Schaetzel v. City of Huron

• Decision Date: 30 October 1894
• Citation: 60 N.W. 741,6 S.D. 134
• Parties: SCHAETZEL v. CITY OF HURON (WHITE, Intervener).
• Court: South Dakota Supreme Court

60 N.W. 741

6 S.D. 134

SCHAETZEL v. CITY OF HURON (WHITE, Intervener).

Supreme Court of South Dakota

October 30, 1894

Syllabus by the Court.

1. An order refusing the right to withdraw a complaint of intervention "involves the merits of the action or some part thereof," and is appealable.

2. In the absence of a counterclaim or demand for affirmative relief, a complaint of intervention that states a cause of action adverse to both plaintiff and defendant, as shown by the pleadings, may be dismissed on application of the intervener.

Appeal from circuit court, Beadle county; A. W. Campbell, Judge.

Action by Katie Schaetzel against the city of Huron, S. D., to enjoin defendant from paying certain interest-bearing bonds and warrants, in which Charles H. White filed a complaint of intervention. From an order vacating and setting aside a former order dismissing intervener's complaint without prejudice, intervener appeals. Reversed.

John L Pyle, for appellant. A. W. Wilmarth and H. Ray Myers, for respondent city of Huron. Boyce & Boyce and J. W. Jones, for respondent Schaetzel.

FULLER J.

The object of this action, as instituted by Katie Schaetzel, a taxpayer, was to procure an injunction permanently restraining the city of Huron from the payment of certain interest-bearing warrants and bonds, described in her complaint, and alleged to have been issued by said city without authority, and for an unlawful purpose. After issue was joined upon certain paragraphs of the complaint by the answer of the defendant, appellant, who was the owner of certain of the bonds and overdue interest coupons mentioned in the complaint, applied to the court, and obtained an order allowing him to intervene in the action. Whereupon the respondent Schaetzel demurred to the complaint of the intervener, and the defendant, city of Huron, filed an amended answer thereto, which traversed the allegation of such complaint, and contained averments similar in effect to the recitals of the complaint of Katie Schaetzel, and concluded with a demand for the same relief, and, in addition thereto, prayed that intervener's bonds and coupons be declared and adjudged to be illegal and void. After overruling the demurrer above mentioned, and on January 11 1893, the court, upon application of respondent, made an order dismissing his complaint upon payment of costs, and without prejudice to the cause of action stated therein. Within a few days thereafter, and during the same month, and upon the application of both respondents, the court made an order vacating and setting aside the order dismissing appellant's complaint, and specified therein, as a sole ground therefor, that the court was without jurisdiction and had no power to make the order of January 11, 1893. From this order, Charles H. White, intervener, appeals.

Although there is no motion to dismiss the appeal before us, counsel for respondent maintains that the order is not appealable. Subdivision 4 of section 5236 of the Compiled Laws provides for an appeal from an order of the circuit court "when it involves the merits of the action, or some part thereof." Considered as to its force and effect, the order appealed from was a denial by the court, at the instance of the respondents, of appellant's application to dismiss his complaint of intervention upon payment of costs, and thus discontinue the prosecution of his alleged cause of action, which, as the pleadings then stood presented the only questions at issue before the court, as it is clearly obvious from an inspection of all the pleadings that the intervener had become the only plaintiff in the case, and his claim was adverse to, and its enforcement was being resisted by, both Katie Schaetzel and the city of Huron. An examination of the merits of the case, so far at least as disclosed by the pleadings, was essential to a determination of the questions presented to the court by the application to dismiss; and an order may be said to involve the merits of the action when it requires a plaintiff to remain in court, and bear the expense of litigating a cause upon its merits; and with equal candor it might be said that an order dismissing the complaint of the intervener would involve the merits of the action, because, as to him, the effect of such an order would be to terminate the existence of his action. We therefore conclude that the order under consideration "involves the merits of the action, or some part thereof," and is appealable. McLeod v Bertschy, 30 Wis. 324. The question as to whether an order refusing plaintiff leave to discontinue his suit could be made the subject for an appeal was subsequently before the Wisconsin court on a motion to dismiss an appeal in an action between the above-named parties, and from the opinion we quote the following: "The remaining question is, does the order...