Mee v. Hirning (In re Mee)

• Decision Date: 31 March 1922
• Docket Number: No. 5085.,5085.
• Citation: 45 S.D. 303,187 N.W. 540
• Parties: In re MEE et al. MEE et al. v. HIRNING, Superintendent of Banks, et al.
• Court: South Dakota Supreme Court

45 S.D. 303

187 N.W. 540

In re MEE et al.MEE et al.

v.HIRNING, Superintendent of Banks, et al.

No. 5085.

Supreme Court of South Dakota.

March 31, 1922.

Application by James Mee and another for a writ of prohibition against John Hirning, as Superintendent of Banks, and others, as members of the Depositors' Guaranty Fund Commission. Writ denied, and proceedings dismissed, and petitioners appealed. Pending the appeal appellants moved for a stay of proceedings and a writ of prohibition. Motions denied.H. E. Judge and S. K. Grigsby, both of Sioux Falls, for appellants.

Byron S. Payne, Atty. Gen., and E. D. Roberts, Asst. Atty. Gen., for respondents.

WHITING, J.

The Farmers' Security State Bank, having received its articles of incorporation, applied to the respondent Hirning, as Superintendent of Banks, for certificate of authority to do business as a bank, and to said Hirning and the other respondents, as the Depositors' Guaranty Fund Commission, for admission under the depositors' guaranty fund. The appellants sought and procured from the circuit court an alternative writ of prohibition requiring respondents to desist and refrain temporarily from granting to such corporation the rights and privileges sought, and requiring respondents to show cause why such temporary writ should not be made permanent. Upon the return of such alternative writ of the circuit court quashed the writ and dismissed the proceeding. Appellants perfected an appeal to this court, and sought from the circuit court an order fixing the amount and conditions of an undertaking to be executed on their part upon appeal by them from the “order” of the circuit court, to stay the execution and performance of such order; but such court, being of the opinion that the matter of allowing a stay on appeal and of fixing an undertaking therefor was a matter discretionary with such court, and being of the opinion that it would be impossible for the court to fairly protect the interests of the corporation which was not a party to the proceedings in the circuit court nor a party to the appeal to this court, refused to stay the operation of its order and to fix amount of undertaking. Appellants now seek from this court an order fixing the amount of undertaking upon their appeal and granting a stay of proceedings pending such appeal and they further ask that, if we should determine that we have no authority to or should not grant the other relief asked, we grant an order directed to the respondents and prohibiting them, during the pendency of the said appeal, from granting to such corporation the rights and privileges sought by it.

[1] Appellants base their right to a stay upon section 3159, R. C. 1919; while respondentscontend that this section has no application-that the so-called “order” appealed from was in fact a “judgment,” and that appellants could only be entitled, if at all, to a stay under the provisions of section 3158, R. C. 1919. That this appeal is from a judgment is beyond question. Application for writ of prohibition is a special proceeding; and section 2992, R. C. 1919, defines what constitutes a judgment in such a proceeding:

“A judgment in a special proceeding is the final determination of the rights of the parties therein. ***”

[2] The so-called “order” was a final determination and therefore a judgment. This judgment appealed from is self-executing. Our statutes do not contemplate that a self-executing judgment can be suspended pending appeal. Fylpaa v. Brown County, 6 S. D. 634, 62 N. W. 962;State v. Carlson, 37 S. D. 231, 157 N. W. 657; 3 C. J. 1277, 1278; Haddick v. District Court, 164 Iowa, 417, 145 N. W. 943;Reese v. Steel, 73 Ark. 66, 83 S. W. 335, 1136; and Cooper v. Hindley, 70 Wash. 331, 126 Pac. 916.

[3] In apparent anticipation that this court must hold as above, appellant, after making the motion seeking for a stay under section 3159, and after the presentation of such motion to this court, filed in this court the alternative motion above referred to. Conceding, for the purposes of this motion, but not deciding, that this court has inherent...