Graff v. Burnside

• Decision Date: 21 January 1931
• Docket Number: 7180.
• Parties: GRAFF v. BURNSIDE.
• Court: South Dakota Supreme Court

234 N.W. 523

57 S.D. 578

GRAFF v. BURNSIDE.

No. 7180.

Supreme Court of South Dakota

January 21, 1931

Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.

Proceedings by A. N. Graff against George W. Burnside to contest an election. A motion to dismiss the contest was denied, and defendant appeals.

Appeal dismissed.

D. J Conway, T. M. Bailey, and M. G. Luddy, all of Sioux Falls for appellant.

George J. Danforth, E. E. Sullivan, and W. O. Knight, all of Sioux Falls, for respondent.

CAMPBELL J.

A recall election for the office of mayor of the city of Sioux Falls was held in said city on October 21, 1930, at which election plaintiff, A. N. Graff, and defendant, George W Burnside, were candidates for such office. On October 24, 1930, the official canvassing board met, canvassed the returns of such election, declared defendant, Burnside, elected, and issued their certificate to that effect.

Thereafter, and on November 12, 1930, plaintiff, Graff, served on defendant, Burnside, a notice of contest thereby seeking to initiate proceedings under the provisions of sections 7336 to 7347, inclusive, Rev. Code 1919 (made applicable to municipal elections by section 6326, Rev. Code 1919).

Section 7343, Rev. Code 1919 provides as follows:

"Surety for Costs. Any person bringing a contest under the provisions of this article must, before bringing the same, furnish good and sufficient surety for costs as provided in the code of civil procedure, and the obligation of such surety shall be completed by simply indorsing the notice of contest as surety for the costs; and the contestee may object to the surety as insufficient and the court may require additional security."

Plaintiff, Graff, made no attempt to comply with said section or furnish security for costs in any manner before instituting his contest, nor at any time prior to November 18th, as hereinafter stated. November 17, 1930, it being then too late to institute a contest of said election under the provisions of section 7336 requiring notice to be given within twenty days after the canvass of the votes, defendant, Burnside, appeared specially and moved to quash and dismiss the contest proceedings upon the ground that the court had no jurisdiction thereof because of plaintiff's failure to furnish security for costs. The motion to dismiss came on for hearing before the court on November 26, 1930. Meantime, and on November 18, 1930, plaintiff, Graff, filed with the clerk of the circuit court of Minnehaha county, wherein said contest proceeding was instituted, a bond for costs executed by himself as principal and two others as sureties. On December 6, 1930, the learned circuit judge made and entered his order denying defendant's motion to dismiss, reciting in part as follows:

"* * * And the Court having listened to the arguments of counsel and being duly advised in the premises, and being of the opinion that giving security for costs is not jurisdictional, and the Plaintiff having given security for costs, and having offered in open Court to give or furnish additional security for costs, if desired,

"Now, therefore, it is ordered that said Order to show cause, and the motion for dismissal of said action be, and the same is hereby overruled and denied."

From said order of December 6th denying his motion to dismiss, defendant promptly thereafter and on December 13, 1930, perfected an appeal to this court.

Appellant contends that the order of December 6th is appealable and erroneous. Respondent, on the other hand, contends that such order is not appealable, but, if appealable, is right.

The last section of the election contest law involved, being section 7347, Rev. Code 1919, reads as follows:

"Practice and Procedure. With respect to matters of practice and procedure, contests provided for herein shall be governed by the provisions of title 2 so far as such provisions are applicable to and not inconsistent with the provisions of this article."

Appellant maintains that by virtue of this section appeals in election contest matters are governed by the general procedural statutes contained in title 2 of the Revised Code of 1919, and therefore that section 3168, Rev. Code 1919, defining appealable orders, has application, and that the order involved is appealable under subdivision 4 of section 3168, providing that an order may be carried to the Supreme Court "when it involves the merits of an action or some part thereof. * * *"

It might well be questioned whether an order denying a dismissal is appealable under subdivision 4, section 3168. See Ryan v. Davenport, 5 S. D. 203, 58 N.W. 568; De Bord v. Brandt, 49 S.D. 173, 206 N.W. 925; Warwick v. Bliss, 52 S.D. 107, 216 N.W. 865. However, we think that question is not reached in this case.

The election contest statute here involved came into our law as a distinct entity in territorial days as chapter 54, Laws 1885, and has since been continued in force without substantial change.

This court has several times had occasion to observe that proceedings under this contest statute are informal in their nature and intended to be summarily and speedily disposed of. See Dunn v. Gamble, 47 S.D. 303, 198 N.W. 821.

The right of appeal is purely statutory. See Overton v. City of Sioux Falls, 47 S.D.

135, 196 N.W. 297; National Bank of Commerce v. Jury, 48 S.D. 467, 204 N.W. 945: Downs v. Bruce, etc., Dist., 52 S.D. 168, 216 N.W. 949.

The original election contest law here involved provided by sections 9 and 10 of the act for appeals, which sections have been carried forward as sections 7344 and 7345, Rev. Code 1919, and read as follows:

"Appeals. Appeals from any final judgment or decision of the circuit court or judge thereof shall be taken in

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