State ex rel. Coolsaet v. City of Veblen

• Decision Date: 31 January 1930
• Docket Number: 6971.
• Parties: STATE ex rel. COOLSAET et al. v. CITY OF VEBLEN et al.
• Court: South Dakota Supreme Court

228 N.W. 802

56 S.D. 394

STATE ex rel. COOLSAET et al. v. CITY OF VEBLEN et al.

No. 6971.

Supreme Court of South Dakota

January 31, 1930

Appeal from Circuit Court, Marshall County; Howard Babcock, Judge.

Mandamus proceedings by the State, on the relation of Hector Coolsaet and others, co-partners doing business under the firm name and style of Coolsaet Bros. & Drees, against the City of Veblen and others. From a judgment granting peremptory writ defendants appeal. Motion to dismiss appeal denied.

Otto L Kaas, of Britton, for appellants.

Buell F. Jones, of Britton, for respondents.

CAMPBELL J.

This matter is before us upon a motion by respondent relators to dismiss the appeal now pending in this court. Material facts may be summarized as follows:

Relators instituted an action in the circuit court in Marshall county S. D., against the city of Veblen, one of the appellants here. The case, coming on for trial in June, 1928, resulted in a money judgment for $10,563.44 in favor of relators and against the city. From that judgment the city of Veblen appealed to this court without furnishing a supersedeas bond. Relators moved for the dismissal of that appeal in this court. While that appeal and the motion for dismissal were here pending, relators instituted the present proceeding in the circuit court of Marshall county by securing the issuance of an alternative writ of mandamus directed to the city of Veblen, defendant in the original action, and the other present appellants, constituting the governing board of the municipality, requiring them to appear and show cause why they should not levy a tax to raise the money to pay relators' judgment then pending on appeal as aforesaid. This proceeding was necessarily based, in part at least, on the theory that, inasmuch as the city of Veblen had not filed a supersedeas bond when taking its appeal, enforcement of the judgment was not stayed. Section 3161, R. C. 1919, provides as follows:

"Undertaking When Not Necessary. When the state, any state board or officer, any county or municipal corporation, or its officers, in a purely official capacity, shall take an appeal, service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from and no undertaking need be given, but the supreme court may, on motion, require security to be given in such form and manner as it shall in its discretion prescribe as a condition of the further prosecution of the appeal."

In view of this statutory provision, and the fact that the city of Veblen is a municipal corporation, it may well be questioned whether the mere taking of the appeal did not stay the execution of the judgment, without the necessity of any supersedeas, and it may seriously be doubted whether proceedings for the enforcement of the judgment could legally be had pending the appeal. It is unnecessary, however, to determine that point at this time, and we refrain from so doing. The alternative writ of mandamus was originally returnable on September 20, 1929; the return day being subsequently changed to October 4, 1929. Meantime, and on September 20, 1929, this court filed its opinion dismissing the appeal taken by the city of Veblen from the judgment obtained against it by the present relators (being the identical judgment sought to be enforced by the mandamus proceeding) whereby said judgment became final. See Coolsaet et al. v. City of Veblen (S. D.) 226 N.W. 726.

The mandamus proceeding coming on for hearing upon October 4, 1929, on the alternative writ, the learned circuit judge gave judgment for the relators and issued his peremptory writ, the mandate of which was as follows:

"Now therefore, we do command and enjoin you and each of you that immediately after the receipt of this writ, you cause to be levied a tax against all of the taxable property within the City of Veblen, such levy to be in an amount sufficient to pay the judgment now held by the plaintiffs, together with interest, and that immediately upon the making of said levy, the same be certified to the county auditor of Marshall county, and that as soon as sums are available for the paying of said judgment from the proceeds of said tax, that the same be paid to the...