Griffin v. Board of County Com'rs of Walworth County

• Citation: 104 N.W. 1117,20 S.D. 142
• Parties: GRIFFIN v. BOARD OF COUNTY COM'RS OF WALWORTH COUNTY et al.
• Decision Date: 24 October 1905
• Court: South Dakota Supreme Court

104 N.W. 1117

20 S.D. 142

GRIFFIN v. BOARD OF COUNTY COM'RS OF WALWORTH COUNTY et al.

Supreme Court of South Dakota

October 24, 1905

Appeal from Circuit Court, Walworth County.

Proceedings by Fred Griffin against the board of county commissioners of Walworth county, and R. C. Chesky and another, made defendants by leave of court, to contest a proceeding for the removal of the county seat of Walworth county. From a judgment in favor of defendants, contestant appeals. Affirmed.

Albert Gunderson and C. H. Barron, for appellant. Taubman Williamson & Herreid, for respondents.

CORSON J.

This is an appeal by the plaintiff and contestant in a contest proceeding in which the court adjudged Bangor to be the legal county seat of Walworth county. In 1904 an election was held upon a petition duly filed, in which the question of the removal of the county seat from Bangor, situated some distance from a railroad, to Selby upon the line of the railroad, was voted on. Upon canvassing the vote, the board of county commissioners of Walworth county declared, as a result thereof, that the town of Selby had not received the required 60 per cent. of the votes cast at the election, and therefore that the county seat must remain at the town of Bangor in said county. The plaintiff thereupon instituted the proceedings to contest said election, claiming in his notice of contest that certain illegal votes cast in the various precincts of the county had been improperly canvassed by the board of county commissioners, and that, excluding such illegal votes so cast, there were at least 60 per cent. of the votes of such county cast in favor of the removal of said county seat to the said town of Selby. This notice of contest was served upon the board of county commissioners on the 14th day of December, 1904, and no answer having been served or filed within 10 days by the board, the plaintiff applied for judgment to the Honorable Frank B. Smith, judge of the Fourth circuit, at his chambers in Mitchell, for judgment by default, Judge Gaffy at that time judge of the Sixth circuit of which the county of Walworth constitutes a part, being absent from the state. Judge Smith entered judgment in favor of the plaintiff and contestant on the 26th day of December 1904. On the 22d day of December, four days prior to the entry of judgment, Judge Gaffy, as judge of the Sixth judicial circuit, made an order allowing R. C. Chesky, an elector of said Walworth county, leave to appear and defend said contest as such elector. A notice of this order was mailed at Aberdeen on the 23d day of December, addressed to "Albert Gunderson, Esq.," who was the attorney for the contestant, at his residence in Ft. Pierre, between which said Aberdeen and said Ft. Pierre there is a regular mail communication, and that, by the ordinary course of the mail the said order should have been received by the said Gunderson on the 23d or 24th of that month. On the 29th day of December, the said Chesky applied to Hon. Frank B. Smith upon affidavits to vacate and set aside the said judgment, on which an order to show cause was issued. On the hearing of the said order to show cause on January 5, 1905, said Judge Smith made the following order: "The above-entitled matter coming on to be heard before Hon. Frank B. Smith, judge of the Fourth judicial circuit of the state, upon an order to show cause heretofore issued and served, and the plaintiff appearing by his attorney, A. Gunderson, and the defendant by Taubman & Williamson, attorneys, and the court being fully advised in the premises, it is ordered that the hearing on said order be, and the same is hereby, transferred to be heard before Hon. L. E. Gaffy, judge of the Sixth judicial circuit of the state of South Dakota; the same being the circuit in which said controversy arose." Annexed to this order was the following stipulation: "It is hereby stipulated and agreed, that the above order to show cause, together with the order issued by Hon. L. E. Gaffy, be heard at the chambers of the said L. E. Gaffy at Pierre or Ft. Pierre, at 9 o'clock a. m., on January 12, 1905, at whichever place is most convenient for said court." On the 3d day of January, 1905, an order was made by Judge Gaffy requiring the plaintiff and contestant to show cause on the 12th day of January, 1905, why the said judgment should not be vacated and set aside. On the hearing of this order, on the 12th day of January, Judge Gaffy entered the following order: "The above-entitled action to be heard upon the motion of the defendants for an order to set aside the judgment herein, and to permit an elector to appear and defend. *** The court *** orders that said judgment be set aside, and any elector of said Walworth county be permitted to answer, upon the following grounds, among others: That this court had made an order permitting an elector to appear and answer therein, and that said elector had no opportunity to so answer before said judgment was rendered. Also, because the court is of the opinion that said judgment having been rendered in the Fourth circuit, and not in any of the counties of the Sixth circuit, and being granted without any evidence, that said court of said Fourth circuit had no jurisdiction to render said judgment." No appeal seems to have been taken from this order, but in April, 1905, the cause was tried, and a judgment rendered in favor of the defendants, from which, as before stated, this appeal is...