State ex rel. Birdsall v. Kneeland, 9066
| Decision Date | 18 October 1949 |
| Docket Number | No. 9066,9066 |
| Citation | 39 N.W.2d 281,73 S.D. 73 |
| Parties | STATE ex rel. BIRDSALL v. KNEELAND. |
| Court | South Dakota Supreme Court |
H. F. Ricketts and Danforth & Bleeker, Mitchell, attorneys for defendant and appellant.
Fellows & Fellows, Mitchell, attorneys for plaintiff and respondent.
On July 26th, 1948, Agnes Birdsall was arrested on the streets of Mitchell and on July 24th, 1948, she was taken before the Municipal Court and a complaint was read to her charging her with the violation of a city ordinance of the City of Mitchell prohibiting persons from driving a motor vehicle upon the public streets of Mitchell while under the influence of intoxicating liquor. Upon her plea of guilty to such charge she was sentenced to pay a fine of $100 and to serve ten days in jail and was prohibited from operating a motor vehicle within the city for one year, and that before operating such vehicle at the expiration of the year she be required to post a bond or insurance policy in the sum of $2000. The written sentence was filed July 28, 1948.
On July 28, 1948, Judge R. C. Bakewell, one of the judges of the Circuit Court of Davison County, upon application of the said Agnes Birdsall, issued a writ of habeas corpus directed to Robert H. Kneeland, Chief of Police of the City of Mitchell, the person having her in custody.
Return of the writ was heard on August 6, 1948 and on August 9, 1948 the Circuit Court made a final order discharging the said Agnes Birdsall. On August 11, 1948 the order was filed and a certified copy thereof showing such filing was served on the attorney of record for the defendant Kneeland.
On January 28, 1949 the defendant's attorney served a notice of appeal to this court.
This matter is now before this court upon a motion to dismiss the appeal upon several grounds one of which is that the appeal was not in time.
The respondent contends that the action of the circuit court in the habeas corpus proceeding was an order and not a judgment. In this we think the respondent is correct.
This court, in the case of In re Hammill, 9 S.D. 390, 69 N.W. 577, 578, in speaking of proceedings in habeas corpus said, 'When instituted in the circuit court, its decision will be a final order, effecting a substantial right made in a special proceeding, from which an appeal will lie to this court.'
Also, in the case of Wangsness v. McAlpine, 46 S.D. 75, 190 N.W. 883, this court said: 'But following what we think is the better...
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Zemina v. Solem
...Federal Land Bank of Omaha v. Le Mars Mutual Insurance Co. of Sioux Falls, 65 S.D. 143, 272 N.W. 285 (1937); State ex rel. Birdsall v. Kneeland, 73 S.D. 73, 39 N.W.2d 281 (1949) (habeas corpus 7 See note 5, supra. The allegations regarding failure to move for a change of venue, failure to p......
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Porter v. Porter
...is identical to the first paragraph of SDCL 15-26A-6; both statutes derive from the same source, SDC 33.0702. See also State v. Kneeland, 73 S.D. 73, 39 N.W.2d 281 (1949) (certified copy which showed the filing date having been served was written notice of the filing of the order in complia......
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...N.W. 285; Lasell v. Yankton County, 1943, 69 S.D. 170, 7 N.W.2d 880; Weins v. Weins, 1945, 70 S.D. 620, 20 N.W.2d 228; State v. Kneeland, 1949, 73 S.D. 73, 39 N.W.2d 281; Piedmont Ind. Sch. Dist. v. Meade Co. Bd. of Ed., 1960, 78 S.D. 384, 103 N.W.2d 177; Long v. Knight Const. Co., Inc., 19......