. SDCL 27A-10. On September 30, 1985, attorney Robert L. Chavis (Chavis) was appointed to represent her in regular commitment proceedings held in Yankton County. At this commitment proceeding it was determined, among other things, that Ms. Gillespi was a resident of Beadle County. 1 Beadle County claimed that she was a transient or a nonresident of Beadle County. She was regularly committed for treatment at the Human Services Center for a period not to exceed one year, with a ninety day review.
On October 7, 1985, Chavis submitted a voucher for payment of his attorney fees to the trial court. The court ordered the Beadle County Treasurer to pay Chavis $126 for his representation. Beadle County refused to pay Chavis' attorney fees. 2
On November 18, 1985, Chavis presented a motion to the trial court seeking an order holding the Beadle County Treasurer in contempt of court for failure to pay his fees. On that date the trial court issued an order directing the Beadle County Treasurer to appear in Yankton, South Dakota on December 16, 1985, to show cause why the relief requested by Chavis should not be granted. The motion and order to show cause were mailed to the Beadle County State's Attorney. These documents were never personally served on the Beadle County Treasurer or a Beadle County Commissioner as required by SDCL 15-6-4(d)(4)(i).
The Beadle County State's Attorney filed a motion to dismiss on jurisdictional grounds and a motion for change of venue. Further, the Beadle County State's Attorney and Treasurer appeared specially before the trial court and raised these issues prior to addressing the merits. The trial court denied the motions, and, after hearing the merits, entered an order directing payment of the attorney fees. In its order the court did not make any specific determination of contempt.
Even though we agree with the trial court that Yankton County was the appropriate venue to enforce its own order, the order directing payment of attorney fees must be set aside because of the trial court's lack of jurisdiction over Beadle County or the Beadle County Treasurer. Mailing the motion and order to show cause to the Beadle County State's Attorney was insufficient. Admittedly, the state's attorney is counsel for all county officials. SDCL 7-16-9. Service of the appropriate motions and pleadings contemplated by SDCL 15-6-5 could certainly be made upon the state's attorney once Beadle County is a party. However, SDCL 15-6-5(b) specifically states that "The provisions of Sec. 15-6-5 shall not apply to the service of a summons or other process or of any paper to bring a party into contempt." (emphasis supplied)
In order for the trial court to have jurisdiction in these contempt proceedings, personal service upon Beadle County and the Beadle County Treasurer under the provisions of SDCL 15-6-4(d)(4)(i) was mandatory. Because this service is absent, jurisdiction is totally lacking.
This court is mindful of the serious, compelling, central issue that Chavis would like addressed; this court, however, may only address those issues which are properly presented through appropriate procedural steps.
Reversed.
MILLER, Cir.J., for FOSHEIM, J., disqualified. (Prior to his appointment as a Supreme Court Justice, Robert A. Miller was appointed in his capacity as a circuit court judge to serve in the place of Justice Fosheim in this matter, and the record will reflect that he participated as a circuit court judge.)
Since I began, as a neophyte in the law, some 35 years ago, I was always under the impression, and still believe it to be the law, that an order to show cause is an ancillary proceeding and cannot spontaneously erupt, absent express statutory authorization, without a principal proceeding in existence. See 60 C.J.S. Motions and Orders Sec. 20 (1969 and Supp.1986) (and authorities cited therein); 56 Am.Jur.2d Motions, Rules, and Orders Sec. 34 (1971). Here, we have a child, in effect, the order to show cause, but there is no mother, namely a lawsuit from which the order to show cause was birthed. Ancillary is "aiding"; it is "attendant upon"; it is "describing a proceeding attendant upon or which...
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Wagner v. Truesdell
...of the doctrine of substantial compliance finds absolutely no support in our statutes concerning service of process. In Matter of Gillespi, 397 N.W.2d 476 (S.D.1986), this Court unanimously struck down service of process by first-class mail. Although the defendants admitted they received th......
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Crowley v. Spearfish Independent School Dist., No. 40-2
...never acquired jurisdiction over the school district because of improper service under SDCL 15-6-4(d)(4)(v). This, under In re Gillespi, 397 N.W.2d 476 (S.D.1986), does indicate that the trial court lacked personal jurisdiction over the school board, because service should be made on a memb......
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Wold Family Farms v. HEARTLAND FOODS, 22767.
...under the provisions of SDCL 15-6-4 was mandatory. Because this service is absent, jurisdiction is totally lacking." Matter of Gillespi, 397 N.W.2d 476, 477 (S.D.1986). [¶ 24.] "[T]he failure to issue, file, or serve a summons, as in this case, deprives the court of jurisdiction." Ripple v.......
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White Eagle v. City of Fort Pierre
...it was adopted, i.e. advising City of impending action and warning City to appear and defend. We disagree. [¶ 9.] In Matter of Gillespi, 397 N.W.2d 476 (S.D.1986), a motion and order to show cause were mailed to the Beadle County State's Attorney. These documents were never personally serve......