McClain v. Williams

Decision Date26 November 1897
Citation73 N.W. 72,10 S.D. 332
CourtSouth Dakota Supreme Court

Appeal from circuit court, Hutchinson county; E. G. Smith, Judge.

Claim and delivery by John McClain against A. J. Williams. From a judgment for plaintiff, defendant appealed. Motion to dismiss appeal. Granted.

W. J Hooper. for appellant. Wellington Brown, for respondent.


This case comes before us on a motion to dismiss the appeal. The action was one in claim and delivery, brought in a justice court, and appealed to the circuit court, in which latter court a judgment was rendered in favor of the plaintiff, and from which the defendant appealed. The jury in the circuit court found the value of the personal property described in plaintiff's complaint to be $18, and a judgment was thereupon entered "that plaintiff recover of the defendant possession of the property or the value thereof, to wit, $18, in case a recovery cannot be had," and costs taxed at $86.80. The motion to dismiss the appeal is made upon the ground that under the provisions of chapter 55, Laws 1897, no appeal lies to this court from the circuit court in this class of cases, and hence, since the passage of said act, this court has no jurisdiction of the appeal. The appellant resists the motion on two grounds: (1) That the law of 1897 is void, for the reason that it is in conflict with the provisions of the constitution of this state; (2) that it does not appear from the appellant's abstract when the appeal was taken, and, there being no additional abstract the court cannot presume that the appeal was taken since the act of 1897 took effect, and that, if taken before, this court has jurisdiction.

The first section of the act of 1897 provides that section 5213, Comp. Laws, shall be amended so as to read as follows: "No appeal shall be allowed or be taken from any judgment rendered by the circuit courts of this state either upon a verdict of a jury or by the court, to the supreme court in any action for the recovery of money where the amount recovered shall be seventy-five dollars ($75) or less, or in any action for the recovery of personal property when the personal property sought to be recovered is of the value of seventy-five dollars ($75) or less." Section 3 provides that all "judgments" rendered in the cases specified in section 2 "shall be final, and no appeal shall be allowed from said judgment or judgments to the supreme court." Section 4 repeals all acts and parts of acts in conflict with the provisions of that act. And section 5 contains an emergency clause, and provides that the act shall take effect from and after its passage and approval. The act was approved February 4, 1897. The only sections of the constitution bearing upon this subject are sections 2 and 18 of article 5, which read as follows:

"Sec. 2. The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law."
"Sec. 18. Writs of error and appeals may be allowed from the decisions of the circuit courts to the supreme court under such regulations as may be prescribed by law."

Whether the qualifying clause "under such regulations and limitations as may be prescribed by law" applies to the first clause relating to appellate jurisdiction, as well as to the clause relating to the general superintending control of inferior courts, as contended by counsel for respondent we do not deem it necessary to decide, for the reason that that section does not attempt to define or prescribe in what cases an appeal may be taken to the supreme court. The object and purpose of the section seems to be to define and limit the jurisdiction of the supreme court, and not in any manner define the class of cases in which an appeal might be taken. The language of the section, defining and limiting the jurisdiction of the supreme court, cannot, by any fair construction, be held to confer upon parties the right of appeal in all cases of which the supreme court has been given jurisdiction. This construction of section 2 is much strengthened by the provisions of section 18, above quoted. That section is important because the framers of the constitution were in that section treating specially of circuit courts. By it they provided that "writs of error and appeals may be allowed *** under such regulation as may be prescribed by law." The word "may" is evidently used in that section in its proper sense, as permissive, and not in the sense of must or shall. Again, by section 20 of the same article it is provided that "writs of error and appeals may be allowed from county to circuit courts, or to the supreme court, in such cases and in such manner as may be prescribed by law." If the contention of respondent is correct, that by section 2 appellate jurisdiction is given in all cases to the supreme court, neither ...

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