In re Kirby

• Decision Date: 22 January 1898
• Citation: 10 S.D. 414,73 N.W. 907
• Parties: In re KIRBY.
• Court: South Dakota Supreme Court

10 S.D. 414

73 N.W. 907

In re KIRBY.

Supreme Court of South Dakota.

Jan. 22, 1898.

On petition for rehearing. Denied.

For former opinion, see 73 N. W. 92.

HANEY, J.

Heretofore a decision was rendered herein disbarring the accused because of his conviction in the United States district court. In re Kirby (S. D.) 73 N. W. 92. He now appeals from the clerk's taxation of costs in favor of the accusers, and petitions for a rehearing. In Kirby v. McCook Co. Cir. Ct. (S. D.) 72 N. W. 461, this court clearly indicated the practice where a judgment has been rendered for costs and the opposite party claims none should have been awarded. In such cases the party aggrieved should move to have the judgment itself modified, and not appeal from the taxation on the ground that no costs should be taxed. For this reason the action of the clerk should be affirmed. Beyond this, the judgment in favor of the accusers is right, as they are the persons who instituted the proceeding, and are entitled to recover such disbursements as they have made and as are provided for in the statute. Comp. Laws, § 5189. All the items allowed by the clerk being justified by the section cited, the taxation in this proceeding in all respects is confirmed.

In support of the contention that the court erred in holding that a conviction was had within the meaning of Comp. Laws, § 473, notwithstanding the writ of error and supersedeas, accused insists that where conviction for crime constitutes a cause for divorce one cannot be obtained for this cause while the criminal action is pending on appeal. It needs no argument to show the essential difference between the consequences of divorce and disbarment; but, assuming that there is no distinction in principle, there is such conflict in the authorities regarding the meaning of “conviction” as a cause for divorce that, were that question before the court, it would be justified in taking the view deemed most consonant with sound reason. In Iowa divorce cannot be obtained for this cause while the criminal action is pending on appeal. Vinsant v. Vinsant, 49 Iowa, 639;Rivers v. Rivers, 60 Iowa, 378, 14 N. W. 774;Id., 65 Iowa, 568, 22 N. W. 679. A different doctrine prevails in Massachusetts and New Hampshire. Cone v. Cone, 58 N. H. 152;Handy v. Handy, 124 Mass. 394. Under a statute providing that a sentence of imprisonment for life shall dissolve the marriage of the person sentenced, without any judgment of divorce or other legal...