State ex rel. Sholseth v. Knight
| Decision Date | 04 May 1928 |
| Docket Number | No. 6706.,6706. |
| Citation | 52 S.D. 572,219 N.W. 258 |
| Parties | STATE ex rel. SHOLSETH v. KNIGHT, Circuit Judge. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Original proceeding for mandamus by the State of South Dakota, on the relation of John O. Sholseth, as trustee in bankruptcy of the estate of Julius B. Arp, bankrupt, against W. W. Knight, as Circuit Judge of the Third Judicial Circuit. Peremptory writ granted.Jones, Matthews & Fitzpatrick, of Sioux Falls, for relator.
Ernest Raley and Bailey & Voorhees, all of Sioux Falls, for defendant.
Relator, Sholseth, as trustee in bankruptcy of one Arp, claims to be entitled to recover from the independent school district of Brookings, S. D., the sum of $1,742.50. Berger Manufacturing Company, a corporation, claims to have an interest in, or lien upon, such fund or sum of money in the hands of the school district, superior to the right of relator, and in June, 1927, relator instituted his action in the circuit court in Brookings county in the Third judicial circuit in this state for the recovery of said sum of money, in which action the school district and the Berger Manufacturing Company and others were named as defendants and duly served with process. It appears to have been the attitude of the school district that they owed the money in question to one or the other of he claimants and were entirely willing to pay it to whichever party might be adjudged rightly entitled thereto. The school district, however, did not make a deposit of the money under the provisions of section 2324, Rev. Code 1919, nor were they ordered to bring the same into court pursuant to the provisions of section 2481, Rev. Code 1919. Issues were joined and the matter duly litigated, with the result that there was therein entered on December 17, 1927 (being a day of the September, 1927, term of said court), the following judgment:
“The parties appearing and contesting this matter having filed stipulations and submitted said case to the court upon the agreed statement of facts as set out in said stipulation and exhibits referred to, and the court having considered said stipulation and evidence of the facts, and there being no dispute as to the facts, said stipulation and exhibits are hereby adopted as the findings of fact in this case, and from said facts so stipulated it appears to the court that the plaintiff is entitled to judgment against the defendant the independent school district of Brookings, S. D., also known as independent school district of the city of Brookings, S. D., for the sum of $1,742.50, without costs, and that the plaintiff is entitled to judgment against the defendant Berger Manufacturing Company that the said defendant has no right, title, or interest in the funds here involved and has no claim against the defendant independent school district of Brookings, S. D., also known as the independent school district of the city of Brookings, S. D., for any sum, or at all, and that the plaintiff is entitled to judgment against the defendants L. Krumieda and George E. Perkins that each of said defendants have no right or interest in the funds here involved, or any claim against the defendant independent school district of Brookings, S. D., also known as the independent school district of the city of Brookings, S. D., and that the defendant independent school district of Brookings, S. D., also known as the independent school district of the city of Brookings, S. D., upon the payment of the sum of $1,742.50, as aforesaid, to the plaintiff shall be relieved of all liability under and by reason of the facts involved in this case and set out in the pleadings and stipulation, and that the plaintiff is entitled to judgment against the defendant the independent school district of Brookings, S. D., also known as the independent school district of the city of Brookings, S. D., for the sum of $1,742.50, and is entitled to judgment against the defendant Berger Manufacturing Company for the costs of this action.
Now, therefore, by virtue of the law and by reason of the premises aforesaid, upon motion of Messrs. Jones, Matthews & Fitzpatrick, attorneys for the plaintiff, it is ordered and adjudged that the plaintiff have and recover judgment from the defendant the independent school district of Brookings, S. D., also known as the independent school district of the city of Brookings, S. D., in the sum of $1,742.50, without costs.
It is further ordered and adjudged that the defendants Berger Manufacturing Company, L. Krumieda, and George E. Perkins have no interest in, or lien upon, the balance due from the defendant independent school district of Brookings, S. D., also known as the independent school district of the city of Brookings, S. D., and upon the payment by the said independent school district of Brookings, S. D., also known as the independent school district of the city of Brookings, S. D., as hereinbefore ordered, the said school district shall be released from all liability herein.
It is further hereby ordered and adjudged that the plaintiff have and recover judgment against the defendant the Berger Manufacturing Company for the costs and disbursements incurred in this action, amounting to $24.25, to be taxed and hereafter inserted by the clerk of this court.”
The September, 1927, term of said circuit court closed upon the opening on January 17, 1928, of the regular January, 1928, term thereof.
None of the defendants sought to appeal from the foregoing judgment, excepting only the defendant Berger Manufacturing Company, who promptly gave notice of appeal and proceeded to perfect the same filing a cost bond but no supersedeas bond, excepting only a bond sufficient to operate as a supersedeaswith respect to the $24.25 costs adjudged against said Berger Manufacturing Company.
On February 14, 1928, pursuant to order to show cause, upon application of Berger Manufacturing Company and over the objection and resistance of the relator, Sholseth, the defendant here, Hon. W. W. Knight, judge of the said circuit court, made and entered in said cause the following order:
“The order to show cause issued in the above-entitled matter upon the 6th day of February, 1928, coming on regularly to be heard on this 13th day of February, 1928, the plaintiff having submitted his objection in writing, and the defendant Berger Manufacturing Company having submitted the matter without personal appearance, and none of the other defendants appearing, and it now appearing to the court that the said defendant Berger Manufacturing Company intends, in good faith, to appeal to the Supreme Court from the judgment rendered herein on December 17, 1927, and that the fund now in the hands of the defendant independent school district should be held until the final determination of this action upon appeal, and it satisfactorily appearing that it will be for the best interests of all parties that said fund be deposited in a bank of good repute within the state of South Dakota pending such determination, and it further appearing that the Security National Bank of Brookings, S. D., is a bank of good repute and is willing to accept the deposit of said sum and to pay interest thereon at the rate of 4 per cent. per annum, and it further appearing that said defendant independent school district is willing to make such deposit.
And it further appearing that the only judgment which has been entered herein against the said defendant Berger Manufacturing Company is for costs, amounting to the sum of $24.25, and adjudging that said defendant is not entitled to the fund so held by said independent school district, and that the only undertaking upon appeal which will be required of the said Berger Manufacturing Company is the statutory cost bond and the additional undertaking required by section 3152, R. C. 1919.
Now therefore, it is hereby ordered that, upon an appeal to the Supreme Court being perfected by said Berger Manufacturing Company, and the filing of a bond upon such appeal as required by section 3150, R. C . 1919, which shall also be conditioned and be to the effect that said Berger Manufacturing Company will pay the amount of the judgment rendered against it herein, if the same be affirmed, and all damages which may be awarded against the said defendant Berger Manufacturing Company upon appeal, and upon serving a copy of this order together with a certificate of the clerk of this court to the effect that such appeal has been perfected upon the attorney for said independent, school district, the said independent school district forthwith deposit with said Security National Bank of Brookings, S. D., the amount of the judgment...
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