Lawrence County v. Meade County

• Decision Date: 13 April 1895
• Citation: 6 S.D. 626,62 N.W. 957
• Parties: LAWRENCE COUNTY, Plaintiff and appellant, v. MEADE COUNTY, Defendant and respondent.
• Court: South Dakota Supreme Court

6 S.D. 626, 62 N.W. 957 (1895)

LAWRENCE COUNTY,

Plaintiff and appellant,

v.MEADE COUNTY,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Meade County, SD

Hon. Charles M. Thomas, Judge

Motion for rehearing denied

Joseph B. Moore, Robert C. Hayes

Attorneys for appellant.

Thos. E. Harvey, McLaughlin & McLaughlin

Attorneys for respondent.

Opinion filed Apr 13, 1895

(See 6 SD 528, 62 NW 131)

CORSON, P. J.

This case comes before us on a petition for rehearing. The appeal was decided at the last term of this court, and the opinion is reported in 6 S.D. 528, 62 N.W. 131. The grounds for a rehearing set forth in the petition are that this court had no jurisdiction of the case, for the reasons (1) that the appeal was from an order made by the judge, and not by the court; and (2) that the order appealed from was not an appealable order, it being an order sustaining the defendant’s objection to the introduction of evidence on the part of the plaintiff, on the ground that the complaint did not state facts sufficient to constitute a cause of action.

In support of the first proposition, the learned counsel for the respondent contends that the so-called “order” was made in chambers, as appears from a recital in the order, and therefore comes within the principle of the decision in Black Hills Flume & Min. Co. v. Grand Island & W. C. R. Co., 2 S.D. 546, 51 N.W. 342 (1892). That case, however, is not analogous, and does not rule the case at bar. The court held in that case that the order made, being one that could have been made by the court or the judge, clearly appeared to have been made by the judge. The order to show cause was made returnable before judge, and the order recites that the judge considered the motion, and, both orders recite that they were made at chambers.

But in the case at bar the so-called “order” was made on the trial of an action by the court without a jury, and could only have been made by the court. The recital that the hearing in the case was had and the order made in chambers was not of itself of much importance, as the court had no power to make a judge’s order finally disposing of the case on trial before the court. The case was tried within the Eighth judicial circuit, in which the judge signing the so-called “order” was the circuit judge, and in such case this court will presume that the order made was a court order, unless it clearly appears that the order was one that the judge could make as judge, and that it was clearly intended to be so made. Evans v. Bradley, 4 S.D. 83, 55 N.W. 721 (1893). It is not material, therefore, whether the order was made at chambers, at the court room, or elsewhere, so long as it was made within the circuit. It would hardly be fair to the learned judge who tried the case to presume that he initended by the term “heard” and “done in chambers” to convey the idea that he was trying a case involving about $25,000, as a judge, and not as a court. Those words evidently mean, as used by the Judge in ...