State v. Pound

• Court: South Dakota Supreme Court
• Writing for the Court: WHITING, P. J.
• Citation: State v. Pound, 143 N.W. 778, 32 S.D. 492 (S.D. 1913)
• Decision Date: 07 November 1913
• Parties: STATE ex rel. CURTIS et al. v. POUND et al.

143 N.W. 778

32 S.D. 492

STATE ex rel. CURTIS et al. v. POUND et al.

Supreme Court of South Dakota

November 7, 1913

Appeal from Circuit Court, Davison County; Frank B. Smith, Judge.

Mandamus proceedings by the State, on the relation of A. J. Curtis and others, as County Commissioners of Davison County, South Dakota, and another, against S. S. Pound and others, as Supervisors of Union Township, and another. From a judgment for plaintiffs and an order denying a motion for a new trial defendants appeal. Reversed.

A. E Hitchcock, of Mitchell, for appellants.

W. M Herbert and Spangler & Haney, all of Mitchell, for respondents.

WHITING P. J.

Claiming to proceed under the provisions of chapter 134, Laws 1907, as amended by chapter 102, Laws 1909, the Board of County Commissioners in and for Davison County, made an order establishing a certain drainage ditch, and later, the ditch having been constructed, having found that Union township in said county was benefited thereby, such board made an order wherein part of the expense of establishing and constructing such ditch was assessed against such township. Notice of such assessment having been given such township, and the said assessment having been certified to the county treasurer of Davidson county for collection, and remaining unpaid, this proceeding was brought in the circuit court, and judgment was rendered for plaintiffs and a peremptory writ issued, commanding the defendants to make a levy of tax to provide the funds wherewith to pay such assessment. Defendants appealed from such judgment and from an order denying a new trial.

Appellants' brief fails to affirmatively show that any specifications of error were ever served on respondents and filed with the clerk of the circuit court, as required by chapter 178, Laws 1913, and respondents contend that, for that reason, such brief is fatally defective and the assignments of error cannot be considered. While it would be proper for appellants to recite the fact that specifications were so served and filed, we do not deed it necessary. The statement in the brief should present a recital or assignment of those alleged errors upon which an appellant bases his appeal, together with a copy of, or a statement of the substance of, such parts of the settled record or other papers as may be necessary to clearly and fully present to this court the merits of appellants' contentions; that a record was properly settled, that a motion for new trial made by an appellant was properly and timely made, and that the appeal was properly perfected, will all be assumed without any showing in appellant's brief that the several steps were properly and timely taken; if respondent wishes to raise any question upon any of these matters, he should do so by an additional statement in his brief setting forth the material facts as they appear of record, which statement will be taken as true unless questioned in an additional brief filed by appellant. Nothing said herein should be taken as excusing appellant from setting forth in his brief every fact and thing necessary to fully present the merits of every assignment of error relied upon, and to show that such errors were prejudicial. This court will therefore presume that the settled record herein contained specifications sufficient to sustain the assignments of error urged on this appeal.

Appellants have raised numerous questions by their assignments of error we deem it necessary to consider but...