State v. Circuit Court of Seventh Judicial Circuit Within and For Pennington County
| Decision Date | 06 February 1933 |
| Docket Number | 7518. |
| Parties | STATE ex rel. MATTOON SCHOOL DIST. NO. 19 et al. v. CIRCUIT COURT OF SEVENTH JUDICIAL CIRCUIT WITHIN AND FOR PENNINGTON COUNTY et al. |
| Court | South Dakota Supreme Court |
Original proceeding by the State, on the relation of the Mattoon School District No. 19, a public school corporation of Pennington County, and others, opposed by the Circuit Court of the Seventh Judicial Circuit, within and for Pennington County, Hon. H. R. Hanley, Judge thereof, and Hon. James McNenny, Judge of the Circuit Court of the Eighth Judicial Circuit, acting for and at the request of H. R. Hanley within and for Pennington County, and others, for writ of certiorari to review two orders of the Circuit Court.
Orders reversed.
Hubbard Fellows, of Rapid City, for defendant Judge Hanley.
Chas H. Whiting and James W. Bellamy, both of Rapid City, for defendant Catherine McCarthy.
On the 7th day of September, 1932, three of the defendants herein Frederick C. Stone, Benjamin E. Martin, and Clarence I Butler, as plaintiffs, commenced an action in the circuit court of Pennington county against Mattoon school district No. 19, and Ernest Schleuning and John Humphrey, treasurer and chairman, respectively, of said school district, in which action it was sought to enjoin and restrain the said defendants from hiring a teacher or conducting school in the said district for the year 1932 and 1933. An order was issued in said action by the Honorable H. R. Hanley, judge of the circuit court in and for Pennington county, requiring the defendants to show cause why they should not be restrained from hiring a teacher or conducting a school in said school district during the school year of 1932 and 1933. Upon the return of said order to show cause, an order of injunction was issued granting the relief prayed for in the said complaint. On the 12th day of September, 1932, the defendants in said action interposed a demurrer to plaintiffs' complaint upon the ground of a defect of parties defendant in said action and upon the ground that said complaint did not state facts sufficient to constitute a cause of action. Said demurrer was brought on for hearing, and, upon the hearing thereof, an order was made and entered sustaining said demurrer on both grounds set out therein. Thereafter, by leave of court, the plaintiffs filed an amended complaint. To this amended complaint the defendants interposed an answer, which answer was served on the 14th day of October, 1932, and filed in the office of the clerk of courts of Pennington county on the 21st day of October, 1932. By the service of this answer issues of law and fact were joined, and on the 20th day of October, 1932, the court made and entered an order wherein the 4th day of November, 1932, was fixed as the time for the trial of said cause. On the 22d day of October, 1932, the defendants made and filed with the clerk of courts of Pennington county an affidavit of prejudice sufficient in all respects to comply with provisions of chapter 89, Laws 1927, and requested that another judge of the circuit court of the state be designated to preside over the trial of the said cause. Before the clerk of said court had forwarded to the clerk of this court a copy of the affidavit of prejudice, as provided by section 4 of chapter 89 of the Laws of 1927, the plaintiffs in the former action, Frederick C. Stone, Benjamin E. Martin, and Clarence I. Butler, commenced an action in the circuit court of Pennington county against Catherine McCarthy, as clerk of courts of Pennington county, whereby they sought an injunction restraining and enjoining her from forwarding said affidavit of prejudice to the clerk of this court, as provided for in said section 4 of said statute. Upon the filing of the complaint in said action, the Honorable H. R. Hanley, as judge of the circuit court of Pennington county, made and entered an order directing the said defendant Catherine McCarthy to show cause before the court on the 31st day of October, 1932, why she should not be restrained and enjoined from transmitting the said affidavit of prejudice to the clerk of this court, and which order contains the following paragraph: "It is further ordered, that in the meantime, and until further order of this court, the defendant, Catherine McCarthy, Clerk of Courts of Pennington County, South Dakota, be, and she is hereby restrained and enjoined from transmitting the affidavit of George Williams to the Clerk of the Supreme Court of the State of South Dakota." Thereafter, and on the 13th day of December, 1932, an order was made and entered in said action by the Honorable James McNenny, judge of the circuit court of the Eighth judicial circuit, who had been called into the case by Judge Hanley, which, among...
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