State v. Sexton

• Decision Date: 14 June 1898
• Citation: 11 S.D. 105,75 N.W. 895
• Parties: STATE v. SEXTON.
• Court: South Dakota Supreme Court

11 S.D. 105

75 N.W. 895

STATE

v.SEXTON.

Supreme Court of South Dakota.

June 14, 1898.

On rehearing. Reversed.

For former opinion, see 72 N. W. 84.

HANEY, J.

The judgment herein having been affirmed (72 N. W. 84), defendant petitioned for a rehearing, on the ground that the court below was without jurisdiction. Ordinarily a rehearing will not be granted upon questions not discussed by counsel in their briefs or which are not presented by the assignments of error. Tolman Co. v. Bowerman, 6 S. D. 206, 60 N. W. 751. But where the circumstances are exceptional, and the question one that can be raised for the first time in this court, it may be the duty of the court to permit the presentation of such question by granting a rehearing. When the petition was pending in this proceeding, the attention of the court was called to the complicated condition of legislation relative to the procedure in bastardy cases, and the conclusion was reached that the bastardy act of 1893, so far, at least, as it is applicable to counties having less than 20,000 population, ceased to have any force after the first Monday of January, 1895. State v. Knowles (S. D.) 74 N. W. 201. And as it would necessarily follow, if such act no longer remained in force in any of the counties, that proceedings under its provisions would have to be held void whenever any person refused to comply with judgments rendered thereunder, it was deemed proper to grant a rehearing in this proceeding for the purpose of determining whether any of the county courts have jurisdiction in this class of cases, and thus avoid further complications and uncertainty.

As stated, the court has heretofore decided that the remedy provided by the act of 1893 ceased to exist, in all counties having less than 20,000 population, in January, 1895. State v. Knowles, supra. Did it continue in force in counties having more than that number of people? An act which took effect on the first Monday of January, 1893, and which repealed all acts and parts of acts inconsistent with itself, contains the following:

“Section 1. The county court of each county having a population of twenty thousand or over, shall have jurisdiction in all civil actions cognizable by a justice of the peace, except actions for the forcible entry or detainer of real property in all cases where the debt, damage, claim or value of the property involved shall not exceed one thousand dollars, and criminal jurisdiction in all cases of misdemeanor; and exclusive original jurisdiction in all matters of probate, guardianship and settlement of estates of...