Halverson v. Williams

• Decision Date: 30 December 1916
• Docket Number: 3977
• Citation: 160 N.W. 730,38 S.D. 176
• Parties: ALFRED HALVERSON, Plaintiff and Appellant, v. FRANK WILLIAMS, Mayor of the City of Centerville, T. I. Gunderson et al., Aldermen, and Soren Christensen, Auditor, Defendants and respondents.
• Court: South Dakota Supreme Court

38 S.D. 176, 160 N.W. 730 (1916)

ALFRED HALVERSON,

Plaintiff and Appellant,

v. FRANK WILLIAMS,

Mayor of the City of Centerville,

T. I. Gunderson et al., Aldermen,

and Soren Christensen, Auditor,

Defendants and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Turner County, SD

Hon. Robert B. Tripp, Judge

#3977—Affirmed

Bogue & Bogue

Attorneys for Appellant.

W. R. White, A. L. Wyman

Attorneys for Respondent.

Opinion filed December 30, 1916

POLLEY, P. J.

This is a proceeding in mandamus and was commenced by the plaintiff to compel the defendant (the city of Centerville) to pay five separate judgments held by plaintiff against the defendant. The defendant answered the alternative writ of mandamus and alleged that said, judgments bad been obtained fraudulently and by collusion between the plaintiff and the mayor of the defendant city. Paragraph 3 of defendant's answer reads as follows:

"That said purported judgments were secured by the papers being served on, the mayor, W. E. Ege, who, together with the plaintiff, Alfred Halverson, by reason of the friendly feeling existing between them and the unfriendly feeling existing between the said mayor, W. E. Ege, and the members of the said city council of the city of Centerville, S. D., fraudulently, collusively, and secretly kept the fact of the serving of said papers in said actions from in any way being communicated to the members of the city council, and also from the city attorney, and permitted said plaintiff, Alfred Halverson, to take judgment against said city of Centerville by default, and the city council and the city attorney knew nothing whatever about any actions being begun against the said city of Centerville, nor that any judgments had been rendered until during the month of June, 1945, when they were notified of the fact. That said city of Centerville had and still has a good defense to such actions, but has had no opportunity to defend, or, in other words, the said city has not had its day in court."

Upon the trial of the case, the trial court made and entered the following order or judgment:

"... It is, by the court, ordered, adjudged, and decreed that plaintiff's application for a peremptory writ of mandamus herein be and the same is denied; and it is further ordered that in the event that the city of Centerville does not institute the proceedings indicated in the conclusions of law filed herein for the vacation of the several judgments which are the basis of this action, within 30 days from and after the receipt of written notice of this order, upon proper showing and application to this court by plaintiff, and peremptory writ of mandamus will issue."

A motion by plaintiff for a new trial was overruled, and, from said judgment and the order overruling the motion for a new trial, plaintiff appeal's.

The controversy between plaintiff and defendants arose over the payment of plaintiff's salary while claiming to act as chief of police of the defendant city. At the end of...