Williamson v. Lake County

• Decision Date: 09 October 1903
• Citation: 96 N.W. 702,17 S.D. 353
• Parties: WILLIAMSON v. LAKE COUNTY et al.
• Court: South Dakota Supreme Court

96 N.W. 702

17 S.D. 353

WILLIAMSON v. LAKE COUNTY et al.

Supreme Court of South Dakota

October 9, 1903

Appeal from Circuit Court, Lake County.

Action by J. H. Williamson against Lake county and others. Appeal by defendant Lake county from an order directing the clerk to retax costs in the action. Affirmed.

Haney P. J., dissenting.

Herbert H. Holdridge, for appellant. Bailey & Voorhees and J. H Williamson, for respondent.

CORSON J.

This is an appeal from an order made by the circuit court of Lake county directing the clerk of that court to retax the costs in this action by adding to the costs theretofore taxed the sum of $13.30 sheriff's fees, the same being the item of sheriff's fees theretofore disallowed by him; and that the same be entered in the judgment as a part of the costs in the action. This is one of forty actions brought by the stockholders of the Northwestern Loan & Banking Company to enjoin the county from collecting taxes levied by it upon the shares of the capital stock held by the respective plaintiffs in said action. One of the actions--Macomb v. Lake County--was appealed to this court, and the opinion in the same is reported in 9 S.D. 466, 70 N.W. 652. A second appeal was taken, and the opinion is reported in 13 S.D. 103, 82 N.W. 417, in which opinions the facts are fully stated. Judgments were thereupon entered in favor of the plaintiffs in the several actions in the circuit court. The bill of costs presented in each case to the clerk for taxation included $13.30 fees paid the sheriff for the service of papers in the actions. The item of $13.30 in this case was disallowed by the clerk, and an appeal taken by the defendant to the circuit court, the action of the clerk reversed, and he was directed, as we have seen, to allow the item in the bill of costs, and enter the same in the judgment. By stipulation the other 38 cases are to abide the result of the decision of this case; the case of Macomb against the defendant herein, supra, having been disposed of.

This item of costs was objected to in the court below upon substantially the following grounds: (1) Because H. B Williamson, who served the summons, complaint, and order, was not a deputy sheriff duly appointed and qualified as required by law, and was a party to one of said actions, and in the employ of the corporation of which all of said plaintiffs were stockholders. (2) No return was ever made on said papers by any sheriff or legal deputy. (3) That no fees should be allowed for copies of said summons, complaint, and order, for the reason that they were all printed by the plaintiff, and said officers made no such copies, and there is no law authorizing the taxation as costs fees for copies so made by plaintiff.

It appears from the record presented that the summons and complaint and other papers in the action were served by one H. B. Williamson, who was appointed deputy sheriff by the sheriff of the said county, but who failed to file his appointment and oath of office with the county auditor, as required by section 1818, Pol. Code, formerly section 1399 of the Compiled Laws. It also appears that the summons and complaint were printed by the plaintiff, and that no copies were in fact made by the sheriff or his deputy, and that only the printed copies furnished by the plaintiff were served.

The second contention was made evidently upon the theory that the return being made by H. B. Williamson, who the appellant...