Houser v. Olmstead

• Decision Date: 11 April 1930
• Docket Number: No. 6985.,6985.
• Citation: 230 N.W. 224,57 S.D. 41
• Parties: HOUSER v. OLMSTEAD, State's Atty.
• Court: South Dakota Supreme Court

57 S.D. 41

230 N.W. 224

HOUSER

v.OLMSTEAD, State's Atty.

No. 6985.

Supreme Court of South Dakota.

April 11, 1930.

Appeal from Circuit Court, Tripp County; J. R. Cash, Judge.

Appeal by O. D. Olmstead, as State's Attorney of Tripp County, from decision of board of county commissioners awarding damages as fixed by appraisers in appraising land owned by William H. Houser. From an order of the circuit court, denying motion to dismiss appeal, Houser appeals.

Order reversed.W. J. Hooper, of Gregory, and Roscoe Knodell, of Winner, for appellant.

O. D. Olmstead, State's Atty., of Winner, in pro. per.

BROWN, P. J.

It being deemed necessary that land belonging to appellant should be acquired for highway purposes, the amount of damages accruing to appellant, by reason of such taking, was estimated by appraisal pursuant to the provisions of chapter 139, Laws 1927, and appellant was notified that the county was prepared to pay the amount fixed by the appraisers. A petition signed by more than seven taxpayers of the county was presented to the state's attorney of the county demanding that an appeal be taken from the action of the board deciding to pay the amount of the appraisal, and in response to the petition the state's attorney attempted to take such appeal. The notice of appeal, however, states “that the undersigned, State's Attorney of Tripp County, South Dakota, *** does hereby appeal to the Circuit Court of Tripp County, South Dakota, from said appraisal and the whole thereof, and demands a trial in the circuit court de novo.” The notice is signed “O. D. Olmstead, State's Attorney, Tripp County, South Dakota.”

Rev. Code 1919, § 5886 provides that, when any action of the board of county commissioners relates to the interests or affairs of the county at large or any portion thereof, the state's attorney, upon written demand of at least seven taxpayers of the county, may take an appeal therefrom, in the name of the county. It will be observed that the notice of appeal in the instant case was not in the name of the county, but in the name of the state's attorney individually or personally. In the circuit court appellant here, who was respondent in the circuit court, moved to dismiss the appeal, for the reason that it was taken without authority of law and because the circuit court had no jurisdiction to try the matter and had no jurisdiction of the person. From an order denying the motion, appeal is taken to this court. Appellant contends that the appeal, not being taken in the name of the county, but by the state's attorney of the county, should have been dismissed. In Moon v. Cline, 11 Ind. App. 460, 39 N. E. 432, 433, it was held that an appeal from a judgment rendered against Union township, taken in the name of Milton J. Moon, trustee, was not an appeal by the township, and it was said that “the judgment being against Union township, the appeal must be taken by it, and it designated as the appellant.” In Muskogee County v. Lanning, 51 Okl. 343, 151 P. 1054, 1055, it was held that where the statute provided that a county should sue or be sued in the name of “Board of County Commissioners of the County of _____”; that an appeal prosecuted in the name of “Muskogee County, Oklahoma,” will be dismissed for want of proper parties plaintiff in error, for the reason that an action could not be prosecuted by a county in such name, citing Board of Commissioners of Phillips County v. Churning, 4 Colo. App. 321, 35 P. 918; Arnett v. Board of Commissioners of Decatur County, 75 Ga. 782; County of Rock Island v. Steele, 31 Ill. 543;Wild v. Board of Supervisors of County of Columbia, 9 How. Prac. (N. Y.) 315;Board of Commissioners of Sweetwater County v. Young, 3 Wyo. 684, 29 P. 1002. See, also, Cleveland County v. Johnson, 59 Okl. 77, 157 P. 1035. Respondent has not called our attention to any case in which it is held that, where an appeal is authorized to be taken in the name of a county, such appeal may be taken in the name of...