State v. Davis

• Decision Date: 22 June 1898
• Citation: 75 N.W. 897,11 S.D. 111
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and appellant, v. DAVID DAVIS and Charles F. Schnepf, Defendants and respondents.
• Court: South Dakota Supreme Court

11 S.D. 111

75 N.W. 897

STATE OF SOUTH DAKOTA, Plaintiff and appellant,

v.

DAVID DAVIS and Charles F. Schnepf, Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, Marshall County, SD Hon. A. W. Campbell, Judge Affirmed A. Sherin, Marshall County States Attorney Attorneys for appellant. Byron Abbott Attorneys for respondent. Opinion filed June 22, 1898

FULLER, J.

This appeal is from an order of the circuit court overruling a motion made by the state’s attorney of Marshall country to set aside the satisfaction of a judgment of $300, obtained upon a forfeited undertaking in a criminal proceeding, and which the board of county commissioners compromised upon the payment of $100. On a question of, practice, an appeal by the judgment debtor had been dismissed from this court, and steps were being taken to perfect a second appeal when the settlement was effected, which, it is claimed, was for the best interests of the county, and after reputable counsel had advised the commissioners that the appeal would probably result in reversal of the judgment compromised. The question therefore is: Has a board of county commissioners, in a case like this, power to compromise a disputed claim that has been reduced to judgment, by the acceptance of less than the amount for which the same was rendered? As a general proposition, a judgment is not a conceded finality until the time for taking an appeal has expired; and an agreement between the real parties in interest to give and take, in the way of settlement and to avoid further litigation, something less than the amount of such judgment, is valid and enforceable. Neal v. Handley (Ill. Sup.) 6 N.E. 45; Hendrick v. Thomas, 106 Pa. St. 327; Case v. Hawkins, 53 Miss. 702; Clay v. Hoysradt, 8 Kan. 74; 2 Freem. Judgm. 463. As in this state (Comp. Laws, § 5343) “an action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed,” the power of the board, without fraud or collusion, to compromise a suit of this character, is the sole subject of inquiry. Although such actions are properly prosecuted by the state’s attorney in the name of the state, the entire expense is paid by the county, as the real party in interest, and the forfeiture imposed as a penalty for the failure of the accused to appear according to the terms of his recognizance must be paid, as soon as collected, into the treasury of the county, to be added to the county general fund, the state recovering no part thereof. Comp. Laws, §§ 2224, 6984, 7611; State v. Newson,(1898). Moreover, were the statute silent, “money in the county treasury is presumptively the money of the county, … and will be held to belong to the county until the contrary is shown.” Sacramento Co. v. Bird, 31 Cal. 67. Each organized county “may sue and be sued, plead and be impleaded, in any court of this state”; and it is expressly made the duty of the county commissioners to institute civil actions “for and on...