State v. Hammerquist

• Citation: 293 N.W. 539,67 S.D. 417
• Decision Date: 16 August 1940
• Docket Number: 8353
• Court: Supreme Court of South Dakota
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. MARTHA E. HAMMERQUIST, et al., Appellants.

67 SD 417, 293 NW 539 (1940)

STATE OF SOUTH DAKOTA,

Respondent,

v. MARTHA E. HAMMERQUIST, et al.,

Appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. John G. Bartine, Judge

#8353—Reversed

Dan McCutcheon, Belle Fourche, SD

Attorney for Appellants.

Leo A. Temmey, Attorney General

William Williamson, Assistant Attorney General, Pierre, SD

Attorneys for Respondent.

Opinion Filed Aug 16, 1940

SMITH, Presiding Judge.

The appellants challenge the authority of the trial court to increase the compensation fixed by the verdict of the jury in a proceeding to condemn property for public use under the power of eminent domain.

The state determined to exercise its power of eminent domain and take the Pennington County farm home of the defendants Martha E. Hammerquist and Anton W. Hammerquist for a public use. In the proceeding brought under §§ 2938 to 2953, Rev. Code 1919, SDC 37.40, to fix the compensation of the defendants, the Hammerquists defaulted. The jury impaneled returned a verdict of $3,000, and judgment was entered thereon. This judgment fixed the amount due the defendant mortgagee at slightly over $2,000. The state thereafter deposited $3,000 with the clerk, and the clerk discharged the mortgage and mailed to the Hammerquists a check for the balance which, according to the record, was never cashed or found. Thereafter, Pauline Hammerquist was appointed guardian of Martha Hammerquist by the Pennington County Court, and as such petitioned the trial court for an order relieving Martha Hammerquist from her default and praying that the judgment and verdict against her be vacated as for excusable neglect. After hearing, the court determined that the neglect of Martha Hammerquist was excusable, because of the fact that she was incompetent, and entered a conditional order dated February 27, 1939, and entered March 1, 1939, vacating the judgment.

This order provided,

“... That unless the plaintiff, or other parties interested, pay to the guardian of ... Martha E. Hammerquist the sum of $6,500.00, ... within sixty days ..., full credit to be allowed for any payments made upon the mortgage ..., then and in that event the judgment is hereby confirmed and shall stand unaffected regardless of this motion, but in the event of that amount not being paid, then the judgment is hereby set aside.”

Neither party appealed from this order, and the time within which an appeal might have been perfected was permitted to expire. Within the sixty day period described in the order, the Attorney General and the attorney for the guardian stipulated that the state might have until May 13, 1939, “to negotiate a settlement between the parties pursuant to said Order of Court.” On May 13 the state procured an order requiring the guardian to show cause “why an order should not be entered extending the time in which the plaintiff, the State of South Dakota, may make the payments as required by the order of this Court ... .” This motion was heard on June 5, 1939, and after deliberation the court entered its order on the 29th day of August, 1939, which purported to authorize the state to make the described additional payment within thirty days and further provided that failure to pay should “have the effect of setting the former Judgment aside.” Thereafter the state deposited the additional sum with the clerk. The appeal is from the order entered on August 29, 1939.

The state questions our power to review the challenged order. It contends that the order is not appealable because it does not affect a “substantial right” as required by SDC 33.0701. We understand this contention of the state to be predicated upon an assumption that the propriety of the order increasing the amount of defendants’ compensation, and the right of the state to pay that amount and sustain its judgment, was established by the original conditional order of March 1, and that by failing to appeal therefrom and by acquiescing therein, the defendants are precluded from questioning the authority and right under the doctrine of “res judicata.” Reasoning from such a premise the state’ concludes that the application of May 13th which resulted in the challenged order merely appealed to the discretion of the court in determining whether the time within which the state might make the increased payment should be extended, and that the order does not affect a “substantial right.” We question the validity of the premise upon which the conclusion rests.

After a review of our pronouncements on that subject, we have recently pointed out that adjudication after careful consideration at a full hearing actually involving the particular issue is an...