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+"{\"id\": \"10595500\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Hugo BARRIENTOS, III, Defendant and Appellant\", \"name_abbreviation\": \"State v. Barrientos\", \"decision_date\": \"1989-08-02\", \"docket_number\": \"No. 16233\", \"first_page\": \"374\", \"last_page\": \"377\", \"citations\": \"444 N.W.2d 374\", \"volume\": \"444\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T17:54:17.159969+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Hugo BARRIENTOS, III, Defendant and Appellant.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Appellee, v. Hugo BARRIENTOS, III, Defendant and Appellant.\\nNo. 16233.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Jan. 13, 1989.\\nDecided Aug. 2, 1989.\\nDiane M. Patrick, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.\\nLawrence R. Bihlmeyer, Rapid City, for defendant and appellant.\", \"word_count\": \"1759\", \"char_count\": \"10679\", \"text\": \"PER CURIAM.\\nACTION\\nHugo Barrientos, III (Barrientos), appeals his conviction for aggravated assault. We affirm.\\nFACTS\\nBarrientos was formerly employed by a Hardees franchise in Rapid City, South Dakota. Prior to the events in question he was barred from Hardees' property because of his behavior. At 1:00 a.m. on October 25, 1987, Barrientos parked his car, a Chevelle modified for racing, in Har-dees' parking lot. Barrientos waited in the car while two of his friends went inside the restaurant to place an order.\\nWhile Barrientos waited for his friends two private security guards employed by Hardees, Donald Harden (Harden) and James Griffith (Griffith) approached his ear to place him under arrest for trespassing. Harden asked Barrientos to step out of his car. When Barrientos refused, Griffith opened the driver's door and Harden began to walk back into Hardees to call for police backup.\\nBarrientos shut the car door, locked it, started the engine and turned on the headlights. When Harden heard the engine start he turned around and approached the front of the car. As the car moved forward to leave its parking space it \\\"nudged\\\" Harden, knocking him slightly off balance.\\nHarden took a step or two backward, maintaining eye contact with Barrientos. Bar-rientos motioned to Harden to move out of the way, turned the steering wheel to the right and accelerated so rapidly that the tires squealed. Although Harden attempted to leap out of the way, his right leg was struck by the left fender of the fishtailing racing car. Although he was not bruised, Harden experienced some soreness in the leg.\\nBarrientos was subsequently charged with one count of aggravated assault in violation of SDCL 22-18-1.1(2) and was found guilty after a court trial.\\nISSUE 1\\nIs aggravated assault under SDCL 22-18-1.1(2) a \\\"specific intent\\\" crime?\\nBarrientos was charged with aggravated assault under SDCL 22-18-1.1(2) which provides in pertinent part:\\nAny person who:\\n(2) Attempts to cause, or knowingly causes, bodily injury to another with a dangerous weapon;\\nis guilty of aggravated assault. Aggravated assault is a Class 3 felony.\\nThe trial court found that Barrientos did not intend to cause bodily injury to Harden when he struck Harden with his automobile. Therefore, the trial court concluded that it could not convict Barrientos of aggravated assault based upon an \\\"attempt\\\" to cause bodily injury. The trial court did find, however, that there was sufficient evidence from which to conclude that Bar-rientos \\\"knowingly\\\" caused bodily injury to Harden. Accordingly, the trial court found him guilty of aggravated assault.\\nAs his first argument, Barrientos contends that aggravated assault by \\\"knowingly\\\" causing bodily injury to another (SDCL 22-18-1.1(2)) is a \\\"specific intent\\\" crime requiring proof of specific intent to cause bodily injury in order to sustain a conviction for the offense. Since the trial court found that he did not intend to cause bodily injury to Harden, Barrientos asserts that the trial court erred as a matter in law in finding him guilty of aggravated assault. We disagree.\\nGenerally, to convict one of \\\"intentionally\\\" committing a criminal offense requires proof that the crime was committed with a specific design to cause a certain result. SDCL 22-l-2(l)(b). See also State v. Blakey, 399 N.W.2d 317 (S.D.1987) (intent imports a specific design to cause a certain result or a specific design to engage in conduct of that nature). However, aggravated assault as charged in this case is defined as \\\"knowingly\\\" causing bodily injury to another. SDCL 22-18-1.1(2). The word intent does not appear in the statute. To convict one of \\\"knowingly\\\" committing a criminal offense State need not prove that the defendant was certain that the prohibited result would occur. SDCL 22-l-2(l)(c); see also Blakey, supra. All that is necessary is proof that the defendant was cognizant of certain facts which should have caused him to believe that the prohibited result would occur. SDCL 22-1-2(l)(c); see also Blakey, supra, (defendant guilty of \\\"knowingly\\\" trafficking in stolen vehicles or parts where he was cognizant of certain facts which should have caused him to believe that his vehicles or parts were stolen or obscured).\\nIt follows from the above that to convict Barrientos it was not necessary for State to prove that he acted with a specific design to cause bodily injury to Harden. All State had to prove was that Barrientos was cognizant of certain facts which should have caused him to believe that his act would cause bodily injury to Harden. Therefore, we do not find intent to cause bodily injury to be an element of aggravated assault by \\\"knowingly\\\" causing bodily injury to another. (SDCL 22-18-1.1(2)).\\nMoreover, we cannot agree that aggravated assault by \\\"knowingly\\\" causing bodily injury to another (SDCL 22-18-1.1(2) is a \\\"specific intent\\\" crime.\\n\\\"Specific intent has been defined as 'meaning some intent in addition to the intent to do the physical act which the crime requires,' while general intent 'means an intent to do the physical act\\u2014 or, perhaps, recklessly doing the physical act \\u2014 which the crime requires.' \\\"\\nState v. Rash, 294 N.W.2d 416, 417 (S.D.1980) (quoting People v. Lerma, 66 Mich. App. 566, 567, 239 N.W.2d 424, 425 (1976)).\\nWe most recently addressed the specific/general intent dichotomy in State v. Balint, 426 N.W.2d 316 (S.D.1988) wherein we held that intentional damage to property is a general intent crime. In reaching this conclusion we noted:\\nSpecific intent with regard to mental state means what is the \\\"particular\\\" intent, i.e., is the crime restricted to those who act purposely or does it include those who act only recklessly, etc.? The phrase \\\"specific intent\\\" has an entirely different connotation when used with reference to such doctrines as \\\"diminished capacity\\\" and \\\"voluntary intoxication.\\\" \\\"Some crimes require a specified intention in addition to the intentional doing of the actus reus itself, \\u2014 an intent specifically required for guilt of the particular offense....\\\" Perkins, [Criminal Law, at 762 (2d ed. 1969).] LaFave & Scott, Handbook on Criminal Law \\u00a7 28, at 202 (1972), states this is the most common usage of \\\"specific intent.\\\" The term \\\"designate[s] a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.\\\" LaFave & Scott, supra. Crimes such as larceny and burglary provide good examples .\\nUse of the term \\\"intentionally\\\" with regard to the crimes of eluding a police vehicle and resisting arrest merely designates that culpability requires something more than negligence or recklessness. However, mere use of that term does not designate an additional mental state beyond that accompanying the act. Therefore, these are not \\\"specific intent\\\" crimes. There was no error in failing to instruct with regard to specific intent.\\nBalint, 426 N.W.2d at 318 (emphasis original) (quoting State v. Huber, 356 N.W.2d 468, 472-73 (S.D.1984)). See also State v. Big Head, 363 N.W.2d 556 (S.D.1985); Rash, supra.\\nJust as in Balint, we find the language emphasized above decisive. We cannot read the words \\\"knowingly causes, bodily injury to another_,\\\" (SDCL 22-18-1.1(2)) as requiring more than a general intent. There is no additional mental state required beyond the \\\"knowledge\\\" which must accompany the act causing bodily injury. Therefore, we hold that aggravated assault by knowingly causing bodily injury to another with a dangerous weapon (SDCL 22-18-1.1(2)) is a general intent crime. Bal-int, supra.\\nISSUE 2\\nWas Barrientos' car a dangerous weapon?\\nBarrientos also raises error in his conviction based upon the element of use of a \\\"dangerous weapon\\\" in SDCL 22-18-1.1(2) (aggravated assault). He argues that since he did not \\\"aim\\\" his car at Harden he did not use the car as a \\\"dangerous weapon.\\\" Accordingly, Barrientos asserts that the element of causing bodily injury with a \\\"dangerous weapon\\\" is absent in this case and that it was error to convict him of aggravated assault under SDCL 22-18-1.1(2).\\nA \\\"dangerous weapon\\\" is defined as: [A]ny firearm, knife or device, instrument, material or substance, whether animate or inanimate, which is calculated or designed to inflict death or serious bodily harm, or by the manner in which it is used is likely to inflict death or serious bodily harm[.]\\nSDCL 22-1-2(10). \\\"Although an automobile is not calculated or designed to inflict death or serious bodily harm, it can be used in a manner that is likely to inflict death or serious bodily harm and, when so used, it constitutes a dangerous weapon within the meaning of SDCL 22-l-2[ (10) ].\\\" State v. Seidschlaw, 304 N.W.2d 102, 105 (S.D.1981).\\nIn this instance, we note that Barrientos was not driving an average automobile but a Chevelle which had been specially modified for racing purposes. Further, the only reason Harden was not more seriously injured when the fishtailing car sped out of its parking spot was because he was able to leap out of its way. Moreover, the trial court specifically found that the manner in which Barrientos used his car was not only \\\"likely\\\" to inflict bodily harm but that Bar-rientos \\\"knew\\\" it would injure Harden. It follows that Barrientos did use the car as a \\\"dangerous weapon.\\\" Therefore, there was no error by the trial court in convicting Barrientos of aggravated assault under SDCL 22-18-1.1(2).\\nAffirmed.\\n. We do not reach the propriety of this ruling in this opinion.\\n. The trial court's oral findings in this regard state:\\nThe issue is, did Mr. Barrientos knowingly cause bodily injury. He saw before him a man who intended to keep him there if he could, a man, along with his companion, was going to arrest him if he could and he made it clear that he was going to be arrested. Mr. Harden was still standing squarely in front of the vehicle, slightly to one side and it was clear that Mr. Harden was not going to move, even though Mr. Barrientos continued to edge forward and Mr. Barrientos hit the gas. I don't think he intended to do him any great bodily harm or injury. He intended to leave the parking lot, but he knowingly caused the injury because the officer was standing there in front of him, clearly able to see him and he proceeded, nonetheless, to accelerate the car.\"}"
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+"{\"id\": \"10597802\", \"name\": \"Rebecca STUDT, Appellant, v. Roger STUDT, Appellee\", \"name_abbreviation\": \"Studt v. Studt\", \"decision_date\": \"1989-07-05\", \"docket_number\": \"No. 16291\", \"first_page\": \"639\", \"last_page\": \"646\", \"citations\": \"443 N.W.2d 639\", \"volume\": \"443\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T22:01:00.149634+00:00\", \"provenance\": \"CAP\", \"judges\": \"MORGAN, SABERS and MILLER, JJ., concur.\", \"parties\": \"Rebecca STUDT, Appellant, v. Roger STUDT, Appellee.\", \"head_matter\": \"Rebecca STUDT, Appellant, v. Roger STUDT, Appellee.\\nNo. 16291.\\nSupreme Court of South Dakota.\\nConsidered on Briefs March 23, 1989.\\nDecided July 5, 1989.\\nRobert B. Anderson, May, Adam, Gerdes & Thompson, Pierre, for appellant.\\nJ.M. Grossenburg, Day & Grossenburg, Winner, for appellee.\", \"word_count\": \"3756\", \"char_count\": \"23487\", \"text\": \"WUEST, Chief Justice.\\nThe trial court entered judgment granting Rebecca Studt (Rebecca) and Roger Studt (Roger) a divorce on the basis of extreme cruelty. Rebecca appeals those portions of the judgment regarding property division, alimony and child support. We affirm in part and reverse and remand in part.\\nThe parties were married on August 14, 1970. At the time of trial, both parties were thirty-six years of age and enjoyed excellent health. Two children were born of the marriage, a daughter who was eight years old at the time of the divorce and a son who was age four at that time.\\nAt the time of their marriage, Roger had an eighth grade education. Since the age of thirteen years, he had been engaged in farming. Rebecca had completed one year of college. During the first eight years of her marriage to Roger, Rebecca had worked at the South Dakota State Library in Pierre, South Dakota, and at a bank in Presho, South Dakota. Following the birth of the parties' first child, Rebecca did not return to work outside the home. Instead, she devoted full time to her duties as a housewife and mother. Rebecca also contributed to the operation of the farm by occasionally helping with the chores and performing necessary bookkeeping tasks.\\nThe parties' goal at the time of their marriage was to acquire a farming operation. The records show they were successful in attaining this goal. At the time of trial, they owned 775 acres of farmland and leased an additional 1200 acres. Of the 775 acres owned by the parties, 160 acres had been a gift from Roger's parents. This gift was made during the parties' marriage. The record shows that the parties had operated a profitable farm and that they had accumulated other property, including farm equipment, livestock and grain. The trial court credited the farming operation's success to both parties, finding that both contributed 100 percent of their time and efforts.\\nThe trial court determined the value of the marital assets to be $261,642. It also found that the marital liabilities totalled $157,328 and that Roger brought into the marriage assets worth $13,000. After these amounts were subtracted, the value of marital property for division was $91,-314. The trial court ordered Roger to pay Rebecca $25,000 as her interest in the marital property. Rebecca also was awarded various items in her possession and personal property. Roger was awarded the remaining marital property, along with the liability for the marital debts.\\nRebecca was awarded rehabilitative alimony in the amount of $400 per month for thirty-six months. The trial court determined that rehabilitative alimony was necessary for Rebecca so that she could improve her chances of securing meaningful employment. Roger was also ordered to pay one-half of Rebecca's attorney fees.\\nAlthough the trial court found both parties to be fit parents, it awarded Rebecca primary custody of the children. The trial court determined the parties' average income for the five years preceding the divorce to be $23,370. It then ordered Roger to pay child support in the amount of $250 per child per month.\\nOn appeal, Rebecca contends that the trial court improperly computed the value of the marital assets, divided the property inequitably, and inadequately awarded rehabilitative alimony and child support. Rebecca also moves for additional costs and attorney fees for bringing this appeal. We will address each issue separately.\\n1. VALUATION OF MARITAL ASSETS\\nRebecca argues that the trial court was clearly erroneous in valuing the parties' property, particularly the real estate, livestock, grain, and bank accounts and insurance. She also claims error in the trial court's determination of the parties' liabilities. We disagree with Rebecca's contentions with regard to the realty, but we find the trial court's determination of the value of the grain and the bank accounts and insurance to be clearly erroneous.\\nThis court has previously held that \\\"[e]xactitude is not required of the trial court in the valuation of assets in a dissolution proceeding; it is only necessary that the value arrived at lies within a reasonable range of figures.\\\" Baltzer v. Baltzer, 422 N.W.2d 584, 586 (S.D.1988) (iquoting Goehry v. Goehry, 354 N.W.2d 192, 196 (S.D.1984)). The only time this court will interfere with a trial court's valuations is when they are clearly erroneous or where assets are completely overlooked by said court. Herrboldt v. Herrboldt, 303 N.W.2d 571, 572 (S.D.1981). In the absence of a stipulation as to the value of marital assets, the parties must \\\"produce hard evidence as to those values other than their own personal opinions.\\\" Hanks v. Hanks, 296 N.W.2d 523, 526 (S.D.1980). The trial court, however, is not required to accept either party's proposed valuation. Baltzer, 422 N.W.2d at 586; Hanks, 296 N.W.2d at 526.\\nThe record in the present case supports the trial court's findings with regard to the value of the real estate. At the trial, Rebecca introduced an appraisal valuing the real property at $139,600. She also testified that the value of the realty was higher. In his testimony, Roger valued the real estate at $119,275. The trial court, in its findings of fact, stated that the parties' realty was worth $135,000. Since this figure approximates the appraisal submitted by Rebecca, we cannot find the valuation of the real property clearly erroneous.\\nWith regard to the trial court's determining the value of the grain and bank accounts and insurance, it is readily apparent that errors exist, a fact which Roger concedes in his appellate brief. The trial court found the value of the grain to be $16,492. The record indicates that the actual value of the grain was $45,627. The trial court therefore evidently overlooked grain the value of which was $29,135. Of this amount, $22,873 is attributable to wheat which was being used to secure an ASCS loan. This loan, however, was taken into account in determining the extent of the parties' liabilities. The record also reveals a discrepancy between the actual value of the parties' bank accounts and insurance policies and that found by the trial court. The value of said accounts and policies, by Roger's own admission, was $1658 higher than the valuation of the trial court.\\nIn light of the foregoing errors, we remand this issue to the trial court. We direct it to redetermine the value of the parties' personal property in its entirety.\\n2. DISTRIBUTION OF MARITAL PROPERTY\\nRebecca submits that the trial court's division of the marital property was inequitable. She contends that the trial court abused its discretion in awarding her approximately twenty-seven percent of the marital assets, according to her figures, and in awarding Roger all of the income-producing assets.\\nA trial court has broad discretion with respect to property division and we will not set aside its judgment unless a clear abuse of discretion is shown. Henrichs v. Henrichs, 426 N.W.2d 569, 572 (S.D.1988); Baltzer, 422 N.W.2d at 587. Our review of the division of marital property is limited to determining whether it was equitable. Id. In dividing marital property, the trial court must consider equity and the circumstances of the parties. SDCL 25-4-44; Henrichs, 426 N.W.2d at 571. Factors to be considered in determining an equitable property division include: \\\"the length of the marriage; the value of the property; the age and health of the parties; their respective competency to earn a living; the contributions of each party to the accumulation of the property; and the income producing capacity of the parties' assets.\\\" Cole v. Cole, 384 N.W.2d 312, 314 (S.D.1986). While these factors are considered, the trial court is bound by no mathematical formula in making a property division. Martin v. Martin, 358 N.W.2d 793, 797 (S.D.1984).\\nThe trial court found that the parties' marriage lasted eighteen years. Both parties were thirty-six years of age and enjoyed good health. The trial court further found that Roger was a talented farmer and capable of earning a good living. Rebecca, although lacking training and substantial work experience, was also intelligent and capable of earning a living. Although the gifts from Roger's parents contributed to the parties' successful farming operation, the trial court found that each party also contributed 100 percent of their time and efforts building the farm's assets. Lastly, the trial court found the net value of the parties' property to be $91,314.\\nAs previously mentioned, Rebecca was awarded $25,000 as her share of the marital property. The remaining income-producing property was awarded to Roger to enable him to fulfill his obligations regarding the property settlement and alimony and child support payments. For the most part, it is apparent that the trial court took into consideration each of the above-cited factors in arriving at its division of the marital property. We, however, feel compelled to remand this issue to the trial court for redetermination in light of the errors and oversights in valuation.\\n3. REHABILITATIVE ALIMONY\\nRebecca contends that the trial court erred in awarding her rehabilitative alimony of only $400 per month for a period, of three years. She further claims that the trial court erred in considering the award of rehabilitative alimony together with her share of the marital assets. We note that Rebecca does not challenge the fact that she was not awarded \\\"permanent\\\" alimony.\\n\\\"The amount and length of alimony payments is . left to the discretion of the trial court.\\\" Bradeen v. Bradeen, 430 N.W.2d 87, 88 (S.D.1988) (quoting Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D.1977)). See also SDCL 25-4-41. This court will not disturb an award of alimony unless it clearly appears that the trial court abused its discretion. Baltzer, 422 N.W.2d at 587. In awarding alimony, the trial court must consider the following factors: \\\"the length of the marriage, the respective earning capacity of the parties; their respective financial condition after the property division; their respective age, health and physical condition; their station in life or social standing; and the relative fault in the termination of the marriage.\\\" Bradeen, 430 N.W.2d at 88. Likewise, \\\"the decision to award 'reimbursement' or 'rehabilitative' alimony, and, if so, in what amount and for what length of time, is committed to the sound discretion of the trial court.\\\" Id. (emphasis in original) (iquoting Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 262 (S.D.1984)). \\\"The purpose of rehabilitative alimony is to put the supporting spouse in a position to likewise upgrade their own economic marketability.\\\" Bradeen, 430 N.W.2d at 88. See also Wilson v. Wilson, 434 N.W.2d 742 (S.D.1989). Because each case is peculiar to its facts, the trial court is not bound to setting such awards with mathematical precision or within certain rigid parameters. Id. The trial court, however, in awarding rehabilitative or reimbursement alimony, should be guided by \\\"the amount of supporting spouse's contributions, his or her foregone opportunities to enhance or improve professional or vocational skills, and the duration of the marriage following completion of the nonsupporting spouse's professional education.\\\" Id. at 745 (quoting Saint-Pierre, 357 N.W.2d at 262).\\nOur review of the trial court's findings of fact in the present case indicates careful consideration in awarding rehabilitative alimony to Rebecca. The parties were married for a lengthy period of time during which Rebecca contributed her time and efforts to the farming operation. The trial court recognized that rehabilitative alimony was necessary for Rebecca to secure employment beyond the minimum-wage level. The trial court also reasoned that such an award was not only justifiable, but also beneficial to the parties' children in the long run. These factors alone, however, are not determinant of an appropriate alimony award. In order to determine whether the trial court abused its discretion in awarding alimony, this court reviews the award of alimony and property division together. Baltzer, 422 N.W.2d at 587; Booth v. Booth, 354 N.W.2d 924, 927 (S.D.1984). An appropriate, meaningful evaluation regarding the trial court's awarding rehabilitative alimony in the present case is precluded by the aforementioned miscalculations in personal property values and division of marital assets. Therefore, we also remand this issue to the trial court, making no decision as to whether the rehabilitative alimony award is either excessive or insufficient.\\n4. CHILD SUPPORT\\nRebecca claims that the trial court abused its discretion in requiring Roger to pay only $500 per month in child support. She argues that the trial court's award of child support was insufficient because it erred in determining Roger's income.\\nSDCL 25-7-7 provides, in pertinent part:\\nThe child support obligation shall be established in accordance with the obli-gor's net income and number of children affected by an action of the obligee or the department, as provided in the following schedule and guidelines:\\n\\nThe obligor's monthly net income shall be determined by his gross income less allowable deductions, as set forth herein.\\nThis statute provides guidelines for establishing an obligor's child support obligation. These guidelines are mandatory if the obligor's monthly net income does not exceed $1500. Havens v. Henning, 418 N.W.2d 311, 312 (S.D.1988). Under SDCL 25-7-7, the support obligation for two children where the obligor's monthly net income was $1401 to $1500 would be $462 to $495. If the obligor's monthly net income exceeds $1500, the trial court must exercise its discretion in setting the child support obligation. Havens, 418 N.W.2d at 312.\\nAfter reviewing the parties income tax returns for the five years preceding the divorce, the trial court found their average net income to be $23,370. The trial court further found that the monthly income from the farm had been \\\"approximately in the range of $1401 to $1500\\\" and that such an income justified child support payments in the amount of $250 per child per month.\\nAt trial, Rebecca testified that the parties' disposable income was in excess of $30,000 in 1985. She also presented evidence, through the testimony of a certified public accountant (CPA), that their average disposable income for the five-year period prior to the divorce was approximately $36,000. The CPA arrived at these figures essentially by subtracting only the actual cash expenditures from the gross income figures. An expense such as depreciation was not taken into account since this would distort the figure representing cash which was available for \\\"non-business\\\" purposes.\\nWe note that for purposes of determining child support, SDCL 25-7-7 permits the trial court to \\\"allow or disallow deductions for federal income taxation purposes which do not require the expenditure of cash, including, but not limited to, depreciation, depletion allowances, investment cred-its_\\\" (Emphasis supplied). Disallowing such deductions would be in accordance with Rebecca's calculations.\\nIn the present case, we are unable to determine how the trial court arrived at its child support award. Our scrutiny of the parties' income tax returns for the five years preceding the divorce leads us to average net income figures which differ from that of the trial court. According to our calculations, the parties' average adjusted gross income totalled $21,471. Our calculations further indicate that the parties' average net \\\"disposable\\\" income was $34,965. We arrived at this figure by subtracting from the parties' adjusted gross income the taxes paid and by disallowing depreciation expenses and investment tax credits. See SDCL 25-7-7. Regardless of which average net income figure is used, it is apparent that the amount of the child support award was within the trial court's discretion, as long as the award was not less than the amount provided at the $1500 range in SDCL 25-7-7. The trial court's award of child support was slightly above said amount. Nonetheless, we believe that it is necessary to remand this issue to the trial court for reconsideration and clarification. In light of our remanding the other issues presented on appeal, we do not believe that this will be overly burdensome to the trial court.\\n5. ATTORNEY FEES ON APPEAL\\nRebecca has filed a motion for additional costs and attorney fees for bringing this appeal, which is supported by an affidavit and itemized statement. See Baltzer, 422 N.W.2d at 589. The amount of the statement is $2550.07. In Senger v. Senger, 308 N.W.2d 395 (S.D.1981), we outlined the factors to be considered in awarding a party attorney fees on appeal. We stated:\\nIn determining whether one party should be required to pay another party's attorney fees, we will consider the property owned by each party; their relative incomes; whether the requesting party's property is in fixed or liquid assets; and whether either party unreasonably increased the time spent on the case.\\nId. at 398. Applying these factors to the present case, we approve the amount of $1500.\\nThe errors and lack of clarity in the portions of the trial court's decision regarding property valuation and division, alimony, and child support prevent an appropriate, meaningful review of those issues. See Wilson, 434 N.W.2d at 744. Accord ingly, we reverse the divorce decree with regard to those issues and request the trial court to reconsider them based upon the evidence already submitted. We affirm the trial court's decision regarding the valuation of the parties' real estate.\\nMORGAN, SABERS and MILLER, JJ., concur.\\nHENDERSON, J., specially concurs in part and dissents in part.\"}"
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+"{\"id\": \"10602687\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Kendall M. ROBINSON, Defendant and Appellant\", \"name_abbreviation\": \"State v. Robinson\", \"decision_date\": \"1991-04-24\", \"docket_number\": \"No. 17103\", \"first_page\": \"376\", \"last_page\": \"380\", \"citations\": \"469 N.W.2d 376\", \"volume\": \"469\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T22:06:56.618999+00:00\", \"provenance\": \"CAP\", \"judges\": \"WUEST, and SABERS, JJ., and HERTZ, Acting Justice, concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Kendall M. ROBINSON, Defendant and Appellant.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Appellee, v. Kendall M. ROBINSON, Defendant and Appellant.\\nNo. 17103.\\nSupreme Court of South Dakota.\\nArgued Jan. 8, 1991.\\nDecided April 24, 1991.\\nMark A. Moreno, Hughes County States Atty., Thomas H. Harmon, Asst. Atty. Gen., Pierre, for plaintiff/appellee.\\nJames A. Eirinberg, Sioux Falls, for defendant/ appellant.\", \"word_count\": \"2079\", \"char_count\": \"12871\", \"text\": \"DOBBERPUHL, Circuit Judge.\\nISSUES PRESENTED\\nKendall M. Robinson (petitioner) brings the following issues to this court for our resolution:\\n1. WHETHER THE TRIAL COURT ERRED IN REFUSING TO DISMISS THE PART II INFORMATION ACCUSING PETITIONER OF BEING AN HABITUAL OFFENDER?\\n2. WHETHER THE TRIAL COURT ERRED IN RULING THAT SDCL 23A-44-5.1 (THE 180-DAY RULE) DID NOT REQUIRE DISMISSAL OF THIS CASE?\\nWe affirm.\\nPROCEDURAL HISTORY\\nOn June 10, 1985, pursuant to an information, petitioner was charged with escape and aggravated assault. Petitioner pled not guilty and not guilty by reason of insanity to both charges. On October 18, 1985, a jury returned a verdict of guilty but mentally ill to both counts. Pursuant to a Part II information petitioner was charged with having been convicted of three prior felonies. Petitioner changed his plea to Part II of the information to guilty and admitted to being an habitual offender. Petitioner was sentenced to five years on Count I and twenty-two years on Count II. Petitioner's conviction was appealed and affirmed. State v. Robinson, 399 N.W.2d 324 (S.D.1987).\\nPetitioner filed his first petition for writ of habeas corpus on April 30, 1987. Petitioner appealed the denial of the writ to this court; the denial was affirmed. Robinson v. Solem, 432 N.W.2d 246 (S.D.1988).\\nOn January 6, 1989, petitioner filed his second petition for writ of habeas corpus. On August 15, 1989, Sixth Circuit Court Judge Donald Heck, issued a memorandum decision holding that the application of SDCL 22-5-10, as amended effective July 1, 1985, to petitioner's offenses committed on May 8, 1985, constituted an ex post facto law. Based upon that ruling, he granted the writ, vacated the judgment of conviction and directed the release of petitioner, or, in the alternative, a new trial. Judge Heck specifically refused to rule on whether the prior convictions used to enhance petitioner's penalty were valid. Neither the state nor petitioner appealed that decision to this court.\\nOn January 15, 1990, petitioner was transported to Pierre to attend an arraignment hearing on the amended information which recharged the aggravated assault and escape offenses. Petitioner was also arraigned on an amended Part II information, which charged him with being an habitual offender. Petitioner again entered pleas of not guilty.\\nPetitioner's jury trial began on April 4, 1990. On April 5,1990, the jury returned a verdict of guilty to escape and guilty to aggravated assault.\\nThe trial court refused to grant a retrial on the Part II habitual offender information and did take judicial notice of the court files of petitioner's prior felonies. A sentencing hearing was held on April 9, 1990, and petitioner was sentenced to five years on the escape charge and twenty-two years on the aggravated assault charge, with credit for time served being granted. Petitioner appeals.\\nISSUES PRESENTED\\nWHETHER THE TRIAL COURT ERRED IN REFUSING TO DISMISS THE PART II INFORMATION ACCUSING PETITIONER OF BEING AN HABITUAL OFFENDER?\\nPetitioner argues that the trial court failed to determine whether petitioner's prior felony convictions were constitutionally valid. Further, petitioner alleges that the trial court failed to consider and determine on the record, that for each of the prior felonies listed, petitioner had been properly advised of all of his \\\"Boykin rights\\\" and had then voluntarily and intelligently waived those rights prior to entering guilty pleas. As a matter of federal constitutional law, \\\"[a] plea of guilty cannot stand unless the record in some way indicates a free and intelligent waiver by the defendant of his constitutional right to confront and cross-examine witnesses against him, his constitutional right to trial by jury, and his constitutional privilege against self-incrimination.\\\" Stacey v. State, 349 N.W.2d 439, 441 (S.D.1984) (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)).\\nIn addition to waivers of these three \\\"Boykin rights\\\" the record must disclose, as a matter of South Dakota law, that the defendant understood the nature and consequences of his plea. Nachtigall v. Erickson, 85 S.D. 122, 178 N.W.2d 198 (1970). While there is no set formula for establishing on the record the voluntariness of a guilty plea, \\\"[t]he trial court must normally inform the defendant of these rights personally to insure that the record indicates a free and intelligent waiver of these rights.\\\" Logan v. Solem, 406 N.W.2d 714, 716-717 (S.D.1987) (emphasis original). The court's obligation to satisfy itself as to each of these four prerequisites before accepting a guilty or a guilty but mentally ill plea by \\\"addressing the defendant personally in open court\\\" and making a record of it are codified at SDCL 23A-7-4, 23A-7-5, 23A-7-15, and 23A-7-16. State v. Bailey, 464 N.W.2d 626 (S.D. 1991).\\nThis court in Gregory II (Gregory v. State, 353 N.W.2d 777 (S.D.1984)), adopted the rule that before a plea can be voluntarily entered, the defendant must possess an understanding of the nature of the charge against him. We further have held that, \\\"the ultimate burden of assuring that a defendant is advised of the nature of the charge against him falls upon the trial court and not upon the defendant's attorney.\\\" Gregory v. Solem, 449 N.W.2d 827, 832 (S.D.1989) (Gregory III).\\nWe based our premise in Gregory III, on our decision in Application of Garritsen, 376 N.W.2d 575, 577 (S.D.1985) where we held:\\n[T]he record must indicate that the pleading defendant understood the nature and consequences of his plea. The record must indicate that the defendant was informed of his right to a jury trial in the county in which the crime was committed. The record must also indicate a factual basis for a guilty plea before it is accepted. The circuit court cannot assume counsel has so advised the defendant and the record of the preliminary hearing cannot substitute for the circuit court's duty to actively participate by informing and canvassing the defendant, so as to make certain he understands and knows his rights and the nature and consequences of his plea, (citations omitted).\\nThus, just as we held in Gregory III that the ultimate burden of advising the defendant of the nature of the charge falls upon the trial court, we now similarly hold that the ultimate burden of advising a defendant of the consequences of his plea falls upon the trial court and not the defendant's attorney. See State v. Wika, 464 N.W.2d 630 (S.D.1991).\\nIn reviewing the record before us, it is clear that the trial court sufficiently covered what was necessary to establish that petitioner was an habitual offender. The trial court established identity, attorney representation, and conviction. When the legality of these convictions was attacked in the trial court, the trial court's position was that no retrial on the Part II information was going to occur:\\nTHE COURT: Well, I'm going to cut through all the red tape and rule that the defendant is not entitled to be retried on the Part II Information; that he has previously admitted the three prior felony convictions after he was convicted of the underlying felony; and that the court after proper inquiry, found that the admission was voluntary, that there was a factual basis for it, accepted that admis sion and found the defendant guilty as an habitual criminal.\\nIn People v. Wilkins, 115 Mich.App. 153, 320 N.W.2d 326 (1982), Wilkins was convicted of carrying a concealed weapon and being an habitual offender. He was found to have previously been convicted of three felonies. The court stated:\\nAt the trial on the habitual offender information the people must prove the three prior convictions and the identity of the defendant as the person who committed those offenses. People v. Covington, 70 Mich.App. 188, 191, 245 N.W.2d 558 (1976). The people sustained this burden of proof in the habitual offender proceeding following the original conviction of carrying a concealed weapon and the defendant was properly convicted as an habitual offender, having committed three prior felonies. That conviction was never reversed. The factual determinations essential to support that conviction have never been set aside.\\nWe adopt the same rationale. Under the facts in the case before us today, petitioner is clearly an admitted habitual offender.. The convictions upon which his classification as an habitual offender is based are not constitutionally infirm. Therefore, we hold that it was not error to leave petitioner's Part II information undisturbed and to attach the records of his prior criminal convictions to this record for the convenience of this court.\\nIt should be noted that this state does not require a re-arraignment for each prior conviction in the enhancement phase. Thus, it may be concluded under the given facts, that the original habitual criminal procedure on the Part II information, after the original jury trial in 1985 is sufficient, has not been overturned, and, can be used.\\nISSUE PRESENTED\\nWHETHER THE TRIAL COURT ERRED IN RULING THAT SDCL 23A-44-5.1 (THE 180-DAY RULE) DID NOT REQUIRE DISMISSAL OF THIS CASE?\\nThe question of whether the 180-day period begins to run in a situation where a conviction has been reversed and a defendant is subsequently recharged, is a case of first impression in South Dakota.\\nHere, petitioner argues that more than 180 days expired after notice that he should be immediately retried, that good cause did not exist for extending the 180-day period, and state did not file timely a motion for good cause delay. Petitioner further maintains that the trial court abused its discretion in holding that (1) the 180-day rule period began to run on November 14, 1989, and (2) good cause for delay existed.\\nSDCL 23A-44-5.1 is the codification of Supreme Court Rule 85-4. It reads:\\nThe prosecution shall dispose of all criminal cases by plea of guilty or nolo conten-dere, trial or dismissal within one hundred eighty days from the date the defendant has first appeared before a judicial officer on the complaint or indictment. Any period of delay shall be excluded if the trial court finds good cause for the delay. In the event of the prosecution's failure to dispose of the action within the time limit required by this section, the action shall be dismissed.\\nThe 180-day rule is a procedural device created by this court to protect the defendant's right to a speedy trial and the integrity of the criminal justice system. It was never intended to apply to instances where a circuit court or this court reverses a conviction and mandates a retrial in lieu of a release or further circuit court proceedings. To construe the rule otherwise and tie the retrial date to the date of the defendant's original appearance before a magistrate would result in an automatic dismissal, rather than a retrial. Such an interpretation, rather than promoting the integrity of the criminal justice system, would make a mockery of it.\\nEven if the 180-day rule is applied to the petitioner's initial appearance before a judicial officer after his successful habeas proceeding, it is the opinion of this court that the trial date of April 4, 1990 would be within the 180-day period, since after remand, petitioner did not appear in front of the trial court until November 14, 1989.\\nThis court notes that petitioner advanced several other issues on appeal for this court's review. They were briefed but not argued. The contentions are without merit.\\nAffirmed.\\nWUEST, and SABERS, JJ., and HERTZ, Acting Justice, concur.\\nHENDERSON, J., specially concurring.\\nAMUNDSON, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.\\nDOBBERPUHL, Circuit Judge, for MILLER, C.J., disqualified.\"}"
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+"{\"id\": \"10607550\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Jose I. ESCALANTE, Craig A. Neiger and Michael R. Larsen, Defendants and Appellants\", \"name_abbreviation\": \"State v. Escalante\", \"decision_date\": \"1990-07-11\", \"docket_number\": \"Nos. 16689, 16720 and 16744\", \"first_page\": \"787\", \"last_page\": \"792\", \"citations\": \"458 N.W.2d 787\", \"volume\": \"458\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:09:40.600820+00:00\", \"provenance\": \"CAP\", \"judges\": \"MORGAN, SABERS and MILLER, JJ., concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Jose I. ESCALANTE, Craig A. Neiger and Michael R. Larsen, Defendants and Appellants.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Appellee, v. Jose I. ESCALANTE, Craig A. Neiger and Michael R. Larsen, Defendants and Appellants.\\nNos. 16689, 16720 and 16744.\\nSupreme Court of South Dakota.\\nConsidered on Briefs. Feb. 14, 1990.\\nDecided July 11, 1990.\\nRoger A. Tellinghuisen, Atty. Gen., Diane Best, Asst. Atty. Gen., Pierre, for plaintiff and appellee.\\nDavid R. Wurm, Office of Public Defender, Rapid City, for defendants and appellants.\", \"word_count\": \"2215\", \"char_count\": \"13770\", \"text\": \"WUEST, Chief Justice.\\nThis is a consolidated appeal of the convictions of three defendants as DWI habitual offenders. We affirm.\\nFACTS\\nEach of the defendants was convicted of DWI and each had prior DWI convictions in his record. Accordingly, state sought to enhance the punishment for each defendant's most recent DWI by alleging his prior convictions in a Part II information filed under SDCL 32-23-4.2. Following trial on the Part II information, each of the defendants was convicted as an habitual DWI offender. Jose Escalante and Michael Larsen were both convicted of felony third offense DWI (SDCL 32-23-4) and Craig Neiger was convicted of misdemean- or second offense DWI (SDCL 32-23-3).\\nDuring the trial court proceedings on the Part II information, each defendant raised an appropriate challenge to the validity of one of the prior convictions state was alleging for enhancement purposes. Each defendant argued that one of his prior convictions was invalid due to the signature of an unlicensed prosecuting attorney on the charging document leading to the conviction. In Escalante's case, the questioned charging document was a complaint. In Neiger's and Larsen's cases, the questioned charging document was an information.\\nIn all three cases, the person who signed the charging document was employed as a Pennington County Deputy State's Attorney. In Escalante's case, the complaint was signed by Gary Sokoll. Sokoll had completed all requirements to practice law and had taken his oath of office the same day he signed the complaint. However, Sokoll was not issued his license to practice law by this court until two days after he signed the complaint.\\nIn Neiger's case, the information was also signed by Gary Sokoll. Sokoll took his oath of office one day after he signed the information and was not issued his license to practice law until three days after he signed the information.\\nFinally, in Larsen's case, the information was signed by Jay Miller. Miller had completed all requirements to practice law and had taken his oath of office before signing the information. However, Miller was not issued his license to practice law until nine days after he signed the information.\\nThe defendants' challenges to the validity of their prior convictions were rejected by the trial court and each was convicted as a DWI habitual offender as previously noted. Because of the similarity of the issue involved, this consolidated appeal followed.\\nISSUE\\nWHETHER THE DEFENDANTS WERE ERRONEOUSLY CONVICTED AS DWI HABITUAL OFFENDERS DUE TO USE OF INVALID PRIOR CONVICTIONS FOR ENHANCEMENT PURPOSES?\\nAt the outset, we observe that Esca-lante's case is distinguishable because it involves a challenge to a signature on a complaint rather than an information. For that reason we will separately address his case below. The following discussion is confined to the Neiger and Larsen cases.\\nAPPELLANTS NEIGER AND LARSEN\\nWe begin with the well settled rule that a judgment of conviction rendered by a court without subject matter jurisdiction is wholly void and without any force or effect whatever. See, Honomichl v. State, 333 N.W.2d 797 (S.D.1983). Invalid convictions cannot be used to enhance a sentence for a subsequent criminal offense under the habitual offender statutes. State v. King, 383 N.W.2d 854 (S.D.1986). This principle applies equally to DWI habitual offender proceedings. See, Petition of Brockmueller, 374 N.W.2d 135 (S.D.1985). Thus, a conviction rendered by a court without subject matter jurisdiction cannot be used to enhance punishment for a subsequent criminal offense under either the habitual offender statutes or the DWI habitual offender provisions.\\nA trial court in a criminal case does not acquire subject matter jurisdiction unless state files a formal and sufficient indictment or information. Brockmueller, supra; Honomichl, supra. To be \\\"valid,\\\" an information must be signed by a, \\\"prosecuting attorney.\\\" SDCL 23A-6-4.\\nNeiger and Larsen argue that the informations leading to their prior DWI convictions were not signed by, \\\"prosecuting attomey[s]\\\" because the deputy state's attorneys who signed them were not licensed attorneys. Therefore, they argue those convictions are invalid and were erroneously used to convict them as DWI habitual offenders.\\nThe term, \\\"prosecuting attorney,\\\" in South Dakota includes assistant state's attorneys. SDCL 23A-45-9(14). To serve as a deputy state's attorney a person must be a, \\\"duly licensed attorney and counselor at law_\\\" SDCL 7-16-3 (emphasis added). Further: SDCL 16-16-1. These provisions make clear that a person cannot act as an attorney or deputy state's attorney in South Dakota without having, \\\"previously obtained,\\\" a license to practice law from this court.\\n[n]o person . shall be permitted to practice as an attorney and counselor at law in any court of record within this state . without having previously obtained a license for that purpose from the Supreme Court of this state and having become an active member in good standing of the state bar of South Dakota. (emphasis added).\\nAt the time Sokoll and Miller signed the informations at issue in this appeal, they had not yet been issued their licenses to practice law. Accordingly, they could not act as attorneys or deputy state's attorneys and, thus, did not fit within the definition of a, \\\"prosecuting attorney,\\\" capable of signing an information. However, we decline to hold that this must necessarily invalidate the convictions obtained on the informations they signed. In the interest of justice, we accept state's argument that the doctrine of the de facto officer should be applied as a means of validating Sokoll's and Miller's signatures on the informa-tions.\\nA de facto officer, \\\"is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons....\\\" Merchants' Nat. Bank v. McKinney, 2 S.D. 106, 120-21, 48 N.W. 841, 845 (1891).\\n[A] de facto officer has possession and performs the duties [of an office] under color of right, without being technically qualified in all points of the law to act. The general rule is that the acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient, and such officer's authority may not be collaterally attacked or inquired into by third persons affected.\\nState v. Smejkal, 895 N.W.2d 588, 592 (S.D.1986). The policies underlying the doctrine are, \\\"the protection of those having official business to transact, and to prevent a failure of public justice.'' (emphasis added). Id. (quoting 63A Am. Jur.2d, Public Officers and Employees \\u00a7 605 (1984)).\\nThe doctrine of the de facto officer is generally applied in four different situations. See, Smejkal, supra; Merchants' Nat. Bank, supra. One of these four situations is where the duties of an office are exercised under color of a known or valid appointment but the officer has failed to conform to some precedent, requirement, or condition such as taking an oath, giving a bond or the like. Id. A second situation where the doctrine is applied is where the duties of an office are exercised under col- or of a known appointment, void because the officer was not eligible. Id. We find both of these situations present in the instant case.\\nBoth Sokoll and Miller, were employed as Pennington County Deputy State's Attorneys, both exercised the duties of that office by signing the informations now at issue and both had fulfilled the requirements for practicing law in this state. The only precedent, requirement or condition preventing them from validly exercising the duties of their office was the taking of an oath and/or the actual issuance of a license to practice law by this court. Both took their oaths and this court issued their licenses within a few days after signing the informations. In the interest of preventing a failure of public justice, we find this case suitable for application of the doctrine of the de facto officer.\\nApplication of the doctrine prohibits the present collateral attack on the deputy state's attorneys' authority and validates their actions in signing the informations filed against Neiger and Larsen. See Smejkal, supra; Scirica v. State, 265 N.W.2d 893 (S.D.1978). Accordingly, we find the informations leading to Neiger's and Larsen's prior convictions sufficient as signed by de facto, \\\"prosecuting attorney[s].\\\" It follows that the trial court had subject matter jurisdiction to act on the informations and that the convictions obtained thereon are valid. Accordingly, the convictions were appropriately used to eon- vict Neiger and Larsen as habitual DWI offenders.\\nAPPELLANT ESCALANTE\\nAs noted, Escalante argues that a prior DWI conviction used to sustain his conviction as a habitual DWI offender is invalid based upon the signature of an unlicensed prosecuting attorney on the complaint leading to the conviction. We disagree.\\nUnlike SDCL 23A-6-4 which requires that an information be signed by a prosecuting attorney, there is no such requirement for a complaint. The only statutory requirements for signing a complaint are set forth in SDCL 23A-2-1:\\nA complaint is a written statement of the essential facts constituting an offense charged. It must be signed under oath before a person authorized to administer oaths in the state of South Dakota.\\nSokoll signed the complaint against Esca-lante under oath before a notary public. A notary public is a person authorized to administer oaths in this state. SDCL 18-3-1. Therefore, Sokoll met all of the requirements of SDCL 23A-2-1. Moreover, Esca-lante stipulated before the trial court that a valid information was filed in the case. As we have discussed, this conferred subject matter jurisdiction on the trial court to proceed on the charge and enter a judgment of conviction. Honomichl, supra. Accordingly, Escalante's contentions concerning invalidity of the prior conviction are without merit.\\nAffirmed.\\nMORGAN, SABERS and MILLER, JJ., concur.\\nHENDERSON, J., concurs with writing.\\n. \\\"DWI\\\" denotes the offense of driving or physical control of a motor vehicle while under the influence of alcohol (SDCL 32-23-1).\\n. SDCL 32-23-4.2 provides:\\nIn any criminal case brought pursuant to the provisions of \\u00a7 32-23-3, 32-23-4 or 32-23-4.-6, wherein the information alleges, in addition to the principal offense charged, a former conviction or convictions, the information shall be in two separate parts, each signed by the prosecutor. In the first part the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged.\\n. We recognize that there are limited exceptions to this rule which are inapplicable to the present matter. See, e.g., SDCL 16-18-2.1 through SDCL 16-18-2.10 (legal assistance by law students).\"}"
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+"{\"id\": \"10634211\", \"name\": \"The People of the State of South Dakota in the Interest of A.D.R., A Child(ren) and concerning T.R. STATE of South Dakota, Plaintiff and Appellee, v. Anthony Don RIOS, Defendant and Appellant\", \"name_abbreviation\": \"State v. Rios\", \"decision_date\": \"1993-05-05\", \"docket_number\": \"Nos. 17909, 17911\", \"first_page\": \"906\", \"last_page\": \"911\", \"citations\": \"499 N.W.2d 906\", \"volume\": \"499\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:56:42.052894+00:00\", \"provenance\": \"CAP\", \"judges\": \"MILLER, C.J., and WUEST, HENDERSON and AMUNDSON, JJ\\u201e concur.\", \"parties\": \"The People of the State of South Dakota in the Interest of A.D.R., A Child(ren) and concerning T.R. STATE of South Dakota, Plaintiff and Appellee, v. Anthony Don RIOS, Defendant and Appellant.\", \"head_matter\": \"The People of the State of South Dakota in the Interest of A.D.R., A Child(ren) and concerning T.R. STATE of South Dakota, Plaintiff and Appellee, v. Anthony Don RIOS, Defendant and Appellant.\\nNos. 17909, 17911.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Feb. 9, 1993.\\nDecided May 5, 1993.\\nMark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, for plaintiff and appellee.\\nJean M. Cline, Feehan & Cline, Rapid City, for defendant and appellant.\", \"word_count\": \"2635\", \"char_count\": \"16384\", \"text\": \"SABERS, Justice.\\nAnthony Don Rios (Rios) appeals (1) an order transferring all proceedings from juvenile court to adult criminal court, (2) the denial of his proposed justifiable homicide instruction, and (3) his conviction for aggravated assault on insufficiency of the evidence. We affirm.\\nFACTS\\nRios was born on September 3, 1976. After a history of confrontations with the law beginning at age nine, Rios was charged in the fall of 1991 with First-Degree Rape or Sexual Contact, Aggravated Assault, First-Degree Manslaughter, and Aggravated Assault. All proceedings against Rios were transferred to adult criminal court.\\nOn February 3, 1992, Rios was found guilty of first-degree manslaughter. On February 19, 1992, he was found guilty of aggravated assault. Under an agreement with Rios, the State dismissed the additional aggravated assault charge and the rape or sexual contact charge. Rios received twenty years probation for first-degree manslaughter and eight years in the South Dakota State Penitentiary for aggravated assault. Both convictions are consolidated for appeal.\\n1. Transfer to Adult Criminal Court\\nRios claims the court erred in transferring the charges to adult criminal court. While it is true that \\\" '[a] transfer hearing is a 'critically important' action determining vitally important statutory rights of the juvenile[,]' \\\" State v. Harris, 494 N.W.2d 619, 623 (S.D.1992) (quoting In re L.V.A., 248 N.W.2d 864, 867 (S.D.1977); Kent v. United States, 383 U.S. 541, 556, 86 S.Ct. 1045, 1055 16 L.Ed.2d 84, 94 (1966)), it is within the discretion of the trial court to determine whether to transfer juvenile proceedings to adult court. Id. at 624.\\nThe transfer of a juvenile to adult court is controlled by SDCL 26-11-4, which provides in part that \\\"the court shall consider only whether it would be contrary to the best interest of the child or of the public to retain jurisdiction over the child.\\\" \\\"[Tjhere must be substantial evidence in the record to support the juvenile court's finding that it would be contrary to the best interests of the child OR of the public to retain jurisdiction over the child.\\\" Harris, 494 N.W.2d at 624 (emphasis in original) (citations omitted). Neither the stat ute nor case authority \\\"give controlling consideration to the interests of the child over the interests of the state, or . the interests of the state over the interests of the child.\\\" Id. (citations omitted).\\nSDCL 26-11-4 provides seven factors which may be considered by the trial court in determining whether a child should be transferred:\\n(1) The seriousness of the alleged offense to the community and whether protection of the community requires waiver;\\n(2) Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;\\n(3) Whether the alleged offense was against persons or property with greater weight being given to offenses against persons;\\n(4) The prosecutive merit of the complaint. The state shall not be required to establish probable cause to show prosecutive merit;\\n(5) The desirability of trial and disposition of the entire offense in one proceeding when the child's associates in the alleged offense are adults;\\n(6) The record and previous history of the juvenile;\\n(7) The prospect for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile, if he is found to have committed the alleged offense, by the use of procedures, services and facilities currently available to the juvenile court.\\nThese factors do not\\nreduce the discretion of the trial judge in transfer hearings, nor was it the intention to create a rigid or cumbersome procedure to be followed by the trial courts in all cases. It is not necessary that evidence be presented on all of these factors at each transfer hearing, or that the trial court . make express findings on each factor. A court is not required to consider every one of the listed factors nor is it confined to a consideration of only the listed factors to the exclusion of others. No controlling weight is given to any factor. The court's findings of fact upon which its order is based shall not be set aside upon review unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.\\nHarris, 494 N.W.2d at 624 (citations omitted).\\nRios argues that the court erred in failing to evaluate each petition individually, but used the collectiveness of the charges in determining whether to transfer Rios to adult criminal court. The court's decision indicates that it addressed each charge individually and made specific findings in accordance with SDCL 26-11-4.\\nThe court found, as to each individual offense charged, that there was probable cause to believe that Rios committed the offense and that the offense was a serious offense committed aggressively, violently and in a willful manner against a person. The court did not consider motive because no testimony was presented regarding motive nor age or circumstances of adult companions as neither were factors in any of the charges.\\nThe court transferred the offense of assault at Seventh and Quincy although it found that the offense did not, in and of itself, warrant a transfer. \\\"An abuse of discretion refers to a discretion exercised to an end or purpose not justified by and clearly against, reason and evidence.\\\" Id. (citation omitted). The transfer court felt that it was \\\"in the best interest of Rios that all of the events remain together in dealing with the allegations.\\\" It is clear, from the court's decision, that the three other charges would have been transferred, regardless of the court's determination as to the Seventh and Quincy assault. We do not find that the \\\"mere presence\\\" of this charge created \\\"an unfair and improper pressure upon the child as regarded all other charges then pending,\\\" particularly in light of the fact that this charge, as well as the rape charge, was ultimately dropped by the State. This was not an abuse of discretion.\\nRios next argues that the court failed to consider the Stipulation for Deferred Prosecution on the rape complaint and the State's delay in handling other allegations against Rios prior to the July 1991 stabbing. Rios claims the stipulation and the prior delay in charging Rios with the Mall and Seventh and Quincy assaults should prevent the State from charging Rios with these crimes.\\nWe find no merit to this argument. According to the plain language of the stipulation, failure on the part of Rios to abide by all state and federal laws during the term of the stipulation would result in the refiling and prosecution of the rape offense. Because Rios failed to comply with the terms of the stipulation, the State was free to charge Rios with rape. Additionally, there is no indication that the State \\\"resurrected\\\" the assault charges for \\\"enhancement\\\" purposes. As noted above, each charge was addressed individually and considered on its own merits.\\nRios argues that the court abused its discretion by failing to make the necessary, careful determination concerning his amenability to rehabilitation and the availability of same. Rios appears to argue that all forms of juvenile rehabilitation must be exhausted before he can be transferred to adult court. As indicated above, the court was not required to consider all of the factors as outlined in SD'CL 26-11-4 in making its decision. SDCL 26-11-4 is not a \\\"rigid or cumbersome procedure\\\" mandating that the trial court consider every factor. Id. (citations omitted).\\nContrary to Rios' argument, the court made a determination of his amenability to, and the availability of, rehabilitation. Rios has had extensive contacts with law enforcement since age nine including several offenses against persons in an aggressive and violent manner. The court noted that Rios' record since August, 1990 certainly had been intense, even if not extensive.\\nThe court viewed the rehabilitative services available to a juvenile court and determined Rios amenability based upon the testimony of Patsy Howe, Rios' home detention supervisor, Brian Hultman, a Court Services Officer, Judd Thompson, Hult-man's supervisor and the Chief Court Services Officer for the Seventh Circuit, Brian Wallin, Director of the Youth Forestry Camp in Custer and Herm Yenekamp, Superintendent of the South Dakota State Training School in Plankinton, South Dakota.\\nAccording to Howe, Rios was unsuper-visable. Hultman testified that Rios' suspended sentence to the State Training School failed to bring Rios' behavior even into minimal compliance and that he considered Rios a high risk. Thompson testified that placing Rios on probation had been unsuccessful and Wallin testified that he considered Rios a serious risk to the public's safety. The court found that the evidence supported these statements and opinions.\\nThe court examined the rehabilitative services available in a juvenile court, including court services at a local level, the Youth Forestry Camp, State Training School, Human Services Center, and the possibility of out-of-state placement at a medium security facility. In doing so, the court determined home detention failed to provide a sufficiently rehabilitative environment and Rios did not appear to be a proper candidate for either the Youth Forestry Camp or the State Training School. The court found both facilities lacking in the security necessary to properly house someone with such a violent background. The average length of stay was only 265 days at the camp and 210 days at the school and jurisdiction would cease when Rios reached age twenty-one.\\nThe court considered out-of-state placement at a medium security facility and noted that out-of-state placement became a reality, only in very rare occasions, because of the alternative care budget. While out-of-state placement, in a medium security facility may be the optimum rehabilitative program for Rios, \\\"[t]he court may consider the 'procedures, services and facilities currently available.' SDCL 26-11-4(7) (emphasis added). Neither SDCL 26-11-4 nor our cases prohibit consideration of the cost of out-of-state treatment of a juvenile.\\\" Id. at 626.\\nThe court did not specifically address the Human Services Center. \\\"Neither the statute nor our decisions have required the court to find that the juvenile unsuccessfully exhausted the resources of this state's juvenile justice rehabilitation programs pri- or to transferring proceedings to adult court.\\\" Id. at 625. As the court noted, trial in the adult system did not preclude parole at the local level through court services, the Human Services Center and placement at the State Training School as available forms of rehabilitation.\\nTherefore, there is substantial evidence in the record to support the court's findings and reasons for transfer. Rios has not shown that the trial court abused its discretion. Id. at 627 (citations omitted).\\n2. Jury Instruction on Justifiable Homicide\\nRios claims that the trial court erred in denying his proposed jury instruction on justifiable homicide and self-defense. Rios claims the justifiable homicide instruction given to the jury failed to incorporate the subjective test of reasonableness. While this court has stated:\\n[T]he reasonableness of the defendant's use of force is to be evaluated from the defendant's perspective under the facts and circumstances known to the defendant[,j . this does not mean that a jury should not be instructed to apply an objective \\\"reasonable person\\\" standard for determining the validity of a defendant's self-defense claim.\\nThis [c]ourt has not rejected the objective \\\"reasonable person\\\" standard insofar as self-defense instructions are concerned. To the contrary, we have accepted this standard.\\nState v. Luckie, 459 N.W.2d 557, 559 (S.D.1990). Jury Instruction N\\u00f3. 23 provided in part:\\nThe Defendant, however, must have acted upon an honest and reasonable conviction of necessity and a good faith belief that the decedent intended to kill or seriously injure him. The defendant having such an honest and reasonable apprehension of such danger may act to defend himself in such manner and with such means as may seem to him reasonably necessary in view of the circumstances. The kind and degree of force which a person may lawfully use in defense of himself is limited by what a reasonable person in the same situation as such person, seeing what he sees and knowing what he knows, then would believe to be necessary.\\n(Emphasis added.) The jury was instructed to view the reasonableness of Rios' actions from an objective perspective. This instruction accurately addressed the test for justifiable homicide and self-defense. It provided that the jury could find, Rios \\\"not guilty if he reasonably believed the force he used was necessary to defend himself.\\\" Id. at 560. The trial court did not err in denying Rios' subjective instructions. Id.\\n3. Aggravated Assault\\nAfter his manslaughter conviction, Rios entered into an agreement with the State for a court trial on aggravated assault on facts stipulated from the preliminary hearing and the transfer hearing. Rios retained the right to appeal the transfer order and the State agreed to dismiss the remaining charges against him. Rios was found guilty of aggravated assault.\\nRios argues that the evidence was insufficient to convict him of aggravated assault. \\\"In determining the sufficiency of the evidence on appeal, the question is whether there is evidence in the record which, if believed by the . court as fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making such a determination, this court will accept that evidence and the most reason able inferences that can be fairly drawn therefrom which will support the verdict.\\\" State v. LaCroix, 423 N.W.2d 169, 170 (S.D.1988).\\nThe aggravated assault charge stemmed from an incident at the Rushmore Mall in Rapid City on April 6, 1991. According to the unrefuted testimony of Glen Huddle-ston (Huddleston) at the transfer hearing and preliminary hearing, Rios approached Huddleston who was sitting on a bench inside the Mall. After being told by Hud-dleston to \\\"Get out of my face,\\\" Rios brandished a lock-blade knife and, while poking Huddleston in the chest and in the side with the knife, called him a \\\"big pussy\\\". After hitting Huddleston in the nose, Rios told Huddleston that \\\"If any of your friends want to jump in, I'll stick you.\\\" Rios then hit Huddleston a second time. Huddleston sustained a bloody nose, was scared and got up from the bench and called for security. Rios ran off.\\n\\\"The gravamen of the offense [of aggravated assault ] is the attempt to put a person in fear of imminent serious bodily harm. Actual fear of imminent serious bodily harm is not an essential element of the offense.\\\" Id. (emphasis in original) (citation omitted). Rios brandished a knife and poked Huddleston in the chest and the side. These actions and his statement that he would \\\"stick\\\" Huddleston if any of his friends jumped in, were sufficient to show that Rios attempted, by physical menace with a deadly weapon, to put Huddleston in fear of imminent serious bodily harm.\\nAffirmed.\\nMILLER, C.J., and WUEST, HENDERSON and AMUNDSON, JJ\\\" concur.\\n. This court stated in \\\"L.V.A. that these factors fall into two basic areas of consideration: (1) the circumstances of the crime, and (2) the amenability of the juvenile to treatment within the juvenile system. As amended subsequent to our decision in L.V.A., SDCL 26-11-4 makes no such division.... [W]e do not find such a division necessary.\\\" Harris, 494 N.W.2d at 624 n. 4 (citation omitted).\\n. SDCL 22-18-1.1(5) provides in part: Any person who:\\n(5) Attempts by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm;\\nis guilty of aggravated assault. Aggravated assault is a Class 3 felony.\"}"
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+"{\"id\": \"10641492\", \"name\": \"In the Matter of the ESTATE OF Lester I. JONES, Deceased\", \"name_abbreviation\": \"In re the Estate of Jones\", \"decision_date\": \"1985-06-19\", \"docket_number\": \"No. 14412\", \"first_page\": \"201\", \"last_page\": \"205\", \"citations\": \"370 N.W.2d 201\", \"volume\": \"370\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:10:26.288671+00:00\", \"provenance\": \"CAP\", \"judges\": \"FOSHEIM, C.J., and WOLLMAN, MORGAN and HENDERSON, JJ., concur.\", \"parties\": \"In the Matter of the ESTATE OF Lester I. JONES, Deceased.\", \"head_matter\": \"In the Matter of the ESTATE OF Lester I. JONES, Deceased.\\nNo. 14412.\\nSupreme Court of South Dakota.\\nArgued May 21, 1984.\\nDecided June 19, 1985.\\nDeraid W. Wiehl of May, Johnson, Doyle & Becker, P.C., Sioux Falls, for appellants.\\nJohn H. Zimmer of Zimmer, Richter & Duncan, Parker, for appellees.\", \"word_count\": \"1554\", \"char_count\": \"9373\", \"text\": \"JOHNSON, Circuit Judge.\\nThis is an appeal from a judgment denying probate of a will. We affirm.\\nIn 1974, Lester I. Jones executed a last will and testament bequeathing his property to a niece, two nephews, a grandniece and a grandnephew. The will specifically disinherited another nephew.\\nOn November 6, 1979, Jones executed another will. In this instrument Jones revoked all prior wills, disinherited all of his relatives (appellees), bequeathed his farm land and irrigation equipment to appellant William Harold Hansen, bequeathed his bank stock, cash, silver bars, and coin collection to Centerville banker John Thompson, and provided an order of priority in which assets would be subject to death taxes and expenses of administration.\\nJones died on January 6, 1980. The 1979 will was offered for probate and a will contest resulted. Following a trial of the issues, the trial court determined that the 1979 will was a product of undue influence exercised upon Jones by appellant and Thompson and denied probate.\\nOn appeal this court reversed the trial court's finding that appellant had a predisposition to exert undue influence upon Jones. Matter of the Estate of Jones, 320 N.W.2d 167 (S.D.1982). The case was remanded to the trial court for rehearing on the question of whether the 1979 will could be given partial validity under the guidelines set forth in In re Estate of Lloyd, 85 S.D. 657, 189 N.W.2d 515 (1971).\\nAfter hearing additional evidence, including the opinion testimony of two South Dakota probate attorneys, the trial court again denied probate of the entire 1979 will. The court found (1) that it was not possible to know to what extent the 1979 will was tainted by Thompson's undue influence; (2) that it was not practicable to ascertain what provisions of the will were the product of undue influence and what provisions, if any, were free from it; and, (3) that the bequest to Hansen in the 1979 will, if given validity, would defeat the manifest intent of the testator contained in the 1974 will, interfere with the testator's general scheme of distribution, and work an injustice to the other heirs.\\nAppellant contends that the findings of fact are clearly erroneous. Additionally, appellant claims that the trial court abused its discretion by allowing the opinion testimony of the probate attorneys, and by denying his motions for continuance and his offered rebuttal testimony.\\nThe test for determining partial validity of a will was set forth by this court in In re Estate of Lloyd, quoting 57 Am.Jur. Wills \\u00a7 366, supra:\\n[T]he general rule is that parts of a will may be held valid notwithstanding other parts are invalid on account of undue influence exercised upon the testator, provided the parts so affected are separable so that the will remains intelligible in itself if the invalid parts are deleted upon probate. In other words, the valid portions of the will may stand and be admitted to probate, although other parts are denied probate, or are set aside, as obtained through undue influence, unless the provisions are so interdependent that the valid cannot be separated from the invalid without defeating the general intent of the testator. Id. 189 N.W.2d at 520, 521.\\nFor appellant to prevail on the issue of partial validity, he must prove by a preponderance of the evidence that Jones intended to revoke his 1974 will and replace it with the 1979 will, independent of any undue influence by Thompson.\\nAppellant presented testimony from various witnesses that Jones expressed an intent to disinherit his relatives from as early as the mid-1950's until a period after the 1979 will was executed. On the other hand, in 1974, Jones executed a will leaving everything to family members. In December of 1978, Jones gave the 1974 will to his nephew for safe keeping, where it remained until after Jones' death. The trial court properly concluded that Jones, while still in good health in late 1978, intended to leave his property to his relatives, except nephew Jerry Rohl. In 1979, Jones' health deteriorated considerably and he lost some sixty pounds. For years Jones had told various people that the Thompsons were never to get his bank stock. Yet in his November 1979 will Jones left his bank stock, coin collection, and silver bars to Thompson.\\nThe trial court was unable to determine to what extent the undue influence of Thompson affected the 1979 will and deter mined that it was not practicable to separate the valid from the invalid. In other words, the court found that appellant failed to prove that Jones would have revoked his 1974 will and disinherited his relatives, absent the undue influence of Thompson.\\nIn In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970), this court stated:\\nIn applying the clearly erroneous standard we must bear in mind that our function is not to decide factual issues de novo. The question for the appellate court is not whether it would have made the same findings the trial court did, but whether on the entire evidence it is left with a definite and firm conviction that a mistake has been committed. Id. 181 N.W.2d at 459.\\nHaving reviewed the entire record of both trials with due regard for the trial court's ability and opportunity to weigh the credibility of the witnesses, we are unable to say that the trial court's findings on this issue are clearly erroneous.\\nOver objection by appellant, the trial court received opinion evidence from attorney witnesses Ross H. Oviatt and Lloyd J. Mahan on the subject of partial validity. Mr. Oviatt has been an attorney since 1941. During the past ten years about thirty to forty percent of his law practice has involved probate matters. He has served as a regent and as a member of the Board of Governors in the American College of Probate Council. Mr. Mahan, at the time of trial, had been a South Dakota lawyer for thirty-three years. He estimated that he had spent about three hundred hours per year during the last ten years on estate planning and estate administration. During his legal career, he had also handled will contests as a probate judge.\\nThe experts testified in substance that the entirety of the 1979 will was tainted by the undue influence of Thompson and that the invalid provisions were inseparable from the valid provisions. They further testified that the 1979 will, excluding the bequest to Thompson, could not be probated without defeating Jones' intent and without injustice to the other heirs. Appellant contends that the testimony amounted to conclusions of law because it invaded the province of the court.\\nThe general rule relating to the scope of expert testimony is found in SDCL 19-15-2:\\nIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience', training, or education, may testify thereto in the form of an opinion or otherwise.\\nThe propriety of allowing opinion testimony on questions of law is discussed in 31 Am.Jur.2d Expert and Opinion Evidence \\u00a7 69 (1967):\\nThe rule prohibiting a witness from presenting his opinion on a question of law is applicable to both expert and non-expert witnesses_ But in cases submitted to a court without a jury, the rule excluding opinion testimony involving questions of law may be relaxed since in such case the court must decide questions both of fact and of law.\\nThe testimony presented no doubt assisted the trier of fact in understanding the relationship of the various will provisions and their effect upon one another. At the same time the court was free to reject the testimony if it was unreasonable. We are unable to say that the trial court abused its discretion by receiving this testimony.\\nFinally, appellant claims prejudicial error because the trial court denied his offered rebuttal testimony. Appellant requested a continuance in order to recall attorney Richard Hagerty who drafted the 1979 will for Jones. If allowed to testify, Hagerty would have stated that, without any direction from Jones or anyone else, he drafted the 1979 will giving preferred status to the bank stock. Such testimony, argues appellant, would have established that Thompson's undue influence could not have tainted that portion of the 1979 will.\\nConsidering the offered testimony together with Mr. Hagerty's prior testimony in both trials, we are unable to see how this additional evidence would have changed the result. Attorney Hagerty testified at length about conversations with Jones concerning the 1979 will. The offered rebuttal testimony was largely cummulative. We are unable to say the trial court abused its discretion by denying a continuance. Appellant has failed to demonstrate that a substantial right has been affected and that the error was prejudicial. SDCL 19-9-3, K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529 (S.D.1983).\\nThe judgment is affirmed.\\nFOSHEIM, C.J., and WOLLMAN, MORGAN and HENDERSON, JJ., concur.\\nJOHNSON, Circuit Judge, sitting for DUNN, Retired Justice, disqualified.\"}"
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diff --git a/sd/10657217.json b/sd/10657217.json
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+"{\"id\": \"10657217\", \"name\": \"Virginia SCHWARTZLE, Plaintiff and Appellant, v. The AUSTIN COMPANY and Electric Construction Company, Defendants and Appellees\", \"name_abbreviation\": \"Schwartzle v. Austin Co.\", \"decision_date\": \"1988-09-14\", \"docket_number\": \"No. 16071\", \"first_page\": \"69\", \"last_page\": \"73\", \"citations\": \"429 N.W.2d 69\", \"volume\": \"429\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:48:42.609612+00:00\", \"provenance\": \"CAP\", \"judges\": \"WUEST, C.J., and MORGAN and HENDERSON, JJ., concur.\", \"parties\": \"Virginia SCHWARTZLE, Plaintiff and Appellant, v. The AUSTIN COMPANY and Electric Construction Company, Defendants and Appellees.\", \"head_matter\": \"Virginia SCHWARTZLE, Plaintiff and Appellant, v. The AUSTIN COMPANY and Electric Construction Company, Defendants and Appellees.\\nNo. 16071.\\nSupreme Court of South Dakota.\\nConsidered on Briefs May 27, 1988.\\nDecided Sept. 14, 1988.\\nRehearing Denied Oct. 20, 1988.\\nCarleton R. Hoy, James L. Hoy of Hoy & Hoy, Sioux Falls, for plaintiff and appellant.\\nComet H. Haraldson of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendants and appellees.\", \"word_count\": \"2594\", \"char_count\": \"16021\", \"text\": \"MILLER, Justice.\\nIn this appeal we hold that the trial court did not abuse its discretion in dismissing a civil action because of plaintiff's failure to prosecute.\\nFACTS\\nA chronology of events best articulates what occurred in this action.\\n1972\\nOn October 16, 1972, plaintiff injured her right leg and knee when she fell into an excavation trench as she was crossing a lot to enter her place of employment at the John Morrell & Company plant in Sioux Falls, South Dakota.\\n1974\\nPlaintiff filed a claim for worker's compensation with the South Dakota Department of Labor.\\n1975\\nPlaintiff began seeing an orthopedic surgeon, Dr. Nice, who, on September 22, 1975, wrote to her former attorney informing him that plaintiff had a 15% impairment of her right lower extremity.\\nPlaintiff commenced this action against the general contractor, The Austin Company, and the subcontractor, Electric Construction Company, by serving a summons and complaint on October 10, 1975, shortly before the expiration of the statute of limitation.\\n1978\\nPlaintiff filed the summons and complaint with the Minnehaha clerk of courts on April 14, 1978, together with a notice of trial stating that the action would be brought on for trial in the term of court beginning May 1, 1978.\\nThe record reflects that during 1978 there was activity between the two defendants which resulted in an order granting partial summary judgment in favor of The Austin Company on November 15,-1978.\\n1979-1981\\nThe court file reflects no activity.\\n1982\\nOn February 8, 1982, Electric Construction Company served a set of interrogatories upon plaintiff.\\n1983\\nOn December 8, 1983, the circuit court (Judge Heege) issued an order to show cause why the case should not be dismissed for want of prosecution since there had been no activity for more than a year. SDCL 15-11-11.\\n1984\\nThe order to show cause hearing was held on January 30, 1984. In his affidavit opposing dismissal, plaintiffs former attorney explained that the delay in the case was due to a) waiting for plaintiffs job status to stabilize so her wage claim would not be speculative, b) counsel's absence from the state from September 1983 through mid-January 1984 due to his sons' serious personal injuries, and c) counsel's duties as a part-time state's attorney. Counsel said that he had convinced plaintiff that now was the time to bring the matter to a close. He also said that his schedule allowed him to \\\"devote considerable time\\\" to the matter in an attempt to close it as soon as possible.\\nOn January 31, 1984, Judge Heege filed an order dismissing the action without prejudice for want of prosecution effective March 30, 1984, unless further action was taken. On March 3, plaintiff applied to the court for a further extension. On May 22, 1984, Judge Heege filed an order stating that the action had been erroneously dismissed without prejudice and ordering that the case be reopened \\\"provided that the court will dismiss said action without prejudice for want of prosecution on November 1,1984, if no further action is taken by that date.\\\"\\nThree days before the November 1, 1984, deadline plaintiff served her answers to the interrogatories that Electric Construction Company had served on her on February 8, 1982. Two days later, October 31, 1984, plaintiff served a set of interrogatories on Electric Construction Company.\\n1985\\nElectric Construction Company answered plaintiff's interrogatories on February 14, 1985.\\nElectric Construction Company took plaintiff's deposition on October 31, 1985. On November 12, 1985, new counsel for plaintiff was present at her deposition and filed a notice of appearance.\\n1986\\nOn December 22,1986, Electric Construction Company deposed Robert Erkonen, an economist hired by new counsel. Erkonen had completed his final report in May 1986. Plaintiff, through counsel, then wrote defendants on December 29, 1986, outlining her settlement demand.\\n1987\\nOn January 28, 1987, plaintiff served a second set of interrogatories on Electric Construction Company.\\nPlaintiff took the deposition of her orthopedic surgeon, Dr. Nice, on April 22, 1987. This deposition was taken for the purposes of her worker's compensation case, which was concluded in July 1987.\\nOn June 10, 1987, Electric Construction Company answered the interrogatories that plaintiff served on January 28, 1987. On July 29, 1987, the defense filed a motion for summary judgment and a motion to dismiss for failure to prosecute. SDCL 15-11-11, 15-6-41(b). Plaintiffs former and new attorneys filed affidavits in opposition to the motion for summary judgment.\\nAfter giving plaintiff ten days to produce probative facts showing there was an agreement between counsel to stay the prosecution of the civil action pending resolution of plaintiff's worker's compensation case, the trial court, (Judge Amundson) dismissed plaintiff's complaint on November 3, 1987. In its letter decision the court noted that there had been nine to ten years of inactivity prior to the first court ordered dismissal and at least two years of inactivity after the reinstatement. The court further said:\\nThe court record, discloses that the plaintiff had a disability rating as early as 1975, an economist was not retained until ten years after the case was served, no discovery was completed until over ten years had elapsed and one dismissal motion was averted by plaintiff approximately eight years after the case was filed. In other words, the plaintiff has allowed this case to go unattended for an excessive amount of time. It is a complete mystery to the court how a motion for trial can be filed in 1978 with nothing further being done by plaintiff to bring the matter on for trial for the next nine years. These facts clearly show that there has been a failure on the part of the plaintiff to prosecute this case.\\nDECISION\\n\\\"For failure of the plaintiff to prosecute . a defendant may move for dismissal of an action or of any claim against him.\\\" SDCL 15-6-41(b). In addition, a trial court may dismiss civil cases \\\"where there has been no activity for one year, unless good cause is shown to the contrary.\\\" SDCL 15-11-11.\\nWhen reviewing a trial court's grant or denial of a motion to dismiss for failure to prosecute, this court determines whether the trial court abused its discretion. Duncan v. Pennington County Housing Auth., 382 N.W.2d 425 (S.D.1986). The power to dismiss should be exercised cautiously and granted only in cases of an unreasonable and unexplained delay in prosecution. Id. The mere passage of time is not the test; rather, the test is whether, \\\"under all the facts and circumstances of the particular case, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude.\\\" Id. at 427.\\nThe plaintiff has the burden to proceed with his action. Potts v. Starr, 76 S.D. 91, 72 N.W.2d 924 (1955). A defendant has the duty to meet the plaintiffs \\\"step by step.\\\" Holmoe v. Reuss, 403 N.W.2d 30 (S.D.1987). As stated in Hol-moe:\\n'It is true that the defendant may bring about a trial of the case, but he is under no legal duty to do so. His presence in the case is involuntary, and his attitude toward it is quite different from that of the plaintiff; he is put to a defense only, and can be charged with no neglect for failing to do more than meet the plaintiff step by step . '\\nHolmoe, supra, 403 N.W.2d at 31, quoting Fox et al. v. Perpetual National Life Insurance Company, 273 N.W.2d 166 (S.D.1978). Delays granted at a defendant's request, however, will bar dismissal for failure to prosecute. Chicago and Northwestern Railway Co. v. Bradbury, 80 S.D. 610, 129 N.W.2d 540 (1964).\\nIn addition, the filing of a motion to dismiss for failure to prosecute may be granted despite the fact that a plaintiff is currently prosecuting his claim. Simkens v. Bechtol, 86 S.D. 187, 192 N.W.2d 731 (1971). In Simkens this court ordered dismissal of an action where service of garnishment and a request for a trial date followed eight years of inactivity. Moreover, it should be noted that \\\"present counsel's diligence [will] not correct prior derelictions.\\\" Duncan, supra, 382 N.W.2d at 428, wherein eight years had elapsed since the action was initiated and more than five years had elapsed since all the information was available for trial.\\nWe observe here that fifteen years have elapsed since plaintiff was injured. Twelve years have elapsed since the summons and complaint were served. When Judge Amundson entered his judgment of dismissal, three and one half years had elapsed since Judge Heege reopened the case.\\nPlaintiff concedes that there was a long period of inactivity prior to the 1983 trial court order to show cause why the matter should not be dismissed for lack of prosecution. Plaintiff argues that Judge Heege's order reopening the case \\\"pardons\\\" the prior inactivity. Further, plaintiff argues that she has proceeded with due diligence and promptitude since the issuance of the order reopening the case. She points to the facts that she served interrogatories and hired new counsel who in turn hired an economist, initiated settlement negotiations, served a second set of interrogatories, and settled her worker's compensation case.\\nDefendants argue that the dismissal must be viewed in .light of the entire life of the case. They argue that even after Judge Heege allowed the action to proceed in 1984, plaintiff had a \\\"notable paucity of action\\\" and has offered no explanation for any of the delay.\\nThe Supreme Court of North Dakota faced a somewhat similar factual situation in Ternes v. Knispel, 374 N.W.2d 879 (N.D.1985). Plaintiff Temes was injured in 1975. His South Dakota attorney (Mines) commenced suit in 1977. The defendant moved to dismiss for failure to prosecute under N.D.R.Civ.P. 41(b) (identical to SDCL 15 \\u2014 6\\u201441(b)) in March 1981 after three and a half years of inactivity. Mines resisted by affidavit, stating he had been unable to ascertain total damages until August 1980 and stating his current ability to conclude the suit.\\nThe trial court denied the motion to dismiss and admonished Mines to diligently prosecute the action. From March 1981 to May 1984, plaintiff deposed defendant and retained experts. Mines transferred the case to North Dakota counsel in May 1984 who engaged in settlement negotiations. Plaintiff's letter accepting defendant's offer crossed in the mail with defendant's letter withdrawing the offer and moving to dismiss for failure to prosecute.\\nIn upholding the dismissal for failure to prosecute the North Dakota Supreme Court noted:\\nWe affirm the trial court's decision for a number of reasons. Ternes [plaintiff] had been warned to prosecute his case with dispatch, a direction he apparently chose to ignore despite his pledge to proceed with alacrity. Lack of prosecution following an instruction to act assiduously argues strongly for dismissal. California Molasses Co. v. C. Brewer & Co., 479 F.2d 60 (9 Cir.1973); see generally Wright & Miller, Federal Practice and Procedure: Civil \\u00a7 2370, pp. 205-206. Ternes provided no explanation or excuse for his lack of prosecution, which might have militated against dismissal. See Cherry v. Brown-Frazier-Whitney, 548 F.2d 965 (D.C.Cir.1976). Finally, Knispel [defendant] was prejudiced by Ternes' prolonged delay in bringing this matter to trial. The trial judge was legitimately concerned over the availability of witnesses and the reliability of their memories.\\n374 N.W.2d at 881. The court also rejected plaintiff's argument that the parties had been engaged in settlement negotiations, the case was on the trial calendar, and that plaintiff was ready for trial, noting that plaintiff took seven years after instituting suit before undertaking serious negotiations. The trial court's dismissal was based solely, however, on Mines' failure to prosecute and not on the manner in which North Dakota counsel represented plaintiff after Mines transferred the case to him.\\nBased on our clear precedent and further adopting the rationale of the North Dakota Court in Ternes, we conclude that the trial court did not abuse its discretion and properly dismissed plaintiff's complaint.\\nAFFIRMED.\\nWUEST, C.J., and MORGAN and HENDERSON, JJ., concur.\\nSABERS, J., dissents.\\n. Appellees' brief incorrectly states that plaintiff filed requests for admissions in April 1978 (AB 2, 4). The Austin Company sought the admissions from Electric Construction Company.\\n. Plaintiff's appellate counsel did not represent her before the circuit court.\"}"
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+"{\"id\": \"10662355\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Harold PICOTTE, Defendant and Appellant\", \"name_abbreviation\": \"State v. Picotte\", \"decision_date\": \"1987-12-23\", \"docket_number\": \"No. 15631\", \"first_page\": \"881\", \"last_page\": \"882\", \"citations\": \"416 N.W.2d 881\", \"volume\": \"416\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:35:55.534426+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Harold PICOTTE, Defendant and Appellant.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Appellee, v. Harold PICOTTE, Defendant and Appellant.\\nNo. 15631.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Nov. 20, 1987.\\nDecided Dec. 23, 1987.\\nRoger A, Tellinghuisen, Atty. Gen., and Thomas Harmon, Asst. Atty. Gen., Pierre, for plaintiff and appellee.\\nSteven G. Haugaard of Hunt and Hau-gaard Law Office, Sioux Falls, for defendant and appellant.\", \"word_count\": \"279\", \"char_count\": \"1827\", \"text\": \"PER CURIAM.\\nA jury convicted appellant Harold Picotte (Picotte) of distribution of more than one ounce but less than one-half pound of marijuana for consideration, a class 6 felony. SDCL 22-42-7. In this direct appeal from his conviction Picotte contends that his court-appointed attorney provided him with ineffective assistance of counsel. We affirm.\\nOrdinarily, ineffective assistance of counsel claims will not be considered on direct appeal. State v. Aliberti, 401 N.W.2d 729 (S.D.1987). The preferable method of presenting an allegation of ineffective assistance of counsel is through ha-beas corpus proceedings, in part, because a sufficient record can be made to enable proper appellate review. State v. Anderson, 387 N.W.2d 544 (S.D.1986).\\nOn direct appeal the review of ineffective assistance of counsel claims is limited to determining whether the representation was so casual that the trial record evidences a manifest usurpation of an appellant's constitutional rights. Luna v. Solem, 411 N.W.2d 656 (S.D.1987). We have examined the record and find that Picotte's claims of ineffective assistance do not rise to the level of plain error. State v. Aliber-ti, supra. Therefore we will not review Picotte's ineffective assistance of counsel claims under the test presented in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Luna v. Solem, supra.\\nThe judgment of conviction is affirmed.\"}"
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+"{\"id\": \"10663418\", \"name\": \"Julie Marie JONES, Plaintiff and Appellee, v. Mark Edward JONES, Defendant and Appellant\", \"name_abbreviation\": \"Jones v. Jones\", \"decision_date\": \"1988-05-18\", \"docket_number\": \"Nos. 15509, 15734\", \"first_page\": \"517\", \"last_page\": \"520\", \"citations\": \"423 N.W.2d 517\", \"volume\": \"423\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:29:20.036368+00:00\", \"provenance\": \"CAP\", \"judges\": \"WUEST, C.J., and SABERS and MILLER, JJ., concur.\", \"parties\": \"Julie Marie JONES, Plaintiff and Appellee, v. Mark Edward JONES, Defendant and Appellant.\", \"head_matter\": \"Julie Marie JONES, Plaintiff and Appellee, v. Mark Edward JONES, Defendant and Appellant.\\nNos. 15509, 15734.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Oct. 9, 1987.\\nDecided May 18, 1988.\\nRehearing Denied June 22, 1988.\\nDavid Alan Palmer of Strange and Palmer, Sioux Falls, for plaintiff and appellee.\\nKaren L. Crew of Crew and Crew, and Andrea R. Kuehn, of Crew and Crew, Sioux Falls, for defendant and appellant.\", \"word_count\": \"1794\", \"char_count\": \"10883\", \"text\": \"MORGAN, Justice.\\nIn appeals # 15509 and # 15734, Mark Edward Jones (father) appeals from decisions of the trial court giving physical custody of the parties' daughter to Julie Marie Jones (mother). We have consolidated the appeals for purposes of this opinion and affirm on both issues.\\nFACTS\\nFather was 21 years old and mother was 19 years old at the time of their marriage. Their daughter, Jennifer, was bom on December 14,1984. The parties lived in Sioux Falls, where father was a mechanic and mother worked at Litton Industries and at Albertson's Grocery Store. During the marriage, primary responsibility for child care rested with mother, although father assisted with child care when mother worked nights.\\nIn October of 1985, mother, dissatisfied with the marriage, moved out of the family home and took Jennifer with her. Mother testified that the primary reasons for the move were father's bad temper and his preoccupation with cars and television. Mother and Jennifer lived in the home of some friends for about a month before they settled into an apartment of their own. Mother continued to work at Litton until Litton laid off its assembly workers in January of 1986. She then found a job at a dry cleaners, but quit the job in anticipation of being called back by Litton. When the job at Litton failed to materialize, she obtained unemployment insurance benefits and began taking night classes at the National College of Business.\\nFollowing the separation, mother dated several men and had sexual relations with two of them. She believed that dating fulfilled her need for adult companionship. Mother admitted that she used marijuana a few times and she once went with a man to obtain some marijuana. Father also admitted using marijuana during the parties' marriage. After mother moved into her own apartment, one of her female friends roomed with her. For about a month the roommate's boyfriend also lived in the apartment. There was some drinking and drug use in the apartment at that time, but it was evidently not in the presence of Jennifer.\\nFather, who maintained steady employment as a mechanic during the separation, cared for Jennifer during his scheduled visitation periods and on other occasions upon mother's request. He assisted in potty training Jennifer and began taking her to church. On one occasion, father observed what appeared to be cigarette burns on Jennifer's eye and ear. Father testified that a doctor examined Jennifer and contacted the child protection agency. After monitoring the situation, the agency found no reason to take any action. During the separation, father and several of his friends tried to keep track of mother's activities to prove that she is an unfit mother. Once father put Jennifer in the car at 5:00 a.m. and drove across town to see if mother was at her boyfriend's house. In another incident, father gave mother a letter in which he stated, \\\"I, Mark Jones, being of confused mind and body, do hereby leave to my wife my life insurance, car and retirement plan_\\\" In the letter he also declared an intent to give away other items of personal property and stated that he was sorry if he hurt anyone.\\nThe trial court granted each party a divorce and gave father and mother joint legal custody of Jennifer; actual physical custody of Jennifer was given to mother. The trial court stated that many of the examples of mother's conduct were \\\"unacceptable as parental conduct,\\\" but the court attributed them to her immaturity. Despite this, the court found that from Jennifer's birth until the divorce trial, mother was primarily responsible for the daily supervision, organization, and care of the child, \\\"all of which she performed at a high level.\\\" Further, the trial court found that until the separation of the parties, father did not display an interest in the child's care. The trial court concluded that Jennifer's best interests would be served by awarding physical custody to mother. The trial court also intended to request that a court services officer monitor the custodial care of the child.\\nISSUE I (Appeal # 15509)\\nThe first issue raised by father is whether the trial court abused its discretion by awarding actual physical custody of Jennifer to mother. Father argues that mother's continual movement between jobs, \\\"nomadic lifestyle,\\\" sexual conduct, and association with persons of questionable reputation are detrimental to Jennifer, and that the child's best interests would be served by placing her with father.\\nThe paramount consideration in deciding the issue of child custody is the best interests of the child. SDCL 30-27-19. The trial court has broad discretion in awarding custody of minor children, and the trial court's decision will be reversed only upon a clear showing of an abuse of that discretion. Lindley v. Lindley, 401 N.W.2d 732 (S.D.1987); Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250 (S.D.1984).\\nAfter a careful review of the record, we conclude that the trial court did not abuse its discretion in awarding physical custody of Jennifer to mother. Neither parent in this case is a model of maturity. It was undisputed, however, that mother provided most of the care and parenting during the marriage, while father did not take much of an interest in Jennifer until after the separation. Furthermore, the care which mother gave to Jennifer was high quality care. The record reflects that mother is a hard worker, holding down two jobs at one point. As for her movement between jobs, mother cannot be faulted for the periodic layoffs of Litton's assembly workers. Although mother's social activity during the separation is troubling, father failed to present any evidence showing an adverse effect upon Jennifer. Both parties admitted some use of marijuana, while other evidence, such as the letter to mother referred to above, raises questions about father's parental ability. The trial court's decision, based on its first hand opportunity to gauge the credibility and emotional stability of the parties, must be given the appropriate deference mandated under our scope of review. Saint-Pierre, supra; Schmitz v. Schmitz, 351 N.W.2d 143 (S.D.1984). Since this is a very close case, under our scope of review we would be compelled to affirm the trial court whether it had found for mother or father. Accordingly, we affirm in appeal # 15509.\\nISSUE II (Appeal # 15734)\\nShortly after appeal #15509 was filed, father sought a change in custody because of mother's move from Sioux Falls to Wa-tertown and because of a case of diaper rash suffered by Jennifer. Father claimed that these events constituted a substantial and material change of circumstances since the divorce. The trial court disagreed; it permitted mother to move to Watertown and retain physical custody of Jennifer. Father argues that the trial court abused its discretion by denying his motion for a change of custody.\\nA parent seeking modification of child custody has the burden of proving 1) that there has been a substantial and material change of circumstances since the decree of divorce was entered, and 2) that the welfare and best interests of the child require the modification. Larson v. Larson, 350 N.W.2d 62 (S.D.1984). The mere fact that conditions have changed since the entry of the decree is not sufficient in itself to warrant modification. Huckfeldt v. Huckfeldt, 82 S.D. 344, 146 N.W.2d 57 (1966).\\nHere, mother planned to move into her parents' home in Watertown. In reaching its decision, the trial court ordered a home study to be done on their residence. The study indicated that the home was neat and clean, that it provided a safe environment for the child, and that mother's par ents were very supportive of her. In addition, mother planned to attend vocational school in Watertown to acquire new skills. As for the diaper rash, the evidence is conflicting as to its cause. Officials of the Department of Social Services, who were informed of the rash, evidently did not think that it was a serious problem since they took no action, to remove Jennifer from mother's custody. Under these circumstances, we conclude that the trial court did not err in denying father's motion for a change in custody.\\nATTORNEY FEES\\nFinally, mother has filed a petition for attorney fees on appeal. The petition is accompanied by a verified, itemized statement of costs incurred and legal services rendered, as required by Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985). After considering the factors set forth in Senger v. Senger, 308 N.W.2d 395 (S.D.1981), we hold that mother is entitled to attorney fees of $1,000, which cover both appeals.\\nAffirmed.\\nWUEST, C.J., and SABERS and MILLER, JJ., concur.\\nHENDERSON, J., dissents.\"}"
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+"{\"id\": \"10667082\", \"name\": \"Marlys SCHAACK, Plaintiff and Appellee, v. Paul SCHAACK, Defendant and Appellant\", \"name_abbreviation\": \"Schaack v. Schaack\", \"decision_date\": \"1987-11-04\", \"docket_number\": \"No. 15555\", \"first_page\": \"818\", \"last_page\": \"823\", \"citations\": \"414 N.W.2d 818\", \"volume\": \"414\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:44:54.301317+00:00\", \"provenance\": \"CAP\", \"judges\": \"MORGAN, SABERS and MILLER, JJ., concur.\", \"parties\": \"Marlys SCHAACK, Plaintiff and Appellee, v. Paul SCHAACK, Defendant and Appellant.\", \"head_matter\": \"Marlys SCHAACK, Plaintiff and Appellee, v. Paul SCHAACK, Defendant and Appellant.\\nNo. 15555.\\nSupreme Court of South Dakota.\\nNov. 4, 1987.\\nArthur M. Hopper, Austin, Hinderaker, Hackett & Hopper, Watertown, for plaintiff and appellee.\\nRoger W. Ellyson, Ellyson Law Offices, Watertown, for defendant and appellant.\", \"word_count\": \"3253\", \"char_count\": \"19253\", \"text\": \"WUEST, Chief Justice.\\nPaul M. Schaak (husband) appeals from a judgment and decree of separate maintenance dismissing with prejudice his counterclaim for divorce. We affirm.\\nHusband is 73 years old. He is hard of hearing and has a severe case of epilepsy which causes seizures and blackouts. He is described as a slow thinker and communicator, but a man who knows what he is talking about. Through pension and retirement programs his income is approximately $1,091 per month.\\nMarlys Schaak (wife) is 48 years old. In twelve years at the Redfield State Hospital she completed the fifth grade. She earns approximately $31 per week babysitting.\\nThe parties were married in 1971. They lived in a home husband completed building after the marriage. Throughout the marriage the couple borrowed money to pay such expenses as taxes, expenses from automobile accidents, and doctor bills.\\nIn January 1981, on the advice of doctors, husband began living in a nursing home where his medication for epilepsy could be carefully monitored and controlled. Wife visited him in the nursing home every other Sunday until he told her not to return. She does not drive so her ex-husband drove her to the nursing home twice. She testified that husband always visited with her and was not upset during the visits. She did swear at him, though, when he called her at midnight to have her come and release him from the nursing home. She denied that her visits were motivated by a need for money. She did obtain a court order, however, that enabled her to receive $214 per month of his funds.\\nThe nursing home administrator handled husband's finances during the four years that he lived in the home. He testified that wife infrequently visited husband during the week. He knew that some of the visits were for money since he wrote the checks. Although he did not see what upset husband, the administrator did see husband leave the home upset \\\"a couple of times\\\" while wife was still visiting. He was also aware that husband's seizure activity increased when he was upset after visits, but he could not remember whether the visits were from wife.\\nIn December 1984, husband returned home for an overnight visit. When he left the house in the evening husband told wife that he would be back, but he did not return. Instead he began living with an elderly woman. Both he and this woman had a paid caretaker who testified that she once overheard a telephone conversation where wife swore at husband, threatened to rip up two of his checks and sell his house. Wife denied such a conversation, but admitted swearing at him when he refused to come back to live with her or to give her some money.\\nWife sold the home in April 1985. She testified that she told husband that she would not sell it if he would come back and live with her. When she sold the home wife testified that on the advice of her attorney she signed the deed as a single person. She used all but $13 of the $11,900 proceeds from the sale to pay the parties' outstanding debts.\\nAfter wife sold the house she lived with her ex-husband for fifteen months. She testified that she did so because she had no other place to go. They did not have a sexual relationship and she worked to pay for her food. By the time of the court trial, though, she was living with a daughter.\\nWife brought suit seeking a decree of separate maintenance and a reasonable amount of money for support. Husband counterclaimed for a divorce on the grounds of extreme mental cruelty and irreconcilable differences. The trial court concluded that wife was entitled to a decree of separate maintenance on the grounds of extreme cruelty and willful desertion. The court found that wife's actions toward husband did not constitute extreme cruelty and dismissed his counterclaim. Husband contends that the trial court erred in not granting him an absolute divorce on the grounds of extreme cruelty.\\nExtreme cruelty is defined as \\\"the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.\\\" SDCL 25-4-4, 25-4-2. In a marital setting, the definition of extreme cruelty differs according to the personalities of the parties involved. Brandsma v. Brandsma, 318 N.W.2d 318 (S.D.1982).\\nWhat might be acceptable and even commonplace in the relationship between rather stolid individuals could well be extraordinary and highly unacceptable in the lives of more sensitive or high-strung husbands and wives. Family traditions, ethnic and religious backgrounds, local customs and standards and other cultural differences all come into play when trying to determine what should fall within the parameters of a workable marital relationship and what will not.\\nPochop v. Pochop, 89 S.D. 466, 467-68, 233 N.W.2d 806, 807 (1975). \\\"We must view the evidence in light of the full context of the marriage and not in light of isolated incidents.\\\" Rykhus v. Rykhus, 319 N.W.2d 167 (S.D.1982). Consequently, the factual conditions that this court has reviewed to determine whether extreme cruelty existed in a marital setting have been widely varied. Compare Pochop, supra; Palmer v. Palmer, 281 N.W.2d 263 (S.D.1979); Rhykus, supra; Gassman v. Gassman, 296 N.W.2d 518 (S.D.1980).\\nIn addition, in Pochop, supra, we outlined the framework for appellate review of cases where extreme cruelty is at issue:\\nAn appeals court is in a position quite removed from the personalities and the setting of the marriage under attack and must necessarily rely on the judgment of the trial judge who has the benefit of hearing and seeing the principal parties, the children, the neighbors and other witnesses and who knows [sic] the local standards far better usually than can the members of this court. We have recently again said that:\\n\\\"In cases tried to the court without a jury, findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity the trial court had to judge the credibility of the witnesses.\\\" Masek v. Masek, 1975, 89 S.D. 62, 228 N.W.2d 334.\\n89 S.D. at 467-68, 233 N.W.2d at 807.\\nIn this case we defer to the judgment of the trial court for two reasons. First, husband had great difficulty in testifying and, from our review of the cold record, limited ability to answer the questions asked. Therefore, the trial court allowed wide latitude in questioning husband and the trial court's assessment of credibility and demeanor takes on greater importance. See Pochop, supra.\\nThe second reason why we defer to the trial court in this case is that virtually all of the trial testimony was controverted. Husband testified below and now argues that four basic facts support a finding of extreme cruelty: Wife lived with another man while being married to husband; wife sold all of his property without his knowledge or consent; all contacts with wife in the past five years resulted in arguments which increased his seizure activity; and, wife's only interest in husband is for his money.\\nWife, however, disputed these claims or the circumstances surrounding them. Husband, she claimed, gave away part of his property prior to entering the nursing home. She was forced to sell their home after husband began living with the other woman, refused to live with wife, and their joint debts needed payment. Husband's refusal to return to her coupled with her limited earning capacity forced the living arrangements with her ex-husband. She disputed husband's claim that all their contact resulted in arguments and testified that she would willingly live with husband if he would return.\\nWhere findings of the trial court are based on conflicting testimony, as they are in this case, we will not disturb them on appeal. Matter of Estate of Joseph, 304 N.W.2d 419 (S.D.1981). Therefore, having thoroughly reviewed the record in light of our prior holdings on the topic, we cannot say that the trial court was clearly erroneous in finding that wife's actions did not constitute extreme cruelty. Pochop, supra.\\nThe judgment is affirmed.\\nMORGAN, SABERS and MILLER, JJ., concur.\\nHENDERSON, J., dissents.\"}"
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+"{\"id\": \"10667595\", \"name\": \"Leonard KOST, Petitioner and Appellant, v. STATE of South Dakota, Respondent and Appellee\", \"name_abbreviation\": \"Kost v. State\", \"decision_date\": \"1984-02-01\", \"docket_number\": \"No. 14186\", \"first_page\": \"83\", \"last_page\": \"86\", \"citations\": \"344 N.W.2d 83\", \"volume\": \"344\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T02:20:23.936224+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"Leonard KOST, Petitioner and Appellant, v. STATE of South Dakota, Respondent and Appellee.\", \"head_matter\": \"Leonard KOST, Petitioner and Appellant, v. STATE of South Dakota, Respondent and Appellee.\\nNo. 14186.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Nov. 28, 1983.\\nDecided Feb. 1, 1984.\\nScott C. Petersen of McFarland, Petersen & Nicholson, Sioux Falls, for petitioner and appellant.\\nMark Smith, Asst. Atty. Gen., Pierre, for respondent and appellee; Mark V. Meier-henry, Atty. Gen., Pierre, on brief.\", \"word_count\": \"1621\", \"char_count\": \"9974\", \"text\": \"MORGAN, Justice.\\nThis appeal arises from a petition for post-conviction relief filed by appellant Leonard Kost (Kost). The trial court denied relief and Kost appeals. We affirm.\\nOn May 4, 1978, Kost was found guilty of manslaughter in the first degree by a jury. Kost admitted he shot Josephine Graber (victim) four times with a .22 caliber rifle. Judgment was entered and sentence was imposed by Judge Ernest W. Hertz. Judge Hertz sentenced Kost to life imprisonment in the South Dakota State Penitentiary. On direct appeal, this court affirmed Kost's conviction. State v. Kost, 290 N.W.2d 482 (S.D.1980). On or about March 19, 1981, Kost filed his first petition for post-conviction relief alleging he was denied effective assistance of counsel. Subsequent to a hearing held on April 20, 1981, the trial court denied relief. That petition is not before this court on this appeal. On April 19, 1982, Kost filed his second petition for post-conviction relief. An evidentiary hearing was held on May 25, 1982, and subsequently, the trial court denied relief. The trial court granted a certificate of probable cause and Kost appeals.\\nThe sole issue presented on this appeal is whether Kost was denied due process since he was not present at every portion of the criminal proceeding against him.\\nOur state constitution provides: \\\"In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face_\\\" S.D. Const. art. VI, \\u00a7 7. The United States Constitution provides: \\\"In all criminal prosecutions, the accused shall enjoy the right . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him . and to have the assistance of counsel for his defense.\\\" U.S. Const, amend. VI. This constitutional right requires that a defendant be present at every aspect of trial. Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). Due process requires the defendant \\\"to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness (sic) of his opportunity to defend against the charge.\\\" Snyder v. Massachusetts, 291 U.S. 97, 105-6, 54 S.Ct. 330, 332, 78 L.Ed. 674, 678 (1934). This question arises under both the federal constitution and our state constitution, and our decision rests on both federal and independent state grounds.\\nIn State v. Swenson, 18 S.D. 196, 99 N.W. 1114 (1904) and State v. Pearse, 19 S.D. 75, 102 N.W. 222 (1905), this court examined defendants' contentions that they were not present at every stage of trial. In Swenson, this court stated:\\nWhere a felony is charged, the defendant is also required to be personally present at the time of arraignment, when the verdict is received, and when judgment is pronounced. His personal presence is not necessary at times other than those prescribed by the statute.\\n18 S.D. at 204-05, 99 N.W. at 1116 (citations omitted). Our statute, SDCL 23A-39-1 requires \\\"[a] defendant shall be present at his arraignment, at the time of his plea, at every stage of his trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by \\u00a7 23A-39-2 and 23A-39-3.\\\" Kost initially claimed that his constitutional rights were violated since he was not present during the impaneling of the jury and three in-chambers discussions. Subsequently, he withdrew his claim concerning absence during the impaneling of the jury because, as he admits, he voluntarily absented himself at that time. Consequently, the focus of this post-conviction proceeding is whether Kost's presence was required at the three in-chambers discussions.\\nFollowing an evidentiary hearing on this issue, the trial court made the following findings:\\n2. During the Petitioner's trial in May 1978, several in-chambers hearings took place concerning various questions of law. These hearings involved the following motions: sequestration of witnesses; exhibition of evidence; and directed verdict. There were also two separate in-chambers hearings on the settling of jury instructions.\\n3. The record of the Petitioner's jury trial indicates that he was not present at any of the in-chambers hearings described above in paragraph 2.\\nState concedes that Kost was not present during: (1) the in-chambers hearing on Kost's motion to sequester the State's witness; (2) the in-ehambers discussion concerning the exhibition of certain evidence; (3) the in-chambers discussion of the motion for directed verdict and review of proposed jury instructions. The record shows that, at each of these hearings, either the trial judge or the state's attorney inquired as to Kost's absence. In each instance, Kost's attorney waived Kost's right to be present at the hearing. Kost, however, contends that the right to be present at one's felony trial is a personal right and can only be waived by a defendant personally. See State v. Grey, 256 N.W.2d 74 (Minn.1977); People v. Montgomery, 64 Mich.App. 101, 235 N.W.2d 75 (1975). Kost argues that the actions of his counsel did not operate as a valid waiver.\\nWe do not, however, have to reach this question of waiver. According to Kost, this court must reverse his conviction unless the State shows beyond a reasonable doubt that the deprivation was not prejudicial. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Chapman, supra, involved extensive adverse comments by the prosecution upon a defendant's failure to testify in a state criminal trial. In addressing whether an error involving the deprivation of a constitutional right can be held harmless, the Supreme Court held \\\"that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.\\\" 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-11.\\nIn State v. Rosales, 302 N.W.2d 804 (S.D.1981), this court described prejudicial error as \\\"that which in all probability must have produced some effect on the final result.\\\" Id. at 807. Accordingly, the State has the burden to show that Kost was not prejudiced by his absence from these aspects of trial. See State v. Snyder, 223 N.W.2d 217 (Iowa 1974). State, here, has met that burden.\\nA defendant must be present when his presence is related to an opportunity to defend himself against the criminal charge. Snyder v. Massachussetts, supra. \\\"The general rule is that an accused has the right to be present at all stages of the trial when his absence might frustrate the fairness of the proceedings.\\\" State v. Anderson, 207 Neb. 51, 296 N.W.2d 440, 452 (1980); see People v. Villarreal, 100 Mich.App. 379, 298 N.W.2d 738 (1980); May v. State, 97 Wis.2d 175, 293 N.W.2d 478 (1980). Kost's absence from these discussions was not error because his presence was not necessary to defend against the charges. At the first in-chambers discussion, Kost's attorney merely requested that the State's witnesses be sequestered and the judge granted that motion. Not only was there no discussion but, also, since the judge granted the motion, Kost suffered no prejudice due to his absence.\\nAt the second hearing, Kost's counsel moved to have State keep the victim's blood-stained clothing in a bag after introduction into evidence. After a brief discussion concerning what the state's attorney was going to do with this evidence, the judge granted this motion. Since there was minimal discussion and this motion was also granted, Kost suffered no prejudice due to his absence.\\nAt the third hearing, Kost's counsel moved for a directed verdict. Obviously, Kost's presence would not have affected the judge's consideration of this motion. The motion was not granted but, on direct appeal, this court thoroughly reviewed this issue and affirmed the trial court's denial of that motion. State v. Kost, supra. Also at this hearing, the proposed jury instructions were discussed. Kost's counsel, who was trained in law, did not take exception to any of the proposed instructions. Since Kost is not trained in the law, we fail to see how his absence could frustrate the fairness of that proceeding. Further, the court noted that the defendant requested only one instruction, which was on diminished capacity and that instruction was included in the jury instructions. Thus, since Kost's requested jury instruction was given and Kost's counsel did not take exception to any of the remaining instructions, Kost did not suffer any prejudice due to his absence from this hearing.\\nThe record clearly shows that Kost's presence at these hearings would not have affected the final result. This is all that is required by our state's Rosales standard. Kost's presence at these hearings was not necessary to his defense against these charges and, consequently, his absence from these hearings was not prejudicial error. State has also met the Chapman, supra, standard in this case and shown beyond a reasonable doubt, that Kost's absence was not prejudicial.\\nWe affirm.\\nAll the Justices concur.\\n. In 1983 the South Dakota Legislature repealed SDCL ch. 23A-34 (Post Conviction Proceedings) effective July 1, 1983. See 1983 S.D.Sess.L. ch. 169, \\u00a7 15.\\n. SDCL 23A-39-2 provides that a defendant may voluntarily absent himself from the trial. SDCL 23A-39-3 provides that a defendant need not be present when the defendant is a corporation, in a prosecution for misdemeanors, or at a hearing to reduce a sentence.\"}"
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+"{\"id\": \"10672870\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Harry Andrew PRESTON, Jr., Defendant and Appellant\", \"name_abbreviation\": \"State v. Preston\", \"decision_date\": \"1983-03-23\", \"docket_number\": \"No. 13723\", \"first_page\": \"305\", \"last_page\": \"307\", \"citations\": \"331 N.W.2d 305\", \"volume\": \"331\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T17:51:11.996527+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Harry Andrew PRESTON, Jr., Defendant and Appellant.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Appellee, v. Harry Andrew PRESTON, Jr., Defendant and Appellant.\\nNo. 13723.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Feb. 14, 1983.\\nDecided March 23, 1983.\\nCurtis G. Wilson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meier-henry, Atty. Gen., Pierre, on the brief.\\nJoseph Neiles, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.\", \"word_count\": \"1403\", \"char_count\": \"8396\", \"text\": \"DUNN, Justice.\\nThis is an appeal from a judgment and sentence for burglary in the first degree pursuant to SDCL 22-32-1 and rape in the first degree pursuant to SDCL 22-22-1(1). We affirm.\\nIn the early morning hours of July 23, 1981, the victim in this case was awakened by the sound of a door being opened. Assuming her boyfriend had arrived to get something, the victim got out of bed and walked toward the kitchen. At that point she saw a man whom she later identified as Harry Andrew Preston, Jr. (appellant) walking toward her. She testified that she was told to keep quiet and was then struck by appellant and shoved into the bedroom. When she began to scream, appellant called her by name and ordered her to keep quiet. Appellant then forced her to have oral sex and later sexual intercourse.\\nAfterwards, the victim told appellant to leave before her boyfriend arrived. As appellant started to dress, the victim testified she tried to light a cigarette. Appellant took the lighter away and lit it himself so she could not see his face. After warning her not to call her boyfriend or the police, appellant instructed the victim to sit in the bedroom for ten minutes and he then departed. The victim soon heard the car door slam and a car with a defective muffler drive away. Looking at the clock, the victim saw it was 5:20 a.m.\\nThe victim later relayed her story to the police and was taken in for a physical exam. The doctor testified that a complete physical was given and also noted the victim had an obvious bruise and swelling about the left eye and the eyebrow-forehead region as a result of the blows received. It was the physician's opinion that there was no reason to doubt the victim's story that she had been raped.\\nAlthough the victim did not see appellant's face, she recognized the assailant to be her former next-door neighbor by his build, voice, hair and profile. Besides identifying these familiar traits, the victim also noted appellant smelled of alcohol and was not clean shaven. When identifying appellant, the victim testified: \\\"I don't know of anyone else that is built like him. For all my contact with people in work, friends, anything, I have never known anyone that has had his build.\\\" Up to approximately three weeks before this incident, appellant and his wife and family had lived in an apartment house next to the victim's residence. The victim had seen and spoken with appellant numerous times and had heard his car pull in and out of his parking spot. Appellant's car had had a defective muffler for some time.\\nThe police investigated the case and collected evidence, including the victim's bedding. The hair collected from the bedding was compared with samples provided by the victim, her boyfriend and appellant. The tests of the hairs did not provide a match. At trial, one of the policemen testified over defense counsel's objection that he had only seen one rape case where there actually was a successful match of hair samples.\\nThe primary theory provided by the defense was in the form of an alibi; provided by appellant's wife. At trial, the wife testified appellant could not have been the assailant since he did not leave her company until 5:30 a.m. that morning. Appellant spent the prior evening out drinking and then came home at approximately 2:00 a.m., argued with his wife, went to breakfast with her and then allegedly departed at 5:30 a.m. for Sioux City. When police arrived at appellant's home on the morning of July 23, 1981, to inquire as to appellant's whereabouts, however, the wife stated, by her own testimony at trial, that she told the police that appellant left for Sioux City at 4:30 \\u2014 5:00 a.m. that morning. One policeman later testified that appellant's wife had actually told them that appellant had left for Sioux City between 4:00 and 4:30 a.m. that morning.\\nAfter deliberation, the jury found appellant guilty of first-degree burglary and first-degree rape. Appellant was sentenced to twenty-five years and fifteen years respectively, said terms to be served consecutively. Appellant now appeals his conviction.\\nAppellant's primary contention is that the trial court erred in rejecting the use of appellant's proposed cautionary instruction regarding the nature of the crime of rape. Our position on this issue is set forth in State v. Fulks, 83 S.D. 433, 439,160 N.W.2d 418, 421 (1968), was that the use of this type of instruction \\\"is generally considered mandatory in cases where conviction may be sustained on the uncorroborated testimony of the complaining witness.\\\"\\nThe use of cautionary instructions in rape cases has been losing favor in many jurisdictions. See Burke v. State, 624 P.2d 1240 (Alaska 1980); State v. Settle, 111 Ariz. 394, 531 P.2d 151 (1975); People v. Rincon-Pineda, 14 Cal.3d 864, 123 Cal.Rptr. 119, 538 P.2d 247 (1975); State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978); Taylor v. State, 257 Ind. 664, 278 N.E.2d 273 (1972); State v. Feddersen, 230 N.W.2d 510 (Iowa 1975); State v. Studham, 572 P.2d 700 (Utah 1977); State v. Wilder, 4 Wash.App. 850, 486 P.2d 319 (1971). We take this opportunity to join these jurisdictions in prohibiting the use of cautionary instructions in rape cases. We come to this conclusion because of recent legislative action on the subject. Although neither party cites it for authority, SDCL 23A-22-15.1 is disposi-tive in this case. That statute provides:\\nThe testimony of the complaining witness in a trial for a charge of rape shall not, merely because of the nature of that charge, be treated in any different manner than the testimony of a complaining witness in any other criminal case.\\nWe believe this legislative enactment was intended to halt the use of cautionary instructions which were alleged to have tarnished the credibility of the victims of sex crimes by singling them out for treatment different from any other witness. Accordingly, we find no merit in appellant's contention that the trial court erred in denying the cautionary instruction. See State v. Ree, 331 N.W.2d 557 (S.D.1983).\\nAppellant's second contention is that the trial court erred in not allowing appellant's wife to testify regarding her prior experience with rape. In an offer of proof, the wife alleged that both she and her daughter had been victims of rape. Appellant believed this information would enhance the wife's credibility in establishing that she would not lie to protect her husband if she thought he was guilty of the offense. The trial court ruled the testimony inadmissible because it was irrelevant and prejudicial since it would likely create sympathy for the wife which could in turn unfairly benefit appellant.\\nAs we have stated before, the question whether evidence of this type is immaterial, conjectural, or remote is left to the practical judgment of the trial court. Drier v. Perfection, Inc., 259 N.W.2d 496 (S.D.1977). We cannot conclude the trial court abused its discretion in excluding this testimony since the wife's belief of the appellant's guilt or innocence was of no relevance in the case. Moreover, we are convinced the trial court's position is sustained by SDCL 19-12-3 since the probative value of this testimony is substantially outweighed by the danger of unfair prejudice.\\nAppellant's contention that testimony by a police officer regarding the number of hair sample matchups he had seen in rape cases was improperly admitted is also without merit. Appellant cites no authority for his assertion and we cannot see how appellant's case was prejudiced by a policeman's statement that he had only seen one successful hair sample matchup in rape cases during his years as a policeman. In fact, the relevancy of the testimony is apparent in the case at hand since a hair matchup was not accomplished in this instance. The frequency of matchups is clearly relevant in establishing that the failure to get a matchup was not fatal to establishing the State's case.\\nThe judgment is affirmed.\\nAll the Justices concur.\"}"
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+"{\"id\": \"10672914\", \"name\": \"M & M CONTRACTING, INC., Plaintiff and Appellee, v. MIDWESTERN HOMES, INC., Defendant and Appellant\", \"name_abbreviation\": \"M & M Contracting, Inc. v. Midwestern Homes, Inc.\", \"decision_date\": \"1983-05-18\", \"docket_number\": \"No. 13933\", \"first_page\": \"223\", \"last_page\": \"227\", \"citations\": \"334 N.W.2d 223\", \"volume\": \"334\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:16:09.441494+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"M & M CONTRACTING, INC., Plaintiff and Appellee, v. MIDWESTERN HOMES, INC., Defendant and Appellant.\", \"head_matter\": \"M & M CONTRACTING, INC., Plaintiff and Appellee, v. MIDWESTERN HOMES, INC., Defendant and Appellant.\\nNo. 13933.\\nSupreme Court of South Dakota.\\nArgued March 21, 1983.\\nDecided May 18, 1983.\\nRehearing Denied June 24, 1983.\\nGary G. Colbath of Banks & Johnson, P.C., Rapid City, for plaintiff and appellee.\\nGeorge A. Bangs of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellant.\", \"word_count\": \"1857\", \"char_count\": \"11427\", \"text\": \"FOSHEIM, Chief Justice.\\nDefendant Midwestern Homes, Inc. is the owner of Northdale Subdivision in Black Hawk, South Dakota. Defendant took bids on Phase 2 of its development of the subdivision and accepted Plaintiff M & M Contracting, Inc.'s bid for site preparation and utility installation. Plaintiff's bid, as signed by defendant, became the contract of the parties. It is dated April 10, 1979, and reads, in its entirety, as follows:\\nStripping of top soil and stock piling $ .35 yard Grading of site .65 yard\\nAny rock and water for compaction on a time and material basis Fuel Clause based on $ .54 per gallon\\n$4.00 per lin. ft. sewer and water includes installation of fire hydrants and valves, setting manholes, all material furnished by Midwestern Homes.\\nAll yardage to be computed by Francis, Meador & Gellhaus, Inc.\\nCompaction \\u2014 88% on house location 90% on utility line 93% on streets\\nChecked by Francis, Meador & Gellhaus We Propose hereby to furnish material and labor \\u2014 complete in accordance with above specifications, for the sum of To be determined dollars ($_). Payment to be made as follows: Upon estimate.\\nAfter plaintiff began work on the contract it submitted regular pay estimates as the work progressed. These pay estimates were cumulative and adjustments were made on each estimate for amounts previously paid. On April 9, 1980, plaintiff submitted Pay Estimate 8 for $229,560.49 less $196,184.59 paid on Pay Estimates 1-7. The amount due on Estimate 8 ($33,375.90) plus the balance due from Estimate 7 ($22,-536.00) equaled $55,911.90. Defendant refused to pay this amount; plaintiff quit working on- the project and filed mechanics liens on all lots in the subdivision. Plaintiff then brought this suit to foreclose the liens. Defendant counterclaimed, alleging that plaintiff had improperly installed the water system and that the project was not finished. The counterclaim asked that plaintiff be ordered to pay the cost of completion. After trial to the court, defendant's counterclaim was denied and findings, conclusions of law and judgment were entered in favor of plaintiff for the full amount due on Estimate 8, plus prejudgment interest. Defendant appeals. We affirm in part, reverse in part and remand.\\nIt is obvious that the contract of the parties, quoted above, is not a model of clarity or completeness. Thus, much testimony was given by both sides in an attempt to explain the terms of the contract to the trial court. The trial court stated in one finding that the contract was for time and materials and in another that it was a cost-plus contract, and concluded that it was a hybrid. The trial court also found, and it appears undisputed, that plaintiff was to furnish labor and machinery, defendant the materials, and the engineering firm of Francis-Meador-Gellhaus, Inc. was to compute yardage and check compaction.\\nDefendant maintained at trial that it refused to pay plaintiff because many of its charges were \\\"unreasonable,\\\" i.e., plaintiff charged for work not done or spent too much time doing the work that was done. On appeal defendant takes issue with five charges allowed by the trial court on Estimate 8, arguing we should reduce the amount allowed or remand for further findings.\\nBefore discussing these charges, we must address defendant's contention that some of the disputed awards are \\\"without any supporting finding.\\\" Estimate 8 itemizes 27 different charges. At trial, defendant went through Estimate 8 line by line, telling the trial court which charges it considered reasonable and which unreasonable. Among the items defendant identified as unreasonable are the charges disputed on appeal. In Finding 15 the trial court found \\\"that the charges made by the Plaintiff were representative and comparable to charges made by others in the industry and in similar trades and were not overcharges.\\\" Under the circumstances of this case, Finding 15 is an adequate \\\"supporting finding\\\" on each charge allowed.\\nThe first issue relates to the charge of $46,700.00 on Estimate 8 for putting in 11,675 feet of utility line at $4.00 per linear foot. Defendant argues that this award is wrong as a matter of law. Defendant concedes plaintiff dug the trenches and laid 11,675 feet of utility pipe but states that much of the line has not been compacted to 90% and therefore plaintiff has not earned the entire $4.00 per foot. Plaintiff's president, Fred Morris, testified that the $4.00 per foot charge for utilities included digging the trench, laying the pipe on an appropriate bed and then compacting material on top of it. Plaintiff's field supervisor, Mitch Morris, testified that certain stretches of utility line were not compacted from one to two feet above the pipe to surface grade. In fact, the parties agree that 90% compaction was not achieved along the entire 11,675 feet of utility trench. The dispute is whether 7,650 feet are not at 90% compaction, as defendant claims, or whether the figure is closer to 5,000 feet, as plaintiff contends. Plaintiff sued for work performed under the contract. Plaintiff argues it should get $4.00 per foot, even though it includes 90% compaction, because in digging the utility trenches it incurred extra costs under the rock clause which it absorbed. We believe that plaintiff's voluntarily absorption of legitimate extra charges, without billing defendant for them under the rock clause, does not justify payment for compaction not done. However, we are unable to determine from the record what percentage of the $4.00 per foot figure represents the cost of compaction. We therefore remand to the trial court with directions to make this determination, to find the trench footage not compacted 90%, and to reduce the $46,-700.00 allowance accordingly.\\nDefendant next urges that the trial court was \\\"clearly in error\\\" in allowing the full amount charged in Estimate 8 for moving top soil piles, for water truck rental, and for additional fuel costs. We understand defendant's position to be that Finding 15, supra (that plaintiff's charges were representative and comparable and not overcharges), is clearly erroneous concerning these three items. Our standard of review is whether we are left with a definite and firm conviction that the trial court's finding on these charges is mistaken. In Re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970); SDCL 15-6-52(a).\\nOn the issue of the $3,000 charge for moving top soil piles, defendant emphasizes that during trial it twice asked plaintiff to break down the $3,000 figure, by machine used and hours used, and that plaintiff did not do this. The trial court did not ask for this breakdown. Plaintiff testified, through Fred Morris, that it knew which machines were used and for approximately how many hours and that it could reconstruct the $3,000 figure from time cards which were in evidence and which it had furnished defendant before trial. Plaintiff also testified, without contradiction, that the $3,000 figure first appeared on Pay Estimate 2 and that defendant had approved and paid Estimate 2 a number of months before the dispute arose over Estimate 8. Defendant testified, through its president, Mr. Buckingham, that although it did not know the size of the top soil piles or where they had to be moved, $1,500.00 was a reasonable charge for moving them. Based on this evidence, and its opportunity to judge the credibility of the witnesses, the trial court made Finding 15. We cannot say it was clearly erroneous.\\nWe reach the same conclusion on the charge for additional fuel. We believe this charge is adequately documented. We have considered defendant's assertion that if plaintiff had finished the project in six months, as originally contemplated, the fuel charge would be lower. The contract is silent on a completion date and the trial court obviously believed plaintiff's testimony that defendant never set a firm completion date.\\nDefendant's objection to the water truck rental charge is that it was only obligated to pay rental when water was used for compaction and that it should not pay for the time plaintiff used the water truck for dust control. Defendant testified that the environmental standards of dirt moving require dust control and that if plaintiff had not controlled the dust, he might have been shut down by \\\"the authorities.\\\" Under the contract \\u2014 which we repeat leaves much unsaid \\u2014 defendant was to provide the material to get the project done and in order to get it done plaintiff apparently had to control dust. We therefore find no error in the trial court's allowance of the total amount charged for water truck rental.\\nDefendant next argues that $79,942.00 in charges under the rock clause is \\\"supported only by the general\\\" Finding 15. We have concluded above that this finding is adequate. We have also reviewed the evidence on the rock clause charges and do not believe Finding 15 is clearly erroneous in this regard.\\nFinally, defendant contends that the trial court erred in denying its counterclaim for money to complete the project. According to the contract, plaintiff did not agree to complete the project. And defendant testified, through its superintendent, Mr. Denman, that it could terminate the contract with plaintiff at any time and that it finally did so. Since plaintiff never charged defendant for the cost of completing the project, but only for work completed, the trial court correctly denied defendant's counterclaim. As the trial court stated in Conclusion of Law 3: \\\"The contract was a cost-plus, time-and-material contract and the Court finds that the work would have had to be done to complete the project and additional pay would have been necessary.\\\" Defendant argues, however, that it should receive some set-off because when plaintiff left the job site it filled the trenches with the wrong kind of fill material. Defendant states that it will necessarily bear the expense of removing this material before it can complete the utility work. We believe the trial court correctly refused to allow a set-off. Trial on this case began about a year after plaintiff left the job site. During the interim no work was done on the project. Defendant does not suggest that plaintiff should have left the trenches open. In the absence of any contract provision covering this eventuality or any personal direction from defendant on the matter, we believe plaintiff acted properly. There was a risk someone could have been injured by falling in an open trench. The uncovered pipes could have been damaged. It also appears plaintiff would have incurred expense in cutting and bringing the proper fill material to the trenches. (There is considerable dispute in the testimony whether such material was even available.) In light of defendant's refusal to pay Estimate 8, plaintiff was justified in not completing the work as planned.\\nWe affirm in part, reverse in part and remand.\\nAll the Justices concur.\\n. On appeal defendant has dropped his claim that plaintiff improperly installed the water system.\"}"
\ No newline at end of file
diff --git a/sd/10676371.json b/sd/10676371.json
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+"{\"id\": \"10676371\", \"name\": \"Sylvester H. PECK, Plaintiff and Appellant, v. SOUTH DAKOTA PENITENTIARY EMPLOYEES, et al., Defendants and Appellees\", \"name_abbreviation\": \"Peck v. South Dakota Penitentiary Employees\", \"decision_date\": \"1983-04-27\", \"docket_number\": \"No. 13904\", \"first_page\": \"714\", \"last_page\": \"718\", \"citations\": \"332 N.W.2d 714\", \"volume\": \"332\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:29:04.482917+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"Sylvester H. PECK, Plaintiff and Appellant, v. SOUTH DAKOTA PENITENTIARY EMPLOYEES, et al., Defendants and Appellees.\", \"head_matter\": \"Sylvester H. PECK, Plaintiff and Appellant, v. SOUTH DAKOTA PENITENTIARY EMPLOYEES, et al., Defendants and Appellees.\\nNo. 13904.\\nSupreme Court of South Dakota.\\nSubmitted on Briefs Jan. 20, 1983.\\nDecided April 27, 1983.\\nSylvester H. Peck, pro se.\\nRichard Dale, Asst. Atty. Gen., Pierre, for defendants and appellees; Mark V. Meier-henry, Atty. Gen., Pierre, on brief.\", \"word_count\": \"1711\", \"char_count\": \"10991\", \"text\": \"WOLLMAN, Justice.\\nThis is an appeal from an order dismissing appellant's in forma pauperis action. We affirm.\\nAppellant, an inmate at the South Dakota State Penitentiary, brought this action, pro se, against appellees, four penitentiary employees. In his complaint, appellant contends that his constitutional rights were violated because appellees removed electronics parts and other property from his cell and because penitentiary officials have failed to provide him with educational opportunities in the field of electronics. Appellant requested a judgment ordering that the parts be returned to him and ordering that he be allowed to continue his electronics education. Appellant also requested in-junctive relief prohibiting appellees from harassing and retaliating against him and his friends, and prohibiting appellees from denying him his alleged right to an electronics education.\\nA show cause hearing on appellant's request for injunctive relief was scheduled for July 30, 1982. On July 27, 1982, appellant moved to dismiss the hearing, now claiming that appellees were not harassing him or his friends.\\nOn July 30,1982, the circuit court entered an order dismissing appellant's action pursuant to SDCL 16-2-29.4, which provides:\\nThe court may, at any time after filing of the affidavit, dismiss any civil action, proceeding or appeal if the allegation of poverty is found to be untrue or if satisfied that the action, proceeding or appeal is frivolous or malicious.\\nAlthough we have not had the opportunity to interpret this statute, which became effective July 1, 1982, we can look to the federal courts' interpretations of the federal counterpart, 28 U.S.C.A. 1915(d), which allows a federal court to dismiss a proceeding in forma pauperis \\\"if satisfied that the action is frivolous or malicious.\\\"\\nFederal in forma pauperis proceedings provisions exist so that the scales of justice will not be tilted against the poor. McTeague v. Sosnowski, 617 F.2d 1016 (3d Cir.1980). Indigency, however, does not create a constitutional right to expend public funds and valuable time of the federal courts to prosecute an action which is totally without merit. Collins v. Cundy, 603 F.2d 825 (10th Cir.1979). The authority for early dismissal of frivolous claims is necessary, especially when dealing with prisoners whose primary motivation for commencing legal actions is the hope of a \\\"short sabbatical to the nearest federal courthouse.\\\" Cruz v. Beto, 405 U.S. 319, 327, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263, 271 (1972) (Rehnquist, J., dissenting); see also Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973).\\nGenerally, a pro se complaint, such as the one filed in this case, is held to less stringent standards than formal pleadings drafted by a lawyer, and the allegations of the complaint are taken as true for purposes of a dismissal. Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Cruz v. Beto, supra. The usual degree of predisposition in favor of a pro se plaintiff is not required, however, in dismissing a federal in forma pauperis proceeding under 28 U.S.C.A. 1915(d). Serna v. O'Donnell, 70 F.R.D. 618 (W.D.Mo.1976); Collins v. Cundy, supra. Under 28 U.S.C.A. 1915(d), a determination of frivolity is a legal determination whether there \\\"exists substantiality as to such a claim, of justiciable basis and of impressing reality.\\\" Serna v. O'Donnell, supra at 621 (quoting Carey v. Settle, 351 F.2d 483, 484 (8th Cir.1965)). The courts must determine whether an in forma pauperis plaintiff can make a rational argument on the law or facts to support his claim. Collins v. Hladky, 603 F.2d 824 (10th Cir.1979). The federal district courts have broad discretion in determining what is a frivolous action and will not be reversed unless there has been an abuse of discretion. Van Meter v. Morgan, 518 F.2d 366 (8th Cir.1975), cert. denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129 (1975); Collins v. Pitchess, 641 F.2d 740 (9th Cir.1981).\\nReviewing appellant's claim in the light of the foregoing principles, we note that his complaint first contends that his constitutional rights were violated by the removal of property from his cell. Such a removal does not automatically constitute a constitutional violation. As the United States Supreme Court has recently stated:\\nWe have repeatedly said both that prison officials have broad administrative and discretionary authority over the institutions they manage and that lawfully incarcerated persons retain only a narrow range of protected liberty interests. As to the first point, we have recognized that broad discretionary authority is necessary because the administration of a prison is \\\"at best an extraordinarily diffi cult undertaking,\\\" Wolff v. McDonnell, supra, 418 U.S. [539], at 566, 94 S.Ct. [2963], at 2979 [41 L.Ed.2d 935] and have concluded that \\\"to hold . . that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.\\\" Meachum v. Fano, supra, 427 U.S. [215], at 225, 95 S.Ct. [2532], at 2538 [49 L.Ed.2d 451]. As to the second point, our decisions have consistently refused to recognize more than the most basic liberty interests in prisoners. \\\"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.\\\" Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356, 1369 (1948).\\nHewitt v. Helms, -U.S.-, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). Property rights are among those limited by incarceration. Sullivan v. Ford, 609 F.2d 197 (5th Cir.1980), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980).\\nWe must also recognize that prison officials are given wide-ranging deference in their adoption and execution of policies and practices that they determine are necessary to preserve internal order and discipline and to maintain institutional security. Hewitt v. Helms, supra; Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). In the absence of substantial evidence to indicate an exaggerated response to the above considerations, the courts should defer to the prison officials' professional expertise. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974).\\nInmates at the penitentiary are required to refrain from committing prohibited acts listed in the \\\"Living Guide and Regulations of the South Dakota State Penitentiary,\\\" a copy of which is given to each inmate. These regulations list possession of contraband as a prohibited act and define contraband as: \\\"Having in possession any article not issued to you, not purchased through the commissary or for which you do not have special authorization; or having articles in excess of established limits, or articles which are used for unauthorized purposes.\\\" The State has contended that the property removed from appellant's cell was contraband. Appellant's complaint alleges that other inmates have similar property in their cells, that the property was not wrongfully used, and was neither a threat to security nor a danger to other inmates and employees. These allegations do not exclude the property from falling within the penitentiary's definition of contraband. Neither appellant's complaint nor other documents filed with the court before it entered its order of dismissal state that appellant was authorized to have the property in his cell prior to the shakedowns. Subsequent to the entry of order of dismissal, appellant filed a document with the court that stated that the removed property was authorized and was listed on appellant's prisoner property card.\\nGiven the situation before it, we cannot say the trial court abused its discretion in determining that appellant could not make a rational argument on the law or facts to support the claim regarding his property. The trial court cannot be faulted for not having the prescience to anticipate belatedly filed post-decision allegations.\\nWe turn to the contention that appellant's constitutional rights were violated because the penitentiary does not provide schooling in the field of electronics and because appellees prevented him from furthering his electronics education by removing electronics parts from his cell. The State denies neither the absence of such a school at the penitentiary nor the removal of electronics parts from appellant's cell. Notwithstanding the factual validity of appellant's assertion, appellant has not shown a constitutional violation. In the absence of grievously debilitating prison conditions, failure to provide vocational and education training does not violate the Constitution. Madyun v. Thompson, 657 F.2d 868 (7th Cir.1981). Likewise, the diminution of the educational opportunities available to prisoners is not such a deprivation as to constitute punishment under the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Accordingly, we conclude that the trial court did not abuse its discretion in determining that appellant could not make a rational legal argument to support this claim.\\nThe State characterizes appellant's action as one in a series of frivolous in forma pauperis actions brought against penitentiary officials. While the fact that a plaintiff has previously filed several similar and unsuccessful cases may be considered in determining frivolity, see, e.g., Van Meter v. Morgan, supra; Green v. United States District Court, 494 F.Supp. 1037 (D.D.C.1980), such a consideration is unnecessary in this case since the trial judge, after considering the pleadings and documents filed in this action, had sufficient basis apart from the fact of appellant's demonstrated profligate litigiousness for entering his order of dismissal pursuant to SDCL 16-2-29.4.\\nThe order of dismissal is affirmed.\\nAll the Justices concur.\\nAfter appellant had filed sixteen actions in which he claimed violations of his civil rights during confinement and after he had informed the South Dakota Attorney General's Office that he had twenty-three more complaints to file, the United States District Court for the District of South Dakota adopted a prefiling review procedure restricting appellant's cost-free access to the court. See Peck v. Hoff, 660 F.2d 371 (8th Cir.1981).\"}"
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+"{\"id\": \"10680539\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Robert BENNETT, Defendant and Appellant; Robert BENNETT, Petitioner and Appellant, v. STATE of South Dakota, Appellee\", \"name_abbreviation\": \"State v. Bennett\", \"decision_date\": \"1980-07-23\", \"docket_number\": \"Nos. 12497, 12500\", \"first_page\": \"5\", \"last_page\": \"8\", \"citations\": \"295 N.W.2d 5\", \"volume\": \"295\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:43:53.238578+00:00\", \"provenance\": \"CAP\", \"judges\": \"DUNN, HENDERSON and FOSHEIM, JJ., concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Robert BENNETT, Defendant and Appellant. Robert BENNETT, Petitioner and Appellant, v. STATE of South Dakota, Appellee.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Appellee, v. Robert BENNETT, Defendant and Appellant. Robert BENNETT, Petitioner and Appellant, v. STATE of South Dakota, Appellee.\\nNos. 12497, 12500.\\nSupreme Court of South Dakota.\\nJuly 23, 1980.\\nJohn P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and appellee; William J. Jank-low, Atty. Gen., Pierre, on brief.\\nJohn P. Cogley of Morgan, Fuller, Theeler & Cogley, Mitchell, for defendant and petitioner.\", \"word_count\": \"1539\", \"char_count\": \"9494\", \"text\": \"WOLLMAN, Chief Justice (on reassignment).\\nDefendant was convicted of one count of distributing a controlled substance and two counts of possession of' a controlled substance. dn # 12497, 'defendant appeals from his conviction on the distribution charge. In # 12500, defendant (petitioner) appeals from the order denying his petition for post-conviction relief. We affirm in # 12497 and reverse and remand in # 12500.\\nAlthough the transaction giving rise to the distribution charge occurred on July 19, 1976, it was not until October 20,1976, that a warrant was obtained for defendant's arrest on that charge.\\nArmed with this arrest warrant, law enforcement officers went to defendant's trailer house in Chamberlain shortly after midnight, October 21, 1976. Defendant answered the officers' knock on the door and was told by the deputy sheriff that the officers had a warrant for his arrest. The officers entered the trailer, where they served the warrant on defendant and arrested him. During the course of the arrest, one of the officers observed certain drug paraphernalia in the living room. Based upon these observations, the officer later signed an affidavit and was issued a search warrant for the trailer. The search of the trailer resulted in the seizure of evidence that formed the basis of the two counts of possession of controlled substances.\\nAlthough the post-conviction court held that the arrest warrant was invalid, a ruling that the State does not challenge, it found that probable cause and exigent circumstances existed for a warrantless arrest and held that the subsequent search warrant was valid.\\nAt all times material herein, SDCL 23-22-7 provided that:\\nA peace officer may, without a warrant, arrest a person:\\n*\\n(2) When the person arrested has committed a felony, although not in his presence;\\n(3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it;\\n(4) On a charge, made upon reasonable cause, of the commission of a felony . by the party arrested.\\nAlthough warrantless arrests are authorized by this statute, they are not without certain restrictions. We recently held that warrantless arrests and searches are unconstitutional \\\"unless there is a showing by those who seek exemption from the warrant requirement that their actions were reasonable, based on probable cause, and that the exigencies of the situation [make] the course imperative.\\\" State v. Max, 263 N.W.2d 685, 687 (S.D.1978).\\nThe requirement of exigent circumstances imposed by the Max case upon the statutorily enumerated circumstances in which a warrantless arrest may lawfully be made has recently been declared by the United States Supreme Court to be mandated by the Fourth Amendment to the United States Constitution. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).\\nIn holding that the Fourth Amendment prohibits the police from making a warrant-less, nonconsensual entry into a suspect's home to make a routine arrest, the Court found persuasive the following language from the decision of the Court of Appeals for the Second Circuit in United States v. Reed, 572 F.2d 412 (2d Cir.1978):\\nTo be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present. (572 F.2d at 423)\\n445 U.S. at 588-589, 100 S.Ct. at 1381, 63 L.Ed.2d at 652.\\nWhen viewed in the light of the considerations enumerated in the Max case, 263 N.W.2d at 687, the facts in the instant case persuade us that exigent circumstances justifying a warrantless search were not present here. Although the offense for which defendant was sought was certainly not trivial, in view of the substantial period that elapsed between the date of the offense and the date of the arrest it can hardly be said that the charge of distribution of a controlled substance was a grave offense in the sense that immediate action was necessary to apprehend the perpetrator. The offense did not involve violence, and there was no indication that defendant was armed or that he would escape if not apprehended quickly. In short, even though the officers had probable cause to believe that defendant had committed the offense charged, had knowledge that defendant was in the trailer house, and made a peaceable entry, it would strain the meaning of the concept to hold that exigent circumstances existed here. Accordingly, under the principles set forth in Max and Payton, we must hold that the arrest was unlawful.\\nThere remains the question of the validity of the subsequent seizure pursuant to the warrant based upon information acquired as a result of the invalid arrest.\\nThe State's reliance on United States v. Jarvis, 560 F.2d 494 (2d Cir.1977), is misplaced because Jarvis applied the \\\"but for\\\" test in analyzing the validity of a seizure of evidence after an illegal arrest. The court in Jarvis found the photograph and palm-print of the defendant admissible because the illegal arrest was not the sole method the agents could have used to procure that evidence. \\\"Had the agents waited outside of Jarvis' home, they could have arrested him, when he emerged, based solely on probable cause,\\\" and obtained his photo and prints then. 560 F.2d at 498.\\nIn the case at bar, the evidence seized was inside defendant's trailer and would not necessarily have come to the officers' attention but for the warrantless entry into defendant's home. Jarvis is thus inappo-site. Accordingly, we hold that the evidence seized pursuant to the search warrant should not have been admitted against defendant.\\nWith respect to # 12497, the appeal from the conviction on the distribution charge, defendant contends that he should have been granted a trial separate from that on the charges of possession. Defendant concedes that all of the offenses charged were drug related and were thus properly charged in the same information. SDCL 23-32-6 (since repealed by 1978 S.D. Sess.L. ch. 178, \\u00a7 577; see SDCL 23A-6-23). The denial of a motion for separate trials is a matter within the discretion of the trial court, the exercise of which is subject to reversal only if abused. State v. Roth, 269 N.W.2d 808 (S.D.1978); State v. Van Beek, 88 S.D. 154, 216 N.W.2d 561 (1974).\\nDefendant took the stand and denied having made the sale that formed the basis of the distribution charge. He offered no testimony regarding the possession charges, nor was he cross-examined regarding those charges.\\nWe conclude that evidence regarding the several charges was sufficiently simple and distinct and so readily referable to the separate offenses as to reduce to the point of insubstantiality the hazard that the jury would use the evidence cumulatively to convict defendant of all of the charges. Robinson v. United States, 459 F.2d 847 (D.C.Cir.1972); Baker v. United States, 401 F.2d 958 (D.C.Cir.1968); Drew v. United States, 331 F.2d 85 (D.C.Cir.1964).\\nThe trial court indicated at the time it ruled on the motion for severance that it would give appropriate instructions concerning defendant's testifying regarding one count and remaining silent on the other two counts. Defendant requested no such instructions, however, and he cannot now be heard to say that the trial court erred in failing to give such instructions. State v. Barr, 89 S.D. 280, 232 N.W.2d 257 (1975). The trial court did give the following instruction regarding the jury's duty to determine defendant's guilt or innocence on each count separately:\\nThe Court further instructs you that there are three separate counts contained in the Information. Each must be considered separately, and you may find the defendant guilty or not guilty, as to either or all of them.\\nFinally, we note that there is authority for the position that the failure to renew a motion for severance at the close of all of the evidence constitutes a waiver of the objection to a joinder of charges. See, e. g., Williamson v. United States, 310 F.2d 192 (9th Cir. 1962); People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972); American Bar Association Standards, Joinder and Severance \\u00a7 2.1(b) (Approved Draft, 1968).\\nWe conclude, therefore, that defendant's contention that the trial court erred in denying the motion for severance is without merit.\\nIn # 12497, the judgment of conviction on the charge of distribution of a controlled substance is affirmed. In # 12500, the order denying post-conviction relief is reversed, and the case is remanded to the circuit court with directions to set aside the judgment of conviction entered on the conviction on the two counts of possession of a controlled substance.\\nDUNN, HENDERSON and FOSHEIM, JJ., concur.\\nMORGAN, J., deeming himself disqualified, did not participate.\\nSDCL 23-22-7 was repealed effective July 1, 1979, and has been replaced by SDCL 23A-3-2.\"}"
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+"{\"id\": \"10680945\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Richard Lee ROBB, Defendant and Appellant\", \"name_abbreviation\": \"State v. Robb\", \"decision_date\": \"1981-03-18\", \"docket_number\": \"No. 13162\", \"first_page\": \"368\", \"last_page\": \"372\", \"citations\": \"303 N.W.2d 368\", \"volume\": \"303\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T18:17:36.152164+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Richard Lee ROBB, Defendant and Appellant.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Appellee, v. Richard Lee ROBB, Defendant and Appellant.\\nNo. 13162.\\nSupreme Court of South Dakota.\\nArgued Jan. 8, 1981.\\nDecided March 18, 1981.\\nSteven R. Binger, Deputy State\\u2019s Atty., Sioux Falls, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.\\nParnell J. Donohue of Donohue & Dono-hue, Sioux Falls, for defendant and appellant.\", \"word_count\": \"1956\", \"char_count\": \"11646\", \"text\": \"HENDERSON, Justice.\\nACTION\\nThis is an appeal by Richard Lee Robb (appellant) from a Minnehaha County jury verdict and final judgment finding him guilty of third-degree burglary. We affirm.\\nFACTS\\nAt approximately 2:45 a. m. on February 3, 1980, the burglar alarm was activated at the J. C. Penney Store (store) located at the Empire Shopping Mall (mall) in Sioux Falls, South Dakota. Upon arrival at the store, the police found that a door on the store's roof had been forcibly opened. No one was found inside the store and no merchandise was missing.\\nThe police found several distinct fresh footprints in the snow on the roof of the mall. These footprints ended at the north side of the mall roof, where a gas pipe was vertically aligned with the north wall of the mall. At a point where the pipe meets the top of the mall roof, a small bag was found containing several hand tools. Footprints similar to the ones found on the mall roof were discovered by the police on the ground below the pipe and led around the corner of the building. The police followed these footprints for a few miles in a southerly direction but eventually lost the trail. A ladder, not the property of the mall, was also found on the south side of the mall roof.\\nTire tracks were found on the ground directly below the area where the ladder was recovered. These tracks headed south from the mall. One of the policemen on the scene noticed a 1963 Plymouth parked on the southern edge of the parking lot, facing the mall. The aforementioned tire tracks led towards this 1963 Plymouth. These tire tracks were similar to the tracks made by the 1963 Plymouth. An officer on the scene testified that, with his flashlight and cruiser's spotlight directed at the vehicle, he saw appellant's head peek up and momentarily look out the window. After the officers approached the vehicle, appellant stated to them that he had been sleeping. Appellant was then arrested. An arresting officer testified that appellant \\\"didn't appear to be groggy or anything as though he had been sleeping.\\\" Appellant's 1963 Plymouth was the only vehicle located on the south side of the parking lot. It appears that the vehicle was backed away from the wall to its parked position with a view towards the mall.\\nTwo policemen testified that there were footprints on the hood of appellant's vehicle which matched those on the mall roof; there were also scuff marks on the hood which were similar in dimension and appearance to the bottom of the ladder that was found. Some tools, a rope, and a pair of binoculars were found in appellant's vehicle.\\nDetective Dennis Beck of the Sioux Falls Police Department received a telephone call at approximately 6:30 a. m. on February 3, 1980, from an individual identifying himself as \\\"Ed.\\\" At trial, Detective Beck stated that he recognized the caller as one Ed Branson, with whom he had spoken prior to this call. Appellant testified at trial that he and Branson were acquaintances. The caller asked whether appellant was at the police station because he had heard that appellant was in an auto accident; he also asked Detective Beck whether appellant was going to be able to bond out.\\nISSUES\\nI.\\nWas there sufficient evidence presented at trial to legally support a rational theory of guilt? We hold that there was.\\nII.\\nDid the trial court err by admitting Detective Beck's testimony due to (a) the method by which it was received and (b) its alleged violation of the hearsay rule? We hold that it did not.\\nDECISION\\nI.\\nAppellant's prime contention on appeal is that the evidence presented to the trial court was insufficient to sustain a verdict of guilty. The State's case was based entirely on circumstantial evidence. All elements of a crime, including intent, are provable by circumstantial evidence. State v. Moeller, 298 N.W.2d 93 (S.D.1980). In determining the sufficiency of evidence on appeal, the question is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. State v. Moeller, supra; State v. Dietz, 264 N.W.2d 509 (S.D.1978).\\nAppellant's testimony regarding the night of the burglary was as follows: Around 11:30 p. m. on February 2, 1980, he received a telephone call at his home in Burbank, South Dakota, (approximately fifty miles from Sioux Falls) from a girl he had recently met, requesting that he come to Sioux Falls and meet her at a bar. Appellant knew this girl only by her first name, and she was not present at trial. Due to vehicle trouble en route to Sioux Falls, appellant arrived too late (1:50 a. m.) for his rendezvous. He then had a drink at a bar located at the south side of the mall. After ten minutes he left the bar, moved his vehicle under a light at the southern edge of the mall parking lot, and went to sleep. Appellant testified that he wasn't cold because he was wearing a long, heavy coat and also had another coat and sweatshirt in the vehicle. Three policemen testified that the temperature that night was somewhere between 10\\u00b0 and 20\\u00b0 fahren- heit. Appellant testified that he was later awakened by some policemen who were investigating the break-in of the store.\\nAppellant testified at trial that the imprints and scuff marks found on the hood of his vehicle were caused by standing on it when searching/hunting for foxes. He also testified that this is why he kept binoculars in his vehicle. According to appellant, tools and equipment found in his vehicle were used in connection with his employment as a construction worker.\\nAt trial the State proffered the following theory as to how the burglary occurred: The ladder which was found by the police had been placed on the hood of appellant's vehicle and then leaned up against the south wall of the mall. This allowed appellant's accomplice to climb onto the mall roof and pull the ladder up behind him. Appellant then moved his vehicle to the southern part of the parking lot to act as a lookout. The unidentified accomplice then broke into the roof door of the store and activated the alarm system. Realizing the situation, the accomplice shinned down the pipe located on the north side of the mall and made his escape on foot into the night. In his haste, the accomplice abandoned his bag of tools on the mall roof. Appellant, unaware that his accomplice had activated the,alarm system and fled, had no opportunity to escape and instead pretended to be asleep in his vehicle when the police arrived.\\nAppellant maintains that his presence in the mall parking lot does not sufficiently link him to the burglary. It is true that the mere presence of a person at the scene of a crime does not make him a participant; however, it is a circumstance which tends to support a finding that he is a participant and, with other facts and circumstances, can establish his guilt. State v. Schafer, 297 N.W.2d 473 (S.D.1980).\\nAside from appellant's presence at the mall, several other factors indicated his involvement with the burglary: the scuff marks on his vehicle's hood which matched the dimensions of the bottom of the ladder; the matching footprints on the hood; the tire tracks which led from the area where the ladder was found toward appellant's vehicle; and the inquisitive, prompt telephone call to the police department a few hours after the early morning burglary by an individual requesting information and voicing concern regarding appellant. All of these circumstantial facts were presented to the jury at trial. The jury had the right to weigh these circumstances in its deliberations. The jury was not obliged to believe the saga of the sleepy fox hunter.\\nIt is not necessary to exclude every possible hypothesis of innocence to support a conviction based on circumstantial evidence. State v. Schafer, supra; State v. Scott, 84 S.D. 511, 173 N.W.2d 287 (1989), cert. denied, 400 U.S. 821, 91 S.Ct. 39, 27 L.Ed.2d 49 (1970). Also, a verdict of guilty will not be set aside if the State's evidence, considering all favorable inferences drawn therefrom, supports a rational theory of guilt. State v. Battest, 295 N.W.2d 739 (S.D.1980); State v. Dietz, supra; State v. Luna, 264 N.W.2d 485 (S.D.1978). We hold that the evidence presented in this case adequately supports a rational theory of guilt.\\nII.\\nAppellant also urges that the trial court erred by admitting the testimony of Detective Beck pertaining to his telephone conversation with someone he recognized as being Ed Branson, an acquaintance of appellant. (See FACTS, supra.) At trial, Branson was called as a witness by the State. He testified that he did not make a telephone call to Detective Beck, had never met Detective Beck, and did not know Detective Beck. The State subsequently called Detective Beck as a witness who testified, over appellant's objection, with regard to the substance of the telephone call in question. The trial court overruled appellant's objection based upon SDCL 19-14-8, which states: \\\"The credibility of a witness may be attacked by any party, including the party calling him.\\\"\\nSpecifically, appellant maintains that there did not exist sufficient foundation for Detective Beck's testimony to be admitted\\ninto evidence. We do not agree. SDCL 19-17-1(5) provides:\\nThe requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this section:\\n(5) Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.\\nAs we stated in State v. Thibodeau, 89 S.D. 404, 408, 233 N.W.2d 326, 329 (1975) (emphasis supplied), citing People v. Goodman, 159 Cal.App.2d 54, 323 P.2d 536 (1958):\\n\\\"When the identity of the party against whom a telephone conversation is sought to be admitted has been established by some evidence, either direct or circumstantial, the conversation may be shown in the same manner, and with like effect, as conversations had between individuals face to face.\\\"\\nHere, Detective Beck testified that he had talked to Ed Branson both before and after the call, and had also personally met with him. As previously mentioned, the caller identified himself as \\\"Ed.\\\" We hold that there was sufficient foundation for the admittance of the testimony of Detective Beck.\\nAppellant also contends that the telephone conversation testimony of Detective Beck should not have been admitted because it constituted hearsay. This testimony, however, was not elicited to prove the truth of Branson's statements, SDCL 19-16-1(3), but rather to show that an acquaintance of appellant called the police station within a few hours of the burglary and inquired about appellant. We hold that this testimony was not hearsay in nature. Cf. State v. Gage, 302 N.W.2d 793 (S.D.1981).\\nWe have reviewed the remaining issues raised and find them to be without merit.\\nThe judgment of the trial court is affirmed.\\nAll the Justices concur.\"}"
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+"{\"id\": \"10681728\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Gary D. CARLSON, Defendant and Appellant\", \"name_abbreviation\": \"State v. Carlson\", \"decision_date\": \"1981-05-06\", \"docket_number\": \"No. 12986\", \"first_page\": \"675\", \"last_page\": \"677\", \"citations\": \"305 N.W.2d 675\", \"volume\": \"305\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:49:11.507705+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Gary D. CARLSON, Defendant and Appellant.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Appellee, v. Gary D. CARLSON, Defendant and Appellant.\\nNo. 12986.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Sept. 10, 1980.\\nDecided May 6, 1981.\\nMargaret Crew, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meier-henry, Atty. Gen., Pierre, on brief.\\nT. R. Pardy, Mumford, Protsch, Sage & Pardy, Howard, for defendant and appellant.\", \"word_count\": \"1139\", \"char_count\": \"6951\", \"text\": \"PER CURIAM.\\nAppellant was charged with aggravated assault and resisting arrest. He was convicted of simple assault and resisting arrest. We reverse and remand for new trial.\\nOn December 23,1978, appellant's mother called the Mitchell police station and asked the police to go to her home and talk to appellant. Two. policemen went to the Carlson home; appellant answered the door. The policemen testified that they entered the house after appellant opened the door and stepped aside. Appellant testified that the policemen pushed their way into the house after he told them that he would talk to them \\\"right where they were at.\\\"\\nAn altercation broke out as the policemen entered the house. According to the policemen, appellant poked and shoved one of them, causing the officer to fall. Both policemen attempted to restrain appellant, who had started to kick and hit. Appellant was told that he was under arrest; the struggle continued and appellant's arm was broken while the policemen attempted to handcuff him.\\nAppellant's testimony on direct examination was limited to his version of the events of December 23, 1978. Appellant offered no evidence of his credibility, veracity, past conduct, or nondisposition to commit an assault. He did assert the defense of self-defense. During a chambers conference, the State's motion to cross-examine appellant about his two prior assault convictions was granted for the purpose of allowing the State to rebut appellant's claim of self-defense. The trial court permitted the following cross-examination:\\nQ (By MR. SAUKERSON:) Mr. Carlson, have you ever been convicted of an assault before?\\nA Yes, I have.\\nMR. PARDY: I object for the reasons stated in Chambers.\\nTHE COURT: Overruled.\\nQ (By MR. SAUKERSON:) On how many occasions?\\nA Twice.\\nMR. SAUKERSON: I have no further questions.\\nTHE COURT: You may cross, or re-direct.\\nMR. PARDY: No questions.\\nAppellant argues, and the State concedes that the evidence of appellant's two prior misdemeanor simple assault convictions is not admissible under SDCL 19-14-12. See State v. Bacon, 286 N.W.2d 331 (S.D.1979). The State argues, however, that the cross-examination of appellant about the misdemeanor convictions was proper under SDCL 19-12-5 because appellant placed his intent at issue by contending that his actions were done in self-defense.\\nDuring the in-chambers conference, the State summarized its reasons for urging the introduction of the prior conviction evidence:\\nMR. SAUKERSON: I'm not sure how I phrased this when we first started, but the offer of proof that I made was directed number one at the impeaching the credibility of the witness and number two, as evidence based on the defense of self-defense of the aggressive and violent character of the Defendant and in re-butting his assertion that he was simply defending himself.\\nAnd I think that the offer of proof that I made concerning the previous convictions for assault and previous incident on June of 1977 are relevant and admissible on those grounds.\\nThe trial court allowed the introduction for the following reasons:\\nTHE COURT: .\\nNumber three, when we get into the area of the character of the Defendant for aggressiveness due to the raising of the self-defense issue, you may go into the issue of the witness as to the \\u2014 whether he has knowledge of his character, reputation within the community for being a fighter and you may go into whether the Defendant has been convicted of an assault.\\nThe Court will not allow the specifics of any one conviction or the specifics of \\u2014 in other words, what specifically the reputation is based upon as far as specifically instances in the past. We are not tying (sic) any of those.\\nThe State has cited us to no authority that would support the admission of the testimony regarding the two prior assault convictions for the purpose for which it was offered. We think that what the Supreme Court of Wyoming said in a somewhat similar case is apposite here:\\nIt is conceded that where the defendant first introduces evidence of his character, the prosecution may then explore the matters raised by the accused, both on cross-examination of the accused's witnesses to test their views and basis for their testimony, and on rebuttal. In this case, the question is \\u2014 did the accused open up the issue of his character by introducing evidence to the effect that he had acted in self-defense? The State argues this point without citing any authority whatev\\u00e9r. In addition, we can find none and, therefore, must assume that authority does not exist for this proposition, or, if there is authority, it is not supportive of the point urged by the State.\\nKwallek v. State, 596 P.2d 1372, 1378-79 (Wyo.1979) (footnote omitted).\\nUnder the facts of this case we conclude that it was prejudicial error to allow the prosecution to cross-examine appellant about the prior assault convictions.\\nAppellant argues that the warrant-less arrest in his home was illegal because the policemen had no authority to enter the home. The officers, however, were legitimately on the premises at the request of appellant's mother, see State v. Lewis, 86 S.D. 763, 201 N.W.2d 397 (1972), State v. Sobczak, 259 Minn. 518, 108 N.W.2d 310 (1961), and had the authority to arrest pursuant to SDCL 23-22-7(1).\\nThe judgment of conviction is reversed, and the case is remanded to the circuit court for new trial.\\n. SDCL 19-14-12 provides:\\nFor the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or the accused and the crime\\n(1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or\\n(2) involved dishonesty or false statement, regardless of the punishment.\\n. SDCL 19-12-5 provides:\\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.\\n. See SDCL 19-12-4:\\nEvidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:\\n(1) Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same[.]\\n. See SDCL 23A-3-2(l).\"}"
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+"{\"id\": \"10687287\", \"name\": \"STATE of South Dakota, Plaintiff and Respondent, v. Daniel HALL, Defendant and Appellant\", \"name_abbreviation\": \"State v. Hall\", \"decision_date\": \"1978-12-07\", \"docket_number\": \"No. 12088\", \"first_page\": \"308\", \"last_page\": \"313\", \"citations\": \"272 N.W.2d 308\", \"volume\": \"272\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:16:05.282269+00:00\", \"provenance\": \"CAP\", \"judges\": \"DUNN, PORTER and MORGAN, JJ., concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Respondent, v. Daniel HALL, Defendant and Appellant.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Respondent, v. Daniel HALL, Defendant and Appellant.\\nNo. 12088.\\nSupreme Court of South Dakota.\\nDec. 7, 1978.\\nJudith A. Atkinson, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on brief.\\nThomas M. Maher of Duncan, Olinger, Srstka, Maher & Lovald, Pierre, for defendant and appellant.\", \"word_count\": \"2504\", \"char_count\": \"15025\", \"text\": \"ZASTROW, Justice.\\nDefendant was involved in a short-lived fight at the Hop Scotch Bar in Fort Pierre. After the incident, the defendant's victim swore out a complaint charging defendant with assault and battery, a misdemeanor. A few weeks later, at the victim's request, the Stanley County State's Attorney dismissed the misdemeanor charge and a preliminary information charging a felony of assault with intent to inflict great bodily injury was substituted. Following a preliminary hearing, defendant was bound over and stood trial before a Stanley County jury. The jury returned a verdict of guilty on the lesser included offense of assault and battery. Defendant appeals from the jury verdict and judgment of conviction.\\nThe defendant raises three issues in his appeal:\\n(1) Was he denied his right to a jury drawn from a fair cross-section of the community?\\n(2) Were the trial court's post-submission communications to the jury coercive?\\n(3) Has the defendant been subjected to double jeopardy?\\nJURY PANEL COMPOSITION\\nThe initial jury panel consisted of fifty citizens, with nearly an equal number of male and female members. Prior to the trial, twenty-six members of the panel were excused by the presiding judge. At the commencement of defendant's trial, the panel consisted of seven men and nineteen women. The jury selected to hear the case consisted of three men and nine women, according to the defendant's brief.\\nThe state argues that the defendant must prove an intentional and purposeful discrimination against an identifiable community group in order to succeed in his challenge of the jury array. In support of its position, the state relies upon this court's decision in State v. Plenty Horse, 1971, 85 S.D. 401, 184 N.W.2d 654. Plenty Horse was based upon the Fourteenth Amendment and applied the standard first enunciated in Strauder v. West Virginia, 1880, 100 U.S. 303, 25 L.Ed. 664, that a criminal defendant is denied equal protection of the law if, as a result of purposeful discrimination, members of his race are excluded from jury duty.\\nHowever, since Plenty Horse, the United States Supreme Court has decided Peters v. Kiff, 1972, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, and Taylor v. Louisiana, 1975, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690. These cases hold that the Sixth Amendment, as applied to the states by the Fourteenth Amendment, requires that all state petit juries must be selected at random from a fair cross-section of the community. The South Dakota legislature had adopted a statute which provides a similar requirement:\\n\\\"It is the policy of the state of South Dakota that all litigants in the courts of this state entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the municipality, district or county where the court convenes. \\\" SDCL 16-13-10.1.\\nIt is apparent that the burden is now upon the judiciary, not only to prevent purposeful discrimination against minorities but to insure that all identifiable groups in the community are fairly represented on jury panels. In Taylor, the fair cross-section requirement was held violated where women, who composed fifty-three percent of the community, made up only ten percent of the jury wheel and were not represented on the jury venire.\\nIt is not important whether the underrep-resentation is purposeful or not, nor whether it arose from the selection of the jury panel or after through the granting of statutory exemptions or excuses. In United States v. Armsbury, 1976, D.C.Or., 408 F.Supp. 1130, a case cited by the state, the federal district judge stated:\\n\\\"Even if these excuses (for extreme inconvenience and undue hardship) do result in the underrepresentation of certain cognizable groups, the statutory authority to grant them is not unconstitutional. Whether exemptions based on excuse are constitutional or not will depend on each excuse. If the excuse reflects a rational accommodation between the community's need for jurors and its need for uninterrupted professional or other important services, then it is constitutional.\\n\\n\\\"(However), if a substantial threat is posed to the representative nature of the jury pool because of constitutionally granted excuses, then supplemental names must be added to correct any gross imbalance.\\\" 408 F.Supp. at 1135. (emphasis added)\\nAlthough the United States Supreme Court has not indicated what percentage of underrepresentation on a single panel would constitute a violation of the fair cross-section requirement, it appears that an absolute percentage difference of fifteen percent or more would require supplementation of the jury panel. See United States v. Test, 1976, 10 Cir., 550 F.2d 577; Foster v. Sparks, 1975, 5 Cir., 506 F.2d 805.\\nThe defendant concludes that a jury panel of seven men and nineteen women (a 27% composition of males) violates the fair cross-section requirement. To do so, he assumes, without proof, that men comprise fifty percent of the population of Stanley County. The underrepresentation would be an absolute percentage difference of twenty-three percent (i. e., 50%-27% = 23%). If those were the final figures, we assume that the panel would not contain a fair representation of men and would require supplementation.\\nHowever, after the defendant made his objection to the jury panel composition, a second panel was called. When or for what purpose it was called does not appear in the settled record. The composition of the second panel does not appear in the settled record, nor was any further challenge of the jury panels made after it was called. The record was settled without a transcript of the voir dire proceedings or the clerk's juror records. As has been stated before; the settled record is the sole evidence of the trial court's proceedings, Boettcher v. Thompson, 21 S.D. 169, 110 N.W. 108, and it is the obligation of the parties to see that the settled record contains all matters necessary for the disposition of the issues raised on appeal. Belcher v. Spillman, 1975, 28 Ill.App.3d 973, 329 N.E.2d 550.\\nThe defendant's failure to include in the settled record the entire voir dire proceedings leaves this court in a position of speculating as to the composition of the two combined jury panels. The defendant would have us presume that because the petit jury selected to try this case was composed of three men and nine women, the second jury panel suffered from the same underrepresentation of men. It was stated in Taylor, supra:\\n\\\"It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.\\\" 419 U.S. at 538, 95 S.Ct. at 702, 42 L.Ed.2d at 702-703.\\nWe therefore refuse to presume, because the petit jury members were disproportionately women, that the source was not a fair cross-section of the community. State v. Tucker, 1978, 118 Ariz. 76, 574 P.2d 1295. If we draw any presumption from an incomplete settled record, the presumption is that the trial court acted properly. Schurman v. Schurman, 60 S.D. 489, 245 N.W. 39; LaPlaca v. Gilbert and Wolf, Inc., 1976, 37 Ill.App.3d 259, 345 N.E.2d 774. In the absence of any evidence in the settled record to the contrary, we presume that the trial court acted correctly and that the second panel was called to correct the underrepre-sentation of males on the jury panel.\\nCOMMUNICATIONS WITH JURY\\nThe trial in this case began with the selection of the jury on July 19, 1976. After hearing one witness, the court took an early recess for the day; court did not resume until 9:30 a. m., the following day to allow the jurors sufficient travel time. The matter was submitted to the jury at 6 p. m., on July 20,1976, following the giving of the court's instructions and closing arguments.\\nAfter taking a break for dinner, the jury resumed its deliberations. At 10:30 p. m., the trial judge sent the following communication to the jury:\\n\\\"Please advise whether you believe that you will be able to arrive at a verdict in this case, or whether you believe that you are hopelessly deadlocked. Do not reveal how you stand numerically or otherwise in responding to this communication.\\\"\\nand received the reply from the jury foreman:\\n\\\"We have taken considerable time reviewing your instructions and have taken two votes but have not reached a decision. We do not feel we are hopelessly deadlocked.\\\"\\nJust before midnight, the trial judge again sent the same message to the jury and received the reply: \\\"We are making progress and have taken four votes.\\\" At that time, the trial judge advised counsel that if a verdict was not reached by 1 a. m., he would declare a mistrial. At 12:51 a. m., the jury returned a verdict of guilty on the lesser charge of assault and battery. Defendant asserts that the trial judge's messages to the jury coerced and pressured the verdict.\\nThis court has previously held that the \\\"Allen charge\\\" or \\\"get-together instruction\\\" is not to.be used in criminal trials in this state's courts. State v. Ferguson, 1970, 84 S.D. 605, 175 N.W.2d 57. Defendant admits that the communications with the jury were not in the form of an \\\"Allen charge\\\" or \\\"get-together instruction,\\\" but asserts that the message contained an innuendo that the verdict should be reached as soon as possible.\\nThe ABA Standards for Criminal Justice, The Function of the Trial Judge, \\u00a7 5.2(b) express the prevalent rule that\\n\\\"[t]he trial judge should require a record to be kept of all communications received by him from a juror or the jury after the jury has been sworn, and he should not communicate with a juror or the jury on any aspect of the case itself (as distinguished from matters relating to physical comforts and the like), except after notice to all parties and reasonable opportunity for them to be present.\\\"\\nSee also 75 Am.Jur.2d, Trial, \\u00a7 1001. Defendant here makes no complaint that the trial judge's communications to the jury were without notice to him or in his absence.\\nThe ABA Standards for Criminal Justice, Trial by Jury, \\u00a7 5.4(b), (c) suggest:\\n\\\"(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.\\n(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.\\\"\\nThe problem presented by these standards and case authority is how the trial court is to determine whether the jury has reached an impasse after several hours of deliberation.\\nThe North Dakota, Michigan, Minnesota and Tennessee courts have established guidelines in State v. Klein, 1972, N.D., 200 N.W.2d 288; People v. Luther, 1974, 53 Mich.App. 648, 219 N.W.2d 812; State v. Mims, 1975, 306 Minn. 159, 235 N.W.2d 381; Kersey v. State, 1975, Tenn., 525 S.W.2d 139, that such determination be made by communicating in open court. This, of course, would be required only in the absence of agreement by the defendant and his counsel to a written communication.\\n\\\"If orderly supervision of the docket or conveni\\u00e9nce of the jury, the parties, the lawyers, or court personnel requires that the judge be informed as to the prospect of the jury's reaching a verdict by a certain time, the proper procedure is to recall the jury to the courtroom. There upon, in the presence of defendant and counsel, the judge should direct the jury foreman to poll the jury in private in the jury room and then to return and inform the judge whether a majority does or does not believe a verdict can be reached by a certain time.\\\" State v. Mims, 235 N.W.2d at 387.\\n\\\"(However), [t]he trial court should admonish the jury at the very outset not to indicate how they stand as to conviction or acquittal or whether they entertain a predominant view.\\\" State v. Hutchins, 1964, 43 N.J. 85, 202 A.2d 678.\\nSee also People v. Luther, supra, 219 N.W.2d at 814.\\nIn each of those cases, communications with the jury in open court was approved. The content of the communications was not held to be coercive even though a definite time was mentioned in the message. Here the communication did not contain any reference to a time and is not in any manner coercive. Since defendant does not object to the form of the communication, but only its substance, we find no error.\\nDOUBLE JEOPARDY\\nAfter the filing of the original misdemeanor complaint for assault and battery, the state's attorney moved to dismiss the charge and to substitute the felony charge of assault with the intent to do great bodily injury. The form used by the state's attorney recited that the basis for the dismissal was for \\\"insufficient evidence to sustain a conviction\\\" and to allow the filing of a \\\"substituted\\\" charge.\\nDefendant's trial counsel asserted that the trial on the assault with the intent to do great bodily injury constituted double jeopardy. In his appellate brief, defendant does not cite any authority in support of his double jeopardy claim and we deem it abandoned. Instead, defendant asserts on appeal that the state should be held to have waived the charge of assault and battery. However, the jury instruction on the necessarily included offense of assault and battery was given without any objection by defendant. If there was error, it was waived by defendant's failure to object to the instruction.\\nThe judgment of conviction is affirmed.\\nDUNN, PORTER and MORGAN, JJ., concur.\\nWOLLMAN, C. J., concurs in result.\\n. This percentage is taken from Swain v. Alabama, 1965, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, and Jones v. Georgia, 1967, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25, although both are discrimination cases, these percentages have been used to determine what is or is not a substantial underrepresentation on a single jury panel. See, e. g., Ross v. Wyrick, 1978, D.C.Mo., 446 F.Supp. 178. Although smaller percentages over a long period of time may support a challenge that the selection process does not provide a fair cross-section, no single panel difference of less than the 14.7% in Jones v. Georgia, supra, has been found supporting such challenges. Trial judges may avoid these challenges by supplementing any jury panel where an identifiable group is underrepresented by fifteen percent or more.\\n. Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528.\"}"
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+"{\"id\": \"10688810\", \"name\": \"M B, INC., a South Dakota Corporation, Respondent, v. The CITY OF SIOUX FALLS, Rick Knobe, in his capacity as Mayor of the City of Sioux Falls, Earl McCart, in his capacity as City Commissioner of Sioux Falls, and David Witte, in his capacity as City Commissioner of the City of Sioux Falls, and the City Commission of the City of Sioux Falls, Collectively, Appellants\", \"name_abbreviation\": \"M B, Inc. v. City of Sioux Falls\", \"decision_date\": \"1978-06-20\", \"docket_number\": \"No. 12118\", \"first_page\": \"580\", \"last_page\": \"582\", \"citations\": \"267 N.W.2d 580\", \"volume\": \"267\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:58:31.522169+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"M B, INC., a South Dakota Corporation, Respondent, v. The CITY OF SIOUX FALLS, Rick Knobe, in his capacity as Mayor of the City of Sioux Falls, Earl McCart, in his capacity as City Commissioner of Sioux Falls, and David Witte, in his capacity as City Commissioner of the City of Sioux Falls, and the City Commission of the City of Sioux Falls, Collectively, Appellants.\", \"head_matter\": \"M B, INC., a South Dakota Corporation, Respondent, v. The CITY OF SIOUX FALLS, Rick Knobe, in his capacity as Mayor of the City of Sioux Falls, Earl McCart, in his capacity as City Commissioner of Sioux Falls, and David Witte, in his capacity as City Commissioner of the City of Sioux Falls, and the City Commission of the City of Sioux Falls, Collectively, Appellants.\\nNo. 12118.\\nSupreme Court of South Dakota.\\nJune 20, 1978.\\nWilliam G. Taylor, Jr., of Woods, Fuller, Shultz & Smith, Sioux Falls, for respondent.\\nRoger A. Schiager, Sioux Falls City Atty., Sioux Falls, for appellants.\", \"word_count\": \"673\", \"char_count\": \"4026\", \"text\": \"PER CURIAM.\\nThe issue on appeal is whether or not a resolution adopted by appellant Sioux Falls City Commission on September 2,1975, lawfully restricted the number of retail, on-sale liquor licenses that the city could issue for calendar year 1976. The Circuit Court of the Second Judicial Circuit concluded that the resolution was ineffective and issued a peremptory writ of mandamus directing the City Commission to consider respondent M B, Inc.'s application for a retail, on-sale liquor license on the merits. We reverse.\\nUnder the formula provided in SDCL 35-4-11, the City of Sioux Falls qualified for fifty-one on-sale liquor licenses for calendar year 1976. Pursuant to that statute, the city, through its City Commission, could determine the number of on-sale licenses it would approve for the ensuing year \\\"on or before the first of September.\\\" September 1,1975 was Labor Day, a day designated as a legal holiday by SDCL 1-5-1 and City Ordinance 30-124. Because of this, the City Commission's regular meeting was scheduled for September 2, 1975.\\nAt the September 2, 1975 meeting, the City Commission adopted a resolution stating that fifty on-sale liquor licenses would be available for calendar year 1976. M B, Inc. applied for a retail, on-sale liquor license on January 19,1976. The City Commission declined to consider the application, asserting that the fifty available licenses were already issued or reserved.\\nThe governing boards of municipalities may exercise their power to determine the number of available liquor licenses up to and including September 1. SDCL 35 \\u2014 4-11. When September 1 is Labor Day, a duly defined legal holiday, municipalities are given the option of acting on either September 1 or September 2. SDCL 1-5-2 allows public business to be transacted on those days designated as holidays; only Sunday is excepted. Had the Commission acted on September 1, 1975, Labor Day, there is no question that its action would be valid.\\nThe other option involves SDCL 1-5-4, one of three statutes dealing with the measurement of time periods. It provides:\\n\\\"Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day, with the same effect as if it had been performed upon the day appointed.\\\"\\nSee also SDCL 15-6-6(a) and SDCL 2-14-4.\\nSecular is defined as \\\"[n]ot spiritual; not ecclesiastical; relating to affairs of the present world.\\\" Black's Law Dictionary 1521 (4th' Ed. Rev. 1968). The City Commission's determination of the number of licenses clearly fits within this definition. We have held that this statute does apply to those acts which may properly be done over a period of time. Dobson v. Lindekugel, 39 S.D. 374, 164 N.W. 269; Davidson v. Bubb, 62 S.D. 623, 256 N.W. 116; Baruth v. Board of Com'rs, 50 S.D. 249, 209 N.W. 341. In the case at hand, the passage of the resolution limiting on-sale licenses to fifty on September 2 has the effect of passage on September 1 and is valid under SDCL 1-5-4. Therefore, no licenses were available at the time of the M B, Inc. application.\\nBecause of our holding that the City Commission's action of September 2, 1975, effectively limited the number of available licenses, we feel it unnecessary to consider whether mandamus was the proper remedy for M B, Inc.\\nThe judgment is reversed.\"}"
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+"{\"id\": \"10689321\", \"name\": \"STATE of South Dakota, Plaintiff and Respondent, v. James A. FAHEY, Defendant and Appellant\", \"name_abbreviation\": \"State v. Fahey\", \"decision_date\": \"1979-03-01\", \"docket_number\": \"No. 12343\", \"first_page\": \"870\", \"last_page\": \"871\", \"citations\": \"275 N.W.2d 870\", \"volume\": \"275\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T02:14:35.018284+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of South Dakota, Plaintiff and Respondent, v. James A. FAHEY, Defendant and Appellant.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Respondent, v. James A. FAHEY, Defendant and Appellant.\\nNo. 12343.\\nSupreme Court of South Dakota.\\nMarch 1, 1979.\\nJudith A. Atkinson, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.\\nWilliam J. Srstka, Jr., of Duncan, Olinger, Srstka, Maher & Lovald, Pierre, for defendant and appellant.\", \"word_count\": \"909\", \"char_count\": \"5450\", \"text\": \"PER CURIAM.\\nThis is a DWI case. It is before us on appeal regarding the propriety of the circuit judge receiving into evidence the results of James Fahey's breathalyzer test. The blood alcohol was 0.22%. The trial court denied a motion to suppress. We are convinced that Fahey's contention that the trial court erred is without merit.\\nFahey consented to a breathalyzer test after his arrest for DWI on May 5, 1977. Two preliminary hearings were held herein. The first was held on May 20,1977, before a law-trained magistrate. The law-trained magistrate granted Fahey's motion to dismiss. The second was held on June 7,1977, before a circuit judge and Fahey was bound over for trial.\\nAt the conclusion of the first preliminary hearing, the law-trained magistrate expressed: \\\"To the extent the State disagrees with me and feels strongly about pushing this matter further, I would suggest it be scheduled for preliminary hearing before a different Judge next time, but I am going to grant the Motion (to dismiss).\\\" Counsel for Fahey indicated \\\"very good, Your Hon- or.\\\" Fahey proceeded into the second preliminary hearing willingly and without objection and upon a new warrant of arrest and new preliminary information.\\nA jury trial was set for July 22, 1977. Fahey waived jury trial and consented to a court trial. Both counsel for the State and Fahey agreed to stipulate into evidence the preliminary hearing transcript of June 7, 1977. There were no witnesses called. Both sides rested. Fahey and the State then stipulated that the State need not lay a foundation for the breathalyzer test and further stipulated the results of the blood alcohol to be at 0.22%.\\nCounsel for Fahey renewed his earlier motion to suppress the results of the breathalyzer test which was promptly denied and the court announced his decision of finding Fahey guilty of DWI.\\nFahey's motion to suppress is based on the legal premise that the law-trained magistrate, in the first preliminary hearing, had discharged Fahey for the reason there was no valid arrest as the arresting officer did not have probable cause to stop Fahey. The record reflects: The arresting officer responded to a call from his desk sergeant; the officer saw Fahey's vehicle cross the center line of traffic; the officer followed Fahey's vehicle and noted Fahey failed to signal when turning at a corner; the officer saw Fahey's vehicle stop beyond a stop sign; and lastly, the officer saw Fahey unsteady on his feet when he emerged from his vehicle, face flushed, with open beer cans and one-half pint of liquor in the middle of the front seat.\\nFahey argues that the May 20, 1977, determination that there was no probable cause for his arrest is binding on the circuit court. If this is the case, it would be error to receive the test results into evidence because the administration of a breathalyzer test following an illegal arrest makes the test invalid in law. Holland v. Parker, 354 F.Supp. 196 (D.C.S.D.1973); State ex rel. Wilson v. Nash, 41 Ohio App.2d 201, 324 N.E.2d 774 (1974); Commonwealth v. Modich, 233 Pa. Super. 92, 334 A.2d 717 (1975).\\nFahey's contention, however, is without merit. The purpose of a preliminary hearing is to ascertain whether a public offense has been committed and whether there is sufficient cause to believe the defendant is guilty thereof. SDCL 23-27-16. The preliminary hearing does not place a defendant in jeopardy. United States v. Levy, 268 U.S. 390, 45 S.Ct. 516, 69 L.Ed. 1010 (1924); People v. Riley, 72 Mich.App. 299, 249 N.W.2d 397 (1977). No verdict flows from the magistrate's determination; the magistrate's ruling is not a final judgment of a court. State v. Heisinger, S.D., 252 N.W.2d 899 (1977); State v. Wagner, 86 S.D. 382, 196 N.W.2d 360 (1972). If, as happened here, the magistrate fails to find that a crime has been committed, that determination is not an adjudication of the matter. Fugate v. Ronin, 167 Neb. 70, 91 N.W.2d 240 (1958). Nor is that determination a bar to further prosecution on another complaint charging the same offense. State v. McCombs, 164 Kan. 334, 188 P.2d 922 (1948).\\nA defense of res judicata or collateral estoppel is inapplicable simply because a criminal proceeding has been dismissed at the conclusion of a preliminary hearing. People v. Uhlemann, 9 Cal.3d 662, 108 Cal.Rptr. 657, 511 P.2d 609 (1973). In criminal eases, these doctrines are limited to situations where jeopardy has attached at the prior proceeding. In re Crow, 4 Cal.3d 613, 94 Cal.Rptr. 254, 483 P.2d 1206. Consequently, the issue of the legality of Fahey's arrest made at the first preliminary hearing is of no consequence. The magistrate at the second preliminary hearing, who was a circuit judge acting as a magistrate, and the trial judge during the trial were free to make their own determination as to the legality of arrest. Therefore, it was not error to admit the chemical test. Fahey cannot use the ruling at the conclusion of the first preliminary hearing as a springboard for his motion to suppress during the trial.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"10689882\", \"name\": \"Ellard ANDERSON, H. J. Henle, Melvin Halt, Harold Young, S. W. Peterson, Oliver J. Hult, John Isakson, Merle Lykken, Stanley Akland, Isaac Lykken, Marvin Sommervold, Arthur Vetos, Gilbert Ustad, Willard Jensen, Earl Ellison, Ernest Jensen, Oliver Carlson and Edwin Thormodsgaard, Plaintiffs and Appellants, v. Robert G. KENNEDY, the School Board of Beresford School District, No. 61-2 of Union County, South Dakota, and Beresford School District, No. 61-2 of Union County, South Dakota, Defendants and Respondents\", \"name_abbreviation\": \"Anderson v. Kennedy\", \"decision_date\": \"1978-04-06\", \"docket_number\": \"No. 12279\", \"first_page\": \"714\", \"last_page\": \"719\", \"citations\": \"264 N.W.2d 714\", \"volume\": \"264\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T02:13:42.951992+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"Ellard ANDERSON, H. J. Henle, Melvin Halt, Harold Young, S. W. Peterson, Oliver J. Hult, John Isakson, Merle Lykken, Stanley Akland, Isaac Lykken, Marvin Sommervold, Arthur Vetos, Gilbert Ustad, Willard Jensen, Earl Ellison, Ernest Jensen, Oliver Carlson and Edwin Thormodsgaard, Plaintiffs and Appellants, v. Robert G. KENNEDY, the School Board of Beresford School District, No. 61-2 of Union County, South Dakota, and Beresford School District, No. 61-2 of Union County, South Dakota, Defendants and Respondents.\", \"head_matter\": \"Ellard ANDERSON, H. J. Henle, Melvin Halt, Harold Young, S. W. Peterson, Oliver J. Hult, John Isakson, Merle Lykken, Stanley Akland, Isaac Lykken, Marvin Sommervold, Arthur Vetos, Gilbert Ustad, Willard Jensen, Earl Ellison, Ernest Jensen, Oliver Carlson and Edwin Thormodsgaard, Plaintiffs and Appellants, v. Robert G. KENNEDY, the School Board of Beresford School District, No. 61-2 of Union County, South Dakota, and Beresford School District, No. 61-2 of Union County, South Dakota, Defendants and Respondents.\\nNo. 12279.\\nSupreme Court of South Dakota.\\nApril 6, 1978.\\nRehearing Denied May 12, 1978.\\nCharles Lacey, Sioux Falls, for plaintiffs and appellants.\\nPhillip 0. Peterson of Frieberg, Frieberg & Peterson, Beresford, for defendants and respondents.\", \"word_count\": \"2460\", \"char_count\": \"14870\", \"text\": \"ZASTROW, Justice.\\nThis action was brought by the appellants, who reside within the Beresford School District, in their capacity as taxpayers. They sought to enjoin the respondents, Beresford School Board (Board) and Robert Kennedy (Kennedy), chairman of the Board, from opening and accepting bids for the construction of an auditorium-gymnasium.\\nThis appeal is a result of the circuit court's denial of appellants' request for an interlocutory injunction and its granting of the respondents' motion for summary judgment.\\nThe Board's official minutes reveal that on January 10, 1977, the Board passed a motion which directed an architect to draw preliminary plans for an auditorium-gymnasium within the limits of the monies available in the capital outlay fund. At a special meeting on March 11, 1977, the Board passed a motion \\\"directing the architects to proceed to develop the proposed plan recommended by the architect, leaving options for changes.\\\" The architect advised the Board at the March 11 meeting that the specifications and working drawings on the project would be ready so that a June bid letting could be held.\\nThereafter, without further motions or resolutions on the plans and specifications, they were apparently submitted to the state superintendent of elementary and secondary education as required by SDCL 13-24-14. Approval from the superintendent was received on June 8, 1977. Although no exhibit is present, the parties acknowledge that an advertisement for bids was published on Kennedy's authority setting June 30, 1977 as the date for the \\\"bid letting.\\\"\\nAppellants served a summons, complaint and order to show cause upon respondents on June 27, 1977. The complaint alleged four grounds to support its request for an interlocutory and permanent injunction to be issued to prohibit the opening and acceptance of bids for the auditorium-gymnasium.\\nThe grounds alleged were: (1) that the Board had failed to make or pass any resolution or motion adopting or approving the architect's plans authorizing the construction of the auditorium-gymnasium or authorizing an advertisement for bids on the auditorium-gymnasium; (2) that the transfer of surplus general funds to the capital outlay funds was illegal; (3) that the transfers of surplus general funds to the capital outlay fund in the 1972-1973 and 1973-1974 fiscal years were allowed to accumulate from year to year in violation of SDCL 13-16-7; and (4) that the Board's decision to construct the auditorium-gymnasium was arbitrary and capricious.\\nA hearing on the order to show cause was held on June 28, 1977. The trial court denied the interlocutory injunction on the authority of Thies v. Renner, 1960, 78 S.D. 617, 106 N.W .2d 253, ruling that the only relief available to the appellants was by an appeal from the Board's action under SDCL 13-46-1.\\nThe Board opened the bids which had been submitted on June 30, 1977, and, according to respondents' brief, accepted the low bid. On July 5, 1977, the trial court granted summary judgment in the action on the grounds that (1) the matter was moot because the bids had been opened and accepted, and (2) that injunctive relief was not available to the appellants. The appellants filed their notice of appeal on July 7, 1977. The construction contract was executed on July 28, and the construction of the auditorium-gymnasium began on August 8, 1977. On August 16, 1977, upon appellants' motion, this court issued a stay conditioned upon the filing of a $25,000 supersedeas bond. The stay was subsequently vacated upon the failure of the appellants to file the bond required. The respondents have now filed with this court a motion to dismiss the appeal for mootness.\\nAccording to general rules of mootness adopted by this court, absence of an actual controversy between the litigating parties is reason for an appellate court to dismiss an appeal for mootness. Clarke v. Beadle County, 1918, 40 S.D. 597, 169 N.W. 23. An appeal will be dismissed as moot if, pending the appeal, an event occurs which makes a determination of it unnecessary or renders it clearly impossible for the appellate court to grant effectual relief. Dodds v. Bickle, 1957, 77 S.D. 54, 85 N.W.2d 284; State v. City of Veblen, 1930, 56 S.D. 394, 228 N.W. 802; 5 Am.Jur.2d Appeal and Error, \\u00a7 761, 913; 4 C.J.S. Appeal and Error \\u00a7 40; 5 C.J.S. Appeal and Error \\u00a7 1354(2), 1362; Note, \\\"Cases Moot on Appeal,\\\" 103 U.Pa.L.Rev. 772.\\nAn appeal from an order denying injunc-tive relief will be dismissed as moot because no effectual relief can be given where, pending the appeal, the acts sought to be enjoined have been performed or completed. Hansen v. Gregory County, 1934, 63 S.D. 116, 256 N.W. 797; 5 C.J.S. Appeal and Error \\u00a7 1362. Here, the appellants sought to enjoin the opening and accepting of the bids on the auditorium-gymnasium. The denial of the interlocutory injunction allowed the Board to proceed to open and accept the bids and subsequently execute the construction contract. The failure of the appellants to comply with the conditions of the stay issued by this court resulted in its vacation, which in turn resulted in the construction and completion of the auditorium-gymnasium.\\nThe reversal of the trial court's decision would not be an effectual relief, inasmuch as the action sought to be restrained has long since passed. The controversy is now moot.\\n\\\"(However), [i]t is a well-established rule that an appellate court may retain an appeal for hearing and determination if it involves questions of public interest even though it has become moot so far as the particular action or the parties are concerned . The decision as to whether to retain a moot case in order to pass on a question of public interest lies in the discretion of the court and generally a court will determine a moot question of public importance if it feels that the value of its determination as a precedent is sufficient to overcome the rule against considering moot questions.\\\" 5 Am. Jur.2d, Appeal and Error, \\u00a7 768.\\nSee also Annot., 132 A.L.R. 1185; 5 C.J.S. Appeal and Error \\u00a7 1354(2).\\nIn the invocation of the public interest exception, the courts require the existence of three criteria: (1) general public importance, (2) probable future recurrence, and (3) probable future mootness. United States v. Trans-Missouri Freight Association, 1897, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007; Southern P. Terminal Co. v. Interstate Com. Com'n, 1911, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310; 5 Am.Jur.2d, Appeal and Error, \\u00a7 768; 5 C.J.S. Appeal and Error \\u00a7 1354(1).\\nOne of the issues raised by the appellants satisfies these requirements and is one which this court feels requires an authoritative determination for the guidance of the public, school boards and their members, and the judiciary. The issue is whether a taxpayer can secure injunctive relief to prevent the school board and its members from illegally entering into a construction contract.\\nThe trial court determined that a taxpayer's only relief from an action by a school board is by an appeal under SDCL 13-46-1. However, as was pointed out in Blumer v. Sch. Bd. of Beresford Ind. S. D., 1977, S.D., 250 N.W.2d 282, such an appeal is restricted to \\\" 'any person aggrieved, or by any party to the proceedings, or by any school district interested .' \\\" Here, the appellants could only seek such an appeal as \\\"any person aggrieved.\\\" In Blumer, supra, we held that for a taxpayer to be a \\\"person aggrieved\\\" he must be able to affirmatively show a special detriment in his individual or personal capacity, 250 N.W.2d at 283. Here, the appellants were acting only as representative taxpayers and could not have appealed under SDCL 13-46-1.\\nA prerequisite to injunctive relief is, of course, the lack of an adequate and complete remedy at law. 42 Am.Jur.2d, Injunctions, \\u00a7 39, et seq. Until the repeal of SDCL 13-16-25 by Ch. 128, \\u00a7 377, S.L. 1975, a taxpayer would have had a statutory right to bring a suit against the individual board members for any school district funds which had been unlawfully expended. In the absence of a statute allowing such an action, a taxpayer may not be entitled to recover public funds paid under an illegal contract from either the public officials or the contractor in the absence of fraud or collusion. 65 Am.Jur.2d, Public Works and Contracts, \\u00a7 235; 56 Am.Jur.2d, Municipal Corporations, Etc., \\u00a7 288; 63 Am.Jur.2d, Public Officers and Employees, \\u00a7 294.\\nThe repeal of SDCL 13-16-25 and the restricted right of appeal under SDCL 13-46-1 would, under the trial court's ruling, prevent the ordinary taxpayer from ever challenging an expenditure of school district funds as being illegal. Where the remedy at law is inadequate, the granting of injunctive relief to a taxpayer has been long recognized to prevent the illegal expenditure of public funds, 42 Am.Jur.2d, Injunctions, \\u00a7 176; 43 C.J.S. Injunctions \\u00a7 112; 74 Am.Jur.2d, Taxpayers' Actions, \\u00a7 41, or to prevent the award or execution of an illegal contract. 65 Am.Jur.2d, Public Works and Contracts, \\u00a7 237.\\n\\\"Taxpayers have the right to restrain public servants from transcending their lawful powers, or violating their legal duties in any unauthorized mode, which will increase the burden of taxation or otherwise injuriously affect the taxpayers or their property.\\\" 43 C.J.S. Injunctions \\u00a7 108 c. at 619.\\nOf course, injunctions will not lie to prevent the exercise of a public office in a lawful manner. SDCL 21-8-2. Likewise, injunctive relief is not available to review discretionary acts of a school board unless it is shown to have been exercised in an illegal, unauthorized, or unlawful manner. 79 C.J.S. Schools and School Districts \\u00a7 420; 43 C.J.S. Injunctions \\u00a7 108, 112.\\nThe second ground asserted by the appellants, i. e., the transfer of excess general funds to the capital outlay funds, was held by this court in the case of Blumer v. School Bd. of Beresford, Etc., 1975, S.D., 237 N.W.2d 655, to be an act within the discretion of the school board, and thus would not be grounds for injunctive relief. Such a discretionary act could only be challenged by an appeal by an \\\"aggrieved person\\\" under SDCL 13-46-1.\\nThe fourth ground asserted by the appellants, i. e., that the Board abused its discretion in deciding to building the auditorium-gymnasium, is a matter of discretion in the Board's legal power and is, likewise, not a proper basis for injunctive relief. Thies v. Renner, supra.\\nHowever, the first and third grounds asserted by the appellants appear to have been of a different nature. The first ground, i. e., that the Board had not passed an appropriate resolution adopting the plans and specifications and authorizing the advertisement for bids, does appear to at least raise the issue of legality of the Board's or its chairman's action which would have justified temporary injunctive relief until the issue was resolved by the trial court. We express no opinion regarding the propriety of the action taken by the Board without a specific motion or resolution because the issue does not appear to be the topic of specific statutory provisions or judicial decision and was not an issue of this appeal. Cf., Anderson v. Grant County Board of Education, 1973, 87 S.D. 83, 203 N.W.2d 179. Furthermore, in the settled record of this appeal the action of the Board or its members at the meetings was not fully explored because the action was summarily dismissed by the trial court.\\nThe third ground, i. e., the carry over of capital outlay funds, is also an unsettled issue. Although in the first Blumer decision (237 N.W.2d 655) a transfer of surplus funds to the capital outlay fund was involved, it was only the surplus of one fiscal year carried over for expenditure in the next year. The propriety of a carry over involving three fiscal years has not been addressed by this court. However, this court has shown reluctance to allow the circumvention of the requirement of voter approval for large building programs by a school district in Schull Const. Co. v. Webster Ind. School Dist. No. 101, 86 S.D. 475, 198 N.W.2d 512. See also SDCL 13-16-6.3 and SDCL 13-19-9. Although we express no opinion on the merits of such a contention, it would appear to raise the issue of legality of the Board's action which should have been considered in the suit for injunc-tive relief. We also do not pass upon the validity of any defenses, such as laches, which would have been available to the defendants in this equitable action.\\nBecause the action which the appellants sought to restrain, i. e., the opening and acceptance of the bids, has long since passed and the injunctive relief sought could not be given, we do not remand this case for further proceedings and we dismiss the appeal; however, had the matter not become moot, we would have reversed the order of the trial court. Therefore, we award the appellants their statutory appeal costs.\\nAll the Justices concur.\\n. The discussion preceding the motion indicated that the fund amounted to $500,000 to $550,000.\\n. When or where the advertisement first appeared does not appear in the settled record, and no allegation has been made of a violation of the thirty-day requirement of SDCL 5-18-3 on new construction.\\n. In Stene v. School Bd. of Beresford Ind. Sch. Dist., No. 68, 87 S.D. 234, 206 N.W.2d 69, tax levies were challenged as being illegal; however, the court held \\\"[t]he approval of the budgets and the adoption of the accompanying levies were decisions of the school board from which appellants could have appealed\\\" under SDCL 13-46-1. Stene did not discuss whether the taxpayers were \\\"persons aggrieved,\\\" and it does not appear that the issue of standing was raised and decided as it was in Blumer v. Sch. Bd. of Beresford Ind. S. D., 1977, S.D., 250 N.W.2d 282.\\n. The use of writ of mandamus and prohibition in similar circumstances is discussed in 74 Am.Jur.2d, Taxpayers' Actions, \\u00a7 43, 45.\\n. The appellants have requested oral argument, respondents have not. Pursuant to SDCL 15-26-23.1, upon unanimous consent of the justices oral argument has been dispensed with.\"}"
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+"{\"id\": \"11220121\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Shanna BALLARD, Defendant and Appellant\", \"name_abbreviation\": \"State v. Ballard\", \"decision_date\": \"2000-10-18\", \"docket_number\": \"No. 21322\", \"first_page\": \"837\", \"last_page\": \"842\", \"citations\": \"617 N.W.2d 837\", \"volume\": \"617\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T22:48:19.864903+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 19.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Shanna BALLARD, Defendant and Appellant,\", \"head_matter\": \"2000 SD 134\\nSTATE of South Dakota, Plaintiff and Appellee, v. Shanna BALLARD, Defendant and Appellant,\\nNo. 21322.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Sept. 18, 2000.\\nDecided Oct. 18, 2000.\\nMark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.\\nMatthew J. Kinney, Spearfish, for defendant and appellant.\", \"word_count\": \"2490\", \"char_count\": \"15043\", \"text\": \"KONENKAMP, Justice\\n[\\u00b6 1.] If, after issuing a traffic warning, an officer tells a driver she is free to leave but asks for her consent to search her vehicle for drugs, and she refuses, may the officer then detain the driver to await the use of a drug dog? The defendant argues that the officer had insufficient legal grounds to continue detaining her after she was told she was free to go. The circuit court denied her motion to suppress, but we conclude that it should have been granted and reverse.\\nA.\\n[\\u00b6 2.] On August 14, 1999, at 11:50 p.m., Lawrence County Deputy Sheriff Michael Shafer observed a car driving partly on the shoulder of the road near Whitewood, South Dakota. Shafer followed for a short distance and saw the car cross the center-line. He then stopped the driver for a violation of SDCL 32-26-1. Shafer suspected the driver was intoxicated.\\n[\\u00b6 3.] Deputy Shafer approached the vehicle, advised the driver, Shanna Ballard, of his reason for stopping her, and asked for her driver's license. Ballard explained that she was driving erratically because she had been looking for something in her purse. Shafer did not smell alcohol or detect the presence of any contraband in the car. He asked Ballard to come back to his patrol vehicle. Her two passengers remained in her car.\\n[\\u00b6 4.] While in the patrol car, Shafer observed Ballard to be \\\"very fidgety\\\" \\u2014 -her hands were shaking; she could not sit still; her pupils were constricted; and she had a \\\"wired\\\" look. When asked at the suppression hearing to describe this \\\"wired look,\\\" Shafer said,\\nThe best description that I can give would be of \\u2014 very intense look. Eyes kind of very \\u2014 almost bulging in focus. Almost if \\u2014 if you've ever seen a picture of Charles Manson where he's just very intense, some of the photos you've seen of him, that's the best description I can give you of it.\\nShafer noted that while most drivers are nervous when they encounter law enforcement officers, Ballard's conduct was \\\"remarkable\\\" and \\\"unique from other people.\\\" In his experience this behavior was consistent with methamphetamine use. Nonetheless, after checking the status of her license and issuing her a warning citation, Shafer told Ballard she was \\\"free to leave.\\\" Then he told her. that he was suspicious about the presence of drugs in her car and asked her for consent to search it. Ballard refused.\\n[\\u00b6 5.] Shafer informed Ballard that he was going to detain her vehicle until a drug detection dog could be brought to the scene. He radioed for a K-9 unit. In his suppression hearing testimony, Shafer admitted he had no probable cause to search at this point, but he believed he had reasonable suspicion that there was contraband in Ballard's vehicle. Shafer left Ballard in his patrol car and told the two passengers that the vehicle would be detained until a drug dog could be brought to the scene. He went on to ask the occupants if any items in the car belonged to them. He also asked if the dog would \\\"alert\\\" to any contraband. One passenger admitted that he had a \\\"bowl of marijuana\\\" in his bag. Shafer asked both passengers to step optside the vehicle.\\n[\\u00b6 6.] About 'five minutes later, Trooper Schnettler arrived along with his dog, Ni-tro. Schnettler led Nitro around the vehicle to sniff for illicit substances. When Nitro \\\"alerted\\\" 'to a part of the car, the entire vehicle was searched. The officers found a blue zipper bag that contained a scale with white powder residue, a plastic bag containing marijuana, a box containing three plastic bindles with white powder residue, and various syringes. All three occupants were arrested.\\n[\\u00b6 7.] Ballard was indicted on one count of possession of a controlled substance and one count of possession of marijuana. A charge of possession of drug paraphernalia was later added. She moved to suppress and, following a hearing, the circuit court denied her motion. In a bench trial, Ballard was found guilty on all charges and given a suspended imposition of sentence with probationary conditions. Her suspended imposition of sentence was later revoked and the court suspended the execution of a prison sentence, allowing Ballard to continue probation in her home state of Colorado. .\\n[\\u00b6 8.] Ballard now appeals challenging the legality of her continued detention after the warning citation was issued and she was told that she was \\\"free to leave.\\\" She asserts that this constituted a second stop without reasonable suspicion or probable cause. Ballard also argues that even if Shafer's continued detention was permissible there was no reasonable suspicion for the canine sniff, or that this particular canine sniff was unreasonable and should be classified as a \\\"search.\\\" We need not reach these alternative arguments.\\nB.\\n[\\u00b6 9.] We recently clarified the appropriate standard for reviewing decisions on warrantless searches and seizures. State v. Hinting, 1999 SD 53, \\u00b6 9, 592 N.W.2d 600, 603. \\\"[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.\\\" Id. (italics and alterations in original)(citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). In reviewing findings of fact we continue to apply the clearly erroneous standard. Hinting, 1999 SD 58, \\u00b6 8, 592 N.W.2d at 603 (citing State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994)). A finding is clearly erroneous only if, after reviewing the evidence in its entirety, \\\"we are left with a definite and firm conviction that a mistake was made.\\\" Almond, 511 N.W.2d at 574. \\\"Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo.\\\" Hirning, 1999 SD 53, \\u00b6 8, 592 N.W.2d at 603 (citations omitted).\\nC.\\n[\\u00b6 10.] The'Fourth Amendment to the United States Constitution and Article VI \\u00a7 11 of the South Dakota Constitution protect the \\\"right of the people to be secure in their persons, houses and effects, against unreasonable searches and seizures . \\\" As a rule, this protection has been interpreted as holding \\\"a seizure of personal property . per se unreasonable . unless it is accomplished pursuant to a judicial warrant issued upon probable cause.... \\\" United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983). In Terry v. Ohio, however, the United States Supreme Court recognized \\\"the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individ-u\\u00e1is personal security based on less than probable cause.\\\" Id. at 702, 103 S.Ct. at 2642, 77 L.Ed.2d at 117. Whether a particular intrusion will fall into the Terry exception will be decided by balancing the \\\"quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.\\\" Place, 462 U.S. at 703, 103 S.Ct. at 2642, 77 L.Ed.2d at 118 (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968)).\\n[\\u00b6 11.] Police officers must have \\\"specific and articulable suspicion of a violation\\\" before a traffic stop is permissible. State v. Vento, 1999 SD 158, \\u00b6 8, 604 N.W.2d 468, 470 (citing State v. Cuny, 534 N.W.2d 52, 53 (S.D.1995)). Ballard's conduct in crossing over the centerline and fog line provided reasonable suspicion to justify the initial stop. See Spenner v. City of Sioux Falls, 1998 SD 56, \\u00b6 14, 580 N.W.2d 606, 610-11. Shafer was entitled to conduct an investigation \\\"reasonably related in scope to the circumstances that justified the interference in the first place.\\\" United States v. Bloomfield, 40 F.3d 910, 915 (8thCir.1994); Vento, 1999 SD 158, \\u00b6 15, 604 N.W.2d 468, 471. A reasonable investigation includes \\\"a request for driver's license, vehicle registration, and proof of insurance.\\\" Id. See also Bloomfield, 40 F.3d at 915 (having a driver accompany officer to patrol car is a reasonable request). A traffic investigation may also include a computer check on automobile registration and outstanding warrants. State v. Anderson, 258 Neb. 627, 605 N.W.2d 124, 131 (2000) (citations omitted). \\\"[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.\\\" Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229, 238 (1983) (citations omitted).\\n[\\u00b6 12.] Generally, once a traffic investigation is completed an officer must allow the driver to proceed without further constraint. State v. Woolfolk, 3 S.W.3d 823, 828 (Mo.Ct.App.1999). To detain a driver further an officer must have \\\"a reasonable, articulable suspicion that [the] person is involved in criminal activity unrelated to the traffic violation.\\\" Anderson, 605 N.W.2d at 132 (citing United States v. Carrate, 122 F.3d 666, 668 (8th Cir.1997)); Woolfolk, 3 S.W.3d at 828-29 (Mo.Ct.App. 1999).\\n[\\u00b6 13.] Like reasonable suspicion for the initial stop, reasonable suspicion to justify extending the scope of a traffic stop is examined under an objective test. The facts asserted to justify suspicion are measured \\\"as a totality and in light of the officer's experience.\\\" Bloomfield, 40 F.3d at 918 (citations omitted). Looking at all the circumstances, we must ask whether Shafer had a suspicion of an offense apart from the initial traffic violation and if that suspicion was objectively reasonable. See Anderson, 605 N.W.2d at 132; Vento, 1999 SD 158, \\u00b6 8, 604 N.W.2d at 470. In deciding whether particular facts give rise to an objectively reasonable suspicion the officer must have more than \\\"an inchoate and unparticularized suspicion or 'hunch,' but less than the level of suspicion required for probable cause.\\\" Anderson, 605 N.W.2d at 132. We require \\\"a specific and articulable suspicion of a violation.... \\\" Spenner, 1998 SD 56, \\u00b6 14, 580 N.W.2d at 610 (citing State v. Cuny, 534 N.W.2d 52, 53 (S.D.1995)).\\n[\\u00b6 14.] After stopping Ballard's car, Shafer asked her to sit in the patrol car. While he issued the citation and called in for a check on her driver's license, he noticed that Ballard was \\\"fidgety,\\\" she looked \\\"wired,\\\" her pupils were constricted, and she was remarkably more nervous than most persons during a traffic stop. This nervous behavior did not subside when Shafer told Ballard that he would only issue a warning. These facts caused Shafer to become suspicious that Ballard was under the influence of some drug. Shafer nonetheless told Ballard she was free to leave. As he testified, \\\"She was free to go, but I was asking for consent to search her car.\\\" His investigation was not over, he explained, but he \\\"needed to make sure she was aware she was free to leave prior to\\\" asking for her consent.\\n[\\u00b6 15.] We conclude that Shafer's detention of Ballard after telling her she was free to leave was impermissible under the Fourth Amendment. All the observations he made about her occurred before he told her she was free to go and no new suspicious information arose before he decided to detain her further. In its findings of fact, the circuit court specifically noted Shafer's description of Ballard as \\\"wired\\\" and in Shafer's experience this look was consistent with use of methamphetamine. However, Shafer made that observation while Ballard was in the patrol car and before he told her she was free to leave.\\n[\\u00b6 16.] In State v. Durke, law enforcement officers conducted a valid traffic stop of a group of seven motorcyclists. Durke, 1999 SD 39, \\u00b6 3, 593 N.W.2d 407, 408. Four of the motorcycles had handlebars that were too high under South Dakota law. Id. at \\u00b6 2, 593 N.W.2d at 408. After accomplishing the stop, the officers checked the drivers' licenses and registrations of the seven, finding no problems. Id. at \\u00b6 3, 593 N.W.2d at 408. The three motorcyclists whose handlebars complied with the law wished to leave; however, the officers did not explain that they were free to go. Id. One of the officers later noticed a marijuana pipe and a pistol. After this discovery all the individuals were handcuffed and their belongings searched. Id. at \\u00b6 4-5, 593 N.W.2d at 408-09. We concluded that continued detention of the cyclists who were in compliance with the handlebar law was illegal. Id. at \\u00b6 17, 593 N.W.2d at 410. The cyclists were detained after the initial traffic stop when no additional facts suggesting a violation were observed. The distinction here, of course, is that Deputy Shafer had other suspicions, but he nonetheless told Ballard she was free to leave, a questionable maneuver to employ in the midst of a claimed ongoing investigation.\\n[\\u00b6 17.] Once officers tell traffic violators they are free to leave with a citation or a warning, the Fourth Amendment intercedes to limit a further detention or search. United States v. $404,905 in U.S. Currency, 182 F.3d 643, 648 (8th Cir.1999). A refusal to give consent to search after the motorist is free to leave cannot give rise, of itself, to further suspicion and justification for a search; otherwise, the exercise of a Fourth Amendment right would be meaningless. This case presents a close question on when continued detention becomes unreasonable. However, we are concerned with the dubious message we send to law enforcement officers and the public if we validate a procedure allowing officers to falsely tell traffic offenders they are free to go, only for the purpose of eliciting their uncoerced agreement to search their automobiles.\\n[\\u00b6 18.] We reverse the circuit court's order denying Ballard's motion to suppress.\\n[\\u00b6 19.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.\\n. SDCL 32-26-1 provides: \\\"the driver of a vehicle shall drive the same upon the right half of the highway . except when overtaking and passing another vehicle....\\\"\\n. The Slate appears to invoke the automobile exception to the warrant requirement. This exception only excuses the absence of a warrant not the absence of probable cause. Wayne R. LaFave, Search and Seizure \\u00a7 7.1(a) at 433 (3d ed. 1995). Shafer had no probable cause when he decided to detain Ballard's vehicle. Thus, the automobile exception cannot be used to validate the continued detention of Ballard's vehicle after issuance of the warning citation.\\n. In United States v. Place, 462 U.S. 696, 707 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983), the Supreme Court concluded that exposing an individual's luggage, which was located in a public place, to a canine trained to search for contraband did not constitute a \\\"search\\\" under the Fourth Amendment.\"}"
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+"{\"id\": \"11402959\", \"name\": \"Arlene COHEN, Claimant and Appellant, v. CITY OF PIERRE, South Dakota and Department of Labor, State of South Dakota, Appellees\", \"name_abbreviation\": \"Cohen v. City of Pierre\", \"decision_date\": \"2002-08-28\", \"docket_number\": \"No. 21770\", \"first_page\": \"265\", \"last_page\": \"268\", \"citations\": \"651 N.W.2d 265\", \"volume\": \"651\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:16:49.219360+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 16.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON and KONENKAMP, Justices, participating.\", \"parties\": \"Arlene COHEN, Claimant and Appellant, v. CITY OF PIERRE, South Dakota and Department of Labor, State of South Dakota, Appellees.\", \"head_matter\": \"2002 SD 110\\nArlene COHEN, Claimant and Appellant, v. CITY OF PIERRE, South Dakota and Department of Labor, State of South Dakota, Appellees.\\nNo. 21770.\\nSupreme Court of South Dakota.\\nConsidered on Briefs May 28, 2002.\\nDecided Aug. 28, 2002.\\nPatricia R. DeHueck of DeHueck Law Office, Pierre, for claimant and appellant.\\nJohn Brown of Riter, Mayer, Hofer, Wattier & Brown, Pierre, for appellee, City of Pierre.\\nDrew C. Johnson, Aberdeen, for appel-lee Department of Labor.\", \"word_count\": \"1680\", \"char_count\": \"10339\", \"text\": \"PER CURIAM.\\n[\\u00b6 1.] Arlene Cohen appeals a circuit court order affirming the South Dakota Department of Labor's denial of her claim for unemployment insurance benefits. We affirm.\\nFACTS\\n[\\u00b6 2.] In May 1998, the City of Pierre hired Cohen to run its library. As library director, Cohen answered to the library board, a volunteer organization appointed by the Mayor. The board had authority to hire and fire Cohen and to vary her level of control over the library.\\n[\\u00b6 3.] When Cohen was hired, she made it clear that she would be making changes in the operation of the library. As those changes unfolded, Cohen encountered resistance with the library staff. Meetings took place at different stages between the board, Cohen and library staff members in variou\\u00e9 efforts to work out the problems that developed. Compounding these problems was the fact that the library- was closed in the summer of 1999 for asbestos removal. Despite the closure, Cohen and her staff continued to work out of their homes and at temporary offices in city hall.\\n[\\u00b6 4.] In the late summer of 1999, the board hired a professional facilitator to meet with Cohen and her staff in another effort to work out their differences. Before the meeting could take place, Cohen contacted the board president on Sunday, September 5, 1999 and informed the president that she was resigning effective October 1, 1999. The president then contacted all of the members of the library board, informed them of Cohen's resignation and planned a board meeting for the following Friday, September 10,1999.\\n[\\u00b6 5.] On Monday, September 6, 1999, the Labor Day holiday, Cohen again contacted the board president. At that time, Cohen advised that she wished to rescind her resignation and that she- would not resign until after securing alternative employment. Cohen then returned to work on Tuesday, September 7.\\n[\\u00b6 6.] Despite Cohen's attempt to withdraw her resignation, the board met as planned on Friday, September 10 and voted to accept it. The board further determined that it would pay Cohen through October 1, but that it would place her on administrative leave until that time. Cohen was notified of these decisions in a letter hand delivered to her by the board president on September 13. The letter further advised Cohen of the arrangements for her to return city property to the city and for her to obtain any of her own property from the library.\\n[\\u00b6 7.] Cohen filed a claim for unemployment insurance benefits on October 7, 1999. Her claim was denied on the basis that she voluntarily quit her employment with the library without good cause. Cohen filed an inter-departmental appeal of the denial which was affirmed by an agency hearings examiner. Cohen then filed an appeal with the South Dakota Secretary of Labor who also affirmed the denial of benefits. An appeal to circuit court followed. On November 6, 2000, the circuit court entered its final order affirming the denial of benefits. Cohen now appeals to this Court.\\nISSUE\\n[\\u00b6 8.] Did the Department of Labor err in determining that Cohen voluntarily quit her employment?\\n[\\u00b6 9.] The unemployment insurance law provides for a disqualification from receiving benefits for persons who voluntarily quit their employment without good cause or who are discharged for work-connected misconduct. Reetz v. Lutheran Health Systems, 2000 SD 74, \\u00b6 9, 611 N.W.2d 230, 233. Cohen argues that the department of labor erred in determining that she voluntarily quit her employment and asserts instead that she was discharged when the library board refused to allow her to withdraw her resignation. Contending that the city failed to establish any misconduct as cause for her discharge, Cohen further argues that the department erred in denying her claim for unemployment insurance benefits.\\n[\\u00b6 10.] This Court's standard of review in unemployment insurance cases is set forth in Weeks v. Valley Bank, 2000 SD 104, \\u00b6 8, 615 N.W.2d 179, 182:\\nWe review administrative decisions in the same manner as the circuit court. Factual findings may be overturned only if they are found to be \\\"clearly erroneous\\\" after all the evidence has been considered. The findings will not be disturbed unless we are left with a definite and firm conviction a mistake has been made. Conclusions of law, as well as mixed questions of fact and law that require the application of a legal standard, are fully reviewable. (citations omitted).\\nWhether a person has been discharged or voluntarily quit their employment within the meaning of the unemployment insurance law is a mixed question of law and fact which this court reviews de novo. See S.D. Stockgrowers Ass'n v. Holloway, 438 N.W.2d 561, 563 (S.D.1989)(whether quitting employment after notice of discharge but prior to effective date of discharge is a discharge or voluntary quit under unemployment insurance law is mixed question of law and fact subject to de novo review).\\n[\\u00b6 11.] There is a division of authority on the issue of whether a separation from employment after an unsuccessful attempt to withdraw a resignation constitutes a voluntary quit or a discharge under the unemployment insurance law. As set forth in Francis M. Dougherty, Annotation, Eligibility for Unemployment Compensation Benefits of Employee Who Attempts to Withdraw Resignation Before Leaving Employment, 1985 WL 287648, 36 A.L.R.4th 395, 396 (1985):\\nUnemployment compensation acts commonly provide that an employee who voluntarily leaves his employment without good cause is not entitled to unemployment compensation benefits. \\\"Voluntarily\\\" has been held to mean \\\"of one's own motion,\\\" or \\\"of one's own accord\\\" and it has been said that the phrase \\\"good cause\\\" must be so interpreted that the fundamental purpose of the legislation will not be destroyed. Clearly, if an employee resigns entirely of his own volition without any compulsion by way of company rule or policy, or contract or agreement, he leaves his employment voluntarily, without good cause, and is not entitled to unemployment benefits. A problem is presented, however, when an employee who has voluntarily submitted notice of his intent to resign seeks to withdraw the resignation before the termination becomes effective. Obviously no problem is presented if the withdrawal is accepted but in those cases in which the attempted withdrawal was rejected, the courts reached conflicting results concerning the eligibility of the employee for unemployment compensation benefits.\\nSome courts considering this issue have determined that the employee is entitled to benefits, reasoning that the refusal to accept the withdrawal of resignation rendered the termination involuntary. Most courts, however, have denied unemployment benefits on the ground that there was a voluntary termination of employment One jurisdiction has taken the unique position that the employee is eligible for benefits if he can show that the employer has taken no steps to replace him between the time the resignation notice was tendered and the time the employee sought to withdraw the resignation, (emphasis added).\\n[\\u00b6 12.] Noting the foregoing division of authority, the Iowa Court of Appeals followed the majority rule in Langley v. Employment Appeal Bd., 490 N.W.2d 300, 303 (Iowa Ct.App.1992) observing:\\n[T]he majority rule is most consistent with the intent of our unemployment statute. While the statute is to be construed liberally, its underlying purpose is to minimize the burden placed upon the employee who is-unemployed involuntarily, through no fault of his or her own. We cannot say [the claimant here] is unemployed through no fault of her own. It was her \\\"own action of resignation which set in motion the chain of events which ultimately resulted in [her] unemployment.\\\" .\\nThe employee should assume the responsibility of making sure he knows what he is doing before he decides to take such drastic action as giving the employer a notice to quit. The burden should rest with the employee who initiated the action by giving the initial notice and who in every real and practical sense is the moving party! try as he may to reverse the roles. It seems to us that it would be a distortion of reason and common sense to hold under these circumstances the employer is the moving party and that the severance of the employment was [in]voluntary.\\n[Rabago v. Unemployment Ins. Appeals Bd., 84 Cal.App.3d 200, 207-08, 148 Cal.Rptr. 499, 504 (1978)](some citations omitted).\\n[\\u00b6 13.] This Court has also followed the view that the purpose of the unemployment insurance law is to combat involuntary unemployment by providing benefits to persons unemployed through no fault of their own. See Reetz, 2000 SD 74 at \\u00b6 13, 611 N.W.2d at 234; John Morrell & Co. v. Dept. of Labor, 460 N.W.2d 141, 143 (S.D.1990)(unemployment reserves to be used for the benefit of persons unemployed through no fault of their own). Here, as observed in Langley, supra, it was Cohen's own action that set in motion the chain of events that ultimately resulted in her unemployment. Prior to her resignation, the library board gave Cohen positive job evaluations. With regard to Cohen's problems in dealing with her employees, the board made every effort to work with Cohen and her staff to resolve the differences between them. The board even went so far as to retain an outside facilitator to assist in efforts toward reconciliation. It was Cohen who rebuffed these efforts by resigning.\\n[\\u00b6 14.] Based upon the foregoing, Cohen has failed to prove that the department of labor erred in determining that Cohen voluntarily quit her employment without good cause. Likewise, Cohen is disqualified from receiving unemployment insurance benefits under these circumstances. See Reetz, supra.\\n[\\u00b6 15.] Affirmed.\\n[\\u00b6 16.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON and KONENKAMP, Justices, participating.\\n[\\u00b6 17.] ZINTER, Justice, disqualified.\"}"
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+"{\"id\": \"11450990\", \"name\": \"Michael GREEN, Grievant and Appellant, v. CITY OF SIOUX FALLS, Appellee\", \"name_abbreviation\": \"Green v. City of Sioux Falls\", \"decision_date\": \"2000-03-01\", \"docket_number\": \"Nos. 20982, 21000\", \"first_page\": \"43\", \"last_page\": \"49\", \"citations\": \"607 N.W.2d 43\", \"volume\": \"607\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T17:31:25.177861+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 25.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.\", \"parties\": \"Michael GREEN, Grievant and Appellant, v. CITY OF SIOUX FALLS, Appellee.\", \"head_matter\": \"2000 SD 33\\nMichael GREEN, Grievant and Appellant, v. CITY OF SIOUX FALLS, Appellee.\\nNos. 20982, 21000.\\nSupreme Court of South Dakota.\\nArgued Jan. 13, 2000.\\nDecided March 1, 2000.\\nThomas K. Wilka of Hagen, Wilka & Archer, P.C., Sioux Falls, for grievant and appellant.\\nR. Shawn Tornow, Chief Assistant City Attorney, Sioux Falls, for appellee.\", \"word_count\": \"3349\", \"char_count\": \"20280\", \"text\": \"KONENKAMP, Justice\\n[\\u00b6 1.] Michael D. Green, a Sioux Falls police officer discharged for conduct unbecoming an officer, contends the evidence against him was insufficient to constitute just cause. Based on the findings made by the Civil Service Board, we affirm.\\nA.\\n[\\u00b6 2.] Green began his employment as an officer with the Sioux Falls Police Department in January 1995. He received annual performance evaluations. In 1996, his performance was graded as \\\"above average\\\" or \\\"superior\\\" in every category. His supervisor later described him as an \\\"above average officer and an asset to the department.\\\" The 1997 evaluation reported that Green worked well with the public and other officers, but that he did \\\"need to work on some things in the next year\\\" including \\\"more self control when dealing with unruly people.\\\" Police Chief Clark L. Quiring hand wrote on Green's 1997 evaluation, \\\"I expect that you will correct these problems by next evaluation.\\\"\\n[\\u00b6 3.] Within six months, two incidents occurred that led to Green's termination. The first happened during his shift on April 24, 1998. Green and another officer responded to a call on an individual believed to be passing forged checks. The suspect was arrested and transported to the Minnehaha Public Safety Building. Green and the other officer led the prisoner, whose hands were cuffed behind his back, to the booking area and had him sit on a bench. Repeatedly the prisoner accused Green of hitting him and splitting his lip. Green turned to argue with him. As the exchange escalated, Green stepped toward the prisoner. The prisoner stood up. Green shoved him hard against the wall. When the prisoner became more agitated, two other officers stepped in to help secure him with leg irons. While restraining him, Green put his knee on the back of the prisoner's neck and sat on him, a maneuver deemed overly aggressive and not acceptable under departmental procedure.\\n[\\u00b6 4.] Following an internal investigation, the department concluded that Green acted improperly, exacerbating a verbal confrontation into a physical scuffle with a restrained prisoner. Green was found to have violated departmental Policy \\u00a7 204.2. C: use of force resulting in or reasonably expected to result in injury to a prisoner. Although the violation could have been considered just cause for discharge, suspension, or reduction, Green was informed he would receive a written reprimand on June 2,1998.\\n[\\u00b6 5.] The second incident happened two days later. On June 4, visiting police officers from communities both in and out of South Dakota were attending a DEA sponsored drug enforcement school in Sioux Falls. Green did not attend. But that evening, along with other off-duty Sioux Falls officers, he met the visiting officers for an evening out. Some of the out-of-towners wanted to see a \\\"problem\\\" bar. The group of sixteen officers headed to a place under police scrutiny as a \\\"hot spot\\\" for drug dealing. Nothing significant occurred there. About midnight, they moved on to Suite E, a bar with a dance floor. When they arrived there were only a few customers present. A woman and two men, Lonnie Kannas and Richard Pepper, were dancing in a \\\"triangle formation.\\\" When the woman returned to her table, the men continued to dance. Green stepped onto the dance floor along with some of the other officers.\\n[\\u00b6 6.] According to the allegations against him, to taunt the two men he thought were homosexual, Green danced between them, turned his back to Pepper, and backed up to him bent over at a ninety degree angle in what Kannas later characterized as a \\\"mock anal sex dance.\\\" Later, Kannas overheard someone in Green's group say, \\\"Are you going to a fag party or a homo party?\\\" Suite E began closing for the evening. Some of the officers headed for Shenanigans, but \\\"due to a miseommunication,\\\" six Sioux Falls officers, including Green, went to Shelly's. With \\\"not much going on\\\" there, they moved on.\\n[\\u00b6 7.] Out of \\\"curiosity,\\\" the six officers chose Touche'z, a \\\"gay bar,\\\" for their last stop of the evening. The officers knew that homosexual members of the community patronize this dance club. Coincidentally, Kannas and Pepper, the men Green encountered at Suite E, arrived at the same time. When he saw the group, Kan-nas went inside to warn the owner \\\"about the possible problems that might be coming through the door.\\\"\\n[\\u00b6 8.] Some of the officers walked into Touche'z carrying open beer. bottles. Green had two. One member of the group went to the bar; the rest sat at a table. The owner, Douglas Kooiker, told those at the table that they could not bring in their own beer. According to Kooiker, Green asked if they could still drink them. Kooiker responded that he would have to take their bottles. When he removed them and turned to walk away, Kooiker heard someone at the table exclaim, \\\"Asshole, fucking fags.\\\" He identified Green as making the comment because he recognized Green's voice from just having spoken with him. Kooiker disposed of the bottles and returned to say, \\\"It's time for you guys to leave.\\\" They immediately complied, getting up and walking toward the door. Kooiker heard Green comment while facing him, \\\"Got kicked out of a fag bar.\\\"\\n[\\u00b6 9.] Once outside, they realized that one of their companions was still inside. Green and another officer went back in. While the other officer searched for the one left behind, Green walked into the game room and picked up a pool cue. In front of the customers, he broke it over his knee, and left the broken pieces on the floor. Kooiker, who had no idea these men were police officers, dialed 911 for emergency assistance. The group left before the police arrived. Kooiker gave the license plate numbers of the vehicles driven by the group to the responding officers, and from that it was learned that Green and the other officers were involved.\\n[\\u00b6 10.] Following a preliminary inquiry, Green was suspended on June 15, 1998, pending a full investigation. On June 19, Chief Quiring decided that, based on all the circumstances, Green should be discharged. Green appealed to the Civil Service Board. After a hearing on July 9-10, 1998, the Board found just cause for Green's termination. Green's appeal in circuit court was affirmed.\\n[\\u00b6 11.] On appeal before this Court, Green contends his discharge was based on allegations unfounded or unsupported by \\\"conclusive evidence.\\\" We review the Civil Service Board's decision under the Administrative Procedures Act (SDCL 1-26). SDCL 9-14-14. Fact findings will be overturned only if they are \\\"clearly erroneous in light of all the evidence.\\\" Sopko v. C & R Transfer Co., Inc., 1998 SD 8, \\u00b6 6, 575 N.W.2d 225, 228. Questions of law are reviewed de novo. Id. By notice of review, the City appeals certain evidentiary rulings made by the Board. As our decision affirms the City's position, however, we need not reach these nondispositive questions.\\nB.\\n[\\u00b6 12.] Several of the reasons given by Chief Quiring for Green's termination were not borne out in the Civil Service Board's findings. Green believes that the failure of the Board to sustain all the Chiefs reasons for firing him make the decision invalid, especially since he contends that most of the remaining reasons accepted by the Board were mistaken. As the Board was the final arbiter in deciding Green's discipline, we examine the Board's findings to ascertain if just cause for termination was established. Sioux Falls Code \\u00a7 30-45 provides that \\\"[n]o person . shall be suspended, removed, discharged or reduced from his position, except for just cause[.]\\\" The Board held that just cause existed for the disciplinary action under Sioux Falls Code \\u00a7 30^16(5):\\nThe following will be considered as causes for discharge, suspension, or reduction of an officer or employee in the classified civil service, although discharges, suspensions, or reductions may be made for other causes:\\n(5) Has been guilty of acts constituting . any conduct unbecoming an officer or employee of the city[.]\\n[\\u00b6 13.] \\\"Conduct unbecoming an officer\\\" is not defined in the Sioux Falls Code or in any South Dakota statute. The term originates from military law, codified in Article 133, Uniform Code of Military Justice, 10 U.S.C. \\u00a7 933 (\\\"conduct unbecoming an officer and a gentleman\\\"). In its prevailing usage, conduct unbecoming an officer imports a dual significance. Not only must the behavior be a serious breach of law, morality, or decorum, exposing the offender to personal discredit, but also it must tend to bring dishonor or disrepute on the offender's profession or organization. Parker v. Levy, 417 U.S. 733, 753-54, 94 S.Ct. 2547, 2560, 41 L.Ed.2d 439, 456 (1974) (citing W. Winthrop, Military Law and Precedents 711-712 (2d ed. 1920), as cited in United States v. Howe, 17 USC-MA 165, 177-178, 37 C.M.R. 429, 441^42, 1967 WL 4286 (1967)). In the military model, service in the armed forces requires obedience, integrity, and adherence to high standards of conduct both in and out of uniform. These standards apply as well to police forces. To maintain both internal discipline and public respect, law enforcement organizations must eliminate behavior reasonably thought to impede proper performance of duties. See Gold-ivasser v. Brown, 417 F.2d 1169, 1176 (D.C.Cir.1969).\\n[\\u00b6 14.] Other authorities have devised similar definitions for conduct unbecoming, although these definitions are often stated in the disjunctive. For instance, the Arkansas State Police Code of Conduct defines \\\"conduct unbecoming\\\" as including \\\"that which brings the Department into disrespect or reflects discredit upon the employee as a member of the Department, or that which impairs the operations or efficiency of the Department or employee.\\\" Arkansas State Police Comm'n v. Smith, 338 Ark. 354, 994 S.W.2d 456, 460 (1999) (quoting Arkansas State Police Code of Conduct, General Order 102 \\u00a7 VII A). The term is defined by courts in Pennsylvania as \\\"conduct adversely affect[ing] the morale or efficiency of the police force or tending] to destroy public respect for municipal employees and confidence in the operation of municipal services.\\\" York Township Bd. of Comm'rs v. Batty, 694 A.2d 395, 397 (1997) (citations omitted). The Wisconsin Court of Appeals defined \\\"conduct unbecoming an officer\\\" as including \\\"that which brings the Department into disrepute or reflects discredit upon the officer as a member of the Department, or that which impairs the operations or efficiency of the Department or officer.\\\" Christensen v. City of Racine Police and Fire Comm'n, No. 94-2061, 1995 WL 440379 (Wis.Ct.App. July 26,1995).\\n[\\u00b6 15.] Since we are not as free as lawmakers to fashion broad definitions for official terms, we rely on the time-honored conjunctive definition of conduct unbecoming. The misconduct, although it need not be a crime, must be a serious breach of law, morality, or decorum, exposing the offender to personal discredit, and it must tend to bring dishonor or disrepute on the offender's profession or organization. Parker, 417 U.S. at 753-54, 94 S.Ct. at-2560, 41 L.Ed.2d at 456. This formulation discourages extreme discipline for entirely private misbehavior unrelated to job performance. See Wendell v. South Dakota Dept, of Transp., 1998 SD 130 \\u00b6 8, 587 N.W.2d 595, 597-98 (just cause not established if no nexus between job and acts constituting misdemeanor). Under this two-part definition, we must decide .whether sufficient evidence was presented to support the factual findings and legal conclusions of the Board. Schroeder v. Dept. ofSoc. Serv., 1996 SD 34, \\u00b64, 545 N.W.2d 223, 226.\\nC.\\n[\\u00b6 16.] In reviewing the findings, we are in no position to judge witness credibility, a matter better left to those who preside firsthand. See Petersen v. Hinky Dinky, 515 N.W.2d 226, 235 (S.D. 1994) (citing Wendel v. Domestic Seed & Supply, 446 N.W.2d 265, 271 (S.D.1989)). At this level, we study the record to determine whether the findings can be sustained as not clearly erroneous. Id. at 231. The Civil Service Board heard conflicting versions of events on June 4: one from Green and his fellow officers, and another from members of the public. Five Sioux Falls police officers present with Green on the evening of June 4 appeared on Green's behalf at the Board hearing. All these officers said that no lewd dancing took place. Kannas, on the other hand, said that Green danced in a sexually suggestive, mocking fashion. The officers tes- tiffed that they heard no derogatory remarks from Green; indeed, they heard no anti-gay comments from anyone. Yet other testimony at the hearing persuaded the Board to find to the contrary. Three of the testifying officers had faced disciplinary action themselves for their participation in events that evening. Those three revealed that they were appealing the discipline they received.\\n[\\u00b6 17.] Green's actions in the booking room were taken into account in the Board's decision. It found that Green escalated a confrontation, obliging the officers to take the prisoner to the ground and use leg irons to secure him. A video camera in the booking area recorded the incident and the videotape was shown to the Board at the hearing. It displays a mouthy, accusatory subject with his hands cuffed behind his back. Chief Quiring explained as the tape was playing that Green was inappropriately restraining the prisoner. Although Green disputes where his knee was positioned, the Board found that \\\"Green restrained [the prisoner] by putting his knee on the back of [the prisoner's] neck as he 'sat' on top of him.\\\" In our viewing of the tape, though it is difficult to see exactly where his knee was, we cannot say the Board's conclusion was wrong. Green's unnecessary and unprovoked shove of the prisoner, however, is irrefutable.\\n[\\u00b6 18.] Still, there were troubling inconsistencies in the evidence against Green on the June 4 incident. Kooiker's testimony, for example, that he knew Green uttered the anti-gay remark even though his back was turned was seriously challenged. Kooiker said he recognized Green's voice after having spoken with him at the table. Yet, another officer, Tom Krull, testified that it was he who spoke with Kooiker at that time, not Green. Furthermore, the witnesses who testified against Green before the Board were more certain in their identification of Green as the originator of the anti-gay comments than they were when first interviewed. In Green's view, talk of lawsuits against the City and rising sentiment against him in some quarters of the community firmed up and embellished witness memories.\\n[\\u00b6 19.] Green admitted he brought beer into Touche'z. He also admitted he broke a pool cue over his knee: \\\"I don't know why I did it. It was stupid.\\\" But the Board also found that Green was dishonest during the internal police investigation. Chief Quiring told the Board that when he reviewed the tapes and reports made during the investigation, he concluded that Green was not being honest. Quiring testified that there were witnesses claiming Green used derogatory language and that he broke Touche'z door, but that the only thing Green would admit to was breaking the pool cue. Given that the Board found Green used derogatory language and engaged in unwholesome dancing, both of which he denied, it follows that the Board would also find he had been dishonest.\\n[\\u00b6 20.] Even if doubt favors Green's version of events, breaking the pool cue at Touche'z reveals something of his attitude about a gay bar and its patrons. This hostile act gave credence to the intolerant remarks attributed to him. If actions signify more than words, this was an open gesture of antagonism. Although there was conflicting testimony on the events of June 4, the record contains sufficient evidence, if believed, to support the Board's findings. The Board was in the best position to decide credibility. Accordingly, Green has not met his burden of showing that the findings were clearly erroneous.\\nD.\\n[\\u00b6 21.] Having resolved that the evidence supports the findings, our review turns to whether the findings support the conclusion that just cause existed for termination. Just cause is fully reviewable as a legal question. City of Sioux Falls v. Miller, 1996 SD 132, \\u00b6 12, 555 N.W.2d 368, 371 (citation omitted). Did Green's acts establish conduct unbecoming an officer? A single occurrence taken in isolation may not have been sufficient to justify termination. The incident in the jail was obviously not enough in the opinion of the Police Chief, as Green was to receive only a formal reprimand. Yet in the City's progressive discipline process that incident could be considered together with what happened on June 4. Carrying an open bottle into a bar may be a minor infraction, but the lewd dancing, offensive remarks, and destruction of property are more serious. The Board properly considered these circumstances in their totality.\\n[\\u00b6 22.] In reviewing a finding of conduct unbecoming, we look first at the personal aspect. Green's behavior in taunting members of the public by acts and words, in abusing- a prisoner, in damaging private property, all discredit him. Green argues that whatever he may have done on June 4 while off-duty should not reflect on his job performance. Yet, the laws he broke while off-duty were the same laws he swore to enforce while on-duty. Police are expected to uphold the highest standards of conduct. Batty, 694 A.2d at 397 (citation omitted). Law enforcement officers, whether on or off duty, live under the public view. An officer's image is vital to the police mission. Eilers v. Civil Serv. Comm'n of City of Burlington, 544 N.W.2d 463, 466 (Iowa Ct.App.1995) (citation omitted). Can anyone reasonably trust that an officer who harasses minorities by night will ungrudgingly protect their lives and property by day? Green's conduct is particularly troublesome in that it took place in the area of Sioux Falls where he patrolled as an officer.\\n[\\u00b6 23.] Lastly, we decide if the conduct tends to bring dishonor or disrepute on the profession or organization. Conduct unbecoming a law enforcement officer undermines the rightful expectation of the public to a professional police force. Police are duty-bound to enforce the law evenly, without bias and without favor. If intolerance and aggression are accepted, that attitude may permeate other aspects of the criminal justice system. In the exercise of their duties, there can be no \\\"second-class citizens\\\" in the eyes of peace officers. All people are entitled to impartial treatment. Green's reprehensible conduct, committed in a public place, diminishes community confidence in police impartiality and public respect for the quality of law enforcement. Kleinsasser v. City of Rapid City, 440 N.W.2d 734, 737 (S.D.1989). We discern no error in the Board's finding of just cause and its decision to terminate Green's employment.\\n[\\u00b6 24.] Affirmed.\\n[\\u00b6 25.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.\\n. The incident report states that the suspect's lip was cut when he became disorderly during the arrest and the officer assisting Green pushed him against a wall. The suspect was charged with resisting arrest.\\n. At this bar, the officers were asked by the bartender, who recognized them as police of- ' ficers, to assist with a fight between a male and a female customer. Instead of getting involved themselves, the officers called 911 to ask for on-duty officers. The male involved in the fight was the same person Green had been involved with in the earlier booking incident.\\n. There were allegations that Green led the group out of the bar, and when he got to the door, he ripped a poster off of the inside of it and forced the door open violently, causing damage to the door and the hinges. The Board did not find that Green was responsible for the damage to the door or the poster.\\n. This section is applicable to Green by virtue of Sioux Falls Code \\u00a7 30-18.\"}"
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+"{\"id\": \"11514996\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Rodney Troy HOLZER, Defendant and Appellant\", \"name_abbreviation\": \"State v. Holzer\", \"decision_date\": \"2000-06-07\", \"docket_number\": \"No. 21103\", \"first_page\": \"647\", \"last_page\": \"658\", \"citations\": \"611 N.W.2d 647\", \"volume\": \"611\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:12:00.769833+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 31.] MILLER, Chief Justice and KONENKAMP, Justice, concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Rodney Troy HOLZER, Defendant and Appellant.\", \"head_matter\": \"2000 SD 75\\nSTATE of South Dakota, Plaintiff and Appellee, v. Rodney Troy HOLZER, Defendant and Appellant.\\nNo. 21103.\\nSupreme Court of South Dakota.\\nConsidered on Briefs March 22, 2000.\\nDecided June 7, 2000.\\nMark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, Pierre, for plaintiff and appellee.\\nNichole Carper, Minnehaha County Public Defender\\u2019s Office, Sioux Falls, for defendant and appellant.\", \"word_count\": \"6469\", \"char_count\": \"38979\", \"text\": \"GILBERTSON, Justice\\n[\\u00b6 1.] Defendant Rodney Troy Holzer (Holzer) appeals his conviction of first-degree attempted burglary, claiming the evidence is insufficient to support the conviction. He also appeals the circuit court's ruling admitting testimony concerning the condition of his clothing at the time of his arrest. We affirm.\\nFACTS AND PROCEDURE\\n[\\u00b62.] On December 17, 1998, Amanda Spronk, Amy Decker and two other young college women lived together in a house in Sioux Falls, South Dakota. On this particular evening, four of Spronk's girlfriends, Jessica DeVries, Jill Poppens, Sarah Rol-linger and Katie Koerner, were spending the night at her house because the University of Sioux Falls dormitories were closed for Christmas break.\\n[\\u00b6 3.] After spending the evening at another Mend's house, the women returned to Spronk's house in two separate cars. The cars were parked on the street in front of the house. DeVries' car was left unlocked. The front and back doors to the house were unlocked at this time because Decker expected her boyfriend to stop by later.\\n[\\u00b6 4.] While downstairs on the main floor of the house, Poppens noticed someone opening the outside screen door on the front porch. Poppens and Koerner went to the front door to see if anyone was there, and observed Holzer running across the front lawn. They went upstairs to tell Spronk and DeVries what they had seen. At that point, Spronk went outside to lock DeVries' car with the remote entry control. She came back into the house and locked both the front door and the back sliding glass door before heading back upstairs. The other women remained on the first floor.\\n[\\u00b6 5.] A short time later, Poppens, Rol-linger and Koerner noticed Holzer attempting to again get into the house. They told Spronk about this and when she looked out the window she saw a man standing in the driveway. Holzer was \\\"showing himself and he was dancing around.\\\" In his brief, Holzer admits, while wearing a dildo and masturbating, he danced provocatively on the sidewalk in front of Spronk's house. Poppens called 911 to report what was happening. The women felt sure Holzer knew they were watehing him. He \\\"popped up\\\" in front of the women and scared them while they were looking out the small windows of the front door. At this time the women could not identify the man because his face was covered. Holzer wore a blue t-shirt over his face. The shirt had holes cut out for his eyes and nose.\\n[\\u00b6 6.] Holzer went to the back door and attempted to force open the sliding glass door, \\\"slamming [it] back and forth real hard.\\\" The force was sufficient to pull the screws from the latch \\\"out of their original position approximately about a half inch.\\\" There was also enough force exerted on the door to make the vertical blinds covering the glass swing back and forth. After the incident, the' back sliding glass door could not be locked until it was repaired.\\n[\\u00b6 7.] At some point, Decker was awakened and told about the man trying to get into the house. She made another 911 call. The women remained upstairs and Decker stayed on the line until law enforcement arrived.\\n[\\u00b68.] When Officer Dave Erickson arrived at the scene, he observed \\\"a shadow of a person\\\" near the back door of the house. A dog began barking at Officer Erickson, and Holzer ran off. Other law enforcement dispatched to the area observed Holzer running through the backyards in the neighborhood. Holzer did not stop upon command and was tackled a short distance from Spronk's house. When Holzer was rolled over onto his back, officers noticed a large, flesh colored dildo attached with nylons to his waist, extending through the unzipped and unsnapped open fly' of his pants. Holzer's pants were very wet in the crotch area, specifically, \\\"around the pocket areas and up towards the snap.... \\\" The rest of his pants were dry. Spronk's purse was found on the ground near Holzer. The blue t-shirt was found by him as well. Holzer's 1975 Dodge pickup was found one block south from Spronk's house.\\n[\\u00b6 9.] On December 22, 1998, Holzer was charged by indictment with attempted burglary in the first-degree (the house) (SDCL 22-32-1(3); SDCL 22-4-1), with the intent to commit sexual contact without consent, attempted burglary in the fourth-degree (the car) (SDCL 22-32-19) and indecent exposure (SDCL 22-24-1). The State also filed a Part II Habitual Offender Information, as Holzer had twice previously been convicted of burglary in the third-degree and once for grand theft. The State dismissed the indecent exposure charge prior to trial. Also prior to trial, Holzer filed a motion in limine to restrict testimony regarding the fact Holzer's pants were \\\"wet\\\" at the time of his arrest. This motion was denied and the circuit court allowed testimony regarding the condition of Holzer's pants. On April 13, 1999, Holzer was convicted by a jury -on the counts of attempted burglary. The circuit court sentenced him to twenty-five years in the state penitentiary with three years suspended for the attempted first-degree burglary and ten years with one year suspended as to the count of attempted fourth-degree burglary. The sentences are to be served concurrently. Holzer now appeals his conviction and sentence for attempted first-degree burglary, raising the following issues for our consideration:\\n1. Whether the circuit court erred in denying Holzer's motion for judgment of acquittal.\\n2. Whether the circuit court abused its discretion in admitting testimony concerning the condition of Holzer's pants at the time of his arrest.\\nSTANDARD OF REVIEW\\n[\\u00b6 10.] In reviewing the denial of a motion for judgment of acquittal, the ultimate question is whether the evidence was sufficient to sustain the convictions. State v. Larson, 1998 SD 80, \\u00b6 9, 582 N.W.2d 15, 17. We recently stated in Larson:\\nOur standard of review of a denial of a motion for' judgment of acquittal is whether State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged. State v. Abdo, 518 N.W.2d 223, 227 (S.D.1994); State v. Gallipo, 460 N.W.2d 739, 742 (S.D.1990). In determining the sufficiency of the evidence to constitute the crime, the question is \\\"whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict.\\\" State v. Heftel, 513 N.W.2d 397, 399 (S.D.1994) (citations omitted).\\nId. (citing State v. Thompson, 1997 SD 15, \\u00b6 34, 560 N.W.2d 535, 542-43 (citing State v. McGill, 536 N.W.2d 89, 91-92 (S.D.1995))). In this review, we \\\"will not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.\\\" State v. Buchholz, 1999 SD 110, \\u00b6 33, 598 N.W.2d 899, 905 (citing State v. Knecht, 1997 SD 53, \\u00b622, 563 N.W.2d 413, 421).\\n[\\u00b6 11.] The circuit court's eviden-tiary rulings are presumed correct and we review them under an abuse of discretion standard. Larson, 1998 SD 80, \\u00b6 10, 582 N.W.2d at 17 (citing State v. Goodroad, 1997 SD 46, \\u00b6 9, 563 N.W.2d 126, 129 (citing State v. Oster, 495 N.W.2d 305, 309 (S.D.1993))). \\\"The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.\\\" Id. (citing Goodroad, 1997 SD 46, \\u00b6 9, 563 N.W.2d at 129 (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986))).\\nANALYSIS AND DECISION\\n[\\u00b6 12.] 1. Whether the circuit court erred in denying Holzer's motion for judgment of acquittal.\\n[\\u00b6 13.] Holzer argues his motion for judgment of acquittal should have been granted at the close of the evidence because the evidence was not sufficient to prove beyond a reasonable doubt he intended to commit, sexual contact in the course of the attempted burglary. We do not agree.\\n[\\u00b6 14.] Burglary is an unlawful entry accompanied by an intent to commit some other crime in the process; in this case, the crime was sexual contact. SDCL 22-32-1. Holzer was apprehended before he actually entered the house and committed a crime therein. SDCL' 22-4-1. The State had to prove beyond a reasonable doubt Holzer intended to commit sexual contact on one or more of the women in Spronk's home. The jury determined Holzer was guilty of attempted burglary with the intent to commit sexual contact.\\n[\\u00b6 15.] The State may prove all elements of a crime, including intent, by circumstantial evidence. State v. McGill, 536 N.W.2d 89, 94 (S.D.1995) (citing State v. Davi, 504 N.W.2d 844, 856-57 (S.D.1993); State v. Ashker, 412 N.W.2d 97, 105 (S.D.1987)). \\\"The actor's 'state of mind' at the time of the offense may also be determined from his acts, conduct and inferences which are fairly deducible from the circumstances surrounding the offense.\\\" Id. (citing State v. Huber, 356 N.W.2d 468, 473 (S.D.1984)); see also State v. Ring, 554 N.W.2d 758, 760 (Minn.App.1997) (stating intent must generally be proved from the circumstances surrounding the defendant's acts). \\\"[T]he proof of intent to commit a crime in connection with proof of burglary is always one that must rest on a permissible inference from the fact proved.\\\" Ring, 554 N.W.2d at 760.\\n[\\u00b6 16.] Rarely does a sexual perpetrator announce his intentions prior to attempting such a crime. People in Interest of W.Y.B., 515 N.W.2d 453, 455 (S.D.1994). In W.Y.B. this Court analyzed the concept of proof of specific intent concerning the crime of sexual contact, SDCL 22-22-7.1:\\nFirst, we note that circumstantial evidence may often be the only way to prove intent. North Dakota v. Lovejoy, 464 N.W,2d 386, 389 (N.D.1990) (citing North Dakota v. Huwe, 413 N.W.2d 350, 355 (N.D.1987)). See Nebraska v. Morrow, 237 Neb. 653, 467 N.W.2d 63, 71 (1991) (\\\"[I]ndependent evidence of specific intent is not required. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.\\\") (quoting Nebraska v. Costanzo, 227 Neb. 616, 419 N.W.2d 156, 162 (1988)); Minnesota v. Obasi, 427 N.W.2d 736, 738 (Minn.App.1988) (\\\"Intent is a subjective state of mind and is established by reasonable inferences drawn from surrounding circumstances.\\\")\\n(citation omitted); Bustamante v. Indiana, 557 N.E.2d 1313, 1317-18 (Ind. 1990) (stating that elements of offenses may be established entirely by circumstantial evidence and logical inferences drawn therefrom); Phillips v. Texas, 597 S.W.2d 929, 936 (Tex.Crim.App.1980) (\\\"One's acts are generally reliable circumstantial evidence of his intent.\\\") (citation omitted). Because the nature of intent is such that it is \\\"rarely susceptible to direct proof, the fact finder may determine intent by su'ch reasonable inferences and deductions as may be drawn from facts proved by evidence in accordance with common experience and observation.\\\" Iowa v. Hilpipre, 395 N.W.2d 899, 903 (Iowa App.1986) (citing Iowa v. Serr, 322 N.W.2d 96, 101 (Iowa App.1982)). On review, this court need only determine whether such inferences regarding intent support the judgment of the court beyond a reasonable doubt. Bustamante, 557 N.E.2d at 1318; Lovejoy, 464 N.W.2d at 389.\\nAlso, the jury, as the exclusive judge of facts, credibility of the witnesses, and the weight to be given the evidence, may \\\"infer knowledge and intent from the acts, words, and conduct of the accused.\\\" Harvey v. State, 3 S.W.3d 170, 174 (Tex. App.14th Dist. \\u2014 Houston 1999) (citing Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982)).\\n[\\u00b6 17.] Given the facts and circumstances of this case, we determine there was sufficient evidence for the jury to find Holzer guilty of attempted burglary. Hol-zer admits he was at Spronk's house on the night in question. He admits he opened the front screen door, and forced the back sliding glass door hard enough to pull the latch and lock screws out of place, and rattle the vertical blinds. He also admits, while wearing a dildo attached to his waist and his pants unzipped and unsnapped, and masturbating, he danced provocatively on the sidewalk in front of the house. Holzer approached the front door and \\\"popped up\\\" in front of the small windows, scaring the women inside the house. He also took Spronk's purse from the car parked in front of the house. If his purpose was to steal the purse for monetary gain, he logically would have fled the crime scene with his proceeds. As he remained, a reasonable inference drawn from the theft of the purse is that Holzer wanted to obtain keys to enter the house. If his intent was to continue his thefts in the house, a house full of college girls provided questionable financial potential compared with some of the other homes in Sioux Falls. The fact it was obviously occupied also greatly increased his chances of being identified, and thus caught. However, his state of mind was such that upon failing to find house keys in the purse he continued to attempt to enter the occupied structure oblivious to the fact he was giving the occupants more than sufficient time to summon law enforcement. He did Pot attempt to flee until the police actually arrived and he was aware of their presence.\\n[\\u00b6 18.] Holzer wore a blue t-shirt, with holes cut out for the eyes and nose, to cover his identity. He ran from the police when told to stop. Finally, when the police did apprehend him, the front of his pants were \\\"wet\\\" around the pocket and zipper area, supporting a legitimate inference that the wetness was caused by semen, indicating Holzer's intent in entering the house was for further sexual gratification.\\n[\\u00b6 19.] Holzer essentially argues that his conduct in attempting to enter the house was harmless. However, if Holzer's intent was merely to expose himself to those six women that night, after he Rad already accomplished this act outside the house why did he make so many strenuous and violent attempts to enter the house? He clearly had a desire to get inside the house based upon the repeated amount of force he exerted to pry open the back sliding glass door. He frightened the women sufficiently that they called 911 two times, and when officers arrived on the scene, they were \\\"crying, hysterical, [and] very obviously shaken up and upset about the incident that occurred.\\\" The tape of the womens' 911 call illustrates not only how frightened these young women were, but also shows Holzer's repeated, persistent attempts to gain entry into the house, stopped only by police officers arriving on the scene.\\n[\\u00b6 20.] Holzer's intent to commit sexual contact on these facts is not speculative or tenuous, but is a legitimate inference based upon all the facts available to the jury. Compare, State v. Halverson, 394 N.W.2d 886 (S.D.1986) (ruling that evidence was too tenuous to support a verdict beyond a reasonable doubt that the defendant intended to commit an assault in attempting to enter a residence). The jury had more than sufficient evidence from which it could reasonably find Holzer guilty of the crime charged. The jury, as fact finders, heard all the evidence and determined the credibility of the witnesses and weighed their testimony. \\\"It is not the proper function of this [C]ourt to resolve evidentiary conflicts to determine the credibility of witnesses or weigh the evidence.\\\" State v. Christensen, 1998 SD 75, \\u00b6 37, 582 N.W.2d 675, 682 (citing State v. Abdo, 518 N.W.2d 223, 227 (S.D.1994)) (quoting State v. Battest, 295 N.W.2d 739, 742 (S.D.1980)). The weight of the evidence is for the jury to evaluate. Id. (citing State v. Ristau, 290 N.W.2d 487, 490 (S.D.1980)). Moreover, the jury was given an instruction that the State must prove as an element of attempted first degree burglary, Holzer had the specific intent to commit the crime of sexual contact. The jury was also instructed on the difference between direct and circumstantial evidence. Jury instruction 9 states in relevant part:\\nWhere the case of the state rests substantially or entirely on circumstantial evidence, you are not permitted to find the defendant guilty of the crime charged unless the proved circumstances are not only consistent with the guilt of the defendant, but cannot be reconciled with any other rational conclusion and. each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt has been proved beyond a reasonable doubt.\\nIf all the facts and circumstances shown can be reasonably accounted for upon any theory consistent with the innocence of the defendant, the jury must acquit the defendant.\\nWe assume the jury followed these instructions. West v. United States, 359 F.2d 50, 53 (8th Cir.1966) (citing Beck v. United States, 298 F.2d 622 (9th Cir.1962)); see also United States v. Stone, 9 F.3d 934, 938 (11th Cir.1993) (quoting Marshall v. Lonberger, 459 U.S. 422, 438 n. 6,103 S.Ct. 843, 853 n. 6, 74 L.Ed.2d 646 n. 6 (1983) (\\\"The \\\" 'crucial assumption' underlying the system of trial by jury 'is that juries will follow the instructions given them by the trial judge.\\\" ' \\\")). We can also assume the \\\"jury possessed ordinary intelligence and ordinary ability to interpret the facts and understand the instructions.\\\" West, 359 F.2d at 54 (citing Orton v. United States, 221 F.2d 632 (4th Cir.1955)).\\n[\\u00b6 21.] Considering all reasonable inferences and the record' in a light most favorable to the jury's verdict, we determine the evidence was sufficient to constitute attempted burglary in the first-degree. State v. Rhines, 1996 SD 55, \\u00b6 157, 548 N.W.2d 415, 451 (citing State v. Butter, 484 N.W.2d 883, 889 (S.D.1992), cert. denied, 506 U.S. 887, 113 S.Ct. 248, 121 L.Ed.2d 181 (1992)) (citing Ashker, 412 N.W.2d at 105). This Court also views the facts in a light most favorable to the State, giving the State the benefit of all reasonable inferences. Halverson, 394 N.W.2d at 888. The circumstances shown - persistent attempts to make a forced entry after Holzer had exposed himself and masturbated in the front yard, while concealing his identity - exclude any rational inference that Holzer had a noncriminal and non-sexual intent in attempting entry into the house. The trial court properly denied Holzer's motion for acquittal.\\n[\\u00b6 22.] Affirmed.\\n[\\u00b6 23.] 2. Whether the circuit court abused its discretion in admitting testimony concerning the condition of Holzer's pants at the time of his arrest.\\n[\\u00b6 24.] Holzer made a pretrial motion in limine, requesting the circuit court to prevent the State from making any reference to the condition of his pants at the time of arrest. Holzer's basis for this motion was that the pants had not been taken into evidence or tested in any way to support a suggestion by the State that the pants were wet because of semen. The court determined the matter would be dealt with when it came up at trial.\\n[\\u00b6 25.] At trial, Holzer renewed his motion, arguing the pants had never been preserved as evidence and not tested. Finally, Holzer argued the prejudicial impact of Officer Webb's testimony concerning the pants outweighed any probative value it might have. The circuit court heard the officer's testimony outside the presence of the jury, and denied Holzer's motion.\\n[If 26.] Officer Webb testified at trial about the wetness he observed on Holzer's pants when he tackled him to the ground, after Holzer ignored his command to stop. The following testimony constitutes the entire direct testimony regarding Holzer's \\\"wet\\\" pants:\\nQ: Did you notice anything else unusual about the defendant?\\nA: His pants were unzipped and unsnapped.\\nQ: Anything else unusual about the defendant?\\nA: The pants around the groin area were also wet.\\nQ: Was there frost on the ground that night?\\nA: Yes, there was.\\nQ: Did the wetness around his crotch area appear to you to be caused by the frost on the grass?\\nA: No, it didn't. They were extremely wet to the touch.\\nQ: Were the rest of his jeans or pants wet?\\nA: Not that I recall. I recall around the pocket areas and up towards the snap that were extremely wet.\\nIt is apparent from the above testimony that the State never asked Officer Webb's opinion of why Holzer's pants were wet. We will never know what the jury may have inferred from Holzer's wet pants, but if it did infer the wetness was caused by Holzer's semen, it would be a legitimate inference drawn from the evidence. Again, the jury determines the facts and weight of the evidence.' Christensen, 1998 SD 75, \\u00b6 37, 582 N.W.2d at 682.\\n[\\u00b6 27.] Relevant evidence is evidence having any tendency to make the existence of any material fact more or less probable. SDCL 19-12-1. Relevant evidence is inadmissible if unfairly prejudicial. SDCL 19-12-3. The circuit court did the required balancing on the record as to this evidence and found it more probative than prejudicial. Knecht, 1997 SD 53, \\u00b6 12, 563 N.W.2d at 419 (citing State v. McDonald, 500 N.W.2d 243, 246 (S.D.1993)). The standard is not whether the evidence was prejudicial but whether it was unfairly prejudicial. Id. \\\"Unfair prejudice means evidence that has the capacity to persuade by illegitimate means.\\\" Id. (citing State v. Brings Plenty, 459 N.W.2d 390, 399 (S.D.1990)) (citing State v. Holland, 346 N.W.2d 302 (S.D.1984)). We do not find any unfair prejudice to Holzer in this case, as the testimony presented to the jury was clearly limited to what Officer Webb observed when he arrested Holzer, and nothing more.\\n[\\u00b6 28.] Moreover, the State had the burden to prove Holzer possessed the intent to commit sexual contact upon entry to the house. The location and degree of wetness of Holzer's pants is a relevant fact to his intent to \\\"arouse or gratify his sexual desire.\\\" SDCL 22-22-7.1. While the \\\"wetness\\\" of the pants alone does not establish Holzer's criminal intent, it is circumstantial evidence that supports that intent.\\n[\\u00b6 29.] Finally, Holzer had every opportunity to cross-examine Officer Webb on the .witness stand, before the jury, to suggest possible explanations for the wetness. In fact, while cross-examining Officer Webb, Holzer's counsel suggested that the wetness on his pants could have been caused by frost on the ground:\\nQ: You have him on the ground. He's face down in the backyard of a place where there's frost on the ground?\\nA: Yes.\\nQ: You have your , knee on his buttocks area to keep him secure on the ground; is that correct?\\n\\u215c \\u215e; :\\u00a1< \\u215c\\nQ: It's your testimony in the whole process from him running away from when you tackled him to the ground and I assume sliding, the only part of his pants that were wet was the pocket area?\\nA: Not noticeably wet; that's correct. \\u2022 Holzer's counsel also brought out the fact that the pants had not been tested in any way to determine the cause of the wetness. Thus, the jury was able to hear all of this testimony, yet still found Holzer guilty of attempted burglary. The probative value of this evidence put on by the State to prove, beyond a reasonable doubt, that Holzer did have intent to commit sexual contact upon entering the Spronk house was not outweighed by any unfair prejudice to Holzer. This is true especially considering the victims' testimony describing Holzer's actions, and the fact that Hol-zer did not offer any Contradicting testimony. Holzer has failed to show an abuse of discretion by the circuit court.\\n[\\u00b6 30.] Affirmed.\\n[\\u00b6 31.] MILLER, Chief Justice and KONENKAMP, Justice, concur.\\n[\\u00b6 32.] SABERS and AMUNDSON, Justices, dissent.\\n. The totcil elapsed duration of the two 911 calls is 8 minutes and 26 seconds. The record does not indicate how much time elapsed between the first and second 911 calls.\\n.SDCL 22-32-1 provides:\\nAny person who enters an occupied structure, with intent to commit any crime other than the act of shoplifting or retail theft as described in chapter 22-3 0A constituting a misdemeanor, or remains in an occupied structure after forming the intent to commit any crime other than shoplifting or retail theft as described in chapter 22-3 0A constituting a misdemeanor, is guilty of first degree burglary when:\\n(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;\\n(2) The offender is armed with a dangerous weapon; or\\n(3) The offense is committed in the nighttime.\\nFirst degree burglary is a Class 2 felony.\\n. SDCL 22-4-1 states, in pertinent part:\\nAny person who attempts to commit a crime and in the attempt does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable where no provision is made by law for the punishment of such attempt, .\\n. SDCL 22-22-7.1 states in part:\\nAs used in this chapter, the term, sexual contact, means any touching, not amounting to rape, of the breasts of a female or the genitalia or anus of any person with the intent to arose or gratify the sexual desire of either party[.]\\n. Holzer's reliance upon Halverson is misplaced as authority for his argument that there was insufficient evidence to support a jury determination that Holzer entered the house with the intent to commit sexual contact. The two cases are factually distinguishable.' While evidence was introduced of previous episodes between Halverson and other women, the sole facts underlying a claim of attempted burglary by attempted entry into a home for purposes of committing an assault on a woman were as follows:\\nSometime during the night on August 14, 1984 a young woman was awakened by someone prying and tearing on the bedroom screen window of the trailer home she occupied with another woman in Vermillion, South Dakota. The first woman was asleep in the darkened bedroom of the trailer. As she was awakened, she heard someone jump off a cement block that was under the window. The prowler then ran away. The women's trailer home was two trailer houses away from defendant's. Defendant was identified as a suspect by his fingerprints which were lifted off the window frame.\\nHalverson, 394 N.W.2d at 886-87. The repeated violent, strenuous attempts to gain entry to the house that occurred in this case were not present in Halverson. Likewise the acts committed by Halverson surrounding the unsuccessful attempted entry do not contain the repeated sexual acts which are admitted by Holzer.\\n. Twelve jurors were empanelled .to try this case. After hearing and considering all the evidence and the reasonable inferences drawn therefrom and being properly instructed on the law, not one of them concluded there was a reasonable doubt of the defendant's specific intentions or guilt. The dissent fails to give the jury its time honored deference as the \\\"exclusive\\\" trier of fact, pursuant to SDCL 23A-25-3, who had the opportunity to see and hear the proceedings and instead the dissent engages in a selective de novo review of the case. See Harvey, 3 S.W.3d at 173 (stating \\\"[t]he jury is the exclusive judge of the facts, credibility of the witnesses, and the weight to be given to the evidence.\\\"). A de novo standard of review is inappropriate in this case, because a court in a sufficiency of the evidence case is \\\"required to review all inferences in favor of the [jury] verdict, thus making deferential review appropriate,\\\" instead of a de novo review which applies only to decisions made by the trial court. State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163, 174 n. 5 (1995) (interpreting Jackson v. Virginia, 443 U.S. 307, 324-26, 99 S.Ct. 2781, 2792-93, 61 L.Ed.2d 560, 577-78 (1979).)\\nBy engaging in its subjective review of the facts and evidence in this case, the dissent is acting as a \\\"thirteenth juror\\\" when it reaches its conclusion that Holzer, a \\\"weirdo, is so weird any speculation about his unknown intent is just that, pure speculation.\\\" Concluding that the defendant is a \\\"weirdo\\\" is not the point of a criminal trial, nor is it a legal defense to set aside the jury's determination of guilt. \\\"[Cjourts 'are not free to reweigh the evidence and set aside a jury verdict merely because the judges feel that a different \\u2022result is more reasonable.'\\\" Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We agree with the Guthrie court's statement in interpreting the United States Supreme Court's decision in Jackson as establishing a deferential standard of review in cases where the sufficiency of the evidence to support a jury verdict is challenged:\\nUnder the Jackson standard, when reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, under Jackson, it does not matter how we might have interpreted or weighed the evidence. Our function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.\\n461 S.E.2d at 174; see also Harvey, 3 S.W.3d at 174 (stating \\\"[a] factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder.\\\"); Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 295 (Tex.App.\\u2014Waco 1997) (concluding \\\"the court on appeal is not to retry the case or otherwise substitute its judgment or opinion for that of the trier of fact and that only when the judgment is clearly wrong and unjust, after giving due deference to the jury's determinations of the facts, may the reviewing court reverse the judgment.\\\") (emphasis added).\"}"
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+"{\"id\": \"11647826\", \"name\": \"SOUTH DAKOTA SUBSEQUENT INJURY FUND, Appellant, v. HOMESTAKE MINING COMPANY, Appellee\", \"name_abbreviation\": \"South Dakota Subsequent Injury Fund v. Homestake Mining Co.\", \"decision_date\": \"1999-12-22\", \"docket_number\": \"No. 20813\", \"first_page\": \"527\", \"last_page\": \"532\", \"citations\": \"603 N.W.2d 527\", \"volume\": \"603\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:56:32.050964+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 22.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.\", \"parties\": \"SOUTH DAKOTA SUBSEQUENT INJURY FUND, Appellant, v. HOMESTAKE MINING COMPANY, Appellee.\", \"head_matter\": \"1999 SD 159\\nSOUTH DAKOTA SUBSEQUENT INJURY FUND, Appellant, v. HOMESTAKE MINING COMPANY, Appellee.\\nNo. 20813.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Sept. 13, 1999.\\nDecided Dec. 22, 1999.\\nMark Barnett, Attorney General, Richard A. Engels, Special Assistant Attorney General, Pierre, South Dakota, for appellant.\\nBrad P. Gordon of Fuller, Tellinghuisen, Gordon and Percy, Spearfish, for appellee.\", \"word_count\": \"2367\", \"char_count\": \"14357\", \"text\": \"CALDWELL, Circuit Judge.\\n[\\u00b6 1.] The South Dakota Subsequent Injury Fund (SIF) appeals the order of the trial court affirming an order of the Department of Labor (Department) requiring SIF to pay Homestake Mining Company (Homestake) prejudgment interest on Homestake's reimbursement claim. We affirm.\\nFACTS\\n[\\u00b62.] On September 11, 1996, Home-stake Mining Company filed a claim with the South Dakota Division of Insurance (Division) for reimbursement from the South Dakota Subsequent Injury Fund. The claim was denied by the Division on July 8, 1997. The Division concluded that the preexisting condition suffered by Homestake's employee was not of a disabling quality and there had been no subsequent injury under SDCL 62-4-34. Homestake filed a petition for hearing with the South Dakota Department of Labor in accordance with SDCL 62-4-34.2 on July 14,1997.\\n[\\u00b6 3.] The Department reversed the Division's denial and granted Homestake's claim for reimbursement on March 27, 1998. On April 3, 1998, Homestake filed a motion for prejudgment interest with respect to this decision. On May 14, 1998 after considering written arguments from the parties, the Department awarded prejudgment interest to Homestake pursuant to SDCL 62-4-34.5 and 21-1-11. The rate of interest was set at twelve percent on the principal of $212,102.28 in accordance with SDCL 54-3-4 for the period from May 1, 1997, the filing date of the completed claim, through the March 27, 1998 judgment.\\n[\\u00b6 4.] An appeal was filed in trial court on both the order of reimbursement and the award of prejudgment interest. On October 23, 1998, the court affirmed the Department's decision that Homestake was entitled to reimbursement and also affirmed the order for SIF to pay Home-stake prejudgment interest on the reimbursement amount under SDCL 21-1-11.\\n[\\u00b6 5.] SIF filed a notice of appeal -with this Court citing four issues for appeal based on the trial court's decision. However, in light of the recent decision by this Court in South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exchange and Dakota Truck Underwriters, 1999 SD 2, 589 N.W.2d 206, SIF agrees that Homestake was entitled to the reimbursement under SDCL 62-4-34. SIF paid Home-stake's underlying reimbursement claim on January 27, 1999 and is no longer appealing those issues.\\n[\\u00b6 6.] Thus, the only issue left to be decided in this case is whether the Department and the trial court erred in granting Homestake's petition for prejudgment interest.\\nSTANDARD OF REVIEW\\n[\\u00b6 7.] This case involves an appeal from an administrative ruling by the Department of Labor. When analyzing an administrative appeal, we must initially determine whether \\\"the holding . involves a finding of fact or conclusion of law.\\\" Appeal of Schramm, 414 N.W.2d 31, 33 (S.D.1987). Questions of law, such as statutory interpretation, are reviewed by this Court de novo. Casualty Reciprocal Exchange, 1999 SD 2, \\u00b6 12, 589 N.W.2d at 208 (citing Dahn v. Trownsell, 1998 SD 36, \\u00b6 14, 576 N.W.2d 535, 539). No deference is given to conclusions of law by the trial court or the agency. Schramm, 414 N.W.2d at 33.\\n[\\u00b6 8.] The question of prejudgment interest involved in this case is clearly a question of law requiring interpretation of statutes. Thus, this Court reviews the issue de novo and the decisions of both the Department and the trial court are fully reviewable.\\nANALYSIS AND DECISION\\n[\\u00b6 9.] The purpose of prejudgment interest is \\\" 'to do justice to one who has suffered a loss at the hands of another person.' \\\" Honomichl v. Modlin, 477 N.W.2d 599, 601 (S.D.1991)(quoting Jensen Ranch, Inc. v. Marsden, 440 N.W.2d 762, 767 (S.D.1989); S.D. Bldg. Auth. v. Geiger-Berger Assoc., 414 N.W.2d 15, 19 (S.D.1987); Amert v. Ziebarth Const. Co., 400 N.W.2d 888, 890 (S.D.1987)). Prejudgment interest seeks to \\\"compensate an injured party for [the] wrongful detention of money owed.\\\" S.D. Bldg. Auth., 414 N.W.2d at 19 (citing Bunkers v. Guernsey, 41 S.D. 381, 170 N.W. 632 (1919)). \\\" 'The true principle, which is based on the sense of justice in the business community and our statute, is that he who retains money which he ought to pay another should be charged interest upon it.' \\\" Honomichl, 477 N.W.2d at 601 (quoting Arcon Const. Co. v. S.D. Cement Plant, 405 N.W.2d 45, 47 (S.D.1987); S.D. Bldg. Auth., 414 N.W.2d at 19; Gearhart v. Hyde, 39 S.D. 273, 275, 164 N.W. 58, 59 (1917)).\\n[\\u00b6 10.] In this case, SIF retained money that Homestake was entitled to receive. SIF claimed Homestake had no legal right to receive the reimbursement it requested. However, it was determined by this Court that SIF was wrong in that denial and in its interpretation of SDCL 62-4-34. See Casualty Reciprocal Exchange, supra. While SIF did pay Home-stake almost immediately upon learning that the interpretation it was giving to SDCL 62-4-34 was incorrect, that does not change the fact that SIF did wrongfully retain Homestake's money for a period of approximately two years. The only requirement Homestake had to meet under South Dakota law was that it be entitled to damages. In this case, SIF caused Home-stake detriment or loss by unlawfully withholding money it was entitled to by statute.\\n[\\u00b6 11.] SIF argues that prejudgment interest should not be paid to Homestake because the money in the fund is public to the extent that the legislature authorized its formation and collected the money to place within it. However, SIF admits that fund monies would not be considered public for purposes of taxpayer actions since the fund does not contain tax money. SIF, instead, argues that the fact that the fund was created through legislation makes it public. SIF further claims that the money in the fund amounts to appropriated money because SDCL 62-4-34.5 provides that \\\"[a]ll claim reimbursements . are continuously appropriated.\\\" Thus, SIF claims, the funds cannot be spent without specific legislative enactment, making this grant of prejudgment interest unauthorized and illegal.\\n[\\u00b6 12.] However, according to South Dakota law, the fund does not meet the definition of either public funds or appropriated funds. \\\"Public funds are those funds which have been obtained through taxation and are part of the general funds of the state.\\\" Parsons v. S.D. Lottery Comm'n, 504 N.W.2d 593, 595 (S.D.1998). Parsons further states that\\nThe term 'public funds' means funds belonging to the state or to the county or political subdivision of the state; more specifically taxes, customs, moneys, etc., raised by the operation of some general law, and appropriated by the government to the discharge of its obligations, or for some public or governmental purpose; and in this sense it applies to the funds of every political division of the state wherein taxes are levied for public purposes. The term does not apply to special funds, which are collected or voluntarily contributed, for the sole benefit of the contributors, and of which the state is merely the custodian.\\nId. at 595-96 (first emphasis added) (quoting Pokorny v. Wayne County, 322 Mich. 10, 33 N.W.2d 641, 642 (1948) (quoting 50 CJ Public \\u00a7 40 (1930) and citing State v. Igoe, 340 Mo. 1166, 107 S.W.2d 929, 933 (1937); Allen v. City of Omaha, 136 Neb. 620, 286 N.W. 916, 919 (1939))). Appropriated funds are defined in SDCL 4-7-1 (1) as \\\"an authorization by the Legislature to a budget unit to expend, from public funds, a sum of money not in excess of the sum specified, for the purposes specified in the authorization and under the procedure described in this chapter.\\\" (emphasis added).\\n[\\u00b6 13.] The SIF monies are not taxpayer funds and are not public funds. Since the money in the fund is not considered public funds under South Dakota law, it is also not appropriated money which by definition arises firom public funds. SDCL 4-7-1(1). The money in the SIF is a special fund as defined in Parsons. It is held by the state merely as custodian. The money within the fund is held solely for the benefit of contributors like Homestake.\\n[\\u00b6 14.] The SIF was created under South Dakota worker's compensation law for the purpose of encouraging employers to \\\"hire or retain disabled or handicapped workers.\\\" Sioux Falls School District v. South Dakota Subsequent Injury Fund, 504 N.W.2d 107, 107 (S.D.1993); Oesterreich v. Canton-Inwood Hospital, 511 N.W.2d 824, 827 (S.D.1994); Casualty Reciprocal Exchange, 1999 SD 2, at \\u00b6 14, 589 N.W.2d at 206; See generally 5 Larson, Worker's Compensation Law, \\u00a7 91 (1999). Those participating in the fund are entitled to be reimbursed from SIF for that portion of the disability sustained by the previously injured employee that occurred because of or was aggravated by the existence of a previous injury or physical condition. SDCL 62-4-34. The money within the fund comes from assessments made by the South Dakota Division of Insurance to worker's compensation insurance carriers and self-insured employers. SDCL 62-4-35.\\n[\\u00b6 15.] There is nothing within SDCL 62-4-34, et ah, that prohibits the payment of prejudgment interest. There is also precedent that grants the right of an award of prejudgment interest in cases involving worker's compensation claims. See Johnson v. Skelly Oil Co., 359 N.W.2d 130, 133 (S.D.1984) (\\\"The true principle, which is based on the sense of justice in the business community and on our statute, is that he who retains money which he ought to pay to another should be charged interest upon it.\\\"). Thus, when this claim was filed, there was nothing to prohibit the award of prejudgment interest on this claim.\\n[\\u00b6 16.] The final argument made by SIF arises from the legislature's enactment of SDCL 62-4-34.7. This statute purports to end all claims made upon the fund as of June 30, 1999, and provides in relevant part that \\\"[a]ny claim in matters being litigated concerning the subsequent injury fund is not eligible for interest or costs.\\\" SIF argues that we should honor this amendment as a clarification of existing law rather than a change of the law and deny Homestake interest on its claim.\\n[\\u00b6 17.] While it is proper for the Court to take the subsequent action of the legislature into consideration, \\\"it is well established under South Dakota law that the legislative interpretation of a statute through the adoption of a subsequent amendment is not binding on this court....\\\" Hot Springs Ind. School Dist. v. Fall River Landowners Assoc., 262 N.W.2d 33, 38 (S.D.1978). \\\"[I]f the court does consider a subsequent amendment, the court must decide whether the purpose of the amendment was for clarification or whether the amendment altered the law.\\\" Id. at 39 (citing Olson v. Pulaski Common School Dist., 77 S.D. 416, 92 N.W.2d 678 (1958)). The Court has broad discretion in determining the extent to which it must look at the subsequent amendment. Id. The Court is not bound by any subsequent legislative acts. Id.\\n[\\u00b6 18.] In this case, while not bound by the subsequent legislative action, the Court can consider the circumstances and purpose under which the action was taken to determine whether this subsequent legislative enactment is a clarification or a change of the law. Thus, we must look at the time and circumstances surrounding the enactment to determine the intent with which it was made. Id. As pointed out by SIF in its reply brief, this amendment was passed \\\"in the wake of several adverse lower court decisions awarding interest, one of which is the instant case.\\\" However, where SIF claims the language of the statute shows an intent to clarify the legislative intentions of SDCL 62-4-34 and 62-4-34.5, this Court believes the language shows an attempt to change the law in the wake of unfavorable decisions.\\n[\\u00b6 19.] The language used in SDCL 62-4-34.7 does not show any intent to clarify; nor does it use the type of language that would imply clarification. Rather, it attempts to forbid the payment of interest from the fund only on claims presently in litigation, not on all claims under that section or the fund. Under the new enactment, a claim could be submitted prior to June 30,1999 and awarded interest despite this enactment. After all, such a claim could be litigated well after the SIF is repealed, and interest on such a claim would not be forbidden because the claim would not be in litigation at the appropriate time to be covered under the new statute. Thus, if this subsequent amendment is purporting to clarify whether prejudgment interest is allowed under this section, it is not broad enough to actually do this with regard to all possible claims against SIF. Instead, it attempts to prohibit prejudgment interest cases currently in litigation and that is inconsistent with the purported intent of the new statute, according to SIF. There is nothing to suggest an attempt to clarify the various statutes surrounding the fund at the time this claim was filed. Instead, it is clearly an attempt to change the law and deny employers, whose money was wrongfully and unlawfully withheld from them, the right to recover prejudgment interest for their damages.\\nCONCLUSION\\n[\\u00b6 20.] It is a fundamental principle of our law that one who causes detriment to another by unlawful act or omission should have to pay damages in the amount withheld and interest for the time the use of the money was denied. SIF wrongfully and unlawfully withheld money from Homestake when it refused to pay the reimbursement request it submitted. By wrongfully withholding Homestake's money, the SIF caused Homestake a detriment because it was denied the use of that money. There is nothing in our law that prevents the payment of prejudgment interest on this claim and the subsequent legislative enactment is not binding on this Court since it is not an attempt to clarify the original legislative intent.\\n[\\u00b6 21.] The judgment of the trial court is affirmed.\\n[\\u00b6 22.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.\\n[\\u00b6 23.] CALDWELL, Circuit Judge, for AMUNDSON, Justice, disqualified.\"}"
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+"{\"id\": \"11790411\", \"name\": \"In the Matter of the Support Obligation of David LOOMIS, Absent Parent\", \"name_abbreviation\": \"In re the Support Obligation of Loomis\", \"decision_date\": \"1998-11-18\", \"docket_number\": \"No. 20226\", \"first_page\": \"427\", \"last_page\": \"439\", \"citations\": \"587 N.W.2d 427\", \"volume\": \"587\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T18:15:08.477819+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Support Obligation of David LOOMIS, Absent Parent.\", \"head_matter\": \"1998 SD 113\\nIn the Matter of the Support Obligation of David LOOMIS, Absent Parent.\\nNo. 20226.\\nSupreme Court of South Dakota.\\nArgued April 29, 1998.\\nReassigned June 19, 1998.\\nDecided Nov. 18, 1998.\\nDebra D. Watson of Watson Law Office, Rapid City, for appellant.\\nMark W. Barnett, Attorney General, John H. Fitzgerald, Special Assistant Attorney General, for appellee.\", \"word_count\": \"8070\", \"char_count\": \"48973\", \"text\": \"MILLER, Chief Justice (on reassignment).\\n[\\u00b6 1.] In this opinion we hold that, under the facts of this case, the mother of an out-of-wedlock child is barred by the equitable doctrines of laches and estoppel from receiving retroactive child support.\\nFACTS\\n[\\u00b6 2.] In October 1982, David Loomis and Linda Teller had a brief sexual encounter in Gillette, Wyoming. Teller gave birth on July 15, 1983. Neither during the pregnancy nor afterwards did she tell Loomis that he fathered her child, even though they both lived in Gillette for approximately three years after the birth.\\n[\\u00b6 3.] When she was fourteen years old, the child told her mother that she wanted to know who her father was and where he lived. To locate Loomis, Teller apparently sought the assistance of a social service agency. Ultimately, in December 1996, the South Dakota Office of Child Support Enforcement notified Loomis that Teller claimed he fathered her fourteenryear-old daughter. Teller sought current ongoing child support, plus an amount for accrued child support for the preceding six years.\\n[\\u00b6 4.] After a blood test, which confirmed Loomis' paternity, he never challenged his paternity or his duty to pay ongoing child support. He did, however, object to having to pay past child support because of Teller's conduct of not telling him for fourteen years that he had a daughter.\\n[\\u00b6 5.] After an administrative hearing, the referee recommended that, based on the child support guidelines, Loomis owed $21,-343.52 in retroactive support. However, he recommended that amount be reduced to $14,000, finding a substantial deviation appropriate considering Loomis' present financial condition and Teller's long delay in seeking support. The circuit court accepted the referee's recommendations and entered an order denying Loomis' objections. He appeals, contending the circuit court abused its discretion in failing to apply the equitable doctrines of laches and estoppel to bar Teller's claim for retroactive child support. We reverse and remand.\\nSTANDARD OF REVIEW\\n[\\u00b6 6.] When the circuit court has adopted a child support referee's findings and conclusions, we apply the clearly erroneous standard of review to the findings and give no deference to conclusions of law. Wolff v. Weber, 1997 SD 52, \\u00b67, 563 N.W.2d 136, 138 (citing Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992)); Janke v. Janke, 467 N.W.2d 494, 497 (S.D.1991). In applying this standard, we will not reverse findings of fact unless we are left with a definite and firm conviction a mistake has been made. Janke, 467 N.W.2d at 497.\\n[\\u00b6 7.] In child support cases, the question of whether laches is an available defense is an issue of law. Fisco v. Department of Human Servs., 659 A.2d 274, 275 (Me.1995); see also Archer v. Archer, 907 S.W.2d 412, 416 (Tenn.Ct.App.1995) (application of laches defense presents a mixed question of law and fact reviewable de novo). Furthermore, whether equitable estoppel will deny Teller the right to bring an action for back child support against Loomis is fully reviewable as a mixed question of law and fact. Crouse v. Crouse, 1996 SD 95, \\u00b6 14, 552 N.W.2d 413, 417.\\nDECISION\\n[\\u00b6 8.] 1. The circuit court erred in not applying the equitable defenses of laches and estoppel to bar Teller's claim for retroactive child support.\\n[\\u00b6 9.] We initially address Teller's claim that SDCL 25-8-5 is a legislative de-\\ntermination that the equitable defenses of laches and estoppel cannot be applied in such a case. The interpretation of a statute is a question of law. See Moss v. Guttormson, 1996 SD 76, \\u00b6 10, 551 N.W.2d 14, 17. We will give words in a statute them plain and ordinary meaning where possible. In re Estate of Gossman, 1996 SD 124, \\u00b6 6, 555 N.W.2d 102, 104.\\n[\\u00b6 10.] SDCL 25-8-5 provides:\\nThe mother may recover from the father a reasonable share of the necessary support of a child born out of wedlock.\\nIn the absence of a previous demand in writing served personally or by registered or certified letter addressed to the father at his last known residence, not more than six years' support furnished before bringing an action may be recovered from the father.\\n[\\u00b6 11.] Nothing in this statute indicates the legislature intended to abrogate a father's rights to assert equitable defenses. What the legislature has done in SDCL 25-8-5 is to establish a maximum time span for which a father of a child born out of wedlock can be required to pay past child support. Had it intended to somehow totally supplant a father's right to assert equitable defenses, it could have specifically stated so.\\n[\\u00b6 12.] Having decided that Loomis had a right to raise the equitable defenses of laches and estoppel, we will next examine whether it was error for the circuit court not to apply those defenses.\\na. Laches\\n[\\u00b6 13.] In order for laches to bar any recovery for Teller, it must be shown that, \\\"(1) she had full knowledge of the facts upon which the action is based, (2) regardless of this knowledge, she engaged in an unreasonable delay before commencing the suit, and (3) that allowing her to maintain the action would prejudice other parties.\\\" Conway v. Comvay, 487 N.W.2d 21, 24 (S.D.1992) (citations omitted) (emphasis omitted).\\n[\\u00b6 14.] It is apparent that Teller had full knowledge of the facts upon which the action is based. She knew from the very beginning that Loomis was the father of the. child, yet she did not reveal it to him until the child was fourteen years old.\\n[\\u00b6 15.] The fact that she waited fourteen years before bringing an action for child support also constitutes an unreasonable delay. In State v. Garcia, 187 Ariz. 527, 931 P.2d 427, 428-29 (Ariz.Ct.App.1996),' the court held there was an unreasonable delay and laches applied because neither the mother nor the state sought child support for more than sixteen years. This was true, even though the father lived across the street from the mother's family. Id. at 429. It is also interesting to note that in Garcia, unlike the present case, the mother told the father the child was his while she was still pregnant. Id. at 428; see also Wigginton v. Commonwealth, 760 S.W.2d 885 (Ky.App.1988) (holding that a claim for support arrearages was barred by laches because a mother did not bring a paternity action for fifteen years). In the present case, Teller waited fourteen years, even though they lived in the same town for the first three years.\\n[\\u00b6 16.] The last factor to consider is whether allowing Teller to maintain her claim for retroactive child support would prejudice Loomis. The prejudice to Loomis is quite clear if he is forced to make such payments. Loomis has a current family consisting of a wife and two minor children. Now, in addition to the expenses in supporting his family, as well as the current support he now pays to the child he had with Teller, he is being asked to pay additional payments in the amount of $14,000. He also has placed the child on his health insurance plan. From his current conduct, it seems obvious that, had he known all along that the child was his, he would have supported her and also been able to develop some sort of relationship with her. See Garcia, 931 P.2d at 429 (holding father would be prejudiced if forced to pay arrear-ages for sixteen years because he had other children to support, other financial obligations, and was never allowed to develop a relationship with his son); Moore v. Hafeeza, 212 N.J.Super. 399, 515 A.2d 271, 275 (1986) (holding that a mother's fifteen-year delay in bringing a claim for child support was prejudicial, because father was denied right to develop a relationship with his child and he also incurred other financial obligations).\\nb. Equitable estoppel\\n[\\u00b6 17.] \\\"Equitable estoppel is based on fair dealing, good faith and justice.\\\" D.G. v. D.M.K., 1996 SD 144, \\u00b637, 557 N.W.2d 235, 242. Four factors must be met in order for equitable estoppel to bar recovery: (1) a false representation or a concealment of material facts; (2) the victim must have been without knowledge of the real facts; (3) the representation or concealment must have been made with the intent that it be acted on; and (4) the victim must have relied on the misrepresentation or concealment creating prejudice or injury. Crouse, 1996 SD 95, \\u00b6 14, 552 N.W.2d at 417. \\\"There can be no estoppel if any of these essential elements are lacking, or if any of them have not been proved by clear and convincing evidence.\\\" Id.\\n[\\u00b6 18.] We find there was a concealment of material facts in this case. Teller stated under oath that she did very little to try and contact Loomis. Then she further admitted she intentionally prevented contact between Loomis and his daughter for those fourteen years, even though he lived in the same town for the first three of those years. It was only at the request of her daughter that she finally took steps towards contacting Loomis.\\n[\\u00b6 19.] The second factor for equitable es-toppel is also met, as Loomis was without knowledge of the real facts. There is no question he did not know for fourteen years that he had a child with Teller.\\n[\\u00b620.] The third factor requires the concealment must have been made with the intention that it be acted on. Teller intentionally concealed Loomis' paternity from him, and thus, he was not allowed any relationship with his daughter. It seems apparent that had he known he had this daughter, he would have paid support for her. This is evidenced by the fact that he is not contesting paternity or his obligation to pay current support.\\n[\\u00b6 21.] The fourth and final factor is that Loomis must have relied on the concealment creating prejudice or injury. Once again, as in the situation with laches, the prejudice in this case is clear. Loomis has been denied a relationship with his daughter for fourteen years. Now, Teller is attempting to force him to pay retroactive support in the amount of $14,000. Loomis testified that he could have structured his life differently had he known about this daughter. If the decision of the circuit court is affirmed, then Loomis would be forced to pay $14,000 on top of his current support payments, while still trying to support his current family. See State, Dept. of Human Servs, v. Irizarry, 945 P.2d 676, 680-81 (1997) (discussing reliance and injury under an estoppel claim and stating that a father had relied to his detriment as shown by certain lifestyle choices and the effect back child support payments would have on his current family). .\\n[\\u00b622.] It is important to reiterate that Loomis does not contest paternity or current support. Equity does not permit us to force Loomis to pay $14,000 in retroactive child support payments when Teller intentionally concealed the fact that he had a daughter. He would be greatly prejudiced to hold otherwise. We reverse the decision of the circuit court as Teller's claims are barred by the defenses of laches and equitable estoppel, and remand to enter an order consistent with this opinion.\\n[\\u00b6 23.] Reversed and remanded.\\n[\\u00b6 24.] AMUNDSON, Justice, concurs.\\n[\\u00b6 25.] SABERS, Justice, concurs specially.\\n[\\u00b6 26.] KONENKAMP and GILBERTSON, Justices, dissent.\\n. We must first note that SDCL 25-8-5, which allows a mother to recover past child support, is a statute that allows a mother to be reimbursed for past child support she has furnished. Under the dictates of the statute, the mother is the one who brings the action. The statute also directs that \\\"the mother\\\" may \\\"recover\\\" support, but not more than six years' of the support that has already been \\\"furnished.\\\" Therefore, the plain language of the statute states that it is a means for the mother to be reimbursed for support she has already provided to the child. It is not a statute dealing with child support arrearages or any debt a father owes directly to a child.\\n. Teller admitted during the hearing in front of the referee that she intentionally prevented contact between Loomis and their daughter for fourteen years.\\n. Even the referee also must have recognized a degree of prejudice, as he used it as a reason to reduce the amount of arrearages that Loomis should be required to pay.\"}"
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+"{\"id\": \"11819934\", \"name\": \"In the Matter of the Appeal of LAKE PRESTON HOUSING CORPORATION, Appellant, v. SOUTH DAKOTA DEPARTMENT OF LABOR, Appellee\", \"name_abbreviation\": \"Appeal of Lake Preston Housing Corp. v. South Dakota Department of Labor\", \"decision_date\": \"1999-01-13\", \"docket_number\": \"No. 20524\", \"first_page\": \"736\", \"last_page\": \"740\", \"citations\": \"587 N.W.2d 736\", \"volume\": \"587\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T18:15:08.477819+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 14.] MILLER, Chief Justice, SABERS, AMUNDSON, RONENRAMP, and GIL-BERTSON, Justices, participating.\", \"parties\": \"In the Matter of the Appeal of LAKE PRESTON HOUSING CORPORATION, Appellant, v. SOUTH DAKOTA DEPARTMENT OF LABOR, Appellee.\", \"head_matter\": \"1999 SD 5\\nIn the Matter of the Appeal of LAKE PRESTON HOUSING CORPORATION, Appellant, v. SOUTH DAKOTA DEPARTMENT OF LABOR, Appellee.\\nNo. 20524.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Dec. 3, 1998.\\nDecided Jan. 13, 1999.\\nMarcene J. Smith of Wilkinson & Wilkinson, DeSmet, for appellant.\\nDrew C. Johnson, Special Assistant Attorney General, Aberdeen, for appellee.\", \"word_count\": \"2034\", \"char_count\": \"12937\", \"text\": \"PER CURIAM.\\n[\\u00b6 1.] Lake Preston Housing Corporation appeals from an order affirming the Department of Labor decision that Donna Reiser is an employee of the corporation rather than an independent contractor. We affirm.\\nFACTS\\n[\\u00b6 2.] Donna Reiser was hired February 3, 1993 by Lake Preston Housing to manage its rental housing project. Her duties include collecting and depositing rents, paying bills and preparing reports, arranging for minor repairs, cleaning the common areas, and removing snow from the sidewalks and parking lots. The corporation does not provide an office; Reiser has her own office equipment, consisting of a desk, file cabinet, calculator and telephone, located in her home. The corporation does provide snow removal, lawn care and housecleaning equipment for use in performance of her duties. Reiser pays business expenses, such as telephone and postage, which are not reimbursed by the corporation. Any expense for repair work exceeding $250 is held for bids, with Lake Preston Housing determining which bid will be accepted. Reiser is paid $1350 per month for her services. Her contract is renewed annually by agreement of the parties or terminated by either party with 60 days' notice. She sets her own hours and is not personally supervised by any board member of the housing corporation. Many of the rules and regulations followed by Reiser in performance of her duties for the corporation are set by the Farmers Home Administration.\\n[\\u00b6 3.] When paying Reiser, Lake Preston Housing does not withhold income tax or social security tax from her earnings nor does it pay unemployment insurance tax on her behalf. It does not provide her with vacation or sick leave or health insurance benefits. At the end of the year, Reiser's earnings are reported to the Internal Revenue Service on a Form 1099 as non-employee compensation.\\n[\\u00b6 4.] The housing corporation previously hired management companies to manage its property. For 18 years, North Central Health Services managed the property until Tealwood Corporation of Minneapolis purchased the nursing home owned by North Central in Lake Preston, South Dakota. At that time, North Central terminated its management contract and Tealwood entered into a management contract with Lake Preston Housing. Tealwood managed the property for one year at which time Melanie Dobson was hired by Lake Preston Housing to manage its rental property. Dobson paid her own unemployment taxes and a subsequent decision of the Department of Labor found her to be an employee of the housing corporation rather than an independent contractor. This decision was not appealed. When Lake Preston Housing hired Reiser it discussed in particular detail with her the expectation that she be hired as an independent contractor. The management agreement between Reiser and Lake Preston Housing contains, inter alia, the following provision:\\nThe Owner and the Manager/Caretaker agree that the services to be rendered to the Owner for management services in connection with the terms of this agreement are rendered as an independent contractor and nothing under this agreement is intended nor shall be construed to create an employer/employee relationship, a joint venture relationship or in any manner interpreted to allow the Owner to exercise control and direction over the manner or method by which the Manager/Caretaker provides services that are the subject of this agreement provided that such services are rendered in a professional and compe tent manner keeping with the policies and directives of the Owner.\\n[\\u00b6 5.] A question arose regarding the employment status of Reiser when Lake Preston Housing did not report her for state unemployment insurance tax purposes. Lake Preston Housing asserted Reiser was an independent contractor and therefore not eligible for unemployment insurance benefits. Following a hearing, the Department of Labor determined Reiser was an employee and not an independent contractor as claimed by the housing corporation. This decision was appealed to the Secretary of Labor who affirmed it. It was further appealed to the circuit court where it was affirmed. The corporation now appeals a single issue to this Court: Whether the Department erred in determining Reiser is an employee of Lake Preston Housing Corporation rather than an independent contractor.\\nANALYSIS AND DECISION\\n[\\u00b6 6.] SDCL 61-1-11 distinguishes between employee and independent contractor for purposes of unemployment insurance tax liability. Shoppers Guide v. S.D. Dep't of Labor, 1996 SD 92, \\u00b6 7, 551 N.W.2d 584, 586. It provides:\\nService performed by an individual for wages is employment subject to this title unless and until it is shown to the satisfaction of the department of labor that:\\n(1) The individual has been and will continue to be free from control or direction over the performance of the service, both under his contract of service and in fact; and\\n(2) The individual is customarily engaged in an independently established trade, occupation, profession or business.\\nUnder this statute, it was determined by the Department, and affirmed by the Secretary and the circuit court, that Reiser was free from control or direction in the performance of her duties for Lake Preston Housing. SDCL 61-1-11(1). However, the Department further found, and it was affirmed on appeal, that Reiser was not \\\"customarily engaged in an independently established trade, occupation, profession or business.\\\" SDCL 61-1-11(2).\\n[\\u00b6 7.] The statute presumes an individual is an employee and the burden is on the employer to prove the individual is an independent contractor. Both statutory elements must be established. Jackson v. Lee's Travelers Lodge, Inc., 1997 SD 63, \\u00b6 10-11, 563 N.W.2d 858, 861 (citing Shoppers Guide, 1996 SD 92, \\u00b6 8, 551 N.W.2d at 586; In re Appeal of Hendrickson's Health Care, 462 N.W.2d 655, 658 (S.D.1990)). Whether a person is an employee or independent contractor is a mixed question of law and fact and is fully reviewable by this Court. Jackson, 1997 SD 63, \\u00b6 9, 563 N.W.2d 858.\\n[\\u00b6 8.] Under the first element of SDCL 61-1-11, the Department found Reiser free from control by Lake Preston Housing in the performance of her duties. The evidence shows Reiser set her own hours. A housing corporation board member testified the corporation was unconcerned as to when or the manner in which Reiser performed her duties as long as the work was done in compliance with FmHA rules and regulations. The management agreement actually lists Reiser's duties in sufficient detail that it could be found that Lake Preston Housing directed her performance of service. However, the more significant issue is whether Reiser is customarily engaged in an independently established trade, occupation, profession or business.\\n[\\u00b6 9.] The Department found Lake Preston Housing did not carry its burden of proof under this second statutory element. In Hendrickson's, we held the requirement that an employee's occupation be independently established and that she be customarily engaged in it, calls for an enterprise created and existing separate and apart from the relationship with the particular employer', an enterprise that will survive the termination of that relationship, and an enterprise in which the individual must have a proprietary interest to the extent that she can operate it without hindrance from any other individual. 462 N.W.2d at 659. The facts show Keiser has no property management enterprise existing apart from her position with Lake Preston Housing. She testified she does not have a sales tax license, a business telephone listing, business cards, nor does she advertise her management services to the public. Pri- or to her position with Lake Preston Housing, Keiser provided bookkeeping services, without remuneration, to her husband's now-defunct trucking business. Keiser stated she considers her work with the housing corporation to be \\\"full-time\\\" and thus does not seek out other \\\"customers.\\\"\\n[\\u00b6 10.] Lake Preston Housing concedes this but argues its legal claim should not fail because Keiser's time is so consumed by her current duties that she has no other activities that would constitute such a business. The number of hours an individual is involved with an employer's activities is not the test under this second element of SDCL 61-1-11. If Keiser had a separate property management business, she could readily hire her own employees to perform some of the housekeeping-type duties that currently take up her time at Lake Preston Housing. In the alternative, she could consume her time with this one client but the facts would show she had a separate, established venture that existed independently from her duties at Lake Preston Housing. The facts demonstrate that Keiser has no enterprise created and existing separate and apart from her employment relationship with the housing corporation. See Jackson, 1997 SD 63, \\u00b6 13, 563 N.W.2d 858.\\n[\\u00b6 11.] Lake Preston Housing finally argues:\\nWhether the services requested by Lake Preston Housing are performed under an independent contractor, status should not depend on who Lake Preston Housing contracts with. There was an independent contractor status between Lake Preston Housing and North Central Heart [sic] and Tealwood, and nothing has changed with the contract between Lake Preston Housing and Keiser.\\nThis statement illustrates the purpose of the unemployment compensation statutes. Whether an individual is found to be an independent contractor or an employee, and thus requiring payment of unemployment insurance tax by the employer, is exactly dependent on with whom the employer contracts. When Lake Preston terminated its management contract with North Central Health Services and Tealwood, these two entities carried on with their independently established businesses. By engaging in an independent economic enterprise, the independent contractor has assumed the risk of his or her own unemployment. See Midland Atlas Co. v. S.D. Dep't of Labor, 538 N.W.2d 232, 236 (S.D.1995); Egemo v. Flores, 470 N.W.2d 817, 822 (S.D.1991); Hendrickson's, 462 N.W.2d at 659 (\\\"Whether or not she is unemployed is solely a function of market forces and the demand for her skills, not the response of her master to similar economic realities.\\\"). An individual who is not customarily engaged in an independently established business or profession has not assumed this risk. The risk of unemployment remains with the employer as reflected in the statutory presumption found in SDCL 61-1-11.\\n[\\u00b6 12.] The protection provided by this statute reflects legislative public policy which cannot be eliminated by private contract between two parties. Billion v. Billion, 1996 SD 101, 553 N.W.2d 226, 230-31 n4; Farmland Ins. Cos. of Des Moines v. Heitmann, 498 N.W.2d 620, 623-24 (S.D.1993); State ex rel. Meierhenry v. Spiegel, Inc., 277 N.W.2d 298, 300 (S.D.1979)(\\\" '[F]reedom of contract is not an absolute right or superior to the general welfare of the public.' \\\"); Connolly v. Connolly, 270 N.W.2d 44, 46-47 (S.D.1978). \\\"An employer's superior bargaining position may enable him to deceptively structure an employment relationship to his own tax or liability advantage, and the worker may be in no position to object \\u2014 even if he understands what the employer is doing or that it is not in the worker's best interests.\\\" Egemo, 470 N.W.2d at 826 (Sabers, J., dissenting). See Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 372 (S.D.1991) (citing SDCL 53-5-3, -4 and 58-9-1 and noting that \\\"under South Dakota law, any contract is 'void' insofar as its object is unlawful.\\\"); cf. Colonial Ins. Co. v. Lundquist, 539 N.W.2d 871, 874 (S.D.1995) (holding insurer may not provide coverage as required by statute and \\\"then, in the fine print, take that protection away[J\\\").\\n[\\u00b6 13.] Reiser has no established trade, occupation, profession or business that continues beyond her employment with Lake Preston Housing. The Department correctly determined Reiser is an employee and not an independent contractor. We affirm.\\n[\\u00b6 14.] MILLER, Chief Justice, SABERS, AMUNDSON, RONENRAMP, and GIL-BERTSON, Justices, participating.\\n. This document and its addendum provide a 7-page, single-spaced outline of Reiser's duties and responsibilities.\\n. Further, the housing corporation's practice of not withholding federal income tax or social security and of reporting to the Internal Revenue Service compensation paid on Form 1099 cannot transform the relationship to that of independent contractor and contractee. See Hendrickson's, 462 N.W.2d at 656.\"}"
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+"{\"id\": \"11957565\", \"name\": \"STATE of South Dakota, Plaintiff and Appellant, v. Danny D. GOODROAD, Defendant and Appellee\", \"name_abbreviation\": \"State v. Goodroad\", \"decision_date\": \"1994-09-07\", \"docket_number\": \"No. 18467\", \"first_page\": \"433\", \"last_page\": \"443\", \"citations\": \"521 N.W.2d 433\", \"volume\": \"521\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:30:27.012984+00:00\", \"provenance\": \"CAP\", \"judges\": \"WUEST, SABERS and AMUNDSON, JJ., concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellant, v. Danny D. GOODROAD, Defendant and Appellee.\", \"head_matter\": \"STATE of South Dakota, Plaintiff and Appellant, v. Danny D. GOODROAD, Defendant and Appellee.\\nNo. 18467.\\nSupreme Court of South Dakota.\\nArgued April 26, 1994.\\nDecided Sept. 7, 1994.\\nMark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, for plaintiff and appellant.\\nRobert Van Norman, Rapid City, for defendant and appellee.\", \"word_count\": \"6338\", \"char_count\": \"37699\", \"text\": \"MILLER, Chief Justice.\\nThis is an appeal from a circuit court's dismissal of a forgery charge on the grounds of insufficiency of the indictment and prose-cutorial delay. We reverse.\\nSTANDARD OF REVIEW\\nWe apply the clearly erroneous standard of review to the trial court's factual determinations. State v. Harris, 494 N.W.2d 619, 622 (S.D.1993); State v. Brings Plenty, 459 N.W.2d 390, 399 (S.D.1990). We will not overturn the trial court unless its findings are against the weight of the evidence. Id. Findings of fact must support the conclusions of law. In re Kindle, 509 N.W.2d 278, 283 (S.D.1993); In re Hughes Cnty. Action No. Juv. 90-3, 452 N.W.2d 128 (S.D.1990).\\nWe review a trial court's conclusions of law de novo. Harris, 494 N.W.2d at 622; State v. Engel, 465 N.W.2d 787, 789 (S.D.1991).\\nFACTS\\nIn a grand jury indictment dated September 5, 1990, Danny B. Goodroad (Goodroad) was charged with forgery in violation of SDCL 22-39-36. The charges stemmed from the cashing of a $200 forged Western Union money order in a Piggly Wiggly store in Belle Fourche, Butte County, South Dakota on August 2,1990. By the time a warrant for Goodroad's arrest was issued on September 6,1990, Goodroad had fled South Dakota.\\nOn October 7, 1990, Goodroad was arrested in Minnesota and charged with forgery of a Western Union money transfer cheek in Redwood Falls, Minnesota, on August 22, 1990. While incarcerated in Redwood County, Goodroad was shown, but not given, a copy of the Butte County indictment.\\nDuring the time Goodroad was in Minnesota, he was transferred in-state to Pipestone County, McLeod County, and Blue Earth County to face various forgery charges in those counties. He was also committed to the Willmar, Minnesota State Hospital at Willmar for approximately six weeks.\\nOn May 14, 1992, at the Blue Earth County Jail, Goodroad signed a waiver of extradi tion from Minnesota to Pennington County, South Dakota. On May 17, 1992, he was transported to South Dakota to face criminal charges.\\nOn June 8,1992, he pled guilty in Pennington County to passing a forged Western Union money order on July 13, 1990. He was sentenced to five years in the South Dakota State Penitentiary and delivered there on June 10, 1992. Pennington County did not notify either Meade or Butte Counties that Goodroad was being transported to the penitentiary.\\nOn December 10, 1992, Butte County filed an arrest warrant with the penitentiary. Goodroad was informed of Butte County's hold against him and, on December 17, 1992, he served a demand invoking his speedy trial rights upon the Butte County Clerk of Courts. On December 28, 1992, he served another demand for a speedy trial on the Presiding Judge of the Eighth Circuit Court, the Butte County State's Attorney, the Warden of the South Dakota Penitentiary and the Butte County Clerk of Courts.\\nOn January 29, 1993, Goodroad was arraigned in Butte County and pled not guilty to the forgery charge and to a Part II Information charging him with being a habitual criminal in violation of SDCL 22-7-8.\\nDuring the next five months, Goodroad personally filed a number of motions:\\n1) A handwritten motion for change of counsel alleging his original counsel in this matter, the Northern Hills Public Defender's Office, had a conflict of interest.\\n2) A handwritten petition for a writ of mandamus to this Court requesting we order the trial judge to remove the Northern Hills Public Defender's Office and appoint other counsel.\\n3) A letter to his second counsel demanding the attorney not submit any motions without his approval and signature and stating that: \\\"If you 'anticipate' trouble in doing as I request, or 'anticipate' doing the opposite of what I request in this case, please withdraw as my defense counsel right away.\\\"\\n4)A motion demanding recusal of the judge who had ruled against his motion for change of counsel.\\nIn addition, Goodroad's third counsel filed two motions for continuance; one on April 23, 1993, and another on June 28, 1993. Both motions were granted.\\nOn June 30, 1993, Goodroad filed a motion to dismiss the Butte County charge on the ground that prosecutorial delay had violated his constitutional right to a speedy trial. Hearings on the motion were held on July 1, 1993, and July 20, 1993. Also on July 1, the State filed a notice of demand for alibi defense. In Goodroad's July 12 response to the alibi demand, he also claimed the indictment was insufficient as it did not include the specific time of the alleged offense.\\nThe trial court dismissed the indictment on July 21, 1993. It held the indictment was insufficient and that Goodroad's constitutional right to a speedy trial had been violated because there was no acceptable reason for prosecutorial delay between the date of the indictment, September 5, 1990, and Butte County's filing of an arrest warrant on December 11, 1992. The trial court also denied the State's motion to reconsider.\\nState appeals. We reverse.\\nDECISION\\nI. THE INDICTMENT WAS SUFFICIENT.\\nThe trial court concluded the indictment did not adequately describe the offense with which Goodroad was charged so as to put him on notice of \\\"that with which he is charged.\\\" We disagree.\\nFor an indictment to be sufficient it must first state all the elements of the offense charged and inform the defendant of the. charge against him and, second, must enable him to plead acquittal or conviction as a bar to future prosecutions for the same offense. United States v. Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 636-37, 62 L.Ed.2d 575, 593 (1980); State v. Oster, 495 N.W.2d 305, 307 (S.D.1993); State v. Younger, 453 N.W.2d 834, 840 (S.D.1990); State v. Logue, 372 N.W.2d 151, 155 (S.D.1985). We have consistently held that an indictment is generally sufficient if it employs the language of the statute the defendant is charged with violating. Oster, 495 N.W.2d at 307; Younger, 453 N.W.2d at 840; Logue, 372 N.W.2d at 155.\\nThe grand jury indictment of Goodroad stated:\\nCOUNT I FORGERY:\\nThat on or about the 2nd day of August, 1990, in the County of Butte, State of South Dakota, DANNY D. GOODROAD, did, with intent to defraud, falsely make, complete or alter a written instrument of any kind, or passed such an instrument, in violation of SDCL 22-39-36; and, contrary to the statute in such case made and provided against the peace and dignity of the State of South Dakota.\\nSDCL 22-39-36 provides:\\nAny person who, with intent to defraud, falsely makes, completes or alters a written instrument of any kind, or passes such an instrument is guilty of forgery. Forgery is a Class 5 felony.\\nIt is obvious that the indictment echoed the language of the statute; therefore, it apprised Goodroad of each element of the offense and informed him he needed to defend himself against the charge. Goodroad argued, and the trial court ruled, that the indictment was insufficient because it did not describe the particular written instrument which Goodroad was alleged to have forged. We disagree. First, the statute contains no such requirement. Second, during discovery, a copy of the forged Western Union money order was provided to defendant on February 3, 1993, some five months before he alleged the indictment- was insufficient. There can be no doubt that at that date Goodroad knew precisely what instrument he was charged with forging and needed to prepare a defense against.\\nFurther, there is no evidence that the indictment was inadequate in some manner which would prevent Goodroad from pleading an acquittal of the conviction as a bar to future prosecutions for the same offense. See State v. Wurtz, 436 N.W.2d 839, 843 (S.D.1989) (holding a defendant need not derive his only protection from double jeopardy from an information, proof beyond an information may be raised); State v. Floody, 481 N.W.2d 242, 247 (S.D.1992). Therefore, the indictment was sufficient on its face.\\nMoreover, even if we found the indictment had a defect or imperfection, which we do not, substantial rights of the defendant must be prejudiced for the indictment to be insufficient. SDCL 23A-6-14. Goodroad presented no evidence that his rights were affected in any manner by the allegedly insufficient indictment.\\nThus, the trial court erred as a matter of law in granting Goodroad's motion to dismiss on the ground of insufficiency of the indictment.\\nII. THE TRIAL COURT ERRED BY DISMISSING THE INDICTMENT ON THE GROUND OF A VIOLATION OF THE RIGHT TO A SPEEDY TRIAL.\\nThe Constitution of the United States provides in part:\\nIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed .\\nU.S. CONST. Amend. VI.\\nSimilarly, under the South Dakota Constitution, the accused shall have the right \\\"to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.\\\" S.D. CONST, art. VI, \\u00a7 7.\\nWe have adopted the four-factor balancing test set forth by the United States Supreme Court to determine whether an accused's right to a speedy trial has been violated. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101, 117 (1972); State v. Traversie, 387 N.W.2d 2, 5 (S.D.1986).\\nThe approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed....\\nThough some might express them in different ways, we identify four such factors:\\n1) length of delay;\\n2) the reason for the delay,\\n3) the defendant's assertion of his right; and\\n4) prejudice to the defendant.\\nBarker, 407 U.S. at 530, 92 S.Ct. at 2191-92, 33 L.Ed.2d at 116-17.\\n1. Length of the delay.\\nGoodroad argues that the delay of some twenty-seven months, from his incarceration in October, 1990, until arraignment in January, 1993, was \\\"presumptively prejudicial\\\" under the United States Supreme Court's reasoning in Doggett v. United States, 505 U.S. -, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). In Doggett, the Court separated the length of delay inquiry, into two steps. Id. at -, 112 S.Ct. at 2690, 120 L.Ed.2d at 528. It explained: \\\"Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay[.]\\\" Id. The Court went on to clarify the meaning of the phrase \\\"presumptive prejudice\\\" in the context of speedy trials: \\\"[A]s the term is used in this threshold context, 'presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry. \\\" Id. at - n. 1, 112 S.Ct. at 2690 n. 1, 120 L.Ed.2d at 528 n. 1 (emphasis added). The Court noted a delay of approximately one year to be \\\"presumptively prejudicial.\\\" Id. Therefore, a delay of twenty-seven months meets the threshold test and triggers a Barker inquiry.\\nIf this threshold step is satisfied, the second step of the analysis requires a court to consider the extent to which delay exceeds the threshold, weighing the degree of diligence by the government in pursuing the defendant against acquiescence by the defendant to determine whether sufficient prejudice exists to warrant relief. Id. at -, 112 S.Ct. at 2693-94, 120 L.Ed.2d at 531-32.\\n2. The reason for the delay.\\nTo determine the reason for the delay it is helpful to remember that we are actually viewing three segments of time. The first portion is the time Goodroad spent incarcerated in Minnesota. The second segment runs from the time Goodroad was extradited from Minnesota until he was arraigned on the Butte County charges. The third portion encompasses the time from the date of the arraignment until the trial court's dismissal of the indictment.\\nThe Interstate Agreement on Detainers Act (LADA) has been adopted by the federal government, by South Dakota, and by almost every state. 18 U.S.C. App. \\u00a7 2 (1985); SDCL ch. 23-24A. Its purpose is \\\"[to] implement the right to a speedy trial and to minimize the interference with a prisoner's treatment and rehabilitation^]\\\" State v. Looze, 273 N.W.2d 177, 178 (S.D.1979). Goodroad alleges that the first segment of time, from indictment to extradition, should be weighed against the government as it violated the IADA and was responsible for his twenty-two-month delay in asserting his speedy trial rights.\\nGoodroad admits that approximately a week after he was incarcerated in the Redwood County Jail he was shown a copy of the Butte County indictment. He testified as follows at the hearing on his motion to dismiss for prosecutorial delay:\\nQ Did anyone in the Redwood Falls, Minnesota correctional system show you anything regarding Butte County warrants [sic] in October of 1990?\\nA Yes sir.\\nQ What happened?\\nA I was showed [sic] a copy of a grand jury indictment in October, approximately a week after my initial arrest in Redwood Falls.\\nHowever, the trial court determined the IADA was not triggered as the State \\\"never gave Defendant required notice of the pending indictment.\\\" In light of Goodroad's admission he was shown a copy of the Butte County Indictment, this determination was in error. The trial court also found that \\\"Butte County, prior to December 11, 1992, did not attempt to initiate prosecution of Defendant beyond securing the Indictment.\\\" Because a detainer, based on the indictment had obviously been filed with Minnesota, that finding of fact was clearly erroneous.\\nThe court also found that \\\"Defendant had never been adequately informed of the Butte County Indictment such that he could make a demand for action thereon.\\\" The question of whether Goodroad was adequately informed of the indictment and his speedy trial rights rests on his own testimony at the hearing:\\nQ During the time that you were in Minnesota did you attempt to invoke any speedy trial rights concerning the Butte County charge?\\nA Yes, in Redwood Falls, Minnesota.\\nQ What did you do?\\nA I asked the corrections officer at the facility I was incarcerated at whether or not I would be getting \\u2014 given speedy trial paperwork for IADA.\\nQ And were you given any speedy trial paperwork?\\nA No sir, he said I would have to wait until Minnesota was completely finished with me.\\nQ An IADA is what?\\nA Interstate Agreement on Detainers Act.\\nGoodroad was informed of the source and contents of the indictment against him approximately a week after he was incarcerated in Redwood Falls. As shown by his own testimony, he knew what the IADA was, knew he had a right to a speedy trial and knew he needed to file paperwork to assert that right. Yet, he did not request a speedy trial, choosing either to sit on his rights or to rely on the alleged assertion of an unnamed correctional officer that Minnesota would be disposing of its charges first.\\nIt is clear from the numerous articulate motions and demands in this record that Goodroad has personally drafted and had served upon officials and attorneys, that he is exceptionally familiar with the legal system and capable of drafting and serving a demand for a speedy trial. In fact, within a week after he discovered Butte County intended to bring him to trial on the forgery charge, he served a demand for a speedy trial on the Clerk of the Eighth Circuit Court and another demand on the Presiding Judge of the Eighth Circuit Court, the Butte County State's Attorney, the Warden of the South Dakota Penitentiary and the Butte County Clerk of Courts. The fact that Goodroad testified he was familiar with the IADA and its provisions at the time he was first incarcerated in Minnesota seriously undermines his assertion that he relied on the alleged advice of a Minnesota correctional officer that he would have to wait until Minnesota was done with him to assert his rights. Moreover, the record reveals Goodroad had access to counsel while he was incarcerated in Redwood Falls.\\nThe cases relied on by the trial court to find a violation of Goodroad's speedy trial rights are inapplicable. Goodroad does not claim that a deputy incorrectly completed a request form as in United States v. Reed, 910 F.2d 621 (9th Cir.1990); nor does he claim he was \\\"shuttled\\\" from jurisdiction to jurisdiction to prevent him from asserting his speedy trial rights as in United States v. Eaddy, 595 F.2d 341 (6th Cir.1979). Nor is this case similar to People v. Office, 126 Mich.App. 597, 337 N.W.2d 592 (1983), where no formal charges had been filed on which to base a detainer and the prisoner did not know he had the right to request a speedy trial.\\nAdditionally, under the IADA, when an accused requests disposition of a charge pending in another state, such request is deemed to be a waiver of extradition. SDCL 23-24A-8. If the IADA had been activated, it would not have been necessary for Good- road to formally waive extradition to South Dakota on May 14, 1992. The trial court erred as a matter of law in finding that the State failed to comply with the IADA.\\nThe reason for the twenty-month delay from indictment until extradition from Minnesota is attributable either to Good-road's flight from this jurisdiction to avoid prosecution or his failure to demand disposition of the charges against him.\\nThe second time period is the eight months from May, 1992, when Goodroad waived extradition and was brought back to South Dakota, to his arraignment in January, 1993. Butte County's only explanation for its delay in arraigning Goodroad during this time is that it was not informed by Pennington County authorities when Goodroad was transported to the penitentiary. Those eight months weigh against the prosecution for delay or inaction.\\nThe third segment of time, the six months from arraignment to dismissal is due to Goodroad's twice changing counsel, his demand to recuse the judge, and various other motions filed by the defense. As noted in the public defender's motion to withdraw, \\\"Mr Goodroad's intentional actions has (sic) caused significant impediment to expediently and effectively representing him.\\\" Those six months weigh against Goodroad.\\n3. The defendant's assertion of his right.\\nIn Barker, the Supreme Court emphasized:\\nThe defendant's assertion of his speedy trial right, then, is entitled to strong evi-dentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.\\nBarker, 407 U.S. at 531-32, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117-18. \\\"The third factor places the burden on the defendant to alert the government of his grievances.\\\" Robinson v. Whitley, 2 F.3d 562, 569 (5th Cir.1993), cert. denied, \\u2014 U.S. -, 114 S.Ct. 1197, 127 L.Ed.2d 546 (1994).\\nIn this case, Goodroad did not assert his right to a speedy trial until he was informed that Butte County had placed an administrative hold against him at the South Dakota Penitentiary in December, 1992. He asserts his waiver of extradition to South Dakota served as an assertion of that right, but presents no relevant authority to support that contention.\\nMoreover, his testimony at the hearing shows that at the time he pled guilty in Pennington County, he thought Butte County would not prosecute its charge.\\n[I]t was just Mr. Wurm's [Goodroad's counsel in the Pennington County action] opinion that none of the other charges that have been outstanding since October of 1990, [the charge in Butte Co. and three forgery counts in Davison Co.] would be prosecuted under his opinion that the amount of time that I received in Pennington County in June of '92 would satisfy the other jurisdictions probably, seeings how it was a non-violent crime.\\nTherefore, it may have been a prudent strategy for Goodroad not to assert a demand for a speedy trial. Barker, 407 U.S. at 535 n. 39, 92 S.Ct. at 2194 n. 39, 33 L.Ed.2d at 120 n. 39. \\\"Delay is not an uncommon defense tactic.\\\" Id. at 521, 92 S.Ct. at 2187, 33 L.Ed.2d at 111. We agree with the Tenth Circuit Court of Appeals when it stated:\\nWe are unimpressed by a defendant who moves for dismissal on speedy trial grounds when his other conduct indicates a contrary desire. Th[is] defendant] did not want a speedy trial; [he was] only interested in delaying trial or avoiding it altogether.\\nUnited States v. Tranakos, 911 F.2d 1422, 1429 (10th Cir.1990) (citations omitted) aff'd, 968 F.2d 1225 (10th Cir.1992); Barker, 407 U.S. at 535, 92 S.Ct. at 2194, 33 L.Ed.2d at 119 (\\\"[T]he record strongly suggests that while he hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a dismissal of the charges, he definitely did not want to be tried.\\\"); \\\"The Speedy Trial Clause primarily protects those who assert their rights, not those who acquiesce in the delay \\u2014 perhaps hoping the government will change its mind or lose critical evidence.\\\" United States v. Aguirre, 994 F.2d 1454, 1457 (9th Cir.1993), cert. denied, \\u2014 U.S. -, 114 S.Ct. 645, 126 L.Ed.2d 603 (1993).\\nThe third factor, assertion of the right to a speedy trial, weighs heavily against Good-road.\\n4. Prejudice to the defendant.\\nThe trial court's conclusion of law stated that Goodroad had been \\\"significantly prejudiced by the passage of time. Among his potential alibi witnesses, one has died and others' memories have faded or faded.'.'\\nFirst, \\\"[prejudice occurs only when 'defense witnesses are unable to recall accurately events of the distant past.'\\\" Tranakos, 911 F.2d at 1429 (quoting Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118). \\\"If the witnesses support the prosecution, its case will be weakened.\\\" Id. (quoting Barker, 407 U.S. at 521, 92 S.Ct. at 2187). The faded memories of the named defense witnesses do not support Goodroad's claim he has been prejudiced by the passage of time.\\nTestimony by the defense investigator who interviewed the witnesses reveals that none of the defense witnesses could recall the exact date of the party Goodroad alleges he attended. However, several of the witnesses recall there was \\\"a good deal of coming and going\\\" at the party. Therefore, even if the witnesses could establish the party was held on August 2,1990, and that Goodroad attended the party, the most they could testify to is that they recalled seeing him there \\\"in varying degrees.\\\"\\nThe same is true of the alleged alibi witness, the deceased Keith Verdi. Goodroad claims to have been with Verdi only on the morning of August 2, 1990. There is no evidence whether the forged money order was passed in the morning, in the afternoon or at night. Therefore, Verdi is not an alibi witness in the true sense of the word. \\\" 'Alibi evidence must show that the accused could not have committed the alleged crime, because at the time of its commission he was at a place other than where such offense was committed.' \\\" State v. Cochrun, 434 N.W.2d 370, 373 (S.D.1989) (quoting State v. Nelson, 310 N.W.2d 777, 779-80 (S.D.1981)). \\\"An alibi \\\"to be successful must cover the entire time when [appellant's] presence was required for accomplishment of the crime.... [A] purported alibi that leaves it possible for the accused to be the guilty person is no alibi at all.' \\\" Floody, 481 N.W.2d at 248 (emphasis added) (quoting Nelson, 310 N.W.2d at 780 (citations omitted)).\\nMoreover, there was absolutely no showing as to what testimony Mr. Verdi would have given had he lived. State v. Krana, 272 N.W.2d 75, 78 (S.D.1978) (\\\"no showing has been made that this deceased witness had testimony that was important to the case or what that testimony would have been. The mere allegation that a deceased person would have been a witness is not sufficient to show prejudice demanding a dismissal \\u2014 there must be a showing of what the deceased witness knew and would have testified to\\\"); accord, Robinson, 2 F.3d at 571 (\\\"Even assuming [absent witnesses] could have and would have provided exculpatory testimony, either [defendant] or his attorney should have taken adequate steps to preserve their testimony for trial.\\\").\\nFurther, Goodroad pled guilty to passing a forged instrument at the Pamida Store in Sturgis, South Dakota on August 2,1990, the same day he is alleged to have passed a forged instrument approximately twenty-six miles away in Belle Fourche. The fact that Goodroad was without an alibi long enough to engage in illegal activity in Sturgis shows that his purported alibi witnesses could not cover the entire time when his presence was required for accomplishment of either crime. See Floody, 481 N.W.2d at 248. Therefore, Goodroad's purported alibi still leaves it possible for him to be the guilty person and is, in reality, no alibi at all.\\nThe trial court erred in concluding that Goodroad had suffered significant prejudice due to the passage of time.\\nCONCLUSION\\nGoodroad's Article VI rights were not violated. While the length of time before he was tried was substantial, the majority of the delay was attributable to Goodroad himself. Although he was aware of the charge and his right to a speedy trial, he did not invoke the right for months and even then he sought further delay. Nor has he shown significant prejudice to his defense. The trial court erred in granting dismissal for violation of Goodroad's Article VI rights.\\nWe reverse.\\nWUEST, SABERS and AMUNDSON, JJ., concur.\\nHENDERSON, J., dissents.\\n. Goodroad pled guilty in Redwood Falls to two felony forgery charges and was given concurrent sentences of nineteen and seventeen months. The court directed the sentences be served while Goodroad was \\\"held and surrendered over to other jurisdictions in the State of Minnesota that have detainer orders out or detention orders for you in the order which may be agreed upon by those jurisdictions.\\\"\\n. SDCL 23A-6-14 provides:\\nNo indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of a defect or imperfection in its form, which does not prejudice the substantial rights of the defendant.\\n. The Eighth Circuit Court of Appeals has taken into account a defendant's awareness of the issues and competency in drafting pro se pleadings. Williams v. Groose, 979 F.2d 1335, 1337 (8th Cir.1992); Glass v. Higgins, 959 F.2d 88, 90 (8th Cir.1992).\\n. Goodroad's alibi alleges he spent the morning of August 2, 1990, with one Keith Verdi in Rapid City and Sturgis and that he spent the remainder of the day at a party in Sturgis.\\n. On March 15, 1993, Goodroad pled guilty to passing a forged Western Union money order in Sturgis in Meade County the same day he is alleged to have cashed the forged money order in Belle Fourche. In the plea bargain agreement, Goodroad also agreed to pay restitution to three Davison County merchants in return for an agreement they would not prosecute additional fraudulent check charges.\"}"
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+"{\"id\": \"12150545\", \"name\": \"Jason VANDYKE, Plaintiff and Appellee, v. Jieun CHOI, Defendant and Appellant\", \"name_abbreviation\": \"Vandyke v. Jieun Choi\", \"decision_date\": \"2016-12-14\", \"docket_number\": \"No. 27740\", \"first_page\": \"557\", \"last_page\": \"569\", \"citations\": \"888 N.W.2d 557\", \"volume\": \"888\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:30:31.375961+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 27.] ZINTER, SEVERSON, and KERN, Justices, concur,\", \"parties\": \"Jason VANDYKE, Plaintiff and Appellee, v. Jieun CHOI, Defendant and Appellant.\", \"head_matter\": \"2016 S.D. 91\\nJason VANDYKE, Plaintiff and Appellee, v. Jieun CHOI, Defendant and Appellant.\\nNo. 27740.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Aug. 29, 2016.\\nDecided Dec. 14, 2016.\\nRobert D. Pasqualucci, Rapid City, South Dakota, Attorney for plaintiff and appellee.\\nDoyle D. Estes of Estes Campbell Law Firm, Rapid City, South Dakota, Attorneys for defendant and appellant.\", \"word_count\": \"5144\", \"char_count\": \"31103\", \"text\": \"GILBERTSON, Chief Justice.\\n[\\u00b6 1.] Jieun Choi raises in her appeal the issue of whether the trial court erred in modifying an award of alimony. Choi and Jason Vandyke were briefly married from January 2, 2013, until September 23, 2014, divorcing due to irreconcilable differences. On September 23, 2014, the court held a default divorce hearing, during which Vandyke stated that he had prepared \\u2014 subject to alterations made by Choi's counsel \\u2014 a Stipulation and Settlement Agreement (Agreement). The Agreement provided for alimony in the form of 19 payments of $1,500 a month to Choi. Commencement of alimony required Choi to vacate the marital home and execute a quitclaim deed against the property in favor of Vandyke. The Agreement was incorporated into the decree of divorce,\\n[\\u00b6 2.] Vandyke, after making 14 of the 19 payments, sought termination of alimony upon discovering that Choi had been employed fulltime by Black Hills State University. On November 11, 2015, a motion hearing was held, and' Vandyke testified that the alimony was intended to support Choi while she sought employment. The court ordered termination of alimony, finding the payments excessive given Choi's financial circumstances and ability to work. Choi appeals the trial court's ruling to terminate alimony payments, arguing that the alimony was either an unmodifiable lump-sum award payable in installments over a fixed period or part of a division of property. Choi also requests appellate attorney fees. We affirm.\\nBACKGROUND\\n[\\u00b6 3.] Jieun Choi and Jason Vandyke married on January 2, 2013, in Abilene, Texas. Within a month of their marriage, the two considered an annulment. Choi and Vandyke eventually decided to divorce on grounds of irreconcilable differences. A Stipulation and Settlement Agreement was drafted and signed by both parties in July 2014, and the court entered a decree of divorce incorporating the document on September 23, 2014, The Agreement contained a clause labeled \\\"Property Settlement,\\\" which provided:\\n1. Wife shall have a right to remain- in the marital residence until Husband begins payment of alimony as described in Paragraph (3) below. Upon commencement of alimony payments, Wife shall execute a Quit Claim Deed to said real property in favor of Husband.\\n2. Upon execution of the Quit Claim Deed, Wife will not be held financially liable for any debts, liabilities, fees, costs, or other expenses associated with the aforesaid real property.\\nAnother clause, labeled \\\"Alimony (Spousal Support),\\\" provided:\\nWife shall receive alimony from Husband in the amount of $1,500 each month for a period of 19 consecutive months, or until remarriage/cohabitation of Wife or the death of either party. In order to effectuate this payment, Husband shall establish an allotment through the Defense Finance and Accounting Service via the Finance office of the military base at which he is stationed. . Alimony is tax deductible to the spouse paying it and taxable income to the spouse receiving it.\\nChoi was unemployed at the time of the divorce. In a financial affidavit dated July 28, 2014, Vandyke deducted $1,500 in spousal support from his federal income taxes.\\n[\\u00b6 4i] On September 23, 2014, the trial court held a default divorc\\u00e9 hearing, where Choi furnished the Agreement signed by both parties. The court asked whether Vandyke would accept the Agreement. Vandyke responded that he did not \\\"fully agree with it\\\" and requested to withdraw from it. Vandyke testified that, although he drafted the agreement himself and had it reviewed by legal counsel at the Air Force base where he worked, it was' later modified' to his dissatisfaction by Doyle Estes, an attorney and friend of Choi's. According to Vandyke, the Agreement remained largely the same, but he disagreed with the spousal support provided in the Agreement. Vandyke stated- that he feared a prolonged legal fight with Choi based on her communications to him, however, and signed it. The trial court granted Vandyke's motion to withdraw from the Agreement, but cautioned him that the costs of litigation1 would likely exceed the amount Vandyke then owed to Choi. Vandyke then rescinded'his request to withdraw, stating, \\\"in that case, much to [Choi's] delight, I will stick with the one that's filed.\\\"\\n[\\u00b6 5.] Vandyke later learned that Choi had obtained employment at Black Hills State University, prompting him to seek termination of alimony payments. At a motions hearing on November 11, 2015, Vandyke testified that he signed the Agreement under the belief 'that \\\"it would have been more detrimental to remain married to [Choi] throughout [his] deployment overseas,\\\" which was scheduled to begin less than' two weeks after the September 23 hearing. Vandyke also stated that the alimony was intended to provide Choi \\\"support* during the time that [Vandyke] expected it to take her to actually find a job[.]\\\" Vandyke believed Choi would encounter difficulty obtaining employment because she \\\"hadn't been working and would take some time to find a job . [and because] she was just getting over or still getting over her divorce from her first husband, and [Vandyke] saw the emotional state that it put her in.\\\" Under cross-examination conducted by Estes, Vandyke reiterated that he had prepared the Agreement, albeit \\\"[w]ith a lot of input from [Estes].\\\" The court, after listening to the evidence and reviewing the affidavits, found that the alimony was designed to \\\"give [Choi] a leg up to find employment\\\" and indicated that a change in circumstances warranting a modification occurred when Choi obtained employment at Black Hills State University.\\n[\\u00b6 6.] On November 13, 2015, Choi filed an affidavit in support of alimony. Choi contended that the alimony payments were not contingent on her being unemployed. Moreover, she was no longer employed at Black Hills State University because she had grown ill. Although she obtained a subsequent job at Rapid City Regional Hospital, the work was too demanding given her physical condition, forcing her to quit. Incurring even further medical expenses due to treatment for a second illness, Choi found herself in debt and unemployed, although she was then seeking employment with the military. Choi currently lives in the home of her married friends. On November 17, 2015, Choi filed a supplement to her affidavit. She argued that alimony was conditioned solely on her leaving the marital residence and executing the quit claim deed, which she had.\\n[\\u00b6 7.] \\u2022 On December 3, 2015, Choi filed a brief in support of her proposed findings of fact and conclusions of law. Choi made two arguments. First, she argued that the Agreement provided for a lump-sum distribution payable in gross or in installments and that under South Dakota law, modification under a change of circumstances standard was impermissible. Second, she argued in the alternative that alimony is unmodifiable when it is part of a property settlement, as she claimed it was here. Choi contended that her signing the quitclaim deed in return for alimony was a settlement in lieu of a property division.\\n[\\u00b6 8.] The trial court entered its findings of fact and conclusions of law on December 19, 2015. The court reiterated its belief that a change of circumstances occurred when Choi found employment at Black Hills State University. It noted that her termination from the position resulted partly \\\"due to her own actions\\\" and that \\\"nothing in the record reflects that she is incapable of securing meaningful full time employment.\\\" The court thus terminated alimony. Choi appeals;\\nSTANDARD OF REVIEW\\n[\\u00b6 9.] A trial court's award of alimony is reviewed for abuse of discretion. Dejong v. Dejong, 2003 S.D. 77, \\u00b6 5, 666 N.W.2d 464, 467. \\\"An abuse of discretion is 'a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.' \\\" Hill v. Hill, 2009 S.D. 18, \\u00b6 5, 763 N.W.2d 818, 822 (quoting Laird v. Laird, 2002 S.D. 99, \\u00b6 13, 650 N.W.2d 296, 299). \\\"That discretion is not altered by the fact that the original judgment was based upon an agreement of the parties.\\\" Olson v. Olson, 1996 S.D. 90, \\u00b6 10, 552 N.W.2d 396, 399. '\\\"Contractual stipulations in divorce proceedings are governed by the law of contracts.' \\\" Pesicka v. Pesicka, 2000 S.D. 137, \\u00b6 6, 618 N.W.2d 725, 726 (quoting Houser v. Houser, 535 N.W.2d 882, 884 (S.D. 1995)). \\\"The interpretation of a contract is a question of law and is reviewed de novo.\\\" Id. The rules of construction apply only if the meaning of a contract's language is ambiguous. Id. '\\\"Whether the language of a contract is ambiguous is . a question of law.' \\\" Id. (quoting Enchanted World Doll Museum v. Buskohl 398 N.W.2d 149, 151 (S.D.1986)).\\nDECISION\\n1. Whether the trial court erred in not treating the alimony award as a lump-sum distribution payable in installments over a fixed period.\\n[\\u00b6 10.] Choi first contends that the alimony award is an unmodifiable lump-sum distribution payable in installments over a fixed period. Under South Dakota law, alimony normally may be reduced or eliminated based on a change of circumstances existing at the time of the original decree, and such a change need not be substantial. Horton v. Horton, 503 N.W.2d 248, 252 (S.D.1993). Whether or not the original decree was equitable, the role of the court in modifying alimony is \\\"not to relieve a party of his or her bad bargain.\\\" Olson, 1996 S.D. 90, \\u00b6 11, 552 N.W.2d at 399. However, not all types of alimony may be modified. Although a trial court may adjust permanent alimony payments, it cannot make modifications to \\\"lump-sum\\\" awards, whether payable all at once or in installments over a fixed period. Saxvik v. Saxvik, 1996 S.D. 18, \\u00b613, 544 N.W.2d 177, 180. In Holt v. Holt, the Court accepted the proposition adopted by the Nebraska Supreme Court in Ziegenbein v. Damme, 138 Neb. 320, 292 N.W. 921, 923 (1940):\\nObviously, the purpose of both the court and the parties, in providing for or in accepting a gross allowance of alimony, is to define and fix with finality the scope of the rights and the obligations of the parties.... [I]t is our view that an unqualified allowance in gross, in a divorce decree, whether payable immediately in full or periodically in installments, and whether intended solely as a property settlement or as an allowance for support, or both, is such a definite and final adjustment of mutual rights and obligations as to be capable of a present vesting and to constitute an absolute judgment, and the court cannot subsequently modify the amount thereof.\\n84 S.D. 671, 674-75, 176 N.W.2d 51, 53 (1970); see also Blare v. Blare, 302 N.W.2d 787, 790-91 (S.D.1981). Though distinguishing a lump-sum award of alimony from a division of property is somewhat difficult, one unique characteristic of a lump-sum award is that it may be based in part on the fault of a spouse. Sanford, 2005 S.D. 34, \\u00b624, 694 N.W.2d at 290. Neither award may be modified, however, nor does the change of circumstances standard allowing termination of alimony apply. See Blare, 302 N.W.2d at 790-91.\\n[\\u00b6 11.] Here, however, the Agreement provided instead for permanent support. In determining what form an award of alimony has taken, it is \\\"not the label that is placed on the award that controls, but rather the nature of the award.\\\" Saxvik, 1996 S.D. 18, \\u00b6 16, 544 N.W.2d at 180. \\\"Although [the] specifics [of permanent alimony] are determined by the facts of the case, common to it are payments which continue until death of the recipient or some other significant event such as remarriage, which terminates the need for continuing support.\\\" Sanford, 2005 S.D. 34, \\u00b6 24, 694 N.W.2d at 290. SDCL 25-4-1 also provides that an award of permanent .alimony need not continue throughout the lifetime of the obligee, but may be \\\"for a shorter period, as the court may deem just[.]\\\"\\n[\\u00b6 12.] The Agreement required Vandyke-to make payments of \\\"$1,500 each month for a period of 19 consecutive months, or until remarriage/cohabitation of Wife or the death of either party.\\\" However, \\\"[o]ther than alimony being terminated at a fixed point in time, the agreement is devoid of any language establishing a lump-sum distribution to be paid in installments.\\\" Steffens v. Peterson, 503 N.W.2d, 254, 259 (S.D.1993). And like in Oman v. Oman, which similarly dealt with a claim that an award of alimony was in the nature of a lump-sum fixed payment, the provision relied upon by Choi does not reference alimony as a lump-sum payment or refer to it as a gross amount payable in installments. \\\"The agreement is for a specified monthly amount . [I]t is referred to throughout the agreement as 'alimony.'\\\" Oman v. Oman, 2005 S.D. 88, \\u00b6 12, 702 N.W.2d 11, 15.\\n[\\u00b6 13.] The presence of conditions terminating alimony also indicates that it was not intended to be a lump-sum distribution payable in installments. The Agreement provides that alimony terminates upon \\\"remarriage/cohabitation of Wife or the death of either party.\\\" The presence of conditions like these is typical of an arrangement for permanent alimony. Sanford, 2005 S.D. 34, \\u00b624, 694 N.W.2d at 290. But lump-sum awards are \\\"final 'adjustment[s] of mutual rights and obligations as to be capable of a present vesting and . absolute judgment.' \\\" Oman, 2005 S.D. 88, \\u00b6 11, 702 N.W.2d at 15 (quoting Holt, 84 S.D. at 674-75, 176 N.W.2d at 53). Once vested, the right to payment is not subject to outside contingencies such as remarriage. Conditions that terminate future installments would defeat the finality that we have said attaches to and distinguishes lump-sum awards. Consequently, as between a lump-sum payable in gross or in installments, this Court makes no distinction. See Saxvik, 1996 S.D. 18, \\u00b6 13, 544 N.W.2d at 180 (\\\"[T]he sum is not modifiable even if it is payable in installments over a fixed period of time.\\\"). It cannot be, then, that the Agreement comprehended the payments as part of a lump-sum award, because cohabitation or remarriage divests Choi of her right to an award she would otherwise be able to receive all at once. Therefore, the plain language of the Agreement demonstrates that the alimony was not intended as a lump-sum distribution payable in installments.\\n2. Whether the trial court erred in not treating the award as part of a property division,\\n[\\u00b6 14.] Choi argues in the alternative that, if the alimony award was not a lump-sum distribution payable in installments, then it was provided for as part of a property settlement, thus making it unmodifiable. While some forms of alimony are subject to modification, alimony awarded as part of a division of property is not. Lien v. Lien (Lien II), 420 N.W.2d 26, 28 (S.D.1988) (citing Holt, 84 S.D. 671, 176 N.W.2d 51). Whether an obligation imposed by a court order incorporating a separation . agreement is modifiable depends on whether the obligation is in the nature of support or of property division, and as such the issue results in frequent litigation. 1 Ann. B. Oldfather et al., Valuation and Distribution of Marital Property \\u00a7 4.04, at 4-66 (Matthew Bender ed., 2015). Under South Dakota law, the label given to an award is not dispositive. See Lien II, 420 N.W.2d at 29 (holding that an award deemed \\\"support\\\" only at the request and in support of the obligor for the purpose of providing him a tax benefit was nonetheless clearly part of a property division in spite of its label).\\n[\\u00b6 15.] As in Oman, \\\"[n]othing in the language of the agreement indicates that alimony was agreed to in lieu of property:\\\" Oman, 2005 S.D. 88, \\u00b6 12, 702 N.W.2d at 15. Absent from the Agreement are words like \\\"for full and complete distribution and settlements of all equity assets[.]\\\" Steffens, 503 N.W.2d at 258-59 (stating that deletion of such language from an agreement was evidence that alimony was not intended to be part of a property settlement). No language whatsoever indicates any sort of compensatory rationale. And although the use of labels is not dis-positive, it is also telling that the alimony clause in the Agreement is titled \\\"Alimony (Spousal Support).\\\"\\n[\\u00b6 16.] Failing that, Choi asserts that the Agreement is at least ambiguous, such that a court must apply contract principles, including the rule of construction that ambiguities are to be construed against the drafter. Campion v. Parkview Apartments, 1999 S.D. 10, \\u00b6 34, 588 N.W.2d 897, 904. But another \\\"of these principles of construction is that a court should, if possible, ascertain and enforce the mutual intention of the parties as set forth in their agreement.\\\" Steffens, 503 N.W.2d at 258 (citing Johnson v. Johnson, 291 N.W.2d 776, 778 (S.D.1980)). \\\" 'A contract is ambiguous when application of rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct.' \\\" Pesicka, 2000 S.D. 137, \\u00b6 8, 618 N.W.2d at 727 (quoting Alverson v. Nw. Nat'l Cas. Co., 1997 S.D. 9, \\u00b6 8, 559 N.W.2d 234, 235). As the Court in Pesicka explained:\\nA contract is not rendered ambiguous simply because the parties do not agree on its proper construction or their intent upon executing the contract. Rather, a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated document.\\nId. \\u00b6 10 (quoting Singpiel v. Morris, 1998 S.D. 86, \\u00b6 16, 582 N.W.2d 715, 719). \\\" 'In determining the proper interpretation of a contract the court must seek to ascertain and give effect to the intentions of the parties.'\\\" Id. \\u00b69 (quoting Singpiel, 1998 S.D. 86, \\u00b6 10, 582 N.W.2d at 718). The parties' intention is determined by \\\"'looking] to the language the parties used.' \\\" Id. (alteration in original). \\\" 'If that intention is clearly manifested by the [Agreement], it is the duty of this [C]ourt to enforce it.' \\\" Id. (quoting In re Estate of Stevenson, 2000 S.D. 24, \\u00b6 14, 605 N.W.2d 818, 821).\\n[\\u00b6 17.]' Choi points to the connection between the property settlement and alimony clauses of the Agreement'. Together, they provide that once alimony payments commenced, Choi would lose the right'to remain in the marital residence and that she would then execute a quit claim deed. But as Vandyke argues, the \\\"execution, of the quit claim, deed was a quid pro quo condition . to guarantee the Appellee could not force her to vacate the residence -without the means to support herself.\\\". Perfectly in keeping with an award of alimony intentioned on providing support for an ex-spouse, the condition merely provided Choi- a buffer of support in the interim before payments began. \\\"Alimony (spousal support) is intended to assist in providing necessities.\\\" Havlik v. Havlik, 2014 S.D. 84, \\u00b6 14, 857 N.W.2d 422, 426. Such necessities include housing. Urbaniak v. Urbaniak, 2011 S.D. 83, \\u00b6 27, 807 N.W.2d 621, 628. It is consistent, then, with the aims of alimony that Choi should have been allowed to remain in the marital home, until such time as she started receiving financial assistance.\\n[\\u00b6 18.] Additionally, Choi's argument contradicts the intentions' expressed in the alimony clause. Although \\\"[i]t is well settled in this state that allowances of alimony and support money for the wife . are subject to revision and amendment when conditions change...: [T]his rule does not apply insofar as property rights of the parties are concerned,\\\" and thus a \\\"property settlement . cannot be modified.\\\" Peterson v. Peterson, 434 N.W.2d 732, 735 (S.D.1989). As such, while not always conclusive evidence, see, e.g., In re Marriage of Lowe, 101 Ill.App.3d 317, 56 Ill.Dec. 821, 427 N.E.2d 1367, 1370-71 (1981), courts in other jurisdictions have looked to factors such as whether payments continue after the obligee dies or remarries or if they terminate upon the obligor's death. See, e.g., Redlin v. Redlin, 436 N.W.2d 5, 8 (N.D.1989); see also Sanford, 2005 S.D. 34, \\u00b6 24, 694 N.W.2d at 290 (\\\"[C]ommon to [permanent alimony] are payments which continue until death of the recipient or some other significant event such as remarriage[.]\\\"); 1 Oldfather et al., supra, \\u00a7 4.04, at 4-66.2 to -66.3.\\n[\\u00b6 19.] The Agreement provides that alimony terminates upon \\\"remarriage/cohabitation of Wife or the death of either party.\\\" As Vandyke contends, it would seem strange for payments made pursuant to a property settlement to end under these conditions. Just as with lump-sum awards payable in installments, rights inuring to a party as part of a property settlement are final. Thus they should be unaffected by whether the party accepts a cash award in gross or payable in installments. Lien v. Lien (Lien I), 278 N.W.2d 436, 444 (S.D.1979) (holding that \\\"[e]ach party is entitled to their respective property as of [the time of entry of judgment]\\\" and -that any deferred installment payments should bear interest; \\\"otherwise, the wife is not actually receiving the property division to which the court has determined she is entitled.\\\"). The presence of such conditions in the Agreement that could terminate future payments suggests that the provision of alimony was not intended to be a property division.\\n[\\u00b6 20.] Moreover, the tax treatment of the payments by Vandyke is indicative of it being alimony. Among other considerations, this Court in Steffens examined whether the parties treated the payments made ostensibly as part of a property division as alimony for federal income tax purposes. 503 N.W.2d at 258. Here, the Agreement provides that \\\"[a]limony is tax deductible to the spouse paying it and taxable income to the spouse receiving it.\\\" This language suggests that the parties sought to \\\"avoid the adverse tax consequences attendant to a total cash award of property.\\\" Peterson, 434 N.W.2d at 735. Furthermore, Vandyke did in fact treat the payments as alimony for income tax purposes. Both the language of the divorce decree and the record \\\"disclose[] that the parties treated these payments as alimony for income tax purposes.\\\" Steffens, 503 N.W.2d at 258. Such evidence falls against Choi's position. See Oman, 2005 S.D. 88, \\u00b6 12, 702 N.W.2d at 15.\\n[\\u00b6 21.] -Therefore, even if the Agreement is ambiguous, Choi's interpretation is not comp\\u00e9lled by the Agreement or the record. Because it is also not a lump-sum distribution payable in installments over a fixed period, the trial court did not err in terminating alimony under a change of circumstances standard.\\n3. Whether the trial court abused its discretion in terminating alimony.\\n[\\u00b6 22.] A change of circumstances warranting a termination of alimony occurred when Choi secured employment. \\\"This Court has been very clear about a trial court's ability to modify an alimony award\\u2014 '[0]nce a court approves an alimony award, it can modify it.' \\\" Savage v. Savage, 2003 S.D. 46, \\u00b6 13, 661 N.W.2d 762, 765-66 (quoting Paradeis v. Paradeis, 461 N.W.2d 135, 137 (S.D. 1990)). This Court has consistently ruled that modification is permitted when a change of circumstances has occurred since the time of the original divorce decree and that the change need not be substantial. Horton, 503 N.W.2d at 252. \\\"The change in circumstances refers to a change in the necessities of the recipient and the financial ability of the obligor.\\\" Horr v. Horr, 445 N.W.2d 26, 28 (S.D. 1989). Moreover, a court's discretion to impose a modification is unaffected by an original divorce,judgment's incorporation of an agreement by the parties. Olson, 1996 S.D. 90, \\u00b610, 552 N.W.2d at 399. \\\"This Court does not sit as a trier of fact and will not disturb the decision of the trial court on questions of alimony . unless there is an abuse of discretion.\\\" Herndon v. Herndon, 305 N.W.2d 917, 918 (S.D.1981). Only if such discretion is \\\" 'exercised to an end or purpose not justified by, and clearly against, reason and evidence' \\\" will an abuse be found. Id. (quoting Root v. Bingham, 26 S.D. 118, 120, 128 N.W. 132, 133 (1910)).\\n[\\u00b623.] Application of these principles does not draw a conclusion that there has been an abuse of discretion. The trial court found that the Agreement was intended to help give Choi a \\\"leg .up\\\" on finding employment, which is- consistent with the aims of permanent alimony. Choi was unemployed at the time of the divorce, and she subsequently obtained meaningful employment at both Black Hills State Unir versity and Rapid City Regional Hospital. Although Choi claimed to be unemployed at the motion hearing, the trial court found no evidence that Choi was incapable of working. The court noted an inconsistency between Choi's statements regarding her inability to work and her search for employment with the Air Force and Navy. The trial court also found \\\"the length of the marriage . to be overwhelmingly relevant in this case\\\" (stating that, \\\"quite frankly . 99.9 percent of the time the length of the marriage would not cause this [c]ourt to grant anybody alimony\\\" in the first place). Therefore, in light of the law and circumstances, the trial court did not abuse its discretion.\\n4. Whether Choi should be awarded appellate attorney fees.\\n[\\u00b6 24.] Choi also requests appellate attorney fees pursuant to SDCL 15-26A-87.3, which permits an award \\\" 'only where such fees are permissible at the trial level.' \\\" Grynberg Expl. Corp. v. Puckett, 2004 S.D. 77, \\u00b633, 682 N.W.2d 317, 324 (quoting Hentz v. City of Spearfish, Dep't of Pub. Works, Office of Planning & Zoning, 2002 S.D. 74, \\u00b6 13, 648 N.W.2d 338, 342). SDCL 15-17-38 pro vides that \\\"if appropriate, in the interests of justice,- [the trial court] may award payment of attorneys' fees in all cases of . support, or alimony.\\\" In considering whether to grant attorney fees and in what amount, we follow a two-step approach. First, we compare \\\"the property owned by each of the parties, their relative incomes, whether the property is in liquid or fixed assets, and whether the actions of a party unreasonably increased the time spent on the case.\\\" Hagedorn v. Hagedorn, 2012 S.D. 72, \\u00b6 17, 822 N.W.2d 719, 723 (quoting Voelker v. Voelker, 520 N.W.2d 903, 908 (S.D.1994)). Second, we \\\"examine the fee requests from the perspective of whether the party's appellate arguments carried any merit.\\\" Arneson v. Arneson, 2003 S.D. 125, \\u00b6 38, 670 N.W.2d 904, 917.\\n[\\u00b6 25.] Vandyke's monthly gross income was $6,331 in 2014, and he retained ownership of the marital home. Choi claims to be currently unemployed and'in debt due to medical expenses, and she is living in her friends' home. Vandyke, therefore, is in a significantly better position to pay attorney fees. However, as to the second step of our analysis, given our conclusions about the merits of Choi's appeal, we decline to award her attorney fees.\\n[\\u00b6 26.] Affirmed.\\n[\\u00b6 27.] ZINTER, SEVERSON, and KERN, Justices, concur,\\n[\\u00b6 28.] WILBUR, Justice, (concurring in part and dissenting in part).\\n. A court also may not modify \\\"restitutional\\\" or \\\"reimbursement\\\" alimony, which is provided to reimburse a spouse's marital contribution while the other obtained advance training or education. Saxvik, 1996 S.D. 18, \\u00b6 13, 544 N.W.2d at 180. The issue of whether a court may modify rehabilitative alimony, which provides financial support required for a spouse to refresh or enhance job skills nec-essaiy to become self-sufficient, has yet to be decided, although this Court has suggested \\\"it must be considered on a case-by-case basis.\\\" Lowe v. Schwartz, 2007 S.D. 85, \\u00b6 13 n. 6, 738 N.W.2d 63, 67 n. 6; see also Sanford v. Sanford, 2005 S.D. 34, \\u00b6 24 n. 5, 694 N.W.2d 283, 291 n. 5; Saxvik, 1996 S.D. 18, \\u00b6 13, 544 N.W.2d at 180.\\n. Factors considered in awarding alimony include:\\n(1) the length of the marriage; (2) their respective earning capacities of the parties; (3) their respective financial condition after the property division; (4) their respective age, health and, physical conditions; (5) their station in life or social standing; and (6) the relative fault of the parties in the termination of the marriage,\\nGuindon v. Guindon, 256 N.W.2d 894, 898 (S.D. 1977).\"}"
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+"{\"id\": \"12256101\", \"name\": \"KALEN, Appellant, v. GELDERMAN, et al, Respondents\", \"name_abbreviation\": \"Kalen v. Gelderman\", \"decision_date\": \"1938-03-07\", \"docket_number\": \"File No. 8111\", \"first_page\": \"53\", \"last_page\": \"66\", \"citations\": \"66 S.D. 53\", \"volume\": \"66\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:43:06.222668+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur.\", \"parties\": \"KALEN, Appellant, v. GELDERMAN, et al, Respondents.\", \"head_matter\": \"KALEN, Appellant, v. GELDERMAN, et al, Respondents.\\n(278 N. W. 165.)\\n(File No. 8111.\\nOpinion filed March 7, 1938.)\\nClaude A. Hamilton, of Sioux Falls, for Appellant.\\nTheodore N. Beyder, of Sioux Falls, for Respondents Theodore and Frieda Gelderman.\\nBielski, Elliott & McQuillen, of Sioux Falls, for Respondents Albert S. Goss, Land Bank Commissioner, and Federal Farm Mortgage Corporation.\", \"word_count\": \"4637\", \"char_count\": \"26843\", \"text\": \"RUDOLPH, J.\\nIn February, 1930, Theodore Gelderman and his wife made and delivered to one Bork a negotiable promissory note -in the sum o>f $4,900, which note was secured by a first mortgage upon certain land located in Minnehaha county, S. D. The mortgage was duly recorded in the office of register of deeds of Minnehaha county. In August, 1930, Bork for a valuable consideration transferred the note by indorsement and the mortgage by assignment to Jessie Langman. This assignment was placed on record. Jessie Langman transferred the note by indorsement, and assigned the mortgage to- the Farmers- State Bank of Rudd, Iowa, as security for indebtedness owed by Langman to the barde. The note was indorsed in blank. The assignment to the bank was not placed of record. Thereafter, and before the note was due, the Farmers State Bank of Rudd sold the note to the plaintiff and delivered the same to her, but did- not indorse it. The bank also delivered to the plaintiff an assignment of the Gelderman mortgage, which assignment was not recorded.\\nWe think it advisable to consider at this time the status of the plaintiff as a holder of this note. Section 1713, Rev. Code 1919/, provides that an instrument is payable to bearer \\\"when the only or last indorsement is an indorsement in blank.\\\" As- disclosed by the above statement, the indorsement .of Langman, which was the last indorsement on the note, was in blank, and under the above provision of our Code this note was thereafter to be considered as being \\\"payable tt\\u00ed bearer.\\\" Section 1734, Rev. Code 1919, provides that an instrument payable to' bearer is .negotiable by delivery thereof. Section 1756, Rev. Code 1919, defines a holder in due course, as follows:\\n\\\"A holder in due course is a holder who has taken the instrument under the following- conditions:\\n\\\"1. That it is complete and regular upon' its face.\\n\\\"2. That he became the holder of it before it was overdue, and without notice that it has been previously if such was the fact.\\n\\\"3. That he took it in good faith and for value.\\n\\\"4. That at the time it was neg-otiated to him he had no- notice of any infirmity in the instrument or defect in the title of the person negotiating it.\\\"\\nWe -think it clear that the plaintiff is a holder in due course of this note. The note -was negotiated to- the plaintiff within the meaning of section 1734; at the time of negotiation it was not due, had not been -dishonored, -it was complete and regular upon its face, and plaintiff took it in good! faith and for value without notice of any infirmity in the instrument or defect in the title of the person negotiating it. That the plaintiff is not a holder in due course of the principal note for which this Gelderman note is held as security does not affect the status of the plaintiff as a holder in due course of the Gelderman note. National Bank of Commerce v. Bottolfson, 55 S. D. 196, 225 N. W. 385, 69 A. L. R. 892. The amount due on the main obligation is without dispute in the record. It should be pointed out also that section 1753 refers to a note payable to order, as distinguished from a no-te payable to bearer, and the note involved in the case of Harris v. Esterbrook, 55 S. D. 538, 226 N. W. 751, 70 A. L. R. 241, wherein section 1753 was construed, was a note payable to order.\\nIn 1933, Gelderman made an application for a loan from the defendant Land Bank 'Commissioner. Eor a statement of the facts concerning the manner in which this loan was negotiated and the. manner in which the proceeds of 'the loan were paid, we set forth the trial court's findings of fact, Nos. 9 and 10:\\n\\\"That at all times herein mentioned The Costello Company of Sioux Falls, South Dakota was engaged in the farm loan business of which concern Tom Costello was the President and Managing Officer and as a part of their said business negotiated loans for applicants and secured such loans in various insurance -companies and in the defendant Land Blank Commissioner; that in the late fall of 1933 the defendant Theodore Gelderman came to the office of The Costello Company in Sioux Falls, South Dakota, and talked with the said Tom Costello -in regard to refinancing his indebtedness; that prior to- January 1, 193-4 and prior to any application for a loan having been made to defendant Land Bank Commissioner the said Tom Costello -corresponded with various creditors of the said- Theodore Gelderman including the -defendant Jessie Langman for the purpose of negotiating settlements and compromises of his debts with them; that thereafter and on -the 2nd day of February, 1934 an application for a loan to the said Theodore Gelderman by the defendant Land- Bank Commissioner was first prepared by defendant Theodore Gelderman and Tom Costello and on February 33, 1934 forwarded to- the Land Bank Commissioner at -Omaha, Nebraska; that said application for a loan -listed the defendant Jessie Langman as the holder of the mortgage given by the defendants Theodore Gelderman and Frieda -Gelderman to August Bork hereinbefore referred to; and made application for a first mortgage loan on the premises involved in this action.\\n\\\"That while said application for a loan was pending the said Theodore Gelderman and Tom Costello- continued to- have correspondence with, Jessie Langman who was the owner o-f record of said mortgage and believed to be the true owner thereof concerning a compromise of the same; that after some negotiations between said parties, but in which the defendant Land Bank Commissioner took no part, it was agreed to compromise the same for the sum of $1600.00 and on the 25th day of April, 1934 the said-Tom 'Costello wrote to- the defendant Land Bank Commissioner and advised it that Jess-ie Langman would accept $1600.00- in full settlement of her mortgage upon the premises involved in this action; that on June 16, 1934 the Costello 'Company forwarded to the Land Bank Commissioner the. written agreement of Jessie Langman to accept -bonds of the Federal Farm Mortgage Corporation in said amount in satisfaction of her mortgage; -that thereafter a first mortgage loan in the sum of $1800.00 was approved by the defendant Land Bank Commissioner and notice thereof was sent to the Costello Company with instructions to furnish an abstract of title; that the Costello' Company secured the abstract of title from the defendant Theodore Gelderman, had the same extended and forwarded' to the defendant Land Bank Commissioner at Omaha, Nebraska; that said abstract was examined by the attorneys for the defendant Land Bank Commissioner and showed the title to the premises involved in this action to' be in the said Theodore Gelderman free and clear of all encumbrances, except the mortgage referred to given to' August Bork which the abstract of title, being a true abstract of the records in the office of the Register of Deeds of Minnehaha County, showed assigned to Jessie Langman and said Jessie Langman to- be the owner and holder thereof; that said abstract was returned by the Land Bank Commissioner to The Costello1 Company, together with a note and mortgage to be executed by Theodore Gelderman and Frieda Gelderman, and the said Theodore Gelderman and Frieda Gelderman on or about the nth day of July, 1934 as alleged in paragraph ten of the plaintiff's complaint executed and delivered to the Land Bank. Commissioner their note secured by a mortgage upon the premises hereinbefore described in the amount of $1800.00 which mortgage was recorded in the office of the Register of Deeds of Minnehaha County, South Dakota on the 31st day of July, 1934 and.recorded in book 210 of mortgages at page 404; that said note and mortgage are now owned by the defendant Federal Farm Mortgage Corporation as successor to- the Land Bank Commissioner; that on or about the i\\u00f3th day of August, 1934 said note, together with the recorded mortgage executed by the defendants Theodore Gelderman and Frieda Gelderman to the Land Bank Commissioner were, together with a continued abstract showing said mortgage, returned by the Costello Company to the defendant Land Bank Commissioner at Omaha; that said continued abstract was examined by the attorneys for the defendant Land Bank Commissioner at Omaha, Nebraska, and said mortgage executed by Theodore Gelderman and Frieda Gelderman to the Land Bank Commissioner was shown by the abstract which was a true and correct abstract of the records in the office of the Register of Deeds of Minnehaha County, South Dakota to be a first lien thereon except for the mortgage shown by the records to be owned by Jessie Langman; that thereafter and on or about the 23rd day of August, 1934 remittance upon said loan consisting of check payable to the County Treasurer of Minnehaha County, South Dakota for $249.65, check payable to Theodore' Gelderman for $15.75, order for bonds in favor of Mrs. Jessie Langman for $1512.25, check to Mrs. Jessie Langman in the sum of $8.10 was made by the defendant Federal Farm Mortgage Corporation and forwarded' to the said The Costello Company; that said remittance was received by the said The Costello Company on or about the 25th day of August, 1934 and the said The Costello Company thereafter proceeded to disburse the proceeds thereof and on August 31, 1934 paid- from the proceeds of said loan to the County Treasurer of Minnehaha County, South Dakota for delinquent taxes upon said premises the sum of $249.65 and on said date forwarded to the defendant Jessie Lang-man at Sherburne, New York an order for bonds of the defendant Federal Farm Mortgage Corporation in the sum of $1515.25, the said Jessie Langman having agreed to accept the balance remaining from the proceeds of an $1800.00 loan in full satisfaction of her said mortgage; that on or about the 26th day of September, 1934 there was received by the said The Costello Company from Jessie Langman a satisfaction of mortgage in regular form satisfying the mortgage recorded in the office of the Register of Deeds of Minnehaha County in book 198 of Mortgages- on page 71 thereof which satisfaction of mortgage was recorded by the said The Costello Company in the office of the Register of Deeds of Minnehaha County, South Dakota on the 9th day of October, 1934 and recorded in book 209 of Mortgages at page 433 thereof and which satisfaction of mortgage was then by The Costello Company forwarded! to the defendant Land Bank Commissioner at Omaha; that Exhibit '45' is said satisfaction; 'that on or about the 3rd day of October, 1934 The Costello Company first received a letter from Jessie Langman advising that she did not have the Theodore Gelderman note but representing that she was the owner thereof; that on the 9th day of October, 1934 The Costello Company, believing the representations of Jessie Langman, forwarded to the said Jessie Langman an affidavit to- be signed by the said Jessie Langman setting forth that said note was lost; that an affidavit so stating was received by The Costello Company from Jessie Langman on or about the 22nd day of Octo ber, 1934; that said affidavit was then forwarded by The Costello Company to- the defendant Theodore Gelderman 'but was never sent to the defendant Land Bank Commissioner; that Exhibit '44' is such affidavit and was -believed \\u00a1by The -Costello Company and Theodore Gelderman; that on or about the nth day o-f October, 1934 and at a time subsequent to the payment o-f taxes and sending of the order for \\u00a1bonds to Jessie Langman and' subsequent to -the recording of the satisfaction o-f said mortgage the said The Costello \\u00a1Company wrote to the Land Bank -Commissioner at Omaha advising them that Jessie Langman had not yet furnished said note and- had been unable to locate same, but there was nothing in said correspondence to -indicate that the said Jess-ie Langman was not the true owner thereof or that anyone else claimed any right,' title or interest therein, and no- such notice either actual or constructive was ever given until December, 1935; that on the 22nd day of October, 1934, the bonds were sent by the Federal Farm Mortgage Corporation to the Sherburne National Bank of Sherb-urne, New York for the benefit of Jessie Langman upon surrender o-f the order for bond's previously sent her by The Costello Company and on the 22nd day of October, 1934 the Costello Company mailed to- Jessie Langman the check in the sum of $8.10.\\\"\\nThe trial court held that the mortgage of the defendant Federal Farm Mortgage Corporation is a first lien -upo-n the premises and that the mortgage of the plaintiff has been fully paid and satisfied. The plaintiff has appealed from the judgment and from an order denying her motion for a new trial.\\nFrom the finding's of the court, above set out, it very clearly appears, we believe, that the defendant, Federal Farm Mortgage Corporation, was itself attempting to procure the settlement and satisfaction of the existing Bork mortgage as a condition precedent to the consummation of the lo-an. It might be that the Costello -Company was the agent of the Geldermans in negotiating this loan from the defendant^ corporation, but there can \\u00a1be little doubt that the defendant Farm Mo-rtg'age Corporation relied upon the Cb-stello Company as its agent in seeing to it Jhat the prior Bork mortgage was settled and satisfied. However, apart from any activity of the Costello- Company, the defendant company actively participated in the payment and satisfaction of this Bo-rk mortgage. It was advised of each step and proceeding in the payment of this mortgage, and then remitted the 'bonds in payment thereof direct to Hangman in New York. It will be noted from the findings, above set out, that it was not until the 22d day of October, 1934, that the bonds in payment of this loan were remitted, and then they were sent by the defendant corporation to- New York for the benefit of Jessie Hangman. Prior to the time these bonds were sent, the defendant Hand- Bank Commissioner had been advised by the Costello Company that \\\"Jessie Hangman had not yet furnished1 such note and had been unable to locate same.\\\"\\nIt is well established in this state that a negotiable note must be paid to the legal holder and owner at the time of such payment, and the payment to any other person not in possession thereof will not be binding upon the legal owner and' holder unless he has either expressly or by implication authorized such other person to receive such payment for him. Balcom v. O'Brien, 13 S. D. 425, 83 N. W. 562; Astoria State Bank v. Markwood, 37 S. D. 56, 156 N. W. 583, reversed on rehearing 38 S. D. 437, 161 N. W. 815; Astoria State Bank v. Markwood, 41 S. D. 446, 171 N. W. 203. And in the early case of Reid v. Kellogg, 8 S. D. 596, 67 N. W. 687, 689, this court, in a case involving somewhat similar set of facts to those here involved, said: \\\"Of course, a person would not be justified in paying the amount due upon a written instrument to one who was neither an agent in fact nor an agent having ostensible authority to collect the amount due, unless such person had in his possession the instrument itself.\\\"\\nThis statement was* of course, made with reference to a negotiable promissory note. Apart from our recording laws, and apart from the fact that this note in suit was secured by a mortgage, the facts upon which respondents rely as constituting payment would not be sufficient. It is clear from the findings of the court and stands undisputed in this record that at the time the payment of this note was made to Jessie Hangman, the plaintiff was the legal owner and holder in due course of the note and was in possession thereof. The real question involved in this case, therefore, is the effect of our recording laws upon the transaction here involved, and whether the failure of the plaintiff to record her assignment of this mortgage overcomes the well-established rule that a negotiable note must be paid to the legal holder and owner at the time of such payment. We consider the question first apart from certain South Dakota cases.\\nIt is established by the great weight of authority that, \\\"in absence of statute to the contrary, the assignee of a mortgage securing a negotiable instrument need not record his assignment in order to invalidate payments made by the mortgagor or others to the mortgagee, even though the recording laws provide for the recordation of the assignments of mortgages; and in making payment the payor relies on the records at his peril.\\\" See 89 A. L. R. 193, and the cases there cited. In this state it is held that a mortgage is merely an incident of the debt it secures, and that a trans^ fer of the debt secured by a mortgage carries; with it the security. Barbour v. Finke, 47 S. D. 644, 201 N. W. 711, 40 A. L. R. 829. And under the provisions of section 1561, Rev. Code 1919, \\\"the record of the assignment of the mortgage is not of itself notice to a mortgagor, his heirs, or personal representatives, so as. to invalidate any payment made by them, or either of them, to the person holding such note, bond, or other instrument.\\\" This statute, we believe, contemplates payment to the owner and holder of the note as distinguished from the record holder of the assignment. In any event it was not intended to authorize the mortgagor to pay the mortgage note to one not the holder of the note. Williams v. Keyes, 90 Mich. 290, 51 N. W. 520, 30 Am. St. Rep. 438; Burhans v. Hutcheson, 25 Kan. 625, 37 Am. Rep. 274; Rodgers v. Peckham, 120 Cal. 238, 52 P. 483. That such is the rule in this state seems clear from the case of Richards Trust Company v. Rhomberg, 19 S. D. 595, 104 N. W. 268, 270, wherein the court said: \\\"We are inclined to take the view that the appellant is right in her contention that, having purchased the note and mortgage with her name filled in as indorsee of the note and assignee of the mortgage, and having the note and mortgage in her actual possession she was not required to record' the assignment or give notice of the same in order to protect her interest therein.\\\"\\nWe are convinced that the recording acts have no effect upon the payment in so far as the Geldermans are concerned. The Geldermans relied upon the statements of Jessie Langman that she had lost the note, and their reliance was misplaced. It was for them, under the. well-established rule, \\u00fc> pay the note to the legal owner and holder at the time of such payment, and the payment to another person not in possession thereof is not binding upon this plaintiff unless plaintiff has either expressly or by implication authorized such other person to receive such payment for him. There is no contention here that the plaintiff expressly authorized Jessie Langman to receive this payment for her, and we find nothing in the facts from which such authorization might be implied.\\nWe next consider the rights of the defendant Federal Farm Mortgage Corporation. It is further well established by authority, that \\\"where a release or satisfaction of a mortgage has been entered of record by the original mortgagee, or the mortgage has been canceled, a subsequent purchaser or mortgagee for value and without notice of the assignment will be protected against the lien of a prior unrecorded assignment of mortgage.\\\" 89 A. L. R. 184, and cases cited; and such is the rule in South Dakota, Pickford v. Peebles, 7 S. D. 166, 63 N. W. 779. The question with which we are now concerned therefore is whether the Federal Farm Mortgage Corporation is a subsequent mortgagee for value and without notice of assignment within the rule above announced. We are convinced that it is not. From the facts as found by the court, it appears that the defendant corporation relied not upon what the record showed, but rather upon its own activities and those of its agent the Costello Company in being certain that all outstanding loans against this land were paid. This defendant actively participated in the paying of this mortgaged indebtedness in the manner in which it was paid, and we cannot determine that it stands in any different position than the Geldermans themselves. This defendant was advised by the Costello Company before sending the bonds to New York that the Costello Company had been unable to obtain the note which the bonds were to satisfy. The mortgage company dearly had within its power after receiving this information the right to refuse to send these bonds to Langman at New York until such time as this outstanding note was produced. It further appears that the company did not trust the Geldermans to make the payment to> satisfy this mortgage but took upon itself the responsibility of sending the bonds in payment of this loan direct to Langman in New York.\\nUnder these circumstances, we are' convinced that the equitable principle found in section 75, Rev. Code 1919, \\\"Where one of two innocent persons, must suffer by the act of a third, he by whose negligence it happened must be the sufferer,\\\" and which has been relied upon by this court in some of the South Dakota cases, has no application here. It appears to. us that not only was this plaintiff negligent in failing to record her assignment, but equally negligent were the Geldermans and the defendant corporation in failing to require that the note be surrendered before paying the mortgaged indebtedness.\\nThis brings us now to consideration of the South Dakota cases. We are convinced that none of these cases are controlling. The South Dakota case upon which respondent principally relies is the case of Pickford v. Peebles, supra. However, the facts in that case disclose that Peebles, the only answering defendant, purchased the mortgaged land relying upon a satisfaction of the mortgage made by the mortgagee and entered of record. Peebles had nothing to do with the payment or discharge of the mortgaged indebtedness, did not know that the mortgage note was not surrendered when the satisfaction was issued, but relied entirely upon the record, and was without question a subsequent purchaser for value without notice of the assignment. In the cases of Merrill v. Luce, 6 S. D. 354, 61 N. W. 43, 55 Am. St. Rep. 844; Barry v. Stover, 20 S. D. 459, 107 N. W. 672, 129 Am. St. Rep. 941; McVay v. Bridgman, 21 S. D. 374, 112 N. W. 1138, the notes involved were nonnegotiable notes, and payment was made to the mortgagee without notice of any assignment, either actual or constructive. A different rule than that announced herein applies where a note is nonnegotiable. \\\"Payment of a nonnegotiable instrument to the assignor after the same has been transferred, whether before or after maturity, but before notice of the transfer, is binding.\\\" 8 C. J. 600. The case of Reid v. Kellogg, 8 S. D. 596, 67 N. W. 687, 689, involved a state of facts where the court held that the mortgagee was authorized by the assignee to- receive payment of the mortgage. The court in that case said: \\\"Prom all of the facts and circumstances in this case the jury could properly draw the inference and arrive at the conclusion that the defendant had, by the course of with the note and mortgage, caused Reid [mortgagor] to believe the \\u00a1bank had at least ostensible authority to receive this money.\\\" The case of Merrill v. Hurley, 6 S. D. 592, 62 N. W. 958, 962, 55 Am. St. Rep. 859, seems to its to be authorit)>- in this state for the result we have reached in this case, at -least so far as the Geldermans are concerned. In this case defendant Hurley and his wife executed an instrument which the court held to be a mortgage to secure a negotiable promissory note' in the sum of $600, payable to the American Mortgage & Investment Company, which, mortgage was -duly recorded. Th-is company indorsed the note to the plaintiff, Merrill, but no assignment of the mortgage was placed on record. Hurley apparently never received the money evidenced by this note, and subsequently the company released the mortgage on the record and executed a bond in the sum of $1,000 conditioned that they would cause to be returned to Hurley the $600 note in question. In that case the court said: \\\"When the mortgaged premises were conveyed by the trustee, the defendant Hurley was evidently aware that the trust deed and note had -been placed beyond the control of the mo-rtg'agee and- trustee, as the bond, in which it -was agreed that the property should be reconveyed by the trustee to Hurley, expressly recites that the defendants were unable to cancel or redeliver the note secured by the mortgage, and, in consideration of a -discontinuance of his suit to obtain a cancellation thereof, this indemnifying bond was executed by the defendant mortgage company and by E. H. Jacobs, trustee; and thereupon the defendant Hurley dismissed his suit, brought to regain possession of the note and cancellation of the mortgage, and took the bond executed for $1,000 by such mortgagee and- trustee, conditioned that they would indemnify and save him harmless against loss or damage that he might sustain by reason of said lien upon his property; and it is reasonable to- presume that he knew, or at least under the circumstances ought to have known, that the note had been negotiated- or placed in the hands of some one who-'-would- attempt to- enforce its collection,- and that he elected to re-ly upon the bond executed for his protection.\\\"\\nThe -facts in this present case disclose that, prior to the time tlie bonds were sent to Langman, she was required to' execute an instrument wherein she agreed \\\"to hold Theodore Gelderman harmless in the event that this note should get into the hands of any other person.\\\" As Hurley \\\"elected to rely upon the bond executed for his protection\\\" in the case of Merrill v. Hurley, supra, so, we believe, the Qeldermans elected to rely upon the agreement of Hangman to hold them \\\"harmless in the event that this note should get into the hands of any other person.\\\" We are satisfied that both the Geldermans and the defendant Federal Farm Mortgage Corporation had it within their power to obviate the situation in which they now find themselves by the simple expedient of following the well-established rule that payment of a negotiable instrument must be made to the owner and holder thereof at the time the payment is made.\\nHaving failed to follow this well-established rule and having turned over the bonds to Hangman after being advised that the note was not then in h\\u00e9r possession, we are convinced that the judgment and order appealed from must be reversed.\\nAll the Judges concur.\"}"
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+"{\"id\": \"12334000\", \"name\": \"State v. Thorstenson\", \"name_abbreviation\": \"State v. Thorstenson\", \"decision_date\": \"2016-10-11\", \"docket_number\": \"27729, 27730, 27731, 27732, 27733\", \"first_page\": \"913\", \"last_page\": \"913\", \"citations\": \"894 N.W.2d 913\", \"volume\": \"894\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:33:35.389775+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Thorstenson\", \"head_matter\": \"State v. Thorstenson\\n27729, 27730, 27731, 27732, 27733\\n10/11/2016\", \"word_count\": \"11\", \"char_count\": \"81\", \"text\": \"Affirmed (GJS)\"}"
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+"{\"id\": \"12556699\", \"name\": \"Daniel OSDOBA, Plaintiff and Appellant, v. Amy B. KELLEY-OSDOBA, Defendant and Appellee.\", \"name_abbreviation\": \"Osdoba v. Kelley-Osdoba\", \"decision_date\": \"2018-06-06\", \"docket_number\": \"28103\", \"first_page\": \"496\", \"last_page\": \"509\", \"citations\": \"913 N.W.2d 496\", \"volume\": \"913\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-27T21:03:16.886160+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Daniel OSDOBA, Plaintiff and Appellant,\\nv.\\nAmy B. KELLEY-OSDOBA, Defendant and Appellee.\", \"head_matter\": \"Daniel OSDOBA, Plaintiff and Appellant,\\nv.\\nAmy B. KELLEY-OSDOBA, Defendant and Appellee.\\n28103\\nSupreme Court of South Dakota.\\nCONSIDERED ON BRIEFS ON JANUARY 8, 2018\\nOPINION FILED June 6, 2018\\nGREGORY T. BREWERS of Strange, Farrell, Johnson & Brewers, P.C., Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.\\nKRISTINE K. O'CONNELL, ARON A. HOGDEN of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota, Attorneys for defendant and appellee.\\nGILBERTSON, Chief Justice [\\u00b6 1.] This appeal concerns the divorce of Daniel Osdoba from Amy Kelley-Osdoba. At the conclusion of the divorce proceedings, the circuit court accepted Amy's valuation of the parties' residence at $574,340, which differed from Daniel's valuation of $611,000 due to a 6% discount that accounted for realtor fees. The circuit court also included Amy's student loans in the marital corpus. The student loans were incurred while Amy attended medical school before the parties were married. Further, the circuit court ordered Amy to make a cash-equalization payment to Daniel, but it allowed Amy to make the payment over time with an interest rate of 4%. Daniel was also awarded alimony upon the condition that he annually release his medical and counseling records to Amy. Finally, the circuit court denied Daniel's request for attorney fees. Daniel appeals. We affirm in part, reverse in part, and remand.\\nFacts and Procedural History\\n[\\u00b6 2.] Daniel and Amy met while Amy was attending medical school in Iowa City, Iowa. Before that time, Daniel was working in Minneapolis after completing his Associate's Degree in Photographic Arts and Graphic Design. Daniel eventually moved in with Amy but had a hard time finding work in Iowa City. Daniel eventually found work in a restaurant. Daniel and Amy were married on June 5, 2004, after Amy's last year of medical school. Within a few weeks of being married, Daniel and Amy moved to Indianapolis, Indiana, where they would stay for the next four years as Amy completed her residency program.\\n[\\u00b6 3.] During Amy's residency program, Daniel worked as a cook and a grocery-store stocker as he had a hard time finding a job in his field of study. Amy gave birth to twin boys during the third year of her residency program. After the birth of the twins, Daniel became a stay-at-home dad.\\n[\\u00b6 4.] In 2011, Amy accepted a job at Sanford in Sioux Falls, South Dakota, as an ob-gyn specialist. The family moved to Sioux Falls from Des Moines, Iowa, where Amy was previously working after completing her residency program. While in Sioux Falls, Amy gave birth to their third son on August 16, 2012. Daniel continued staying at home and caring for the children at the couple's new home in Sioux Falls.\\n[\\u00b6 5.] On January 26, 2015, Amy petitioned the circuit court for a temporary protection order after Daniel exhibited threatening behavior. The circuit court granted the temporary protection order. Daniel filed for divorce two days later, and Amy filed a counterclaim seeking the same. The court ordered Daniel to undergo a psychological evaluation, which resulted in a recommendation for psychotherapy and a dismissal of the temporary restraining order. However, Amy was granted a second temporary restraining order on October 20, 2015, after Daniel exhibited more threatening behavior. The circuit court concluded that Daniel's mental-health issues contributed to the failing marriage.\\n[\\u00b6 6.] Subsequently, Daniel and Amy's divorce trial was held November 8-9, 2016. At the conclusion of the trial, the circuit court made partial rulings from the bench. The circuit court issued a decree of divorce for Daniel and Amy based on irreconcilable differences. The court also divided property, awarded Daniel alimony, and set child support. On November 28, 2016, the circuit court issued a letter decision that supplemented its bench ruling. On December 30, 2016, the circuit court entered its final judgment and decree of divorce.\\n[\\u00b6 7.] Under its rulings relevant to this appeal, the circuit court accepted Amy's valuation of the parties' home at $574,340. This valuation was determined by taking a 6% discount for realtor fees from Daniel's proposed valuation of $611,000. The circuit court also included Amy's student-loan debt into the marital corpus that she had incurred during medical school. After division of the property, the circuit court ordered Amy to pay a cash-equalization payment of $45,364 to Daniel. However, the circuit court allowed Amy the option to make the equalization payment over 48 months with 4% interest. The circuit court also awarded Daniel alimony on the condition that Daniel provide an annual release of his medical and counseling records to Amy. Daniel will receive decreasing alimony payments starting at $3,000 a month and ending at $1,000 a month over 14 years. Finally, the circuit court denied Daniel's request for attorney fees.\", \"word_count\": \"6294\", \"char_count\": \"37839\", \"text\": \"[\\u00b6 8.] Daniel appeals, raising the following issues of alleged error:\\n1. Whether the circuit court erred in its valuation of the marital residence.\\n2. Whether the circuit court abused its discretion in including Amy's student-loan debt in the marital estate.\\n3. Whether the circuit court abused its discretion in allowing Amy the option of making the equalization payment over time with 4% interest.\\n4. Whether the circuit court abused its discretion in requiring that Daniel annually release his medical and counseling records to Amy as a condition of receiving alimony.\\n5. Whether the circuit court abused its discretion in declining to award Daniel his attorney fees.\\nStandard of Review\\n[\\u00b6 9.] We review a circuit court's factual findings, which includes the valuation of property involved in a divorce proceeding, under the clearly erroneous standard of review. Johnson v. Johnson , 2007 S.D. 56, \\u00b6 16, 734 N.W.2d 801, 806 ; accord SDCL 15-6-52(a). \\\"We will overturn the [circuit] court's findings of fact on appeal only when a complete review of the evidence leaves [this] Court with a definite and firm conviction that a mistake has been made.\\\" Miller v. Jacobsen , 2006 S.D. 33, \\u00b6 19, 714 N.W.2d 69, 76.\\n[\\u00b6 10.] A circuit court's determinations in the division of property and on the issue of spousal support are reviewed under an abuse of discretion standard. MacKaben v. MacKaben , 2015 S.D. 86, \\u00b6 9, 871 N.W.2d 617, 622. \\\"A circuit court's ruling on the allowance or disallowance of costs and attorney fees is also reviewed by this Court under the abuse of discretion standard of review.\\\" Terca v. Terca , 2008 S.D. 99, \\u00b6 18, 757 N.W.2d 319, 324. \\\"An abuse of discretion occurs when discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence.\\\" Id. (quoting Miller , 2006 S.D. 33, \\u00b6 18, 714 N.W.2d at 76 ).\\nAnalysis and Decision\\n[\\u00b6 11.] 1. Whether the circuit court abused its discretion in its valuation of the marital residence.\\n[\\u00b6 12.] Daniel first contends the circuit court erred in accepting Amy's valuation of the marital residence at $574,340. He argues that the circuit court should have valued the residence at $611,000 and that the circuit court arbitrarily applied a 6% discount related to realtor fees.\\n[\\u00b6 13.] \\\"On review of a property division, this [C]ourt will not attempt to place valuation on the assets because that is a task for the [circuit] court as the trier of fact.\\\" Johnson , 2007 S.D. 56, \\u00b6 37, 734 N.W.2d at 810 (quoting Geraets v. Geraets , 1996 S.D. 119, \\u00b6 7, 554 N.W.2d 198, 200 ). \\\"We do not require exactitude in the [circuit] court's valuation of assets; it is only necessary that the value lie within a reasonable range of figures.\\\" Id. \\u00b6 37, 734 N.W.2d at 810-11. In other words, the circuit court is not obligated to accept either party's proposed valuation, \\\"but the value must be within the range of evidence presented to the court.\\\" Hill v. Hill , 2009 S.D. 18, \\u00b6 14, 763 N.W.2d 818, 823.\\n[\\u00b6 14.] Here, Daniel introduced evidence that the appraised value of the residence was $611,000. Likewise, Amy agreed with Daniel's appraised value, but she requested a 6% deduction from that value in contemplation of sales commission. Both parties' positions were presented to the court via \\\"court's joint exhibit 1.\\\" It is apparent from the record that the circuit court accepted the appraised value Daniel seeks, but deducted the 6% requested by Amy. The court in essence accepted the net value of the residence, rather than the market value Daniel proposed. We have stated that \\\"even if sale of the home [was] not immediately contemplated, it [is] reasonable for the [circuit] court to consider the net value of the house to the party who received it.\\\" Abrams v. Abrams , 516 N.W.2d 348, 351 (S.D. 1994). \\\"Valuation is nothing more than a function of what the home is worth if it were to be presently sold; therefore, the costs of achieving that value should be considered.\\\" Id. at 350 (quoting Zeigler v. Zeigler , 365 Pa.Super. 545, 530 A.2d 445, 447 (1987) ).\\n[\\u00b6 15.] Nonetheless, Daniel disagrees with the 6% deduction and challenges the presence of any evidence necessary for its use. However, Daniel never objected to the reasonableness of the 6% value at trial; instead, he only took issue with the value of the residence to which the deduction would be applied and whether the deduction was appropriate at all. See id. at 351 (noting that the husband did not present evidence to dispute the amount of the closing costs). The circuit court correctly articulated the issue by stating, \\\"I mean, my view of this question is, everybody is in agreement that the property is worth $611,000.00. The argument is whether or not it's appropriate to deduct the sale's [sic] commission.\\\" Because Daniel did not object to the value of the 6% deduction, he waives the issue on appeal. See In re M.S. , 2014 S.D. 17, \\u00b6 17 n.4, 845 N.W.2d 366, 371 n.4 (recognizing it is the standard policy of this Court that a party waives an issue on appeal if they fail to argue it at the circuit court below). As it was appropriate for the circuit court to consider the 6% deduction, we are not firmly convinced a mistake has been made in the court's net valuation of the marital residence. See Miller , 2006 S.D. 33, \\u00b6 19, 714 N.W.2d at 76.\\n[\\u00b6 16.] 2. Whether the circuit court abused its discretion in including Amy's student-loan debt in the marital estate.\\n[\\u00b6 17.] Daniel next argues that the inclusion of Amy's student-loan debt in the marital estate was an abuse of discretion because Amy had completed medical school before they were married. Daniel contends that the inclusion of the $101,999 in student-loan debt reduced his share of the marital assets by $51,000.\\n[\\u00b6 18.] \\\"South Dakota is an all property state, meaning all property of the divorcing parties is subject to equitable division by the circuit court, regardless of title or origin.\\\" Nickles v. Nickles , 2015 S.D. 40, \\u00b6 32, 865 N.W.2d 142, 153 (quoting Halbersma v. Halbersma , 2009 S.D. 98, \\u00b6 9, 775 N.W.2d 210, 214 ). In other words, \\\"[t]he law requires the [circuit] court to make an equitable division of property, regardless of who owns the property.\\\" Hill , 2009 S.D. 18, \\u00b6 17, 763 N.W.2d at 824 ; see SDCL 25-4-44 (\\\"When a divorce is granted, the courts may make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife.\\\"). However, \\\"the law does not require perfection that would approach mathematical certainty.\\\" MacKaben , 2015 S.D. 86, \\u00b6 33, 871 N.W.2d at 628 (quoting Pellegrin v. Pellegrin , 1998 S.D. 19, \\u00b6 24, 574 N.W.2d 644, 649 ).\\n[\\u00b6 19.] When a circuit court divides property in divorce proceedings, \\\"there is no rigid formula that must be followed, nor any fixed percentage to which either party is entitled.\\\" Id. (quoting Clement v. Clement , 292 N.W.2d 799, 801 (S.D. 1980) ). The factors that require consideration are:\\n(1) the duration of the marriage; (2) the value of the property owned by the parties; (3) the ages of the parties; (4) the health of the parties; (5) the competency of the parties to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income-producing capacity of the parties' assets.\\nNickles , 2015 S.D. 40, \\u00b6 31, 865 N.W.2d at 153 (quoting Novak v. Novak , 2006 S.D. 34, \\u00b6 4, 713 N.W.2d 551, 552 ). Although a circuit court must classify property as marital or non-marital in arriving at an equitable division of property, there exists broad discretion in the circuit court's classification. Id. \\u00b6 32, 865 N.W.2d at 153. \\\"Only where one spouse has made no or de minimis contributions to the acquisition or maintenance of an item of property and has no need for support, should a court set it aside as 'non-marital' property.\\\" Novak , 2006 S.D. 34, \\u00b6 5, 713 N.W.2d at 552-53.\\n[\\u00b6 20.] The instant case presents a different situation from cases upholding the inclusion of student-loan debt in the marital estate when the loans were incurred during the marriage. See, e.g., Richarz v. Richarz , 2017 S.D. 70, \\u00b6 20, 904 N.W.2d 76, 82 (affirming the circuit court's order requiring that husband pay 25% of wife's student-loan debt incurred during the marriage); Hill , 2009 S.D. 18, \\u00b6 17, 763 N.W.2d at 824 (upholding the circuit court's inclusion of wife's medical-school loans incurred during the marriage in the marital estate). Nonetheless, there is adequate support in the record to uphold the circuit court's inclusion of Amy's student-loan debt in the marital estate. Not only were Daniel and Amy living together before the marriage, but Daniel testified that the couple made a conscious decision to forgo paying on the student loans during the marriage to devote Amy's income to other endeavors. This indirectly benefited Daniel in the property division as more income was pledged to savings, investments, and other accounts. See McLaren v. McLaren , 265 Wis.2d 529, 665 N.W.2d 405, 408-09 (Wis. Ct. App. 2003) (finding no abuse of discretion in including student loans in marital estate because premarital and marital loans were not distinguished, and couple made a decision not to pay down the loans to benefit from the extra income). In the end, Amy was still apportioned the student-loan debt in the property division. See Saint-Pierre v. Saint-Pierre , 357 N.W.2d 250, 256 (S.D. 1984) (upholding the inclusion of the parties' education debt in the marital estate when the debt was awarded to the party who accumulated it). Because the circuit court considered the factors necessary in dividing the property between Amy and Daniel, we find no reason to disrupt the circuit court's discretion in what appears on the record to be an equitable distribution of the parties' property.\\n[\\u00b6 21.] 3. Whether the circuit court abused its discretion in allowing Amy the option of making the equalization payment over a time with 4% interest.\\n[\\u00b6 22.] In its final judgment and decree of divorce, the circuit court ordered Amy to pay Daniel $45,365 as a cash-equalization payment. The circuit court allowed Amy the option to pay the equalization payment on a monthly basis, amortized over 48 months with 4% interest. Daniel contends the circuit court abused its discretion in allowing Amy to pay the equalization payment in this manner. Daniel argues that he is entitled to his respective property at the time of the judgment because no evidence was presented that showed Amy's inability to pay the full amount or that a legitimate purpose existed for delaying the equalization payment. However, the record indicates that Daniel failed to properly preserve this issue for appeal.\\n[\\u00b6 23.] \\\"It is well established that 'we will not review a matter on appeal unless proper objection was made before the circuit court.' \\\" Halbersma , 2009 S.D. 98, \\u00b6 29, 775 N.W.2d at 219 (quoting Rogen v. Monson , 2000 S.D. 51, \\u00b6 15 n.2, 609 N.W.2d 456, 460 n.2 ). \\\"An objection must be sufficiently specific to put the circuit court on notice of the alleged error so it has the opportunity to correct it.\\\" Id. \\u00b6 29, 775 N.W.2d at 220. On November 28, 2016, the circuit court issued a written letter decision containing findings of fact, conclusions of law, and orders in the case. The letter decision summarized the oral ruling made by the circuit court at trial and described the terms for which Amy was to make the equalization payment. On December 20, 2016, Daniel proposed his own findings of fact and conclusions of law. He also submitted a proposed judgment and decree of divorce on the same day. Yet, the only mention of the equalization payment in Daniel's proposals was to refute its overall amount. Daniel proposed that \\\"[t]o equalize the distribution of assets and debts, Amy must pay to Daniel a cash equalizing payment of $154,212.\\\" The circuit court subsequently refused Daniel's proposals. Daniel then objected to the circuit court's final judgment and decree of divorce issued on December 30, 2016; however, he only objected to the extent that the decree was inconsistent with his prior proposed findings of fact, conclusions of law, and judgment and decree of divorce. Daniel did not object with any specificity to the circuit court's allowance of monthly equalization payments with 4% interest. See id. (\\\"Merely filing a proposed amended judgment and decree of divorce is not sufficient.\\\"); see also State v. Nelson , 1998 S.D. 124, \\u00b6 7, 587 N.W.2d 439, 443 (\\\"To preserve issues for appellate review litigants must . object to the action of the court, giving their reasons.\\\"). Because Daniel has not preserved the issue for our review, it is waived.\\n[\\u00b6 24.] 4. Whether the circuit court abused its discretion in requiring that Daniel annually release his medical and counseling records to Amy as a condition of receiving alimony.\\n[\\u00b6 25.] The circuit court ordered Amy to pay Daniel decreasing alimony payments that started at $3,000 a month and ended at $1,000 a month over a 14-year period. The circuit court, in its final judgment and decree of divorce, ordered Daniel to execute an annual waiver to allow Amy to obtain all of Daniel's counseling and medical records as a condition of receiving the alimony award. Daniel argues that the circuit court abused its discretion in requiring an annual release of his medical and counseling records to Amy as a condition of receiving alimony because it violates his physician- and psychotherapist-patient privileges.\\n[\\u00b6 26.] A circuit court has discretion to \\\"compel one party to make such suitable allowance to the other party for the support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.\\\" SDCL 25-4-41. Additionally, \\\"[a] circuit court is required to consider the allocation of property and spousal support together.\\\" Scherer v. Scherer , 2015 S.D. 32, \\u00b6 10, 864 N.W.2d 490, 494 (quoting Terca , 2008 S.D. 99, \\u00b6 28, 757 N.W.2d at 326 ). It is \\\"[t]he symbiotic relationship between property division and spousal support [that] requires consideration of the two together, as an award of more assets can eliminate or reduce the need for spousal support and vice versa.\\\" Id. Similar to the division of property, the factors a circuit court considers in awarding alimony include: \\\"the length of marriage, earning capacity of the parties, financial condition after the property division, age, health and physical condition of the parties, parties' station in life or social standing, and fault.\\\" Hill, 2009 S.D. 18, \\u00b6 20, 763 N.W.2d at 825 (quoting Wilson v. Wilson , 434 N.W.2d 742, 745 (S.D. 1989) ).\\n[\\u00b6 27.] Here, the circuit court considered the above factors before ordering the alimony award to Daniel. It found that the parties have been married 12 years; that Amy's earning capacity is robust compared to Daniel's, but Daniel has not yet reached his full earning potential; that Daniel's property division is weighed toward retirement investments to benefit him in the future; that Daniel has virtually no debt after the property division; that the parties will enjoy a reasonable station in life after separation; that the parties are about the same age and in good physical condition; and that Daniel has a history of mental issues, which contributed to the dissolution of the marriage. Pursuant to these factors, the circuit court found that Daniel met his burden in proving that he was in need of support and that Amy had sufficient means and abilities to provide such support. See Kolbach v. Kolbach , 2016 S.D. 30, \\u00b6 16, 877 N.W.2d 822, 828 (stating that in order to receive permanent alimony, a party has the burden of establishing the need for the support and the other party's ability and means to provide support).\\n[\\u00b6 28.] Nonetheless, Daniel argues that coupling such an award to the execution of a full waiver of his physician- and psychotherapist-patient privileges was an abuse of discretion. We agree. Absent a stipulation between the parties, it would be a rare instance that a circuit court could require a party to waive his or her physician- or psychotherapist-patient privileges after the conclusion of a case.\\n[\\u00b6 29.] SDCL 19-19-503(b) provides the general rule regarding the privilege:\\nA patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction, among himself, physician, or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.\\nHowever, the statutory privilege is subject to three exceptions: (1) communications involving proceedings to hospitalize a patient for mental illness are not privileged; (2) communications involving court-ordered examinations of a party's or witness's physical or mental health are not privileged; and (3) communications involving the physical and mental condition of the patient are waived during trial or discovery if the condition is an element of the patient's claim or defense. SDCL 19-19-503(d). Also, if a person's physical or mental health is at issue during a civil proceeding, a waiver of the privilege during trial or discovery must be \\\"narrow in scope, closely tailored to the time period or subject matter of the claim[,]\\\" and provide for an in-camera review by the court if proper objection is made. SDCL 19-2-3.\\n[\\u00b6 30.] The waiver provisions above are limited to a waiver of the privilege during trial or discovery proceedings. As such, any waiver while the litigation is pending is limited to material relevant to the issue(s) pending before the court and does not waive the privilege in its entirety. See Maynard v. Heeren , 1997 S.D. 60, \\u00b6 18, 563 N.W.2d 830, 836-37, abrogated on other grounds , Milstead v. Johnson , 2016 S.D. 56, \\u00b6 34-35, 883 N.W.2d 725, 737-38. Thus, absent stipulation between the parties, the waiver provided by statute is no longer available once the case has concluded. Because the exceptions to a claim of privilege are inapplicable to this case, the circuit court was without authority to order Daniel to sign a waiver at the conclusion of the proceedings, and the court abused its discretion in requiring Daniel to waive the privileges as a condition of receiving the alimony award. Should a motion for contempt or modification of the alimony award be filed in the future, the circuit court could then consider whether a waiver of the physician- or psychotherapist-patient privileges may be appropriate under the statute at that time. See Vandyke v. Choi , 2016 S.D. 91, \\u00b6 10, 888 N.W.2d 557, 563 (\\\"Under South Dakota law, alimony normally may be reduced or eliminated based on a change of circumstances existing at the time of the original decree[.]\\\"). Accordingly, we reverse the circuit court's order requiring Daniel to waive the privilege and remand for the court to vacate this portion of the divorce decree.\\n[\\u00b6 31.] 5. Whether the circuit court abused its discretion in declining to award Daniel his attorney fees.\\n[\\u00b6 32.] Daniel's final argument maintains that the circuit court abused its discretion in declining to award him attorney fees. \\\"Generally, [circuit] courts may award attorney fees in cases involving divorce, support, or alimony.\\\" Huffaker v.Huffaker , 2012 S.D. 81, \\u00b6 32, 823 N.W.2d 787, 794 (citing SDCL 15-17-38). Typically, a two-step process is used by circuit courts in determining whether attorney fees should be awarded. Id. (quoting Urbaniak v. Urbaniak , 2011 S.D. 83, \\u00b6 31, 807 N.W.2d 621, 628 ). \\\"First, the court must determine what constitutes a reasonable attorney's fee. . Second, it must determine the necessity for such fee.\\\" Id.\\n[\\u00b6 33.] Here, Daniel requested that the circuit court order Amy to pay $33,007.89 in attorney fees. The circuit court denied Daniel's request in its final judgment and decree of divorce by stating that \\\"[e]ach party is hereby required to pay their own attorney's fees in this matter.\\\" Upon review of the record, the circuit court did not enter findings of fact and conclusions of law when it denied Daniel's request for attorney fees. \\\"Without findings of fact and conclusions of law there is nothing to review.\\\" Nickles , 2015 S.D. 40, \\u00b6 35, 865 N.W.2d at 154 (quoting Crisman v. Determan Chiropractic, Inc. , 2004 S.D. 103, \\u00b6 30, 687 N.W.2d 507, 514 ). Thus, we reverse and remand for the circuit court to enter findings of fact and conclusions of law on Daniel's request for an award of attorney fees.\\nConclusion\\n[\\u00b6 34.] We conclude that the circuit court did not commit clear error in accepting the net valuation of the marital residence at $574,340. The circuit court based its valuation on taking a 6% discount for realtor fees from the market value of $611,000 that Daniel requested. Because Daniel waived the issue to challenge the reasonableness of the 6% discount, we affirm the circuit court's valuation. Additionally, the circuit court did not abuse its discretion in including Amy's premarital-student loans in the marital estate because Daniel benefited in the property division by deferring payment on the loan to increase the value of other accounts and Amy was apportioned the student-loan debt in the final property division. The circuit court abused its discretion in requiring Daniel to release his medical and counseling records as a condition of receiving alimony because the court lacked statutory authority to order Daniel to waive his physician- and psychotherapist-patient privileges at the conclusion of the case. Finally, we reverse and remand the issue involving Daniel's request for an award of attorney fees for the circuit court to enter findings of fact and conclusions of law.\\n[\\u00b6 35.] Therefore, the judgment of the circuit court is affirmed in part, reversed in part, and remanded for consideration consistent with this opinion.\\n[\\u00b6 36.] ZINTER, SEVERSON, and JENSEN, Justices, concur.\\n[\\u00b6 37.] KERN, Justice, concurs in part and dissents in part.\\nKERN, Justice (concurring on Issues 2, 3, 4, and 5 and dissenting on Issue 1).\\n[\\u00b6 38.] I concur on Issues 2 through 5 but respectfully dissent on Issue 1 for several reasons. I agree that the circuit court properly valued the marital residence at $611,000 based on the appraised value of the home as reflected in Exhibit 1 and by stipulation of the parties. But although the parties agreed on the appraised value, Amy listed $574,340 as the \\\"net value\\\" of the home on Exhibit 1. At trial, Amy's counsel agreed with the court's observation that this followed \\\"the practice of [a now-retired judge that] . routinely would deduct the cost of the . sale for the real estate commission.\\\" Counsel also argued that our holding in Abrams v. Abrams , 516 N.W.2d 348 (S.D. 1994), supported such a deduction.\\n[\\u00b6 39.] However, unlike Abrams , Amy introduced no evidence supporting a 6% reduction. See id. at 350 (\\\"At the time of trial, [Wife] . presented an estimated statement showing all costs that would be incurred upon sale of the house, including brokerage commission, real estate taxes, and other fees.\\\") While \\\"it is only necessary that the value lie within a reasonable range of figures,\\\" Johnson v. Johnson , 2007 S.D. 56, \\u00b6 37, 734 N.W.2d 801, 811, the valuation must nonetheless lie \\\"within the range of evidence presented to the court ,\\\" Richarz v. Richarz , 2017 S.D. 70, \\u00b6 10, 904 N.W.2d 76, 80 (emphasis added); accord Hill v. Hill , 2009 S.D. 18, \\u00b6 14, 763 N.W.2d 818, 823. Amy produced no evidence of the standard rate for real-estate commissions in the area, yet the circuit court reduced the value of the home by nearly $36,000. While the court could freely \\\"accept[ ] the net value of the residence, rather than the market value Daniel proposed,\\\" Majority \\u00b6 14, to do so without reference to any evidence constitutes clear error.\\n[\\u00b6 40.] Although the majority contends that Daniel waived the issue on appeal for failure to object to the 6% deduction at trial, this mischaracterizes the proceedings. Daniel adamantly opposed any value less than $611,000. The dispute over the 6% deduction arose after Daniel attempted to introduce Exhibit 39, which indicated an appraised value of $644,000. Daniel argued that Exhibit 39 demonstrated that the home's value ranged between $611,000 and $644,000, contending that \\\"it wouldn't be just to reduce this to 574\\\" as a result. At the court's urging, Daniel agreed to instead offer Exhibit 1, which prompted the court to ask Amy whether she objected. Amy, apparently referencing the $611,000 figure, objected only \\\"to using the value without applying the Abrams ' case.\\\" From the colloquy, it is apparent that Daniel not only disagreed with the application of a deduction, but he also disagreed that reducing the value of the home by 6% from $611,000 would be reasonable. Thus, it cannot be said that \\\"Daniel did not object to the value of the 6% deduction[.]\\\" Majority \\u00b6 15. Although Daniel's counsel remarked that \\\"if they want to play these games about reducing it, then how about we use their own numbers at 644,\\\" the comment cannot sensibly be construed as an admission that the 6% deduction was reasonable. Even taken at face value, the statement only suggests that if the court did apply a 6% deduction, Daniel wanted the court to use the higher $644,000 figure-one for which he did not ask.\\n[\\u00b6 41.] Moreover, the majority does not make clear when Daniel should have objected and to what. The foregoing exchange occurred during Daniel's motion to introduce Exhibit 39. Amy did not move the court to apply a 6% deduction, and the court did not grant such a motion. How then could Daniel waive the issue on appeal? Further, even if Daniel did not object to the application of Abrams -which Amy ultimately requested with respect to Exhibit 1-our decision in Abrams conformed with the requirement that a valuation must be supported by evidence presented to the court . See 516 N.W.2d at 350. Here, Amy offered none. The majority's suggestion that a 6% deduction is per se reasonable and thus does not need to be supported by the evidence, Majority \\u00b6 15 n.3, contradicts this well-established rule, and the cases cited by the majority do not support the majority's position.\\n[\\u00b6 42.] Other courts have taken issue with the kind of routine deduction applied here to a home's value. In Zeigler v. Zeigler , 365 Pa.Super. 545, 530 A.2d 445, 445 (1987), the Pennsylvania Superior Court \\\"decline[d] to adopt such a[n automatic] rule for all cases, or even for all cases in which an immediate sale is intended[.]\\\" The court observed that \\\"such an intention is not easily susceptible to proof\\\" and that \\\"the proper amount to deduct for costs of sale would be a matter of speculation\\\" without evidence establishing the same. Id. at 447 (emphasis added). While in Abrams , \\\"the record indicate[d] that there were, during the pendency of the divorce in the lower court, plans to sell the house,\\\" 516 N.W.2d at 351, here the record reflects no such plan. Indeed, neither Amy nor the circuit court offered any basis for applying a 6% deduction, and to hold as the majority does could subject property to an automatic discount even where doing so would be arbitrary. For example, \\\"it is not uncommon for an owner to undertake a sale without the assistance of a realtor[.]\\\" Zeigler , 530 A.2d at 447.\\n[\\u00b6 43.] While a deduction for expenses associated with a contemplated sale of a home may be appropriate in some cases, here the circuit court erred by applying a deduction not supported by any evidence in the record. See id. Further, Daniel did not waive the issue for failing to object to the reasonableness of the deduction. On remand, the 6% deduction should be eliminated and the property division recalculated. Therefore, I respectfully dissent on Issue 1.\\nDaniel argued at trial, as well as on appeal, that the valuation range presented to the circuit court was from $611,000 to $644,000. However, the only evidence presented regarding the appraised value of the property was evidence to support a $611,000 value. Thus, like the circuit court, we will not consider the higher valuation.\\nWhile the dissent is correct in stating that Daniel opposed Amy's valuation of the marital residence, see infra \\u00b640, that opposition cannot be equated to an objection of the value of the 6% sales commission. Rather, the record clearly expresses that the parties disputed the gross valuation on the marital home and not the value of the 6% sales commission. Daniel even suggested during trial that the 6% sales commission should be taken from $644,000 rather than the $611,000 he proposed. Specifically, Daniel's counsel stated that \\\"if they want to play these games about reducing it, then how about we use their own numbers at 644?\\\" This Court has stated that a circuit court may consider the net valuation of a marital residence by deducting sales commission, see Abrams , 516 N.W.2d 348 at 351, and nothing in the record or our past cases suggests that a 6% sales commission is unreasonable, see generally, e.g. , Weiss v. Van Norman , 1997 S.D. 40, 562 N.W.2d 113, 114 (involving sales agreement where realtor was to receive 6% sales commission); Am. Prop. Servs., Inc. v. Barringer , 256 N.W.2d 887 (S.D. 1977) (upholding realtor's sales commission of 6%), superseded by statute on other grounds ; see also Ham v. Morris , 711 S.W.2d 187, 191 (Mo. 1986) (en banc) (stating that it is usual and customary for a real estate contract to contain 6% commission). Because a circuit court's decision is presumed correct, and we will not seek reasons to reverse, we are not \\\"firmly and definitely convinced a mistake has been made\\\" to disturb the circuit court's findings relating to the valuation of the marital residence. Shedd v. Lamb , 1996 S.D. 117, \\u00b6 17, 21, 553 N.W.2d 241, 244-45.\\nWe note that a circuit court is permitted to defer property payments over time with interest at the going rate for the convenience of a party. Halbersma , 2009 S.D. 98, \\u00b6 31, 775 N.W.2d at 220. However, an exception to this rule applies when a circuit court sets an interest rate lower than the going rate as an integral part of the overall property division. See Lien v. Lien , 278 N.W.2d 436, 444 (S.D. 1979) (holding that it was appropriate for the circuit court to set the interest rate of husband's deferred-property payments at 6%, instead of the going rate of 8.5% to 9.25%, because it was integral to the property division); but see Grode v. Grode , 1996 S.D. 15, \\u00b6 33, 543 N.W.2d 795, 803 (holding 1% interest rate did not meet the exception); Balvin v. Balvin , 301 N.W.2d 678, 680-81 (S.D. 1981) (remanding for the circuit court to determine if the absence of an interest rate on deferred-property payment was an integral part of the property division). Still, Daniel did not preserve the issue for appeal, and we need not address whether the 4% interest rate was integral to the circuit court's property division.\\nIf this occurs, the circuit court must enter findings to support a justifiable connection between Daniel's alimony award and conditioning such alimony on Daniel's need for mental-health treatment. The court found that Daniel's alimony award allowed him to \\\"maintain a reasonable life style, support his children, and continue professional treatment for his mental health issues.\\\" While this does not support the circuit court's order requiring an annual waiver, it could serve as a basis for modification to the alimony award based on a change of circumstances from those existing at the time of the original divorce decree.\\nThe South Dakota cases cited by the majority involved real-estate listing agreements specifying a 6% sales commission. Weiss v. Van Norman , 1997 S.D. 40, \\u00b6 2, 562 N.W.2d 113, 114 ; Am. Prop. Servs., Inc. v. Barringer , 256 N.W.2d 887, 889 (S.D. 1977). Here, no such agreement exists. Although a 6% sales commission may be reasonable or common, the issue before us is whether a party needs to present evidence supporting a deduction. Our case law suggests that evidence must be presented. See Richarz v. Richarz , 2017 S.D. 70, \\u00b6 10, 904 N.W.2d 76, 80.\\nThe Missouri case cited by the majority, Ham v. Morris , involved an oral listing agreement providing a 6% sales commission. See 711 S.W.2d 187, 188-89 (Mo. 1986). Because the broker failed to meet the condition precedent for receiving a sales commission, the Missouri Supreme Court affirmed the lower court's holding in favor of the seller. Id. at 190. Even if a 6% sales commission is \\\"usual and customary,\\\" as the broker argued, id. at 188, the case does not suggest that we should dispense with our traditional evidentiary burdens. See Zeigler v. Zeigler , 365 Pa.Super. 545, 530 A.2d 445, 445 (1987).\"}"
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+"{\"id\": \"12561542\", \"name\": \"Abby OLSON, Ben Blake, and Jodi L. Massie, Appellants, v. BUTTE COUNTY COMMISSION, Appellee, and Chris Kling, Intervenor and Appellee.\", \"name_abbreviation\": \"Olson v. Butte Cnty. Comm'n\", \"decision_date\": \"2019-03-13\", \"docket_number\": \"28649\", \"first_page\": \"463\", \"last_page\": \"467\", \"citations\": \"925 N.W.2d 463\", \"volume\": \"925\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-27T21:03:32.617013+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Abby OLSON, Ben Blake, and Jodi L. Massie, Appellants,\\nv.\\nBUTTE COUNTY COMMISSION, Appellee,\\nand\\nChris Kling, Intervenor and Appellee.\", \"head_matter\": \"Abby OLSON, Ben Blake, and Jodi L. Massie, Appellants,\\nv.\\nBUTTE COUNTY COMMISSION, Appellee,\\nand\\nChris Kling, Intervenor and Appellee.\\n28649\\nSupreme Court of South Dakota.\\nARGUED ON JANUARY 9, 2019\\nOPINION FILED March 13, 2019\\nDYLAN A. WILDE, Spearfish, South Dakota, JOHN R. FREDERICKSON, Deadwood, South Dakota, Attorneys for appellant.\\nCASSIE WENDT, Butte County State's Attorney, Belle Fourche, South Dakota, ROBERT L. MORRIS, Belle Fourche, South Dakota, Attorneys for appellee Butte County Commission.\\nKELLEN B. WILLERT, MAX S. MAIN of Bennett, Main, Gubbrud & Willert, P.C., Belle Fourche, South Dakota, Attorneys for intervenor and appellee Chris Kling.\", \"word_count\": \"1995\", \"char_count\": \"12381\", \"text\": \"SEVERSON, Retired Justice [\\u00b61.] After considering a petition to vacate a public roadway and section line in Butte County, the County Commission entered a resolution vacating the road. Ben Blake, Jodi Massie, and Abby Olson (hereinafter collectively referred to as \\\"Olson\\\") jointly appealed the Commission's decision to the circuit court. The circuit court dismissed the appeal as untimely. We reverse and remand.\\nBackground\\n[\\u00b62.] On November 20, 2017, the Butte County Auditor received a petition requesting that the Butte County Commission vacate a certain public roadway and section line. The Commission gave notice by publication of a public hearing on the petition and held the hearing on January 11, 2018. After the hearing, the Commission received a letter requesting that the Commission not vacate a portion of the section line. The Commission considered the petition and the letter at its February 6 meeting and voted to approve the petition to vacate the public roadway and section line. The Commission, by resolution, entered an order to that effect and published the resolution and order on February 16 and February 23, 2018.\\n[\\u00b63.] On March 27, 2018, Olson appealed the Commission's decision to vacate the public roadway and section line. Olson served notice of appeal on Commissioner Stan Harm. Chris Kling intervened and filed a motion to dismiss the appeal as untimely, asserting it was not filed within thirty days of the last date of publication (between February 23 and March 26). The County joined Kling's motion. In response, Olson argued the appeal was timely because it was filed within thirty days of the effective date of the Commission's decision. In Olson's view, the Commission's decision became effective on March 26, thereby commencing the time to appeal under SDCL 31-3-34.\\n[\\u00b64.] After a hearing, the circuit court granted the motion to dismiss, concluding that Olson's time to appeal had expired (not commenced) on March 26. Olson appeals, asserting the circuit court erred when it dismissed the appeal as untimely.\\nAnalysis\\n[\\u00b65.] The facts of this case are undisputed, and we need only engage in statutory interpretation and construction. \\\"[W]e adhere to two primary rules of statutory construction. The first rule is that the language expressed in the statute is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction.\\\" Goetz v. State , 2001 S.D. 138, \\u00b6 15, 636 N.W.2d 675, 681. When, however, \\\"statutory construction is required 'statutes must be construed according to their intent, [and] the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.' \\\" Dale v. Young , 2015 S.D. 96, \\u00b6 6, 873 N.W.2d 72, 74 (quoting Martinmaas v. Engelmann , 2000 S.D. 85, \\u00b6 49, 612 N.W.2d 600, 611 ).\\n[\\u00b66.] Olson appealed via SDCL 31-3-34. That statute provides in relevant part that:\\n[N]otwithstanding the provisions of \\u00a7 31-3-14, any person who is a resident or landowner of such county or of land lying within ten miles of the boundaries of such county and who feels aggrieved by the final decision of the board in locating, vacating, or changing any public highway under the provisions of this chapter, may appeal from such decision to the circuit court for the county within thirty days after the date on which the decision of the board has become effective by serving a written notice of appeal describing the decision from which appeal is being taken upon one of the members of the board by one of the methods prescribed in \\u00a7 15-6-4.\\nId. (emphasis added). The statute does not identify when a decision of the \\\"board has become effective[.]\\\" Nor does any other statute within SDCL chapter 31-3 provide an effective date related to a board's decision to locate, vacate, or change a road.\\n[\\u00b67.] Olson argues the Commission's decision could not \\\"become effective\\\" until it became enforceable. As support, Olson directs us to SDCL 31-3-9, which governs the publication requirements and provides that once the resolution is properly published, \\\"such highway shall be, after a lapse of thirty days, vacated, changed, or located, without further proceedings unless appeal as provided for in this chapter.\\\" In Olson's view, because the Commission could not enforce its decision to vacate until thirty days after the last date of publication (so long as no appeal was filed), its decision could not, as the circuit court concluded, become effective on the date of last publication for purposes of SDCL 31-3-34. As further support, Olson emphasizes that nothing in SDCL 31-3-34 refers to the date of publication as being the effective date.\\n[\\u00b68.] In response, Kling and the County maintain the Commission's decision became \\\"effective\\\" for purposes of SDCL 31-3-34 on the last date of publication under SDCL 31-3-9. They claim to conclude otherwise would mean a decision by the Commission could be challenged under SDCL 31-3-34after the land comprising a vacated road has reverted to the original owner under SDCL 31-3-10. SDCL 31-3-10 provides:\\nUpon the discontinuance and vacation of a highway pursuant to \\u00a7 31-3-6 to 31-3-9 , inclusive, the title to the land embodied therein shall revert to the original owners or their grantees or successors in interest, and any removable guardrails, culverts, or other public improvements upon such vacated highway may be removed and returned to the political subdivision by which the same were made or supplied.\\n(Emphasis added.) Kling also contends Olson's interpretation would create \\\"an absurd and unreasonable result.\\\"\\n[\\u00b69.] From our review of SDCL 31-3-34 and SDCL chapter 31-3 as a whole, we discern no legislative intent that the effective date under SDCL 31-3-34 is the last date of publication under SDCL 31-3-9. There is no reference to publication in SDCL 31-3-34 and nothing in SDCL 31-3-9 makes the Commission's resolution effective on the last date of publication.\\n[\\u00b610.] Therefore, to accept the interpretation advanced by Kling and the County would require us to add words to SDCL 31-3-34 and SDCL 31-3-9 that do not exist. This we cannot do. When we interpret legislation, we \\\"cannot add language that simply is not there.\\\" In re Petition for Declaratory Ruling , 2016 S.D. 21, \\u00b6 9, 877 N.W.2d 340, 344 (quoting State v. Hatchett , 2014 S.D. 13, \\u00b6 14, 844 N.W.2d 610, 615 ). As such, we likewise decline to adopt Olson's interpretation, namely that the decision became effective when the thirty days under SDCL 31-3-9 lapsed (and no appeal was filed). Nothing in SDCL chapter 31-3 suggests that the Legislature intended the end of the lapse period under SDCL 31-3-9 to be the effective date under SDCL 31-3-34.\\n[\\u00b611.] Because neither SDCL 31-3-34 nor SDCL chapter 31-3 aid in discerning legislative intent, we \\\"look to the legislative history, title, and the total content of the legislation to ascertain the meaning.\\\" See LaBore v. Muth , 473 N.W.2d 485, 488 (S.D. 1991). Prior to its amendment in 1985, SDCL 31-3-34 provided that an appeal was to be taken in \\\"the manner and within the time prescribed for other appeals from decisions of boards of county commissioners[.]\\\" SDCL 31-3-34 (1984). Looking then to a statute prescribing a time for appeal, SDCL 7-8-29 provides that appeals from county commission decisions must be taken \\\"within twenty days after the publication of the decision of the board[.]\\\" (Emphasis added.) Although this legislative history does not directly reveal the date upon which the Legislature intended a board's decision to become effective under the current version of SDCL 31-3-34, it does suggest the Legislature intended something different when it amended the statute and connected the time to appeal to the \\\"date on which the decision of the board has become effective \\\" rather than to the timing of publication.\\n[\\u00b612.] \\\"[O]ther enactments relating to the same subject\\\" provide another tool of statutory construction in determining legislative intent. State v. Burdick , 2006 S.D. 23, \\u00b6 6, 712 N.W.2d 5, 7. We construe statutes \\\"in pari materia when 'they relate to the same person or thing, to the same class of person or things, or have the same purpose or object.' \\\" Lewis & Clark Rural Water Sys., Inc. v. Seeba , 2006 S.D. 7, \\u00b6 15, 709 N.W.2d 824, 831 (quoting Goetz , 2001 S.D. 138, \\u00b6 26, 636 N.W.2d at 683 ). One such enactment is SDCL 7-18A-8. Under that statute, \\\"every resolution or ordinance passed by a board shall take effect on the twentieth day after its completed publication unless suspended by operation of referendum.\\\" Id. Therefore, absent a different effective date identified by the Legislature, the effective date under SDCL 7-18A-8 applies to all county commission resolutions, except those necessary for \\\"immediate preservation of the public peace, health, or safety, or support of the county government[.]\\\" Id.\\n[\\u00b613.] Because the Legislature has not declared a different effective date for a resolution by a county commission vacating a road under SDCL chapter 31-3, we apply SDCL 7-18A-8 and conclude a commission's resolution and order vacating a road becomes effective under SDCL 31-3-34 twenty days after completed publication under SDCL 31-3-9. Admittedly, this interpretation means an appeal might be taken under SDCL 31-3-34 after a road is located, vacated, or changed and the land comprising the road has reverted to the original owners. See SDCL 31-3-9 and -10. Yet the remedy against this type of procedural issue exists with the Legislature. Indeed, to conclude otherwise would require us to rewrite SDCL 31-3-34 or other statutes within SDCL chapter 31-3 in direct violation of our judicial scope of authority to interpret what the Legislature said (not what we think it should have said). \\\"[C]ourts have no legislative authority, and should avoid judicial legislation, a usurpation of legislative powers, or any entry into the legislative field.\\\" In re Petition of Famous Brands, Inc. , 347 N.W.2d 882, 884 (S.D. 1984). We, therefore, call on the Legislature to act.\\n[\\u00b614.] The Commission's decision became effective twenty days after February 23, and Olson had thirty days after that date in which to appeal. Because Olson appealed on March 27, her appeal was timely, and the circuit court erred when it dismissed the appeal.\\n[\\u00b615.] Reverse and remand.\\n[\\u00b616.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER, Justices, concur.\\nSDCL 31-3-34 also provides that \\\"[t]he appeal so taken shall be docketed as other causes pending in such court, and the same shall be heard and determined de novo.\\\" In South Dakota Department of Game, Fish & Parks v. Troy Township , we clarified that-despite statutory language prescribing de novo review-the appropriate standard of review depends on whether the Commission's action was quasi-judicial or not quasi-judicial. 2017 S.D. 50, \\u00b6 20, 900 N.W.2d 840, 849. If the action is quasi-judicial, then the circuit court may apply de novo review. If not, the circuit court is limited to determining whether the Commission acted unreasonably, arbitrarily, or manifestly abused its discretion. Id. \\u00b6 24. In Troy Township , we held that the decision to vacate a road was not quasi-judicial based on the fact the decision did not require an adjudication of specific individuals' existing rights and because the decision was one of policy. Id. \\u00b6 22. In this appeal, we do not determine whether the Commission's decision was quasi-judicial. Indeed, the underlying facts relevant to the Commission's decision are not before this Court. Therefore, we need only determine whether the circuit court erred when it dismissed the appeal as untimely.\"}"
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+"{\"id\": \"12564416\", \"name\": \"STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Appellant, v. Giyo Bryan MIRANDA, Defendant, Third-Party Claimant and Appellee, v. John Doe, Third-Party Defendant.\", \"name_abbreviation\": \"State Farm Mut. Auto. Ins. Co. v. Miranda\", \"decision_date\": \"2019-08-07\", \"docket_number\": \"28695, 28719\", \"first_page\": \"570\", \"last_page\": \"576\", \"citations\": \"932 N.W.2d 570\", \"volume\": \"932\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-27T21:03:43.436838+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Appellant,\\nv.\\nGiyo Bryan MIRANDA, Defendant, Third-Party Claimant and Appellee,\\nv.\\nJohn Doe, Third-Party Defendant.\", \"head_matter\": \"STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff and Appellant,\\nv.\\nGiyo Bryan MIRANDA, Defendant, Third-Party Claimant and Appellee,\\nv.\\nJohn Doe, Third-Party Defendant.\\n28695, 28719\\nSupreme Court of South Dakota.\\nARGUED FEBRUARY 21, 2019\\nOPINION FILED August 7, 2019\\nBENJAMIN L. KLEINJAN of Helsper, McCarty & Rasmussen, P.C., Brookings, South Dakota, Attorneys for plaintiff and appellant.\\nMATTHEW J. MCINTOSH of Beardsley, Jensen & Lee, Prof. LLC, Rapid City, South Dakota, Attorneys for defendant and appellee.\", \"word_count\": \"2808\", \"char_count\": \"17375\", \"text\": \"SALTER, Justice\\n[\\u00b61.] Giyo Miranda lost control of his vehicle, resulting in a head-on collision with another vehicle driven by Loyd Nielson. A third, unidentified vehicle was also allegedly involved in the incident. Nielson's insurer, State Farm Mutual Auto Insurance Company (State Farm), pursued subrogation recovery against Miranda. The case was tried to a jury which returned a general verdict in favor of Miranda. The circuit court subsequently denied State Farm's motion for a new trial. State Farm appeals. We affirm.\\nFacts and Procedural History\\n[\\u00b62.] On November 20, 2013, 18-year-old Miranda and his older brother Kevin were traveling in a minivan back to Belle Fourche from Rapid City on I-90. Miranda was driving and exited at Whitewood before turning right and continuing west on Highway 34. Miranda explained he was traveling at approximately 30-35 mph in an area where the speed limit changes from 30 mph to 45 mph. The road conditions were icy due to freezing drizzle and snow accumulation on the road. As Miranda continued along an initial curve on Highway 34, he claimed that an unknown vehicle traveling eastbound entered his westbound lane and approached him head-on. Miranda said he swerved to the right shoulder of the road to avoid a collision. When he attempted to pull his minivan back onto the road, it began to slide. Miranda tried to correct the slide, but skidded into the eastbound lane instead and collided with a pickup driven by Nielson.\\n[\\u00b63.] Nielson, who was insured by State Farm, was traveling home to Hot Springs after leaving an auction in the area. At the subsequent trial, Nielson initially testified that he did not recall seeing a third vehicle before the collision. However, he later acknowledged that there was an unidentified vehicle driving approximately 100 yards in front of him. Nielson also testified that he could see the vehicle apply its brakes in the area where the collision occurred a short while later.\\n[\\u00b64.] After paying benefits under several separate coverages included in an automobile policy issued to Nielson, State Farm pursued a subrogated claim against Miranda, alleging negligence. The case was tried to a jury on April 26-27, 2018. Throughout the case, State Farm maintained the factual theory that the third-party vehicle Miranda described was either nonexistent or never came into his lane of travel. Miranda, however, persisted in his position that the vehicle had been present and had swerved into his lane, causing the sequence of events that led to the collision with Nielson.\\n[\\u00b65.] At the completion of the trial, the circuit court instructed the jury on State Farm's theories of general negligence and negligence per se. The court further instructed the jury that if it found Miranda had acted negligently, it could excuse the negligence if it determined he had confronted a sudden emergency not of his own making.\\n[\\u00b66.] The circuit court also provided the jury with a detailed instruction describing the individual questions presented and how its determinations would impact the verdict. For example, the first two questions for the jury related to the issues of standard negligence and legal cause:\\nThe issues to be determined by you in this case are these:\\nFirst, was Defendant Giyo Miranda negligent on November 20, 2013?\\nIf your answer to that question is \\\"no,\\\" you must return a verdict for Defendant Giyo Miranda. If your answer is \\\"yes,\\\" you will have a second issue to determine, namely:\\nWas that negligence a legal cause of any injury to Plaintiff State Farm?\\nIf you find Defendant's negligence was not a legal cause of Plaintiff State Farm's injuries, Plaintiff is not entitled to recover damages and you must return a verdict for the Defendant.\\nOnly if the jury determined Miranda had acted negligently and had caused the collision did the court instruct the jury to move on and consider the questions related to the presence of a sudden emergency.\\n[\\u00b67.] Notwithstanding this detailed instruction concerning the order and effect of the jury's individual factual determinations, the verdict form did not include corresponding special interrogatories. Following its deliberation, the jury returned a general verdict in favor of Miranda that stated only, \\\"[w]e, the jury, duly impaneled in the above-entitled action, and sworn to try the issues, find for the [d]efendant.\\\" State Farm moved for a new trial and later sought to supplement the record after realizing one of its proposed instructions was not contained in the clerk's record. Miranda opposed both motions. The circuit court denied State Farm's motion for a new trial, but granted its motion to supplement the record and an oral motion to amend the pleadings to conform to the evidence.\\n[\\u00b68.] State Farm appeals, raising the following issues for our review:\\n1. Whether the circuit court abused its discretion when it instructed the jury on the sudden emergency doctrine.\\n2. Whether the circuit court abused its discretion when it instructed the jury regarding legal excuse for violation of a safety statute.\\n3. Whether the circuit court abused its discretion when it provided an allegedly incomplete instruction on the effect of the sudden emergency doctrine and an allegedly incorrect instruction detailing the specific sequence of the jury's individual determinations.\\nMiranda also raises the following issues by notice of review:\\n4. Whether the circuit court abused its discretion in granting State Farm's motion to amend the pleadings to conform to the evidence.\\n5. Whether the circuit court abused its discretion in granting State Farm's motion to supplement the record.\\nAnalysis & Decision\\n[\\u00b69.] Both parties have submitted thorough briefs on the merits of the issues they believe are presented. However, neither party has addressed the significance of the jury's general verdict. We believe we must consider this issue on our own accord. Even if we were to accept State Farm's argument that the circuit court abused its discretion by instructing the jury as it did, our cases require us to assess the prejudicial impact of the court's instructions, and we would inevitably be forced to confront the issue.\\n[\\u00b610.] \\\"A party challenging as erroneous a jury instruction must show not only that the instruction was in error, but also that it was prejudicial error to the effect that under the evidence, the jury . probably would have returned a different verdict.\\\" Veeder v. Kennedy , 1999 S.D. 23, \\u00b6 34, 589 N.W.2d 610, 618 (citations and quotations omitted). Where a jury returns a general verdict in a case tried upon multiple theories, though, establishing prejudice is difficult because the basis for the jury's verdict is likely uncertain. With a general verdict, \\\"this Court cannot conclusively determine whether the jury based its verdict on any number of defenses .\\\" or other theories offered by the parties to a case.\\nReede Constr., Inc. v. S.D. Dep't of Transp. , 2017 S.D. 63, \\u00b6 14, 903 N.W.2d 740, 745. Indeed, \\\"if a general verdict is handed down and the jury could have decided the case on two theories, one proper and one improper, the reviewing court will assume that it was decided on the proper theory.\\\" Id. (quoting Lenards v. DeBoer , 2015 S.D. 49, \\u00b6 14, 865 N.W.2d 867, 871 ). \\\"Only if there is 'an affirmative showing in the record to the contrary,' will we abandon this assumption.\\\" Thomas v. Sully Cty. , 2001 S.D. 73, \\u00b6 7, 629 N.W.2d 590, 592 (quoting Limmer v. Westegaard , 251 N.W.2d 676, 679 (S.D. 1977) ).\\n[\\u00b611.] Special verdict forms, by contrast, can be useful for clarifying the basis of a jury's verdict and assisting a reviewing court in appropriate cases. For instance, a special verdict form may prove illuminating in a case involving complex issues or perhaps multiple or novel claims. See Miller v. Hernandez , 520 N.W.2d 266, 271 (S.D. 1994) (\\\"A special verdict makes it clear that the novel theory may have had no effect, or what effect it had on the jury's ultimate determination.\\\").\\n[\\u00b612.] Here, though, neither party requested a special verdict form or objected to the circuit court's decision to utilize a general verdict form. They were successful in their efforts to have the court provide detailed instructions to assist the jury with the liability theories and defenses presented in the case. However, the general verdict form, by its nature, is imprecise and does not permit a safe inference about the specific basis for the jury's defense verdict.\\n[\\u00b613.] It may well be that the jury's verdict had nothing to do with State Farm's principal claim that the court incorrectly allowed the jury to consider excusing negligence under Miranda's sudden emergency theory. Included among the first issues for the jury to consider were basic inquiries relating to the existence of negligence and legal cause. The court's instruction advised the jury that it must return a verdict for the defendant if it found Miranda was not negligent or if it concluded his negligence was not the legal cause of the collision.\\n[\\u00b614.] Based upon our review of the record, it is possible that the jury could have determined that State Farm simply did not prove the necessary elements of negligence. The jury could have, for example, concluded that Miranda did not act unreasonably in taking evasive action or perhaps it found that the unidentified vehicle was the sole cause of the collision with Nielson. Either one of these determinations would have constituted a permissible basis for the jury's verdict. There is nothing discernible in the record which would establish that the jury first determined the existence of negligence only to then find it was excused under the disputed sudden emergency defense.\\n[\\u00b615.] Therefore, \\\"[b]ecause a general verdict form was used, we have no way of knowing\\\" what basis the jury selected for its decision, and we cannot assess the impact of the disputed instructions even if we were to hold the court abused its discretion in giving them. Lenards , 2015 S.D. 49, \\u00b6 14, 865 N.W.2d at 871. Under the circumstances, we conclude that State Farm cannot establish any prejudice from the circuit court's instructions, and we must affirm because we are unable to exercise meaningful appellate review on the merits of State Farm's claims. Given our disposition, it is unnecessary to reach Miranda's issues raised upon notice of review. We affirm.\\n[\\u00b616.] GILBERTSON, Chief Justice, and JENSEN, Justice, and KONENKAMP, Retired Justice, concur.\\n[\\u00b617.] KERN, Justice, concurs specially.\\nKERN, Justice (concurring specially).\\n[\\u00b618.] I write to stress my view that instructing the jury on the sudden emergency doctrine was improper. The sudden emergency doctrine, a concept developed at common-law, attempts to assist a jury in judging the negligence of a party who is \\\"confronted by a sudden and unexpected danger, [when] . the dangerous situation was not brought about by the party's own negligence[.]\\\" See Meyer , 254 N.W.2d at 110.\\n[\\u00b619.] Over forty years ago, we noted the sudden emergency instruction \\\"is merely an expansion of the reasonably prudent person standard of care.\\\" See id. Instructing the jury on the elements of negligence, we explained, is typically adequate because it informs the jury of the principles of \\\"negligence, contributory negligence, burden of proof, and proximate cause.\\\" See id. (quoting Cordell v. Scott , 79 S.D. 316, 322, 111 N.W.2d 594, 598 (1977) ) (analyzing an unavoidable accident instruction). We repeated this sentiment in Carpenter v. City of Belle Fourche where we noted that use of the sudden emergency instruction \\\"served only to improperly emphasize the defendants' position[,]\\\" at trial. 2000 S.D. 55, \\u00b6 32, 609 N.W.2d 751, 764.\\n[\\u00b620.] Concern over the instruction's tendency to confuse has led several jurisdictions to abolish it altogether. Others have prohibited it in cases involving automobile accidents. And others have questioned its usefulness or drastically restricted its use. In rejecting or diminishing use of the instruction, some courts have commented that claiming a sudden emergency is the same as denying negligence. See Lawrence v. Deemy , 204 Kan. 299, 461 P.2d 770, 774 (1969).\\n[\\u00b621.] A sudden emergency instruction seldom, if ever, provides the jury with helpful insight on the general standard of care. The risk associated with confusing the jury on the elements of negligence is not worth any slight benefit garnered from providing the instruction. If it is given at all, its use should be confined to the rarest of cases involving an emergency a defendant could not reasonably be expected to anticipate based on the circumstance surrounding his or her allegedly negligent conduct. See Myhaver v. Knutson , 189 Ariz. 286, 942 P.2d 445, 450-51 (1997). I expressed similar concerns about the unavoidable accident instruction in Lenards v. DeBoer , 2015 S.D. 49, \\u00b6 17-23, 865 N.W.2d 867, 871-72 (Kern, J., concurring specially).\\n[\\u00b622.] If a court denies a party's request for the instruction, nothing precludes the parties from defending themselves on the basis that they faced an emergency. Litigants are free to attack causation by presenting evidence about the circumstances leading up to the allegedly tortious conduct. A jury is then charged with assessing whether the defendant legally caused the injuries through his or her own negligence in response to the claimed emergency. The jury in this case was provided with the definition of legal cause, which was sufficient to guide the jury in properly analyzing the case. Therefore, in my view, it was error to instruct the jury on the sudden emergency doctrine in this case.\\n[\\u00b623.] Yet \\\"without an affirmative showing in the record to the contrary, we construe the jury verdict as rendered upon the properly submitted legal theory ., rather than upon one improperly submitted.\\\" See Limmer v. Westegaard , 251 N.W.2d 676, 679 (S.D. 1977). Because there is a proper theory to support the jury's general verdict-i.e., the possibility that the jury concluded Miranda was not negligent-I agree that the circuit court should be affirmed.\\nState Farm paid benefits under the policy's collision, medical payments, and uninsured motorist coverages.\\nState Farm's factual argument that the third, unidentified vehicle did not exist or did not cause the collision seems incongruous with its decision to pay Nielson uninsured motorist benefits based upon its determination that the collision was caused by an uninsured \\\"phantom vehicle.\\\" See Clark v. Regent Ins. Co. , 270 N.W.2d 26, 31 (S.D. 1978) (holding that uninsured motorist coverage is available when an unknown vehicle causes an accident and resulting damages). However, the parties have not suggested this factual incongruity is significant to our decision here.\\nState Farm alleged Miranda violated safety statutes requiring motorists to remain within their lane of travel and prohibiting speeding.\\nMiranda argues that any common law negligence could be excused under what is commonly known as the sudden emergency doctrine. One of the constituent elements of that doctrine is the requirement that the person who faced the emergency did not act negligently to create the emergency. See Meyer v. Johnson , 254 N.W.2d 107, 110 (S.D. 1977). Under a closely related theory, negligence per se may also be excused if a negligent party confronted a sudden emergency. See Dartt v. Berghorst , 484 N.W.2d 891, 896 (S.D. 1992).\\n\\\"This Court reviews 'the circuit court's decision to grant or deny a specific jury instruction for an abuse of discretion.' \\\" City of Rapid City v. Big Sky, LLC , 2018 S.D. 45, \\u00b6 21, 914 N.W.2d 541, 547 (quoting Montana-Dakota Utils. Co. v. Parkshill Farms, LLC, 2017 S.D. 88, \\u00b6 25, 905 N.W.2d 334, 343 ). An abuse of discretion \\\"is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.\\\" Krueger v. Grinnell Mut. Reinsurance Co. , 2018 S.D. 87, \\u00b6 12, 921 N.W.2d 689, 693 (quoting Thurman v. CUNA Mut. Ins. Soc'y , 2013 S.D. 63, \\u00b6 11, 836 N.W.2d 611, 616 ).\\nSee Knapp v. Stanford , 392 So. 2d 196, 198-99 (Miss. 1980) ; Cowell v. Thompson , 713 S.W.2d 52, 54 (Mo. Ct. App. 1986) ; McClymont v. Morgan , 238 Neb. 390, 470 N.W.2d 768, 772 (1991) ; Lyons v. Midnight Sun Transp. Serv., Inc. , 928 P.2d 1202, 1205 (Alaska 1996) (\\\"[B]arring circumstances that we cannot at the moment hypothesize, a sudden emergency instruction serves no positive function.\\\").\\nSee Simonson v. White , 220 Mont. 14, 713 P.2d 983, 989 (1986) ; Finley v. Wiley , 103 N.J.Super. 95, 246 A.2d 715, 719 (Ct. App. Div. 1968).\\nSee DiCenzo v. Izawa , 68 Haw. 528, 723 P.2d 171, 181 (1986) ; Keel v. Compton , 120 Ill.App.2d 248, 256 N.E.2d 848, 853 (1970) ; Bayer v. Shupe Bros. Co. , 223 Kan. 668, 576 P.2d 1078, 1080 (1978) ; Gagnon v. Crane , 126 N.H. 781, 498 A.2d 718, 721 (1985).\"}"
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+"{\"id\": \"2366831\", \"name\": \"Paulson v. Langness et al.\", \"name_abbreviation\": \"Paulson v. Langness\", \"decision_date\": \"1903-02-04\", \"docket_number\": \"\", \"first_page\": \"471\", \"last_page\": \"474\", \"citations\": \"16 S.D. 471\", \"volume\": \"16\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:24:07.879678+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Paulson v. Langness et al.\", \"head_matter\": \"Paulson v. Langness et al.\\nLaws 1897, e. 72, \\u00a7 6, provides that a licensed dealer in intoxicating liquor shall give a bond conditioned that he shall pay all damages adjudged to any person for injury in person, property, or means of support, etc., by reason of selling, furnishing, etc., such liquor. Section 16 provides that a wife may institute suit in her own name on the bond of a licensed dealer, for loss of ij,er support. Held, that to render a liquor dealer civilly liable to a wife for the sale of liquor to her husband, occasioning an accident resulting in his death, the liquor dealer , must have possessed a license, an unlicensed dealer not being so liable.\\n(Opinion filed February 4, 1903.)\\nAppeal from circuit court, Minnehaha county. Hon. Joseph, W. Jones, Judge,\\nAction by Sigrid Paulson against Ole Langness and another. Prom an order sustaining a demurrer to the complaint, plaintiff appeals.\\nAffirmed.\\nD. R, Builcy and Davis, Lyon & Gates, for appellant.\\nAilcens & Judge, for respondents.\", \"word_count\": \"843\", \"char_count\": \"4904\", \"text\": \"Fuller, J.\\nThis is an appeal from an order sustaining a demurrer to the complaint in an action by a widow to recover damages occasioned by the loss of her means of support resulting from intoxication produced by liquor sold to her hus band by the defendants, and by reason of which his life terminated. Confessedly, appellant's remedy, if she has one, is to be found in chapter 72, Laws 1897, entitled ' 'An act to provide for the licensing, restriction and regulation of the business of the manufacture and sale of spirituous and intoxicating liquors.\\\" After stating, among other things, that she was the wife of Iver Paulson, whose death occurred on the 15th day of March, 1899 it is alleged in the complaint: ' 'That for a long time prior thereto, and on said 15th day of March 1899, the defendants were engaged in business at Baltic aforesaid, and were engaged and interested in unlawfully selling intoxicating liquors as a beverage, namely alcohol and whiskey, and that prior to the last mentioned date, and up to the time of his death, the said Iver Paulson was in the habit of becoming intoxicated, and on that day was intoxicated, which was known to the defendants, their agents, clerks, and employes, and while in that state of intoxication, on that day, at Baltic, in the township, county, and state aforesaid, the defendants themselves, and by their clerks, agents, and employes did sell, furnish, and give to said Iver Paulson at successive times, and in different quantities, to be drank by him as a beverage, intoxicating liquors, namely, one pint of alcohol and one pint of whisky, which the said Iver Paulson thereupon drank, whereby he became and was and continued to be intoxicated to such an extent that he became disqualified and incapacitated from managing his team or caring for the safety of his person, > by reason whereof he received the injuries and lost his life as heretofore set forth.\\\"\\nAs a part of the legislative scheme for the regulation and restriction of the liquor traffic in this state, the wife is given a right of action against the licensed dealer and the sureties on his bond for any infraction upon her means of support occasioned by the disposal of intoxicating liquors to her husband. The obligation is \\\"that he shall pay all damages, actual or exemplary, that may be adjudged to any person or persons for injuries inflicted upon him or them either in person or property, or means of support or otherwise, by reason of his,,selling, furnishing, giving or delivering any such liquor.\\\" Section 6 c. 72, Laws 1897. Section 16 of the act provided, in substance, that, to recover the damages arising under this act, the wife may institute and maintain in her own name, an action on the bond of a licensed saloon keeper for injury sustained by the loss of support, and the money recovered shall be paid over for the use of herself and children. If the defendants ' 'were engaged and interested in unlawfully selling intoxicating liquors as a beverage\\\" without first having obtained a license, as required by the act, they are guilty of a misdemeanor punishable by fine or imprisonment; but the legislature has provided no remedy in the nature of an action for damages against illicit dealers for the loss of support caused by sales made by them. At common law the wife could not recover for the loss of support occasioned by the death of her husband, and, to bring the case within the statute creating both the right and the remedy, it must be alleged and proved that the defendants were licensed dealers. Consequently, the demurrer to the complaint, on the ground that the same does not state facts sufficient to constitute a cause of action, was properly sustained. By granting plaintiff leave to file an amended complaint within 30 days on the payment of $10 terms, any right of action she may have is not prejudiced.\\nThe order appealed from is affirmed.\"}"
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+"{\"id\": \"2384345\", \"name\": \"NORTHWESTERN BELL TELEPHONE COMPANY, Appellant v. HENRY CARLSON COMPANY, Respondent\", \"name_abbreviation\": \"Northwestern Bell Telephone Co. v. Henry Carlson Co.\", \"decision_date\": \"1969-02-25\", \"docket_number\": \"File No. 10527\", \"first_page\": \"664\", \"last_page\": \"674\", \"citations\": \"83 S.D. 664\", \"volume\": \"83\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T17:51:13.189288+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur.\", \"parties\": \"NORTHWESTERN BELL TELEPHONE COMPANY, Appellant v. HENRY CARLSON COMPANY, Respondent\", \"head_matter\": \"NORTHWESTERN BELL TELEPHONE COMPANY, Appellant v. HENRY CARLSON COMPANY, Respondent\\n(165 N.W.2d 346)\\n(File No. 10527.\\nOpinion filed February 25, 1969)\\nMay, Boe & Fisher, and Gale E. Fisher, Sioux Falls, for plaintiff and appellant.\\nDavenport, Evans, Hurwitz & Smith, and Carleton R. Hoy, Sioux Falls, for defendant and respondent.\", \"word_count\": \"2772\", \"char_count\": \"15963\", \"text\": \"HOMEYER, Judge.\\nIn this action plaintiff, Northwestern Bell Telephone Company, seeks to recover for water damage to certain personal property alleged to have been caused by the negligence of the defendant, Henry Carlson Company. A jury found no liability and judgment was entered upon such verdict. Plaintiff's motion for a new trial was denied and this appeal followed.\\nAppellant's principal claims are (1) that the court should have directed a verdict for him upon the issue of liability leaving only for jury determination the amount of damages, and (2) if there is a jury question on liability, that the court erred prejudicially in its instruction on the defense of an act of God.\\nOn plaintiff's appeal from judgment upon a verdict for the defendant, the evidence must be viewed in a light most favorable to the defendant and we must accept the evidence and any reasonable inferences therefrom which tend to support the verdict. Federal Land Bank of Omaha v. Houck, 68 S.D. 449, 4 N.W.2d 213; Blakey v. Boos, 83 S.D. 1, 153 N.W.2d 305.\\nPlaintiff is the lessee of a three-story brick building approximately 100 foot square with full basement located at 132 South Dakota Avenue, in Sioux Falls. It is in the southwest corner; of the block at the intersection of Dakota Avenue and Tenth; Street. Dakota Avenue is a hard surfaced north-south street and from Ninth to Tenth Street there is a slight slope to the south and towards the northeast corner of the intersection. Tenth Street is a paved east-west street and has a downward easterly slope of about 10 to 15 degrees past plaintiff's building. On the north side of the building there is a driveway off Dakota Avenue to an alley with a slope of about 30 degrees eastward. There are overhead doors on this side about 50 feet east of the sidewalk. Directly east of the overhead door is another door entrance with two steps from the alley level to the basement level. A down spout carrying water from the roof is located in this same area. There was evidence that some water had previously entered the basement in this vicinity.\\nThe lessor, D & G Investment Company, contracted with the defendant for a general remodeling of the building which included removal and replacement of the existing sidewalk adjacent to the west side of the building. The old sidewalk was in poor condition. The new sidewalk was to be narrower since the city requested a wider street. Under a part of the old sidewalk there were rooms with a ceiling height of about 10 feet which had been used as coal bins. During the process of work the city dumped sand into manholes in the sidewalk and filled the areas separated from the building to about five feet below sidewalk level. The existing sidewalk with curb on the west side was demolished and the debris dropped above the filled in sand. The area of construction was barricaded from the streets by a wooden framework and a raised walkway was built for pedestrian use. The demolished sidewalk area was not covered and nothing was done to serve as a substitute or replacement for the demolished curb.\\nPrior to remodeling, ground seepage in the coal bin area was controlled by two-inch drain tile leading into a sump hole in the coal bin from which the water as it accumulated was pumped into the city sewer. Before sand was hauled in, defendant removed the old floor and installed four-inch drain tile which led to a new sump hole relocated under the elevator shaft inside the basement. Defendant also closed the doorways and other openings into the basement with cement block, except he left an opening of about four to six inches as a sleeve for gas pipes. This opening was located approximately 6 1/2 feet above the basement floor. An employee of plaintiff also testified there were seam-like cracks in the concrete or mortar at the top of the same wall about ten feet above the basement floor and just below the old sidewalk. Such was the condition of the premises when defendant ceased working on Friday, September 9, 1966.\\nBetween 12:15 a. m. and 4:35 a.'m. on Sunday, September 11th, rainfall measuring 4.02 inches fell in Sioux Falls and water in a considerable amount gathered in the demolished area. Plaintiff contends defendant was negligent in failing to cover the old sidewalk and thus exposing it to the elements and in failing to barricade and protect the exposed area against rain and surface water. Consequently) it alleges water entered the open area and rose to a height where it got into the basement through openings in the west wall filling it to, a/depth of 12 to 13 inches and causing the damage for which it now seeks to recover. Defendant maintains it was not negligent, or that its negligence, if any, did not cause such damage, and as an affirmative defense alleged that the sole proximate cause of the damage was an act of God and such damage did not result from any negligence on his part. That plaintiff sustained substantial damage is not disputed.\\nNegligence and causation are basic to plaintiff's right to recover and the burden was upon plaintiff to prove each of them. Absence of either defeats recovery. Negligence has been defined as the failure to exercise ordinary care under the circumstances. Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153. The standard by which the conduct of the defendant must be tested is that of an ordinarily or reasonably prudent person acting under the same or similar circumstances. Whether negligence exists in a particular case must be determined by a consideration of all the facts and circumstances, Daniels v. Moser, 76 S.D. 47, 71 N.W.2d 739, and it is a fundamental rule that negligence to be actionable must be a proximate cause of the damage. Froke v. Watertown Gas Co., 68 S.D. 69, 298 N.W. 450. Questions of negligence and proximate cause are usually questions of fact to be decided by the jury and it is only when the facts are not in dispute or are such as to which reasonable men could not differ that they or either of them become a question of law to be decided by the court. DeBerg v. Kriens, 82 S.D. 502, 149 N.W.2d 410; Blakey v. Boos, supra.\\nDefendant plead and strongly relied upon the defense that the plaintiff's damage was caused solely by an act of God and did not result from any negligence on its part. In support of such position he called as a witness the meteorologist in charge of the Sioux Falls Weather Bureau Station. He testified to the amount of rainfall that fell during the interim mentioned supra and that at times the rainfall was so heavy that the recording gauge could not compute it and his figures were taken from the measuring gauge. It was a record rainfall for September since 1893 when records were first kept. The precipitation probability was 20% for Saturday night.\\nA pressman for the Sioux Falls Argus Leader testified that on Sunday morning between 2 a. m. and 3 a. m. he observed water rushing down Tenth Street to a width of about 8 to 10 feet out from the curb and about 12 inches over the curb and onto the sidewalk. He also said water entered the Argus Leader basement. The Argus Leader is located at the southeast corner of the intersection of Minnesota Avenue and Tenth Street which would be about one block west of plaintiff's building.\\nAn employee of the city engineer's office testified he made a survey of rain damage following the occurrence to enable persons who had endured damage to receive federal assistance. His investigation disclosed that basements of at least 16 houses in all parts of Sioux Falls had caved in; that one was right on top of the hill at Minnesota Avenue; that calls of water damage to the police and fire departments were so frequent and sporadic that they were not logged. On the other hand plaintiff produced evidence showing or tending to show that prior to the occurrence despite heavy rains either no water or only trifling amounts entered the basement.\\nAn act of God must be the sole proximate cause of damages without concurrent negligent participation of the defendant before the defendant is entitled to a verdict. The defendant has the burden of proving such alleged defense by a preponderance of the evidence. Cover v. Platte Valley Public Power & Irr. Dist., 162 Neb. 146, 75 N.W.2d 661, 167 Neb. 788, 95 N.W.2d 117, 173 Neb. 751, 115 N.W.2d 133; Wagaman v. Ryan, 258 Iowa 1352, 142 N.W.2d 413. See also National Weeklies, Inc. v. Jensen, 183 Minn. 150, 235 N.W. 905. In the latter case the court stated: \\\"If the damage done was solely the result of an act of God, the city was not liable. If the negligence of the city proximately contributing and an act of God combined to produce the result, the city is liable.\\\"\\nAn act of God has been defined as \\\"any accident, due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains, or care, reasonably to have been expected, could have been prevented\\\". 1 C.J.S. Act of God p. 1423. It excludes the idea of a human agency and where the cause considered \\\"is found to be in part the result of the participation of man, the whole occurrence is thereby humanized, and removed from the operation of the rules applicable to the acts of God\\\". Ibid, p. 1424. If several causes concur in a loss, including an act of God, a party is not relieved from liability, Mincey v. Dultmeier Mfg. Co., 223 Iowa 252, 272 N.W. 430, and to exonerate the defendant an act of God must be the sole proximate cause of the accident. Wagaman v. Ryan, supra; Cover v. Platte Valley Public Power Irr. Dist., supra.\\nDefendant is a general contractor and has been engaged in building commercial buildings since 1919 in the Sioux Falls area. The president of the company testified how the construction was done and a reasonable inference is that it was the customary method of doing the work and similar work had been performed in like manner on many occasions on the streets and sidewalks of that city. The defendant was not an insurer and the burden of proving negligence rested with the plaintiff. Ulrick v. Dakota Loan & Trust Co., 3 S.D. 44, 51 N.W. 1023. See also Rikansrud v. City of Canton, 79 S.D. 592, 116 N.W.2d 234. There was evidence and reasonable inferences therefrom that the streets were equipped with storm sewers and that under ordinary circumstances the drainage on the streets was such that the possibility of water gathering in the opened area to a level where it could enter the building was remote.\\nFurthermore, a reasonable inference is that the nature of the construction was such that perhaps the contractor could do little or nothing to prevent what occurred. It is common knowledge that excavations must remain open at times as a necessary incident to construction. If water enters an excavation sometimes the only recourse is to let it drain or pump it out as soon as possible. This appears to have been done in the instant case. In our opinion the evidence was such that the jury could find that the defendant was not negligent, or if negligent, an unexpected and unprecedented rainfall was the sole proximate cause of the damage.\\nIn stating the issues in its instructions the court said that defendant had alleged any damage to plaintiff's property was an act of God for which the defendant would not be liable. The court further instructed:\\n\\\"In order for a flood to come within the term 'act of God', it must have been so unusual and extraordinary a manifestation of nature as could not under normal conditions have been reasonably anticipated or expected. An act of God does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could probably have prevented its effect. It is enough that the flooding be so extraordinary that in the exercise of human foresight, it could not reasonably be anticipated.\\\"\\nThe above instruction was taken from certain language used in Cover v. Platte Valley Public Power & Irr. Dist., 162 Neb. 146, 75 N.W.2d 661, 668, and repeated in Baum v. County of Scotts Bluff, 172 Neb. 225, 109 N.W.2d 295, 302, but omitted from the instruction is the concluding phrase \\\"and whether it comes within this description is ordinarily a question of fact.\\\" The Cover case did not involve a building excavation and under the factual situation presented the court held the power and irrigation district was negligent as a matter of law in constructing and maintaining an inadequate floodwater drain under its canal.\\nPlaintiff excepted to the above instruction and claimed it was misleading and prejudicial in that it gave the impression the mere presence of an act of God is a defense and this is contrary to law. As we have stated, where an act of God and the negligence of a defendant concur and proximately cause damage, the defendant is liable as though his negligence alone had caused the damage, but if the act of God was the sole cause, or as it is often termed the sole proximate cause, of the damage, defendant is not liable.\\nImmediately following the above instruction the court instructed that ordinarily a person is not liable for damages caused by an unusual and excessive .rain; however, if they 'found the rain itself would not have run into the excavation in sufficient quantity to cause damage, except for the careless and negligent conduct of the defendant in leaving the same exposed to' the gathered inflow of water from the street and gutter, the defendant was liable. Plaintiff requested this instruction taken from language used in Ulrick v. Dakota Loan & Trust Co., supra. It requested no other instruction either on negligence or causation.\\nThe court generally instructed that the party asserting the affirmative of an issue has the burden of proving the issue by a preponderance of the evidence and for negligence to be the basis of an award of damages it must be a proximate cause of the injury. Proximate cause was defined as that cause which is an immediate cause and which in natural and probable sequence produced the damage, and without which it would not have been sustained. The court said it need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause at the same time, which in combination with it, causes the damage.\\nThis court has said many times that the instructions must be considered as a whole and when thus considered it is our opinion that they sufficiently and correctly state the applicable law. Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199; Jorgenson v. Dronebarger, 82 S.D. 213, 143 N.W.2d 869. We believe the jury was properly told that defendant had the burden to prove that plaintiff's damage was caused solely by an act of God. Also, if they found there was an act of God, but they found the defendant was negligent, and such negligence concurred with an act of God to cause the damage, the negligence of the defendant would be a proximate cause of the damage.\\nThe jury either found that the defendant was not negligent, or if negligent, that such negligence was not a proximate cause of the damage, or that the sole proximate cause of the water damage was an act of God. In our opinion any such finding was permissible under the evidence. Fact issues such as these are the prerogative of the jury and it must be a clear case before a trial judge is justified in taking these issues from a jury. Myers v. Quenzer, 79 S.D. 248, 110 N.W.2d 840; Raverty v. Goetz, 82 S.D. 192, 143 N.W.2d 859.\\nJudgment affirmed.\\nAll the Judges concur.\\n. The lessor was named as a defendant, but upon motion of plaintiff made at the commencement of trial, the action with respect to it was dismissed without prejudice.\"}"
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+"{\"id\": \"2385154\", \"name\": \"SWANSON, Respondent, v. BALL, et al, Appellants\", \"name_abbreviation\": \"Swanson v. Ball\", \"decision_date\": \"1940-03-05\", \"docket_number\": \"File No. 8314\", \"first_page\": \"161\", \"last_page\": \"164\", \"citations\": \"67 S.D. 161\", \"volume\": \"67\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:08:41.458412+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur.\", \"parties\": \"SWANSON, Respondent, v. BALL, et al, Appellants\", \"head_matter\": \"SWANSON, Respondent, v. BALL, et al, Appellants\\n(290 N. W. 482.)\\n(File No. 8314.\\nOpinion filed March 5, 1940.)\\nBailey, Voorhees, Woods & Bottum and J. B. Shultz, all of Sioux Falls, for Appellants.\\nJohn C. Mundt and Cherry & Braithwaite, all of Sioux Falls, for Respondent.\", \"word_count\": \"1262\", \"char_count\": \"7255\", \"text\": \"WARREN, J.\\nAn action was commenc\\u00e9d by the service of a summons and complaint by Augusta C. Swanson upon the above named defendants. Amiel W. Ball and Fred J. Ball demurred to plaintiff's complaint on the ground that At does not state facts sufficient to constitute a cause of action. The Western Surety Company, a corporation, defendant, demurred separately. It appealed from an order overruling the demurrer of the lower court and is here on appeal. See Swanson v. Ball, 67 S. D. 196, 291 N. W. 577.\\nThe complaint alleges that the defendants Amiel W. Ball and Fred J. Ball were licensed and bonded liquor dealers; that they knew the effects of alcohol and without a doctor's prescription sold and continued to sell liquor to the plaintiff's husband Anton H. Swanson in spite of protest, warnings and a certain written notice directed to the Paramount Bar in Sioux Falls, South Dakota, and these two defendant licensees and their agents and employees requesting that no intoxicating liquor be sold to the said Anton-Swanson. Due and legal service of the notice was admitted by Fred J. Ball, licensee, one of the operators of said Paramount Bar. The complaint charges that sales of liquor were unlawful, wilful and malicious and that the fact that the defendants continued to sell liquor to the plaintiff's husband resulted in his death; that by reason thereof plaintiff was required to furnish the husband money, nurse and care for him during frequent spells of illness, incurred hospital and doctor bills; that because of the loss of his aid, support, affection, society, companionship and consortium during the whole of said period she suffered financial loss by reason of money furnished him and great and grievous mental anguish, physical agony and shame.\\nThe trial court overruled the defendants' demurrer. This appeal is prosecuted from the ruling.\\nRespondent who had the laboring oar in the lower court in maintaining her cause of action has directed the court's attention to the fact that the conduct of the defendants was in violation of \\u00a7 31, Ch. 134, Laws of 1935 [SDC 5.0226(2)]. From a perusal of the statute in order to determine the sufficiency of the complaint attacked by the demurrer it would seem that the allegations of the complaint places it well within the requirements of the statute. We now enquire must there be, in order to recover, a statute or legislative act in the form of a civil remedy specifically covering the wrong which plaintiff has charged in the complaint and for which she now asks the defendants to respond in damages?\\nRespondent in support of her complaint cites Moberg v. Scott, 38 S. D. 422, 161 N. W. 998, L.R.A., N.S. 1917D, 732; Id., 42 S. D. 372, 175 N. W. 559, and calls the court's attention to the fact that the statutes of this state in force at the time of said decisions are still in force, each one of them having been reenacted by the legislature, and are now in full force and effect.\\nRespondent cites Art. 6, \\u00a7 20 of our constitution and the following 1919 Rev. Code sections, 55; .1959; 1960; 4; 93 and 178 as having been interpreted in the c\\u00e1se of Moberg v. Scott, supra, construing a complaint similar to the instant case with the exception that that case was one for the recovery of damages for furnishing opium, a habit forming drug, while this is one concerning furnishing of intoxicating liquor.\\nIn Holmstrom v. Wall et al., 64 S. D. 467, 268 N. W. 423, 424, this Court dealt with a wilful alienation of the affections' of the husband of another by a female and for wilful injury to the person, character, or property of the wife. It was argued in that case that the interference with the relationship was not an injury to the person or property to the wronged wife. Reference was made to Moberg v. Scott, supra, and the court said: \\\"In the Moberg-Scott Case this court very clearly and definitely held that since the enactment of the statute removing the disability of coverture, there exists a present day 'common-law right' in the wife to maintain an action for the loss of the husband's society, affection or consortium. This right exists independent of any statute.\\\"\\nIt would thus appear that this court 'has determined quite precisely the questions urged in the instant case. The decisions that we have just referred to we believe conclusively establish the law in this instant case to the effect that independent of any specific statute the wife has a cause of action against anyone wrongfully interfering with the marital relationship regardless of the agency or instrumentality employed to inflict the loss. Harrison v. Berkley, S. C., 1 Strob. 525, 47 Am. Dec. 578.\\nIn so holding we have very carefully considered appellants' contention that there is considerable difference between the case of Moberg v. Scott, supra, and the instant case in that, in the former it involved opium, a \\\"drug, and that there could be little question that harmful drugs such as opium constitute more serious danger to an individual than the use of intoxicating liquor. We are not impressed with the argument presented in which the appellant has attempted to differentiate between the opium drug in the case of Moberg v. Scott, supra, and the intoxicating liquor in the instant case. This court through its former decisions, which we have just referred to, has quite conclusively established that a complaint such as we are considering states a cause of action. The right of the wife to the consortium of the husband is one of her personal rights and we believe that the allegations of the complaint are sufficient in both statements, as to facts and form, to permit a trial upon its merits, in passing upon the sufficiency of the- complaint we do not believe it necessary in this case to at length consider Paulson v. Langness et al., 16 S. D. 471, 93 N. W. 655 and Kennedy v. Garrigan, 23 S. D. 265, 121 N. W. 783, 21 Ann. Cas. 392, as we do believe that the last paragraph of Moberg v. Scott, supra, 38 S. D. at page 431, 161 N. W. 998, L.R.A., 1917D, 732, is a sufficient answer to appellants' contention and we will not encumber the opinion by a further allusion or quoting from it.\\nAs we understand it there is no claim by respondent that this is an action for wrongful death and is therefore not brought under R. C. \\u00a7 2929 [SDC'37.2201], but as disclosed by the complaint it is an action for damages suffered by the respondent by the reason of the wrongful conduct of the defendant before the husband's death. There is no charge in the complaint which could possibly support' such a contention because a wrongful death action is based upon the wrong done to the deceased and that is not this case. Of course, the death of respondent's husband may be an element to be considered in determining the amount of damages; as to that we express no opinion in sustaining the court's ruling on the demurrer as to the appellants in this appeal.\\nThe order app\\u00e9aled from overruling the demurrer is affirmed.\\nAll the Judges concur.\"}"
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+"{\"id\": \"2387386\", \"name\": \"STATE ex rel. WOLLOCK, Respondent, v. BRIGHAM, Appellant\", \"name_abbreviation\": \"State ex rel. Wollock v. Brigham\", \"decision_date\": \"1948-07-02\", \"docket_number\": \"File No. 8969\", \"first_page\": \"278\", \"last_page\": \"280\", \"citations\": \"72 S.D. 278\", \"volume\": \"72\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T22:19:20.519563+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur.\", \"parties\": \"STATE ex rel. WOLLOCK, Respondent, v. BRIGHAM, Appellant\", \"head_matter\": \"STATE ex rel. WOLLOCK, Respondent, v. BRIGHAM, Appellant\\n(33 N. W.2d 285.)\\n(File No. 8969.\\nOpinion filed July 2, 1948.)\\nJohn Carl Mundt and T. R. Johnson, both of Sioux Palls, for Appellant.\\nH. C. Mundt, of Sioux Palls, for Respondent.\", \"word_count\": \"661\", \"char_count\": \"3809\", \"text\": \"HAYES, J.\\nMaxine Wollock, married to Lee Wollock in June 1944, and still his wife, brought suit against the defendant seeking to have him declared to be the father of a child born to her in March 1947, and seeking also a judgment compelling the defendant to support said child.\\nUpon application therefor by Mrs. Wollock the trial court, over defendant's objections, entered an order requiring defendant to submit to a blood test. From such order leave was granted to defendant to appeal. His assignment of error challenges the propriety of the order of the trial court upon the ground that the same compels him to give evidence which may tend to incriminate him and violates the code provisions hereinafter referred to.\\nThe motion of respondent upon which the trial court entered the order we now review simply moves the court for an order requiring appellant \\\"to submit to a blood test to determine whether or not the defendant, James Brigham, is the father The affidavit in support of said motion states in substance the issue of paternity as presented by the pleadings and the willingness of the plaintiff and her child to submit to blood tests and demands that the defendant submit to a test \\\"to determine the paternity of said child\\\". The affidavit then nominates a physician to conduct the tests and refers to SDC 36.0602. It is readily observed that plaintiff's application was predicated upon the erroneous assumption that paternity may be established by blood tests.\\nIn State v. Damm, 64 S. D. 309, 266 N. W. 667, this court recognized blood tests as admissible in proceedings in which paternity is at issue and held that the trial court has inherent power and authority, in the exercise of its reviewable discretion, to order the taking of blood for purposes of making tests if the results, in the court's opinion, are likely to be helpful in ascertaining the truth. The court did not then have before it an application such as is in the instant case presented. The source of SDC 36.0602 is given as Supreme Court Rule 540 of 1939 and includes the recitation and Federal Rule 35(a), are amplified for blood tests in accordance with State v. Damm, supra. Passing the question whether the section last numbered is in conflict with SDC 37.2116 we turn to the showing before the court upon which the order appealed from was entered. The general statute first referred to authorizes the court \\\"on motion for good cause shown\\\" to order a party to be examined.\\nThe paternity of the child cannot be determined by testing and classifying blood from the defendant and comparing the same with like tests of blood of respondent and the child. Such tests may in some instances prove non-paternity. They never establish paternity. Numerous cases involving the question are collected in 163 A. L. R. 939, and the annotations superseded thereby. See also 10 C. J. S, Bastards, \\u00a7 82 and 1948 cumulative annual\\\" pocket part. In Smith v. Smith, 71 S. D. 305, 24 N. W.2d 8, this court held that the results of blood tests not tending to exclude either the husband or another man under suspicion were not helpful. No case is cited in support of an order based upon an application such as respondent's and we believe that there is none. No possible benefit could result to her should blood grouping tests be made such as were sought by respondent. We believe, therefore, that the showing in support of the order appealed from was insufficient to establish good cause within the meaning of SDC 36.0602 and that the same should be set aside. It is so ordered.\\nAll the Judges concur.\"}"
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diff --git a/sd/2391170.json b/sd/2391170.json
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+"{\"id\": \"2391170\", \"name\": \"COSTAIN, et al, Respondents, v. TURNER COUNTY, Appellant\", \"name_abbreviation\": \"Costain v. Turner County\", \"decision_date\": \"1949-02-28\", \"docket_number\": \"File No. 8973\", \"first_page\": \"427\", \"last_page\": \"431\", \"citations\": \"72 S.D. 427\", \"volume\": \"72\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T22:19:20.519563+00:00\", \"provenance\": \"CAP\", \"judges\": \"SMITH, P. J., and ROBERTS and HAYES, JJ concur.\", \"parties\": \"COSTAIN, et al, Respondents, v. TURNER COUNTY, Appellant\", \"head_matter\": \"COSTAIN, et al, Respondents, v. TURNER COUNTY, Appellant\\n(36 N. W.2d 382.)\\n(File No. 8973.\\nOpinion filed February 28, 1949.)\\nDanforth & Danforth, of Sioux Falls, and Andrew S. Bogue, of Parker, for Appellant.\\nRoyhl & Benson, of Huron, for Respondents.\", \"word_count\": \"1401\", \"char_count\": \"8097\", \"text\": \"SICKEL, J.\\nThis action involves the opening and construction of a mile of section line highway. Petition therefor was signed by freeholders of the county and filed in the office of the county auditor. Notice of hearing was given, and the petition was heard on March 6, 1946. Thereafter the board of county commissioners ordered that the highway be opened. The Costain family named in the title hereto, as owners of nearly all the land affected, appealed from the decision of the board to the circuit court. The circuit court affirmed the right of the county to construct the highway and entered judgment for the owners against the county for the sum of $1,500 as damages. From this judgment the county has appealed. The only issue presented on this appeal is whether the county is liable in damages for opening the highway.\\nThe judgment of the circuit court is based upon a finding of fact to the effect that \\\"Turner county, South Dakota, by contract with Hannah S. Costain in the year 1898 abandoned the statutory section line highways which had never been laid out as highways .\\\" The-court arrived at the amount of damages by allowing the value of seven acres taken, less two acres previously granted for highway purposes and reverted, $250; cost of fencing, $600, issue presented on this appeal is whether the county is and damages to the farm as a unit, $650, total $1,500. The question of damages therefore depends upon whether there was an abandonment of the county line highway easement, as found by the circuit court.\\nIn the year 1866 Congress declared that: \\\"The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.\\\" \\u00a7 8, Ch. 262, 14 Stat. 253, 43 U. S. C. A. \\u00a7 932. The legislature of Dakota Territory enacted Ch. 33 S. L. 1870-1871 stating: \\\"That hereafter all section lines in this Territory shall be and are hereby declared public highways as far as practicable: .\\\" The law in effect at the time provided that public highways along section lines \\\"shall be sixty-six feet wide and shall be taken equally from each side of the section line\\\" unless changed as provided by law. \\u00a7 27, Ch 13, S. L. 1867-1868 as amended by Ch. 14, S. L. 1874-1875; SDC 28.0105. The federal statute made the dedication, the territorial statute accepted it, and at the same time designated the location of highways. When the Costains acquired the land by patent from the United States an area two rods wide on each side of the section line was burdened with an easement in favor of the public for highway purposes. Lawrence v. Ewert, 21 S. D. 580, 114 N. W. 709; Gustafson v. Gem Twp., 58 S. D. 308, 235 N. W. 712.\\nAt the trial the owners attempted to prove a contract of abandonment. Herbert R. Costain, one of the parties, testified that he heard a conversation at the farm in the year 1898 between Hannah Costain, his mother, and I. H. Newby, a county commissioner of Turner county. According to this testimony Newby told Mrs. Costain that the county desired a right of way for a permanent highway over her land, located east of the section line and running north and south along the bank of the Vermillion River; also another strip running diagonally across the northeast quarter of section 23 lying west of the section line. The witness testified that the owner of the land agreed to give the deed in consideration of a permanent waterway for livestock, and Newby said the county would put in a stock pass and build a bridge; that pursuant to this agreement Mrs. Costain conveyed the right of way to the county. There are two section lines involved in this proceeding, both running through the Costain land and the intersection is near the middle of the farm. It is the east-west section line which the county proposes to open for travel by this proceeding, for a distance of a half mile from the intersection in each direction. The north and south section line is crossed by the Vermillion River three times within the area of the Costain farm and the interest of the county in purchasing the right of way over privately owned land was the result of a desire to avoid the expense of constructing highway and bridges on the section line.\\nThe argument in respondent's brief is to the effect that Newby was authorized to abandon the section line easement herein involved by resolution of the board of county commissioners dated April 30, 1898. That resolution authorized the chairman \\\"to have the proposed public highway on section 13, Township 99, Range 53, surveyed and procure deed for right-of-way.\\\" It evidently related to the transaction which culminated in the conveyance of August 25, 1898, by which the county acquired the right of way over the Costain land, the one previously referred to herein. Nothing in the resolution even remotely connects it with the public easement on the east and west section line. We, therefore, conclude that no agreement for the abandonment of the highway easement involved in this action was ever' authorized, made or ratified by or on behalf of the county. Whether such agreement would have been valid if made need not be decided. Furthermore, the abandonment of a section line right of way is not established solely by evidence that it has never been opened, improved nor traveled. Pederson v. Canton Township, 72 S. D. -, 34 N. W.2d 172. The easement was never lost and, therefore, the county had the right to build the highway without compensation to the owners of the land.\\nThe judgment for damages is reversed.\\nSMITH, P. J., and ROBERTS and HAYES, JJ concur.\\nRUDOLPH, J., dissents.\"}"
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diff --git a/sd/2394457.json b/sd/2394457.json
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+"{\"id\": \"2394457\", \"name\": \"STATE, Respondent v. WALKING BULL, Appellant\", \"name_abbreviation\": \"State v. Walking Bull\", \"decision_date\": \"1971-09-23\", \"docket_number\": \"File No. 10810\", \"first_page\": \"6\", \"last_page\": \"9\", \"citations\": \"86 S.D. 6\", \"volume\": \"86\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:09:16.530505+00:00\", \"provenance\": \"CAP\", \"judges\": \"BIEGELMEIER, P. J., and HANSON, J., concur.\", \"parties\": \"STATE, Respondent v. WALKING BULL, Appellant\", \"head_matter\": \"STATE, Respondent v. WALKING BULL, Appellant\\n(190 N.W.2nd 121)\\n(File No. 10810.\\nOpinion filed September 23, 1971)\\nGordon Mydland, Atty. Gen., C. J. Kelly, Asst. Atty. Gen.* Pierre, for plaintiff and respondent.\\nWilliam J. Pfeiffer, Aberdeen, for defendant and appellant.\", \"word_count\": \"581\", \"char_count\": \"3499\", \"text\": \"MANSON, Circuit Judge.\\nDefendant was tried to a Brown County jury and found guilty of assault with intent to commit great bodily injury and of first degree robbery. He appeals his conviction.\\nWe consider his several assignments of error.\\nDefendant moved before trial for an order enjoining the state from cross-examining defendant concerning his five prior felony convictions, suggesting that his rights under the Fifth and Sixth Amendments to the Constitution of the United States would otherwise be abridged or denied. Denial of this motion is assigned as error by defendant who, at trial, himself placed these convictions unreservedly and squarely before the jury in his own testimony.\\nThe propriety and utility of a motion in limine is obvious, as was recognized in Fossum v. Zurn, 78 S.D. 260, 100 N.W.2d 805. Its denial in the case before us is free from error in the light of State v. Olson, 83 S.D. 260, 158 N.W.2d 526, where we held that a defendant who took the stand could be questioned, inter alia, as to conviction of felony.\\nDefendant next seeks to premise error upon the proposition that the trial court abused its discretion in declining to permit cross-examination of the complaining witness as to his general moral worth. At best, this was a collateral issue and our consideration is governed by State v. Alfson, 50 S.D. 533, 210 N.W. 721, and State v. Ruffing, 78 S.D. 556, 105 N.W.2d 541. No error.\\nThe third assignment of error suggests that the trial court erred in refusing to grant a motion for directed verdict, based upon a claimed insufficiency of the evidence. The \\\"insufficiency\\\" alleged is found in brief and argument to be nothing more than an attack upon the credibility of the state's evidence. The evidence submitted by the state, clearly within the bounds of credulity, was sufficient in point of law, if believed by the jury, to convict the defendant. The defendant, who made no objection to Instruction No. 23 which advised the jury that they were the \\\"exclusive judges of the credibility of the witnesses, (and) of the weight of the evidence\\\", is bound by this principle, as are the courts. State v. Julius, 1912, 29 S.D. 638, 137 N.W. 590. No error.\\nThe remaining assignments merit only brief discussion and comment. The learned trial court did not abuse the discretion delineated in Ruffing and Alfson, supra, in refusing to permit inquiry of a lay witness as to the possible \\\"senility\\\" of the complaining witness and in denying a motion made later in the trial for a mental examination of the latter. No error.\\nThe remaining assignment suggests that the trial court erred in refusing to sanction a courtroom salon of defendant's paintings for the jury to consider on the issue of \\\"probable guilt\\\". This contention hardly merits discursive consideration. We observe only that we have not been favored with apposite authority by defendant and that the implementation of such a proposal would hardly lend itself to that objective consideration of relevant proof which is enjoined by our system of law. No error.\\nWe affirm the lower court on all counts.\\nBIEGELMEIER, P. J., and HANSON, J., concur.\\nWINANS, J., concurs in result.\\nMANSON, Circuit Judge, sitting for WOLLMAN, J., disqualified.\"}"
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diff --git a/sd/2395722.json b/sd/2395722.json
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+"{\"id\": \"2395722\", \"name\": \"CROWE, Appellant v. STATE, Respondent\", \"name_abbreviation\": \"Crowe v. State\", \"decision_date\": \"1972-02-01\", \"docket_number\": \"File No. 10871\", \"first_page\": \"264\", \"last_page\": \"286\", \"citations\": \"86 S.D. 264\", \"volume\": \"86\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:09:16.530505+00:00\", \"provenance\": \"CAP\", \"judges\": \"HANSON, P. J., and BIEGELMEIER and WINANS, JJ\\u201e concur.\", \"parties\": \"CROWE, Appellant v. STATE, Respondent\", \"head_matter\": \"CROWE, Appellant v. STATE, Respondent\\n(194 N.W.2d 234)\\n(File No. 10871.\\nOpinion filed February 1, 1972)\\nWilliam J. Janklow, Francis C. Lynch, Jr., Rosebud, for petitioner and appellant.\\nGordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, Larry F. Hosmer, State's Atty., Yankton, for respondent.\", \"word_count\": \"6087\", \"char_count\": \"36607\", \"text\": \"WOLLMAN, Judge.\\nThis is an appeal by petitioner from a judgment denying his petition for post-conviction relief under the provisions of SDCL 23-52.\\nPetitioner was charged with the crime of first degree rape in Yankton County, South Dakota, on June 22, 1966. He was arrested on June 23, 1966, appeared the following day in municipal court in Yankton and was committed to jail upon his failure to post bond.\\nPetitioner appeared before Circuit Judge C. C. Puckett on June 27, 1966, at which time attorney Louis French of Yankton was appointed to represent petitioner.\\nOn July 12, 1966, petitioner waived preliminary hearing in municipal court and was bound over to circuit court for trial.\\nOn July 16, 1966, petitioner was arraigned before Judge Puckett and entered a plea of guilty to the first degree rape charge. The state's attorney and defense counsel waived presentence investigation and report. The state's attorney introduced petitioner's FBI \\\"rap\\\" sheet and a picture of the victim of the crime. Petitioner was then sentenced to a term of 40 years in the South Dakota State Penitentiary. Additional facts will be discussed in connection with the several questions raised by petitioner.\\nPetitioner contends that because he was not informed of the consequences of his plea his guilty plea was involuntary and unintelligent and thus was obtained in violation of his constitutional rights.\\nThe transcript of the arraignment of July 16, 1966 indicates that Judge Puckett advised petitioner that he had a right to a jury trial, that he had the right to be free on bond until the next term of court, that he had the right to be confronted by the witnesses against him and that he had the right to have witnesses called on his behalf at state expense. Petitioner was not advised by the court of his constitutional privilege against compulsory self-incrimination nor was he advised by the court of the minimum and maximum penalties for the crime of first degree rape.\\nIt was settled in Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 that in order to uphold a guilty plea the record must clearly show that the defendant knowingly and voluntarily waived his constitutional right of the privilege against compulsory self-incrimination, the right to trial by jury and the right to confront his accusers. In effect, Boykin held that Rule 11 of the Federal Rules of Criminal Procedure is applicable to the states as a matter of federal constitutional due process and that the record must show that the defendant had an understanding of the nature and consequences of his plea before a guilty plea can be sustained.\\nThis court has held that Boykin should be given prospective application and that it is applicable only to guilty pleas entered after June 2, 1969. Nachtigall v. Erickson, 85 S.D. 122, 178 N.W.2d 198; Langdeau v. State, 85 S.D. 189, 179 N.W.2d 121. We must, then, review the facts in the light of the totality of the circumstances rule applicable to pre-Boykin cases. This court has held that where a defendant appears with counsel and pleads guilty to a criminal charge it is presumed that he has been informed of his constitutional rights by his counsel and it is not necessary for the court to advise him of such rights before accepting a guilty plea. See Application of Dutro, 83 S.D. 168, 156 N.W.2d 771; Nachtigall v. Erickson, supra; State v. Brech, 84 S.D. 177, 169 N.W.2d 242.\\nThe record of the arraignment reveals the following exchange between the court and petitioner:\\n\\\"Q. You were before the court a couple of weeks ago for the appointment of an attorney since you have been arrested on a charge of Rape in the First Degree. I appointed Mr. French as your attorney. I presume Mr. French has advised you of your rights to a trial by jury, if you wish, You understand that?\\n\\\"A. Yes sir.\\n\\\"Q. You're entitled to be out on bond until the next term of court in this county which will be in September, you're entitled to be faced by the witnesses against you, if you wish them. You are entitled to have any of your own witnesses for you, all this at the State's expense. You understand. Mr. French has explained this to you I take it. You know what you are doing this morning.\\n\\\"A. Yes.\\n\\\"Q. This is of your own free will?\\n\\\"A. Yes sir.\\\"\\nAfter the information was read in open court by the state's attorney, the defense attorney stated that he and petitioner were ready to enter a plea, whereupon petitioner pleaded guilty to the charge of first degree rape set forth in the information.\\nPetitioner is an American Indian who was 49 years old at the time of his arrest in 1966. He is able to read and write the English language. His formal education ended during the 8th grade of public school. His Federal Bureau of Investigation identification record, which will be discussed in greater detail later, reveals that petitioner's first contact with the judicial process occurred in the fall of 1937 when he received a ten-year federal penitentiary sentence on a charge of rape on an Indian reservation. Thereafter, petitioner was at various times charged with grand larceny, breaking jail, fourth degree burglary and escape from jail. He also has a record of numeorus charges of public intoxication. Thus it is fair to say that when petitioner appeared in circuit court on July 16, 1966, he was not totally unfamiliar with the processes of the criminal law.\\nPetitioner testified at the post-conviction hearing that Mr. French told him during their second conference how serious the crime was that petitioner was charged with. Mr. French, who died prior to the evidentiary hearing on the post-conviction petition, was an experienced attorney in Yankton, South Dakota. He had served as Yankton County State's Attorney for four years and had represented numerous defendants in criminal trials in his capacity as a private attorney. Judge Puckett testified at the post-conviction hearing that:\\n\\\"Well, I was advised of the charge, the serious charge which had been filed against Percy Crowe and I felt that I wanted him to be represented by competent counsel and Mr. French was the man; he was an experienced lawyer, had been State's Attorney for four years, and had also defended many other criminals when he was not State's Attorney, so I appointed Mr. French because I Wanted Mr. Crowe to have competent counsel.\\\"\\nIn view of the fact that petitioner had had considerable experience with courts and criminal procedures prior to the offense in question, including a prior conviction on a charge of rape which resulted in a ten-year penitentiary sentence, and in view of the fact that he was represented by competent, experienced counsel who, by petitioner's own testimony, had informed him how serious the charge against him was, we cannot say that the circumstances attendant upon petitioner's guilty plea were such as to render petitioner's plea unintelligent and involuntary. Notwithstanding the inexplicable failure of the trial court to advise petitioner of the minimum and maximum penalties for the charge against him and of his privilege against self-incrimination, we do not believe that petitioner has carried his burden of proof of showing that his guilty plea was involuntary and that his constitutional rights were violated. Nachtigall v. Erickson, supra; State v. Brech, supra; McMann v. Richardson, 1970, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Parker v. North Carolina, 1970, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785; Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747.\\nPetitioner contends that he was deprived of his constitutional right to the effective assistance of counsel because his court-appointed counsel failed to provide more than mere perfunctory and casual representation.\\nThis court has held that;\\n\\\"The constitutional guaranty of the right to defend assisted by counsel means adequate and effective assistance and the trial court has the duty to appoint competent counsel to represent and advise an indigent accused. A mere perfunctory and casual representation does not satisfy the constitutional guaranty.\\n\\\"The right of an accused to the services of legal counsel envisages that his attorney will investigate and consider possible defenses and, if none, other procedures, and exercise his good faith judgment thereon. It does not contemplate that an accused may take charge of the case after an attorney has been appointed, or dictate its course, or make counsel's educated judgment the pawn of an unreasonable and obdurate malefactor.\\\" State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715.\\nPetitioner alleges that he was denied the effective assistance of counsel in four different respects. First, he alleges that the time period between counsel's entry in the case and petitioner's plea, did not offer adequate ' opportunity for investigation and that the limited opportunity presented was not grasped. Petitioner's attorney was appointed by Judge Puckett on June 27, 1966, and, according to petitioner, did not visit petitioner until three or four days after the appointment. Petitioner argues that the time period between Mr. French's initial visit and the date of the plea provided an opportunity for only a very limited investigation and preparation of a defense.\\nIt should be noted that this case does not involve a situation where counsel was appointed within a relatively short time before the date of trial. Even in such cases, late appointment does not necessarily compel a finding that a defendant was denied the effective assistance of counsel. See State v. Watkins, 85 S.D. 573, 187 N.W.2d 265; Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. The next term of circuit court in Yankton County following defendant's arrest was scheduled for September 1966. Petitioner and his counsel were thus under no compulsion to make a hasty decision regarding arraignment and plea. The arrangement for the arraignment and plea was initiated by petitioner's experienced counsel and was not the product of an imminent trial date.\\nPetitioner testified that when Mr. French first visted him he asked petitioner if he was the man \\\"that raped this lady\\\" and inquired of petitioner; \\\" how old I was, how much \\u2014 how far I went in school; what I did for a living; just \\u2014 I don't remember.\\\" Mr. French also told petitioner that \\\" \\u00a5 he was going to go see this lady.\\\" Petitioner testified that this first visit with Mr. French lasted about one-half hour.\\nMr. French returned to the jail three or four days after the first visit and had another conference with petitioner during which, according to petitioner:\\n\\\"He came in and said I was guilty as hell, that I didn't have a chance; there was no way out for me. And he told me how serious the crime was. He said I didn't have a chance.\\n\\\"Q What do you mean he told you how serious the crime was?\\n\\\"A He said the crime was serious and that I didn't have a chance.\\n\\\"Q All right. Did you discuss anything else?\\n\\\"A I don't remember.\\\"\\nThe fact that counsel told petitioner that he was going to visit the victim of the crime and that upon his return three or four days later he made the statements to petitioner set forth above supports the conclusion that Mr. French did investigate the circumstances of the crime and did talk to the victim and that there was a factual basis for his advising petitioner that the crime indeed was very serious and that petitioner was guilty of the offense charged against him. We will not assume that an experienced, competent attorney would advise a defendant to plead guilty to a charge as serious as first degree rape without first satisfying himself by personal investigation that the defendant was in fact guilty and that there was no realistic way to avoid a conviction at the hands of a jury.\\nWe believe it appropriate to observe that there comes a time when it is defense counsel's duty to advise a defendant that in the light of the facts and circumstances surrounding the offense his plight is serious indeed and that there appears to be no escape from the harsh truth that he is in fact guilty of the offense charged. It would be ineffective assistance indeed for an attorney, either out of inexperience or out of a desire to commiserate with his client, to lull a defendant into believing that the case against him is less serious than it actually is or that the evidence of his guilt is slight when in fact it is overwhelming and irrefutable.\\nPetitioner contends that his attorney did not adequately consider possible defenses since he failed to ask for a preliminary hearing and, contrary to the express desires of petitioner, failed to arrange for a psychiatric examination.\\nWe agree that a preliminary hearing can be of critical importance to the preparation of criminal defenses. It provides an opportunity to explore, among other things, the exact circumstances surrounding the identification of the defendant, the complete background of the witnesses and the complete account of the alleged crime. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387. Petitioner alleges that it is impossible to imagine a tactical basis for the decision to waive a preliminary hearing. We do not agree with this contention. There could be a number of valid reasons why experienced defense counsel might wish to waive a preliminary hearing. Experienced defense attorneys and prosecutors know that when the state's witnesses are clear and convincing in their testimony the state's hand can be strengthened by the dress rehearsal for trial that is afforded by a preliminary hearing. In rape cases a victim's resolve may well be strengthened once she has gone through the ordeal of cross-examination at the preliminary hearing. A properly conducted preliminary hearing can preserve testimony for trial. Counsel's failure to recite the reasons for waiver upon the pages of the record thus does not compel, nor even support, a finding that counsel did not render effective assistance.\\nPetitioner testified that just prior to the time that he and Mr. French went up to circuit court \\\" I asked him if I could take one of them medical examinations and he said we was too late, didn't have time, to just go ahead and come on up here.\\\" This, argues petitioner, buttresses his claim that he was denied the effective assistance of counsel. It is true that petitioner has a long history of arrests for public intoxication. In his statement to the court following petitioner's plea, Mr. French said that petitioner's prior trouble with the law was the result of drinking and that for several days prior to the incident on June 22, 1966, petitioner had been drinking heavily. In his own statement to the court, petitioner said \\\"Well, what Mr. French said. All my trouble has been drinking. When I have work, I never get into trouble. When I am out of work, I get to drinking and get into trouble.\\\"\\nAlthough petitioner's encounters with the law have apparently resulted from his inability to control his drinking, this is not to say that his voluntary intoxication at or before the time of the offense in question was a defense to the crime charged or was a condition that made it mandatory upon defense counsel to arrange for a psychiatric examination. No claim is made that petitioner was not mentally competent to understand the nature of the charges against him or to assist in the preparation of his defense, nor is it claimed that the defense of mental illness would have been available to him.\\nWe are mindful of the fact that in his statement to the court following the plea the state's attorney characterized petitioner as having violent propensities and as being a man who was nothing more than an animal in attacking a middle-aged lady in the manner that he did. While we do not have a full factual background of the details of the offense, the record does indicate the victim was hospitalized as a result of the attack upon her. This is not to say, however, that every defendant who commits a violent, vicious crime is perforce mentally ill and that his counsel must necessarily ask for a psychiatric examination. Although some attorneys request a psychiatric examination if the defendant in any way suggests that he desires such an examination, we are not prepared to say on the basis of this record that we must fashion a per se rule requiring reversal of a conviction obtained by a guilty plea in every case in which the defendant later asserts that he wanted a medical examination and that his defense attorney did not accede to his request.\\nOn the basis of the record before us, we will not substitute our theoretical judgment for that of an experienced defense attorney who had the opportunity of dealing with petitioner in an attorney-client relationship. Thus we affirm the trial court's finding (albeit denominated a conclusion) that petitioner was not arbitrarily denied a psychiatric examination and that he was not prejudiced in any way in this respect.\\nPetitioner contends that his counsel was ineffective in that he failed to explore procedures other than defense at trial, principally plea bargaining. Petitioner argues that this court obviously was referring to plea bargaining in that portion of the opinion in State ex rel. Bums v. Erickson, supra, which refers to defense counsel's duty of investigating and considering other procedures if there are no possible defenses available. While the general subject of plea bargaining has been much discussed recently and has received judicial sanction, North Carolina v. Alford, 1970, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, we believe that no further discussion of this point is necessary inasmuch as it appears from the record that Mr. French did explore the possibilities of plea bargaining with the state's attorney. We quote the following from the former state's attorney's direct testimony at the post-conviction hearing:\\n\\\"Q as a State's Attorney did you ever engage during your term in that office in what we call 'plea bargaining' or 'plea agreement'?\\n\\\"A Frequently.\\n\\\"Q Did you do that in this case ?\\n\\\"A No, sir.\\n\\\"Q May I assume you had no discussion with defense counsel about a plea agreement or any kind of plea bargaining?\\n\\\"A I had one phone call from Mr. French to arrange for the day of plea, and at this time Mr. French requested what I would do and I told Mr. French that there would be no bargaining as far as I was concerned and I was ready to try the case for whatever way it went.\\n\\\"Q Is it correct then that you offered no deals to Mr. French or to Mr. Crowe?\\n\\\"A Absolutely not. In fact I was rather disappointed that I didn't get to try it.''\\nThe record reveals that the state's attorney had known the victim for many years, that he was quite embittered by the vicious attack upon her and that he was prepared to stand his ground and prosecute the case against petitioner to its ultimate disposition.\\nPetitioner dismisses the state's attorney's adamant refusal to bargain with the argument that surely effective counsel would have continued to pursue the matter and would have postponed final disposition until tempers had subsided.\\nThe duty imposed upon defense counsel to investigate and consider other procedures if no defenses are available carries with it the duty of counsel to exercise his good faith judgment. State ex rel. Bums v. Erickson, supra. Every experienced defense attorney knows that there are cases in which it is futile to pursue the matter of plea bargaining once the prosecuting attorney has made it clear that there will be no plea bargaining. Defense counsel can bargain only when the state is willing to bargain, and when the door has been closed by the state there is little to be gained by importuning the prosecuting attorney to bargain when defense attorney has nothing to bargain with. We can safely assume that defense counsel knew the state's attorney well and that when the state's attorney told him that there would be no plea bargaining Mr. French exercised his good faith judgment and took him at his word. Petitioner's attack on his counsel's performance in this respect finds no support in the record.\\nPetitioner alleges that his counsel rendered ineffective assistance because of his failure to object to the admission of improper, erroneous and severely prejudicial material during the sentencing stage of the proceedings.\\nAfter petitioner had entered his guilty plea, the state's attorney was given an opportunity to make a statement, at which time he informed the court that he had received a copy of petitioner's prior criminal record from the Federal Bureau of Investigation. He also stated that he wished to show the court a picture of the victim taken while she was in the hospital following the attack upon her. The court told the state's attorney to \\\"Show them to the defendant and his counsel\\\", and then asked defense counsel if he had objection to the court looking at the photograph, to which Mr. French replied \\\"No, your Honor.\\\" The court then examined the photograph of the victim of the crime and the copy of the criminal record received from the Federal Bureau of Investigation. Neither of these documents was introduced into evidence at the time of the sentencing, although the FBI record was made a part of the file at the post-conviction hearing.\\nPetitioner claims that there was no statutory authority for the presentation of the FBI report and the photograph to the trial court and that counsel's failure to object to the receipt of these items denied petitioner the effective assistance at the sentencing stage of the proceedings. We believe that petitioner through his counsel validly waived any objections he may have had to the FBI report and the photograph. We can assume that Mr. French was fully familiar with the provisions of SDCL 23-48- 16 and 23-48-19. Assuming that defense counsel could have insisted that the state be required to compel the attendance of the victim and her attending physicians as a prerequisite to the introduction of any testimony or evidence concerning the injuries that the victim received in the attack, we believe that counsel's decision to waive the requirements of the statutes can well be explained as the exercise of good faith judgment based upon his experience in prosecuting and defending other criminal cases. It is hard to conceive of any advantage that petitioner would have gained had the victim and her physicians been brought into court to testify as to the injuries inflicted upon her. Indeed, petitioner may well have stood in a worse light in the eyes of the court had such testimony been introduced.\\nWhile it is a matter of serious concern that petitioner's counsel did not familiarize himself completely with the details of petitioner's criminal record, we do not believe that his failure to do so warrants a reversal of petitioner's conviction. Counsel's statement to the court on behalf of his client indicates that he was generally familiar with petitioner's family, educational, occupational and social background.\\nWe believe that the trial court's finding that defendant received the effective assistance of counsel is supported by competent evidence in the record and is not clearly erroneous. We note that Judge Hertz set forth in his conclusions that he personally knew Louis French very well and that Mr. French was an intelligent, capable, experienced and conscientious practitioner of the legal profession who was familiar with the procedures involved in both the prosecution and defense of criminal cases. This observa tion is supported by the testimony of Judge Puckett referred to above. We know of no rule of law that requires judges to attempt to be oblivious of that which they know perfectly well to be a fact.\\nIt is the duty of courts to insure that every defendant's constitutional rights are protected. There should be no hesitation in reversing a conviction if the record reveals that a defendant was not afforded the effective assistance of counsel no matter how competent, experienced and talented counsel may have been in other cases and no matter what his reputation in the community and in the Bar. The death of the attorney prior to post-conviction proceedings should not operate to prevent the vindication of a defendant's constitutional rights. On the other hand, it is not unreasonable that the claims of a defendant should be scrutinized with care when his attorney is no longer available to detail the steps he took to investigate the case and prepare the defense and to explain his reasons for making certain tactical decisions.\\nIn summary, then, we conclude that petitioner has failed to carry his burden of proof in demonstrating that he was denied the effective assistance of counsel. Nachtigall v. Erickson, supra; State v. Brech, supra; McMann v. Richardson, supra.\\nPetitioner contends that his sentence should not be permitted to stand because prejudicial material was admitted into evidence after the plea of guilty and prior to sentence in contravention of SDCL 23-48-16 and 23-48-19.\\nAs has been outlined above, after the guilty plea was received the state was permitted without objection to introduce evidence of petitioner's prior criminal record and of the victim's physical condition following the attack upon her.\\nBecause we believe that petitioner and his attorney validly waived any objection they might have had to the receipt of the FBI report and photograph of the victim, we find it unnecessary to consider whether SDCL 23-48-16 and 23-48-19 act as an absolute prohibition to the receipt of information by the court other than as specified in SDCL 23-48-16 to 23-48-18. We do note that the Oklahoma Court of Criminal Appeals has held that the provisions of Oklahoma statutes similar to the South Dakota statutes in question require a request by the parties that evidence be received in accordance with the statutes and make it discretionary with the trial court to pursue some other reasonable method of acquiring the necessary information for the pronouncement of judgment and sentence. See also the discussion in State v. Brech, supra, of Williams v. New York, 1949, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337.\\nFinally, petitioner contends that his sentence may not stand because the trial court referred to and relied on materially inaccurate information and assumptions concerning petitioner's criminal record in imposing sentence upon petitioner.\\nAfter petitioner entered his plea of guilty, the court asked the state's attorney whether he wished to make any statement, to which the state's attorney replied:\\n\\\"Yes, if it please the court. The State has received from the United States Department of Justice, Federal Bureau of Investigation, a record of this defendant which shows that over the past years, since 9-3-1937, the defendant initiated his life of crime with rape. He thereupon in several instances, either committed rape or attempted rape. He has had a record over the years, up to and including this point, of violence, escape from jail, burglary, intoxication and a whole range of vile crimes. \\\"\\nAfter defense counsel made a statement, and following a short colloquy between petitioner and the court, the court pronounced sentence as follows:\\n\\\"I'm going to give you a pretty stiff sentence, Mr. Crowe. I'm doing this because apparently you're a dangerous man and you don't learn your lesson. Every time you get out from the penitentiary you rape some woman again and get sent back. That's just what you have been doing for the last 30 years approximately, nearly 30 years.\\\"\\nThe court thereupon sentenced petitioner to the state penitentiary for a period of 40 years.\\nThe official statement required by SDCL 23-48-37 which was prepared by the state's attorney contains the following handwritten comment added by the court: \\\"Defendant has a long list of criminal offenses, including four rape convictions. Is an habitual criminal.\\\"\\nOmitting the public intoxication and vagrancy charges, the petitioner's FBI record is as follows:\\nPetitioner testified at the post-conviction hearing that prior to the offense of June 22, 1966, he had been arrested and charged with the offense of rape only once, that occurring in 1937. Petitioner testified that he served six years and eight months on the ten-year charge in the federal penitentiary at Leavenworth and then was released on conditional release. He violated the terms of his conditional release by, according to his testimony, being picked up on a charge of being drunk and was returned to Leavenworth to serve additional time on the original rape charge. Petitioner was again released on conditional release and returned to his home near Ft. Thompson, South Dakota. He violated the terms of his conditional release by again being charged with intoxication and was once more sent back to Leavenworth.\\nThe state did not attempt to rebut petitioner's testimony that he had only one prior rape conviction in July of 1966. Our analysis of petitioner's FBI record leads us to believe that his testimony in this respect is true. We turn, then, to the question whether a sentence which is imposed by a court under the erroneous impression that a defendant has four prior convictions on a similar offense must be vacated.\\nIn the case of Townsend v. Burke, 1948, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, petitioner was sentenced to two indeterminate sentences not exceeding ten to twenty years upon his plea of guilty to two charges of burglary and two charges of robbery. Following the plea, the trial court recited a list of seven felonies that petitioner had allegedly committed. The court erroneously included in this list one charge on which petitioner was discharged by a magistrate and two charges on which petitioner had been adjudged not guilty. The Supreme Court reversed the denial of a writ of habeas corpus with the following comment:\\n\\\"It is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.\\\"\\nWe think that the instant case is similar to the situation that existed in the case of United States ex rel. Jackson v. Meyers, 3 Cir., 374 F.2d 707, where the trial court erroneously assumed that the defendant had a record of three robberies by strong arm. In fact, the first charge occurred when defendant was 15 years old and resulted in no disposition. The second charge had been discharged by a magistrate. The only criminal conviction on defendant's record was for strong-arm robbery for which defendant incurred a sentence of six to twenty-three months' imprisonment. In passing sentence the court stated: \\\"On Arthur Jackson, because he had the longer record and had several strong arm jobs, I will sentence him In granting a writ of habeas corpus, the Third Circuit Court of Appeals stated:\\n\\\"The second ground advanced, that the sentencing judge may not have given significant weight to these erroneous facts, is not only contradicted by the judge's own statement that the appellant was to receive his lengthy sentence 'because he had the longer record and several strong armed jobs,' [Emphasis supplied.], but in addition, is an assumption specifically forbidden by the Supreme Court in the Townsend case: 'We are not at liberty to assume that items given such emphasis by the sentencing court did not influence the sentence which the prisoner is now serving.'\\n\\u2021##**##*\\n\\\"This is not a case involving a 'mere error in resolving a question of fact on a plea of guilty.' With the facts of appellant's prior record undisputed and before the court, there was no justification for basing his sentence on a materially inaccurate foundation. Similarly, the price of correcting the injustice is insubstantial; the appellant can readily be resentenced.\\\" 374 F.2d 707, 711.\\nThe post-conviction court found that the trial court did not rely on materially erroneous information and assumptions concerning petitioner's prior criminal record in imposing the 40-year sentence. Without belaboring the evidence, we feel that the statement of the sentencing court set forth above and the handwritten comment added to the official statement after the pronouncement of sentence are evidence that the court did rely upon the erroneous assumption that petitioner had four prior rape convictions in imposing sentence upon petitioner.\\nIn the light of this record, then, \\\" we deal here not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude.\\\" United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).\\nWe think it was a violation of petitioner's right to due process of law to have his sentence based upon materially inaccurate information concerning his prior criminal record. We agree with the Third Circuit of Appeals that the price of correct ing the injustice resulting from such a situation is insubstantial. Accordingly, we affirm the conviction and remand this case to the circuit court with directions that the petitioner be resentenced, with credit to be given petitioner on such new sentence for the time spent in confinement from and after July 16, 1966.\\nHANSON, P. J., and BIEGELMEIER and WINANS, JJ\\\" concur.\\nDOYLE, J., not participating.\\n. Following Mr. French's untimely death, his office files were purchased by another Yankton law firm. It was stipulated at the post-conviction hearing that no file was found in Mr. French's office concerning petitioner's case. Petitioner argues that this leads to the inference that Mr. French's investigation and preparation on petitioner's behalf was so cursory that he did not even bother to open a file. We believe that there could be logical explanations for the absence of any separate file on petitioner's case\\u00bb\\n. Petitioner argues that the record is not positive that Mr, French appeared with defendant in municipal court at the time preliminary hearing was waived. The trial court's finding that defense counsel was present at the time of waiver is supported by evidence in the record and is not clearly erroneous.\\n. SDCL 23-48-16:\\n\\\"After a plea or verdict of guilty, in a case where discretion is conferred uoon the court as to the extent of the punishment, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily at a specified time, and upon such notice to the adverse party as it may direct.\\n\\\"The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county out of court, at a specified time and place, upon such notice to the adverse party as the court may direct.\\\"\\n. SDCL 23-48-19 provides:\\n\\\"No affidavit or testimony or representation of any kind, verbal or written, can be offered to or received by the court in aggravation or mitigation of the punishment, except as provided in \\u00a7 23-48-16 to 23-48-18, inclusive.\\\"\\n. Although the PBI report indicates that petitioner may have committed more serious crimps than being drunk while on conditional release, the fact is that he had only one conviction for rape, that occurring in 1937. The sentencing court's erroneous reading of the PBI report illustrates the danger of relying on unverified and uninterpreted raw data concerning a defendant's prior criminal record. See A. Miller, The Assault on Privacy, pp. 32 \\u2014 38 (1971). Certainly a defendant and his attorney should be given a full and fair opportunity to explain the circumstances of defendant's prior criminal convictions.\\n. We recognize, of course, the fact that petitioner could have been sentenced to life imprisonment. (SDCL 22-22-5 \\\"Rape in the first degree is punishable by imprisonment in the state penitentiary not less than ten years \\u00bb*),\"}"
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+"{\"id\": \"27181\", \"name\": \"McMahon v. Crockett\", \"name_abbreviation\": \"McMahon v. Crockett\", \"decision_date\": \"1899-09-02\", \"docket_number\": \"\", \"first_page\": \"11\", \"last_page\": \"16\", \"citations\": \"12 S.D. 11\", \"volume\": \"12\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:06:24.826593+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"McMahon v. Crockett.\", \"head_matter\": \"McMahon v. Crockett.\\n1. Where a notice of motion for a new trial specifies all the errors relied on, and is made a part of the bill of exceptions settled by the court, one of which is that the evidence is insufficient to support the findings of fact, appellant is entitled to a review of the evidence on appeal, though the bill of exceptions contained no specifications of error.\\n2. Under Comp. Laws, \\u00a7 1468, requiring judges and clerks of election of each precinct to deliver the ballot boxes used at an election, duly sealed, to the chairman of the board of commissioners of the county, who is required to safely keep same, where certain of the ballot boxes used at an election were delivered to contestant, a candidate at such.election, who opened them, and the contents of one of the boxes, as it appeared at the trial, were not the same as when so delivered, contestant was not entitled to assail the official canvass of the votes on which a certificate of election was issued to respondent.\\n(Opinion filed September 2, 1899.)\\nAppeal from circuit court, Pennington county. Hon. Joseph. B. Moore, Judge.\\nElection contest by Peter F. McMahon against Horace Crockett. From a judgment in favor of contestant, respondent appeals.\\nReversed.\\nSchrader & Leiois and Ivan W. Goodner, for appellant.\\nThere was a full assignment of errors in the notice of motion for a new trial, which was incorporated into the bill of exceptions, and this was a sufficient compliance with the statute. Mt. Terry Min. Co. v. White, 10 S. D. 620; Reagan v. McKibben, 11 S. D. 270. It was also stipulated in open court that the stenographer\\u2019s transcript should be settled as the bill of exceptions.\\nUnder the law of this state, ballot boxes and ballots are to be deposited not with the county auditor, but with the chairman of the board of county commissioners, \\u00a7 1468 Comp. Laws. The evidence showing that the ballots were in an unlawful custody, that there was ample opportunity to tamper with them, and that they were actually tampered with, they lost their value as primary evidence and the sole resort should have been to the election returns. McCrary, Elec. (4th Ed.,) \\u00a7 475; Cooley, Const. Lim., \\u00a7625; Hudson v. Solomon, 19 Kas. 186; Tebbe v. Smith, 41 Pac. 455; Powell v. Holman, 50 Ark. 94; Kingery v. Berry, 94 111. 517; Beall v. Albert, 159 111. 126; People v. Liv-' ingston, 79 N. Y. 290; Davenport v. Olerich, (la.,) 73 N. W. 603; Fishbach v. Bramel, Wyo.,) 44 Pac. 840; Rohde v. Steinkitz, (Colo.,) 55 Pac. 314; Dent v. Board, 32 S. E. 250; Coughlan v. Board, 2 Pac. 773; Howser v. Pfeifer, (N. D.,) 79 N. W. 1018.\\nChauncey L. Wood, Charles J. Buell and Horner \\u00e9 Stewart, for respondent.\\nThe omission from appellant\\u2019s bill of exceptions, as served, of a specification of the errors relied upon, is fatal to the right to review the evidence, Peart v. Railway, 8 S. D., 634; 67 N. W. 837; Wood v. Nissen, 2 N. D. 26; 49 N. W. 103. The ballot boxes were safely and securely kept as required by law. Tebbe v. Smith, 41 Pac. 454; Hartman v. Young, 20 Pac. 17; Hudson v. Salomon, 19 Kas. 180.\", \"word_count\": \"1763\", \"char_count\": \"10222\", \"text\": \"Fuller, J.\\nThis statutory contest for the office of county auditor resulted in a judgment predicated upon findings of fact favorable to Peter F. McMahon. Horace Crockett, the opposing candidate, holding the certificate of election, based upon the determination of the board of county canvassers that upon the face of the returns he had received a majority of one vote, prosecutes this appeal.\\nAs the notice of intention to move for a new trial specifies all the errors relied upon, and is made a part of the bill of exceptions settled by the court in accordance with a stipulation entered into by counsel for the respective parties, there is no merit in, the contention that appellant is not entitled to are-view of the evidence because the bill contains no specifications of error. Mining Co. v. White, 10 S. D. 620, 74 N.W. 1060; Reagan v. McKibben, 11 S. D. 270; 76 N. W. 943. Under our view of the law applicable to the facts presented, an assignment of error relating to the insufficiency of the evidence to support the following findings of fact is the only matter essential to a determination of this appeal: \\\"That the court finds that after said election, and within the time limited by law therefor, the ballot boxes from each precinct in said county, duly sealed as provided by law, were returned by the judges and clerks of election of each precinct to the chairman of the board of com missioners of said county, and that said ballot boxes, and each of them, were duly and properly sealed as the law provides, and have ever since, and until the recount of said ballots at the trial hereof, been securely kept under seal, and in no manner changed, altered, or tampered with, and that said ballots, and each of them, so as aforesaid recounted by the court, were the original ballots used and cast by the respective legally qualified electors of said county, and in no manner changed or altered. The court finds that there is no evidence whatever to prove or tending to prove the allegations of fraud contained in the defendant's answer herein.\\\" As to the treatment of the ballot boxes, it js undisputed that they were all returned to respondent, Peter F. McMahon, auditor, together with the keys; that he opened a large number of them for the purpose of getting the poll books to compare, and, for the avowed purpose of ascertaining the result of the vote on all the officers, he testified that he opened the ballot box used in the Second ward precinct of Rapid City, which, at his instance and request, had been delivered to him after midnight, at his sleeping apartment, by one of the judges of election, from whose amply corroborated testimony it quite clearly appears that material alterations in some of the ballots contained therein have been effected. It was conclusively shown at the trial that, after canvassing the ballots cast in the Second ward of Rapid City several were folded together without the least regularity. One of the judges used his foot to stamp them into 1he crowded ballot box, and in that condition it was delivered to respondent, McMahon, who admits that he unlocked and opened the same. The first lawful examination of the contents of this ballot box occurred in court, and each ballot was found to be separately folded, and placed in the box in an orderly manner. Among the ballots cast, canvassed, and returned to the ballot box before it was turned over to respondent, there were three straight tickets, with the exception that neither of the three voters had expressed a choice for county auditor, no cross or mark having been placed opposite the name of either candidate, but no such ballots were produced at the trial; and the court very properly found that every ballot before it was mark ed either for McMahon, the contestant, or Crockett, the contestee, for the office in controversy. Being thus placed within the reach of an interested person, whose unauthorized touch tends to contaminate, the intrinsic evidential quality of these ballots had ceased to exist, so that, as between them and the canvass thereof by proper authority, the latter is clearly con trolling Judge McCrary, in his excellent treatise, enunciates the American doctrine as follows: \\\"Before the ballots should be allowed in evidence to overturn the official couut and return, it should appear affirmatively that they have been safely kept by the proper custodian of the law, that they have not been exposed to the public or handled by unauthorized, persons, and that no opportunity has been given for tampering with them.\\\" McCrary, Elect. \\u00a7 475. In the case of Hudson v. Solomon, 19 Kan. 177, Judge Brewer thus states two of the cardinal rules governing elections and election contests: \\\"(1) As between the ballots cast at an election, and a canvass of these ballots by the election officers, the former are the primary, the controlling, evidence. (2) In order to continue the ballots controlling as evidence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with. \\\" In instances like this the burden is upon the contestant to show with a reasonable degree of certainty that the ballots have neither been tampered with nor placed within the reach of unauthorized persons, before they are admissible in evidence to disprove the official returns, or impugn the action of a board of canvassers. Fishback v. Bramel (Wyo.) 44 Pac. 840; Davenport v. Oelrich (Iowa) 73 N. W. 603; Dent v. Board (W. Va.) 32 S. E. 250; Kingery v. Berry, 94 Ill. 515; Cooley, Const. Lim. 625; People v. Livingston, 79 N. Y. 290; Howser v. Peffer (N. D.) 79 N. W. 1018. In this state a person duly authorized must within a specified time deposit the ballots and the ballot boxes with the chairman of the board of county com missioners, upon whom the legislature has imposed the important duty of carefully keeping the same. Consequently the manner in which this official business was conducted is at variance with the express terms of a statutory provision emanating from a wise consideration for the public good. Comp. Laws, \\u00a7 1468. It therefore follows that, while ballots intelligently disclosing the voters' choice of candidates are essentially more reliable than the summary resulting from, a canvass upon which the certificate of election issues, their continued infalli bility and value as evidence depend, of necessity, upon their preservation according to the method prescribed, and by the officer whom the law has designated for that purpose. Eliminating from this consideration every vestige of bad faith, the fact still remains that respondent has by his own hand forfeited the right to assail, with ballots unlawfully kept, the result of a regular canvass by proper officials, and their admission in evidence for that purpose-was clearly erroneous. The foregoing leads to a reversal of the case, which is remanded, with the direction that judgment be entered in favor of appellant, awarding him the office.\"}"
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+"{\"id\": \"27266\", \"name\": \"Kirby v. Muench et al.\", \"name_abbreviation\": \"Kirby v. Muench\", \"decision_date\": \"1900-03-02\", \"docket_number\": \"\", \"first_page\": \"616\", \"last_page\": \"618\", \"citations\": \"12 S.D. 616\", \"volume\": \"12\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:06:24.826593+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kirby v. Muench et al.\", \"head_matter\": \"Kirby v. Muench et al.\\nUnder Comp. Laws, \\u00a7 4942, providing that a supplemental complaint may be filed alleging \\u201cfacts material to the case, occurring after the former complaint,\\u201d where a plaintiff sued to subject property formerly owned by his debtor to the satisfaction of judg-ments previously obtained against him, alleging the property had been fraudulently conveyed, it was not error to allow plaintiff to file a supplemental complaint setting up additional judgments obtained subsequent to the filing of the original complaint; since the primary purpose of the action was to determine whether the property was fraudulently conveyed, and hence subject to the debts, and not the amount of such debts.\\n(Opinion filed March 2, 1900.)\\nAppeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.\\nAction by Joe Kirby against Peter Muench and others, to subject certain realty to the payment of a judgment. From an order granting plaintiff leave to file a supplemental complaint, defendants appeal.\\nAffirmed.\\nJames Ballantyne and C. G. Hartley, for appellants.\\nJoe Kirby and Rochford & McMahon, for respondent.\", \"word_count\": \"705\", \"char_count\": \"4352\", \"text\": \"Haney, J.\\nThis action was commenced for the purpose of subjecting certain realty, the recora title to which is in defendant Christina Bridge, to the payment of a judgment against defendant Peter Muench. The cbmplaint was served with the summons, and contained .the usual allegations where it is charged that property has been- conveyed with intent to hinder, delay, and defraud creditors. Berore the time'to answer had expired, plaintiff noticed a motion for leave to serve a supplemental complaint, alleging the procurement, subsequent to the commencement of this action, of three additional judgments against defendant Muench. Defendants appealed from the order granting this motion.\\nIn this state the old rule in equity respecting supplemental pleadings has been enacted in^o law, and made applicable to all civil actions. The statute provides: \\\"The plaintiff and defendant respectively, may be allowed, on motion, to makea supplemental complaint, answer, or reply, alleging facts material to the case, occurring after the former complaint, answer, or reply, or of which the party was ignorant when his former pleading was made.\\\" Comp. Laws, \\u00a7 4942. Mr. Justice Harlan, speaking for the United States supreme court, says: \\\"In reference to amendments of equity pleadings the courts have found it impracticable to lay down a rule that would govern all cases. Their allowance must, at every stage of the cause, rest in the discretion of the court; and that discretion must depend largely on the special circumstances of each case. It may be said, generally, that, in passing upon applications to amend, the ends of justice should never be sacrificed to mere form, or by too rigid an adherence to technical rules of practice. Undoubtedly, great caution should be-exercised where the application comes after the litigation has continued for some time, or when the granting of it would cause serious inconvenience or expense to the opposite side. And an amendment should rarely, if ever, be permitted where it would materially change the very substance of the case made by the bill, and to which the parties have directed their proofs.\\\" Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct. 771, 28 L. Ed. 1141. Ordinarily, a new and independent cause of action cannot be alleged in a supplemental complaint, nor can such a pleading supply a cause of action where none existed when the suit was begun, but it may contain, in the words of the statute, 'facts material to the case, occurring after the former complaint\\\" was made. The primary purpose of this action is to determine whether certain property shall be subjected to the payment of Muench's debts. The amount of such debts is merely incidental to the main object of the litigation. The only change in the issues and relief sought made by the proposed amdendments is to increase the amount of plaintiff' claim in the event of his proving that the conveyances involved were made with'improper intent. Surely, defendants should not complain if all of plain tiff's claims are included in one action, and the expenses of separate suits for the same purpose are thus avoided; especially where the amendments are made before they are required to answer. The order appealed from is affirmed.\"}"
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+"{\"id\": \"27302\", \"name\": \"Grissel v. Bank of Woonsocket\", \"name_abbreviation\": \"Grissel v. Bank of Woonsocket\", \"decision_date\": \"1899-09-02\", \"docket_number\": \"\", \"first_page\": \"93\", \"last_page\": \"100\", \"citations\": \"12 S.D. 93\", \"volume\": \"12\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:06:24.826593+00:00\", \"provenance\": \"CAP\", \"judges\": \"Haney, J., took no part in the decission.\", \"parties\": \"Grissel v. Bank of Woonsocket.\", \"head_matter\": \"Grissel v. Bank of Woonsocket.\\n1. In an action against a bank to recover a deposit, defendant answered that it had boon applied on plaintiff\\u2019s note, which it bold. Plaintiff claimed that he gave the note for the accommodation of his brother, who, oil a certain day, paid it by giving another note, which defendant accepted in full payment. Defendant claimed that the now note was taken as collateral security for plaintiff\\u2019s note, and not in payment. Plaintiff\\u2019s note remained in the bank, uncanceled, for 14 months after the new note had been given, and neither he nor his brother demanded possession of it. Defendant offered to prove that during said 14 months it had frequent conversations with plaintiff relative to his note, and that lie never denied his liability, but said ho would pay it as soon as possible. Meld error to exclude such evidence, as it was proper to show the understanding of the parties as to the transaction by their conversations and acts.\\n2. In such case, giving an instruction that when parties are making a bargain they are all held to mean and intend just what the language used by 1-hem commonly imports, as ordinarily used in reference to the subjoct-matter of the contract, and not what either parly may have secretly intended in his own mind, and a repeating of it as follows: \\u201cIf his words, as commonly understood in relation to tho subject-matter, import an agreement, then you must find an agreement from these words, and not what he secretly intended and meant,\\u201d \\u2014 was error, as it tended to give the jury the impression that the court thought that the evidence of plaintiff\\u2019s brother as to the transaction in making the new note was correct, and that the bank, while giving him to understand that the new note canceled the old one, secretly intended to regard the note as unpaid.\\n3. In such case, it was error to refuse to instruct that if the jury find that plaintiff\\u2019s brother understood that plaintiff was to be released from his liability on his note, and by reason of such understanding gave the new note, such fact alone will not entitle plaintiff to a verdict, unless the jury find that the understanding to release plaintiff was mutual.\\n4. It was also error to refuse to charge that the burden of proof was on plaintiff to show that it was the mutual understanding- of the parties at the time of the giving of the now note that plaintiff was to be released from the old one; Comp. Laws, \\u00a7 3495, providing that consent of the parties is essential to the existence of a contract.\\n(Opinion filed September 2, 1899.)\\nAppeal from circuit court, Sanborn county. Hon. Frank B. Smith, Judge.\\nAction to recover on deposit account. From a judgment in favor of plaintiff, defendant appeals.\\nReversed.\\nThe facts are stated in the opinion.\\nJ. T. Kean and J. L. Hannett, for appellant.\\nJ. E. Whiting and T. H. Null, for respondent.\", \"word_count\": \"2527\", \"char_count\": \"14103\", \"text\": \"Corson, P. J.\\nThis was an action brought by the plaintiff against the defendant to recover $400 claimed to be due him on his deposit account with said bank. The defendant bank, prior to the commencement of this action, had applied the balance due plaintiff on his deposit account to the payment of a certain note executed by the plaintiff to the defendant on or about the 4th day of June, 1892, for the sum of $560,- upon which there was paid December 31, 1892, the sum of $206.41. The defendant alleges in its answer that on or about the 13th day of September, 1894, the defendant and the plaintiff had a settlement, and that, after making certain deductions, there was found to be due the defendant, on account of said note, $400; that thereupon the plaintiff drew out the sum of $167.44, being the amount of his deposit in excess of $400, and the $400 was applied by the defendant upon the said note, and plaintiff's account closed and balanced. The plaintiff, in reply, alleged that the $560 note was given by him for the accommodation of his brother, Charles Grissel, and that on or about the 8th day of June, 1893, said Charles Grissel paid the balance of his debt, represented by the said $560 note, to the defendant by giving to it a certain note for $716.65, to pay said note and another debt claimed by said defendent to be duo from said Charles Grissel. Plaintiff further alleged that said note ($716.65) was given to said defendant, and accepted by it, in full payment and satisfaction of the debt of the said Charles Grissel to said defendant represented by said note of plaintiff to said bank, and for all other indebtedness of the said Charles Grissel, and that this t last-mentioned note was secured by a real estate mortgage and a chattel mortgage. There was a sharp conflict in the evidence, as to the nature of the transaction resulting in the giving of the $716.65 note, between Charles Grissel and wife on the one part, and Charles E. Hinds and O. P. Graham, officers of the bank, on the other. Charles Grissel and wife testified that it was understood and agreed between them and the said Hinds, as cashier of the defendant bank, that the last note, secured by the real estate and chattel mortgages, should cancel the $560 note executed by the plaintiff. This was denied by both Hinds and Graham, who testified that the new note was taken as collateral security for the note of the plaintiff then held by the bank, and not. in payment of the same. The only question was, which of these parties correctly stated the agreement that was entered into at that time. On the trial the bank sought to show the conversations between R. J. Grissel and the bank with reference to securing extension of time, statements as to the payment of the note, and other matters connected with the same, and, the evidence being excluded, the bank made the following offer: \\\"Defendant offers to prove by the witness Hinds that from June 8th 1893, up to September 6th, 1894, he had frequent conversations with the plaintiff in this action relative to his (the plaintiffs) indebtedness to the bank upon said note, and that in these conversations the plaintiff never denied his liability, and said tie would pay the same as soon as possible.'' This evidence was excluded, and the defendant excepted. It appears from the evidence that the plaintiff's note remained in the bank, uncancelled, for a period of about 14 months after the transaction of June 8th, and that neither Charles nor R. J. Grissel ever demanded possession of said note, and by the offer the defendant sought to show that during all that time R. J. never denied his liability, and said he would pay the same as soon as possible.\\nUnder those circumstances, and in view; of the conflict as to what the agreement was between Charles Grissel and the officers of the bank at that time, it was certainly proper for the bank to show what conversations and negotiations were had between it and R. J. Grissel between the 8th of June, 1893, and the 1st of September, 1894, in reference to the payment of his note, and a request for an extension of the time of payment, asked for on the part of R. J. Grissel. In view of this conflict in the evidence, the jury were entitled to know how R. J. Grissel and the bank officers had treated this note during the 14 months it remained in the bank, in order that they might come to the proper conclusion as to whether the statements of Charles Grissel and wife or those of the officers of the bank were to be believed. Had this evidence been admitted, it could have very reasonably been urged to the jury that the conduct and conversations of R. J. Grissel and the officers of the bank were entirely inconsistent with the statements made by Charles Grissel and wife as to the effect of the transaction between Charles Grissel and the bank on the 8th of June, 1893; and .the jury would have had before them, not only the statements of the parties as to their understanding of the transaction, but the conversations and acts of all the parties in connection therewith, up to the time the bank appropriated $400 of R. J. Grissel's deposit in payment of the note. It appears from the evidence that R. J. Grissel was doing a mercantile business in the city of Woonsocket, where the defendant bank was located, and that Charles Grissel lived on a farm only two or three miles from town. It is fair to presume, therefore, that the transaction of June 8th, as understood by Charles Grissel, was communicated by him to his brother, R. J., and hence it was important for the jury to understand the view taken of the transaction by R. J. during the time intervening between the 8th of June, 1893, and September, 1894. We are of the opinion, therefore, that the learned circuit court erred in excluding this evidence.\\nAppellant further contends that the court erred in instructing the jury as follows: \\\"When parties are making a bargain, they are held to mean and intend just what the language used them commonly as used in reference to the subject-matter of the contract, and not what either party-may have secretly intended in his own mind;\\\" and also in repeating, in effect, to the jury the instruction in the following language: \\\"If his words, as commonly understood in relation to the subject-matter, import an agreement, then you must find an agreement from these words, and not what he secretly intended and meant.\\\" Counsel for appellant urge that these instructions were calculated to give the jury the impression that the court was of the opinion that the evidence as given by Charles Grissel as to the transaction of June 8, 1893, was correct, and that the cashier, Hinds, while giving Charles Grissel to understand that the new note canceled the old note, yet secretly intended in his own mind to regard, the note as unpaid. There is some force in. this contention. The giving of this instruction, and its repetition, certainly must have left an unfavorable impression upon the minds of the jury; and where, as in this case, the evidence was conflicting and apparently quite evenly balanced, it may have had great influence upon the jury in deciding the case in favor of the defendant. There is a strong intimation in this instruction that the cashier of the bank had some secret intention in regard to holding the note, as the language of the court must have been understood by the jury as applying entirely to the cashier of the bank. Under the evidence in this case, the instruction was not justified. There was no evidence whatever that Mr. Hinds, as cashier of the bank, had any secret intentions as to this transactioh, or was guilty of any double dealing with Charles Grissel or R. J. Grissel. It is true his statement and the statement of Graham as to what occurred at the farm house of Charles Grissel, on June 8th, 1893, was in conflict with the statements made by Charles Grissel and wife, but tbe court had no right to assume that he had or might have had any secret intentions as to what he meant by the language used at the time he was at the home of Charles Grissel. The only question, therefore, that could have properly been submitted to the jury, was as to what was actually said by the parties at the time of the transaction of June 8th. The court's reference to the secret intention of the cashier of the bank, and directing the attention of the jury thereto, may, and probably did, have the effect of creating a prejudice in the minds of the jury against the defendant, and its charge in that respect was erroneous. Wilkinson v. Searcy, 76 Ala. 176; Rapp v. Giddings, 4 S. D. 492, 57 N. W. 237; Wood v. Steinau, 9 S. D. 110, 68 N. W. 160; Williams v. Hartshorn, 30 Ala. 211; Miles v. Douglas, 34 Conn. 393; Roach v. Parcell, 61 Iowa, 98, 15 N. W. 866.\\nThe appellant also contends that the court erred in refusing to give the following instructions asked for on the part of the defendant:\\n' 'If you find from the evidence in this case that Charles Grissel understood that R. J. Grissel was to be released from his liability from the note he gave said bank, and, by reason of such -understanding, he gave the note and mortgages in evidence, this fact alone will not entitle this plaintiff to a verdict, unless you find as a fact, by a fair preponderance of the evidence, that the understanding to release R. J. Grissel was mutual; that is, that Mr. Hinds also understood that R. J. Grissel was to be released from his liability on said note by the giving of the Charles Grissel note and mortgages.''\\n\\\"The burden of proof is on the plaintiff to show, by a fair preponderance of all the evidence, that it was the mutual un derstanding of the parties at the time of the giving of the new note that R. J. Grissel was to be released from the old note.\\\"\\nWe are of the opinion that these instructions should have been given. \\\"It is essential to the execution of a contract that there should be: (2) Their consent. \\\" Sec. 3495, Comp. Laws. \\\"Consent is not mutual unless'the parties all agree upon the same thing in the same sense. But in certain cases, defined by the chapter on interpretation, they are to be deemed so to agree without regard to the fact.\\\" See. 3515, Id. We see no objection to these instructions, and are of the opinion that they should have been given to the jury. There could be no contract binding upon the parties unless the minds of the parties met, and, if Charles Grissel understood that the old note was to be canceled by the new note, but the bank, through its cashier, had not in fact agreed that it should be so canceled by Mr. Hinds, the cashier of the bank, then there was in fact no agreement to that effect. R. J. Grissel had the right to regard the \\u00a7560 note as paid only in case there was in fact an agreement between Charles and the bank that it should be so paid by the new note. As the instructions requested evidently stated the law correctly as applicable to the facts in this case, they should have been given, and the refusal of the court to give them was error. For these errors in the exclusion of evidence, and in giving and in refusing instructions to the jury, the judgment of the court below is reversed, and a new trial granted.\\nHaney, J., took no part in the decission.\"}"
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diff --git a/sd/27349.json b/sd/27349.json
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+"{\"id\": \"27349\", \"name\": \"Zerfing v. Seelig et al.\", \"name_abbreviation\": \"Zerfing v. Seelig\", \"decision_date\": \"1899-09-02\", \"docket_number\": \"\", \"first_page\": \"25\", \"last_page\": \"28\", \"citations\": \"12 S.D. 25\", \"volume\": \"12\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:06:24.826593+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Zerfing v. Seelig et al.\", \"head_matter\": \"Zerfing v. Seelig et al.\\n1. Where a-vendor of land subject to the lien of a tax certificate conveys the same to the vendee by warranty deed, with covenants against incumbrances, etc., and the vendee is put into possession and maintains the same without interruption, a tax title subsequently acquired by the vendor, based on such certificate, will not defeat an action brought by him. against the vendee to recover the purchase price of the premises, since all title subsequently acquired by-the vendor in such case passes to the vendee, under Comp. Laws, $ 3254, subd. 4, providing that where real property is granted in fee simple, and the grantor subsequently acquires any title thereto, the same passes by operation of law to the grantee.\\n2. A defect in title to land conveyed by warranty deed will not defeat the vendor\\u2019s right to recover the purchase price while the presumption that he is able to respond in damages remains unchallenged.\\n3. In an action by a Vendor of lands conveyed by warranty deed to recover the purchase price from the vendee, the burden of showing failure to convey title as warranted is on the defendant.\\n(Opinion filed September 2, 1899.)\\nAppeal from circuit court, Lawrence county. Hon. Joseph B. Moore, Judge.\\nAction by John Zerfing against Michael Seelig and another. From a judgment for plaintiff entered on a verdict directed for plaintiff, defendants appeal.\\nAffirmed.\\nCharles E. Davis and G. C. Moody, for appellants.\\nIn an action upon a covenant of seizen, where the defendant alleges that at jbe time of the conveyance he was well seized, the burden of proof is on the defendant, and plaintiff is not bound to prove that defendant has not kept his covenant. Mecklem v. Blake; 16 Wis. 106; Blackshire v. Iowa Homestead Co., 39 la. 624; 1 Greenl. Ev. \\u00a7 74; Cockrell v. Practer, 65Mo. 46; Abbott v. Allen, 14 Johns. 253; Talmadge v. Wallace, 25 Wend. 107.\\nGeorge B. Thompson, for respondent.\\nThe burden is upon plaintiff to make out his case. Wooley v. Newcombe, 87 N. Y. -605; Ingalls v. Eaton, 25 Mich. 32; Landt v Major, 2 Colo. App 551; Hamilton v. Shoaff, 99Ind. 63.\", \"word_count\": \"969\", \"char_count\": \"5567\", \"text\": \"Fuller, J.\\nTo defeat this action to recover the amount of three promissory notes, the defendants pleaded false and fraudulent representations on the part of plaintiff, and a failure,of consideration resulting from a breach of all the covenants contained in a warranty deed from him to them for wliicb the notes were given. Judgment was entered upon a directed verdict for the full amount of plaintiff's claim, and the defendants appeal. The recitals of the deed amount to the usual covenants of seisin, against incumbrances, and for quiet enjoyment. The undisputed evidence shows that at the time the deed was executed respondent surrendered the actual possession of the premises to appellants, which, so far as disclosed by the record, they still maintain and enjoy without the slightest interruption.\\nAt the time the sale was made, the lien of a tax certificate was upon the premises, and, at the apparent suggestion of appellants, the note first due was placed in escrow, under an agreement by which respondent was obligated to remove such incumbrance before the maturity of the note. For the avowed purpose of perfecting the title, and removing any cloud upon the premises that might be in existence, respondent gave his note to the holder of the certificate for the amount necessary to redeem, but allowed the sale to ripen into a tax deed, and afterwards took to himself a conveyance from the grantee named therein, which according to the old maxim and the statute as well, passed ipso facto to appellants all the title thus acquired. \\\"Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title or claim of title thereto, the same passes by operation of law to the grantee or his successors.\\\" Comp. Laws, \\u00a7 3254, Subdiv. 4. Viewed in the light most favorable to appellants, there is nothing tending to support the imputation of fraud, or justify any inference that they were ever evicted or in the slightest degree disturbed in possession or quiet enjoyment. Were we to assume that a defect in the title exists, this action to recover the purchase price could not be defeated while the presumption that respondent is able to respond in damages remains unchallenged. Price v. Hubbard, 8 S. D. 92, 65 N. W. 436; Bowne v. Wolcott, 1 N D. 415, 48 N. W. 336; Sanborn v. Knight (Wis.) 75 N. W. 1009.\\nNor can the old rule of the common law, by which the burden was on the grantor to show affirmatively that there had been no breach of covenant, be invoked to defeat a recovery of purchase money, and relieve these grantees from offering testimony in support of their allegations of fraud and failure to convey title as warranted. Ingalls v. Eaton, 25 Mich. 32; Landt v. Major, 2 Colo App. 551, 31 Pac. 524; Hamilton v. Shoaff, 99 Ind. 63; Woolley v. Newcombe, 87 N. Y. 605; Hartshorn v. Cleveland, 52 N. J. Law, 473, 19 Atl. 974; Lathrop v. Grosvenor, 10 Gray, 52; Jerald v. Elly, 51 Iowa, 321, 1 N. W. 639. In Ingalls v. Eaton, supra, Judge Cooley says: \\\"The burden of showing want of title is on the defendant. It would be a curious anomaly in the law if the vendor, with the deed alone in evidence; could recover the purchase price, and then that the vendee, on precisely the same evidence and no other, could immediately turn about and collect it back again, on an assumption that the deed had conveyed no title.\\\" For the reasons above given the judgment of the circuit court is affirmed.\"}"
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diff --git a/sd/2735182.json b/sd/2735182.json
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+"{\"id\": \"2735182\", \"name\": \"CAPLAN, Respondent, v. BRANDRIET, et al, Appellants\", \"name_abbreviation\": \"Caplan v. Brandriet\", \"decision_date\": \"1934-12-29\", \"docket_number\": \"File No. 7670\", \"first_page\": \"294\", \"last_page\": \"296\", \"citations\": \"63 S.D. 294\", \"volume\": \"63\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T17:13:45.387044+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur.\", \"parties\": \"CAPLAN, Respondent, v. BRANDRIET, et al, Appellants.\", \"head_matter\": \"CAPLAN, Respondent, v. BRANDRIET, et al, Appellants.\\n(258 N. W. 129.)\\n(File No. 7670.\\nOpinion filed December 29, 1934.)\\nSee, also, 62 S. D. 576, 255 N. W. 464.\\nCasper G. Aaberg of Brookings, for Appellant.\\nT. R. Johnson, of Sioux Falls, for Respondent.\", \"word_count\": \"775\", \"char_count\": \"4344\", \"text\": \"PO'LEEY, J.\\nThis action was brought to recover on three promissory notes. The defendants B. H. and Catherine Brandriet appeared in the action and moved for a change of place of trial. This motion was denied1, and neither of said defendants made any further appearance in the case. The defendant school district appeared and answered to the merits. After issue was joined, it was agreed between plaintiff and the said defendant that the case might -be tried to the court without a jury and that the case should be brought on for trial upon notice by either of the parties. Thereafter notice of the time when the case would be brought on for trial was sent to defendant's counsel, but for some reason said notice did not come to his attention until after the time fixed for the trial. Upon the date fixed for the trial, plaintiff appeared1 with his counsel and submitted his proof, whereupon judgment was entered in his favor for the amount asked in the complaint. Knowledge of the entry of this judgment came to the attention of defendant's counsel soon thereafter, whereupon it was stipulated by said parties that the case might be reconsidered. Execution was stayed, but the judgment which had been entered on the 14th day of June, 1933, was not set aside nor canceled. Fur ther testimony was introduced, and the matter argued to the court on the loth day of September, 1933,; both parties being present. At the close of the evidence the court made findings of fact and conclusions of law which were sufficient, to support the judgment that had already been entered, and on the nth day of September the court on motion of counsel for plaintiff made the following order:\\n\\\"Ordered, adjudged and decreed, that the defendant school district's application to have said judgment modified as to it, be and the same hereby is in all things overruled and denied, and it is further,\\n\\\"Ordered, adjudged and decreed, that execution may issue on the judgment heretofore entered in this case at the expiration of thirty (30) days from date hereof, unless stayed by further order of the court.\\\"\\nNotice of the entry of said order was served upon counsel for defendant on the day of its entry.\\nOn the 18th day of December, 1933, defendant, without having given notice of intention, moved for a new trial. This motion was denied by the court on the 9th day of January, 1934. On the 8th day of February, 1934, the defendant appealed to this court \\\"from the judgment and decree rendered by the court on the nth day of September, 4933, and from the whole thereof, and also- from the order made by the court herein denying defendant's motion for a new trial dated January 9, 1934.\\\"\\nOn motion of plaintiff this court dismissed the appeal from the order denying defendant's motion for a new trial. See same tile, 62 S. D. 576, 255 N. W. 464.\\nThe matter is now before this court on the appeal from the ahove-quoted order, and1, while it is- referred to in the notice of appeal as \\\"the said judgment,\\\" it is not the judgment in the case and does not purport to' be a judgment at all, but only an order denying defendant's \\\"application to have said judgment modified.\\\" The appeal, therefore, is not from the judgment in the case, but from an order denying a motion to modify the judgment. Both parties have filed briefs on the merits, but we are confronted at the outset by a motion by respondent to dismiss the appeal on the ground that an order refusing the modify a judgment is not reviewable by this court. It is not necessary, if permissible, to re view this order. The order appealed from was entered and dated on the nth day of September, A. D. 1933, while the appeal was not taken until the 8th day of February, 1934. This was more than sixty days after the entry of said order and after the expiration of the time within which an appeal may be taken from an order. Section 3147, Rev. Code 1919.\\nUnder these circumstances we have no- jurisdiction to consider the said appeal, and the judgment entered in the case on the 14th day of June, 1933, must 'be affirmed. It will be so ordered.\\nAll the Judges concur.\"}"
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diff --git a/sd/2739685.json b/sd/2739685.json
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+"{\"id\": \"2739685\", \"name\": \"HIRNING, Receiver, Respondent, v. TIMM, et ux, Appellants\", \"name_abbreviation\": \"Hirning v. Timm\", \"decision_date\": \"1934-12-17\", \"docket_number\": \"File No. 7710\", \"first_page\": \"286\", \"last_page\": \"289\", \"citations\": \"63 S.D. 286\", \"volume\": \"63\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T17:13:45.387044+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur, except WARREN, J., who did not sit.\", \"parties\": \"HIRNING, Receiver, Respondent, v. TIMM, et ux, Appellants.\", \"head_matter\": \"HIRNING, Receiver, Respondent, v. TIMM, et ux, Appellants.\\n(258 N. W. 130.)\\n(File No. 7710.\\nOpinion filed December 17, 1934.)\\nSee, also, 63 S. D. 94, 256 N. W. 372.\\nD. H. Lloyd, of Flandreau, and Louis H. Smith, of Sioux Falls, for Appellant.\\nRice & Rice, of Flandreau, and Blaine Simons, of Sioux Falls, for Respondent.\", \"word_count\": \"1327\", \"char_count\": \"7616\", \"text\": \"CAMPBERLi, J.\\nThis action was instituted by First National Bank of Flaudreau, S. D. Before the case came on for trial, the hank had closed, and Hirning had become receiver 'in charge and was accordingly substituted as party plaintiff. The fact situation leading up to the bringing of the action may be briefly stated as follows: June 14, 1932, defendant Herman Timm gave to plaintiff bank his promissory note for $1,000, due October 1, 1932. At that time Timm' owned and operated a pool hall in the city of Elandreau, and owned the realty whereon the same was located. On July 22, 1932, Herman Timm transferred a half section of Moody county land to the holder of a $13,000 mortgage thereon, and on the same day he transferred to his wife, Emma Timm, his unincumbered homestead! in Elandreau, the realty whereon his pool hall was situated, and gave her a bill of sale of all the stock, furniture, and equipment thereof. Plaintiff bank, taking the position that the transfer to Emma Timm was in fraud of creditors, commenced the present suit on August 5, 1932, asking that the deed and bill of sale from1 Herman to his wife be adjudged fraudulent and void; that the same be set aside; that plaintiff have judgment against the defendant Herman Timm for the amount due upon its note updn maturity thereof; and that the property be subjected to the payment of said judgment. The case coming on for trial to the court without a jury, findings, conclusions, and judgment were in favor of plaintiff upon all the issues, from which judgment and from the denial of their application for a new trial defendants have appealed.\\nAppellants predicate error upon the admission in evidence of a certain document called in the record a \\\"tax list,\\\" which appears to have been a verified statement of taxable property with values signed by Herman Timm and returned to the assessor and thence to the county auditor in May, 1932. Appellants rely upon State v. Demerly (1929) 56 S. D. 65, 227 N. W. 463, as authority that the document was not admissible. If the admission of this exhibit was erroneous (which, for present purposes, we may concede without deciding), it must be deemed error without prejudice. It was material only with reference to the value of the property involved. There was much other evidence in the record relating to that question, andl there is nothing to indicate that the learned trial judge in anywise relied upon this exhibit in arriving at his result. Cf. Williamson v. Voedisch Jewelry Co. (1915) 35 S. D. 390, 132 N. W. 508. It will therefore be presumed that, if this exhibit was incompetent, the court disregarded it. Matejka v. Reider (1934) 62 S. D. 335, 252 N. W. 878, and cases there cited.\\nAppellant's principal reliance, however, is upon the claimed insufficiency of the evidence to support -the findings. The court found that the property conveyed by defendant Herman Timm on July 22, 1932, was substantially all of the property of any value owned by him, and that by said transfers he was rendered insolvent and unable to pay his existing debts as they matured and became due, and the court further found as follows:\\n\\\"That the said defendant, Herman Timm, at the time of the transfer of said real and personal property to his wife, Emma Timm, on the 22nd day of July, 1932, was not indebted to her on any account, and that she did not pay a fair consideration to the said' Herman Timm, for the alleged transfer to her of the said real and personal property, and that at said time said Emma Timm had full knowledge of the indebtedness owing by her husband, the said Herman Timm, and that the transfer of said property rendered her husband, Herman Timm, insolvent and! made it impossible for him to pay his debts as they matured and became absolute.\\n\\\"VI. That the transfer of the real arid personal property described in paragraph III hereof, from the defendant, Herman Timm, to his wife, Emma Timm, was made with the intent on the part of said grantor, Herman Timm, and for the purpose of hindering, delaying and defrauding the creditors of said Herman Timm, and! was fraudulent as to said creditors and not made in good faith, and that the defendant, Emma Timm, had knowledge at the time thereof of the purpose and intent of said grantor and that the said defendants connived and colluded in the making of said transfer for the purpose of hindering, 'delaying, cheating and defrauding the creditors of said Herman Timm, and that he should continue after said conveyance to be the true owner of said property, and that subsequent to said conveyance he has remained in possession thereof and that such conveyances were made for the purpose of defrauding, hindering and delaying this plaintiff in the collection of his indebtedness as herein found.\\\"\\nIt was the contention of appellants that the conveyance by Timm to his wife was to^ secure her for certain money which she received by inheritance and gave to her husband to be employed in his business and to be paid back with interest \\\"when he had the money.\\\" It is quite amply proved that she received from her father and gave to her hus'band the sum of $1,000 in 1908 and the sum of $2,705.98 in 1922.\\nBy virtue of section 4 of the \\u2022Uniform Fraudulent Conveyance Act (chapter 209, Uaws S. D. 1919), if the conveyances in question rendered Herman Timm insolvent, they would be fraudulent as to creditors without regard to the intent either of Timm or his wife, if made \\\"without a fair consideration.\\\" We are satisfied that the evidence entirely supports the trial court in finding that the conveyances of July 22 rendered Herman Timm insolvent within the definition of section 2 of the law. Whether there was fair consideration, under the circumstances of this case, must depend (section 3 of the law) upon whether or not the conveyance was to secure or satisfy \\\"an antecedent debt\\\" owing from Timm to his wife by virtue of the money advanced to him as above set out. It is clear enough that the advances were made, but, in view of the relationship between husband and wife, no implication arises, merely from the receipt of the advances, of a promise to repay. It must be otherwise affirmatively established that the bus-band and wife in the particular transaction dealt with each other as debtor and creditor, and the trial court was not bound to- accept their statements on that point merely because there was no other direct evidence concerning it. Churchill & Alden Co. v. Ramsey (1926) 50 S. D. 73, 208 N. W. 406; Smith v. Gable (1930) 56 S. D. 604, 230 N. W. 28. Unless such agreement to repay was affirmatively established, the husband did not become indebted to the wife 'by reason of advances she made to him. If he was not so indebted, the transfer was not upon a fair consideration, and, if it rendered him insolvent, was fraudulent as to creditors, regardless of intent. The trial -court has found ;that the transfers did render Herman T.imm insolvent and that they were not upon fair consideration. We are unable to say that the evidence preponderates against such findings, and they are sufficient to support the conclusions and judgment.\\nFinding no prejudicial error in the record, the judgment and order appealed from must be, and they are, affirmed.\\nAll the Judges concur, except WARREN, J., who did not sit.\"}"
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+"{\"id\": \"2755903\", \"name\": \"STATE EX REL CRANE COMPANY, Plaintiff, v. STOKKE, et al, Defendants. COCHRAN SARGENT CO. et al, Appellants. EVANS, Intervenor and Respondent\", \"name_abbreviation\": \"State ex rel. Crane Co. v. Stokke\", \"decision_date\": \"1937-04-16\", \"docket_number\": \"Files Nos. 7891 and 7895\", \"first_page\": \"207\", \"last_page\": \"226\", \"citations\": \"65 S.D. 207\", \"volume\": \"65\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T01:14:34.817490+00:00\", \"provenance\": \"CAP\", \"judges\": \"RJUDOEPH, P. J., and PO'LLEY and ROBERTS, JJ., concur.\", \"parties\": \"STATE EX REL CRANE COMPANY, Plaintiff, v. STOKKE, et al, Defendants. COCHRAN SARGENT CO. et al, Appellants. EVANS, Intervenor and Respondent.\", \"head_matter\": \"STATE EX REL CRANE COMPANY, Plaintiff, v. STOKKE, et al, Defendants. COCHRAN SARGENT CO. et al, Appellants. EVANS, Intervenor and Respondent.\\n(272 N. W. 811)\\n(Files Nos. 7891 and 7895.\\nOpinion filed April 16, 1937)\\nBailey \\u2022& Vaorhees and M. T. Woods, all of Sioux Falls, for Appellant \\u00bfEtna Casualty & Surety Co.\\nCherry & Braithwaite, of Sioux Falls, for Appellant Cochran Sargent Co.\\nDanforth & Davenport, of 'Sioux Falls, for Respondent William D. Evans.\", \"word_count\": \"7093\", \"char_count\": \"41416\", \"text\": \"PER CURIAM.\\nIn the year 1929 one Iver Stokke, a resident of this State, was a sole trader engaged in the heating and plumbing business, operating sometimes under his individual name and sometimes under the name of Stokke Heating & Plumbing Company. During that year Stokke entered into five different contracts, which for convenience we will refer to by the Nos. 1 to 5 in the chronological order of the contracts, the date used in each instance being the date of Stokke's application for surety bond upon the respective contracts. They were as follows:\\nNo. 1, May 17, 1929, a contract with the State of South Dakota for installing the heating, ventilating, plumbing, and sewer in connection with the construction of a boiler 'house at the State School for the D'eaf.\\nNo. 2, June 5, 1929, a contract with the State of South Dakota for installing the heating, ventilating, plumbing, and sewer in connection with the construction of an industrial building at the State School for the Deaf.\\nNo. 3, July 20, 1929, a contract with the State of South Dakota for installing the heating, ventilating, plumbing, and sewer in connection with the construction of a dormitory at the State School for the D'eaf.\\nNo. 4, August 10, \\u00cd929, a contract with the State of South Dakota for furnishing and installing an oil burner at the State School for the Deaf.\\nNo. 5, September 13, 1929, a contract with Eiagle Butte Independent School District for installing the heating, ventilating, plumbing, and sewer in connection with the construction of a school house at Eagle Butte, S. D.\\nAs to each of the foregoing contracts Stokke was required to and did furnish a bond guaranteeing his \\u00a1performance thereof, which bonds were written in each instance by theiEtna Casualty & Surety Company (a corporation, to which we will hereinafter refer as The \\u00bfEtna). Each \\u00a1bond became effective on or about the date of Stokke's application therefor as above set out. The penal sums of the respective bond's were as follows: On contract No. 1, $13,000; on contract No. 2, $2,765; on contract No. 3, $7,093; on contract No. 4, $4,560; and on contract No. 5, $8,145.\\nBefore the completion of these contracts 'Stokke became involved in serious financial difficulties. H.e did not meet his bills for labor and material as they came- due and his creditors and his surety The \\u00bfEetna became much concerned. In February, 1931, Stokke filed a voluntary petition in bankruptcy. In May, 1931, Crane Company, who had furnished certain materials to> Stokke in connection with contract No. 3 for which payment had not been made, instituted the present action in the name of the State ('Section 8216, R. C. 1919) against Stokke and his surety The \\u00bfEtna to recover the contract price of said materials. Cochran Sargent Company, who had an unpaid claim for materials furnished to Stokke on contract No. 3 in the amount of $1,281.54 intervened and asserted its claim for that amount against Stokke and his surety. One Fred J. Huhn, who had a similar claim, also intervened and asserted his claim. The \\u00bfEtna had \\u00a1previously and admittedly become liable to Cochran Sargent Company in the amount of $2,-684.54 for material furnished by Cochran Sargent Company to Stokke on contract No. 5 for which Stokke had failed to pay. The State of South D'akota held four warrants payable to Stokke but not yet delivered to him, as follows: One warrant for $1,560, representing the balance due on the contract price of contract No. 4; two warrants, one for $530 and one for $135.61, representing payment for extra items pursuant to oral agreement in connection 'with 'contract No. 3; and one warrant for $26.89 f\\u00b0r extra work pursuant to an oral agreement in connection with contract No. 2. One William D. Evans was asserting a right to the proceeds to the $1,560 -warrant and had started suit against Stokke, garnishing the State, and Stokke himself -had meanwhile been adjudicated a bankrupt and one Gullick had been duly appointed as his trustee. After the intervention of Cochran Sargent Company and H-uhn, in an apparent effort to have all the controversies between the several parties in interest adjudicated- in one action if possible, The .\\u00bfEtna caused! Evans, Gullick, as Stokke's -trustee in bankruptcy, and- the State of South Dakota to be brought in as parties to the action. The issues between the various parties were duly joined by proper pleadings, material facts were for the most part stipulated, and the matter came on for trial in the court below where findings of fact and conclusions of law were -duly made and- judgment entered accordingly. By this judgment it was determined: First, that lapse of time had barred the use plaintiff '-Crane Company and the interveners Cochran Sargent Company and Huhn from successfully asserting any claim against the defendant The 3Etna upon its bonds as surety for the performance of 'Stokke's contracts. From this portion of the judgment no appeal has been taken. Second, it was adjudged that the use plaintiff Crane Company was entitled to the proceeds of the three smaller 'warrants and to a further judgment against the defendant Stokke. This portion of the judgment likewise stands unappealed. Third, and with reference to the $1,560 warrant representing the balance of the contract price- due from the State on contract No. 4, it was adjudged that the sum of $1,274 thereof be paid to intervener Evans, who should recover his costs against both The .\\u00bfEtna and Cochran -Sargent Company, 'and-that the balance thereof in the amount of $286 be paid to intervener -Cochran Sargent Company. As to this portion of the judgment, defendant The .\\u00bfEtna moved- for new trial and upon denial thereof appealed (appeal No. 7895), and so- likewise did intervener Cochran Sargent Company (appeal -No. 7891).\\nHowever numerous may have been the controversies between the parties below, it is clear that each of the two appeals now 'before us relates solely to the respective rights of defendant-appellant the \\u00bfEtna, intervener-appellant-respondent Cochran 'Sargent Company, and intervener-respondent Evans in and to the proceeds of the $1,560 warrant. It will be convenient, therefore, to- deal with both appeals -by this opinion.\\nBy its appeal (No. 7895) The \\u00bfEtna maintains that it should have been aWarded the entire $1,560 and predicates its claims upon, the following facts: When Stokke at the various dates hereinbefore mentioned applied to The \\u00bfEtna to become his surety and execute bond in his behalf guaranteeing his performance of the five contracts hereinbefore referred to his application for bond in each instance was in writing and provided in part as follows:\\n\\\"Third: That for the better protection of the said company, and as of the date hereof, the undersigned indemnitor (s) who are named as principal (s) in said bond do hereby assign, transfer and convey to the said Company all rights, title and interest in and to all the tools, plant, equipment and materials of every nature and description that the said principal (s) may now or hereafter have upon said work, or in or about the site thereof, or used in connection with the work and located elsewhere, including as well materials purchased for or chargeable to said contract, which might be in process of construction or storage elsewhere, or in transportation to said site, hereby assigning and conveying also' all-rights in and to all sub-contracts, which have been, or may hereafter be entered into, and the materials embraced therein, and the said principal (s) authorize and empower said company, its authorized agents or attorneys, to enter upon and take possession of such tools, plant equipment, materials and sub-contracts, and enforce, use and enjoy such possession, upon the following conditions, viz: This assignment shall be in full force and effect as of the date hereof: (1) Should the said principal (s) fail to pay any premium charge when due, or should they fail or be unable to complete, in accordance with its terms, any contract covered by a bond of this Company, or in the event the said' principal (s) abandon the work under, or fail to comply with the terms or conditions of, any such contract. (2) If the said principal, being an individual, dies, absconds, is a fugitive from justice or is convicted of a felony. (31) If the principal (s) fail to pay bills incurred on the work, when they become due and payable, whether the company may 'be liable for such bills or not. (4) If any proceedings' are brought against the principal (s) alleging that they are insolvent, or if any receiver or trustee for the benefit of creditors is appointed, whether such principal (s) are insolvent or not. (5)If any proceedings are brought which deprive the principal (s) of the use of any part of the equipment used in connection with the work under their contract so as to hinder, delay or impede the normal and satisfactory progress of the work.\\n\\\"Fourth: That the said company, as surety on said- bond, as of this date, shall be subrogated to all rights, privileges and properties of the principal (s) in said contract, and said principal (s) do 'hereby assign, transfer and convey to said) company all the deferred payments and retained percentages arising out of this contract, and any and all monies and properties that may be due and payable to said principal (s). at the time of the happening of any of the occurrences mentioned in clauses one, two1, three, four and five of the next preceding paragraph, or that may thereafter become due and payable to said principal (s) on account of this contract or on account of extra work or materials supplied in connection therefwith, hereby agreeing that all such monies and the proceeds of such payments and properties shall be the sole property of the said comapny, and to be by it credited upon any loss, damage, charge and expense1 sustained or incurred by it as above set forth under any bond of suretyship it has executed for the undersigned principal (s).\\n\\\"Fifth: Any security taken by the company, in connection with said bond, including the assignment of monies coming due from the contract, and the assignment of equipment and materials used on or in connection with such contract, may be held by the company, as a protection against any bond heretofore or hereafter executed by the company on behalf of the undersigned) principal (s), and the company may sell or realize upon the said collateral at its discretion, at public or private sale, and with or without notice to the indemnitor (s) of the time or place of such sale, for the purpose of protecting itself against any claim, demand or loss under the said bond, or any other bond so outstanding and after indemni fying itself fully for any loss incurred on any bond issued at the request of the said principal (s), any balance, after such reimbursements, shall be paid to said principal (s), after all liability of the company has ceased to exist under said bond or bonds.\\\"\\nDuring the period from June to the middle of September 1929, The \\u00bfEtna had become surety for iStokke upon all five of the contracts. It is conceded, and the court found, that as early as November 29, 1929, Stokke failed to pay bills incurred on some of these contracts (application, paragraph third, subdivision 3) and the creditors complained thereof to the surety. The \\u00bfEtna maintains that upon the happening of this contingency the assignment of moneys due or to become due on the contract embraced in the application above quoted become effective as to each of the five contracts as of the bond application date, which so far as concerns contract No. 4 relating to the oil burner whence the fund of $1,560 derives was August 10, 1929. The \\u00bfEtna maintains, therefore, that from and after November 29, 1929, it had a valid assignment as of August 10, 1929, of all moneys due or to become due on contract No. 4. The \\u00bfEtna further maintains that by virtue of the provisions of paragraph fifth of the application above quoted it was entitled to hold such assignment as a protection against liability on any bonds previously or subsequently executed by it in behalf of Stokke and to> protect itself against claim, demand, or loss under any bond it had- outstanding in Stokke's behalf. The \\u00bfEtna suffered no loss 'by reason of having bonded Stokke on contract No. 4, nor did it suffer any loss by reason of 'having bonded Stokke on any of the other contracts performed at the School for the Deaf, being contracts numbered 1, 2, and 3. Admittedly, however, The \\u00bfEtna did suffer a loss arising from its obligations incurred as surety for Stokke on contract No. 5 (The 'Eagle Butte schoolhouse), in that it incurred liability to 'Cochran Sargent Company, which it presently paid, in the amount of $2,684.54 for materials fumis'hedl by Cochran Sargent Company on the Eagle Butte job for which Stokke failed to pay. The \\u00bfEtna consequently claims that by virtue of the assignment embraced in the 'bond application it became the equitable owner on November 29, 1929, as of August 10, 19(29, of this $1,560 and that it is entitled to retain the same and apply it to the recoupment of its loss of $2,684.54 suffered on contract number 5.\\nCochran iSargent Company by its appeal (No. 7891) maintains in turn that it is entitled not only to the portion of the $1,560 fund awarded it by the court ($286) but to the whole thereof and bases its claim upon the following facts: By April, 1930, Stokke was indebted to Cochran Sargent Company for materials furnished upon the four contracts at the School for the Deaf in an amount of $1,-281.54, all past due and unpaid. Dor the payment of this amount The Etna would 'have been liable to Cochran Sargent Company by virtue of its bonds guaranteeing the four contracts if proper claim had been made therefor in due time. Stokke was also1 indebted to Cochran Sargent Company in a sum in excess of $10,000 for materials furnished to him in 'Connection with other contracts not involved in this case, all of which was past due and unpaid. Oh April 14, 1930, Stokke, for the purpose of protecting Cochran Sargent Company as to these amounts, transferred and assigned to said Cochran Sargent Company as collateral all amounts due and owing to him or to become due and owing to' him from the School for the Deaf on contracts for labor and material furnished and performed or to be furnished and performed at said School for the Deaf. On the day of its date this assignment was presented to and accepted by the superintendent of the 'School for the Deaf by written indorsement thereon as follows:\\n\\\"I hereby accept the above assignment and agree to pay all warrants covering the above sum direct to Cochran Sargent Company on or before the 14th day of April, 1930.\\n\\\"E. S. Tillinghast, \\\"Supt. S. D. 'School for Deaf.\\\"\\nAit the time of taking this assignment Cochran Sargent Company had no knowledge of any claim of prior assignment by the Etna nor did it have knowledge of any claim of any kind by the intervener Evans. Coohran Sargent Company does not claim that it furnished any further materials to Stokke after the talcing of this assignment, but it does contend that, by virtue of having this assignment and in reliance thereon, it refrained from filing claims against The Etna for $1,281.54 for materials furnished on contracts bonded by The Etna, which claims it could have filed and 'but for said assignment 'would have filed. Upon these facts Cochran Sargent Company insists that it is entitled to the entire sum of $1,560 and that even -upon views of the law most unfavorable to- its contentions it should! at least be entitled to $2,281.54 thereof.\\nIn both appeals the interest of intervener William D. Evans is entirely that of a respondent. He maintained that he was entitled to $1,274 of the $1,560 fund, and the trial court awarded him all that he asked. He rests his position upon the following facts: In June or July, 1929, it was agreed between intervener Evans and defendant Stokke that they would enter a bid for furnishing and installing the oil burner at the School for the Deaf, being the work covered by contract No. 4 subsequently entered into- by Stokke. It was agreed that the bid should- be in the name of Stokke and, if they were successful bidders, that the contract should be taken in the name of Stokke and- that Evans should personally supervise the ordering and installation of the equipment and that after paying the cost of the equipment and the cost of installing the same the balance of the contract price should be equally divided between them. Their bid in the name of 'Stokke being successful, contract was awarded in the name of Stokke for the agreed price of $4,560. Pursuant to the oral agreement, Evans ordered and supervised the installation of the burner. The total cost of the material and installation thereof -was $2,012, leaving a profit on the contract of $2,548. Evans never having received anything out of the contract, maintains that he is entitled to receive out of the $1,560 fund arising from the performance of this -contract his half of the profit over and above the cost of material and labor, to wit, $1,274. He maintains that he was always the equitable owner of this fund to this extent and- that Stokke had not right to assign or dispose of his interest therein and that his rights thereto are superior to any claims either of The SEtn-a or to Cochran Sargent Company.\\nEor the moment we will put entirely to one side the claim of Evans and the facts relating thereto and! will consider the matter as though Stokke individually (in -whose name the oil burner contract was taken)' was in fact the sole party who had any right or interest therein, and we will assume as unquestioned, for the present, that Stokke had full and complete right to deal with said contract and all the proceeds thereof as he saw fit. Dealing with the matter from this aspect, we will consider the respective claims and priorities of The .\\u00bfEtna and Cochran Sargent Company. The learned trial judge, iby awarding to Cochran Sargent Company the balance of the fund over and above what he allowed to intervener Evans, determined of course that the rights of Cochran Sargent Company (at least up to the extent of $1,281.54) were superior to the rights of The \\u00bfEtna.\\nThere is no question \\u00a1but that Stokke made an assignment to The \\u00bfEtna and likewise to Cochran Sargent Company. What Stokke had to assign and did assign was a contract right to receive money \\u2014 a chose in action. The loss which The \\u00bfEtna seeks to recoup was not suffered on this particular contract No. 4, and the materials for which Cochran Sargent Company was unpaid were not furnished on this particular contract. The \\u00bfEtna and Cochran Sargent Company occupy the position of successive assignees of a chose in action. Cochran Sargent Company admits that the assignment of The \\u00bfEtna was prior in point of time. The record also shows that when Cochran Sargent Company took its assignment it had not notice of the prior assignment, and the record further shows that Cochran Sargent Company, although the subsequent assignee, was the first to give notice to the debtor. In making this last above statement, we assume, without deciding, as counsel in the case have assumed, that, under the circumstances of this case, notice to the superintendent of the School for the Deaf was in fact and law notice to the debtor. The \\u00bfEtna maintains that the first assignee should prevail; Cochran Sargent Company maintains that the assignee who first gave notice to the debtor should prevail. These contentions present squarely a most interesting and much controverted question. The \\u00bfEtna contends for what is frequently known as the American rule, which has been the law in a numerical minority of our state jurisdictions and which 'became the law of the federal courts by the decision in the leading case of Salem Trust Co. v. Manufacturers' Finance Co. (1924) 264 U. S. 182, 44 S. Ct. 266, 68 L. Ed. 628, 31 A. L. R. 867. Cochran Sargent Company advocates what is generally denominated the English rule arising out of the case of Dearle v. Hall (1828) 3 Riuss. 1, 38 Eng. Rep., -Full Reprint, 475. The situation is well stated by a commentator in 33 Yale Law Journal, 767, as follows:\\n\\\"In the leading case of Dearie v. Hall the English courts early established the rule later broadened to cover all assignments of dioses in action that a subsequent assignee of a cestui's interest who inquired of the trustee and gave him notice of his assignment was entitled to priority over a former assignee who- failed to give such notice. This doctrine was based on the analogy to the sale of chattels to a later vendee by a vendor who has 'been allowed to- remain in possession, and also on the theory that it 'was the only way to protect against the fraud of the assignor. A few years later the requirement of inquiry was eliminated, and prior notice to the debtor alone was held sufficient. This is the present so-called English doctrine. The rule does not apply to assignments of equitable interests in land, or to cases where recordation of assignments is provided for. Ntor can the second assignee recover unless he is a purchaser for value and without notice of the prior assignment. Other courts, however, refused to adopt this doctrine, and applied the general rule that between equal equities, the one prior in time prevails regardless of notice. The basis of this latter rule is often said to be that the assignor has conveyed all his 'title' to the first assignee and has nothing left to- convey to the second, and that notice is not necessary to consummate the right of the first assignee. Even' under this theory if the second assignee obtains payment from the debtor, or effects a novation with the debtor, or reduces his claim to a judgment, he prevails over the first assignee. And the first assignee may- by his conduct be estopped from claiming priority. In the United States the authorities are almost evenly divided between the two views. The United States Supreme Court has recently in the case of Salem Trust Co. v. Manufacturers' Finance Co. (1924) [264 U. S. 182] 44 S. Ct. 266 [68 E. Ed. 628, 31 A. L. R. 867], definitely adopted the rule preferring the first assignee.\\\"\\nFor other legal periodical discussion on the point see 39 Harv. Law Rev. 649; 11 Va. Law Rev. 62; 24 Columbia Law Rev. 501; 19 Minn. Law Rev. 236; 6 St. John's Law Rev. 375. Cases presenting both views are collected in a comprehensive annotation in 31 A. L. R. at page 876. The matter is also discussed in Williston on Contracts (Rev. Ed. 1936) \\u00a7 435, and many -cases cited. Even the courts adhering to the American view of protecting the first assignee require him to yield to a subsequent assignee first giving notice in some instances and under some circumstances. See 4 Am. Jur. p. 312, and cases cited. As stated by the United States Supreme Court in the Salem Trust Co. Case, supra: \\\"If equities are equal, t'he first in time is best in right. Otherwise the stronger equity will prevail.\\\"\\nWe think therefore that because of the stronger equity of the Cochran Sargent Company, so far as concerns the sum of $1,-281.54 for which they might have enforced a claim, against The \\u00bfEtna, that under either view Cochran Sargent Company must prevail over The \\u00bfEtna to this extent. In this case we are dealing with a surety. As stated in the case of Jenkins v. National Surety Co., 277 U. S. 258, 48 S. Ct. 445, 72 L. Ed. 874: \\\"Whenever equitable principles are called! in play, as they pre-eminently are in determining the rights and liabilities of sureties and 'in the distribution of insolvents' estates, they likewise forbid the surety to secure by independent contract with the debtor indemnity at the expense of the creditor whose claim he has undertaken to secure.\\\"\\nSo in this case we believe that Cochran Sargent has a stronger equity than The \\u00bfEtna to the extent of $1,281.54. Cochran Sargent took its assignment to. protect the surety as much as itself, and now the surety is claiming an assignment of the same fund at the expense of the creditor whose claim, it has undertaken to secure. Clearly, it seems to. us, equities are not equal in this case. As between the two, Cochran Sargent 'Company has a stronger equity than the \\u00bfEtna in the $1,'281.54 and to that extent must prevail. As to the balance of the fund we believe the \\u00bfEtna should prevail. Wte are convinced that the American doctrine has the support of the better reason and we are content to adopt it as the law of this State, and give it application whenever the equities are equal.\\nWe come now to consider the relative rights of appellants and respondent Evans.\\nRespondent Evans suggests that The \\u00bfEtna has no valid assignment from Stokke or, if it has such assignment, that the same is not sufficient to cover the balance of $1,560 due on the oil burner contract. We think otherwise, as we have pointed out at some length in discussing the relative rights of The \\u00bfEtna and Cochran Sargent 'Company.\\nEvans urges also that he has a prior right to the fund in question by virtue of his garnishment proceedings instituted January io, 1931, and says that but for such garnishment the entire fund would have been .paid to Stokke . The garnishment of course was subsequent in time to the assignment to* The \\u00bfEtna, whether such assignment be 'deemed effective from the date of the bond application (August 10, 1929) or from the date when Stokke failed to pay when due bills incurred upon contracts bonded by The \\u00bfEtna (November 29, 1929). 'So1 far as concerns the contention that the fund would have been paid to Stokke but for the garnishment of Evans in I93'i, the stipulation of facts entered into* by all parties in the court below says, with reference to the withholding of this as well as other warrants from Stokke, as follows: \\\"Payment of these funds 'has been withheld on account of complaints by the Keasby-Mattison Company made beginning about November 29th, 1929, that they were not paid by Mr. Stokke, and subsequent information as to Stokke's poor financial condition and the request of The \\u00bfEtna Casualty & Surety Company as a creditor bonding company made June 23rd, 1930, and the subsequent bankruptcy of Stokke.\\\"\\nIn the face of this stipulation Evans is manifestly in no position to urge that the money would have gone to* Stokke but for his garnishment in 1931.\\nRespondent Evans appears chiefly to rely, however, upon the proposition that by virtue of his agreement with Stokke the oil burner contract became a joint adventure, upon the part of the two of them and that he (Evans) is entitled to one-half of the profit thereof in the conceded amount of $1,274 and that the assigned chose in action was his to the extent of such $1,-274 and that to that extent Stokke was powerless to assign or convey the same, citing 33. C. J. p. 874, and Curnen v. Ryan (19191) 187 App. Div. 6, 175 N. Y. S. 50. The concept of joint adventure as a legal relationship or association sui generis is purely of American origin dating from about 1890. Just how or why it originated no one seems precisely to know. Despite much loose language in the decisions, no* valid tests seem ever to have been established or to* have met with any general acceptance whereby the relationship of joint adventure was distinguishable in -its legal results from partnership save perhaps that it has been often said (though seldom tried) that joint adven turers might sue one another at law while partners must sue in equity. In commenting upon the matter in a recent article (15 Minn. Law Rev. 644, at page 660) Professor Frank L. Mechem says:\\n\\\"Historically there appears to Ibe no explanation of the joint adventure concept. Partnership seems to have been recognized as a legal relationship long before the modern theory of a joint adventure made its appearance in the law, although joint adventure situations are usually much less complex and SO' much more likely to exist in the earlier stages of economic group development. However, if they did the courts saw nothing distinctive in them but lumped them together with partnership, and this practice continues to be the accepted rule in England. Therefore, the concept must be regarded as distinctly modern and local, appearing, as it does, only in the decisions of the American courts.\\n\\\"It is practically impossible to estimate accurately when and how the theory of joint adventure had its origin. Progress in that direction is impeded by two things \\u2014 (1) failure of the earliest cases in which the name is employed to explain how it was used, (2) failure of the later decisions to explain from what source the concept was derived. The first cases in which the name was used were Hourquebie v. Girard [Fed. Cas. No. 6,733] and Lyles v. Styles [Fed. Cas. No. 8,625]. From the appearance of these cases down to the Civil War period there are a very few scattering uses of it, but in all of these cases it seems probable that the courts were making use of it, not to describe the relationship of the parties, but to describe the object or purpose of the relationship. In many of them, the reference is to 'adventure/ 'ventures' or 'enterprise' instead of to 'joint adventure.' How much of this language was the result of conscious choice and -how touch the result of .precedent or convenience in expression Will never be known. At any rate, it was not until the decision in Ross v. Willett [76 Hun. 211, 27 N. Y. S. 785] that the courts began to refer unequivocally to joint adventure as a legal relationship. But the development since that case has been phenomenal. This may be attributed in part to the fact that the courts had many ready-made rules for it, and in part to the large number of undertakings of the kind to which the concept was thought to apply. Governed entirely by established laws of partnership, there was nothing new in joint adventure to retard its growth, and many of the difficulties ordinarily encountered in the selection of principles had already 'been disposed of in the partnership cases.\\n\\\"There is a suggestion of economic significance in the fact that joint adventure grew up during a period of extreme transition and uncertainty in the law of business association. However, the obstacles to further correlation are so> great, due to the generality with which this newcomer in the field of associations was developed that its recorded history can hardly be regarded as a useful source from which to glean an explanation of its origin.\\n\\\"On the 'whole the concept of joint adventure as- a relationship or association different from partnership, seems to have little, if any, reality. To a lawyer or to a litigant it can make no difference in the present state of the law, whether the courts calls the association by one name or the other. For all practical purposes no one cares very much whether the law treats joint adventures as a special type of partnership or a different kind of association. The consequences of being held to be one or the other are almost, if not quite, identical.\\n\\\"A recent California case [Wallace v. Pacific Electric R. Co., 105 Cal. App. 664, 288 P. 834] lays down a common test for partnership and joint adventure. The court was asked to construe a contract as creating either a partnership or a joint adventure between the contracting parties. They refused this request, saying:\\n\\\" 'Our conclusion is that the contract relationship of the defendants, each to the other, is neither that of partners nor of joint adventurers. The intention of the parties to the contract as expressed therein, is clearly against the contention of partnership or joint adventure, in that said contract provides for a letting to' the express company of the right to control, conduct and transact transportation business over the lines of the railway company, and the railway company agrees to furnish the necessary cars and car space to the express company for the per centum of net proceeds as compensation. A sharing of profits is not the only test; there must be a community of interest in the business to constitute either a partnership or a joint adventure.. Under contract the business is the business of the express company and not the business of the railway company.'\\n\\\"When the law has progressed to this point. \\u2014 viz., applying the same test and reaching the same legal consequences for 'both partnership and joint adventure \\u2014 the usefulness of regarding joint adventure as a distinct kind of relation or association seems questionable.\\\"\\nAnd after further discussion Professor Mechem states his conclusions as follows (p. 655) :\\n\\\"A resume of what has been decided in the joint adventure cases clearly reveals that the appellation 'joint adventure' is very loosely employed by many courts. It has been made to include not only associations of two or more persons for the purpose of carrying out a specific business transaction for profit, but also some associations formed for the purpose of, and engaged in the prosecution of a general business over an extended period of time, as well as situations like that in Cecil v. Montgomery [93 Okl. 184, 218 P. 311] involving no more than tenancy in common, or as in other cases, no more than a debtor-creditor relationship.\\n\\\"Except for t)he latter class of cases, the use of a distinctive name such as 'joint adventure' is of no legal significance whatever. This is simply because, at the present time, there is no law of joint adventure. There is a law of partnership and that is all. The law of partnership is applied, point for point to all joint adventure controversies, and identical results are reached, under similar circumstances, no matter whether the association is regarded as a partnership or a joint adventure. In the tenancy in commpn, debtor-creditor situations, rules of law are applied and results reached somewhat different from those that would have followed had the association been regarded as a partnership, but the significance of calling the situation one of joint adventure instead of by the more cumbersome name of tenancy in common plus a fiduciary relationship ad hoc seems to lie wholly in convenience of designation. Such, situations as these are quite different from partnership situations, but no one has ever supposed that there is any similarity between them.\\n\\\"It logically follows from this that there is no reason for distinguishing partnership and joint adventure situations by making a separate classification for the latter, unless perhaps for purposes of convenience in describing a kind' of partnership, and even so it is arguable that the English practice of calling it a special partnership is more in harmony with a desire for simplicity and uniformity in the classification of la'w and legal relationships.\\n\\\"But even if it was desirable to maintain the asserted distinction 'between partnership and joint adventure, it seems obvious upon a moment's reflection that such a distinction should not be predicated entirely upon a difference in the purposes of the associations. In view of the magnitude and complexity of many joint adventures, is it not contradicting the facts to say that partnerships are business organizations and they are not? It is submitted that if any dividing line should be drawn between partnership and joint adventure, for whatever purposes, the distinction should be predicated upon differences in what the associations do and not upon the pre-organization declaration of ultimate purpose.\\n\\\"Paucity of adverse comment upon the concept of joint adventure as an independent legal relationship supposedly governed by laws to some extent different from those applicable to- partnerships is no doubt attributable in part to the fact that no litigant has been seriously prejudiced by such a concept. Whether or not a retention of this concept in future controversies will have such an effect is not a matter about which the writer cares to make a guess. 'What has been said here is merely an attempt to make an appraisal of the present situation and show the fallacy of the current conception of joint adventure.\\\"\\nFor other comment see 33 Harv. Law Rev. 852; 21 Va. Law Rev. 821; 33 Mich. Law Rev. 436.\\nWe are under no necessity in the instant case of determining whether or not the law of this State does or should recognize joint adventure as a legal relation different and distinct from partnership. So far as concerns the rights of respondent Evans in this case it is entirely immaterial whether he be deemed- a partner of Stokke or a joint adventurer with Stokke if the two terms are not in legal substance synonymous. Concededly, it is the general rule applicable alike to joint adventure and to partnership that one adventurer (or partner) cannot dispose of a coadventurer's (or co-partner's) interest in the joint property. It is the rule established by the great majority of decided cases that there is the same element of mutual agency in joint adventures as in partnerships and that a member of a joint adventure can bind his associates, whether disclosed or undisclosed (as can a .partner), by such contracts as are reasonably necessary to carry on the venture. In the instant case, the rights of Eivans, whether he was a partner or a joint adventurer, were at all times undisclosed to all other parties until long after the assignment to The \\u00bfEtna. This is not a case where The \\u00bfEtna as a creditor of Stokke demanded some security and received in response to such demand the assignment of the chose in action here involved. The right of The \\u00bfEtna to its assignment dates from tihe bond application. By the terms of the joint adventure or partnership agreement Stokke was to bid for, and if possible secure, the oil burner contract and enter into- such contract in his own name. Evans knew, or is chargeable as a matter of law with knowing, that Stokke could not enter into this oil burner contract with the 'State of South Dakota without putting up a surety bond to guarantee his performance thereof. Evans . must be bound by any reasonable agreement that Stokke made for the purpose of securing a bond- -which was a prerequisite to enjoying the joint adventure contract. Evans cannot claim the benefit of that bond and repudiate the covenants entered into by Stokke for the purpose of obtaining it. Part of the price- which Stokke paid for the bond was his agreement for the assignment if he should default in the performance of this or any other contract entered into by him bonded by The \\u00bfEtna. This was a valid, reasonable, and enforceable covenant, entered into for the purpose of securing the bond which was essential to permit the performance of the joint adventure, and Evans should not be permitted to repudiate it by coming in and setting up an interest at all times previously undisclosed. As joint adventurer or partner he must bear the burdens of the contract which Stokke made and which was reasonable and necessary for the furtherance of the joint enterprise.\\nRespondent Evans suggests that he should prevail because the fund in question was created by his efforts. Admittedly, Evans supervised and superintended the installation of the oil burner. It is to be noted that Evans made no attempt in the court below to establish the reasonable value of such service as he actually rendered, and did not seek recovery on the theory that he had contributed a certain value to- the enterprise by way of supervision. What he seeks to recover is not the reasonable value of his contribution, but a one-half share of the claimed profit of the undertaking. In any event, he stands in this regard in no better position than does The \\u00bfEtna. It is true that Evans furnished the necessary supervision for the performance of this contract and, if such supervision had not been furnished by some one, presumably the contract would not,have been performed and the fund would not exist. On the other hand, The \\u00bfEtna furnished the surety bond by virtue of which the contract was obtained, and it is equally true that, if this bond had not been furnished by some satisfactory surety, the contract would not have been obtained and the fund would not exist. Upon all the facts and circumstances presented by this record, we are of the opinion that respondent 'Evans, whether a joint adventurer or a copartner, must be 'bound by the assignment given by Stolcke.\\nThe orders denying motion for new trial and the portion of the judgment appealed from are 'therefore reversed, and the cause is remanded, with directions to the trial court t0' make proper conclusions and judgment upon the stipulated facts awarding $1,281.54 to Cochran Sargent Company and the balance of the $1,560 to The \\u00bfEtna. ;\\nIn appeal No. 7895 The \\u00bfEtna may tax its costs in this court against Evans. In appeal No. 7891 the Cochran Sargent Company may tax its costs in this court against Evans.\\nRJUDOEPH, P. J., and PO'LLEY and ROBERTS, JJ., concur.\\nWARREN and SMITH, JJ., not sitting.\"}"
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+"{\"id\": \"2770638\", \"name\": \"MANLEY, Respondent, v. BIDWELL, Appellant\", \"name_abbreviation\": \"Manley v. Bidwell\", \"decision_date\": \"1928-07-14\", \"docket_number\": \"File No. 6284\", \"first_page\": \"282\", \"last_page\": \"286\", \"citations\": \"53 S.D. 282\", \"volume\": \"53\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:05:13.598113+00:00\", \"provenance\": \"CAP\", \"judges\": \"BURCH, P. J., and POEUEY and SHERWOOD) JJ., concur..\", \"parties\": \"MANLEY, Respondent, v. BIDWELL, Appellant.\", \"head_matter\": \"MANLEY, Respondent, v. BIDWELL, Appellant.\\n(220 N. W. 482.)\\n(File No. 6284.\\nOpinion filed July 14, 1928.)\\nM. Q. Sharpe, of Kennebec, Wm. Williamson, of Custer, and Jones, Matthews & Fitzpatrick, of Sioux Falls, for Appellant.\\nKirby, Kirby & Kirby, of Sioux Falls, for Respondent.\", \"word_count\": \"1127\", \"char_count\": \"6396\", \"text\": \"BROWN, J.\\nOn October 18, 1918, the owner of 160 acres of land in Jones county, S. D., mortgaged it to F. A. Bidwell to secure a note or mortgage bond for $500 due November 1, 1923, with interest at 7 per cent per annum, payable annually. On December 31, 1928, respondent bought the land, and, by a clause in his deed, he assumed and agreed to, pay the mortgage. Bidwell, a resident of 'Mitchell, S. D., lived temporarily at Glendale, Cal., for some time before and after the maturity of the mortgage. Respondent lived at Sioux Falls. On October 4, 1923, Bidwell wrote respondent reminding him of the due date of the mortgage, and respondent, who had $2,000 in checking account in Sioux Falls National Bank, directed the bank to- pay the mortgage.\\nOn October 29th, the bank wrote Bidwell inclosing a satisfaction of the mortgage, requesting its execution and return, and stating that the bank would collect and remit. On November 2d', Bidwell replied that it was not his custom to send out loan papers for collection, that the amount due November 1st was $545, which, 'he said, \\\"bears 10 per cent from November 1, 1923, until paid,\\\" and he stated that \\\"the amount due\\\" might be sent \\\"to Security Trust & Savings Bank of Clendale, Gal., and the papers will be turned in to that bank.\\\"\\nOn November 6th the Sioux Falls bank mailed the Glendale bank a Chicago' draft for $545, to be turned over to- Bidwell on receipt of the satisfaction and other loan papers. The Glendale bank notified Bidwell, who' declined to accept the draft because it was short the interest from November 1st. On November 17th, Glendale bank returned the draft to the Sioux Falls bank, stating that Bidwell saj^s \\\"he is to- receive 10 per cent additional from November 1st to date payment reaches him.\\\"\\nOn 'December 8th the Sioux Falls bank returned the $545 draft to the Glendale Bank with another for $6.04 as interest at 10 per cent from' November 1st to December 10th, at which latter date it assumed the drafts would arrive at Glendale.\\nThe Glendale bank received the drafts on. December nth or 12th, and the officer having charge of the matter says that presumably he notified Bidwell within a day or two- afterward, and such is his best recollection. Bidwell says he did not reecive such a notice, but says he inquired of that officer at the bank about the Manley drafts a couple of times, once about December 7th and again on December 31st. He does not say what response he got to either inquiry. <\\nAt the close of the day's business on January 10, 1924, respondent still had about $2,000 on deposit in the Sioux Falls, bank, and that bank had on deposit in the Chicago bank on which the $545 and $6.04 drafts- were drawn, $4,538.20 in excess of all drafts drawn against the account. The Sioux Falls bank went into the hands of a receiver on the morning of January 11, 1924. Ota that day Bidwell went to the Glendale bank in response to a notice to- call in regard to the Manley mortgage. Bidwell told the assistant cashier, who- had charge of this matter, that he had heard that a big bank in South Dakota has closed its doors. The assistant cashier telephoned the Federal Reserve Bank at Dos Angeles and learned that the 'Sioux -Falls National Bank had failed. Bid-well refused to accept the drafts, and says he would not have accepted them anyway, because they were insufficient in am'ount, and the Glendale bank would not credit him with the amount absolutely, but only subject to- final payment.\\nThe trial court held that the mortgage -debt was paid, adjudged the cancellation and satisfaction of the mortgage, and, from the judgment and an order denying a new trial, this appeal is taken.\\nAppellant argues earnestly that the Glendale bank was respondent's agent to make payment; that this is shown conclusively by the letter of the Sioux Falls bank transmitting the $545 draft to be turned over to Bidwell, and directing the Glendale bank to procure and return the loan papers \\\"and advise us of your charges.\\\" It is unnecessary to analyze the reasoning on this point. Whatever may have been the relation between respondent and the Glendale bank, it is certain that Bidwell expressly and in writing' made that bank his agent to receive payment.\\nIn his letter of November 2d, he wrote that Manley \\\"can send the amount due to' Security Trust & Savings Bank of Glendale, California, and the papers will be turned in to that bank.\\\"\\nAppellant, assuming that the two drafts did not reach Glendale until December 12th, contends that they were 32 cents short of the amount due, and that the principle of \\\"de minimis non curat lex\\\" is not applicable- in this case, where Bidwell had once objected to the $545 draft as insufficient. It is unnecessary to decide whether or not that principle is- applicable, for it is not involved. The amount of the two drafts was more than was due on the notes on December 12th. The $500 note provides that it \\\"shall bear interest after maturity at the rate of - per cent per annum until paid.\\\" No rate being named, it could not draw more than the legal rate of 7 per cent. Code, \\u00a7 1039. .The interest accruing on the entire obligation after November 1, 1923, was less than 11 cents a day. To December 12th was 42 days, which, at 11 cents, is $4.62. In payment of this $6.04 was sent, $142 more than enough.\\nThe contention that the -Glendale bank had no. authority to accept drafts, but could only accept cash, is untenable. It is out of tune with modern life. When the $545 -draft was returned to the Sioux Falls bank because insufficient in amount, no objection was made that it was in font\\u00bb of a draft, and not in currency or coin. There w-as even an implied approval of the form- of the remittance, for it was said, in the letter returning the $545 draft, \\\"Mr. Bidiwell states that he is to receive 10 per cent additional, from November 1st to- date payment reaches him,\\\" thus in dicating that the same draft, with the interest additional, would be accepted.\\nThe judgment and order appealed from are affirmed.\\nBURCH, P. J., and POEUEY and SHERWOOD) JJ., concur..\\nCAMPEELE, j., concurs in the result.\"}"
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+"{\"id\": \"2849734\", \"name\": \"MUSTAR, Appellant, v. McCOMB et al., Respondents\", \"name_abbreviation\": \"Mustar v. McComb\", \"decision_date\": \"1917-11-12\", \"docket_number\": \"File No. 4141\", \"first_page\": \"439\", \"last_page\": \"447\", \"citations\": \"39 S.D. 439\", \"volume\": \"39\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T18:56:09.304317+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MUSTAR, Appellant, v. McCOMB et al., Respondents.\", \"head_matter\": \"MUSTAR, Appellant, v. McCOMB et al., Respondents.\\n(164 N. W. 975.)\\n(File No. 4141.\\nOpinion filed November 12, 1917.\\nRehearing granted December 31, 1917.)\\n1. Fraudulent Conveyances \\u2014 Knowledge of Intended Fraud \\u2014 Direct Evidence of Fraud, Whether Necessary.\\nDirect evidence -tending to establish fraudulent character of a conveyance- is not essential; since fraud and knowledge of intended fraud may he shown by circumstantial evidence.\\n2. Same \\u2014 Debtor\\u2019s Conveyance to Brother Business Associate, Effect.\\nThe fact that grantor and grantee are brothers and business associates is not in itself evidence of fraud, nor of intention -to defraud others; it is simply a circumstance that may cast suspicion upon the transaction, a suspicion removable by evidence showing the transaction was otherwise bona fide. Held, further, that a sale to a relative is not fraudulent unless it would be fraudulent for other reasons and in absence of such relationship. \\u2022\\n3. game \\u2014 Conveyance of all Debtor\\u2019s Property, Whether Fraudulent re Creditors.\\nConceding that the property described in a debtor\\u2019s deed to his brother, a creditor, was all of the debtor\\u2019s -property, this would not prove, nor tend to prove the transaction fraudulent; since, if grantor actually owed grantee an amount equal in value to grantor\\u2019s interest in the incumbered land conveyed, he had a right to convey the .property in -payment of such debt.\\n4. Same \\u2014 Grantee\\u2019s Knowledge of Grantor\\u2019s Insolvency, Whether Material \\u2014 Other Creditors\\u2019 Status, Immateriality.\\nThe fact that grantee may have known that grantor was insolvent at time of the conveyance complained of by other creditors, is wholly immaterial; as is the fact that grantee knew that if he accepted the property so conveyed in payment of his debt, there would be nothing left to pay debts of other creditors.\\n5. Same \\u2014 Relative Value of Debtor\\u2019s Conveyed Property and Grantee\\u2019s Claim..\\nWhere the undisputed evidence showed that grantor owed grantee at least $8,000 and that the land conveyed was mortgaged for $6,400, the land not being worth more than $35 per acre, at which valuation it would amount to $11,000, such conveyance was not fraudulent as to other creditors.\\n6. Same \\u2014 Insolvent Debtor, Right of to Prefer Creditors.\\nA debtor, although hopelessly insolvent, may prefer one creditor to another, and assign all his property to such creditor in payment of his debt; construing Civ. Code, Sec. 2366. Held, further, that a creditor has a right to .accept from his debtor enough of debtor\\u2019s property or money to pay his debt, even though he knows there will be nothing left debtor with which to pay other creditors; and although this will necessarily hinder and delay said creditors in collection of their debts, and may prevent their being collected at all, this does not render the conveyance fraudulent.\\n7. Same \\u2014 Intent to Defraud, Pending Creditor\\u2019s Suit As Affecting Intent.\\nThe fact that one of the creditors had sued on \\u2022 a claim against debtor shortly prior to execution of debtor\\u2019s deed given in payment to another creditor, sheds no light upon the question whether such conveyance was fraudulent; no judgment having been entered; the commencement of suit neither constituted a lien upon the property nor prevented its sale.\\n8. Same \\u2014 Expressed Consideration, Whether Fictitious \\u2014 Measure of ' Credit Through Incumbered hand Conveyance.'\\nWhere the expressed consideration in a debtor\\u2019s deed to his creditor in payment of his debt was $11,000, the land being worth $35. per acre, at which price it would be worth the expressed consideration,, and was mortgaged for $6,400, the debt \\u25a0being $8,000, such expressed consideration is not fictitious; the creditor having refused to allow more, than $30. per acre, but it being finally agreed that debtor should be credited with the amount for which the property should be sold, it having been sold for $35. per acre; and debtor was entitled to credit at the latter price.\\n9. Same \\u2014 Creditor\\u2019s Purchase, of Sheriff\\u2019s Sale Certificate, Whether Evidence of Creditor\\u2019s Fraud.\\nThe fact that a creditor, who had previously received from debtor a deed conveying debtor\\u2019s realty in payment of his debt, \\u25a0purchased a sheriff\\u2019s certificate of sale under execution upon a judgment in favor of another creditor, and. later took a sheriff\\u2019s deed, to the property, it being part of the .property so previously conveyed, is not evidence! of -a fraudulent intent on the .part of such granteei; that he was under no obligation to resist the levy of said execution, or redeem from the sheriff\\u2019s sale; when execution was levied he could adopt one of three courses \\u2014 resist levy and sale; permit sale to he made, then redeem; or taka an assignment of said sheriff\\u2019s certificate.\\n10. Same \\u2014 Debtor\\u2019s Absolute Conveyance to Creditor, Effect on Other Creditors \\u2014 No Secret Trust.\\nSo long as a debtor conveys the absolute title to his property to a given creditor, without any secret trust or reservation of benefits to himself, a- court is without power tq grant relief, and may not interfere in favor of other creditors who are thereby excluded from reaching debtor\\u2019s said property. Walklin v. Horswill, 24 S. I>. 191, 123 N. W. 688, distinguished.\\nGates, P. J., dissenting.\\nAppeal from Circuit Court, Spink County. Hon. Alva E. Taylor, Judge.\\nAction, by Z. P. Mustar, against Edwin McComb and H. H. Hanson,, as sheriff of Spink county, South Dakota, to determine1 ownership of certain land. Erom a judgment for defendant; and from an order 'denying a new trial, plaintiff appeals.\\nReversed.\\nSterling & Clark, for Appellant.\\nMorris & Moriarty, for Respondents,\\n(2) To point two of the opinion, Respondents cited: Burt v. Timmons (W. Va.) 2 S. E. 780; Bump, Eraudulent Conveyances, 96.\\n(3) To point three of the opinion, Respondents cited: 20 Cyc. 449, and cases there cited.\\n(4) To point four of the opinion, Appellant cited: .20 Cyc. pp. 474-5.\\n(5) To point five of the opinion, Appellant cited.: 20 Cyc. p. 469.\", \"word_count\": \"3508\", \"char_count\": \"20080\", \"text\": \"FOELEY, J.\\nThis action was brought to determine the ownership of a half section of land' in Spink county. Prior to the transactions involved in this case the land was owned by one G. H. Brown. He executed a deed conveying the land to' his brother, W. H. Brown, who in turn sold it to -the plaintiff. The deed in question was executed' on the 27th day of September, A. D. 1913. It contained an error in the description of the land intended to 'be conveyed, and a second deed was executed on the 9th day oif March, A. D. 19x4, for the purpose of correcting the mistake made in the first. The defendant McComb, an execution creditor of G. H. Brown, claiming the deed from G. H. Brown to W. H. Brown to be void as against the creditors of G. R. Brown, caused an- execution issued on a judgment against the said G. H. Brown to be levied on said land. Defendant Hanson is -the sheriff who made such levy. The plaintiff, Muster, as grantee, of W. H. Brown, -brings this action to set aside the levy of said execution.\\nAt the close of the trial, the trial court found, among other facts, that the conveyances of the land by G. H. Brown to W. H. Brown were made\\u2014\\n\\\"without any agreement as to a definite price or consideration and were made for the fraudulent purpose and with the fraudulent intent to thereby defeat the collection of claims of the creditors of Giles H. Brown, including the claim of Edwin McComb, and that said deeds were accepted by the said Walter H. Brown with knowledge on his part of the said fraudulent intent, and with the intention on his part to - assist the said Giles H. Brown in the effort to defraud the creditors of the said Giles H. Brown, including the defendant McComb.\\\"\\nPursuant to such findings of fact and conclusions of law based thereon, judgment was entered declaring said deed to- be null and void, and directing the defendant Hanson to- proceed with his levy and sale of the land. From this judgment, and an order denying a new trial, plaintiff appeals.\\nThere is no direct evidence establishing the fraudulent character of the conveyance from G. H. Brown to W. H. Brown, nor is such evidence essential. Fraud and' knowledge of intended fraud may be shown 'by circumstantial evidence. Cole v. Reiley, 35 S. D. 30, 150 N. W. 299. But, before taking up- the circumstances upon which defendants base their claim that the conveyance in question is- fraudulent, it will be n-ecessar)'- to glance \\u2022at the material facts in the case:\\nG. H. and W. H. Brown are brothers. They had been associated in the banking business. As the result of certain advances that had been made by W. H. Brown because of bad loans made by said banks, G. H. Brown had become largely indebted to his brother, W. H. Brown. This indebtedness he was unable to pay, and it was decided that he should transfer to his brother, W. H.. Brown, the half section of land that is- the subject of this controversy. At the time this conveyance was decided upon, some talk was had between them as to- the value of the land.' G. H. Brown asked $35 per acre for the land, while his brother valued it at only $30 per acre. But it was finally agreed that the land should be conveyed to W. H. Brown, and that he would credit the amount for which it could be sold, less the amount of certain incumbrances upon it, on G. H. Brown's indebtedness to him. This indebtedness amounted to more than the value of G. H. Brown's equity in the land, even at $35 per acre. Shortly after this understanding, G. H. Brown executed the deed in question and sent it to his brother. The deed was executed on the 27th day of September, 19x3, but, because of the error in the description of the land conveyed, a second deed- was executed on the 16th day of April, 1914, but bearing the same date as the first, for the purpose of correcting the error in the first. The consideration expressed in these deeds was $11,000. Shortly prior to the execution o;f the first deed, but after the agreement tO' execute the same had been made, one Roberts, a creditors of G. H. Brown, commenced suit to recover on a claim against 'him. I11 this suit, judgment was taken by default, execution issued thereon, and the property was levied upon, and sold by the sheriff. W. H. Brown purchased- the sheriff's certificate of sale, and later took a sheriff's deed thereon. W. H. Brown took possession of the premises immediately after the transfer of title, and thereafter in every way treated such premises as his own. He collected the rent for the years 1914-15, without any accounting* o-r agreement to account to his brother for the same. It is not contended that $30 per acre was not a fair valuation -of the land at that time.\\nThe -circumstances relied upon by defendant to show that the conveyance .was fraudulent are: That the grantor and the grantee are brothers and -business associates; that the conveyance was of all the grantor's property; that the conveyance was made pending a suit -against the grantor; that the consideration expressed in the deed was fictitious; that the grantee took a sheriff's deed to. the land; and, finally, that the grantee had notice of all the material facts' involved.\\nThe fact that the grantor and the grantee are brothers and business associates is not, of itself, evidence of fraud, nor of intention to defraud others. If is 'a circumstance that may cast suspicion upon the transaction, but it is a suspicion that may be removed by evidence that shows that the transaction was otherwise bona fide. Shea v. Hynes, 89 Minn. 423, 95 N. W. 214. In Bump on Fraudulent Conveyances (4th Ed.) \\u00a7 67, it is said:\\n\\\"Relationship is not a badge of fraud. Fraud, however, is generally accompanied with a secret trust; and hence the debtor must usually select a person in whom he can repose a secret-confidence. The sentiments of affection commonly generate this confidence, and often prompt relatives to .provide for each other at the expense of just creditors. 'Consequently relatives are the persons with whom a secret trust is likely to exist. The ' same principle applies to all persons with whom the debtor has confidential relations.' Any relation which gives rise to confidence, though not a 'badge of fraud, strengthens the presumption that may arise from other circumstances, and! serves to elucidate, explain, or give color to the transaction. \\\"\\nBut a sale to a relative is not fraudulent, unless it would have been fraudulent for other reasons, and in the absence of such relationship.\\nIt is by no- means clear from the evidence that the deeds in question conveyed all of the grantor's property. There is no finding to that effect by the trial court, and there is evidence in the record tending to prove that the grantor owned considerable other real property at that time. But, conceding- that the property described in said deeds was 'all the property owned at that time by the grantor, this would not prove, noir tend to prove, the transaction to be fraudulent. If the grantor actually owed the grantee an amount equal in value to the grantor's interest in the land, then he had a right to convey the propery in payment of such debt. The fact that the grantee may have known that the grantor was insolvent is wholly immaterial. It is1 likewise immaterial that the grantee knew that, if lie accepted the property described in the deeds in payment of his debt, there would be nothing 'left with which to pay the debts of the other creditors. It is not disputed that the grantor owed the grantee at least $8,000, and the undisputed evidence shows that the land was mortgaged for $6,400. It is not contended that the land was worth more than $35 per acre. At this .valuation it would amount to $11,000, and, after deducting $6,400, the amount of the mortgage, there would be but $4,800, to- apply on the $8,000 due the grantee. A debtor although- he may be hopelessly insolvent, m-ay prefer -one creditor to another, and assign all his property to such creditor in payment -of -his debt. Section 2366, Civ. Code; Sandwich Mfg. Co. v. Max, 5 S. D. 125, 58 N. W. 14, 24 L. R. A. 524; Jewett v. Downs, 6 S. D. 319, 60 N. W. 76; Sprague v. Ryan, 11 S. D. 57, 75 N. W. 390; Gardner v. Haines, 19 S.D. 519, 104 N. W. 244. And a creditor has a right to accept from his -debtor enough of his debtor's property or money to pay his -debt, even though he knows that there will be nothing left the debtor with which to pay his other creditors. This will necessarily hinder and -delay other creditors in the collection of their debts, and may prevent their being collected at all; but this does not render the conveyance fraudulent.\\nThe fact that one of the creditors had commenced an action on a -claim against the debtor, a short time prior to the execution- of the first deed, -is urged as showing an intent to defraud, but we are unable to see 'how this fact sheds any light on the transaction. No judgment had been entered, and the commencement of the action neither constituted a lien upon the property nor in any wise prevented its sale.\\nIt is claimed that the consideration expressed in the deed is fictitious, and that this fact tends to show -the fraudulent intent of the grantor. We are unable to find anything suspicious in this fact. In the first place, the expressed consideration is not fictitious. The property was transferred to W. H. Brown by G. H. Brown for the purpose of making' payment on the debt owed to W. H. Brown by G. H. Brown. G. H. Brown wanted to be credited at the rate of $35 per acre, while W. H. Brown refused to allow more than $30; but it was finally agreed that G. H. Brown should be credited with the amount for which the property should be sold, and, the property -having been sold for $35 per acre, this is the amount for which he is entitled to credit.\\nThe action that was pending against G. H. Brown at the time the first deed was executed was prosecuted to final judgment,- and, pursuant to execution issued thereon, the property conveyed by said deed was sold at sheriff's sale. W. H. Brown took an assignment of the sheriff's certificate of sale, and, later on, took a sheriff's -deed to- the property. Respondents contend' that.this is evidence of a fraudulent intent on the part of W. R. Brown; that, under such circumstances, a bona fide purchaser would have resisted the levy, or redeemed- from the sale. He was under no-obligation- to do either. When the execution was levied, he was at liberty to adopt either one of three courses: He could .resist the levy and sale, he could permit the sale to be made and redeem, or he could take an assignment of the sheriff's certificate of s'ale, -if the holder thereof were willing to assign. He adopted the latter course. The -amount of' the judgment was not large, and he may have concluded' it could cause less trouble and expense for him to purchase the sheriff's certificate of sale than to redeem or attempt to resist the sale; but it is immaterial what his- reasons were, so- long as he kept within his legal rights.\\nThe case presents no- difficult or unusual features. We have a debtor in failing circumstances; he has not sufficient property or means from which to- pay -all his creditors; he makes a preference of one creditor, and turns -over all his property to this creditor, to- be applied on his debt to- him. The other creditors are -dissatisfied; but, so long as the law permits a failing -debtor to prefer and pay one creditor to the exclusion of -the others, and so long as- he conveys the absolute title, without any secret trust -o-r reservation of benefits of any kind to himself, the court is without power to- grant relief, and- has no right to interfere. Respondents' answer is framed on the theory that tha debtor reserved a secret trust or beneficial interest in the property. His argument in 'his printed brief is based- largely upon the theory that G. W Brown was not in fact indebted to W. H. Brown. The evidence does not support either theory.\\nRespondent cites Walklin v. Horswill, 24 S. D. 191, 123 N. W. 668, and relies upon what is said by this court in that case in support o-f the determination of the trial court in this case; but the facts in the two cases are not analogous. In that case the grantor executed a bill o-f sale purporting to convey the absolute title to the property involved to a creditor. The value of the property conveyed was greatly in excess of the amount of the indebtedness, and an understanding was entered into by the grantor and the grantee, who were brothers, whereby the grantee was to sell certain merchandise described in the bill of sale, until a sufficient amount had been received therefor to pay his debt and expenses, when he was to return to- the grantor the property remaining and any surplus from the proceeds of such property as had 'been \\u00a9old. Because of this understanding it was held that the conveyance was - fraudulent as to the other creditors of the grantor. In this case no such facts were disclosed. The value of the grantor's interest in the property conveyed did not exceed, nor equal, the amount of the indebtedness. There was no understanding, secret or otherwise, whereby any part of the property, nor the proceeds from the sale thereof, was to be returned to the grantor. This brings the case within the rule followed by the North Dakota- court in Bank v. Tufts, 14 N. D. 238, 103 N. W. 760, 116 Am. St. Rep. 682, and referred to by this court in Walklin v. Horswill, supra.\\nThere being no evidence in the record ho support the findings of 'the trial court that the conveyance was fraudulent or made for the purpose of hindering, delaying, or defrauding the creditors of G. H. Brown, the judgment and order appealed from are reversed.\"}"
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+"{\"id\": \"2855236\", \"name\": \"ELLIOTT SUPPLY COMPANY, Appellant, v. ROSS, Respondent\", \"name_abbreviation\": \"Elliott Supply Co. v. Ross\", \"decision_date\": \"1918-06-25\", \"docket_number\": \"File No. 4270\", \"first_page\": \"491\", \"last_page\": \"493\", \"citations\": \"40 S.D. 491\", \"volume\": \"40\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:28:40.751114+00:00\", \"provenance\": \"CAP\", \"judges\": \"GATE'S, J., not sitting.\", \"parties\": \"ELLIOTT SUPPLY COMPANY, Appellant, v. ROSS, Respondent.\", \"head_matter\": \"ELLIOTT SUPPLY COMPANY, Appellant, v. ROSS, Respondent.\\n(168 N. W. 58.)\\n(File No. 4270.\\nOpinion filed June 25, 1918.)\\nEvidence \\u2014 Purchase of Silverware \\u2014 Representations by Sales Agent re Brand, Oral Evidence of, Competency.\\nDefendant signed an order for purchase from plaintiff of silverware at a specified price, a few items in which order were designated \\u201cRogers Bros. 1847,\\u201d a greater number being designated \\u201cE. S. Ce. 1935;\\u201d the order guaranteeing the articles to be exactly as represented therein. Held, that testimony by defendant that when plaintiff\\u2019s agent took the order he represented he was selling only \\u201cRogers Bros. 1847\\u201d brand of silverware, that the initials \\u201cE. S. Co.\\u201d in the order stood for Elliott Supply Company (plaintiff\\u2019s name) that the order was for Rogers Bros, brand and nothing else, and that the articles designated E. S. Co. were goods made especially for plaintiff; that he signed the order believing the entire shipment to be Rogers Bros, ware and would not otherwise have signed it \\u2014 was not incompetent as. varying the terms of a written instrument; that the order does not purport to specify that all the enumerated articles were Silver-plated, or manufactured by Rogers Bros., but that if it did said evidence was still \\u25a0 competent to show the articles were not silver-plated, and were not all manufactured by Rogers Bros.\\nGates, J., not sitting.\\nAppeal from Cirau.it 'Court, Day Oounty. Hon. Thomas L. Bouck, Judge.\\nAction' by Elliott Supply Company, against A. Ross, to recover for purchase price of a consignment of merchandise. From a judgment for 'defendant, and- from an order denying a new trial, plaintiff appeals.\\nAffirmed.\\nAnderson & Wad del, for Appellant.\\nLezms W. Bicknell, for Respondent ;JN. P. Bruell, of 'Counsel.\\nAppellant cited: Jones on Evidence, 2d Ed., p. 446: Mc-Quaid v. Ross, (Wis.), 46 N. W. 892; Jones v. Keefe, (Wis.), 150 N. W. 954.\\n' Respondent cited!: W. U. Tel. Co. v. Aim. Bell Tel. Co-. 103 Fed. 684.\", \"word_count\": \"880\", \"char_count\": \"5360\", \"text\": \"POLLEY, J.\\nThis is an action for tlhie recovery of the purchase price of a consignment of merchandise, consisting principally of tableware. The verdict and judgment were for defendant, and plaintiff appeal's-.\\nThe comb: act or order under which, sa-i-d' merchandise was s-hlipped to defendant i-s -in writing, arid- in order to get a, clear understanding of' the matters' .presented on- this appeal it is necessary to -set out the (contract, except the items enumerated, in full. The contract is as follows:\\n\\\"Read this contract carefully.\\n\\\"The (amount of this order is $180.00. [Here follows a list -of the articles s-old, a fewi of iwhi-ch are designated as 'Rogers Bros. 1847 and a greater number of whi-ch- are -designated as 'E. S. Co. 19,35.'']\\n\\\"We guarantee this entire order for twenty years.\\n\\\"Warranty: Any article which is not exactly asi represented! may be r-etarn-ed- to us and we \\u00a1will replace same With a new article without charge, regardiles-si of cost iof the article.\\\"\\nThe goods were shipped to defendant, but upon examination thereof hie claimed \\u00a1they were hot as represented when he- placed tine .arder with .plaintiff's agent, and rdfusedl to aicoe.pt them, and after some correspondence -shipped them, back to -plaintiff. It appears from the evidence that the order was taken by a traveling salesman of the plaintiff clomp-any, anidl it also appears that the contract or order had been prepared ini -advance and that the transaction, from the beginning, was for the sale of all the articles therein 'enumerated in a single lot or -consign'ment.\\nAlt the trial, -the defendant testified that when plaintiff's agent (icine Clifford) -Came to ihiisi place of business- he announced thlab he was selling Rogers Bros. 1847 bra-mdl of silverware; that in reply to a query h-y -defendant said Clifford fold! defendant that- the initial letters \\\"E. S. Co.\\\" where they appear in the contract ,(Stood: for Elliott Supply Company; that said order was for $180 worth of Rogers Bros. 1847 brand of silverware, and nothing else; that the articles' designated as E. -S'. Cb. were goods made especially for the Elliott Supply Company. Defendant further testified that \\u2022 \\u00a1he signedl the order \\u00a1believing the entire shipment was to be Rogers Bros. 1847 silverware, and' that he would' not have signed such order had 'it nlcit been for such belief. This testimony was objectedi to on the ground that it was incompetent and that it tends to vary and contradict the tennis of a written instrument. The purpose of this testimony was to show that the goods that were shipped! tei defendant were not wlhiat plaintiff's agent represented! they would be, and on the strength of which -representation the order whs given, and- for that purpose it was competent. It does not in any way tend to vary the terms of the written order. The -order dotes not purport -to specify that -all the- articles enumerated therein, were silver-plated nor that they were all muanulfacbulred by Rogers Bros., amid', if it did, it would still 'be competent to show, by parol evidence, that -such articles -were not silver-plated, and -that they were not all manufactured by Rogers Bros. This testimony wias properly admitted. Careful con-skier ati-on h-a-s been given to all the other assignments, but no prejudicial! error appears.\\nThe judgment and! order appealed from' are affirmed.\\nGATE'S, J., not sitting.\"}"
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+"{\"id\": \"2862089\", \"name\": \"BLACK HILLS BREWING COMPANY, Respondent, v. MIDDLE WEST FIRE INSURANCE COMPANY, Appellant\", \"name_abbreviation\": \"Black Hills Brewing Co. v. Middle West Fire Insurance\", \"decision_date\": \"1913-03-31\", \"docket_number\": \"\", \"first_page\": \"318\", \"last_page\": \"328\", \"citations\": \"31 S.D. 318\", \"volume\": \"31\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:33:58.872087+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BLACK HILLS BREWING COMPANY, Respondent, v. MIDDLE WEST FIRE INSURANCE COMPANY, Appellant.\", \"head_matter\": \"BLACK HILLS BREWING COMPANY, Respondent, v. MIDDLE WEST FIRE INSURANCE COMPANY, Appellant.\\n(140 N. W. 687.)\\n1. Trial \\u2014 Execution\\u2014Return\\u2014Evidence in Another Action.\\nWhere, in an action on a claim against an insurance company, claimed to have been purchased by plaintiff at a sale under execution against insured, an alleged record, offered in evidence in the present suit, concerning the amendment of the return to the execution, no ruling upon the motion to amend appearing of record, except by inference from the fact that in the settled record on appeal in the present suit purported uncertified copies of such record were \\u25a0 found, and nothing to show that certain further proceedings as to such amendment and an oral ruling thereon were offered in evidence, or that the proposed amended return was filed by sheriff pursuant to such amendatory (proceedings, Held, that if, as appeared from the record, plaintiff, as part of the trial of its action against the company, moved for correction of said return upon an execution in a different action, the court\\u2019s ruling allowing such motion was a nullity, \\u25a0o-r gross irregularity, and appellant\\u2019s objection thereto should have been sustained.\\n2. Appeal \\u2014 Record\\u2014Conclusiveness\\u2014Estoppel.\\nIn view of the record, settled without objection on the part of plaintiff, it is estopped from claiming that the motion and ruling thereon, in question, was not made ]n the present action.\\n3. Scope of Review \\u2014 Record\\u2014Failure to Introduce Evidence.\\nConceding that the proceedings on oral motion, in question, claimed as part of this record, were had in another action, they were not properly part of the record in this action, the record of such proceedings not having been offered in evidence.\\n4. Execution \\u2014 Sale of Chose in Action \\u2014 Separate Actions \\u2014 Evidence of Title.\\nWhere the original records of an execution sale, offered in evidence to prove plaintiff\\u2019s title to the ohose in action sued on, did not include a subsequent order for amendment by sheriff of his return to the execution, \\u2014 or, even if the order is deemed made in time to be part of such evidence, it only authorized an amended return; and, it not appearing that any return was made; Held, that the oral ruling on motion to so amend, if treated as an order and as in evidence because* made in the jurors\\u2019 presence, did not show title.\\n5. Execution \\u2014 Return\\u2014Authority to Amend \\u2014 Court Order.\\nA court cannot order an amendment to ,a return to an execution to be made; it can only authorize the sheriff to make such amendment if he sees fit to do so.\\n6. Execution \\u2014 Title Under Execution Sale \\u2014 Necessity of Levy\\u2014 Notice of Levy \\u2014 Directing Verdict.\\nThere can be no valid levy under execution on a chose in action without notice of levy to the debtor; and, there being no proof of such levy, the trial court erred in not directing verdict for defendant, who had no such notice.\\n(Opinion filed March 31, 1913.\\nRehearing denied May 6, 1913.)\\nAppeal from Circuit Court, Lawrence County. Hon. Wm. G. Rice, Judge.\\nAction by the Black Hills Brewing Company against the Middle West Fire Insurance Company, to recover, as assignee, on a chose in action alleged to -have \\u2018been purchased under execution against -defendant\\u2019s creditor. From, a judgment for' plaintiff, defendant appeal's.\\nReversed.\\nHerman Winterer, David Ritchie, and Stewart & Hodgson, for Appellant.\\nIt is the contention of the appellant herein -that the motion to amend said return was improperly allowed for the following reasons:\\nSecond: That the proceeding was had in an action entirely foreign, and the notice given to parties.other than those interested, and was had for the purpose of making it competent -testimony, in the case at -bar, it being otherwise competent, and further that to permit the said return to be-amended, the rights of the appellant having intervened, would be to the prejudice of this appellant.\\nThird: The sheriff\\u2019s return having been filed, it became conclusive, and this appellant had the right to rely thereon.\\nFourth: That no service of notice of levy or of the writ has been had as provided by the statute controlling in such case.\\nNo service of the order to show cause has ever been served upon the judgment debtor. On the other hand the matter was brought up in connection with the action at bar, and as a part of the said action. The sheriff\\u2019s return as originally filed did not show that the claim in question has been levied upon, or that an attempted levy had been bought. On the other hand it is entirely silent as to service of an)' kind. On the call of the said case the matter was taken -up and the plaintiff permitted to have the said return amended. It is our contention first, that the said matter was not properly before the court, and secondly that in this action it was prejudicial to the rights of the defendant and appellant -herein to permit such return to be made. It cannot be disputed that the defendant had a right to depend upon the return as made by the sheriff. It was made under instructions given by the plaintiff -therein, the plaintiff in that action being the same as in this was hound by the said return and the return was there made conclusive of the acts alleged to have been done. The said return did not show that any service had been had upon the Middle Wes,t/ Fire Insurance company, or that any -had been attempted.\\nThe insurance company -then having the right to depend upon the return as made 'by 'the sheriff, and the said return not showing that a levy had been made or attempted, had a right to proceed in the matter as it saw fit. Having gained this right, it would be prejudicial -to its rights to permit the plaintiff to have the return so amended as to cover this claim. Clayton v. State, 24 Ark. 16; Newhall v. Provost, 6 Cal. 85; Ohio Fife Ins. Co. v. Urbana Ins. Co., 13 Ohio 220; 17 Cy-c. 133; Ireland v. Adair, 12 N. D. 29, 94 N. W. 766; Wood v. Conrad, (S. D.) 50 N. W. 9\\u00b03-\\n\\u2022 The court erred in overruling defendant\\u2019s objection to the plaintiff\\u2019s offer in evidence of the original records upon sale under execution in the case of Black Hfills Brewing Company, a corporation, versus John Giljevich and Katie Giljevich, defendants. Suffice it to say that we contend that the exhibit was not competent for the reasons hereinbefore given. If no valid levy was made, then no lien attached.\\nThe court erred in denying defendant\\u2019s motion for directed verdict made upon the close of the plaintiff\\u2019s direct case. (Transcript of Record, pages 30-31).\\n\\u2022 The reasons assigned upon the asking for a directed verdict are those which apply to the specification of error, as the reasons there assigned apply with equal specifications to the court\\u2019s attention we invite its study of the argument made upon the first specification of error.\\nThe court erred in denying defendant\\u2019s motion for directed verdict at the close of said case. (Transcript of Record, pages 79, 80, 81).\\nIn discussing this question we will. again refer the court to the argument, made under the first specification of error, for that applies with equal force to this subject.\\nThere is, however, a further question raised under this motion as overruled by the court to which we wish to call attention. That is the following reason assigned why directed verdict should have been entered, \\u201cAnd, upon the further ground and for the reason that the testimony affirmatively shows that the plaintiff has failed to establish a cause of action herein.\\u201d\\nNorman T. Mason, and Bben 1IV. Martin, for Respondent.\\n\\u25a0 Appellant\\u2019s objection to the amendment of the sheriff\\u2019s return is not involved on this appeal.\\nRespondent insists that this objection cannot be urged on this appeal for the reason that the order allowing the amendment to the -sheriff\\u2019s return was made in the case of the Black Hills Brewing Co. v. John Giljevich; and the present appeal is not taken from that order, but was taken in an entirely different action between different parties, viz.: Black Hills Brewing Company v. Middle West Fire Insurance Company, consequently, unless the order permitting the amendment was void, it cannot be attacked by appellant in this proceeding. If it is merely erroneous, embodying'a mistak\\u00e9n exercise of judicial power, the error cannot be corrected by a decision in the case at bar.\\nBut the appellant does not urge that the order allowing the amendment is void, or \\u25a0 that' it is capable of collateral attack in another action; all its objections, excepting the first, go to the regularity, or the propriety, or the rightfulness of the action of the lower court..\\nA valid levy was actually made and' is shown by the sheriff\\u2019s return.\\nThe statute does not' require a certified copy of the warrant of attachment and notice to be served upon the execution or attachment defendant; but that it only requires it to1 be left \\u201cwith the president or other head of the association or corporation or the secretary, cashier or managing director\\u2022 thereof,\\u201d (that is, of the corporation whose rights or shares are sought to be attached); \\u201cor with the debtor or individual holding' or occupying such property;\\u201d (that is, the property sought to be attached). To attach a debt or chose in action it is not necessary under this section to leave a copy of the attachment and notice With the attachment defendant, as assumed1 by appellant, but only with the debtor or person holding or occupying the property attached; that is, in this case, with the Middle West Fire Insurance Co. Ireland v. Adair, 12 N. D. 29, 94 N. W. 766.\\nBut in the case at bar a copy of the execution and notice was served upon the debtor or individual holding or occuying the attached property, i. e., upon the Middle West Fire Insurance Company; and it was not necessary to serve a copy upon the execution defendant) John Giljevich, although a notice was served upon the attorney of the latter in accordance with Rev. Code Civ. Proc. section 360, for the purpose of enabling the debtor to' claim his exemptions.\", \"word_count\": \"4271\", \"char_count\": \"24815\", \"text\": \"WHITING, P. J.\\nOne Giljevich was the owner of a house and contents, situated in Lawrence county and insured in the Middle West Fire Insurance Company, defendant and appellant herein. The insured property was destroyed by fire during the lifetime of the policy, and an action was thereafter brought by Giljevich against the insurance company to recover upon such policy. Giljevich .and wife were indebted to the Black Hills Brewing Company, plaintiff and respondent herein, and, such indebtedness remaining unpaid, the said brewing company brought an action and recovered a judgment in the circuit court of Lawrence county against said Giljevich and wife upon-' the 18th day of February, A. D. 1911, at which time the action brought by'Giljevich against the insurance company was still pending. The brewing company took out execution upon its judgment, and .claims to have levied the same upon'the property of said Giljevich, including, among other property, the claim held bv Giljevich, under such policy, against the insurance company. C\\u00cdaiming to be the owners of the right of action or claim under such policy, under and by virtue of an execution sale had upon such execution issued upon its judgment against Giljevich and wife, the brewing company brought, this action against the insurance company to recover the amount of the loss which,it is claimed, was covered by the policy of insurance. This action was brought on for trial on February 28, 1912, and upon said day verdict was returned therein in favor of the plaintiff. Judgment was entered upon said verdict, and it is from such judgment that this appeal is taken.\\nThe assignments of error preserved by the record herein present several questions; but we find it unnecessary, and believe it will serve no useful purpose, for us to consider any assignments other than those questioning plaintiff's title to said chose in action and saving objections to the evidence offered in support of such title. Upon the opening of the trial of this cause, as appears by the stenographer's transcript forming a part of the record herein, the following proceedings appear to have taken place: \\\"Moved by plaintiff that, in the case of Black Hills Brewing Company, a corporation, Plaintiff, v. John Giljevich and Katie Giljevich, Defendants, that the sheriff's return upon execution issued in said cause should be amended to read as follows and have incorporated therein -the following words: 'That the claim for loss by fire held by the defendant herein against the Middle West Fire Insurance Company in the amount of $800, upon which suit is now pending in said court in Lawrence county,' which motion is annexed hercio and made a part of this' transcript, to the allowance of which said motion defendant objects.\\\" The underscoring is ours: It is perfectly clear that the underscored words; which appear interlined in the settled record, could.not.have been used by counsel in making his motion, as no. transcript was then in existence. We are at a loss to know what is intended by these words, unless they refer to an \\\"Order to Show Cause,\\\" which had been issued in the case wherein execution had been returned, which order, to show cause afterwards, during the proceedings upon the trial of this case, appears to have, in some manner, become a part of the record herein. Following the above motion are specific objections interposed by the defendant. Defendant objected, upon the ground that the allowance of said motion was incompetent, irrelevant, and immaterial; that its allowance in an action in which this defendant was not a party would be prejudicial to the rights of. defendant; that no notice of the amendment had been given or served upon the defendant .Giljevich; that no- notice of such levy was in fact served upon the defendant herein to-wit, the insurance company. The transcript herein shows that these objections were overruled, exception taken and allowed. There is no record that at that tithe any order was made .allowing the amendment; furthermore, an examination of\\\" the original return shows that, if ,the same were attempted to be amended by inserting therein the words quoted above, the same could not have been inserted at any place therein so as to make any sense, and -the return would still fail absolutely in showing that any notice of levy was served upon the insurance company.\\nFollowing-the record of the above motion and ruling thereon, the record then states: \\\"Plaintiff now offers in evidence the original records had upon the sale upon execution in the case of Black Hills Brewing Company v. John Giljevich et al.\\\" Defendants objected to .this offer upon all the grounds stated in its objection to the allowance of the amended sheriff's return. The record does not show any ruling upon this objection, nor any ruling admitting or rejecting the evidence offered. Attached to and forming a part of the original record sent up from the trial court are certain papers purporting to be copies of part of the proceedings in the case of the brewing company against Giljevich. These papers are in no manner certified to as copies of such papers; nor are thev marked as exhibits. They would appear to be copies of the following: Affidavit of default; judgment; sheriff's return on ex ecution; order to show cause, dated February 20, 1912, directed to the defendant Giljevich and to the insurance company, directing such parties to show cause, on February 27, 1912, why the 'sheriff of Lawrence county should not be permitted to amend his return upon the execution in accordance with a certain proposed amendment thereto attached; and an affidavit wherein the affiant claims to 'have been deputy sheriff and to have levied upon the chose in action, the subject-matter of the present action, and claims to have served upon 'the general agents of the insurance company at Lead, S'. D., on the 24th day of February, 1911, a certified copy of the execution in said action, together with a notice notifying said company that, as such deputy sheriff, he levied upon \\\"a claim for loss by fire 'held by the defendants herein against the Middle West Fire Insurance Company to the amount of $800, upon which suit is now pending in the circuit court of Lawrence county,\\\" and also claims that, through oversight, he failed to' incorporate a notation of such \\\"action and levy\\\" in the return which was made and filed herein. The proposed .amended return sets forth that, on February 24, 1911, notice of a levy upon the claim in question was served upon the said insurance company. This proposed amended return is dated February 27, 1912, but the order to show cause, together with the affidavit and proposed amended return, were originally filed in the office of the clerk of courts on February 20, 1912, and were served upon the attorneys for the insurance company on February 23, 1912. There 'is no order of any kind attached to these papers showing any ruling by the court upon such order to 'show cause; but there appears, among the papers forming the record sent up from the lower court in this action, what purports to be a copy of an order of the circuit court, made in the action of the brewing company against Giljevich, which order, after reciting, \\\"This matter coming on to be heard upon the order to show cause heretofore issued upon the application of the sheriff to amend* his return upon the execution issued herein, which order to show caus\\u00e9 was returnable on February 27, 1912, the same having been duly postponed until February 28, 1912, the Middle West Fire Insurance Company appeared by its attorney and objecting to the allowance of said amendment, but offering no evidence or affidavit in support of said'objections,\\\" further recites: \\\"Ordered that the said amendment, as attached to said order to -show cause, be and the same is hereby allowed; and it is further ordered that the said proposed- amendment attached to said order to show cause be filed by the clerk herein and be taken and considered as the sheriff's amended return upon execution herein, heretofore made and filed with said execution. Done in open court at Deadwood, S- D., this 4th day of'March, 1912.\\\" The above order was filed on March 4, 1912.\\nAppellant assigns as error the ruling of the trial court, made upon the trial of this action, overruling his objections to the allowance, of the amendment to the sheriff's- return. The respondent contends that such ruling cannot be considered upon this appeal, for the reason, as claimed by respondent, that said ruling was one not made in this action, but one made in: the action wherein the brewing company was plaintiff and Giljevich et al. were defendants. We think it is too clear for discussion that, if, as appears upon the face of the record herein, the brewing company did, upon and as a part of the trial o-f the action now before us upon appeal, move the circuit court of Lawrence county to allow -the correction of the sheriff's return upon an execution issued upon a judgment entered in an entirely separate and distinct action, shell circuit court's action was a nullity. If not a nullity, it was such a gross irregularity that appellant had a right to object thereto, and his objection should have been sustained. Moreover, in view of the settled record herein \\u2014 settled without any objection on respondent's part \\u2014 respondent is foreclosed from claiming that tlie motion in question -was not made in this action, and that the ruling thereon was not made in this action.\\nBut if, in the face of the record herein, we were justified in considering that the motion was taken and received by all parties as a motion in the action between the brewing company and Giljevich et al., and that such proceedings were of the same effect as though the -court had, by an order made in this action, continued the same for the purposes of hearing and determining the motion in the other action, which would seem to be the contention of the respondent, then such motion and the ruling thereon have no proper place whatsoever in the record of the action now before us, as the record of such -oral proceedings was never offered in evidence in this action; the only method by which the proceedings in the other action could get into the record in the pending ac-, tion was by respondent, after it had had the sheriff's- return amended -to then offer in evidence, as exhibits, the execution and return, together with such amended return.\\nResponde\\u00f1t, recognizing the proper procedure, did, after making the oral motion above referred to, offer in evidence the original files in the other action. These were. objected to, and there is nothing to show whether the court overruled the objections and admitted the files, or sustained the objection and excluded such files, except as a ruling admitting -them may be -inferred from the fact that purported copies thereof are founded in the settled record herein. It will be noticed that the offer was of the \\\"original records had upon the sale upon execution in the case of Black Hills Brewing Company v. John Giljevich et al.\\\" The original records in existence on February 28, 1912, did not include the order of March 4, 1912, the order allowing the amendment to the return, as this order did not come into existence until several days after the close of the -trial from which this appeal is taken. Until such an order was made, the sheriff had no authority to amend his return; and therefore it conclusively appears that, prior to March 4, 1912, there was in existence no record evidence that notice of the levy had been given -to appellant, and therefore no evidence that title to the cause of action had passed to respondent.\\nIt will not do for the respondent to claim that the ruling made by the circuit judge upon respondent's oral motion (even if such ruling could be held -as an order allowing an amendment to the return) was in evidence in this case, basing such contention upon the fact that, though made in another action, it was made in the presence and hearing of the jury in this action, because, even if an -order, other than one in writing, could have any validity whatsoever as an order allowing an amendment to a return (upon which question we do not feel called upon to pass); at the most it was but an order -made upon a motion asking that the sheriff be allowed to amend his return, which is certainly not the equivalent of an actual amendment of the return; it being well settled that a court cannot order an amendment to- be made, but can only authorize one to be made. Flynn v. Kalamazoo Circuit Judge, 138 Mich. 126, 101 N. W. 222, 4 Ann. Cas. 1167; Freeman on Executions, \\u00a7 358, p. 2037. It therefore remained for the: sheriff, after permission granted by the court, to make the amendment, if he saw fit. The proposed amendment attached to the order to show cause could only become, in fact, an amendment by its filing as such after an order authorizing same, and no \\\"Amended Return\\\" was filed after and pursuant to the oral ruling of the court. In this case, until March 4, 1912, the circuit court did not, in fact, make any order, either oral or written, allowing an amendment; the only order it appears ever to have made was the written order made subsequent to the close of the trial of this action. Even if such order had been made in time, there would still be wanting any amended return made under the authority of such order.\\nIt follows, from the facts appearing beyond1 dispute herein, that, upon the evidence offered by the respondent to. prove ns title to the chose in action, there was no> proof of any levy upon such chose in action, as it is clear, under authority and reason, and, as we read respondent's brief, stands conceded by respondent, that no valid levy could be made upon the chose in action without .notice to the debtor party, which in this case was the appellant. Ireland v. Adair, 12 N. D. 29, 94 N. W. 766, 102 Am. St. Rep. 561; Freeman on Executions, \\u00a7 262a. Without a levy there could be no valid sale. Appellant asked the court to direct a verdict for the reason: \\\"That it appears affirmatively from the testimony herein that the said plaintiff is not the owner of any claim against said company incurred by reason of loss by fire, in that it appears that no sale was had or levy made upon said claim; the sheriff's return, being the basis for sale, is conclusive of the proceedings of the sheriff, and does not recite or show that an alleged levy was made, or attempted to be made, against any claim Giljevich may -have had against this defendant.\\\" This motion to direct a verdict was denied and exception taken thereto. In this ruling the trial court was clearly in error for the reasons herein-before stated, and for these reasons alone, without considering the other errors assigned, the judgment of the trial court is reversed.\"}"
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+"{\"id\": \"4456747\", \"name\": \"Brown County v. Jenkins et al.\", \"name_abbreviation\": \"Brown County v. Jenkins\", \"decision_date\": \"1898-12-17\", \"docket_number\": \"\", \"first_page\": \"330\", \"last_page\": \"333\", \"citations\": \"11 S.D. 330\", \"volume\": \"11\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:21:28.790102+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Brown County v. Jenkins et al.\", \"head_matter\": \"Brown County v. Jenkins et al.\\nUnder Comp, Laws, \\u00a7 593, enjoining the eouuly commissioners to superintend the fiscal concerns of the county, and secure their management in the best manner, the commissioners may in good faith, and for value, sell to an outgoing county officer, not officially interested therein, outstanding overdue and uncollectible notes belonging to uhe county, no consideration of public policy being involved.\\n(Opinion filed December 17, 1898.)\\nAppeal from circuit court, Brown county. Hon. E. G. Smith, Judge.\\nAction by tho county of Brown against George W. Jenldns and P. T. Burns, to recover the possession of certain promissory notes. There was a judgment for defendants, and plaintiff appeals.\\nAffirmed.\\nThe facts are stated in the opinion.\\nH. H. Potter, for appellant.\\nL. W. Grofoot and George W. JenJcins, for respondents.\", \"word_count\": \"934\", \"char_count\": \"5598\", \"text\": \"Fuller, J.\\nThis action to recover from the defendant the possession of a number of promissory notes executed by certain persons to the county during the years 1890 and 1891 for seed grain furnished upon a showing that their subsistence depended upon thus being provided for pursuant-to Ohapt. 72 of the Laws of 1890, was tried to the court without a jury, and resulted in a judgment dismissing the complaint, and for costs in favor of defendant, who, on the 17th day of December, 1896, purchased these notes from the county, paying an adequate compensation therefor. From the beginning, counsel for p>laiutiff and appellant has maintained that the board of county commissioners bad no authority to sell such property, and that the purchase of the same by respondent while state's attorney of the county is against public policy,.and consequently illegal. More than three years prior to the transaction complained of the notes in controversy, together with others of similar character, were placed with respondent for collection under a contract by which he was to pay all expenses connected therewith in consideration of 25 per centum of all the money actually received by reason of such employment; and these apparently less available claims were still in his hands when, after a careful investigation by the board of county commissioners as to their real value, a proposition was made to sell and transfer the same to respondent for a certain consideration in cash, and in full settlement of a disputed claim against the county for salary as state's attorney and for office rent, to which respondent deemed himself entitled. Upon this basis the sale was finally negotiated, and it appears that the board acted in good faith to promote the welfare of the county. Concerning the notes and respondent's conduct the court found the following with reference thereto: 'That none of the makers had sufficient property exempt from execution so that payment could be enforced by proceedings at law; that about one-half of said notes were given in 1890, and more than six years have elapsed since their maturity, and that no payments have been made upon most of the 1890 notes; that the said notes bad no fixed value, but their value depended upon circumstances, anfl upon how much could be worked out of them by making settlement with the makers; and that the consideration paid for said notes by the said defendant, Jenkins, was adequate; that the board of county commissioners of said plaintiff county have never rescinded or offered to rescind such sale, or restored or offered to restore to the defendant, Jenkins, any portion of the purchase money; that there was no collusion between \\u00abthe defendant, Jenkins, and the' board of county commissioners, or any of its members, to defraud the plaintiff county, or to dispose of said notes to said Jenkins for less than their real value; that the said Jenkins was guilty of no fraud or fraudulent concealment in regard to the vaiue of said notes, or the financial condition of the makers thereof in making such purchase. \\\" Every element of bad faith, fraud or collusion being thus eliminated, the power of the board to sell stale bills receiveable in favor of the county for all they are worth, and, in connection therewith, effect the settlement of a disputed claim in favor of an outgoing officer and against such county, is a proposition admitting of no serious doubt. The board, being charged exclusively with the management of all fiscal affairs pertaining to the county, has authority, unless restricted by the legislature, to do that which the county might perform if an entity, and capable of rational action; and the proposition carries with it authority to compromise in an honest manner a disputed or doubtful claim in favor of or against the municipality. State v. Davis 11 S. D. 111, 75 N. W. 897. Such authority is an incident to official capacity, and the power to institute, prosecute and defend suits. Agnew v. Brall, 124 Ill. 312, 16 N. E. 230; Alien v. Cerro Gordo Co., 34 Iowa, 54; Town of Petersburg v. Mappin, 14 Ill. 193; Hornblower v. Duden, 35 Cal. 664. From the statutory injunction that \\\"they shall superintend the fiscal concerns of the county and secure their management in the best manner'' (Comp. Laws, \\u00a7 593) emanates by necessary implication, ample authority to sell to another in good faith, and for value, outstanding1 overdue and uncollectible promissory notes belonging to the county; and no consideration of public policy is involved, although the sale is made to an outgoing officer of the county, unless such officer be a member of the board, or officially interested in the trans action. As the record discloses no error, the judgment appealed from is affirmed.\"}"
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+"{\"id\": \"4470357\", \"name\": \"Thompson & Sons Manuf'g Co. v. Guenthner et al.\", \"name_abbreviation\": \"Thompson & Sons Manuf'g Co. v. Guenthner\", \"decision_date\": \"1894-07-17\", \"docket_number\": \"\", \"first_page\": \"504\", \"last_page\": \"508\", \"citations\": \"5 S.D. 504\", \"volume\": \"5\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T18:16:15.924897+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thompson & Sons Manuf\\u2019g Co. v. Guenthner et al.\", \"head_matter\": \"Thompson & Sons Manuf\\u2019g Co. v. Guenthner et al.\\n1. Where, in supplementary proceedings for the examination of a third party alleged to be indebted to the execution defendant, such party in good faith denies any indebtedness, the question of fact whether he is so indebted or not cannot be tried and determined in such proceeding.\\n2. Section 5182, Comp. Laws, provides, in effect, that in such case the question of indebtedness shall be determined in an action by a receiver.\\n3. In such case an order of the court or judge, after trial of such question of fact, that such party pay over to the sheriff a certain amount so found to be owing to the execution defendant, is not only erroneous, but without authority, and void.\\n4. Upon such facts, such an order should \\u2018be set aside by the court upon proper application, and it is error to refuse.\\n5. The rule that an order refusing to set aside an appealable order is not appealable is not imperative where the first order was plainly and obviously made without jurisdiction.\\n(Syllabus by the court.\\nOpinion filed July 17, 1894.)\\nAppeal from _ circuit court, Minnehaha county. Hon. Frank R. Aikens, Judge.\\nSupplementary proceedings by the J. Thompson & Sons Manufacturing Company for the examination of Christopher Guenthner and Frederick Haar, partners as Guenthner & Haar, as to an alleged indebtedness to Reede Bros. From an order refusing to set aside an order requiring said Guenthner & Haar to pay over a certain amount to _ said manufacturing company, they appeal.\\nReversed.\\nThe facts are stated in the opinion.\\nG. P. Harden, for appellants.\\nThe judge, and not the court, has the authority to entertain, continue and conduct proceedings supplementary to execution in reference to persons who have property of, or are indebted to the judgment debtor. Biting v. Vanderbough, 17 How. 80; Com. Laws, \\u00a7 5176; Miller v. Bossman, 15 How. Fiew. Spea. Proc. 514. A proceeding supplementary to execution is entirely statutory. Hassie v. I. W. N. Cong. 35 Cal. 378; McDonald v. Vinette, 58 Wis. 620; Deminett v. Estes, 56 N. H. 315; Blone v. Burdick, 1 Hill, 130; People v. Spencer, 55 N. G. 4; Bryan v. Smith, 10 Mich.' 229; Fansom v. Williams, 2 Wall 313. If a creditor claims the application of a demand or debt due the debtor from a third person which debt is denied, the judge cannot try the title to the debt. People v. Hurlburt, 5 How. 136; Tompkins v. Trapp, 21 How. 17; Sherwood v. Buffalo, 12 How. 136; Crounse v. Whipple, 34 How. 333.\\nJoe Kirby, for respondent.\\nAn appeal from an order must be perfected within sixty days; the appellant cannot extend this time by moving the court to'vacate the objectional orders and then appealing from the latter. Van Steen nick v. Miller, 18 Wis. 320; Weber v. Fichetter, 1 S. D. 205; Hall v. Harris, 1 S. D. 279; White v. Perkins, 16 Ind. 358; Henley v. Hastings, 3 Cal. 341; Stearns v. Marvin, 3 Cal. 376; Natoma v. Parker, 16 Cal. 84; Id. v. Clarkin, 14 Cal. 551; Curtis v. Sutler, 15 Cal. 265; Coombs v. Hibbard, 43 Cal. 452; Thompson v. Lynch, 43 Cal. 484; Kitteredge v. Stevens, 23 Cal. 283; Estate of Burns, 54 Cal. 223; Reade v. Allison, 489; Higgins v. Mahoney, 50 Cal. 446. The exceptions should be settled by the judge making the order by incorporating into the record all papers and evidence upon which the de cisi\\u00f3n or order is based. Laurat v. Miller, 11 Pac. 745; Purden v. Taylor, 9 Pac. 745; Purden v. Taylor, 9 Pac. 607; Guthrie v. Phelan, 6 Pac. 107; Nach v. Harris, 57 Cal. 242; Seehorn v. Railway, 60 Cal. 25; DeLendrecie v. Peck, 48 N. W. 342; Brown v. Delevan, 63 Cal. 303. An order must be entered by the clerk of record in the same manner as a judgment before it is appealable. Comp. Laws, \\u00a7 5236; Whittaker v. Desforse, 7 Bosw. 678; Smith v. Dodd, 3 E. D. Smith 215; Gallt v. Finch, 24 How. Pr. 193; Marchall v. Francises, 10 How. Pr. 147; Plato v. Kelley, 16 Abb. 188; Hastings v. Hastings, 31 Cal. 98.\\nThe fact that the judge may be holding court does not deprive him of the power to make an order as judge. Dressor v. VanPelt, 15 How. B. 19; In re Knickerbocker B\\u2019k. 19 Barb 602; Hulcover v. Wiles, 11 How. Pr. 446.\", \"word_count\": \"1626\", \"char_count\": \"9163\", \"text\": \"Kellam, J.\\nOn the 21st day of April, 1893, upon an affidavit, the sufficiency of which is not questioned, an order was made by the circuit court of Minnehaha county, for the examination, in proceedings supplementary to execution, of the respondents, Guenthner & Haar, upon allegations of their indebtedness to J. & H. Reede, defendants in execution. Upon such examination in open court, in which both parties, by their attorneys, were present and participated; the court made and filed findings of fact, upon which it made and entered an order requiring the said Guenthner & Haar to pay over to respondents the amount to which the court found they were indebted to the execution defendants. This order was made and entered July 13, 1893. On the 15th day of August, 1893, Guenthner & Haar made application to the court on an order to show cause to set aside the order of July 13, 1893. This application was denied, and an order was made and entered refusing the same. Both these orders were plainly and confessedly made in and by the ctjurt, and not by the judge. From the latter order Guenthner & Haar appealed.\\nRespondent moves to dismiss the appeal, on the ground that the first order was not appealable, and that an order re fusing to vacate an appealable order is not appealable. Appellants contend that the court had no authority to make the order of July 13th, the power to act in the matter being by statute expressly conferred upon the judge, and not upon the court; and furl her, that, appellants having denied anyindebtedness to the judgment debtor, neither the court nor the judge had authority in such summary proceedings to adjudicate and determine the question of indebtedness; and'that such attempted adjudication was void, under the statute. While it has been distinctly held in New York, in several cases, that the power to make the order and entertain proceedings supplementary to execution rests with the judge, and not with the court, we are not entirely satisfied to adopt such conclusion as the necessary effect of the statute. However, with the view we take of the effect of the denial of the indebtedness, it is not necessary now to discuss or decide whether or not the court had authority, as held in Gould v. Dodge, 30 Wis. 621, to make the order. Appellants denied that they were indebted to the judgment debtors. In such case the statute (section 5182, Comp. Laws) provides that the ' 'debt shall be recoverable only in an action against such person by the receiver.\\\" When appellants denied owing this alleged debt to the judgment debtor, neither the court nor the judge had legal right to proceed to examine in such summary way whether it did owe such debt or not. The law had provided another remedy, by action by a receiver, where the rights of the parties could be determined in the usual course of a suit at law. When appellants, in apparent good faith, denied that they were indebted, fully stating the grounds of such denial, and thus made the rights of the parties to depend upon the settlement of this issue of fact, nothing remained to be done but the appointment of a receiver, and an order preserving the relation of the parties in statu quo. Bank v. Pugsley, 47 N. Y. 368; Bank v. Trapp, 21 How. Pr. 20; People v. Hulbert, 5 How. Pr. 446; Crounse v. Whipple, 34 How. Pr. 333; Hagerman v. Tong Lee, 12 Nev. 331; Parker v. Page, 38 Cal. 526. The statute having so expressly provided, it was not simply error in the court to proceed and adjudicate upon such question, but such action was without authority and void. See cases last cited.\\nIf the order of July 13th, were simply erroneous, an appeal from the subsequent order refusing to vacate it would be dismissed under the rule invoked by respondent; but as we intimated in Vert v. Vert, (S. D.) 54 N. W. 655, there seems to be no good reason for holding such rule imperative, where the first order was one which the court or judge had no jurisdiction to make, although the rule is often broadly stated without such qualification. An order erroneous, and therefore voidable becomes established and operative as a valid order if not attacked within the time prescribed by statute, but a void order is a nulity, and always remains so. No rights can ever be built upon it. Neither party can be prejudiced by striking such an order from the records, for it is binding neither upon the court nor the parties. Every court of general jurisdiction has inherit power to purge its records of such an order. Black, Judgm. \\u00a7 307, and cases cited; Freem. Judgm. \\u00a7 98, and cases cited. A party against whom such an order or judgment is entered, has a right to have it vacated, upon proper application to the court which made or rendered it. Black, Judgm. \\u00a7 318, and cases cited. The court having made the order of July 13th without jurisdiction, it should have vacated it on appellant's motion. The order refusing to do so is reversed, and the case remanded for action by the circuit court in accordance with this opinion. All the judges concur.\"}"
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+"{\"id\": \"4528220\", \"name\": \"Thomas et al. v. State\", \"name_abbreviation\": \"Thomas v. State\", \"decision_date\": \"1904-01-20\", \"docket_number\": \"\", \"first_page\": \"579\", \"last_page\": \"588\", \"citations\": \"17 S.D. 579\", \"volume\": \"17\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T17:09:21.538335+00:00\", \"provenance\": \"CAP\", \"judges\": \"Fuller, J., dissenting.\", \"parties\": \"Thomas et al. v. State.\", \"head_matter\": \"Thomas et al. v. State.\\n1. Const, art. 14, \\u00a7 2, limiting the number of members of the state board of charities and corrections to five, is not violated by Laws 1903, p. 94, c. 86, creating a new board, of three members, to take the place of the old - \\u2022 board, of five, with a proviso that nothing in the act shall oporate to legislate out of office any member of the old board.\\n2. Const, art. 12, \\u00a7 3, providing that the compensation of a public officer shall not be increased or diminished during his term of office, is not violated by Laws 1903, p. 94, c. 86, creating a new state board of charities and corrections, to take the place of the old, and, among other things, providing that the compensation of members shall be a salary of $1,500 per annum, instead of a per diem of $3, under the old law.\\n3. Where the governor might, by vetoing an act of the legislature on the' ground that it interfered with his prerogative of appointment, prevent its passage, he, in effect, ratifies the appointments as made by the legislature therein by approving the act.\\n4. A contention that the legislature,' having once fixed the compensation of members of the state board of charities and corrections, had no p.ower thereafter to change such compensation is not tenable. '\\nPuller, J., dissenting.\\n(Opinion filed Jan. 20, 1904.)\\nOriginal action by D. O. Thomas and others against the state of South Dakota. Judgment for plaintiffs.\\nG. H. Dillon and Bartlett Tripp, for plaintiffs.\\nPhilo Hall, Atty. Gen., for the state.\", \"word_count\": \"2884\", \"char_count\": \"16541\", \"text\": \"Corson, P. J.\\nThe plaintiffs bring this original action to recover of the state the salary alleged to be due them as members of the state board of charities and corrections from March .1, 1903, -to July 1, 1903, amounting to about $2,000. The case is presented to this court upon an agreed statement of facts, but which, in the view we take, it will not be necessary to set out in full. It is sufficient to say that the state takes the position that the law of 1903, p. 94, c. 86, under which the plaintiffs claim, fixing the salaries of the members of the board of charities and corrections at -$1,500 per annum, is unconstitutional, for two reasons: (1) That it provides for seven members of the board, whereas the constitution limits the number to five; (2) for the reason that it provides for an increase of compensation of the members of the board, in violation of section 3, article 12, of the state constitution, which provides, \\\"Nor shall the compensation of any public officer be increased, or diminished during his term of office.\\\"\\nSections 1 and 2 of article 14 of the constitution, relating to the charitable and penal institutions, read as follows:\\n\\\"Section 1. The charitable and penal institutions of the state of South Dakota shall consist of a penitentiary, insane hospital, a school for th\\u00f3 deaf and dumb, a school for the blind, and a reform school.\\n\\\"Sec. 2. The state institutions provided for in the preceding section shall be under the control of the state board of charities and corrections, under such rules and restrictions as the legislature shall provide; such board to consist of not to exceed five members, to be appointed by the governor and confirmed by the senate and whose compensation shall be fixed by law.\\\"\\nIt will be observed that the constitution provides for placing these institutions under the control of a state board of charities and corrections, under such rules and regulations as the legislature shall provide, and that the only limitations therein contained are that the board shall be constituted of not to exceed five members, and that they shall be appointed by the governor and confirmed by the senate, and that the terms of office, duties, and compensation are left to the legislature, without any limitation. State ex rel. v. Bacon, 14 S. D. 394, 85 N. W. 605. To carry into effect these provisions of the constitution, the legislature, at its first session, in 1890, by chapter 5, p. 5, of the Session Laws of that year, provided for the appointment of such a board, limited- the number to five, fixed the term of office of its members, defined their duties, and fixed their compensation at $3 per day and their actual expenses while engaged in'the performance of the duties of their office. Subsequently, by section 1 of chapter 65, p. 82, of the Laws of 1901, the third section of the act of 1890 was amended by fixing the term of the appointee to fill a vacancy as extending to the close of the next session of the legislature. The legislature in 1903 passed an act entitled \\\"An act to provide for thp government of the charitable and penal institutions of the state of South Dakota,\\\" which was approved February 26, 1903, constituting chapter 86, p. 94, of the Session Laws of that session, in which a substantially new law was provided, relating to the board of charities and corrections, and under this new law the compensation of the commissioners was changed from a per diem of $3 to a salary of $1,500 per annum. Section 1 of the law reads as follows: \\\"The charitable and penal institutions of the state of S'outh Dakota shall be under the control of the state board of charities and corrections, consisting of three members. Said board shall be appointed by the Governor and confirmed by the Senate. The first appointments shall be, one for the term of two years, one for the term of four years, and one for the term of six years, and thereafter the regular terms of such office shall be for six years, and the members appointed for regular terms shall hold office until their successors shall be appointed and qualified. Any vacancies in the membership of such board shall be filled by the Governor, and the appointees to fill vacancies shall hold until the next session of the Legislature, succeeding their appointment, shall meet, at which time their term of office as vacancy appointees shall cease. Provided, however, that nothing in this act shall operate to legislate out of office any commissioner of said board who had heretofore been appointed and confirmed as such commissioner.\\\"\\nIt is contended by the plaintiffs that this act created new terms of office \\u2014 full terms of six years, terms to fill vacancies, and ad interim terms \\u2014 and the salaries were fixed by the Legislature, and were not an increase of compensation during the term of office. It is' further contended that the act of 1903 goes over the entire ground covered by the act of 1890, and changes and modifies it in many material respects, and, while it does not in expres\\u00e9 terms repeal such act, it does so clearly by implication; and under the decision of. the territorial court in the case of Campbell v. Case, 1 Dak. 17, 46 N. W. 504, the legislature, having gone over the ground covered by the former statute, repealed such statute by implication, except as to those provisions expressly retained.\\nThey further contend that no part of the old law has been retained in the act of 1903, except such portion of it as can be read into the proviso at the close of the first section. ' It is quite clear from an examination of the latter act that it practically goes over the whole ground of the former act, and provides substantially a new law relating to this board. The act reduces the number of commissioners from five to three; it im poses upon the new commissioners additional duties, such as giving bonds; making more frequent visits to the institutions under their control; and requires, in addition to other duties, that of providing for each institution; the supervision of the erection of new buildings, involving the expenditure of large appropriations; it changes the term of office by providing that the first members appointed under the act shall hold their office for terms of two, four, and six years; and it requires each member of the board to visit each penal and charitable institution at least once in each month, instead of once in each year, as provided by the law of 1890. By the act of 1903 the old board would have been effectually removed, and a new board of three would necessarily have been required, had not the proviso to the first section continued the old members in office.- It will be observed by the proviso that nothing in the act shall operate to legislate out of office any commissioners of said board who have heretofore been appointed and confirmed as such commissioners. It is quite clear, therefore, that the Legislature has, as it had the power to do, provided for a new board of charities and corrections, and has repealed all acts or parts of acts in conflict with that act. The effect of this proviso seems to be to retain the commissioners then in office under the new law. They could not continue in office under the old law, for that had been repealed. They must necessarily, therefore, be commissioners under the new law, which then took effect by reason of the emergency clause. This section in the new law declares the inadequacy of the old law, and provides for the taking effect immediately of the new one. The proviso which declares the commissioners shall not be legislated out of office must be construed to mean that they are to constitute the commissioners under the new law, and, when that law was passed by the Senate, and approved by the Governor, their appointment was, in legal effect, made by the Governor, and confirmed by the Senate. The proceeding was somewhat irregular, it is true, but the fact that it was irregular does not necessarily make it invalid. Although the act did provide for the appointment of three commissioners by the Governor, it is clear that under the proviso he could not make the appointment, as by such an appointment the board would have consisted of seven members, and consequently would have been, as claimed by the Attorney General, unconstitutional. In Fox v. McDonald, 101 Ala. 51, 13 South 416, 21 L. R. A. 529, 46 Am. St. Rep. 98, the Supreme Court of Alabama, in speaking of an appointment irregularly made, says: \\\"Though the action of the commissioners in the present instance was put in the form of a ratification, its necessary legal effect was that of reappointment. It was a clear act of the commissioners, manifesting that thenceforth McDonald should be chief of police, and this was certified by the corporate authorities. Nothing more was necessary to constitute an appointment. ' ' The proviso to section 1 of the act of 1903 has as effectually provided the members of the board as it would have done by naming expressly the length of terms ad interim, and naming the incumbents in the act, or permitting the Governor to do so. New terms for which they had been appointed by the Governor were, in effect, provided for the present incumbents \\u2014 new terms for two, four, and six years for the next appointments by the Governor, and the fixed tenure of office thereafter of six years for each appointee. They are the making' of new terms, not the continuation of the old \\u2014 the fixing of new com pensations for new terms, not an increase of the compensation of the old. It was all new legislation. The proviso did not retain any of the original act, but retained the incumbents of the office, only. There could be no old terms, for there was nothing left of the old act to which they could attach that would sustain them or give them life. They could not draw the compensation provided for by the old law, for that law was in effect repealed, and a new compensation provided. While the new law retained the present board in office, their terms in office were, in effect, new terms, and not a continuation of the old terms. The Legislature, having fixed a new compensation for the new terms, did not thereby increase the compensation of the officers during their terms of office, within the meaning of the law, as these terms were ended with the repeal by implication of the old law. Stone v. Pryor (Ky.), 45 S. W. 1058.\\nIn the view we take of the law, it is not material to consider the nature of the term fixed by the law of 1890, as it is competent for the Legislature to at any time change the law fixing the term, even though it might thereby legislate out of office members of the board. State ex rel. v. Bacon, supra.\\nWhen, therefore, the Legislature of 1903 passed a new law reducing the number of members of the board, arid changing their term of office, it, as before stated, practically removed the old board; and, had it not been for the proviso, all the members of the old board would have ceased to be such, and the Governor could' have appointed and the Senate. confirmed three new members of the board, who would have at once entered upon the duties of their office. The Legislature, however, instead of removing the members of the old board, provided that they should be retained under the new law; and the proviso is; in effect, the same as an independent section naming the then members of the board as members Constituting the new board-, for the terms to which they had previously been-appointed. We are of the opinion that it would have been competent -for the Legislature to so provide members of the new board,- if acquiesced -in by the' Governor in approving the act.- Undoubtedly- the Governor could ' have insisted upon his constitutional right to appoint the new members of the board, had he desired to have done so, and declined to approve the bill naming the members- of the board until that part of the act had been stricken out. So with reference to the proviso under consideration.' ' The Governor could have refused to approve the act with that proviso in' effect appointing the old board as members of the new board, had he chosen to have done so; and the passage -of the act over his veto would not have legalized the' proviso, and the Governor would have still retained the right to appoint the members of the new board, -but as the Governor approved the-act, he, in effect,, ratified the appoint-' ment as made. The contention of the Attorney General that th'e Legislature, having once fixed the compensation of- the board, had thereafter no power to change such compensation, is not tenable.' The matter of compensation was left entirely to- the Legislature:--' .It is competent, therefore, for the Legislature to change the same at any time, and fix a - different compensation, whenever the interest- of the - state1- would be -sub-served thereby, subject, of course, .to the constitutional provision-that-the compensation of no public officer shall be increased or diminished during his term of office. The law upon this subject as laid down in Bennett v. State, 16 S. D. 417, 98 N. W. 648, arose upon a provision of the Constitution fixing the compensation of the circuit judges, and providing therein that the Legislature might increase the salary to a- sum therein specified. ; .\\nWhile the questions presented are not- entirely free from doubt, it is the duty of this court to give effect to an act of the Legislature, unless it is fully satisfied that the act is in violation of some provision of the Constitution, and resolve any doubts on the subject in favor of the legislative, action. The intention of the Legislature in the passage of the act of 1903 to increase the duties and compensation of the members of the board, and to retain in office the members of the board recently appointed by the Governor, and the members constituting a part of the old board, is clear. The Legislature evidently saw the difficulty of legislating out of office all the members and leaving the new appointments to the Governor, as, under the act, he could have appointed but three. It. removed the difficulty, therefore, by taking the view that it could retain the old members as constituting the new board, ad interim, . until their terms expired by limitation under their appointment. . This proceeding, as before stated, was irregular; but the Constitution seems, in effect, to have been complied with by the Governor and Senate having. ratified the act so passed by the Legislature with the proviso therein contained. This view'is strengthened by the fact that on February 3, 1903, the Governor had appointed and the Senate confirmed three'of the mem-1 bers of the board -retained in office by the proviso, whose1 terms of office were about to expire, and who would ' not have been! members of the new board, had it not been for that appointment and confirmation.\\nWe are of the opinion, therefore, that the plaintiffs are entitled to judgment for the several amounts claimed by them, and judgment is so ordered.\\nFuller, J., dissenting.\"}"
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+"{\"id\": \"4626309\", \"name\": \"RENNER et ux., Appellants v. CRISMAN et ux., Respondents\", \"name_abbreviation\": \"Renner v. Crisman\", \"decision_date\": \"1964-04-22\", \"docket_number\": \"File No. 10102\", \"first_page\": \"532\", \"last_page\": \"541\", \"citations\": \"80 S.D. 532\", \"volume\": \"80\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T02:05:42.395188+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur.\", \"parties\": \"RENNER et ux., Appellants v. CRISMAN et ux., Respondents\", \"head_matter\": \"RENNER et ux., Appellants v. CRISMAN et ux., Respondents\\n(127 N.W.2d 717)\\n(File No. 10102.\\nOpinion filed April 22, 1964)\\nWhiting, Lynn, Freiberg & Shultz, Rapid City, for Plaintiffs and Appellants.\\nGunderson, Farrar, Carrell & Aldrich, Rapid City, for Defendants and Respondents.\", \"word_count\": \"2589\", \"char_count\": \"15425\", \"text\": \"HOMEYER, J.\\nSpecific performance of a real estate contract was denied plaintiffs and they appeal.\\nThe subject property is a ranching unit of about 380 acres in Pennington County known as the Medicine Mountain ranch. On February 2, 1957, it was sold by L. M. Test and Lois L. Test to plaintiffs under contract for deed for $35,000. A down payment of $1,000 was made with the execution of the contract, $2,000 was paid March 15, 1957 and the balance was payable in annual installments of $1,100. One of plaintiffs testified payments were current at the time of trial which would mean that $25,400 remained unpaid on the contract. Plaintiffs had the privilege of prepaying all or any part of the unpaid purchase price with accrued interest to date of payment at any time. The contract for deed is not a part of the record except as portions are shown in one of the abstracts of title. On February 28, 1962, plaintiffs granted defendants a written two-month's option to purchase the ranch for $40,000. In the option plaintiffs covenanted that they were the owners of the property; that the title was to be conveyed free and clear of all encumbrances; that it was given to enable defendants to obtain a government insured FHA loan; that seller was to pay all expenses of title clearing, if required, abstracts, etc., and that all taxes, liens, encumbrances, or other interests of third persons were to be satisfied, discharged, or paid by plaintiffs; title evidence was to be obtained from persons and be in such form as the government shall approve; that conveyance was to be by general warranty deed in the form, manner and at the time required by the government and buyers were to receive a valid, unencumbered, indefeasible fee simple title meeting all government requirements; that the purchase price was to be paid at the time of recording such deed. On April 27, 1962, defendants accepted the option and shortly afterwards plaintiffs delivered abstracts of title to the loaning agency. On May 22, 1962, defendants through their counsel, served notice of rescission upon plaintiffs claiming misrepre sentcrtion. This action was commenced on September 14, 1962. In their complaint plaintiffs allege ownership of the ranch on date of option, execution and acceptance of option, delivery of abstracts, service of notice of rescission, refusal to perform by defendants, and that plaintiffs are ready, willing and able to perform and offer to perform. By answer defendants admitted granting of the option to them and written acceptance thereof, but otherwise denied the allegations of the complaint. They affirmatively alleged misrepresentation of the ranch boundaries by plaintiffs' agent and asked for cancellation of the contract.\\nThe trial court found that plaintiffs were not the owners of the fee title to the subject property and were unable to deliver title in accordance with the terms of the option agreement. Also, that plaintiffs did not have good and merchantable title and could not give defendants a title free from reasonable doubt. These findings are challenged by proper assignments of error.\\nAlthough an option to purchase real estate is initially unilateral in its nature, upon timely acceptance it becomes a mutually binding contract capable of enforcement and subject to the same rules as a bilateral contract. Tennant v. Rafferty, 44 S.D. 235, 184 N.W. 195; Alfson v. Anderson, N.D., 78 N.W.2d 693; 81 C.J.S. Specific Performance \\u00a7 47.\\nThe remedy of specific performance is available to the vendor of real estate although the relief actually sought is the recovery of money, the purchase price, for which he may also have a remedy at law. 49 Am.Jur., Specific Performance, \\u00a7 94; Marso v. Heck, 50 S.D. 332, 210 N.W. 153. Utilization of this equitable remedy is not an absolute right, but rests within the sound discretion of the court. Watters v. Ryan, 31 S.D. 536, 141 N.W. 359. However, this discretion is a judicial discretion and controlled by established principles of equity. J. I. Case Threshing Mach. Co. v. Fransworth, 28 S.D. 432, 134 N.W. 819. Denial of specific performance in the instant case does not appear to have been predicated on equitable principles.\\nIt is obvious the trial court took the position that since the Tests had not conveyed the legal title to plaintiffs, they were not entitled to specific performance and this was a condition precedent to their right to ask for specific performance. The relationship between an installment vendor .and his vendee is essentially that of secured creditor and debtor. The vendee for all practical purposes is the owner of the property, generally with the right of possession and use, and the vendor's sole remaining interest is to be paid the agreed consideration in the form and manner provided by the instrument used to secure payment thereof. The security device employed may curtail or broaden the scope of remedies available in case of default of payment, but the final interest of the seller is nothing other than the right to payment of whatever sums are still owed him on the sale of the property. The vendee's interest has been termed an equitable interest, Phillis v. Gross, 32 S.D. 438, 143 N.W. 373; 39 S.D. 434, 164 N.W. 971, or an equitable title. Paynesville Land Co. v. Grabow, 160 Minn. 414, 200 N.W. 481; Miller v. Dyer, 20 Cal.2d 526, 127 P.2d 901, 141 A.L.R. 1428. Courts have not hesitated in granting the vendee specific performance in cases where the vendor holds an executory contract from a third person either by proceeding against the immediate vendor alone with proper compensation for the deficiency in performance, if .any, or by joining the holder of the legal title in the action. Vaughn v. Rosencrance, 73 S.D. 36, 38 N.W.2d 822. Cutler v. Lovinger, 212 Mich. 272, 180 N.W. 462. See also annotation 141 A.L.R. 1432.\\nIn the Paynesville Land Co. case, supra, the court, in disposing of the same contention urged by defendants herein, said; \\\"But when the vendor has a valid subsisting enforceable contract, with a third person who holds title and who stands ready to perform, it is sufficient. Such does not prevent the vendee from getting all that he is entitled to under his contract. An incumbrance or other defect removable at the time of the completion of the purchase is not a ground for rescission. Duluth Loan & Land Co. v. Klovdahl, 55 Minn. 341, 56 N.W. 1119. Where existing liens can be discharged out of the purchase price to be paid at delivery of the deed, the vendor is not required to discharge such liens out of his own funds prior to the time fixed for such delivery, but may cause them to be paid out of the purchase price at that time. Johnson v. Herbst, 140 Minn. 147, 167 N.W. 356; Lynch v. Higgins, 154 Minn. 151, 191 N.W. 422. The same principle should also reach and include the amount due to former owners who have sold under contract. The vendee does not suffer, and there is nothing unreasonable in such course of business. We are of the opinion that plaintiffs under the facts in this case were, at the time for performance, in a position fc> carry out the contract with appellant, and the character of their title was such as to fulfill all legal requirements.\\\"\\nIn Riley v. Wheat, 45 S.D. 320, 187 N.W. 425, vendor sought specific performance where time was of the essence and an $8,000 mortgage was unsatisfied at time of performance. The court summarily dismissed the vendee's contention that failure to pay such encumbrance excused his compliance with the contract by stating \\\"Where the incumbrance can be removed merely by the application of the purchase money, and the court can provide for a conveyance of a clear title to the vendee, the mere fact that an incumbrance exists which the plaintiff has not removed, or even is unable to remove without the application of the purchase money, will not prevent a decree for specific performance. \\\" The use of installment land contracts on sales of real estate and the rights and remedies of parties thereto is the subject of articles appearing in Vols. 6 and 7 of the 1961 and 1962 South Dakota Law Review. Their popularity and frequent usage in South Dakota and other midwestern states as a credit instrument on sale of real estate is common knowledge. We see no compelling reason to distinguish between unpaid mortgages and unpaid vendor's balances in contracts for deed in applying relevant rules in specific performance actions.\\nIncluded in the subject ranch was an irregular tract of about 60 acres noncontiguous to the main unit and consisting of three patented mining claims which was acquired by W. W. Towne and C. T. Strauss as tenants in common by Treasurer's Tax Deed in 1937. In 1947 these parties executed an agreement which recognized each party's ownership of a one-half interest in the property, including minerals and timber, and further recognized Towne's absolute right to a suitable area for a summer cabin and Strauss' exclusive grazing rights. In 1949 Towne quitclaimed his interest in the mining claims to Myrtle Wilmarth and the deed recited that it was subject to the recorded agreement between Strauss and Towne. It is argued that this agreement constituted \\u2022an easement by which Towne still retained rights in the mining \\u2022claims and an encumbrance upon the property justifying the court in denying specific performance. The Tests subsequently acquired all interests of Strauss and Myrtle Wilmarth in such mining claims. It is contended that when Towne conveyed his interest in the property to Myrtle Wilmarth and used the clause \\\"subject to\\\" the recorded agreement between himself and Strauss, he thereby retained a cabin site easement in the mining claims.\\nThe words \\\"subject to\\\" are frequently used in conveyances and are generally considered terms of qualification. Cox v. Butts, 48 Okl. 147, 149 P. 1090; Consolidated Coal Co. v. Peers, 166 Ill. 361, 46 N.E. 1105, 38 L.R.A. 624. In their ordinary sense, they mean \\\"subordinate to\\\", \\\"subservient to\\\", \\\"limited by\\\", or \\\"charged with.\\\" There is nothing in their use which connotes a reservation or retention of property rights. Englestein v. Mintz, 345 Ill. 48, 177 N.E. 746; Shell Oil Co. v. Manley Oil Corp., 7 Cir., 124 F.2d 714. The grantor Towne in his conveyance to Myrtle Wilmarth parted with his entire interest in the mining claims, subject however to such additional rights as may have been created and recognized in his 1947 agreement with Strauss. This would mean that his grantee Wilmarth acquired the right to a cabin site, but in turn was burdened with allowing Strauss absolute grazing rights. We are of the opinion that it would be unreasonable to construe the quitclaim deed as containing a reservation by Towne of an easement for a cabin site when he parted with all other interest in the mining claims. This construction is manifested by 'subsequent entries in the \\u2022abstract which show that Myrtle Wilmarth brought a partition action against the Tests and Renners and this action appears lo have been settled by her accepting absolute title to the fourth mining claim described in the Treasurer's Tax Deed and Agreement and conveying to the Tests absolute title to the three mining claims which are included in the subject matter of the present \\u2022action. Even assuming an easement existed which did not merge with the title of the Tests, we are of the opinion that under the circumstances of this transaction it would not have been sufficiently material to defeat specific performance and, if not subject to removal or correction, compensation would be proper for a deficiency in performance. SDC 1960 Supp. 37.4605; Riley v. Wheat, 45 S.D. 320, 187 N.W. 425; Weitzel v. Leyson, 23 S.D. 367, 121 N.W. 868.\\nWe consider the contention of defendants that the title to the mining claims is unmerchantable because it originated through a Treasurer's Tax Deed as untenable. The tax deed was recorded on July 19, 1937. It would be a simple matter to comply with the provisions of Chapter 51.16B, SDC 1960 Supp. to establish marketable title.\\nWe come now to a more serious question. Legal title was in the Tests, plaintiffs' vendors, and since they were not parties to the action, should relief be denied? This requires us to consider the status of the Tests so far as this action is concerned. There was no controversy between the Tests and plaintiffs. Likewise, there was no controversy between the Tests and defendants. Parties are generally classified as formal or proper, necessary, and indispensable. Weitzel v. Felker, 76 S.D. 216, 76 N.W.2d 225; Keeley Lumber & Coal Co. v. Dunker, 76 S.D. 281, 77 N.W.2d 689; Rogers v. Penobscot Mining Co., 8 Cir., 154 F. 606. The Tests were proper parties and could have been joined either as plaintiffs or defendants, SDC 1960 Supp. 33.0409, but we do not believe they were either necessary or indispensable parties. It is only when a complete determination of the controversy cannot be had without the presence of a third party that such party is necessary or indispensable. Keeley Lumber & Coal Co. v. Dunker, supra; Cottrell v. Prier, 187 Or. 454, 212 P.2d 87. Even then such party may be added by order of the court on motion of any party or of its own initiative at any stage of the action. SDC 1960 Supp. 33.0411. Time was not of the essence. The contract recognizes delays incidental to final performance. The Tests were required to accept at any time the balance remaining unpaid on their contract and issue a warranty deed to plaintiffs. L. M. Test was a witness for plaintiffs. He acted as plaintiffs' agent in showing the ranch to defendants and pointed out its boundaries. This was the controversy between the parties as revealed by the notice of rescission, pleadings, and transcript of the evidence. For this reason defendants requested affirmative relief and asked for a cancellation of the contract. This defense was not established and such relief was denied. We believe the facts and circumstances were such that the court prejudicially erred in failing to exercise its statutory and equitable powers by either bringing the Tests into the action \\u00a9n its own motion, or allowing the plaintiffs a reasonable time to obtain and produce in court a warranty deed from the Tests to plaintiffs and to perform other acts contemplated by the contract. It is generally recognized that enforcement of a contract will not be denied because the consent of a third person is necessary to performance, where it reasonably appears that such third person does or will consent. Rice v. Theimer, 45 Okl. 618, 146 P. 702; Goldsworthy v. Dobbins, 110 Cal.App.2d 802, 243 P.2d 883.\\nInterlocutory decrees are recognized in and adaptable 'to specific performance actions. Marso v. Heck, 50 S.D. 332, 210 N.W. 153; Goldsworthy v. Dobbins, supra; Moser v. Pearce, 124 Cal.App. 478, 12 P.2d 977; McKevitt v. City of Sacramento, 55 Cal.App. 117, 203 P. 132. Justice here requires such a decree to permit the parties to effectuate the contract which they made. We reverse the judgment and remand the case to the trial court with directions to proceed in conformity with the views herein expressed.\\nAll the Judges concur.\"}"
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+"{\"id\": \"4635228\", \"name\": \"HINKLE, Appellant v. HARGENS, Respondent\", \"name_abbreviation\": \"Hinkle v. Hargens\", \"decision_date\": \"1957-03-21\", \"docket_number\": \"File No. 9587\", \"first_page\": \"520\", \"last_page\": \"526\", \"citations\": \"76 S.D. 520\", \"volume\": \"76\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T17:05:36.386507+00:00\", \"provenance\": \"CAP\", \"judges\": \"SMITH, P. J., and ROBERTS, J., concur.\", \"parties\": \"HINKLE, Appellant v. HARGENS, Respondent\", \"head_matter\": \"HINKLE, Appellant v. HARGENS, Respondent\\n(81 N.W.2d 888)\\n(File No. 9587.\\nOpinion filed March 21, 1957)\\nParnell J. Donohue, Bonesteel, for Plaintiff and Appellant.\\nH. M. Lewis, Hot Springs, for Defendant and Respondent.\", \"word_count\": \"1579\", \"char_count\": \"9590\", \"text\": \"HANSON, J.\\nThis is a malpractice action for damages. The complaint alleges the defendant surgeon left a portion of a surgical needle embedded in plaintiff's back following an operation performed on September 15, 1932; that defendant negligently failed to remove the needle fragment and fraudulently concealed such fact; and although the plaintiff consulted numerous doctors over the years the needle was not discovered and removed until May 10, 1953. In answer the defendant pleaded the statute of limitations and res judicata. The defense of res judicata has reference to a prior similar action between the same parties for the same act of malpractice in which judgment for the defendant was granted on the pleadings. This issue is not presented.\\nIn the present action a pretrial conference was held on September 22, 1955. Based on the pretrial record the trial court made numerous findings of fact somewhat in the form of a decision and concluded therein, as a matter of law, plaintiff's action was barred by the two-year statute of limitations relating to malpractice actions. SDC 33.0232(6) (e). Judgment for the defendant was accordingly entered. The plaintiff appeals contending that fraudulent concealment tolls the statute of limitations in malpractice actions; and, such issue raises controverted facts which a trial court could not adjudicate at a pretrial conference.\\nOur rules of court provide a pretrial procedure similar to Rule 16 of the Federal Rules of Civil Procedure, 28 U.S.C.A. SDC 33.1003. Its general purpose is to simplify the issues and expedite the trial of disputed causes. The adjudication of controverted facts is beyond its scope and purpose. Our rules do not provide for summary judgment proceedings comparable to Rule 56 of the Federal Rules of Civil Procedure. However, if all disputed questions of fact are eliminated at the pretrial conference, the court has the inherent authority, on motion, to enter final judgment. 88 C.J.S., Trial, \\u00a7 17(2), p. 45; Annotation, 22 A.L.R.2d 609. This court so indicated in the case of Kindley v. Williams, 76 S.D. 225, 76 N.W.2d 227, 231, stating: \\\"If a claim of a party is to be discussed as a result of pre-trial the orderly procedure is by motion, which if the facts justify, may be based upon the pre-trial record. In any event the court should enter an order which recites the action taken at the conference as required by SDC 33.1003.\\\"\\nStatutes of limitations are generally regarded as statutes of repose governing the period within which actions must be brought. 53 C.J.S., Limitations of Actions, \\u00a7 1, p. 901. They are designed to eliminate fraudulent and stale claims and operate against those who sleep on their rights. As the plaintiff contends, however, there are well recognized exceptions which toll the limitation periods. From an early day courts of equity recognized and applied an exception in cases of fraud until the \\\"fraud was discovered\\\". This exception was not recognized at common law in legal actions. Our statute in this regard preserves the distinction between legal and equitable actions and authorizes the exception only in fraud cases \\\"solely cognizable by a court of chancery\\\". SDC 33.0235 provides: \\\"An action for relief on the ground of fraud in cases which heretofore were solely cognizable by a court of chancery, the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting .the fraud.\\\" This statute has been interpreted by the Federal Circuit Court of Appeals, Eighth Circuit, to apply only in cases solely cognizable by a court of chancery and therefore sounding in equity. Schindler v. Spackman, 16 F.2d 45. The plaintiff's claim is neither founded on fraud nor solely cognizable in a court of equity. The gravamen of her cause of action is the defendant's alleged negligence. The allegation of fraudulent concealment does not create a new or separate cause of action. Thompson v. Barnard, Tex.Civ. App., 142 S.W.2d 238. Plaintiff's action being one at law for damages is, therefore, outside the scope of our statutory \\\"fraud\\\" exception to the statute of limitations.\\nThe courts are reluctant to allow implied exceptions to the statutes of limitations. However, fraud is repugnant wherever encountered. It is neither logical nor equitable to frown on it in a court of equity and allow it to be used as a shield in a court of law. In recognition of this incongruity the broader exception of fraudulent concealment has found favor. Under this doctrine the courts generally recognize that fraudlent concealment of a cause of action tolls the statute of limitations until the cause of action is discovered or might have been discovered by the exercise of diligence. 54 C.J.S., Limitations of Actions, \\u00a7 206 a, p. 219; 34 Am.Jur., Limitations of Actions, \\u00a7 231, p. 188; Annotation, 173 A.L.R. 576; 31 Mich.L.Rev. p. 875 et seq. The rule applies to both legal and equitable actions. 54 C.J.S., Limitations of Actions, \\u00a7 206 b, p. 221, including malpractice actions; Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633; Ogg v. Robb, 181 Iowa 145, 162 N.W. 217, L.R.A. 1918C, 981; and see Annotation, 74 A.L.R. 1317 and 144 A.L.R. 209.\\nNothwithstanding a statutory fraud exception identical to ours the Iowa court has long recognized and applied the doctrine of fraudulent concealment in both legal and equitable actions. District Tp. of Boomer v. French, 40 Iowa 601; Faust v. Hosford, 119 Iowa 97, 93 N.W. 58; Pullan v. Struthers, 201 Iowa 1179, 207 N.W. 235; Ogg v. Robb, supra; Conklin v. Towne, 204 Iowa 916, 216 N.W. 264; Smith v. Middle States Utilities Co. of Delaware, 224 Iowa 151, 275 N.W. 158; City of Carroll v. Arts, 225 Iowa 487, 280 N.W. 869; Higbee v. Walsh, 229 Iowa 408, 294 N.W. 597; and Cole v. Hartford Accident & Indemnity Co., 242 Iowa 416, 46 N.W.2d 811, among others. In the case of Roether v. National Union Fire Ins. Co., 51 N.D. 634, 200 N.W. 818, the North Dakota court discusses, but does not decide, the application of fraudulent concealment under a fraud statute similar to ours. /\\nIn accord with Iowa, and the weight of authority, fraudulent concealment of a cause of action should be recognized as an implied exception to our statute of limitations. In its application fraudulent concealment cannot be assumed. The burden is upon .the plaintiff to prove (1) the defendant fraudulently concealed the cause of action from the plaintiff and (2) the plaintiff exercised diligence to discover the cause of action. In the absence of some trust or confidential relationship between the parties there must be some affirmative act or conduct on the part of-.the defendant designed to prevent, and which does prevent, the discovery of the cause of action. Mere silence, in the absence of a duty to speak, is not ordinarily sufficient. Where, however, a trust or other confidential relationship does exist between the parties, silence on the part of one having the duty to disclose, constitutes fraudulent concealment in the absence of any affirmative act. See Annotations, 173 A.L.R. 576. The relationship of physician and patient has been considered to be one of such confidence. Schmucking v. Mayo, supra; and Bryson v. Aven, 32 Ga.App. 721, 124 S.E. 553.\\nProm the foregoing it is our conclusion, plaintiff's' complaint alleges an exception to the statute of limitations under the doctrine of fraudulent concealment. Accordingly, there are controverted facts presented which could not be adjudicated at a pretrial conference.\\nReversed.\\nSMITH, P. J., and ROBERTS, J., concur.\\nRENTTO, J., dissents.\\nRUDOLPH, J., concurs in dissent.\"}"
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+"{\"id\": \"4661586\", \"name\": \"STATE ex rel. PARKER et al., v. YOUNGQUIST\", \"name_abbreviation\": \"State ex rel. Parker v. Youngquist\", \"decision_date\": \"1943-09-10\", \"docket_number\": \"File No. 8669\", \"first_page\": \"423\", \"last_page\": \"432\", \"citations\": \"69 S.D. 423\", \"volume\": \"69\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:41:02.911021+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur.\", \"parties\": \"STATE ex rel. PARKER et al., v. YOUNGQUIST\", \"head_matter\": \"STATE ex rel. PARKER et al., v. YOUNGQUIST\\n(11 N. W.2d 84.)\\n(File No. 8669.\\nOpinion filed September 10, 1943.)\\n(Original Proceeding)\\nStephens & Riter, of Pierre, for Plaintiffs.\\nBoyce, Warren & Fairbank, of Sioux Falls, Amicus Curiae.\\nGeorge T. Mickelson, Atty. Gen., and E. D. Barron, Asst. Atty. Gen., Defendant.\", \"word_count\": \"2560\", \"char_count\": \"14835\", \"text\": \"SICKEL, Circuit Judge.\\nThe plaintiffs are taxpayers and electors of the State of South Dakota. The defendant is the State Treasurer. The action was brought by plaintiffs as an original proceeding in this Court to prevent the defendant as State Treasurer from performing the duties imposed on him by Chapter 277, S. L. 1943, commonly referred to as the tithing law. This statute provides that ten per cent of the gross receipts of eighteen state boards and commissions shall be transferred to the general fund of the state. The amount of the transfer is limited to $50,000 for any single board or commission in any fiscal year.\\nOur first consideration is the defendant's claim that the plaintiffs are not entitled to bring this action. It is the rule in this state that any taxpayer or elector may maintain a proceeding to restrain a public officer from the performance of an illegal act, where the Attorney General has refused to prosecute the action in the name of the state, and where the relief sought is a public matter, or one of public right. In such case it is not necessary that the taxpayer or elector have a special interest in the suit or suffer special injury to himself. Weatherer et al. v. Herron et al., 25 S. D. 208, 126 N. W. 244; White Eagle Oil & Refining Co. v. Gunderson, 48 S. D. 608, 205 N. W. 614, 43 A. L. R. 397; State ex rel. Bryant v. Dolan et al., 61 S. D. 530, 249 N. W. 923; State ex rel. Jensen v. Kelly, 65 S. D. 345, 274 N. W. 319.\\nIt is admitted by the defendant that the plaintiffs are taxpayers and electors of the state and that the Attorney General refused to bring this action. The constitutionality of legislation affecting the use of public funds is a matter of public right. Therefore the plaintiffs are entitled to maintain this proceeding.\\nThe next question is whether this law is an appropriation act requiring a two-thirds vote of the members of the legislature according to Article XII, Section 2, of the Constitution.\\nAn appropriation is legislative sanction for the disbursement of the public revenue. In re Continuing Appropriations, 18 Colo. 192, 32 P. 272. The test of whether an act is an appropriation is whether the money may be paid or drawn from the state treasury on authority of the act. Humbert v. Dunn, 84 Cal. 57, 24 P. 111; Campbell v. Towner County, 71 N. D. 616, 3 N. W.2d 822; People ex rel. Colorado State Hospital v. Armstrong, 104 Colo. 238, 90 P.2d 522. The act in question authorizes no disbursement of public revenue. No money may be drawn from the state treasury on authority of the act. By its terms it reduces the continuing appropriations qf the eighteen separate governmental departments mentioned therein by means of the transfer of a part of their tax receipts to the general fund of the state where those funds are to be mingled with other tax collections and used to meet appropriations payable out of that fund. This law is not an appropriation of public money.\\nPlaintiff claims that the act constitutes a diversion of highway taxes in violation of Article XI, Section 8, of the Constitution, see Laws 1939, c. 230. That- section provides: \\\"No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same, to which the tax only shall be applied, and the proceeds from the imposition of any license, registration fee, or other charge with respect to the operation of any motor vehicle upon any public highways in this state and the proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel except costs of administration and except the tax imposed upon gasoline or other- liquid motor fuel not used to propel a motor vehicle over or upon public highways of this state shall be used exclusively for the maintenance, construction and supervision of highways and bridges of this state.\\\"\\nThe part of this section which relates specifically to the use of the highway funds was added by amendment at the general election in 1940. Since then all license taxes, registration fees and other charges for the operation of motor vehicles on the highways, and the proceeds from excise taxes on highway motor fuel must be used exclusively for highway purposes. Legislative authority over these funds is limited by the amendment to the enactment of administrative measures. The Legislature may establish new agencies or authorize existing officers, boards or commissions to use the funds for highway administration, maintenance, construction and supervision. It may change these agencies from time to time and it may vary the administrative procedure. None of these things were done by the act in question. It merely diverts a part of the special highway funds to the state general fund, without providing any assurance that the diverted funds will he used exclusively for highway purposes as required by the constitution. It contains no appropriation or allocation of these special funds in definite amounts to designated departments of government for highway administration, facilities or services, with proper administrative regulations preventing the misuse of the funds. Neither has the act any provision for the return of unexpended balances to the highway fund. Instead, the statute places the transferred funds in the general fund where they \\\"shall not be subject to any special use or uses.\\\" As a part of that fund the money will be used, not for highway purposes, but for the payment of miscellaneous appropriations, in violation of Article XI, Section 8, of the Constitution.\\nThe Attorney General claims that the court must presume that sums, equivalent to the amount specified in the act had already been expended by the state for highway purposes, and that the state is entitled to reimbursement therefor. There might be some merit to this contention if it appeared that highway expenses had been paid out of the general fund illegally or by mistake, when they were properly chargeable to the special highway fund. In such circumstances it might be claimed with reason that the highway funds were being used for highway purposes if it also appeared that the amount of the diverted funds was fixed or ascertainable and corresponded with the amount of the misused general funds. In this case there is no claim of illegality or mistake in past highw.ay expenditures from the general fund nor could such a claim be proved because highway expenditures always have been and still may be appropriated legally out of the general fund.\\nChapter 277, S. L. 1943, also transfers to the general fund of the state a part of the receipts of the following boards and commissions: State Brand Board, the Game and Fish Commission, the State Board of Osteopathic Examiners, the State Board of Chiropractic Examiners, the State Board of Dental Examiners, the' State Board of Examiners in Optometry, the State Board of Chiropody Examiners, the State Nurses Examining Board, the State Board of Pharmacy, the State Board of Embalmers, the State Board of Cosmetic Therapy, the State Board of Barber Examiners, the State Board of Engineering and Architectural Examiners, the Abstracters Board of Examiners, the State Athletic Commission, the Board of Accountancy, the South Dakota Racing Commission. It is the plaintiffs' contention that these provisions of the act also violate Article XI, Section 8, because the funds of the above named departments have already been appropriated to other purposes.\\nThe taxes imposed under the laws governing these various departments of the state government are collected for revenue, or under the police power for the purpose of regulation. There is no doubt about the right of the legislature to appropriate the proceeds of a revenue law to any lawful purpose, or to place the proceeds in the general fund. In re Opinion of the Judges, 50 S. D. 324, 210 N. W. 186. But it has been a general rule that license, privilege or occupation taxes may not be imposed under authority of the police power for revenue purposes, and that the licenses required of useful occupations can carry with them only such fee as is necessary to pay the expense of licensing and supervision. 17 R. C. L. 533; 33 Am. Jur. 336; Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509, 109 S. W. 293, 16 L. R. A., N. S., 1035.\\nThe above rule has been changed in this state by the 1918 amendment to Article XI, Section 2, of the Constitution. That amendment provides: \\\"Taxes may be imposed upon any and all property including privileges, franchises and licenses to do business in the state. Gross earnings and net incomes may be considered in taxing any and all property, and the valuation of property for taxation purposes shall never exceed the actual value thereof. The legislature is empowered to impose taxes upon incomes and occupations, and taxes upon incomes may be graduated and progressive and reasonable exemptions may be provided.\\\"\\nThe legislature has power under this amendment to impose taxes on privileges, occupations or licenses to do business, and the funds so collected may be appropriated for the purpose of regulation, or revenue, or in part for both. State ex rel. Botkin v. Welsh, 61 S. D. 593, 251 N. W. 189; Peterson Oil Co. v. Frary, 46 S. D. 258, 192 N. W. 366; State v. Thompson, 25 S. D. 148, 125 N. W. 567; State v. Doran, 28 S. D. 486, 134 N. W. 53.\\nThe case of State ex rel. Botkin v. Welsh, supra, was an original proceeding in this court to determine the constitutionality of the Gross Income Tax Law. The tax levied under the provisions of that law was a tax on the privilege of engaging in an occupation, and the gross receipts of that occupation was the measure of the tax. It was claimed that Article XI, Section 1, of the state constitution prohibits the legislature from providing any other source of revenue than the ad valorem property tax to meet the ordinary expenses of the state. It was held that such interpretation was inconsistent with the 1918 amendment to Article XI, Section 2, referred to above. Under this decision, privilege and occupation taxes levied for the purpose of revenue are valid.\\nIn Peterson Oil Co. v. Frary, supra, it was claimed that the law relating to the inspection of petroleum products was void because the inspection fees amounted to more than the expense of inspection. Forty-seven per cent of the inspection fees were used to pay the expense of the inspection and fifty-three per cent thereof remained in the state general fund and was used by the state for general purposes. It was held that \\\"the state may impose inspection fees substantially in excess of the cost of inspection, and thus make them a source of general revenue\\\" [46 S. D. 258, 192 N. W. 369], and that such a law which \\\"combines regulation with revenue raising\\\" does not violate Constitutional provisions, and is valid.\\nThe provision of Article XI, Section 8, of the Constitution which states that any law authorizing a tax \\\"shall distinctly state the object of the same, to which the tax only shall be applied\\\", does not conflict with this interpretation of Article XI, Section 2, nor does it prohibit the legislature from changing the object of the tax from regulation to revenue by amendment of the law. It does prevent the diversion of taxes which have been levied or collected, or which are already on hand and appropriated to other purposes. White Eagle Oil & Refining Co. v. Gunderson, 48 S. D. 608, 205 N. W. 614, 43 A. L. R. 397; In re Opinion of Judges, 59 S. D. 469, 240 N. W. 600; In re Opinion of Judges, 50 S. D. 324, 210 N. W. 186.\\nThis brings us to the question of severability. In the case of Haines v. Rapid City et al., 59 S. D. 58, 238 N. W. 145, 147, the opinion quotes Cooley on Constitutional Limitations as follows: \\\"if when the unconstitutional part is stricken out that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.\\\"\\nHere the legislative intent was the transfer of a part of the gross receipts of various boards and commissions to the general fund of the state. Each transfer made by the act is a separate and distinct object, independent of any other. Therefore the invalidity of the provision for transfer of highway funds to the general fund does not affect the other provisions of the act.\\nPlaintiffs have filed in the office of Secretary of State a petition asking that this act be submitted to a vote of the electors of the state before going into effect. The defendant admits the filing of such a petition but claims that the law is not subject to the referendum under Article III, Section 1, of the Constitution. The question is whether the act is necessary for the support of the state government and its existing public institutions.\\nThis law neither levies n\\u00f3r increases any tax. It appropriates no money. There is no declaration by the legislature that this law is necessary for the support of the state government or that other revenue of the state is insufficient, or that the funds affected by this act are necessary for replacement purposes. The purpose of this law is the diversion of taxes from a special purpose to the general fund because it is equitable, not because it is necessary for the support of the state government. The law is therefore subject to-the referendum. Hodges et al. v. Snyder et al., 43 S. D. 166, 178 N. W. 575; Johnson v. Jones, State Auditor, 48 S. D. 260, 204 N. W. 15; State ex rel. Martin et al. v. Eastcott, City Auditor, 53 S. D. 191, 220 N. W. 613.\\nThe petition alleges, and the answer admits, that referendum petitions were presented to the Secretary of State on June 2, 1943, asking that this act be submitted to a vote of the electors of the state at the next general election; that the petitions contained the required number of signatures, was regular on its face and properly certified. Under these circumstances it was the duty of the Secretary of State, acting in her ministerial capacity, to file the petitions, which she did. This suspended the act until and unless it receives the approval of the voters of the state at the next general election. State ex rel. Coon v. Morrison, 61 S. D. 339, 249 N. W. 318.\\nThe writ of prohibition will therefore be granted as prayed for in the plaintiffs' petition, without prejudice however to existing rights of interested parties to question the legality of the petitions by appropriate action.\\nAll the Judges concur.\\nSICKEL, Circuit Judge, sitting for POLLEY, J., disqualified.\"}"
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+"{\"id\": \"4676686\", \"name\": \"KRELL, Respondent, v. CITY OF WHITE LAKE et al., Appellants\", \"name_abbreviation\": \"Krell v. City of White Lake\", \"decision_date\": \"1951-05-01\", \"docket_number\": \"File No. 9200\", \"first_page\": \"641\", \"last_page\": \"645\", \"citations\": \"73 S.D. 641\", \"volume\": \"73\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:04:00.822991+00:00\", \"provenance\": \"CAP\", \"judges\": \"PERRY, Circuit Judge, sitting for ROBERTS, \\u25a0 J., disqualified.\", \"parties\": \"KRELL, Respondent, v. CITY OF WHITE LAKE et al., Appellants\", \"head_matter\": \"KRELL, Respondent, v. CITY OF WHITE LAKE et al., Appellants\\n(47 N. W.2d 722)\\n(File No. 9200.\\nOpinion filed May 1, 1951)\\nRehearing denied June 1, 1951\\nFred D. Shandorf, Mitchell, W. D. Shouse, White Lake, for Appellant.\\nFellows & Fellows, Mitchell, John W. Smith, Plankinton, for Respondent.\", \"word_count\": \"1288\", \"char_count\": \"7718\", \"text\": \"PERRY, Circuit Judge.\\nThe plaintiff Krell is an elector of the City of White Lake, and the holder of a license to conduct a liquor business therein. The City of White Lake held an election on the question whether the City should engage in the sale of liquors through a municipal store. A majority of the voters voted in favor of municipal operation, which under the statute, would cause the plaintiff's license to be revoked. The plaintiff challenges the validity of the election. He procured an alternative writ of prohibition from the circuit court, and upon trial, a permanent writ of prohibition was issued from which the City appeals.\\nSDC 5.0232 provides that, \\\"Any municipality may, by vote of its electors, as provided in sections 5.0233 and 5.0234, determine whether or not intoxicating liquor shall be sold within the municipality by on sale dealers, and may also in the same manner determine whether the municipality shall procure a license or licenses for the sale of intoxicating liquor at retail,\\nSDC 5.0233 sets forth the requirements of the petition required to initiate- such an election and recites: \\\"Except as herein otherwise expressly provided (boldface supplied), the form of such petition, manner of calling such election, the giving of notice thereof, the conduct of the election, and canvass and return of votes, shall be as set forth by the provisions of this Code relative to elections in incorporated municipalities as to referred or initiated ordinances;\\nSDC 5.0234 provides:\\n\\\"Form of questions submitted. The form of submitting questions to be voted upon at such special elections shall be:\\n\\\"(2) On the question of whether the municipality is to procure a license or licenses for sale of intoxicating liquor\\u2014 'Shall a license or licenses for the sale of intoxicating liquor be issued to- (naming the municipality or organized township)?' \\\"\\nAt the election, a majority of the voters voted in favor of municipal operation.\\nNo question is raised as to the regularity of the form of the petition, the manner of calling the election, the giving of notice thereof, the conduct of the election, the canvass and return of votes \\u2014 these being the specific steps enumerated in SDC 5.0233; but the plaintiff contends that the election was void in that the form of ballot was allegedly improper.\\nThe ballot submitted to the voters was in the following form:\\n\\\"Official Ballot Special City Election White Lake, S. D.\\nJune 27, 1950\\n(Instructions to Voters) \\u2014 An elector desiring to vote for the following question shall place a cross (x) in the square preceding the words, 'for issuing such license or licenses.' An elector desiring to vote against the following question shall place a cross (x) in the square preceding the words, 'against issuing of such license or licenses.' Shall A License Or Licenses For The Sale Of Intoxicating Liquor Be Issued To City Of White Lake, South Dakota?\\n\\u25a1 For issuing such license or licenses.\\n\\u25a1 Against issuing such license or licenses.\\\"\\nThe sole question presented is whether or not the ballot should have contained an explanation of the purpose and legal effect of the submitted question. The respondent contends that by SDC 5.0233 (which appears in the chapter entitled Alcoholic Beverages) everything pertaining to the election except the form of the question is required to conform to the laws relating to elections on referred ordinances, especially SDC 45.1015, which relates to elections on municipal referendum petitions and reads: \\u2022\\n\\\"Ballots. The auditor or clerk shall have ballots printed for the vote upon such referred ordinance or resolution and cause the same to be distributed as other official ballots are distributed.\\n\\\"Such ballots shall conform as near as may be to the law governing the submission of questions by the Legislature, except that the statement required to be printed on the ballots shall be prepared by the city attorney, or if there be no city attorney, by an attorney at law employed by the governing body for that purpose.\\\"\\nThis leads to SDC 16.1302, relating to the submission of constitutional amendments, and initiated and referred laws at a general election, by which section the Attorney General is required to prepare an explanatory statement of the purpose and legal effect of each proposed contitutional amendment, initiated measure, referred law or other question, particularly with reference to the existing law. In short, the contention of the plaintiff is that in a special election under the alcoholic beverage statute, the form of ballot (as distinguished from the form of the question) must conform to the election laws relating to referred ordinances, which, in turn, must conform to the provisions of state law with reference to constitutional amendments, initiated and referred laws.\\nThis view was sustained by the circuit court in the granting of the writ of prohibition. However, this court cannot accept that view.\\nWe do not believe that the legislature intended that there must be an explanation of the purpose and effect of a vote on whether a license or licenses for the sale of intoxicating liquor should be issued to a city. The purpose of voting for the issuing of such license or licenses is so obvious as not to. require any explanation. The effect of a majority vote upon this question is prescribed by statute.\\nSDC 5.0233, after stating \\\"Except as herein otherwise expressly provided\\\", makes the laws relating to elections on referred ordinances of municipalities applicable only as to the form of petition, the manner of calling the election, the giving of notice thereof, the conduct of the election, the canvass and return of votes. It says nothing as to the form of the ballots. SDC 5.0234 not only specifies the question to be placed upon the ballot but the form of submitting the question to be voted upon at the special election. If the legislature had intended that an explanation of the purpose and effect of a majority vote in favor of the question should be contained in the form of the ballot, it could and should have said so.\\nFurther, the reasons which required an explanation in the case of referred ordinances, or the adoption of constitutional amendments, or initiated or referred laws in a general state election, do not exist in the case of an election under the liquor statutes. In the case of constitutional amendments, initiated or referred laws, or referred ordinances, the amendment, law, or ordinance is referred to on the ballot only by its title, and without an explanation, voters might not know what they were voting upon. In the case of a special election to determine whether or not the city shall engage in the sale of liquor, the form of question which appears on the bah of leaves no doubt in the mind of any voter as to what he is voting for or against.\\nThe submission of this question to a vote is governed by a special law upon that subject, and the general law of elections is applicable only where the special law fails to speak. Hughes v. Hill, 30 S.D. 255, 138 N.W. 290.\\nIn this case the proper question was submitted to the voters in the manner prescribed by express statute. All steps relating to the election were properly taken. The voters have spoken. Their wish was declared and it should be upheld.\\nThe judgment below is reversed and the writ of prohibition quashed.\\nPERRY, Circuit Judge, sitting for ROBERTS, J., disqualified.\\nAll the Judges concur.\"}"
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+"{\"id\": \"4681464\", \"name\": \"TUBBS et al., Appellants v. LINN, Respondent\", \"name_abbreviation\": \"Tubbs v. Linn\", \"decision_date\": \"1955-05-19\", \"docket_number\": \"File No. 9463\", \"first_page\": \"566\", \"last_page\": \"575\", \"citations\": \"75 S.D. 566\", \"volume\": \"75\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:59:00.768129+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur.\", \"parties\": \"TUBBS et al., Appellants v. LINN, Respondent\", \"head_matter\": \"TUBBS et al., Appellants v. LINN, Respondent\\n(70 N. W.2d 372)\\n(File No. 9463.\\nOpinion filed May 19, 1955)\\nCharles R. Hayes, Deadwood, for Plaintiffs and Appellants.\\nRalph A. Dunham, Atty. Gen., and Phil W. Saunders, Asst. Atty. Gen., for Defendant and Respondent.\", \"word_count\": \"2746\", \"char_count\": \"16169\", \"text\": \"SMITH, J.\\nThe plaintiff applied to the trial court for a writ of mandamus commanding the Commissioner of School and Public Lands to issue permits to them to prospect for minerals on described school lands of the state. On the ground that the facts stated in the application were insufficient to justify the relief for which the plaintiffs prayed, the trail court granted the motion of the commissioner for a judgment of dismissal. The appeal of the plaintiffs is from the judgment of dismissal.\\nIn broad outline, the application reveals these facts. In May and April 1952 the plaintiffs applied under SDC 15.05 to the commissioner for permits to prospect for minerals on nine described sections of school land in Fall River County. On or about August 1, 1952, the commissioner informed one of the plaintiffs that the requested permits would be granted. Thereafter the commisisoner advised plaintiffs he thought permits to prospect for minerals should be upon bids as in the case of oil and gas lands and he expected -tb seek such a change in the controlling statutes. The commissioner did not issue the permits. In August 1953 the commissioner informed plaintiffs they had acquired no rights by virtue of their applications and he would issue prospecting permits under Chapter 43, Session Laws of 1953. The applications further state \\\"That deponent is advised and believes and therefore states the facts to be that the delay and subsequent refusal of said commissioner to issue prospecting permits to deponent and said C. A. Tubbs were arbitrary, were an abuse of discretion, if any discretion he had in the premises, were in disregard of his word that permits would be issued to deponent and said C. A. Tubbs upon their applications therefor and were in violation of his duty and of the rights of deponent and said C. A. Tubbs under the law applicable and in force when they sought said permits, and for many months thereafter.\\\"\\nThe controlling provisions of statute in effect when the applications for prospecting permits were made read, with emphasis supplied in part as follows:\\n\\\"All coal, ores, asphaltum, metals, minerals, and other metallic or mineral products in or upon lands belonging to the state or in lands which subsequent to July 1, 1919, were or may hereafter be sold, granted, conveyed, or leased for agricultural, meadow, pasturage, or other purposes, or in any way transferred by the state, shall be subject to license or contract by the state, except as hereinafter provided.\\n\\\"All coal, ores, asphaltum, metals, minerals, and other metallic and mineral products in such land may be removed by the state or may be disposed of by the Commissioner under such rules and regulations as the Board of School and Public Lands may establish to properly carry into effect the provisions of this section and succeeding sections, and not inconsistent herewith.\\n\\\"The provisions of this section shall not apply to oil and gas, and shall not apply to lands sold prior to the reservation of such coal, ores, SDC 15.0501..\\n\\\"The Commisisoner may execute and deliver a permit granting the right to prospect for coal, ores, asphaltum, metals, and minerals on any state land described therein for the period of one year from the date thereof, and the consideration for such permit shall be determined by the Board of School and Public Lands, but no coal, ores, asphaltum, metals and minerals shall be removed from the land described in such permit until a license has been secured.\\n\\\"At any time prior to the expiration of any such prospecting permit the original holder, or any assignee thereof, shall have the right to receive from the Commissioner a license as hereinafter provided for, which shall bind the state and the person to whom it shall issue to the mutual observance of the obligations and conditions thereof. No license or permit shall be assignable or transferable except on the written consent of the Commissioner.\\\" SDC 15.0503.\\nOther provisions for the protection of agricultural lessees of the same property, and dealing with the terms of a license to remove minerals are contained in SDC 15.0504, 15.0505 and 15.0506.\\nCh. 43, Laws 1953 amended SDC 15.0503, supra. The changes need not be described. It is sufficient for our purposes to state that the applications for prospecting permits filed by plaintiffs in 1952 do not comply with- the requirements of that section as amended.\\nThe fundamental contention of the plaintiffs, advanced under alternative theories, is that through their described applications and the pleaded circumstances, such an interest had vested in them or such an obligation to them had arisen, as the legislature, for constitutional reasons, could not destroy or impair by subsequent legislation such as Ch. 43, Laws 1953, and hence that the commissioner was under a duty to issue the permits sought in their applications. We reproduce lucid discussions of the principles under which the foregoing fundamental contention is made.\\nIn Lytle v. State of Arkansas, 9 How. 314, 50 U.S. 314, 13 L.Ed. 153, it was written:\\n\\\"It is a well-established principle, that where an individual in the prosecution of a right does every thing which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him. In this case, the preemptive right of Cloyes having been proved, and an offer to pay the money for the land claimed by him, under the act of 1830, nothing more could be done by him, and nothing more could be required of him under that act. And subsequently, when he paid the money to the receiver, under subsequent acts, the surveys being returned, he could do nothing more than offer to enter the fractions, which the register would not permit him to do. This claim of preemption stands before us in a light not less favorable than it woud have stood if Cloyes or his representatives had been permitted by the land officers to do what, in this respect, was offered to be done.\\\"\\nIn The Yosemite Valley Case (Hutchings v. Low), 15 Wall. 77, 82 U.S. 77, 21 L.Ed. 82, in writing of the principle exemplified in the foregoing Lytle case, Mr. Justice Field observed: \\\"There is no question about the correctness of the doctrine here announced; it is only a familiar principle which is stated, that where one offers to do everything upon which the acquisition of a right depends, and is prevented by fault of the other side, his right shall not be lost by his failure.\\\" But he further wrote, \\\"The principle only applies where, by law or contract, the acquisition of a right is made dependent upon the performance of certain specified acts.\\\"\\nIn State v. Robinson, 119 Tex. 302, 30 S.W.2d 292, 297, this appears: \\\" 'When there is an offer made by an act of the legislature which is accepted by an individual, there is a contract which is not within the power of the state to impair. After an acceptance, a repeal of the law cannot affect the contract; but, until an acceptance, a repeal of the act withdraws the offer, and no contract can be made.' \\\"\\nIt will be observed that these authorities deal with the failure or refusal of a public officer to perform a ministerial duty. The acquisition of a right by the petitioner did not depend upon the ex'ercise of a legal discretion by that officer.\\nThe first alternate theory advanced by plaintiffs in urging that the foregoing principle is invoked by the admitted facts is that the statute does not clothe the commissioner with a discretion, and therefore upon receiving plaintiffs' applications and fees the duty to issue permits arose, and the rights of the plaintiffs vested.\\nThis assertion of plaintiffs that the commissioner was without discretion in the premises rests upon a reading of the word \\\"may\\\" we have emphasized in SDC 15.0503, supra, to mean \\\"shall\\\". In presenting this view counsel recognizes that the word \\\"may\\\" when used in a statute is always construed in a permissive sense unless the context and subject matter indicates a different legislative intention. Rowenhorst v. Johnson, 48 S.D. 325, 204 N.W. 173, and State ex rel. South Dakota Game and Fish Comm. v. O'Neill, 62 S.D. 522, 254 N.W. 265; 57 C.J.S., May, p. 456. He grounds his argument upon a rule of construction formulated by Mr. Justice Swayne in Rock Island County Supervisors v. United States, 4 Wall. 435, 71 U.S. 435, 18 L.Ed. 419, and quoted with approval by this court in Swenehart v. Strathman, 12 S.D. 313, 81 N.W. 505. In dealing with the words \\\"may, if deemed advisable\\\" it was there written:\\n\\\"The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language \\u2014 whenever the public interest or individual rights call for its exercise \\u2014 the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.\\\"\\nAnother statement of this rule of construction was quoted by this court from Foutch v. Zempel, 332 Ill. 192, 163 N. E. 546, 549, in State ex rel. South Dakota Game and Fish Comm. v. O'Neill, supra, as follows: [62 S.D. 522, 254 N.W. 267]:\\n\\\" 'That the word \\\"may\\\" means \\\"must\\\" or \\\"shall\\\" only in cases where the public interest and, rights are concerned and where the public or third persons have a claim de jure that the power should be exercised, or where it is necessary to so construe it to carry out the intention of the Legislature.' \\\"\\nThe theory thus advanced by counsel fails to persuade us because we are unable to perceive either a right de jure of a private third party, or a public interest which invokes the cited settled rule of construction.\\nThe case of State ex rel. Coolsaet v. City of Veblen, 58 S.D. 451, 237 N.W. 555, exemplifies the application of the quoted rule of construction in aid of rights of third persons. In that case, in protection of the rights of judgment creditors of our municipal corporations, this court construed authority, permissive in form, to levy a tax to pay a judgment as peremptory in meaning.\\nIn the case at bar, the plaintiff third parties are without a right de jure. They seek, through the legislation we are asked to construe, to acquire a right. To yield to the advocacy of counsel would result in creating a right rather than in aiding or protecting an existing right. Whether the legislature intended to create such a right in applicants for permits must be gathered from the act as a whole.\\nThe legislation was not motivated by a desire to distribute bounty to prospectors. It reveals a policy to promote the discovery and development of the mineral resources of the state for the benefit of the public through a system of licensing on a royalty basis. The inducement offered private interests to venture capital is an assurance that the holder of a prospecting permit will gain an operating license if he succeeds in discovering minerals. When a permit is issued, because it may ripen into a license, public interests are at stake. Is the applicant in good faith? Is he a prospector or a speculator who hopes to ride to riches on the strength of the prospecting of others? If he is in good faith what of his integrity, capacity, and ability? How large an area should he be permitted to control while he carries on his operations? It is noteworthy that there is no express limitation on the acreage to be covered by a single permit in the statute and these plaintiffs sought permits covering nine sections.\\nWith these considerations in mind, the fact that the legislature provided that neither a permit nor a license shall be assignable except with the consent of the commissioner takes on significance. It seems reasonable to conclude that the legislature employed the word \\\"may\\\" we are considering, and the provision requiring consent to assignment to the end that the commissioner might be able to exercise a sound discretion in determining who should hold a permit or a license.\\nFor these reasons we are unable to escape the conclusion that the legislature intended to clothe the commissioner with authority to exercise a sound discretion in the public interest. Cf. United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 51 S.Ct. 502, 75 L.Ed. 1148. Therefore, it is our holding that the word \\\"may\\\" was employed in a permissive sense in SDC 15.0503, and that a duty to issue the permits did not arise when the applications of plaintiffs were filed.\\nUnder their alternate contention, we understand plaintiffs to say that, even though the commissioner is clothed with a discretion, an interest vested in plaintiffs and the court should not have dismissed the application for mandamus because (1) the commissioner exercised his discretion by stating he would issue the permits, and (2) he later abused his discretion when he refused to issue the permits because he thought a change should be made in the statutes. We elect to treat these points separately.\\nIn urging that the facts admitted by the motion for dismissal establish plaintiffs' right to a writ because they show that the commissioner exercised his discretion, we do not understand counsel to contend the commissioner should be commanded to perform his promise to issue the permits. His view is that the commissioner had exercised his judgment and announced his conclusion, and therefore that which remained to be done, viz., to issue the formal permits became but a ministerial duty which could be controlled by mandamus.\\nNo authority has come to our attention which supports this view. To so hold would open doors to controversy. The statute contemplates a grant of a permit to prospect by instrument in writing. SDC 15.0503. We discover no indication that a secretly formed, or orally expressed, intention to issue a permit was intended by the legislature to exhaust the discretion of the commissioner. The more reasonable view, we think, is that the legislature intended the commissioner to retain full authority to act in the public interest until a formal permit is issued. We therefore hold the contention untenable.\\nThe position that the commissioner abused his discretion is well taken. According to the facts, admitted by the motion to dismiss, the commissioner refused to issue any permits to prospect. In other words, because he disagreed with the policy the legislature had written into law, he refused to act. In so doing the commissioner placed himself above the law and abused his discretion in the premises. However, in our opinion, that conclusion is without controlling significance in the exhibited circumstances.\\nMandamus, which is usually employed to compel performance of duties that are ministerial in character, SDC 37.4501, is also available in instances where judgment and discretion are involved to compel the legal exercise thereof. In such instances the court is not warranted in directing the manner in which a legal discretion shall be exercised. Midwest Oil Co. v. Youngquist, 69 S.D. 461, 11 N.W.2d 662. In the case at bar, the duty of the commissioner which remained unperformed was that of exercising a legal discretion. The remedy of mandamus was available to- plaintiffs to require him to perform that duty. However, by the time these proceedings were instituted, the discretion originally vested in the commissioner had been withdrawn by Ch. 43, Laws 1953, and hence no duty remained for the court to enforce. Cf. 55 C.J.S., Mandamus, \\u00a7 41, p. 72.\\nBeing of the opinion that the facts pleaded in the application for a writ fail to establish a right to prospectors' permits in plaintiffs, the judgment of the trial court is affirmed.\\nAll the Judges concur.\"}"
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+"{\"id\": \"4682588\", \"name\": \"DRASHNER, Appellant v. SORENSON et al., Respondents\", \"name_abbreviation\": \"Drashner v. Sorenson\", \"decision_date\": \"1954-03-09\", \"docket_number\": \"File No. 9356\", \"first_page\": \"247\", \"last_page\": \"256\", \"citations\": \"75 S.D. 247\", \"volume\": \"75\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:59:00.768129+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur.\", \"parties\": \"DRASHNER, Appellant v. SORENSON et al., Respondents\", \"head_matter\": \"DRASHNER, Appellant v. SORENSON et al., Respondents\\n(63 N. W.2d 255)\\n(File No. 9356.\\nOpinion filed March 9, 1954)\\nThos. G. Wall, Sturgis, for Plaintiff and Appellant.\\nJ. H. Bottum, Jr., Rapid City, for Defendants and Respondents.\", \"word_count\": \"2893\", \"char_count\": \"17289\", \"text\": \"SMITH, P. J.\\nIn January 1951 the plaintiff, C. H. Drashner, and defendants, A. D. Sorenson and Jacob P. Deis, associated themselves as co-owners in the real estate, loan and insurance business at Rapid City. For a consideration of $7500 they purchased the real estate and insurance agency known as J. Schumacher Co. located in an office room on the ground floor of the Alex Johnson Hotel building. The entire purchase price was advanced for the partnership by the defendants, but at the time of trial $3,000 of that sum had been repaid to them by the partnership. Although, as will appear from facts presently to be outlined, their operations were not unsuccessful, differences arose and on June 15, 1951 plaintiff commenced this action in which he sought an accounting, dissolution and winding up of the partnership. The answer and counterclaim of defendants prayed for like relief.\\nThe cause came on for trial September 4, 1951. The court among others made the1 following findings. VII. \\\"That thereafter the plaintiff violated the terms of said partnership agreement, in that he demanded a larger share of the income of the said partnershp than he was entitled to receive under the terms of said partnership agreement; that the plaintiff was arrested for reckless driving and served a term in jail for said offense; that the plaintiff demanded that the defendants permit him to draw money for his own personal use out of the moneys held in escrow by the partnership; that the plaintiff spent a large amount of time during business hours in the Brass Rail Bar in Rapid City, South Dakota, and other bars, and neglected his duties in connection with the business of the said partnership. That the plaintiff, by his actions hereinbefore set forth, has made it impossible to carry on the partnership.\\\" The conclusions adopted read as follows: I \\\"That the defendants are entitled to continue the partnership and have the value of the plaintiff's interest in the partnership business determined, upon the filing and approval of a good and sufficient bond, conditioned upon the release1 of the plaintiff from any liability arising out of the said partnership, and further conditioned upon the payment by the defendants to the plaintiff of the value of plaintiffs' interest in the partnership as determined by the Court.\\\" II \\\"That in computing the value of the plaintiff's interest in the said partnership, the value of the good will of the business shall not be considered.\\\" Ill \\\"That the value of the partnership shall be finally determined upon a hearing before this Court, \\\" and IV \\\"That the plaintiff shall be entitled to receive one-third of the value of the partnership property owned by the partnership on the 12th day of September, 1951, not including the good will of the business, after the payment of the liabilities of the partnership and the payment to the defendants of the invested capital in the sum of $4,500.00.\\\" Judgment was accordingly entered dissolving the partnership as of September 12, 1951.\\nAfter hearing at a later date the court found: I \\\"That the value of the said partnership property on the 12th day of September, 1951, was the sum of Four Thousand Four Hundred Ninety-eight and 90/100 Dollars ($4498.90), and on said date there was due and owing by the partnership for accountant's services the sum of Four Hundred Eighty Dollars ($480.00), and that on said date the sum of Four Thousand Five Hundred Dollars ($4500.00) of the capital invested by the defendants had not been returned to the defendants.\\\" and II \\\"That there is not sufficient partnership property to reimburse the defendants for their invested capital.\\\" Thereupon the court decreed \\\"that the plaintiff had no interest in the property of the said partnership\\\", and that the defendants were the sole owners thereof.\\nThe assignments of error are predicated upon insufficiency of the evidence to support the findings and conclusions. Of these assignments, only those which question whether the court was warranted in finding that (a) the plaintiff caused the dissolution wrongfully, and (b) the value of the partnership property, exclusive of good will, was $4498.90 on the 12th day of September, 1951-, merit discussion. A preliminary statement is necessary to place these issues in their framework.\\nThe agreement of the parties contemplated an association which would continue at least until the $7500 advance of defendants had been repaid from the gross earnings of the business. Hence, it was not a partnership at will. Vangel v. Vangel, 116 Cal.App.2d 615, 254 P.2d 919; Zeibak v. Nasser, 12 Cal.2d 1, 82 P.2d 375. In apparent recognition of that fact, both plaintiff and defendants sought dissolution in contravention of the partnership agreement, see SDC 49.0603 (2) under SDC 49.0604(1) (d) on the. ground that the adverse party had caused the dissolution wrongfully by willfully and persistently committing a breach of the partnership agreement, and by so conducting himself in matters relating to the partnership business as to render impracticable the carrying on of the business in partnership with him.\\nBy SDC 49.0610(2) of the Uniform Partnership Act it is provided:\\n\\\"When dissolution is caused in contravention of the partnership agreement the rights of the partners shall be as follows:\\n\\\"(a)\\n\\\"(b) The partners who have not.caused the dissolution wrongfully, if they all desire to .continue the business in the same name, either by themselves or jointly with others, may do so, during the agreed term for the partnership and for that purpose may possess the partnership property, provided they secure the payment by bond approved by the Court, or pay to any partner who has caused the dissolution wrongfully, the value of his interest in the partnership at the dissolution less any damages recoverable under clause1 (2) (a) (2) of this section and in like manner indemnify him against all present or future partnership liabilities.\\n\\\"(c) A partner who has caused the dissolution wrongfully shall have:\\nii(l) :ji * %\\n\\\"(2) If the business is continued under paragraph (2) (b) of' this section the right as against his copartners and all claiming through them in respect of their interests in the partnership, to have the value of his interest in the partnership, less any any damages caused tO' his copartners by the dissolution, ascertained and paid to him in cash, or the payment secured by bond approved by the Court, and to be released from all existing liabilities of the partnership; but in ascertaining the value of the partner's interest the value of the good will of the business shall not be considered.\\\"\\nThe foregoing are the remedial provisions by which the trial court was guided in its proceedings. Their validity was not drawn in question, and is not before us. Cf. Zeibak v. Nasser, 12 Cal.2d 1, 82 P.2d 375.\\nFrom this background we turn to a consideration of the evidence from which the trial 'court inferred that plaintiff caused the dissolution wrongfully.\\nThe breach between the parties resulted from a continuing controversy over the right of plaintiff to withdraw sufficient money from the partnership to defray his living expenses. Plaintiff was dependent upon his earnings for the support of his family. The defendants had other resources. Plaintiff claimed that he was to be permitted to draw from the earnings of the partnership a sufficient amount to support himself and family. The defendants asserted that there was a definite arrangement for the allocation of the income of the partnership and there was no agreement for withdrawal by plaintiff of more than his allotment under that plan. Defendants' version of the facts was corroborated by a written admission of plaintiff offered in evidence. From evidence thus sharply in conflict, the trial court made a finding, reading as follows: \\\"That the oral partnership agreement between the parties provided that each of the three partners 'were to draw as compensation one-third of one-half of the commissions earned upon sales made by the partners; that the other one-half of the commissions earned on sales made by the partners and one-half of the commissions earned upon sales made by salesmen employed by the partnership, together with the earnings from the insurance business carried on by the partnership, was to be placed in a fund to be used for the payment of the operating expenses of the partnership, and after the payment of such operating expenses to be used to reimburse the defendants for the capital advanced in the purchase of the Julius Schumacher business and the capital advanced in the sum of Eight Hundred Dollars ($800.00) for the operating expenses of the business.\\\"\\nAs an outgrowth of this crucial difference, there was evidence from which a court could reasonably believe that plaintiff neglected the business and spent too much time in a nearby bar during business hours. At a time when plaintiff had overdrawn his partners and was also indebted to one of defendants for personal advances, he requested $100 and his request was refused. In substance he then said, according to the testimony of the defendant Deis, that he would see that he \\\"gets some money to run on\\\", if they \\\"didn't give it to him he was going to dissolve the partnership and see that he got it.\\\" Thereafter plaintiff pressed his claims through counsel, and eventually brought this action to dissolve the partnership. The claim so-persistently asserted was contrary to the partnership agreement found by the court.\\nThe foregoing picture of the widening breach between the parties is drawn almost entirely from the evidence of defendants. Of course, plaintiff's version of the agreement of the parties, and of the ensuing differences, if believed, would have supported findings of a different order by the trier of the fact. It cannot be said, we think, that the trial court acted unreasonably in believing defendants, and we think it equally clear the court could reasonably conclude that the insistent and continuing demands of the1 plaintiff and his attendant conduct rendered it reasonably impracticable to carry on the business in partnership with him. It follows, we are of the opinion, the evidence supports the finding that plaintiff caused the dissolution wrongfully. Zeibak v. Nasser, 12 Cal.2d 1, 82 P.2d 375; Owen v. Cohen, 19 Cal.2d 147, 119 P.2d 713; Meherin v. Meherin, 93 Cal.App. 2d 459, 209 P.2d 36; and Vangel v. Vangel, 116 Cal.App.2d 615, 254 P.2d 919.\\nThis brings us to a consideration of the sufficiency of the evidence to support the finding of the court that the property of the partnership was of the value of $4498.90 as of the date of dissolution.\\nBitter complaint is made because the trial court refused to consider the good will of this business in arriving at its conclusion. The feeling of plaintiff is understandable. These partners must have placed a very high estimate upon the value of the good will of this agency because they paid Mr. Schumacher $7500 to turn over that office with its very moderate fixtures and its listing of property, together with an agreement that he would not engage in the business in Rapid City for at least two years. No doubt they attached some of this good will value to the location of the business which was under only a month to month letting. Cf. 38 C.J.S., Good Will, \\u00a7 3, page 951; In re Brown's Will, 242 N. Y. 1, 150 N.E. 581, 44 A.L.R. 510, at page 513. Their estimate of value was borne out by the subsequent history of the business. Its real estate commissions, earned but only partly received, grossed $21,528.25 and its insurance commissions grossed $661.21 in the period January 15 to August 31, 1951. In that period the received commissions paid all expenses, including the commissions of salesmen, retired $3,000 of the $7500 purchase price advanced by defendants, and all of $800 of working capital so advanced, allowed the parties to withdraw $1453.02 each, and accumulated a cash balance of $2221.43. In addition the partnership has commissions due which we shall presently discuss. Notwith standing this indication of the great value of the good will of this business, the statute does not require the court to take it into consideration in valuing the property of the business in these circumstances. The statute provides such a sanction for causing the dissolution of a partnership wrongfully. SDC 49.0610(2) (c) (2) quoted supra. The court applied the statute.\\nWith the most valuable asset of the business eliminated, what remained? It is agreed that a group of bills receivable were of the value of $777.47. There was cash in the afnount of $2221.43. Subtracting these two amounts from $4498.90, the overall value fixed by the finding, it appears that the court estimated the remaining assets to be of a value of $1500. The evidence dealing with those items must be briefly examined.\\nThe furniture and fixtures were described by Mr. Schumacher. He stated the original cost when he installed them several years before, and also stated that in his own mind he had valued them at $1,000 when selling the business. They were carried on the books as at a value of $452. They included a large desk, two smaller ones, a filing cabinet, a smaller cabinet, a typwriter, a counter, some chairs, neon signs, a partition, and some supplies.\\nIn addition to the bills receivable above mentioned of the agreed value of $777.47, there were items of commission due in the amount of $8100. Most of these had been placed with attorneys for collection. Plaintiff expressed the opinion that they were good, and defendants testified they were worthless. Neither one explained the deals out of which they arose, or the worth of the debtors.\\nAnother asset was the listings of real estate for sale. Respective customers had listed real property with the agency for sale, usually at a fixed price, and had agreed that the agency should receive a 5% commission. Here again the parties took opposing extreme positions. The defendants suggested that this list of property was embraced within the good will of the business, and therefore the court was not required to consider its value. Predicated on the testimony of a witness that particular listings with which he was familiar were of the value of 5 % of the sale price named therein, plaintiff asserts that the court was required to place a high estimate of value on these assets. Neither view is persuasive.\\nAlthough these listings may have resulted in part at least from the good will of customers toward the agency, we are firm in our conviction that they are not embraced within the concept of the good will described in the Uniform Partnership Act. According to our statutory definition \\\"The good will of a business is the expectation of continued public patronage * SDC 51.0810.. Elsewhere it is defined as \\\" that element of value which inheres in the fixed and favorable consideration of customers, arising from an established and well-known and well-conducted business.\\\" 38 C.J.S., Good Will, \\u00a7 1, page 948. Rather than being an element of good will value, these listings take on the aspect of going concern value as that concept is customarily employed in fixing rates for utilities. Until such a list is established a real estate agency is not a going concern. Money, time, energy and skill go into its establishment. Therefore, we think it would be reasonable, in fixing the overall value of a real estate business to attach such a value to its list of property for sale as is comparable to the expense involved in its establishment. The reason it cannot be valued on an exchange basis, is that these listings are not transferable, and are revocable at will. Beck v. Howard, 43 S.D. 179, 178 N.W. 579. In the instant case, we do not understand that the trial court failed to attach any value to this asset. In arriving at the conclusion that these listings should not carry a high estimate of value, the court was undoubtedly influenced by the foregoing considerations and by the further fact that plaintiff had been with the office for several years and had secured many of these1 listings, and therefore, the probability was not 'remote that some of them would follow him out of the agency. The trial court was not supplied with any very substantial basis for estimating the value of this asset.\\nThat the $1500 value placed on all of these described assets was conservative we do not question. However, after mature study and reflection we have concluded that the court's finding is not against the clear weight of the evidence appearing in this record. Hence we are not at liberty to disturb it.\\nThe brief of plaintiff includes some discussion of his right to a share in the profits from the date of the dissolution until the final judgment. It does not appear from the record that this claim was presented to the trial court, or that the net profit of the business during that period was evidenced. Because that issue was not presented below, it is not before us.\\nThe judgment of the trial court is affirmed.\\nAll the Judges concur.\"}"
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+"{\"id\": \"4708842\", \"name\": \"HOUCK, Appellant, v. HULT, et al, Respondents\", \"name_abbreviation\": \"Houck v. Hult\", \"decision_date\": \"1931-03-16\", \"docket_number\": \"File No. 6801\", \"first_page\": \"181\", \"last_page\": \"190\", \"citations\": \"58 S.D. 181\", \"volume\": \"58\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:11:11.351216+00:00\", \"provenance\": \"CAP\", \"judges\": \"POLLEY, P. J\\u201e and BURCH, ROBERTS, and WARREN, JJ., concur.\", \"parties\": \"HOUCK, Appellant, v. HULT, et al, Respondents.\", \"head_matter\": \"HOUCK, Appellant, v. HULT, et al, Respondents.\\n(235 N. W. 512.)\\n(File No. 6801.\\nOpinion filed March 16, 1931.)\\nO\\u2019Keeffe & Stephens, of Pierre, for Appellant,\\nBogue & Bogue, of Parker and Gunderson & Gunderson, of Vermillion, for Respondents.\", \"word_count\": \"3422\", \"char_count\": \"19271\", \"text\": \"'CAMFBEEE, J.\\nThe above-entitled action was tried to the court without a jury, and findings, conclusions, and judgment were in favor of plaintiff. Thereafter defendants gave notice of intention to move for a new trial, which notice of intention stated that the motion would be \\\"upon the following grounds,\\\" and then proceeded to specify generally each of the causes set forth in section 2555, R. C. 1919, for the granting of a new trial, excepting only the causes specified in subdivisions 2 and 3 of said section, being misconduct of the jury and accident or suprise which ordinary prudence could not have guarded against.\\nThereafter the motion for new trial was made, and said motion embraced all of the grounds set forth in the notice of intention.\\nThereafter the learned trial judge made and entered an order purporting to grant a new trial, which said order after the title was as follows:\\n\\\"The motion of defendants Anderson for a new trial having heretofore been submitted to the court by the above named parties on the settled record, and the court being convinced that in furtherance of justice that the motion should be granted, it is so ordered.\\n\\\"To which plaintiff excepts and his exception is hereby settled and allowed.\\n\\\"Done at Yankton, 'South Dakota, August 17, 1928. ,\\n\\\"By the Court:\\n\\\"R. B. Tripp, Judge.\\\"\\nThis order was prepared by the trial judge and not by counsel for either party.\\nFrom this order plaintiff' has appealed, and the sole assignment of error is that the trial court erred in making and entering the order granting new trial, for the reasons that said' order \\\"(1) does not set forth or specify the ground or grounds upon which said Order is based; (2) does not set forth or specify any legal ground for the granting of a new trial; and (3) is not based upon any ground urged by Respondents upon their Motion for a New Trial.\\\"\\nThe statutes of this state with reference to the occasions when a new trial may be granted are very liberal in their terms. Section 2558, R. \\u00a1C. 1919, reads as follows: \\\"The verdict of a jury may also be vacated, and a new trial granted by the court in which the action is pending, on its own motion, without the application of either of the parties, when there has been such plain disregard by the jury of the instructions of the court, or the evidence in the case, as to satisfy the court that the- verdict was rendered under a misapprehension of such instructions, or under the influence of passion or prejudice.\\\"\\nThis section gives the trial judge an extremely broad power to grant new trials of his own motion if he believes that his instructions have been misunderstood or disregarded, or that the verdict is so contrary to the evidence as to indicate the influence of passion or prejudice, although this power must be exercised at the time the verdict is returned, if at all. See Delmont State Bank v. Ramsdell, 50 S. D. 188, 208 N. W. 827, and cases cited.\\n\\u2022Section 2555, R. C. 1919, provides the cases wherein a new trial may be granted upon application of a party in the following language:\\n\\\"The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:\\n\\\"1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion by which either party was prevented from having a fair trial.\\n\\\"2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.\\n\\\"3. Accident or surprise, which ordinary prudence could not have guarded against.\\n\\\"4. Newly discovered evidence, material to the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.\\n\\\"5. Excessive damages, appearing to have been given under the influence of passion or prejudice.\\n\\\"6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.\\n\\\"7. Error in law, occurring at the trial and excepted to by the party making the application.\\\"\\nThe very liberality of the language of this statute makes it extremely difficult for a party appealing from the granting of a new trial, and for this court in such case, to know what particular error or errors tire trial judge believes to have been committed sufficient to justify the granting of a new trial, unless in his order granting such new trial he affirmatively specifies his reason or reasons for so doing with much greater detail and particularity than merely to reiterate the broad general grounds set forth in the statute.\\nThis situation was pointed out in an opinion of this court in Norman v. Miller, 40 S. D. 399, 167 N. W. 391, 392 (May 1, 1918), by Judge 'Whiting, in the following language: \\\"The motion for new trial was based upon numerous specifications of error, among which were specifications of the insufficiency of the evidence. Appellant has incorporated into her written argument a letter of the trial judge addressed to the attorneys herein. In this letter the trial judge discusses one of the grounds urged upon the motion for new trial. This letter, not being a part of the settled record, has absolutely no proper place in the printed record herein except as an authority upon the question therein discussed. If it were conceded that the sole ground upon which the new trial was granted was the trial judge's belief that he had erred, at the trial, in his rulings involving the proposition discussed in such letter, we would have left for our consideration the one specification which presented such conceded ground for granting the new trial. It would be very pleasing to this court and might ofttimes save the necessity of affirming orders granting new trials, if trial courts, in such orders, would clearly state the sole ground or grounds upon which each order is based.\\\"\\nBy chapter 163, Laws 1919, the Supreme Court was affirmatively authorized and required on or before July 1, 1919, to establish rules of practice for trial courts of record, and pursuant thereto the court did on March 12, 1919 (40 S. D. preliminary pages 17-3'6), establish such rules to be effective July x, 1919, including therein (perhaps not uninfluenced by the suggestion in Norman v. Miller, supra) Rule 30 reading as follows: \\\"Contents of Orders Granting New Trials. The trial court, when granting a motion for new trial, shall, in its order, specify each and every ground upon which it bases such order; all grounds urged upon such motion and not specified i'n the order shall be deemed to have been overruled by the trial court.\\\" The language of this rule seems quite simple and easy of understanding, and the spirit and intention thereof quite plain and definite. It contemplates that the trial court shall do just what the rule requires, namely, shall specify each and every ground upon which the order granting new trial is based. The rule further contemplates that such specification shall be actual and detailed as to the particular errors which the trial judge relies upon as justifying the granting of a new trial, and shall not 'be a mere reiteration of the broad general grounds stated in section 2555, R. C. 1919. The spirit and intention of the rule is not complied with by reciting merely that the new trial is granted because of \\\"irregularity in the proceedings\\\" under subdivision 1, sec. 2535, but the order should point out specifically the particular irregularity or irregularities upon which the trial judge relies as a sufficient reason for the granting of a hew trial.\\n\\\"It is contended by appellant that that portion of the order granting a new trial upon the ground of 'error in law occurring at the trial, excepted to by the defendant' is not a compliance with rule 30 of Trial Court Rules, requiring trial courts in orders granting new trials to state therein all grounds upon which it bases such order. While respondents in their brief have not discussed or relied upon specific errors occurring at the trial, and this ground need not now be considered, we take this opportunity to state that the rule is intended to lighten the labors of this court, and for that reason an order granting a new trial should specifically point out the errors which in the opinion of the- trial court require a new-trial. If no error is glaring enough to be discernible by the court and interested counsel at the time of making the order, injustice is not likely to result from its disregard. If such error is apparent, it should be specifically pointed out. A compliance with the spirit of the rule requires more than the mere general statement of the grounds as in this order. It should go further and state the particular errors which influenced the trial court in its decision.\\\" Gamble v. Keyes (1925) 49 S. D. 39, 206 N. W. 477.\\nRule 30 clearly provides that all grounds urged upon the motion for new trial and not specified in the order granting the new trial shall be deemed to have been overruled by the trial court. Under our decisions respondent may, in such event, if he desires, broaden the record, if necessary, to show and argue on appeal that the motion ought to have been granted upon other of the grounds urged, and, if that view is taken by this court, the order granting the new trial will be affirmed, even though not justified by the specific ground upon which, it was based by the trial court. See Corsica State Bank v. Heezen, 54 S. D. 113, 222 N. W. 671; Plucker v. Chicago, M. & St. P. Ry. Co., 48 S. D. 185, 203 N. W. 208. In the instant case, therefore, the presumption is that every ground upon which a new trial was asked by respondents has been overruled. It affirmatively appears from the record that respondents based their application for new trial upon every ground which the statute permitted to them, excepting only the grounds specified in subdivisions 2 and 3. of the statute, being misconduct of the jury (and there was no jury in this case), and accident or surprise which ordinary prudence could not have guarded against (and no one claims there was any such in this case). By the form of the present order and under Rule 30 all these grounds have been overruled, and the trial judge has departed entirely from the statute and has undertaken to grant a new trial utterly outside the statute, for the reason that he states himself to he convinced that a new trial should be granted \\\"in furtherance of justice.\\\"\\nRespondents suggest that perhaps the learned trial judge relied upon the language of this court in Larsen v. Johnson, 43 S. D. 223, 178 N. W. 876, 877, wherein this court said as follows:\\n\\\"A trial court, outside of the provisions of section 2558, Rev. Code 1919, no doubt has an inherent power to grant a new trial when of the view that the conduct of the trial was such as to amount to a clear mistrial or a clear miscarriage of justice.\\n\\\"In this case the third ground assigned for granting the new trial discloses that the trial court was of the view that the error of the court in permitting the misconduct of attorneys and audience was such as to deprive the parties of a fair and impartial trial. We are of the view that where the trial court is satisfied that there has been a mistrial, or a clear miscarriage of justice, growing out of a failure of the court itself to discharge the duties of its office, the court has inherent power to grant a new trial by reason thereof at any time while the question of new trial is pending before him, and on this ground he may grant a new trial, without application or motion by either party, wholly upon his own motion.\\\"\\nIn the Larsen Case the ground for granting new trial under discussion was that a fair and impartial trial was not had on tire merits by reason of the misconduct of attorneys who par ticipated in the trial whereby the attention of the court and jury was diverted from the issues. The conduct of attorneys in the course of a trial is at all times subject h> proper regulation by the presiding judge, and it is the affirmative duty of the presiding judge properly to regulate and control such conduct if occasion arises. If the presiding judge fails in this duty, such failure constitutes an abuse of discretion by the court, and an irregularity in the proceedings within the meaning of subdivision i, section 2555, R. C. 1919, and is ground for the granting of a new trial under that statute. It is true that in the Rarsen 'Case new trial was not asked for upon the ground, but that is not material. The language of the Rarsen Case must be construed in accordance with the circumstances then presented to the court. The Rarsen Case is not authority for the proposition and does not hold that there is an inherent power in a trial judge to grant ,a new trial for causes or grounds outside of or beyond those embraced in the statute. This court refused to decide that question in Schmidt v. Potter, 44 S. D. 526, 184 N. W. 357. And neither was it decided in the Rarsen Case. The Rarsen Case, under its facts and upon this particular point, is authority for this proposition and for nothing more; namely, that while the question o\\u00ed the granting of a new trial is pending before a trial judge, upon application of an aggrieved party, the trial judge has an. inherent power, if he deems proper, to grant a new trial for any of the causes or upon any of the grounds specified in section 2555, R. C. 1919, even though such cause or ground was not set out or embraced in the application for the new trial as one of the grounds therefor.\\nThe Rarsen Case is still farther from constituting any authority for a trial judge to disregard the plain provisions of Rule 30, for in the Rarsen Case the specific grounds and reasons which influenced the trial judge to grant a new trial (and as we have said, such grounds were well within the provisions of section 2555, R. C. 1919, though they were not embraced in the application for new trial), were set out in detail and at great length in the order granting the new trial.\\n-We are emphatically of the opinion that under section 2555, R. C. 1919, and Trial Court Rule 30, the order granting a new trial in this case is utterly defective. The difficulties facing an appellant and this court upon an effort to review any such order as that are manifest. The appellant would have to assume the 'burden of presenting in this court the entire record and undertaking to show as to every ruling and everything that happened that nothing occurred which ought otherwise to have been ruled \\\"in furtherance of justice.\\\" The burden of the appeal would be grossly exaggerated. The appellant prevailed upon the trial below, and, if he is thereafter required to come to this court, it should be because of the granting of a new trial on account of some error below, and he is entitled to a record (including the order granting a new trial) which points out clearly where the trial court believes that error existed, and that is the only thing that appellant should have the burden (in the first instance)- o'f sustaining in this court. Not only the difficulty, but also the absurdity of what has been attempted by the present order, is entirely manifest.\\nRespondents suggest that appellant cannot question the form of the order granting a new trial, because he did not make a motion or take other steps after the entry of such order in the court -below to have the form of the order -changed. That shoe, we think, is upon the other foot. An order granting a new trial, after an application therefor, is at the request and for the benefit of the moving party, and it is the duty of the moving party and the trial judge to see to it that such order complies in form, substance, and spirit with the statutes and rules of court.\\nIn the instant case we cannot -but be impressed with the fact that the trial judge and no one else is responsible for the form of the order. He drafted the order himself. His arbitrary failure to comply with Rule 30 undoubtedly placed counsel for both parties in a difficult and embarrassing position. After the oral argument in this -court, wherein respondents' counsel argued, among other things, the serious injustice which might be done respondents if the order appealed from herein were reversed because of its utter disregard of Rule 30, and respondents thereby precluded of any opportunity for review of the cause, respondents applied to this court for an order to show cause directed to the trial judge requiring him to show cause why he should not amend his order granting a new trial nunc pro tunc by setting out therein the grounds upon which the order was based. This -court has not issued the requested order to show cause thus sought by respondents, and we do not believe it is necessary so- to do.\\nThe substantial rights of litigants ought not to be made to depend, if possible to avoid it, upon the failure or refusal of a trial judge to comply with court rules.\\nFor the protection of the rights of all parties to this proceeding we will assume therefor (as was done in Frank v. Ruzicka, 45 S. D. 49, 185 N. W. 371) what the record in this case affirmatively indicates is probably entirely contrary to fact; namely, that the failure of the trial judge to make his order granting new trial conform with Rule 30 was the result of inadvertence.\\nWe will therefore retain jurisdiction of this appeal, and the order of this court will be as follows :\\nThe record herein will be temporarily remanded to the trial court for the purpose of complying with the mandate of this court. The trial judge is directed, within ten days after the mandate of this court is received in the court below, to make and enter, nunc pro tunc as of the date of his previous order granting a new trial, an order in compliance with the letter and spirit of Rule 30, wherein the reasons for granting such new trial are specifically set out. Such nunc pro tunc order shall be forthwith transmitted to this court with the return of the record herein, and shall be deemed to replace the present order, and the present appeal shall continue to stand in this court as an appeal from such nunc pro tunc order. Before the filing of such nunc pro tunc order and the transmittal thereof to this court and as a condition precedent to receiving the same in this court, respondents shall pay to appellant as terms the sum of $100.\\nAppellant, will be given sixty days after the payment of such terms and the filing of such nunc pro tunc order in this court to serve and file new briefs in this appeal, and respondents may have thirty days after, the service and filing of appellant's new briefs wherein to serve and file new briefs on their part if they desire. Let an order be entered accordingly.\\nPOLLEY, P. J\\\" and BURCH, ROBERTS, and WARREN, JJ., concur.\"}"
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+"{\"id\": \"4725748\", \"name\": \"HERDMAN, Respondent and Cross-Appellant v. NATIONAL RESERVE LIFE INS. CO., Appellant and Cross-Respondent\", \"name_abbreviation\": \"Herdman v. National Reserve Life Ins.\", \"decision_date\": \"1973-07-12\", \"docket_number\": \"File Nos. 11151, 11154\", \"first_page\": \"389\", \"last_page\": \"398\", \"citations\": \"87 S.D. 389\", \"volume\": \"87\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T02:05:38.843190+00:00\", \"provenance\": \"CAP\", \"judges\": \"MILLER, Circuit Judge, sitting for DOYLE, Justice, disqualified.\", \"parties\": \"HERDMAN, Respondent and Cross-Appellant v. NATIONAL RESERVE LIFE INS. CO., Appellant and Cross-Respondent\", \"head_matter\": \"HERDMAN, Respondent and Cross-Appellant v. NATIONAL RESERVE LIFE INS. CO., Appellant and Cross-Respondent\\n(209 N.W.2d 364)\\n(File Nos. 11151, 11154.\\nOpinion filed July 12, 1973)\\nOrder denying petition for rehearing August 15, 1973\\nThomas E. Simmons, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for plaintiff, respondent and cross-appellant.\\nRobert C. Heege, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant, appellant and cross-respondent.\", \"word_count\": \"2589\", \"char_count\": \"15667\", \"text\": \"MILLER, Circuit Judge.\\nPlaintiff commenced this action to recover the proceeds of a life insurance policy issued on the life of her husband in which she was the named beneficiary. The defense was that the deceased insured, in his application for said policy, had given false and misleading answers to the questions therein, which were material to the risk and which induced defendant to issue the policy which it would not have done had it known the true facts.\\nDefendant appeals from a judgment entered upon a jury verdict in favor of plaintiff, claiming primarily that the trial court erred in denying its motions for directed verdict and judgment n. o. v. on the grounds that as a matter of law the misrepresentations, omissions, misstatements and concealments of fact by the insured were material to the risk and a reasonable insurer would not have issued the policy at all, or if at all, then at a higher premium rate, if it had known the full, complete and true facts.\\nPlaintiff has filed a cross appeal arguing first that the trial court erred in refusing to instruct or submit to the jury the question of whether the defendant's refusal was either vexatious or without reasonable cause, and, secondly, that the trial court's determination as a matter of law that such refusal was neither vexatious nor without reasonable cause (and as a result refusing to allow plaintiff a reasonable sum for attorney fees as part of her costs) was erroneous.\\nAnsel S. Herdman, the insured, died February 19, 1970, of \\\"congestive heart failure due to probable coronary occlusion\\\", some four months after making application for the life insurance policy which is the subject of this suit. He had been married to plaintiff on two occasions. They were first married in 1943, which marriage terminated by divorce in 1958. In 1960 he married his second wife, Reba, who was a laboratory technician in the clinic of Dr. Janss, whose testimony will be alluded to later in this opinion. The marriage to Reba terminated by divorce in 1966, and later that year he remarried plaintiff and remained so married until the time of his death.\\nDr. Janss first saw Herdman as a patient in September 1962, when Reba thought he should have an electrocardiogram (EKG). The EKG was taken and was diagnosed by Dr. Janss as a \\\"suspicio[n] of a posterior myocardial infarct, old\\\", of which Herdman was informed. In addition Dr. Janss determined Herdman's blood pressure was \\\"running rather high\\\" and prescribed diuril, plexonal and phenobarbital, and explained the reasons for-t-he-drugs.- On \\u2014 July 5, 1963, Reba again thought an EKG was appropriate and upon the same being taken it was diagnosed the same as before, with the addition of an ectopic beat (on that date the blood pressure was still quite high). On July 16, 1963, a repeat EKG was run, revealing the absence of the ectopic beat. Dr. Janss examined EKG's of Herdman again in October 1963, May 1964, and January 1965, all with the same diagnosis as previously made, and each time with an apparent elevated blood pressure. In January 1965, Dr. Janss specifically told Herdman that he did have \\\"heart disease\\\" and told him to limit his activities. In February 1965, he was hospitalized for suspicion of influence of alcohol and, among other things, was given medication to reduce high blood pressure. In December 1965, he was hospitalized because of drinking. Dr. Janss later saw him in April 1966, because of his drinking, at which time he had elevated blood pressure. In April 1967, another EKG revealed no change. In March 1968, Dr. Janss gave him a thorough physical and determined no change in his EKG and further determined that the blood pressure was well controlled. The apparent last time he was seen by Dr. Janss was in August 1969, in the hospital with alcohol problems. During all of the period material herein Herdman was prescribed medications and encouraged by Dr. Janss to take the same, although it would appear that he was not taking them regularly.\\nSome two months after the hospitalization in September 1969, Herdman made application for the insurance policy which is the subject of this suit. Part of the application was a physical examination by a Dr. Dzintars, and it involved the completion of a questionnaire which was signed by Herdman as being \\\"full, complete and true to the best of [his] knowledge\\\" and wherein he agreed that it would be a part of any policy issued. The answers thereto were given by Herdman and inserted by Dr. Dzintars after the physical examination. The portions thereof which are material to this appeal are as follows:\\n\\\"3. a. Are you now in good health to the best of , your knowledge?.......................Yes.\\nb. Have you any bodily defects including amputations? .No.\\nc. Do you contemplate any operations? .No.\\n4. Have you ever had: a. health examination? (Date and why made?) . b. electrocardiogram, x-ray or other special diagnostic tests? (Date and why made?)........... Yes. Gen. checkup by Dr. Janss, Rapid City, S. D., 1967\\n*\\n6. Have you ever had any disease or abnormality of:\\na. heart or blood vessels, including murmer, high blood pressure, palpitation or pain about the heart or chest? Any medications for these conditions? .No.\\n*\\n9. What physician or physicians, if any not named above have you consulted or been treated by, within the last 5 years, and for what illness or ailment? .None.\\\"\\nDr. Dzintars upon his examination made a cardiac diagnosis of \\\"Normal heart\\\" (no EKG was taken). His blood pressure readings were apparently borderline elevated and therefore the defendant required a follow-up examination which was conducted by Dr. Dzintars three weeks later. The written form providing for the follow-up exam required a blood pressure check (which revealed it to be normal) and asked whether applicant had or was taking medication to control hypertension. Dr. Dzintars at that time obtained the; information from Herdman that he was not now taking such medicines but that he only had done so \\\"For 2 or 3 mos, 6 years ago. Name & dosage not known'.'\\nPrior to the issuance of the policy, and during the period between the initial and follow-up exams by Dr. Dzintars, defendant requested and received a confidential life report from the Retail Credit Company. The first question therein was, \\\"ANY REASON FOR NOT RECOMMENDING APPLICANT?\\\", to which the answer, \\\"YES.Past habits.\\\" was given. In explanation of the above, the following comment was made:\\n\\\"Ansel Herdman was formerly considered to be a heavy and frequent drinker, he would drink to excess several times a month. AT that time he was known to have 1-3 drinks of beer. Sources feel that it may have been domestic trouble that caused him to drink, his wife divorced him and he remarried and moved back to Rapid City. For the past several years (6-7 yrs.) he has had good personal habits and has not been drinking to excess. He will still drink 1 or 2 drinks on Sat. night or at a party, however does not drink to excess'.'\\nIn a letter to plaintiff's former counsel refusing to make payment under the policy, an assistant actuary of defendant advised that:\\n\\\"The information regarding the elevated blood pressure, while not revealed on the application, was turned up from another source prior to the issuance of this policy. Rut, as indicated, knowledge by us of the hospitalizations for alcoholism would, in and of itself, have precluded our issuance of this policy.\\\"\\nSaid actuary testified that the information regarding prior knowledge of the high blood pressure was from the examination by Dr. Dzintars.\\nA vice president in the underwriting department of defendant testified that it was defendant's policy to treat a diagnosis of \\\"suspicio[n] of a myocardial infarct\\\" as an actual diagnosis of a myocardial infarct and that if such diagnosis was made within one year of the application, coverage would be denied, and if it were within a ten-year period the premium would be rated up. He further testified that their procedure with persons with a reading of high blood pressure on the initial exam was to obtain supplemental readings, such as was done on the follow-up exam here with Dr. Dzintars, and inquiries would be made if there were current medications being taken. He further testified that his company would wait two years after an alcoholic cure before issuing a life insurance policy at standard premiums.\\nDefendant denied payment of the proceeds under the policy and tendered return of the premium paid, and defended this lawsuit under the authority of SDCL 58-11-44, which provides:\\n\\\"All statements and descriptions in any application for an insurance policy or annuity contract, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:\\n(1) Fraudulent; or\\n(2) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or\\n(3) The insurer in good faith would either not have issued the policy or contract, or would not have issued it at the same premium rate, or would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.\\\"\\nDefendant makes no claim that fraud was an issue in the case and, in fact, specifically conceded that it was not.\\nPlaintiff argues that defendant should be estopped from claiming the benefit of SDCL 58-11-44, contending that by virtue of the Retail Credit Company report defendant had actual knowledge of true facts or sufficient information therefrom to put it on notice, or placed it under a duty of further inquiry. Plaintiff has cited 43 Am.Jur.2d, Insurance, \\u00a7 742, which states:\\n\\\"The mere fact that an insurer, in order to test the truth of the representations made by the applicant, makes an independent investigation, does not in itself lessen the right of the insurer to avoid the policy because of misrepresentations made by the insured in his application, except where the independent investigation either discloses the falsity of the representations or discloses facts which place upon the insurer the duty of further inquiry. Accordingly, if the independent investigation of the insurer does not expose the falsity of the insured's misrepresentations and also fails to disclose facts which put upon the insurer the obligation to proceed with its investigation, the insurer's right to avoid the policy remains unaffected. If, however, it is obvious that the insurer relied exclusively on its own independent investigation and that the insured's misrepresentations constituted not even a contributory influence, they cannot be seized upon by the insurer to avoid the policy. Moreover, where the investigation discloses facts of such a nature as to require further inquiry by the insurer, its failure to make such inquiry will estop the insurer to rely on the insured's misrepresentations in order to avoid the policy.\\\"\\nWe do not reject this principle of law, however, it is our opinion that the facts in this case do not warrant its application here.\\nSeveral cases similar to this have been before this Court on previous occasions. Perhaps the most prominent of these are: Ivory v. Reserve Life Insurance Co., 78 S.D. 296, 101 N.W.2d 517; Bushfield v. World Mutual Ins. Co., 80 S.D. 341, 123 N.W.2d 327, and Norwick v. United Security Life Co., 82 S.D. 640, 152 N.W.2d 439.\\nIn the Norwick case we held that:\\n\\\"The term 'good health' when used in an application for life insurance means that the applicant has no grave, important, or serious disease and is free from any ailment or infirmity that affects seriously the general soundness and healthfulness of the system.\\\"\\nIn the Ivory case we reiterated the proposition that an insurance policy may be voided when an applicant makes material misrepresentations in reliance upon which the policy is issued. Therein we said:\\n\\\"False representation in an application for insurance is material to the risk if it is such as would reasonably influence the decision of the insurer as to whether it would accept or reject the risk.\\\"\\nIn the Bushfield case we said:\\n\\\"An insurer is entitled to rely on the truthfulness of answers given in an application It follows, of course, that failure to mention a minor or temporary ailment is not material to the risk and will not avoid the policy. However, the question of materiality does not depend upon what applicant may have deemed to be of no consequence It is clear that a false representation as to a material matter renders a policy voidable without showing that the misrepresentation was made with intent to deceive or that the misrepresentation had a causal connection with the disability claimed under the policy'.'\\nIn the case of Lindlauf v. Northern Founders Insurance Company, 1964, N.D., 130 N.W.2d 86, that court summarized a previous decision relating to the question of when the issue of materiality of the misrepresentations become one of law for the court. Therein the court quoted from a previous case as follows:\\n\\\" 'Where the application for an insurance policy is made the basis of the insurance contract, is attached to and made a part of the contract, and there are misrep resentations in the answers of the applicant to the questions in such application, and it appears from the record that reasonable minds could not differ on the question as to whether the matter misrepresented increased the risk of loss, such question is a question of law for the court.' \\\"\\nIn the case at bar the answers made to the questions above quoted were false and did not reveal to the insurer that the insured had a diagnosis of heart disease and high blood pressure nor that he had taken medication for the same. Further, they did not even reveal the several examinations and EKG's by Dr. Janss nor the various hospitalizations. The application was the basis of the insurance contract and was made a part of it by its terms. The insurer testified that had it known the true facts it would have either refused to issue the policy or would have issued it at higher premiums.\\nOur review of the evidence indicates that reasonable minds could not differ that there were misrepresentations, omissions and concealments in the application and that the matters so misrepresented increased the risk of loss. The court erred in refusing to grant the motion for directed verdict and the motion for judgment notwithstanding the verdict.\\nThe action as to appeal \\u00a7 11151 is remanded to the circuit court with directions to enter judgment for the defendant and provide that plaintiff is entitled to a return of the premiums paid.\\nIn view of the foregoing opinion as to appeal \\u00a7 11151, the plaintiff's cross appeal, # 11154, is rendered moot and the appeal is dismissed.\\nAll the Justices concur.\\nMILLER, Circuit Judge, sitting for DOYLE, Justice, disqualified.\"}"
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+"{\"id\": \"4728096\", \"name\": \"STATE, Respondent v. RIGSBEE, Appellant\", \"name_abbreviation\": \"State v. Rigsbee\", \"decision_date\": \"1975-09-19\", \"docket_number\": \"File No. 11389\", \"first_page\": \"360\", \"last_page\": \"376\", \"citations\": \"89 S.D. 360\", \"volume\": \"89\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T17:47:23.519682+00:00\", \"provenance\": \"CAP\", \"judges\": \"WINANS and WOLLMAN, JJ., concur.\", \"parties\": \"STATE, Respondent v. RIGSBEE, Appellant\", \"head_matter\": \"STATE, Respondent v. RIGSBEE, Appellant\\n(233 N.W.2d 312)\\n(File No. 11389.\\nOpinion filed September 19, 1975)\\nPetition for rehearing denied October 27, 1975\\nFrederic R. Moulton, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Kermit A. Sande, Atty. Gen., Pierre, on the brief.\\nSidney B. Strange, Sioux Falls, for defendant and appellant.\", \"word_count\": \"5672\", \"char_count\": \"33548\", \"text\": \"DUNN, Chief Justice\\n(on reassignment).\\nDefendant was convicted of possessing more than one ounce of marijuana by the Circuit Court of Codington County sitting without a jury. He was sentenced to spend two years in the State Penitentiary. He assigns as error four aspects of the trial court's decision. The major issue is whether the trial court properly refused to suppress a large quantity of marijuana which defendant had in his vehicle at the time of his arrest.\\nThe record reveals that between 5 and 5:30 p. m. on March 16, 1973, Officer Durham of the Watertown police received information from a confidential informant that \\\"Mr. Rigsbee had-marijuana or a controlled substance in his vehicle and he normally went to the Club 20 between 6:20 and 7:00, and that he had been selling marijuana out there.\\\" Officer Durham considered the informant to be reliable, and defendant does not challenge that reliability here. In addition to this information, Officer Durham knew that defendant had previously been arrested for possession of less than one ounce of marijuana and that he had a reputation in Watertown as being a seller of controlled substances.\\nAs a result of the tip, Officer Durham, along with Officer Witt, waited in a patrol car several blocks from defendant's house until the defendant left in his car at approximately 7:10 p. m. The officers followed Rigsbee and stopped his car when he turned onto Highway 20 at about 7:15 p. m. Officer Durham told him that he \\\"had information to believe that [Rigsbee] had marijuana in his car .\\\" Rigsbee was asked several times if the officers could search his car and he was informed that if he refused the officers would'have to get a search warrant.\\nThe defendant refused to allow a search of his car at that time. He was then taken into'custody and driven to the police station by Officer Witt. Officer Durham drove the defendant's car to the station.\\nAt this point there is a conflict in the testimony. The defendant claims that when he arrived at the police station he was taken to the interrogation room where he was told that if he did not consent to a search of his car that the police would get a warrant and \\\"tear it apart.\\\" He says that he then went with the officers to the car- and retrieved three bags of marijuana from the glove compartment. He was then taken back to the interrogation room and later led the officers back to the car where he produced a larger quantity of marijuana from a compartment in the back of the car.\\nThe police version of what happened at the station is entirely different. They testified that as Rigsbee was being taken into the station through the garage that he told Officer Durham, \\\" 'You don't need a search warrant, I will get the stuff for you.' \\\" He then went to the car and produced three bags of marijuana which he got out of the glove compartment. Officer Durham also testified that he never told the defendant that he would tear his car apart if he had to get a search warrant or threatened the defendant in that manner.\\nThe pivotal issue in this case is whether the police had sufficient probable cause to stop the defendant's car on Highway 20 and take the defendant into custody. If the police had no probable cause to arrest the defendant, all that followed could be tainted by this illegal stop. Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Cf. Brown v. Illinois, 1975, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416. The test to determine the sufficiency of an informant's tip as it relates to probable cause was set out by the United States Supreme Court in Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Although the case dealt specifically with the sufficiency of an affidavit for a search warrant, the test has been used in determining if probable cause exists where there is an arrest without a warrant. See McCray v. Illinois, 1967, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; Beck v. Ohio, 1964, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.\\nMr. Justice Goldberg, writing for the majority in Aguilar, set out a two-prong test to determine the sufficiency of the information from an informant as it relates to probable cause:\\n\\\"Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was credible' or his information 'reliable.' \\\" 378 U.S. at 114-115, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. (emphasis supplied)\\nThere is no question in the instant case that the second prong of the test was met. Officer Durham testified that the informant had supplied reliable information about criminal activity to him in the past. In addition, defendant concedes the credibility of the informant. The threshold question is whether the first prong of the Aguilar test was met. Simply stated, did Officer Durham at the suppression hearing supply \\\"underlying circumstances from which the informant concluded that the [marijuana was] where he claimed [it was]?\\\"\\nThe first part of the Aguilar test has come to be known as the \\\"basis of knowledge\\\" prong. It was clarified by the Supreme Court in Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. There the Court stated:\\n\\\"In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.\\n\\\"The detail provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), provides a suitable benchmark.\\\" 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644.\\nIn Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, an informant named Hereford told federal narcotics agents that Draper had gone to Chicago and that he was going to bring back three ounces of heroin. He gave the agents Draper's description and told them that Draper would be arriving in Denver by train at a certain time on one of two days. He said that Draper habitually walked fast and that he would be carrying a tan zipper bag. When Draper did arrive by train he was arrested and the heroin was found in his possession. The court held that the informant's tip, plus the verification of the tip by the police, was sufficient to establish probable cause for Draper's arrest and the search of his person.\\n\\\" Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had 'reasonable grounds' to believe that the remaining unverified bit of Hereford's information \\u2014 that Draper would have the heroin with him \\u2014 was likewise true.\\\" 358 U.S. at 313, 79 S.Ct. at 333, 3 L.Ed.2d at 332.\\nIn examining whether there were underlying circumstances showing the informant's basis of knowledge of the criminal activity in this case we will use Draper v. United States, supra, as a benchmark as suggested by the Court in Spinelli v. United States, supra. The informant here told Officer Durham (1) that Rigsbee was in town, (2) that he usually went to Club 20 where he sold marijuana, (3) that he would leave for Club 20 between 6:30 and 7 p. m., and (4) that he would have a controlled substance in his car. Before making the arrest, Officer Durham personally verified most of the informant's tip: the defendant was at home; he did leave home within ten minutes of the time the informant said he would leave; and he was proceeding in the direction of Club 20 at the time he was stopped by the officers. The only bit of univerified information was that Rigsbee would have a controlled substance in the car.\\nConsidering the information given by the informant as a whole and the subsequent verification by the officers, we conclude that the informant did have firsthand knowledge of the defendant's criminal activity. We hold that this information, plus the proven credibility of the informant meets the two-pronged Aguilar test for 'probable cause. Therefore the officers were justified on the basis of the informant's tip in taking the defendant into custody.\\nThis holding is in complete accord with the latest pronouncer ment from the Eighth Circuit Court of Appeals regarding the Aguilar-Spinelli-Draper line of cases. In United States v. Cummings, 1974, 507 F.2d 324, a reliable unnamed informant notified law enforcement authorities that slot machines were being carried into Sioux Falls, South Dakota. He described the U-Haul truck that carried the slot machines, gave the license number of the truck, and stated that the driver was one James Christensen of Sioux Falls. On the basis of this tip a search warrant was issued by a municipal judge in Sioux Falls and slot machines were found in the described truck. The Court of Appeals examined the informant's tip and concluded that it contained enough self-verifying detail to allow a magistrate to believe that the informant had firsthand knowledge of the criminal activity and thus it met the first prong of the Aguilar test. The Court stated at p. 329:\\n\\\"The key question which must be asked by ' the magistrate is: 'Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's, tests without independent corroboration?' Spinelli v. United States, supra, 393 U.S. at 415, 89 S.Ct. at 588. In the instant case we are convinced that the answer must be in the affirmative.\\\"\\nWe are also convinced that the tip given to Officer Durham in this case was sufficient in detail and, like the Eighth Circuit Court of Appeals, we answer the above question in the affirmative.\\nDefendant next argues that the marijuana should have been suppressed because he involuntarily consented to the \\\"search\\\" of his vehicle. Defendant uses the word \\\"search\\\" in his brief, although, technically, no police search took place. The record reveals that on two different occasions defendant led the officers out to his car in the police garage and he himself entered the car and handed the bags of marijuana to the officers. Rather than speak of this as a \\\"search,\\\" we prefer to call what took place a \\\"seizure\\\" \\u00a1by the officers. However, in doing so we do not imply that the 'constitutional mandates of the Fourth and Fourteenth Amendments are any less strict for a seizure alone than they are for a search and seizure by law enforcement officers.\\nThe trial court made no determination as to whether defendant voluntarily produced the marijuana. Since the trial court did not rule on this question, we choose not to decide it on this appeal. Rather, we hold that the police had probable cause to search the car themselves and thus they were justified in seizing the marijuana which the defendant produced from the car. Viewed in this light, the question of voluntary consent by the defendant is irrelevant.\\nThe police officers had probable cause based on the informant's tip to stop the defendant on the highway. Since the informant told them that there was contraband in the car, they had probable cause to conduct a search on the spot or at the police station.\\nIn many respects the facts of this case are similar to those in Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. There the police, acting without a warrant but with probable cause, searched a vehicle which they believed was involved in an armed robbery and contained guns and money taken in the robbery. The Court upheld the warrantless search.\\n\\\" [T]he police had probable cause to believe that the robbers, carrying guns and the fruits of the crime, had fled the scene in a light blue compact station wagon which would be carrying four men, one wearing a green sweater and another wearing a trench coat. As the state courts correctly held, there was probable cause to arrest the occupants of the station wagon that the officers stopped; just as obviously was there probable cause to search the car for guns and stolen money.\\\" 399 U.S. at 47-48, 90 S.Ct. at 1979, 26 L.Ed.2d at 426.\\nThe Court went on to say that it made no difference that the vehicle was searched at the station house rather than on the highway.\\n\\\"On the facts before us, the blue station wagon could have been searched on the .spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained.\\\" 399 U.S. at 52, 90 S.Ct. at 1981, 26 L.Ed.2d at 428-429.\\nIn the instant case the police had the necessary probable cause to search for marijuana at the station house. The fact that the defendant produced the marijuana and they then seized it does not change the outcome. The warrantless seizure did not violate the Fourth and Fourteenth Amendments. Therefore, we conclude that the trial court committed no error in refusing to suppress the marijuana.\\nDefendant raises several other assignments of error which we feel to be without merit and they will not be discussed in this opinion.\\nThe conviction of the defendant is affirmed.\\nWINANS and WOLLMAN, JJ., concur.\\nDOYLE and COLER, JJ., dissent.\\nAn Informant's Tip as the Basis for Probable Cause: Modified Aguilar Standards, 20 S.D.L.Rev. 363, 367 (1975); Moylan, Hearsay and Probable Cause; An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 747 (1974).\"}"
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+"{\"id\": \"5323214\", \"name\": \"BROWN COUNTY, a Public Corporation, Respondent, v. EASTON, Appellant\", \"name_abbreviation\": \"Brown County v. Easton\", \"decision_date\": \"1933-10-26\", \"docket_number\": \"File No. 7512\", \"first_page\": \"18\", \"last_page\": \"18\", \"citations\": \"62 S.D. 18\", \"volume\": \"62\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:44:19.127210+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Judges concur.\", \"parties\": \"BROWN COUNTY, a Public Corporation, Respondent, v. EASTON, Appellant.\", \"head_matter\": \"BROWN COUNTY, a Public Corporation, Respondent, v. EASTON, Appellant.\\n(250 N. W. 668.)\\n(File No. 7512.\\nOpinion, filed October 26, 1933.)\\nH. O. Hepperle, of Aberdeen, for Appellant.\\nPrank L. Sieh, State\\u2019s Attorney, of Aberdeen, for Respondent.\", \"word_count\": \"91\", \"char_count\": \"544\", \"text\": \"PER CURIAM.\\nThe questions presented by the appeal in the instant case are identical with those considered in the companion case of Brown County v. Hall, 61 S. D. 568, 249 N. W. 253. In accordance with our opinion and 'decision in that case, the order appealed from is affirmed.\\nAll the Judges concur.\"}"
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+"{\"id\": \"5338988\", \"name\": \"USLETTEN, Respondent, v. CITY OF BROOKINGS, et al, Appellants\", \"name_abbreviation\": \"Usletten v. City of Brookings\", \"decision_date\": \"1932-02-17\", \"docket_number\": \"File No. 6975\", \"first_page\": \"477\", \"last_page\": \"484\", \"citations\": \"59 S.D. 477\", \"volume\": \"59\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T18:11:50.667231+00:00\", \"provenance\": \"CAP\", \"judges\": \"POLLEY, WARREN, and RUDOLPH, JJ., concur.\", \"parties\": \"USLETTEN, Respondent, v. CITY OF BROOKINGS, et al, Appellants.\", \"head_matter\": \"USLETTEN, Respondent, v. CITY OF BROOKINGS, et al, Appellants.\\n(240 N. W. 851.)\\n(File No. 6975.\\nOpinion filed February 17, 1932.)\\nFor former opinion, see 58 S. D. 303, 235 N. W. 705.\\nCheever, Collins & Cheever, of Brookings, and Bogue & Bogue, of Parker, for Appellants.\\nHall & Bidem, of Brookings, for Respondent.\", \"word_count\": \"2469\", \"char_count\": \"13890\", \"text\": \"ROBERTS, J.\\nThe decision of this court on a former appeal, reported in 53 S. D. 644, 222 N. W. 268, sustained the order of the trial court overruling demurrer to the complaint. After trial in the circuit court on the merits and decision on appeal in this court, 58 S. D. 303, 235 N. W. 705, the defendants made application for rehearing, which was granted.\\nThis action was instituted for the recovery of damages for personal injuries sustained by the plaintiff. Upon the occasion in question the plaintiff, met a friend, Ben Togsecl, and they stopped to converse. Plaintiff leaned back against an iron railing which was intended to protect an opening in and along the inner side of a public sidewalk in the city of Brookings which afforded access to a cellar. The railing gave way at the point where it had been broken and fastened! with wire, and plaintiff was precipitated into the opening and injured. On cross-examination, plaintiff testified: \\\"I may have seen the rail the day before the accident but I didn't know it was laying there loose. I never sat on that same rail that gave way with me on May 2nd, 1927, before that time. I never saw any wire fastened to that rail which gave way with me on May 2, 1927. I never looked to see whether there was any wire on that rail or not. My eyesight was good then. It is pretty good yet. I have always' enjoyed pretty good eyesight until I got hurt. It is pretty g'ood yet. Before I was hurt on May 2nd I had to use glasses to read, but for mechanical work I did! not need glasses prior to the second of May, 1927. That wire is large enough so I can see it without any trouble now. If that top rail had been wrapped with wire about the size of the wire Exhibit 3 and if I looked at it I wouldn't have had any trouble seeing it. I wasn't looking for that wire. If I had looked I could have seen it. I didn't look. Because I didn't look I didn't see it. I never noticed the east end of the rail at all. I couldn't tell whether any portion of the bracket holding the east end was broken at all. If I had looked at it and it was broken I could have seen it, but I didn't pay any attention to it. I knew when I leaned up against that rail that if it was loose, I would know that I would fall. If I knew it was a loose railing, I knew that if I fell in there I was liable to get hurt. I never measured the depth of that areaway. I knew it was quite a hole. I knew pretty near how deep it was. I knew when I leaned against that guard rail that the thing which prevented me from being precipitated into the areaway was the guard rail itself, but I didn't know it was loose. I knew if it was loose I knew I would go into there. I never looked to see if it was loose before or after I was hurt.\\\"\\nDefendants at the close of plaintiff's case, as well as at the conclusion of the evidence, moved for a directed verdict, which was denied. Counsel for the defendants assert that the testimony of the plaintiff conclusively shows that the plaintiff was contributorily negligent, and that a verdict should have been directed by the trial court in favor of the defendants. It is their contention that, if the plaintiff had used his faculties, he would have discov ered not only the fact that the flange which supported the end of the rail which gave way was broken, but he would have discovered that the wire which had been used to bind t'he guard rail to the broken bracket on the iron post was loose, and that, if plaintiff had used his eyes for his own safety and preservation, he would never have been precipitated into the opening. Counsel urge that plaintiff's conduct did not conform to the required standard of cai-e and prudence recently enunciated by this court in the cases of Descombaz v. Klock, 58 S. D. 173, 235 N. W. 502, 504, and Taecker v. Pickus et al, 58 S. D. 177, 235 N. W. 504, 505. The circumstances are exxtirely different. What is ordinary care under one state of facts may not constitute the same care under axrother or different state of facts. In other words, a cax-eful arxd prudent person must make such observation as the circumstances reasonably require. The, greater and xnox-e immirxexit the danger, the greater must be the care to be exercised.\\nIn each of the cases referred to and relied upon by the defendants, the plaintiff sought the recovery of damages for injuries received in an automobile accident. In the first case cited, Descombaz v. Klock, the plaintiff, repairing a tire on the highway in front of a staxxding automobile, was held contributorily negligent in failing to step to the edge of the highway when he saw that a rear erxd collision with an approaching automobile was imminent. Under the cix-cixmstances the plaintiff was required to be alert for his own safety and to watch for the approach of automobiles. We -quote from the opinioxr: \\\"It is the functioxx of a highway to furnish a safe and .convenient place for travel. Conceding that the temporary use of a highway for making an emergency repair to a vehicle is a proper use, it is nevertheless a partial obstruction to traffic engaged] ixx the normal use of the highway, and it is the duty of one so engaged to obstruct the traffic as little as conveniently possible and not to unnecessarily endanger other's. And he must keep a reasonable lookout to avoid injury to himself or property. Nothing less can justify such use of a highway. By lighting the lights he had respondent may have doxie all that he could under the circumstances to waxn others of his presence, but that did not excuse him from keeping a lookout to avoid injury from moving traffic.\\\"\\nIn Taecker v. Pickus et al, the plaintiff, driving an automobile, failed to observe gravel dumped in the middle of the highway, and the automobile struck the obstruction, causing injuries to the plaintiff. 'It is pointed out in the opinion that the accident occurred on a clear day; that there was no traffic in the vicinity of the accident to interfere; that the plaintiff was an experienced driver, with good eyesight; and there was nothing to obstruct her vision. We held in that case that the plaintiff was contributorily negligent as a matter of law. Plaintiff in the instant case had a right to assume in the absence of knowledge to the contrary or in the absence of visible obstruction or of some circumstance sufficient to place him on inquiry that all parts of the sidewalk-intended for public travel were in a suitable condition for such use. He was not bound to anticipate or search for defects. Assuming that no greater amount of caution is required of a person driving an automobile on a highway than of a pedestrian using a public sidewalk, the fact that the plaintiff in the case of Taecker v. Pickus failed to see what a person observing\\\" his general course would necessarily see clearly differentiates the case from the present action. No duty rested upon the plaintiff to inspect the railing-before leaning against it, and it does not conclusively appear from the evidence that the plaintiff in the instant case did not observe what ordinary vision would! necessarily observe. It cannot be said, as a matter of law, that he was guilty of contributory negligence. This was a controverted issue of fact for determination by the jury.\\nThe further contention is made that it was contributory negligence, as a matter of law, for the plaintiff to have used the railing guarding the open areaway in the manner indicated by the testimony. 'Counsel point out that they are not unmindful of the fact that this court on the appeal from t'he order overruling demurrer in this case said: \\\"We think it is a question for the jury in each particular case, whether or not one who- has stood on the street for casual conversation, is, by leaning against a railing-guarding a cellarwav in the place where he has stopped, so far deviating fro-m traveling purposes as to preclude a recovery from the municipality for injury sustained in consequence of the railing giving away, due to negligence imputable to the municipality.\\\" However, defendants contend the evidence as disclosed by t'he record is so entirely different from the facts alleged in the pleadings that a diffrent conclusion must -be reached; that the complaint alleges that the plaintiff \\\"leaned lightly\\\" against the guard rail, but the evidence shows that the -plaintiff leaned \\\"substantially the entire weight of his body\\\" against the same.\\nPlaintiff testified: \\\"The sidewalk around the areaway is a little lower than the stone cap or ledge that these iron posts are bolted to. I can't say how much lower. I never measured it. It might be an inch. It might be a little less than an inch. I haven't got an idea. I just barely touched the rail and I was overbalanced and went backward. I was leaning pretty well backwards. I just barely touched it. I couldn't state whether my heels were on the sidewalk or on the capstone. If it was on the stone it might have been just the heels, there is not room for the whole foot. I didn't try to sit on the rail.\\\"\\nBen Togsedi, a witness for the plaintiff, testified: \\\"He (plaintiff) put his 'hands behind him and leaned against the rail and the railing fell down. His feet were on the sidewalk. There is a capstone on the sidewalk where that rail is and the iron rail is fastened to the posts that are set in the capstone. He stood on the sidewalk just like standing on the floor. His heels were an inch and a half or something like that from the rock.\\\"\\nThe capstone or ledge referred to is concededly one foot wide, and this is the measurement that appears in a plat or blueprint of the sid'ewalk and areaway received in evidence. The -plat, however, does not indicate the measurement from the outer side of the capstone to the iron post to which the broken flange was fastened, but Victor Faust, a witness for the defendants, testified: \\\"This post is set in the center of the capstone. From the post to the outside of the capstone is possibly 4)14 or 5 inches.\\\" The iron posts measure 3 inches in diameter, and the horizontal rails 2 inches. The jury from this evidence could have reasonably concluded that the capstone projects 5 to 5/4 inches on the outer side of the horizontal rails, and that the plaintiff stood with his hands behind him, his feet on the sidewalk, and his heels not more than 7 inches from the outer edge of the guard rails. From this evidence it does not conclusively appear that plaintiff leaned \\\"substantially the entire weight of his body against the railing,\\\" granting that a strain exerted against the railing in excess of that caused by casually lean ing against it would constitute such an unreasonable use of it as to preclude a recovery.\\nAfter re-examining the contention of the defendants that the trial court erred in admitting in evidence portions of the answers interposed by -the 'defendants, we are satisfied that the conclusion of our former opinion that if improperly admitted no prejudice resulted is correct.\\nIt remains to consider the contention that the court erred in refusing the following requested instruction: \\\"Yc-u are instructed that a municipal corporation is not liable for every accident that occurs within its limits. Its officers are not required to do every possible thing that human energy and ingenuity can do to prevent the happening of accidents or injuries to the citizens; the law does not require that the city shall do more than keep its streets and sidewalks in a reasonably safe condition, and defects in the sidewalk to make the city liable must be such as are in themselves so dangerous that a person exercising ordinary prudence could not avoid injury.\\\"\\nThe court instructed the jury that the city was not \\\"an insurer of those who used its sidewalks, nor is every defect therein, though it may cause an injury, actionable; all that the law requires is that the sidewalks shall be reasonable safe for those using the same.\\\" Counsel concede that this instruction in substance embraced the -portion of the requested instruction stating that a city is not liable for every accident that may ocoure within its limits, and is not required to do more than keep its sidewalks in a reasonably safe condition, but they complain in particular of the failure of the court to convey to the jury the portion of the requested instruction appearing above in italics. The requested instruction is a literal -statement of the law appearing in the opinion of this court in Bohl v. City of Dell Rapids, 15 S. D. 619, 91 N. W. 315. It is an attempt to state negatively the rule concerning the duty of a -city in the maintenance of its -sidewalks. What was intended under this rule announced in Bohl v. City of Dell Rapids, supra, is that, although a municipal corporation is not an insurer of those who travel its streets, and is not required to keep its streets in such a condition as to insure safety of travelers under all circumstances, there is an affirmative duty imposed upon its officers to exercise ordinary care in maintaining its sidewalks in a reasonably safe condition for the purposes for which sidewalks are intended. After a careful consideration of the court's instructions, we are satisfied that the trial court fairly and correctly instructed the jury with reference to the duty of a municipal corporation with respect to the maintenance of its sidewalks, and \\u2022 in substance incorporated the requested instruction.\\nWe therefore adhere to the result arrived at in the former opinion, and the judgment and order appealed from are affirmed.\\nPOLLEY, WARREN, and RUDOLPH, JJ., concur.\\nCAMPBELL, P. J., dissents.\"}"
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+"{\"id\": \"5346411\", \"name\": \"INDEPENDENT SCHOOL DIST. OF LAKE ANDES, Respondent, v. SCOTT et al, Appellants\", \"name_abbreviation\": \"Independent School Dist. v. Scott\", \"decision_date\": \"1927-04-01\", \"docket_number\": \"File No. 6310\", \"first_page\": \"187\", \"last_page\": \"189\", \"citations\": \"51 S.D. 187\", \"volume\": \"51\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:54:46.926507+00:00\", \"provenance\": \"CAP\", \"judges\": \"CAMPBELL, P. J., and BURCH, J., concurring.\", \"parties\": \"INDEPENDENT SCHOOL DIST. OF LAKE ANDES, Respondent, v. SCOTT et al, Appellants.\", \"head_matter\": \"INDEPENDENT SCHOOL DIST. OF LAKE ANDES, Respondent, v. SCOTT et al, Appellants.\\n(212 N. W. 863.)\\n(File No. 6310.\\nOpinion filed April 1, 1927)\\nKirby, Kirby & Kirby, of Sioux Falls, for Appellants.\\nCasfer & Baker, of Lake Andes, for Respondent.\", \"word_count\": \"728\", \"char_count\": \"4169\", \"text\": \"'FOLLElY, J.\\nPlaintiff, brought this action to recover money belonging to the school district. Defendant Scott was treasurer of the \\u00a1district, and defendant surety company was surety on bis official bond. When S'cott went out of office he failed to turn over to his successor a large sum of money belonging to the district. Findings and judgment were for plaintiff, and defendants appeal.\\nThe uncontroverted facts show that Scott, while treasurer of the school district, was also cashier and managing officer of the County Seat State Bank of Lake Andes; that he kept the funds of the district on deposit in the said bank; that for several months prior to the 26th day of June, 1924, the said' bank had been in failing circumstances, if not wholly insolvent; that Scott knew this fact, but that, nevertheless, he continued to deposit the funds of the district in said bank, and made no effort to- withdraw said funds from, said bank; in fact, kept said funds in said bank for the purpose of .bolstering up the bank's dwindling reserve. On the said 26th day of June, 1924, said bank, being unable to meet its obligations, closed its doors, and was turned over to t'he banking department for liquidation.\\nIt is the contention of appellants that the said bank had been designated by the school board as a depositary of the district funds. This contention is based upon a resolution adopted on the 24th day of April, 1924, by the city council of the city of Lake Andes, designating the Lake \\u00a1Side -State -Bank, the Val-ley State Bank, and the County Seat State Bank as depositaries for the funds of the school -district, and that, having \\u00a1deposited the funds in one of these designated depositaries, defendants are not liable for the loss occasioned by the failure of the bank. In support of this contention appellants cite and rely on what is said by this court in Edgerton Independent Consol. School Dist. v. Volz, 50 S. D. 107, 208 N.W. 576. The two cases are not analogous. In that case the record showed that the treasurer acted in good faith pursuant to chapter 335, L. 1921, and deposited the funds in a bank within the state of good repute, 'believed' by him and the public generally to be solvent and able at all times to meet its obligations. And it was because of these facts that we held he was not liable for the loss.\\nIt is not necessary to determine whether the city council of Lake Andes 'had authority to designate depositaries of the school money. But conceding it had such authority Scott would not be justified in depositing the money in a bank 'he knew to be in failing circumstances when he had the choice of two other depositaries not known to be in failing circumstances.\\nIn this case the obligation of 'defendant required that Scott should\\u2014\\n\\\" faithfully and impartially discharge the duties of said office, and render a true account of all money, credits, accounts, and property of any kind that may come into his hands, as such officer, and pay over and deliver the same according to law.\\\"\\nIn. depositing the funds in a bank 'he knew to be in failing circumstances and in continuing the deposit, Scott violated this covenant in the bon'd. He did not act in good faith. He was wholly negligent of the interest of the school district, so negligent, indeed, as to amount to a fraud on the district. Good faith on the part of Scott would have prompted him to' have withdrawn the funds of the school district from the County Seat State Bank when he learned it was in failing circumstances and deposit them in one of the other designated depositaries. Because of the bad faith and fraudulent conduct on the part of Scott, and upon the authority of the Edgerton 'Case above cited, he and his surety should' be required' to maike good the loss occasioned by such misconduct.\\nThe judgment and order appealed from are affirmed.\\nCAMPBELL, P. J., and BURCH, J., concurring.\\nGATES and SHERWOOD, JJ\\\" not sitting.\"}"
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+"{\"id\": \"5357076\", \"name\": \"STATE, Respondent, v. CLARK, Appellant\", \"name_abbreviation\": \"State v. Clark\", \"decision_date\": \"1923-07-02\", \"docket_number\": \"File No. 5100\", \"first_page\": \"490\", \"last_page\": \"496\", \"citations\": \"46 S.D. 490\", \"volume\": \"46\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:19:18.875083+00:00\", \"provenance\": \"CAP\", \"judges\": \"ANDERSON, P. J., concurs in the result.\", \"parties\": \"STATE, Respondent, v. CLARK, Appellant.\", \"head_matter\": \"STATE, Respondent, v. CLARK, Appellant.\\n(194 N. W. 655.)\\n(File No. 5100.\\nOpinion filed July 2, 1923.)\\n1. Homicide \\u2014 Dying Declarations \\u2014 Evidence\\u2014Criminal Law \\u2014 Only Such Matters May Be Shown by Dying Declaration as Deceased. Could Have Testified to.\\nOnly such matters can be shown by a dying declaration as the deceased could have testified to if alive and present at the trial.\\n2. Homicide \\u2014 Res Gestae \\u2014 Evidence\\u2014Criminal Law \\u2014 What Occurs Before or After Act Resulting in Death Not Part of \\u201cResGestee.\\u201d\\nWhat occurs before or after transaction resulting in death does not constitute a part of the res gestae, although the interval of the separation may he brief.\\n3$. Homicide \\u2014 Dying Declaration \\u2014 Evidence\\u2014Dying Declarations Admissible Only in Homicide Cases Where Circumstances of Death Subject Thereto.\\nDying declarations axe admissible only in oases of homicide, where the death of the deceased is the subject of the charge and the circumstances of the death axe the subject of the dying \\\"declaration.\\n4. Homicide \\u2014 Dying Declaration. \\u2014 Evidence\\u2014Admission of Extraneous Matter with. Dying Declaration Held Inadmissible.\\nIn a prosecution for causing death by abortion, the admission of the written dying declaration of deceased, the greater portion of which related to her betrayal and desertion by an assumed lover, not the accused, shortly after she became pregnant, some six months prior to her death, held inadmissible.\\n5. Homicide \\u2014 Abortion\\u2014Evidence\\u2014Evidence Held Insufficient to Sustain Conviction for Causing Death by Abortion.\\nIn a prosecution for causing death by abortion, evidence held insufficient to sustain conviction.\\n6. Criminal Law \\u2014 Appeal and Error \\u2014 Where Verdict of Guilty, Appellate Court Will Disregard Appellant\\u2019s Testimony, and Accept, as True, All Material Testimony of State.\\nWhere there is a verdict of guilty in a criminal case, the appellate court must disregard the testimony of accused, and accept, as true, all material testimony on behalf of the state.\\n7. Criminal Law \\u2014 Presumptions \\u2014 Evidence \\u2014 Every Unlawful Act\\nPresumed Criminally Intended Until the Contrary Is Shown. Every act in itself unlawful is presumed to have been criimiinally intended until the contrary is shown.\\n8. Criminal Law \\u2014 Evidence\\u2014Circumstances to Infer Guilt Must Be Inconsistent with Any Other Rational Conclusion.\\n\\u25a0 Circumstances, in order to warrant an inference of guilt, must not only he consistent with guilt, but must be inconsistent with any other rational conclusion.\\n9. Witnesses \\u2014 Evidence\\u2014Witness Cannot Be Impeached on Collateral Matter Brought Out on Cross-Examination.\\nA witness cannot be impeached on a collateral matter brought out on cross-examination.\\nAppeal from Circuit Court, Butte County; Hon. James M.cNenny, Judge.\\nOscar H. Clark wlais, convicted of causing death by abortion, and from judgment of conviction and from order denying new trial he appeals.\\nJudgment and order reversed.\\nRice & Wishart, of Deadwood, for Appellant.\\nByron S. Payne, Attorney General, and Benj. D. Mintener, Assistant Attorney General, both of Pierre, for Respondent.\\n(i) to (5) To points one to five of the opinion, Appellant died: Fannie v. State (Miss.), 58 So. 2; Titus v. State (Ala.), 23 So. 77.\\nRespondent cited: Simmons v. State, 129 Ala. 41; State v. Nas'h, 7 la. 347; State v. Gillick, 7 la. 287; Powers v. State, 74 Miss. 777; People v. Wood1, 2 Edm. Sel. Cas. 71; Donnelly v. State, 26 N. J. D- 463.; People v. Knapp, 26 Miich. 112; State v. Carrington, 15 Utah 480.\\n(9) To point nine, Appellant cited: State v. Davidson, 9 S. D. 564, 70 N. ,W. 879; State v. Chambers, 159 N. W. 113; State vs. Haynes (N. D.), 72 N. W, 9233 40 Cyc. 2769 and cases cited; Davis v. State (Miss.), 37 So. 1018; Williams v. State (Miss.), 19 So. 826; Myers V. State (Ha.), 31 So. 2753 Commonwealth v. Mooney, i'io Mass. 99; Kennedy v. Commonwealth, 77 Ky. 340; Schell v. Plumb, 55 N. Y. 592; Orr v. State (Ala.), 18 So. 142; Askew v. People (Colo.), 48 Pac. 524; State v. Nave (Mo.), 222 S. W. 744; Denton v. Commonwealth (Ky.), 221 S. W. 202; Elrod v. Ashton (S. D.), 85 N. W. 599; People v. 'Brown, 80 N. W. 1115; People v. Collum (Cal.), 54 Pac. 589.\\nRespondent cited: 40 Cyc. 2778; State v. Emerson, 63 Tex. Cr. 628, 114 S. W. 834; State v. Matheson (la.), 103 N. W. I37J United States v. Holmes, 26 Eed. Cases 15382, page 116; State v. Baldwin, 36 Kan. 1, 12 Pac. 318.\", \"word_count\": \"2635\", \"char_count\": \"15054\", \"text\": \"POLLEY, J.\\nAppellant was convicted1 upon an information charging that, by the use of certain instruments in and upon, the body of one Alice Leuth, who was then pregnant with a quick child with intent then and there on the part of appellant to derstroy the said child, appellant caused the death of the said Alice Leuth, and that the destruction of the said child was not necessary for the preservation of the life of the said Alice Leuth'\\nAt the time of the acts charged in the information appellant was engaged in the general practice of medicine and surgery in the town of Newell and surrounding country and in addition to said practice, conducted a hospital at that place. The evidence on the part of the state was to' the effect that the said Alice Leuth went to the offifce of the appellant in the said hospital on the afternoon of the 6th day of December, 1919, and that the acts charged in the information took place at that time. On Sunday, the following day, the said Alice Leuth had a miscarriage, and on the morning of the Friday following she died from the effects of said miscarriage. To establish the guilty intent of the appellant, the state relied' very largely, if not wholly, upon a so-called dying declaration made by the deceased, two or three days before her death. The appellant objected most strenuously to thei reception of this declaration in evidence, and it is error predicated upon its reception that the appellant mainly relies for a reversal of the judgment. This declaration was in writing, written by a friend at the dictation of the deceased, and is signed by deceased. It is quite lengthy, and only a small part of it relates, even remotely, to the cause of decedent's death. The greater portion of the declaration relates to her betrayal and desertion by an assumed lover shortly after she became pregnant some six months prior to her death. The events narrated in the declaration, and the circumstances surrounding them, were wholly immaterial to any issue in the case, and should have been excluded from the jury. The only part of said declaration that is at all pertinent to the issues in the case is the following:\\n\\\"I went to Dr. Oark. Dr. Clark said, 'I'll help you out, but don't tell your folks. Tell them you slipped.' He put me in a big leather chair. He used an instrument and stretched me, and then he took another one .and opened'my womb with it and I screamed, and he talked and tried to keep me still.\\\"\\nIt would not have been competent, to have shown the other matters contained in the declaration, if the decedent had been present at the trial. Only such matters can be shown by the dying declaration as the deceased could have testified to if she had been alive and present in court at the trial. Section 159, Greenl. Ev., Wigmore's Ed.; Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815; citing Jones v. State, 71 Ind. 66; Binns v. State, 57 Ind. 46, 26 Am. Rep. 48:\\n\\\"Dying declarations are admitted from the necessity of the case, to identify the prisoner and the deceased, to establish the circumstances of the res gestae, and to show the transaction from which the d'eath resulted.\\\" Wharton's Crim. Ev. \\u00a7 278.\\nWhat occurs before or after the act does not constitute a part of the res gestee, although- the interval of the separation may be very brief. Jones v. State, supra; Wheeler v. State, 14 Ind. 573; Binns v. State, supra; Bland v. State, 2 Ind. 608; Field v. State, 57 Miss. 474, 34 Am. Rep. 476, and note. It is the well-settled rule that dying declarations are admissible only in cases of homicide \\\"where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying 'declaration.\\\" Section 156a, Green!. Ev., Wiigmore's Ed. The extraneous matter contained in the dying declaration was of such a nature as to appeal strongly to the sympathies and inflame the passions of the jury. It could not be otherwise than prejudicial to appellant, and should have been excluded.\\nThere is little, if any, conflict in the statements made by appellant at the trial, and the dying declaration of the deceased, as to what took place in the appellant's office at the time the abortion is claimed to have been performed. Appellant testified that the deceased camie into his office on the afternoon of December 6th; that she asked him. if he ever operated for tumors; that he asked her where the tumor was; that she indicated low down in the pelvis; that he placed her in the examining chair and proceeded to make an examination; that he took a speculum' and opened the vaginal passage; that he then cleaned away the mucous discharge until he could see the uterus; that he then for the first time. discovered that she was pregnant, and that she was about to be confined; that he advised her to go right upstairs and go to bed, but that she refused; that he then told her that if she was going home to go at once, as she might be sick on the road; that when deceased left the office, she asked appellant if he would not help her out. He further testified that, when he delivered her of the child the next day, he found a catheter in her uterus, and that it was the catheter that had caused) the miscarriage. He also testified that what the deceased meant, when she asked him to help her out, was that he would attend her through her confinement, and that that wtas what he meant when he said he would, help her out. It is a significant fact that the deceased, at no time nor in any statement that she ever miade, claimed that she had an understanding with appellant that he was to perform an abortion for her, or that anything was said about an abortion; nor did she at any time claim that she was not in the condition testified to by appellant when she went to his office. The appellant and a number of other experienced physicians testified that, if she was in the condition appellant claims she was when she went to his office, what he did was the proper treatment under the circumstances.\\nIn view of the verd\\u00e1ct, we are obliged to disregard the testimony of appellant, and aocept, as true, all the material testimony on behalf of the state. The question then is: Does all the material evidence on behalf of the state necessarily lead to the inference of guilt? It is not like the ordinary criminal case where the act itself imlplies a guilty intent. Every act in itself unlawful is presumed to have been criminally intended until the contrary is shown. But it is at this point that the proof fails. Had the deceased said in her dying declaration that she had asked the appellant to perform an abortion, or that she had an understanding with him, that he would produce a miscarriage, or even said that the act, which brought about the miscarriage had not been performed before she went to appellant's office, there would-have been ground for the inference of guilt. It is morally certain that the deceased -went to appellant's office for the purpose either of having an abortion performed or to get relief from the result of acts that had already been performed that brought about the miscarri\\u00e1ge. But it cannot be determined from- the evidence whether she went there for the one purpose or the other. AVhat her purpose was, therefore, and what the purpose of the defendant was, is left to conjecture. There is no direct proof on this question, and circumstances, in order to warrant an inference of guilt, must net only be consistent -with guilt, but must be inconsistent with any other rational conclusion.\\nThree other assignments, 12, 15, and 16, merit special consideration. Assignment No. 12 is based upon a question put to a witness on behalf of appellant on cross-examination. This witness had testified that she saw the deceased just before she went to appellant's office on the afternoon of December 6th. AYitmess testified that, on- this occasion, the deceased was nervous and flushed, and, in answer to a question by witness, deceased admitted that she was in trouble; that she had used a catheter on herself, and that she was worried. AVitness then advised that she go and see appellant and' directed her to- his office. On cross-examination, for the purpose of laying a foundation for impeachment, she was asked if she had not stated to one Barnett that the neighbors 'had gone to the Deuth home and taken the girl's written statement, and that the girl herself had said that appellant was responsible. This was objected to on the ground, among others, that it was an attempt to impeach a witness om a collateral matter brought out on cross-examination. The witness said that she had not made such statement. Barnett was then placed on the stand and over appellant's objection was permitted to testify that the witness had so stated to himi. The matter of impeaching a witness on a collateral matter, brought out on cross-examination, was gone into at length by this court in State v. Davidson, 9 S. D 564, 70 N. W. 879, and, upon the authority of that case, this testimony should have been excluded. In the D'avid'son Case, this court, quoting from Hildeburn v. Curran, 65 Pa. 59, stated the rule as follows:\\n\\\"The test of whether a fact inquired of on cross-examination is collateral is this: Would the cross-examining party be entitled to prove it as a part of the 'case, tending to establish his plea?\\\"\\nOf course it would not b.e contended for a minute that the state could have asked this question on its main case. For a full discussion of this question, see Drake v. State, 29 Tex. App. 265, 15 S. W. 725. What is said relative to assignment No. 12 applies with equal force to assignments 15 and 16.\\nThe judgment and order appealed from- are reversed.\\nANDERSON, P. J., concurs in the result.\\nNote \\u2014 Reported, in 194 N. W. 655. See, Headnote (1), American Key-Numbered Digest, Homicide, Key-No. 215(1), 30 C.. J., Sec. 510; (2) Homicide, Key-No. 363, Criminal law, 16 -C. J., Sec. 1114; (3) Homicide, Key-No. 214(2), 30 C. J., Sec. 502; (4) Homicide, Key-No. 214(3), 30 C. J., Sec. 510; (5) Homicide, Key-No. 234(1), 30 C. J., Sec. 557; (6) Criminal law, Key-No. 1159(2), 17 C. J., Sec. 3569; (7) Criminal law, Key-No. 24, 16 C. J., Sec. 48; (8) Criminal law, Key-No-. 552(3), 16 C. J., Sec. 1568; (9) Witnesses, Key-No. 383, 40 Cyc. 2699.\\nOn admissibility of dying declarations, in prosecution for homicide by commission of, or attempt to commit,. abortion, see note in 63 L. R. A. 916.\\nAs to how near the main transaction must declaration be made in order to constitute a part of the res gestae, see note in- 19 L. R. A. 733.\\nOn admissibility of dying declaration with respect to transaction prior to homicide, see note in 14 A. L. R. 757.\"}"
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+"{\"id\": \"5377265\", \"name\": \"LALLIER v. PACIFIC ELEVATOR CO.\", \"name_abbreviation\": \"Lallier v. Pacific Elevator Co.\", \"decision_date\": \"1910-06-04\", \"docket_number\": \"\", \"first_page\": \"572\", \"last_page\": \"576\", \"citations\": \"25 S.D. 572\", \"volume\": \"25\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:06:54.046512+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LALLIER v. PACIFIC ELEVATOR CO.\", \"head_matter\": \"LALLIER v. PACIFIC ELEVATOR CO.\\nInstructions not excepted to become the law of the case, irrespective of whether they would be sustained, if excepted to, or not.\\nIn considering whether there was evidence sufficient to sustain a verdict, it is only necessary to determine whether it was sufficient under the instructions given.\\nIn an action hy a lessee to recover the price of grain sold to defendant, the latter asserting that the grain belonged to the lessor, evidence held sufficient to show such a delivery hy the le'ssor to the lessee of the latter\\u2019s share of grain as would pass the title to him.\\n(Opinion filed, June 4, 1910.)\\nAppeal from Municipal Court of Watertown, Hon. Irwin PI. Myers> Judge.\\nAction by C. C. Lallier against the Pacific Elevator Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.\\nAffirmed.\\nSherin & Sherm, for appellant.\\nCaise & Shurtleff, for respondent.\", \"word_count\": \"1739\", \"char_count\": \"9900\", \"text\": \"WHITING, P. J.\\nThis action was brought by plaintiff to recover the value of some oats which he claims to have sold the defendant. Trial was had before a jury, and its verdict being in favor of the plaintiff and judgment having been rendered in accordance therewith, the defendant moved for a new trial, which motion was denied. It then appealed to this court from such judgment and order denying a new trial.\\nThere are numerous assignments of error, but the only ones which we consider of such importance as to warrant our attention, go to the question of the title to the oats at the time of the alleged sale. It appears that plaintiff was the lessee of one Fillenwarth, and that he had worked said Fillenwarth's land for the season of 1908, under a contract of the nature involved in the case of Consolidate Land & Irrigation Co. v. Hawley, 7 S. D, 229, 63 N. W. 904, being a lease or contract under which it is covenanted and agreed that the title of all crops raised shall remain in the lessor until division thereof made by such lessor which division the lessee is not entitled to until after full performance of conditions on his part, together with full payments of any claims the lessor may hold against him. Such contract also providing that the lessor may take and hold enough of the crops, that would upon division belong to th.e lessee, to repay all advances made by lessor to lessee and all indebtedness due from lessee to lessor. After full performance on the part of lessee and payment for all advances and indebtedness, the lessor was bound, upon reasonable request, to deliver one-half the grains raised under such contract to the lessee. When plaintiff rested his case in chief the defense moved for a directed verdict, which motion was denied, and this ruling is assigned as error. Such motion for directed verdict was based upon the grounds that no sale to defendant company had been proven; that the evidence showed the ownership of the oats to be in Fillenwarth; and that he had never transferred the title of plaintiff's share to him. We think the first ground above stated needs no discussion. A>s to the second ground, defendant has cited the Hawley Case, supra, as well as other authorities as. to' what things are necessary to be done by the lessee under a contract such as i-s before us before he is entitled to a division of the grain. There can be no question whatever, under the decisions of this court, as to what the lessor may require before delivering the grain raised under one of these contracts, but, on the other- hand there can be no question but what the lessor can deliver the share of the grain to the lessee, and thus pass title to same to the lessee without the performance of any of the things which he might still -have required as a condition precedent, and in this case, as the evidence stood when the request for directed verdict was made, there was ample to.show that said Fillenwarth had delivered the grain in question to'the plaintiff under such circumstances as would carry with such delivery the title to- the grain in question.\\nAfter the court refused the above motion to direct verdict, the defendant introduced evidence which it claimed shows that there was in fact - no such division and delivery as would carry with it the title to the grain, and for that reason contends that the verdict of the jury was not sustained by the evidence. The trial court gave to the jury full instructions, which instructions were in no manner excepted to by the appellant, and therefore under the uniform holding of this and other courts, for the purpose of this appeal such instructions become the law of the case, and this regardless of whether such instructions would be sustained if the same had been excepted to. In considering whether or nor the evidence was sufficient to sustain the verdict, it is only necessary to determine whether it was sufficient under the instructions given. These instructions, -so far as material to the question now before us, -to-wit, as to whether or not title to the oats in question had passed to the plaintiff were in words as follows: \\\"In other words, under the terms of the contract between this plaintiff and Mr. Fillenwarth for the land on which the oats in question were raised, Mr. Fillenwarth was the owner of all the grain raised until a division and delivery of the tenant's share were made to him of such grain and the tenant's share delivered to him. This was their contract they were at liberty to make; then, if you find from all the evidence in the case that the landlord did not deliver the tenant's share to him, the plaintiff in this action, -y-our verdict must be for the defendant. You are further instructed that'before the plaintiff in this action can recover you must find from all the evidence that the landlord, Mr. Fillenwarth, had delivered the plaintiff's share of said oats to him, and until his share was delivered by the landlord, the plaintiff had no such interest or title in said oats that he could make a sale of the same, and if you do not'so find then your verdict must be for the defendant. You must find that there was a division and delivery before you can find for the plaintiff because if there was no division of the crops, then was he attempting to sell something he did not own. It is purely a question of fact for you to decide upon all of the evidence, whether there was an actual division and delivery of the tenant's share to the plaintiff. The mere question as to whether the plaintiff lias paid Fillenwarth in full for all claims he had against the plaintiff on the contract, is not to be decided by you. You will take into consideration the testimony relating to a settlement only in connection with the testimony as to whether there was' an actual division and delivery. The mere fact that the grain was divided is not of itself sufficient, but there must also have been a consent upon the part of Fillenwarth that the plaintiff have the part due him under the contract \\u2014 that is, that there was a delivery; this consent need not be expressly stated in writing or orally, but may be implied by Fillenwarth's actions, or what he said regarding that share. If you find that the oats, delivered to the elevator company was the share belonging to the plaintiff, after a devision and delivery, then your verdict should be for the plaintiff in the sum of $233.20, but if you find there was no devision and delivery to plaintiff of his share of the oats, then your verdict must be for the defendant on all the issues.\\\" There was ample evidence from which the jury could find that at the time of threshing the oats in question Filienwa'rtli had a representative at the machine to divide the grain. It stands absolutely undisputed that the grain was divided load for load, not only with knowledge of such representative, but with the knowledge of Fillenwarth; that Fillenwarth put his half of the grain in his warehouse; that plaintiff put the first loads of his half in the granary on the land, and then upon the demand of Fillenwarth he hauled and delivered the remainder of his half to the defendant, Fillenwarth demanding that the same be delivered at some elevator without designating the one. There is absolutely no evidence that Fillenwarth demanded that this grain be delivered in his name. It is the claim of the defense that this grain was to be delivered to the elevator to be held as security for any claim Fillenwarth had against plaintiff, and it appears that prior to the threshing Fillenwarth had served notice on the defendant company that he had a lien against this grain. There can be no cjuestion but what the evidence was ample to warrant the verdict under the above instructions, and even if the court had seen fit to instruct that -there might have been a turning over of the oats into the possession of plaintiff under circumstances that would not amount to a delivery thereof under the contract between the parties, yet, in view of the evidence showing that Fillenwarth had not directed these oats to be delivered in his name, there was ample evidence to such a delivery, following the con- . ceded division, as would carry title. We think it must be conceded that, under one of these contracts, the lessor's rights against the grain depend solely upon his retention of title to same, and that after division and deliveiy to the lessee of lessee's share there remains no lien against the grain for any claims lessor might have against the lessee, so that in this case any notice of lien to the defendant company becomes absolutely immaterial, as Fillenwarth could, -have no lien. Furthermore there is ample evidence to justify the jury in finding that, even if there was anjr claim of indebtedness upon which a lien could have been based, such indebtedness was canceled before the time plaintiff demanded of defendant pay for the grain in question.\\nThe judgment of the trial court and order denying a new trial are affirmed.\"}"
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+"{\"id\": \"5380087\", \"name\": \"DE RUE v. McIntosh\", \"name_abbreviation\": \"De Rue v. McIntosh\", \"decision_date\": \"1910-07-01\", \"docket_number\": \"\", \"first_page\": \"42\", \"last_page\": \"50\", \"citations\": \"26 S.D. 42\", \"volume\": \"26\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:23:44.445892+00:00\", \"provenance\": \"CAP\", \"judges\": \"SMITH and McCOY, JJ., dissenting.\", \"parties\": \"DE RUE v. McIntosh.\", \"head_matter\": \"DE RUE v. McIntosh.\\nTiie Tight to serve and; file an amended -answer within 20 days after service of the -original, as of course, under Code Civ. Proc. \\u00a7 149, was not waived by moving the court for leave to file such pleading.\\nThe sufficiency of an amended answer is not pro-perly before the court on a motion for leave to file it.\\nA parole contemporaneous agreement which was the inducing cause of a written contract, or forming a part of the consideration therefor, -or upon the faith -of which the written contract was executed, is -admissible.\\nCiv. Code, \\u00a7 1239, providing that the execution of a contract in writing supersedes all oral negotiations, does not preclude -defendant from showing in .defense to an action for the price of drilling an artesian well that at the time of making the written contract \\u00a1he owned a large tract of land used as a stock' ranch, upon which he kept a\\u2018 large number of horses and cattle; that his sole object in having the well was to water such stock, which plaintiff knew; that .plaintiff represented that he would construct a well sufficient for that purpose, and that relying upon such representation defendant entered into the written contract; and that such well was insufficient for the purpose intended.\\nUnder Civ. Code, \\u00a7 1256, providing that a contract may be explained by reference to the circumstances under which made, and the matter to which relating, defendant, in an action for the price of drilling a flowing well, can show, to explain what was meant by the term \\u201cflowing well,\\u201d that he was the owner of a stock ranch upon which he kept a large amount of live stock; that his sole'object in having the well was to water such stock, which plaintiff knew; that plaintiff represented that h'e would construct a well sufficient for that purpose, and that relying on such representation defendant entered into the contract, and that the well was insufficient for the purpose intended.\\nSmith and McCoy, JJ., dissenting.\\n(Opinion filed, July 1, 1910.)\\nAppeal from Circuit Court, Aurora County. Hon. Frank B. Smith, Judge.\\nAction by Albert V. De Rue against R. B. McIntosh. From a judgment for plaintiff and an order denying a new trial, defendant appeals.\\nReversed.\\nFellows & Fellozvs, for appellant. Preston & Hannett, for respondent.\", \"word_count\": \"3155\", \"char_count\": \"18004\", \"text\": \"CORSON, J.\\nThis is an appeal by the defendant from a judgment entered upon a verdict of a jury in favor of the plaintiff, and from the order denying a new trial. The action was instituted by the .plaintiff to recover of -the defendant the sum of $500 upon a contract entered into between the defendant, McIntosh, as party of the first part, and the plaintiff, De Rue, as party of the second part, the material parts of which are as follows; \\\"That the party of.the first part agrees to have the party of the second part drill him a flowing well on the N. W. Sec. 26-105-65, Aurora county, S. D., on the terms and conditions: First. Said well shall be cased with not less than 2-inch standard casing at top and 1\\u00bf4-inch at the bottom and drilled to artesian flow, if possible, granitical formations excepted. Second. All necessary material, including gasoline, casing, etc., used in the construction of said well shall be furnished by the party of the second part, at his expense and free from any expense to the party of the first part. In consideration of the faithful performance of the above obligations, the party of the first part agrees to pay to 'th'e party of the second part the sum of five hundred dollars for the completion of said well.\\\" it is alleged by the plaintiff in his complaint \\\"that under and by virtue of the terms of said agreement this plaintiff did drill for the defendant a flowing well, on the real estate mentioned and described in the said agreement, and did case the said well with standard casing, in the manner contemplated in said contract, and this plaintiff duly done and performed each and all of the conditions of said agreement on his part to be performed.\\\" The defendant in his answer admitted the making of the contract, and that he had not paid the plaintiff for the same, and denies each and every other allegation in the plaintiff's complaint contained. And \\\"defendant specifically denies that the plaintiff did drill and case a flowing well- for the defendant under and in accordance with the terms of said contract; and denies that the plaintiff has ever performed on his part any of the conditions of said contract by him to be performed.\\\" The defendant for a further answer alleges \\\"that the plaintiff commenced and attempted and pretended to drill a well for the defendant on defendant's said land; that plaintiff abandoned said well before the completion thereof, and did not attempt to complete the same; ' * that the work which plaintiff did perform, in attempting and pretending to drill said well was bo negligently, carelessly and unskillfully done that the same was and is of no value whatever to the defendant; that plaintiff abandoned said well before he had. drilled the same' to the artesian flow, and failed, neglected, and refused to drill the same to said artesian flow, although it was and is possible to drill a well to said artesian flow on defendant's land; that plaintiff failed to secure a flowing artesian well; and that said well as drilled and left by plaintiff is without value and utterly useless to defendant.\\\"\\nPrior to the trial the defendant served an amended answer, which was returned by plaintiff, and thereupon the defendant moved the court for leave to file such answer, which was denied by the court on the ground, as appears from the order of the court denying the same, \\\"that in the opinion of the court the allegations and matters contained in said amended answer not contained in the original answer of the defendant, to-wit, the sixth paragraph of 'said amended answer, constitute no defense in this case, and do not state facts sufficient to constitute a defense to plaintiffs action.\\\" The sixth paragraph of the amended answer sought to be filed is as follows: \\\"That at the time of the making of the contract for the construction of said well the defendant was the owner of a large tract of land, upon which said well was to be drilled and constructed, and that said tract of land was used and designed to be used as a stock ranch, whereon the defendant kept and intended to keep a large number of cattle and horses, and that the sole object and purpose of drilling and constructing said well was to procure a flowing well to furnish sufficient water for said stock, all of which was well known to the plaintiff. That the plaintiff knew of the purpose for which the defendant desired said well, and represented to the defendant that he could and would construct a well that would flow and furnish sufficient water for the purpose for which the defendant desired to use the same. That for the purposes above stated, and relying upon the statements and representations of the plaintiff that he could and would drill and construct a well sufficient for the purposes for which the defendant desired the same, the defendant made and entered into said contract with the' plaintiff. That the sole and only purpose for which -the defendant desired said well was to furnish flowing water for the stock he was then keeping and desired to keep on said premises where the said well was to be drilled, as the plaintiff well knew. \\\"\\nIt is contended by the appellant that the court erred in denying defendant's motion for leave to amend his answer. The proposed amended answer was served upon the counsel for the plaintiff within 20 days after the original answer had been served. Section 149, Code Civ. Proce., provides: \\\"Any pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time within twenty days after it is served, or at any time before the period for answering it expires; or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appear to the court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a term for which the cause is or may be noticed. \\\" It will be seen that by the express provisions of that section the defendant was authorized to serve an amended answer within 20 days subject to certain conditions. It would seem, therefore, that the defendant had the legal right to serve and file an amended answer in the case, and that by making the motion to the court for leave to so file it he did not waive his legal right, and we are of the opinion that the court, therefore, erred in denying the defendant's motion. The sufficiency of the defendant's amended answer as a pleading was not properly before the court on the motion. Its sufficiency was a matter to be determined upon a demurrer to the same in case it should be questioned by the plaintiff. But assuming' that the court could properly pass upon the sufficiency of the answer upon a motion for leave to file the same, we are of the opinion that the amended answer did state facts sufficient to constitute a defense to the action. It will be observed that the contract in this case provides that the plaintiff shall drill a flowing well on the terms and conditions specified, and drill and sink same to an artesian flow, if possible, granitical formations excepted. The amount of water that should be discharged from such well is not provided for in the contract. In the amended answer it is alleged that at the time of making the contract for the construction of said well the defendant was the owner of a large tract of land upon which said well was to be drilled, and that the said tract of land was used and designed to be used as a stock ranch whereon, the defendant kept and intended to keep a large number of cattle and horses, and that the sole object and purpose of drilling and constructing said well was to procure a flowing well to furnish sufficient water for said stock, all of which was well known to the plaintiff; that the plain tiff knew of the purpose for which the defendant desired said well, and represented to the defendant that he could and would construct a well that would flow and furnish sufficient water for the purposes for which the defendant desired to use the same; that for the purposes above stated, and relying upon the statements and representations of the plaintiff that he could and would drill and construct a well sufficient for the purpose for which the defendant desiderd the same, the defendant made and entered into contract with the plaintiff.\\nIt is contended by the respondent that under the provisions of section 1239 of the Civil Code which provides, \\\"The execution of a contract in writing, whether the law required it to be written or. not, supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument,\\\" the facts set out in the amended answer were inadmissible on the ground that they would vary or contradict the terms of a written contract. This provision of our Code embodies the common-law rule upon the subject of written contracts, and while \\\"the execution of a contract in writing, whether the law requires dt to be written or not, supersedes all of the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument,\\\" nevertheless, as contended by the appellant, there are exceptions to the rule. And ope of the exceptions seems to be that agreements or representations made prior to the written contract under which the party was induced to sign the contract may be shown; in other words, where the parol contemporaneous agreement was the inducing and moving cause of the written contract, or where the parol agreement forms part of the consideration for a written contract, and where he executed the written contract upon the faith of the parol contract or representations, such evidence is admissible. Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512; Thomas v. Loose, 114 Pa. 35, 6 Atl. 326; Dicken v. Morgan, 54 Iowa, 684, 7 N. W. 145; Cullmans v. Lindsay, 114 Pa. 166, 6 Atl 332; Barnett v. Pratt, 37 Neb. 352, 55 N. W. 1050; Ayer v. R. W. Bell Mfg. Co., 147 Mass. 46, 16 N. E. 754; Davis v. Cochran, 71 Iowa, 369, 32 N. W. 445; 9 Ency. Evid. 350; Ferguson v. Rafferty, 128 Pa. 337, 18 Atl. 484, 6 L. R. A. 33; Hines v. Willcox, 96 Tenn. 148, 33 S. W. 914, 34 L. R. A. 824, 832, 54 Am. St. Rep. 823; Walker v. France, 112 Pa. 203, 5 Atl. 208. In Walker v. France, supra, the Supreme Court of Pennsylvania, in discussing this subject, says:, \\\"That a. written agreement may be modified, explained, reformed or altogether set aside by parol evidence of an oral promise or undertaking material to the subject-matter of the contract made by one of the parties at the time of the execution of the writing, and which induced the other party to1 put his name to1 it, must now be regarded as a principle of law so well settled as to preclude discussion.\\\"\\nIn Chapin v. Dobson, supra, the Court of Appeals of New, York held: \\\"The rule prohibiting the reception of parol evidence to vary or modify a written instrument does not apply where the original contract was verbal and entire, and a part only was reduced to writing.\\\" Such, in fact was the case at bar as appears by the allegations of the amended answer. That portion of the plaintiff's agreement to drill a well that would provide a sufficient flow of water to supply plaintiff's stock, and which was the inducing cause of the contract, was omitted therefrom. A\\u00a5e are of the opinion, also, that the motion to allow service of the amended answer should have been granted for the reason that section 1256 of the Civil Code provides: \\\"A contract may be explained hy reference to the circumstances under which it was made, and tfie matter to which it relates.\\\" The contract in this case simply provides for a flowing well but fails to, in any manner, specify the amount of water to be discharged from said well. For the purpose of understanding what the term \\\"flowing well\\\" was intended to mean in. the contract it was clearly proper for the defendant to allege 'and prove the representations of the plaintiff, and the circumstances under which the contract was made, and the matter to which it related for the purpose of explaining what was meant by the term \\\"flowing well.\\\" The term \\\"flowing well\\\" is vague, ambiguous, and indefinite. What might be regarded, as a flowing well drilled and constructed for the purposes of supplying a family, and which would discharge water enough for such use would clearly not be a flowing well within the meaning of the parties in the case at bar where the object of the defendant, and which was known to the plaintiff, was to secure a supply of water sufficient for a large band of cattle and horses running upon his ranch, and it was perfectly proper and necessary for the defendant to bring before the jury all the circumstances connected with the transaction for the purpose of informing them as to the meaning of the term 'flowing well\\\" as used in the contract, and clearly where the plaintiff understood fully the purposes for which the well was to be drilled, his representations that he would complete a well that would produce sufficient water to supply such cattle and horses was admissible in this case. Such evidence did not contradict or vary the terms of a written contract, but served to bring before the jury the nature and character of the well that he was to complete by the terms of the contract. By the ruling of the court, therefore, in denying the appellant's motion for leave to amend his answer, the court necessarily excluded all the evidence tending to prove the representations of the plaintiff, and the circumstances connected with the subject-matter. The materiality of the amendment was shown subsequently on the trial when the defendant sought to prove under his answer, the circumstances connected with the subject-matter and the representations and agreement made by the plaintiff as to the quantity of the flow of water that he was to furnish by the well when completed, which was excluded. And under the instructions of the court the jury were left entirely without any information as to the circumstances under which the contract was made and the nature of the well to be drilled, and the amount of water which was to flow therefrom. The court in its charge to the jury seemed to take the view that any flow of water from the well was a compliance with the contract, and the jury evidently took the same view in finding a verdict for the plaintiff, as it was clearly shown by the proof that the supply of water flowing from the well was entirely inadequate for the purposes for which the well was drilled by the plaintiff. The defendant was further denied the privilege of showing that he subsequently caused a well to be drilled upon the same premises which did afford a sufficient supply of water for his stock, and thereby showing, in effect, that the plaintiff, had he drilled the well to the proper depth, could have furnished ample water for the defendant's use. We are of the opinion, therefore, that the court erred in denying the appellant's motion for leave to file his amended answer which, as we have seen, was admissible for the purposes of showing all the circumstances under, which the contract was made, and the matter to which it related. In any view of the case, therefore, whether the answer was to be considered as setting up a contemporaneous oral agreement, or as setting up the circumstances surrounding the transaction, it was clearly admissible, and the denial of the court of the defendant's motion constituted prejudicial error for which the defendant is entitled to a new trial.\\nThe judgment of the circuit court and order denying a new trial are reversed.\\nSMITH and McCOY, JJ., dissenting.\"}"
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+"{\"id\": \"5381015\", \"name\": \"IRWIN et al. v. LATTIN et al.\", \"name_abbreviation\": \"Irwin v. Lattin\", \"decision_date\": \"1912-04-02\", \"docket_number\": \"\", \"first_page\": \"1\", \"last_page\": \"12\", \"citations\": \"29 S.D. 1\", \"volume\": \"29\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:34:03.897649+00:00\", \"provenance\": \"CAP\", \"judges\": \"WHITING, J., took no part in this decision.\", \"parties\": \"IRWIN et al. v. LATTIN et al.\", \"head_matter\": \"IRWIN et al. v. LATTIN et al.\\nWhere an order denying a motion for a new trial is made after judgment is entered, an appeal from the judgment alone does,, not bring up the order for review.-\\nUnless the order denying a new trial is appealed from, either independently or brought up on appeal from the judgment, the sufficiency of the evidence to sustain a finding or verdict cannot be reviewed.\\nUnder Code Civ. Proc. \\u00a7 463, providing that questions of fact decided by the court or referee may be reviewed when exceptions to the findings have been duly taken by either party and returned, the exceptions to findings by the court must specify the particulars in which the evidence does not sustain the finding, in order to review the question.\\nSince Prob. Code, \\u00a7 47, provides that, in probate contest, the court must render judgment, either admitting the will to probate or rejecting it, the only matters adjudicated upon probate of a will are that the will is duly executed and attested, was not procured by fraud, that testator has sufficient mental capacity and authority to dispose of his property, that the attesting witnesses were competent, and that the evidence sustained the probate; and the capacity of a beneficiary to take property is not adjudicated by probate, and hence cannot be considered on appeal from a judgment denying probate.\\nThe court found, in probate proceedings, that at the time of the execution of the purported will testatrix was a person of unsound mind and incapable of rationally understanding her duties and obligations toward society or her friends, and unable to form a rational desire as to the disposition of her property, and that at that time, and long prior thereto, she was insane and the victim of insane delusions, and that her attempted testamentary disposition was induced by such delusions; and the findings further stated that testatrix was a spiritualist, and believed that her acts, including the execution of the will, were directed by departed spirits. Held, that the findings sustained a judgment denying probate on the ground of want of testamentary capacity.\\nA belief in spiritualism is not of itself evidence of insanity, preventing the execution of a valid will, though an insane delusion may arise out of a religious belief.\\nTo invalidate a will, an insane delusion must be operative in the testamentary act.\\nThat a testamentary disposition may be regarded by others as foolish, unusual, or unjust does not necessarily invalidate it as the product of an incompetent testator.\\n(Opinion filed, April 2, 1912.)\\nAppeal from Circuit Court, Kingsbury County. Hon. Alva E. Taylor, Judge.\\nProceedings by L. E. B. Irwin and others against Sarah V. Lattin and others. From a decree for plaintiffs, defendants appeal.\\nAffirmed.\\nD. A. Crawford, for appellants.\\nWarren & Warren, for respondents.\", \"word_count\": \"4629\", \"char_count\": \"26637\", \"text\": \"SMITH, J.\\nOn the 22d of December, 1904, Mary J. Bum-garner, a resident of Kingsbury county, in this state, made a will, devising her property, real and personal, to the National Spiritualists' Association of the United States, with headquarters at Washington, D. C.; said property, or the proceeds thereof, to be used by said association for spiritualist work. On the 26th day of March, 1908, she was adjudged incompetent by the county court of Kingsbury county, in a guardianship proceeding- in which the plaintiff F. M. Andrews was appointed guardian of her estate. On the 8th day of February, 1909, she was adjudged insane by the commissioners of insanity of Kingsbury county and committed to the Hospital for the Insane at Yankton, where she remained until her decease, February 25, 1910. She left surviving her as next of kin a sister, Mrs. Irwin, one of the plaintiffs in this action. On the 24th of March, 1910, the heirs, Mrs. Irwin, and her husband joined in a conveyance of a quarter section of land in Kingsbury county, which is the subject of this litigation, to the former guardian, Frank M. Andrews. Mrs. Irwin and Andrews join as plaintiffs in this action. The defendant Sarah B. Eattin is the executrix of the last will of Mary G. \\u2022Bumgarner. On the 22d of March, 1910, Sarah B. Lattin filed a petition in the county court for probate of the will. Mrs. Irwin and F. M. Andrews filed objections to the probate of the will, alleging that the deceased, at the time of the execution thereof, was mentally incompetent; that at the time of the execution of the will 'she was an insane person, a victim of insane delusions, and lacked testamentary capacity; that she was a believer in the doctrine of spiritualism, which had so worked upon her mind that at the time of the execution of the will, and long prior thereto, she was insane, and in the making of said will was acted upon and coerced by insane delusions to such a degree 'that said will was not a voluntary act on her part. Appellant's answer placed in issue the testamentary capacity of the deceased. On the trial, the county court entered an order and judgment, denying probate of the will on the ground that the testatrix lacked testamentary capacity, and was insane, and a victim of insane delusions which directly influenced'her in making the will. An appeal was taken to the circuit court, where the issue was again tried, and on April 3, 1911, the circuit court entered findings of fact and conclusions of law in conformity with the decision of the county court, denying probate of the will. This appeal is from the proceedings at the trial in the circuit court.\\nAppellant's brief wholly fails to conform to the requirements of chapter 15, Laws of 1911, in that it does not contain a statement of the facts or of the assignments of error, nor of the proceedings at the trial, essential to an understanding of the questions sought to be reviewed on this appeal. The brief contains only allusions and references to certain portions of the bill of exceptions, where such matters are supposed to be found. This practice will not be recognized by this court, but, as indicated in one of our recent decisions, because of the unsettled condition of the practice under the provisions of chapter 15, Laws of 1911, we shall not refuse to consider appeals already taken without a proper compliance with the law. We shall therefore consider the questions presented by the record as before us on this appeal.\\nThe case was tried to the court, without a jury, on the sole issue of testamentary capacity of the deceased, and findings of fact, conclusions of law, and a judgment were entered by the trial court on April 6, 1911. This appeal is from the judgment \\\"and the findings of fact and conclusions of law in connection' therewith.\\\" On May 5, 1911, appellant served and filed notice of appeal, and on May 20, 1911, perfected the same by serving and filing an undertaking. On May 3, 1911, appellant served notice of motion for new trial, and on August 28, 1911, about three months after the appeal was perfected, the trial 'judge entered an order denying a new trial, ' which was filed on August 29, 1911. A transcript of the evidence and proceedings at the trial was procured by appellant, which was certified by the trial judge on the 1st day of September, 1911, and filed in the office of the clerk on the 5th day of September, 1911. This appeal is from the judgment and the findings of fact and conclusions of law in connection therewith, and no appeal is taken from the order denying the motion for a new trial. This appeal, therefore, must be considered as though there had been no motion for new trial.\\nThis court has held that, \\\"when the motion for a new trial is mad\\u00e9 candi' determined before a' judgment is entered in the action, -an appeal from the judgment brings up the order of the court, denying or granting a motion for a new trial, as an intermediate order that can be reviewed by this court, providing the decision of the court, denying or granting a motion, is assigned as error. But when the order, denying or granting a new trial, is made after judgment in the action, an appeal from the judgment alone does not bring up such order made after judgment. Unless the order, denying \\u00f3r granting a new trial, made after judgment, i-s appealed from, either in connection with the appeal from the judgment or independently, the decision of the court below upon the question of' the sufficiency of the evidence to justify the finding' or verdict will be res adjudicata.\\\" This rule has been many times announced by this court. In Foss v. Van Wagenen, 20 S. D. 41, 104 N. W. 606, after citing a large number of decisions of this court, it is said: \\\"Following the rule laid down in these cases, this court must disregard the evidence in the case upon this appeal from the judgment alone, and decide the case upon the judgment record alone.\\\"\\nIt appears from the record.on this appeal that the order denying a new trial was made and filed three months or more after the appeal from the judgment had been perfected, and that the motion was founded, in part, upon insufficiency of the evidence to sustain the findings of the trial court, and the precise insufficiency of evidence stated in the motion for a new trial is restated in the assignments of error upon this appeal; and appellant, without appealing from the order, denying a new trial, again seek to review the suffici\\u00e9ncy of evidence to sustain the findings of fact. In the motion for a new trial, insufficiency of the evidence to sustain the findings is thus specified: \\\"That (i) finding No. four (4) is not supported by the evidence. (2) That finding No. five (5) is not'supported by the evidence. (3) That finding No. six (6) is not supported by the evidence.\\\" The assignments of \\u00e9rror upon this appeal are in identical language. It is thus apparent that the question of insufficiency of the evidence was presented to the trial court and decided adversely to appellant; and that qo appeal has been taken from such ruling. The ruling of the trial court has therefore become the law of the case upon this appeal, and the question of the sufficiency of the evidence to justify the finding is res adjudicata, and cannot be reviewed.\\nIt is not necessary, at this time, to decide whether the sufficiency of the evidence might be reviewed upon exceptions to the findings of fact, with sufficient specifications of the particulars in which the evidence is deemed insufficient, together with proper assignments in this court. But even if that question were before us, the assignments of error in the record contain no specifications of the particulars in which the evidence -is insufficient to sustain the findings; and for that reason the insufficiency of the evidence would not be reviewed. In the case of Boettcher v. Thompson, 21 S. D. 169, 110 N. W. 108, an action to determine adverse claims to real property, tried by the court, where appellant sought to review the sufficiency of the evidence to sustain the findings, this court said: \\\"That under the rule prescribed by the statute and followed by this court in numerous decisions, the sufficiency of the evidence to sustain the decision in this action could not be reviewed, if the statement of the case, did not contain proper specifications of the particulars wherein such evidence was alleged to be insufficient. Only in the last paragraph is there any specification of any particulars in which the evidence is alleged to be insufficient to sustain the findings of fact made by the trial court, and, as> was said in our former decision, the limitation issue was immaterial,\\\" etc. In the case of McPherson v. Swift, 27 S. D. 296, 130 N. W. 768, the sufficiency of the evidence to sustain the findings of the trial court was sought to be reviewed, and this court said: \\\"Though the assignments of error occupy 49 closely printed pages, they nowhere specify any particular wherein the evidence is insufficient to justify this finding. Nor does the appellant's brief, consisting of 166 pages, anywhere point out any particular in which the evidence is insufficient to justify the same. So this finding must be sustained.\\\" In McNish v. Wolven, 22 S. D. 621, 119 N. W. 999, Justice Corson says: \\\"There being in this case no specification of the particulars in which the evidence is insufficient to justify the findings, and no specification of the errors of law that will be relied on, it was the duty of the trial court to disregard the same on the hearing' of the motion; and this court will presume, therefore, that that court did so disregard it, and denied the motion for a new trial on that ground. It was not only the duty of the trial court to disregard the bill of exceptions for the reasons stated, but it is also the duty of this court to disregard it. This question has been considered in a number of cases in this court, and it has uniformly held that, when the bill of exceptions or statement fails to specify the particulars in which the evidence is insufficient, or the particular errors of law relied' on, such statement or bill of exceptions should be disregarded by the court.\\\"\\nPrecisely the same rule is applicable under, section 463, Code of Civil Procedure, which provides that questions of fact, decided upon trials by the court or by referee, may be reviewed in the appellate court when exceptions to the findings of fact have been duly taken by either party and returned. Where the sufficiency of the evidence to sustain the findings of the trial court is to be reviewed upon exceptions to the finding, such exceptions must specify the particulars in which the evidence is insufficient to sus tain the finding, precisely as is required when the same question is presented upon a motion for a new trial. Whenever a review of the sufficiency of the evidence to sustain a verdict of a finding of fact by a trial court, either upon a motion to direct a verdict, upon a motion for a new trial, or upon exceptions to findings of fact, is sought, it is essential that the particulars in which the evidence is insufficient be specified and pointed out in the motion or exception, with proper assignments of error in this court. No appeal having been taken from the motion denying a new trial, and no sufficient assignments being contained in the record, in this case, we cannot review the evidence, and must assume that the same is sufficient to sustain the findings of the trial court.\\n.Certain of the assignments also challenge the competency of evidence received at the trial over appellant's objections. We have carefully examined these assignments, and are satisfied none of them constitute reversible error.\\nThe only remaining question before us is whether the judgment- is sustained by the findings of fact. The issue tried was as to the testamentary capacity of the deceased at the time of the execution of the will. The findings of the trial court are as follows.:\\n\\\"(4) That at the time of the execution of the said purported will, the said Mary G, Bumgarner was a person of unsound mind, mentally and physically decrepit, and incapable of rationally-understanding or comprehending her relative duties and obligations toward society or relatives or friends, and unable to form or hold a rational desire regarding the disposition of her property, by will or otherwise.\\n\\\"(5) That at the time of the execution of the said purported will, and long prior thereto, the said Mary G. Bumgarner was an insane person, and was then and there the victim of -various and divers insane delusions, and that the testamentary disposition of her property, attempted to be made in the said will, was controlled, governed, and induced by the said insane delusions of the testatrix.\\ncc(6) That at the time of the execution of said purported will, and for several years prior thereto, the said Mary G. Bumgarner was possessed of the belief that she had frequent and continual communications with departed spirits, and that the said spirits should and did give to her directions regarding all her actions in the ordinary affairs of life, and that she was obliged to and did follow the directions supposed by her to have been given by the said guiding spirits. That she was further possessed of the belief, during all of said times, that she had been directed by the said guiding spirits to give and bequeath all her property at death to the National Spiritualists' Association of the United States, which said association is named as the sole devisee in said purported will, and that the said devise was made because of her belief that it was necessary for her to comply with the supposed directions of said departed spirits. That by reason of the said . belief the said testatrix did not execute the said purported will as her free and voluntary act, but as the result of the inducement and coercion of the said departed spirits, and that the said belief operated as duress and undue influence upon said testatrix, and that the execution of said will was controlled, and the beneficiary therein directed, through the duress and undue influence upon testatrix of the supposed departed spirits, as above set forth, and that said beneficiary would not have been named but for the supposed direction of the said departed spirits.\\\"\\nAppellant's counsel concedes that, if deceased had testamentary capacity to make the will in issue, there would be absolutely no grounds to support any allegation of undue influence.\\nCertain suggestions are made in appellant's brief as to the incapacity of the National Spiritualists' Association to become -the beneficiary under the will. That question, however, was not before the tidal court, and cannot be reviewed or determined upon this appeal. _ Upon a proceeding to probate a will, the only matters to be adjudicated are that the will is duly executed and attested; was not procured by fraud; that the testator had sufficient mental capacity to make a will, and had authority to dispose of his property by will; that the attesting witnesses, where required, were competent and credible; and that the evidence was sufficient to sustain the probate. In re Thompson's Estate, 26 S. D. 576, 128 N. W. 1127; In re John's Will, 30 Or. 494, 47 Pac. 341, 50 Pac. 226, 36 L. R. A. 242; In re Murphy's Estate, 104 Cal. 554, 38 Pac. 543; Hathway's Appeal, 46 Mich. 326, 9 N. W. 435; Farmer v. Sprague, 57 Wis. 324, 15 N. W. 382; Greenwood v. Murray, Executor, 26 Minn. 259, 2 N. W. 945; In re Jones' Estate, 84 Wis. 465, 54 N. W. 917. The only judgment which can be entered by the probate court in such proceedings is one either admitting the will to probate, or rejecting it. Section 47, Probate Code.\\nThe assignment of error \\\"that the court erred in entering judgment against the appellant and in denying the will to probate\\\" challenges the sufficiency of the findings to sustain the judgment. We are clearly of opinion that the findings of the trial court sustain the judgment. The contention that the want of testamentary capacity is based only on the fact that the deceased was a believer in spiritualism is not sustained by the language of the findings. Appellant's counsel is right in his contention that a belief in spiritualism, however strong, is not in itself an evidence of insanity, and that an insane delusion, to be fatal to the validity of a will, must be operative in the testamentary act. Whether religious views, commonly entertained by a considerable number of persons, are true or false is not a subject for judicial inquiry. As has been frequently said, the courts are without adequate means of producing evidence on a question of this character, or to determine the value of such evidence. In Scott v. Scott, 212 Ill. 597, 72 N. E. 708, it is said: \\\"The great majority of civilized human beings believe in the existence of a life beyond the grave. Based upon that belief, many religious creeds, differing widely, have been established. The fact that \\u00e1n individual holds any particular belief in regard to \\u00e1 future state of existence cannot of itself be evidence of an insane delusion or of monomania. An insane delusion is a belief in something impossible in the nature of things, or impossible under the circumstances surrounding the afflicted individual, and which refuses to yield either to evidence or reason. Riggs v. A. M. H. Society, 35 Hun [N. Y.] 656; State v. Lewis, 20 Nev. 333 [22 Pac. 241] ; Rush v. Megee, 36 Ind. 80. We have heretofore said that 'insane delusion consists in the belief of facts which no rational person would have believed.' Schneider v. Manning, 121 Ill. 376 [12 N. E. 267] ; Nicewander v. Nicewander, 151 Ill. 156 [37 N. E. 698]. Such a delusion does not exist, unless it is one whose fallacy can be certainly demonstrated; for, except such demonstration can be made, it cannot\\\" be said that no rational person would entertain the belief. Consequently, no creed or religious belief, in so far as it pertains to an existence after death, can be regarded as a delusion, because there is no test by which it can be tried, and its truth .or falsity demonstrated. Gass v. Gass, 3 Humph. [Tenn.] 278; Orchardson v. Cofield, 171 Ill. 14 [49 N. E. 197, 40 L. R. A. 256, 63 Am. St. Rep. 211]; Buchanan v. Pierie, 205 Pa. 123 [54 Atl. 583, 97 Am. St. Rep. 725].\\\" There is, however, a broad distinction between any religious belief and insane delusions which may grow out of such belief and control the testator in the disposition of his property; and this distinction applies alike to all religious, beliefs and denominations.\\nIt is also true, as contended by appellant's counsel, that a testator may make what others may regard as a foolish, unjust, or unusual will, and still not be vulnerable to a charge of insanity or a lack of testamentary capacity, for the reason that the existence of the right to dispose of property by will is not made dependent upon a judicious exercise of the right itself. But where a testator is possessed of an insane delusion which controls the testamentary act, and leads him to dispose of his property under the coercion of such delusion, the act cannot be said to be that of a sane mind. The trial court found that at the time of the execution of the will, and for several years prior thereto, the testatrix was possessed of the belief that she had frequent and continual communication with disparted spirits, who gave her directions regarding all her actions in' the ordinary affairs of life; that she was obliged to follow, and did follow, the directions given her by them, and that ,she had been directed by said spirits to give and bequeath all her property to the Spiritualists5 Association; that by reason of said belief the testatrix did not execute the will as her free and voluntary act, but that the same was the result of the inducement and coercion of departed spirits; and that said bene ficiary would not have been named but for the supposed direction of the departed spirits.\\nIn McClary v. Stull, 44 Neb. 175, 62 N. W. 501, the court says: \\\" 'Law/ it is said, 'is of the earth, earthy/ and that spirit wills are too celestial for cognizance by earthly tribunals \\u2014 a proposition readily conceded. And yet the courts have not assumed to deny to spirits of the departed the privilege of holding communion with those of their friends who are still in the flesh, so long as they do not interfere with vested rights, or by means of undue in\\u00f1uence seek to- prejudice the interest of persons still within our jurisdiction\\nIn re Randall, 99 Me. 396, 59 Atl. 552, the court says: \\\"Some persons believe that they have communications from and interviews with the spirits of deceased persons. This may be a delusion, and is so regarded by many; but, unless such supposed communications control the disposition of property, the believer in them is not thereby rendered incompetent to make a valid will.\\\"\\nIn La Bau v. Vanderbilt, 3 Redf. Sur. (N. Y.) 384, the court says: \\\"The evidence of the decedent's belief in modern spiritualism was not admissible as tending to show his mental unsoundness, unless it should appear that the will or codicil was an offspring of that delusion.\\\"\\nIn Rice v. Rice, 53 Mich. 432, 19 N. W. 132, it is held that delusions which are not connected with or have no effect upon the testamentary act are not sufficient to invalidate a will. Ramsdell v. Ramsdell, 128 Mich. 110, 87 N. W. 81, Chambers v. Brady, 100 Iowa, 622, 69 N. W. 1015, and In re Motz's Estate, 136 Cal. 558, 69 Pac. 294, sustain this view.\\nIn O'Dell v. Goff, 149 Mich. 152, 112 N. W. 736, 10 L. R. A. (N. S.) 989, 119 Am. St. Rep. 662, the court says: \\\"One accepts his religious faith on evidence that is satisfactory to his mind. A court of law will never inquire whether that faith is sound or unsound. It does not possess* the machinery for executing such an undertaking. It will content itself with saying\\u2014 and that is sufficient for the purposes of this case \\u2014 that one's religious faith affords no evidence of insanity. It does not follow, however, that one may not have such a faith in spiritualism as to destroy his testamentary capacity. He may think so continually and persistently upon this subject, as upon many other subjects, as to become a monomaniac, incapable of reasoning where, this subject is concerned. In that case, it should be said that a will, made in consequence of such monomania, is void for lack of testamentary capacity. Orchardson v. Cofield, 171 Ill. 14, 14 N. E. 197, 40 L. R. A. 256, 63 Am. St. Rep. 211. So, too, a believer in spiritualism may have such extraordinary confidence in spiritualistic communications \\u2014 whether those communications reach him through mediums, or are received by him, as he believes, directly \\u2014 that he is impelled to follow them blindly and implicitly, his free agency is destroyed, and he is constrained to do against his will what he is unable to resist. A will made under such circumstances is obviously not the will of testator, and is therefore not admissible to probate.. We need not speculate as to the ground upon which this conclusion rests. It is utterly unimportant whether it rests upon the ground of absence of testamentary capacity, or, as held by the trial court, upon the ground of undue influence. See, also, Robinson v. Adams, 62 Me. 369, 16 Am. Rep. 473. It is sufficient to say that a will brought about by an influence which the testator could not resist is not his will.\\\"\\nWe are clearly of opinion that the findings of the trial court sustain the conclusions that the testatrix was not of sound and disposing mind at the time of the execution of the will, and that the same was not her free, voluntary, and conscious act.\\nThe judgment of the trial court is affirmed.\\nWHITING, J., took no part in this decision.\"}"
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+"{\"id\": \"6850375\", \"name\": \"Annette MacKABEN, Plaintiff and Appellee, v. Everett Thomas MacKABEN, Jr., Defendant and Appellant\", \"name_abbreviation\": \"MacKaben v. MacKaben\", \"decision_date\": \"2015-11-04\", \"docket_number\": \"No. 27238\", \"first_page\": \"617\", \"last_page\": \"632\", \"citations\": \"871 N.W.2d 617\", \"volume\": \"871\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:56:38.836657+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 43.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.\", \"parties\": \"Annette MacKABEN, Plaintiff and Appellee, v. Everett Thomas MacKABEN, Jr., Defendant and Appellant.\", \"head_matter\": \"2015 S.D. 86\\nAnnette MacKABEN, Plaintiff and Appellee, v. Everett Thomas MacKABEN, Jr., Defendant and Appellant.\\nNo. 27238.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Aug. 31, 2015.\\nDecided Nov. 4, 2015.\\nPatricia A. Meyers, Rapid City, South Dakota, Attorney for plaintiff and appellee.\\nKyle Krause, Rapid City, South Dakota, Attorney for defendant and appellant.\", \"word_count\": \"7253\", \"char_count\": \"44071\", \"text\": \"GILBERTSON, Chief Justice.\\n[\\u00b6 1.] On August 15, 2014, the circuit court granted a divorce to Everett Thomas MacKaben Jr. (Tom) and Annette MacKa-ben because of irreconcilable differences. In dividing the property, the circuit court determined that a sizable tax lien on the marital home was Tom's nonmarital debt. The court also awarded spousal support of $1,000 per month to Annette for a period of 10 years to follow the sale of the marital home. Tom appeals, asserting that the circuit court abused its discretion in assigning him sole responsibility for most of the tax lien, in not specifying that the spousal support terminates in the event of his own death, and in setting the amount and duration of the support award. We affirm.\\nFacts and Procedural History\\n[\\u00b62.] Tom and Annette met in 1999 and married on September 18 of that year. At the time of trial, Tom was 53 years old and Annette was 45 years old. The parties have one child together, who was 13 years old at the time of trial. Tom has a high-school-level education and was largely self-employed during the marriage. He owned and operated a small construction company called Bear Paw Construction and sometimes served as a hunting guide. Annette has a Bachelor of Science degree in animal science from South Dakota State University. Aside from Tom recovering from surgery on his bicep, the parties were otherwise in good health at the time of the divorce. Although Annette worked outside of the home for a short time after the marriage, Tom successfully encouraged Annette to discontinue her employment in order to assist in his construction business by tracking financial information and records.\\n[\\u00b63.] The parties struggled financially from the beginning of the marriage. Tom came into the marriage with existing child-support obligations and owing $40,000 to his previous wife. More importantly, however, Tom did not reliably keep accurate business records, nor was Annette able to do the bookkeeping. The parties did not timely file income-tax returns from 2000 to 2006. They filed their 2005, 2006, and 2007 returns in 2007 after they sought to refinance the debts on the marital home. The parties eventually filed them 2003 and 2004 returns as well. During this time, Tom accumulated several judgments against his construction business, including one default judgment, and failed to pay excise taxes. Annette's mother loaned the parties $20,000 to satisfy and settle one of these judgments. Without Annette's knowledge, Tom also incurred a significant amount of credit-card debt and allowed the parties' medical insurance to lapse, resulting in a large, uninsured medical debt for their child.\\n[\\u00b6 4.] By 2011, the parties' economic situation had deteriorated to such an extent that they sought out Consumer Credit Counseling Services (CCCS). CCCS obtained a credit report on the parties, and Annette first learned that their personal tax returns had not been filed for three tax years and that the Internal Revenue Service (IRS) had placed a tax lien on their home totaling nearly $50,000. However, because the IRS was not actively pursuing repayment of the debt, the parties decided to focus their available funds on paying down their short-term obligations first. Over the subsequent year and a half, the parties' short-term debt was reduced to approximately $3,000. During this time, the parties' income increased significantly because Tom went to work as an equipment operator at a coal mine in Wyoming. Although Tom put in substantial overtime, on his days off he continued to take on small construction projects and guide hunting groups. The parties' tax returns have been timely filed since Annette assumed control of the parties' finances in 2011.\\n[\\u00b6 5.] Annette filed for divorce in December 2013. Thereafter, the parties separated, and Tom stopped living at the marital home. The parties agreed that they would share legal custody of their child, that Annette would have primary physical custody, and that Tom would get reasonable and liberal visitation. The parties also agreed to sell the marital home. Tom continued paying the monthly mortgage, insurance, and tax payments on the home; the monthly payment to CCCS; Tom's business insurance; and the parties' health insurance. The parties also agreed on the division of personal property and non-IRS debts. Additionally, Tom has been making $500 payments to the IRS every month under a debt-repayment plan.\\n[\\u00b6 6.] After the parties separated, Annette initially worked part-time driving a school bus but later found full-time employment as a paraprofessional with the Meade County School District. Annette has also received additional training enabling her to drive charter busses during the summer months and for school trips.\\n[\\u00b6 7.] The circuit court granted each of the parties a divorce on the grounds of irreconcilable differences on August 15, 2014. The court adopted the parties' own personal-property division but ordered Tom to pay $10,000 to Annette in order to equalize the division. As for the marital home, the court ordered that it be sold. However, the court concluded that while the underlying tax liability was.a marital debt, the interest and penalties were Tom's nonmarital debt. As a result, the court ordered Tom to pay $22,187 to Annette after the sale of the home; that any proceeds remaining after paying the mortgage, costs of sale, and tax lien go toward satisfying this award; that Tom receive any additional proceeds totaling up to $5,000; and that any remaining proceeds be shared equally. The circuit court also ordered Tom to continue paying $2,500 per month to cover the mortgage, insurance, and property tax on the home. Finally, the court ordered Tom to pay Annette $1,000 per month in spousal support for a period of 10 years following the sale of the home.\\n[\\u00b68.] Tom raises seven issues on appeal. Additionally, Annette requests appellate attorney fees.\\n1. Whether the circuit court's findings of fact, conclusions of law, and decree are only entitled to limited def- - erence.\\n2. Whether the circuit court was required to specify whether Tom's spousal-support obligation terminates upon his death.\\n3. Whether a spousal-support obligation that extends past the death of the obligor is an abuse of discretion.\\n4. Whether the circuit court abused its discretion by determining that the interest and penalties on the parties' IRS tax liability, was Tom's nonmari-tal debt. -\\n5. Whether the circuit court abused its discretion by ordering Tom to pay all mortgage, insurance, and property-tax payments on .the . marital home until its sale. \\u2022\\n6. Whether the circuit -court's decree effectively executed its division of the parties' IRS debt.\\n7. Whether the circuit court abused its discretion in determining the amount and duration of spousal sup- ' porfi\\n8. Whether Annette should be awarded appellate attorney fees.\\nStandard of Review\\n[\\u00b6 9.] We review a circuit court's division of property for abuse of discretion. Huffaker v. Huffaker, 2012 S.D. 81, \\u00b6 11, 823 N.W.2d 787, 790. We also review a circuit court's spousal-support determinations for abuse of discretion. Hagedorn v. Hagedorn, 2012 S.D. 72, \\u00b6 9, 822 N.W.2d 719, 722. \\\"An abuse of discretion 'is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.'\\\" Gartner v. Temple, 2014 S.D. 74, \\u00b6 7, 855 N.W.2d 846, 850 (quoting Arneson v. Arneson, 2003 S.D. 125, \\u00b6 14, 670 N.W.2d 904, 910). \\\"Pursuant to an abuse of discretion standard of review, factual determinations are subject .to a clearly erroneous standard.\\\" Id. \\u00b6 8, 855 N.W.2d at 850 (quoting State v. Guthrie, 2002 S.D. 138, \\u00b6 5, 654 N.W.2d 201, 203). However, the circuit court's conclusions of law are reviewed de novo. Id.\\nAnalysis and Decision\\n[\\u00b6 10.] 1. Whether the circuit court's findings of fact, \\u00a1conclusions of law, and decree are only entitled to limited deference.\\n[\\u00b6 11.] Tom asserts that the circuit court's findings of fact, conclusions of law, and divorce decree are only entitled to limited deference because they , were all drafted by Annette's counsel. In support of. this assertion, Tom offers a single dissenting opinion stating: \\\"[W]e cited with approval a case suggesting that appellate courts should scrutinize more carefully and give less weight to findings prepared by counsel than those findings prepared by trial judges themselves.\\\" Kreps v. Kreps, 2010 S.D. 12, \\u00b6 48, 778 N.W.2d 835, 848 (Konenkamp, J., dissenting). According to Tom, the circuit court altered only a single finding of fact, added one conclusion of law, and omitted Annette's proposed conclusions of law regarding attorney fees.\\n[\\u00b6 12.] We decline Tom's invitation to hold that findings and conclusions prepared by a party at the court's request are only entitled to limited deference as a general rule. . SDCL .15-6-52(a) specifically empowers a circuit court to \\\"direct counsel for the prevailing party to prepare findings[.]\\\" After the opposing party has been given an opportunity to respond to the proposed findings, \\\"the court shall make or enter such findings and conclusions as may be propel'.\\\" SDCL 15-6-52(a). The opposing party is free to argue on appeal that a particular finding or conclusion is improper. As indicated above, see supra \\u00b6 9, we already review a circuit court's conclusions of law de novo \\u2014 i.e., they receive no deference on appeal. Gartner, 2014 S.D. 74, \\u00b6 8, 855 N.W.2d at 850. Tom offers no compelling reason for us to abandon our well-established standards of review regarding a circuit court's findings of fact (clearly erroneous) or decisions- in property division. and spousal support (abuse of discretion).\\n[\\u00b6 13.] 2. Whether the circuit court was required to specify whether Tom's spousal-support obligation terminates upon his death.\\n[\\u00b6 14.] Next, Tom asserts the circuit court should have specifically addressed whether Tom's. spousal-support obligation terminates in the event that his death occurs prior to the conclusion of the 10-year obligation. However, this issue is not ripe for review. \\\"Ripeness involves the timing of judicial review and the principle that judicial machinery should be conserved for problems which are real and present or imminent, not squandered on problems which are abstract or hypothetical or remote.\\\" Meinders v. Weber, 2000 S.D. 2, \\u00b6 39, 604 N.W.2d 248, 263 (quoting Boever v. S.D. Bd. of Accountancy, 526 N.W.2d 747, 750 (S.D.1995)). \\\"Courts should not render advisory opinions or decide moot theoretical-questions when the future- shows no indication of the invasion of a right.\\\" Boever, 526 N.W.2d at 750. However, \\\"[a] matter is sufficiently ripe if the facts indicate imminent conflict.\\\" Id. Here, the circuit court awarded Annette spousal- support to run for a -period of 10 years- following the sale of the marital home. As indicated above, Tom was healthy and only 53 years old at the time of the divorce proceedings. Although it is not known when a third party will purchase the home, there is nothing in the record to suggest that Tom's death is imminent, absent some unforeseen accident. In such an event, Tom's estate is free to petition for a modification.\\n[\\u00b6 15.] 3. Whether a spousal-support obligation that extends past the death of the obligor is an abuse of discretion.\\n.[\\u00b6 16.] We do not reach this issue because of our decision on Issue 2.\\n[\\u00b6 17.] 4. Whether the circuit court \\u00e1bused its discretion by determining that the interest and penalties on the parties' IRS tax liability was Tom's nonmarital debt.\\n[\\u00b6 18.] The circuit court attempted to divide the marital estate into equal shares with the exception of the portion of the parties' IRS debt attributable to interest and penalties. While the court equally-divided the underlying tax liability due the IRS, the court determined that the penalties and interest accumulated as the result of prior failures to file tax returns constituted a nonmarital debt attributable solely to Tom. Tom asserts the circuit court abused its discretion by assigning Tom sole responsibility for the penalties and interest. Specifically, Tom asserts the circuit court erred in three ways: (1) by failing to give sufficient weight to Annette's treatment of the parties' tax problem, (2) by basing its decision on erroneous findings, and (3) by attributing all payments made on the parties' IRS debt to principal.\\n[\\u00b6 19.] Tom first asserts that the circuit court failed to give sufficient weight to Annette's treatment of the parties' tax problem. The circuit court found that in 2011, after attending credit counseling, Annette learned that the parties' income-tax returns had not been filed for three previous tax years and that the marital home had been encumbered by a tax lien of nearly $50,000. Although Tom acknowledges that \\\"Annette's testimony provides some basis in the record for that finding[,]\\\" he argues that \\\"if Annette really was unaware of any issue, it could only be because she willfully stuck her head in the sand[.]\\\" According to Tom, Annette should have realized the parties had a tax problem because Annette testified she believed the parties had been granted extensions for previous tax years, including an eight-year extension for the -2000 return; because the parties filed six tax returns at once in 2008; because Annette was generally aware of the parties' financial difficulties throughout the marriage; and other miscellanea. Additionally, Tom points out that after both parties learned of the problem, they allowed their outstanding tax liability to continue accruing interest and penalties for over a year before taking any steps to directly address the tax lien.\\n[\\u00b6 20.] An appeal is not an opportunity to simply relitigate credibility determinations. \\\"We give deference to the [circuit] court on judging the credibility of the witnesses and weighing their testimony.\\\" Hill v. Hill, 2009 S.D. 18, \\u00b6 26, 763 N.W.2d 818, 826. Any \\\"[d]oubts about whether the evidence supports the [circuit] court's finding of fact are to be resolved in favor of the successful party's version of the evidence and of all inferences fairly deducible therefrom which are favorable to the court's action.\\\" Gartner, 2014 S.D. 74, \\u00b6 8, 855 N.W.2d at 850 (quoting Estate of Olson, 2008 S.D. 97, \\u00b6 9, 757 N.W.2d 219, 222). During the divorce proceedings, under cross-examination by Tom's counsel, Annette testified as follows:\\n[Tom's Counsel]: Now, at some point did you become aware of a rather large debt to the IRS?\\n[Annette]: Yes.\\n[Tom's Counsel]: How did you become aware of that debt?\\n[Annette]: When we took Tom's credit cards to consumer credit that first meeting with them, of course she had to run a credit score on both of us. And she walked back in and handed the credit scores to us and pointed to it, and that was the first time that I knew of any of it. I just remember looking at Tom and him just stating 'Tes. I knew about it.\\\"\\n[Tom's Counsel]: And so that would have been the first time you learned about a tax lien that was filed in December of 2009?\\n[Annette]: Yes.\\n[The Court]: I have a quick question . My question is: When you went to the credit counselor, that's when you first learned [of the tax lien]?\\n[Annette]: Yes.\\n[The Court]: When was that?\\n[Annette]: That would have been February of 2011.\\nThe circuit court was not required to disbelieve Annette's testimony simply because Tom concludes she should have known better. While the content of Tom's assertions provides circumstantial evidence that might help prove Annette's awareness of a tax problem at the trial level, Tom has not proved by \\\"a clear preponderance of the evidence\\\" that Annette was aware of the parties' tax problem. See id. (quoting Olson, 2008 S.D. 97, \\u00b6 9, 757 N.W.2d at 222). Because Tom has fallen short of leaving us \\\"with a definite and firm conviction that a mistake has been committed[,]\\\" id. (quoting Olson, 2008 S.D. 97, \\u00b6 9, 757 N.W.2d at 222), we are not persuaded that the circuit court \\\"failed to give sufficient weight\\\" to Annette's treatment of the parties' tax problem.\\n[\\u00b6 21.] Next, Tom asserts that the circuit court's finding that Annette's efforts after learning of the tax lien \\\"set[] the stage for a return to solvency\\\" is clearly erroneous. According to Tom, \\\"[t]he primary thing that set the stage for the family's financial solvency was not Annette preparing tax returns, but rather the fact that Tom started working the coal mine in 2011 and earned a higher and more consistent income than at any other time during the marriage.\\\" We fail to understand how this finding, even if erroneous, undermines the circuit court's conclusion that the interest and penalties on the unpaid tax liability was Tom's nonmarital debt. The circuit court determined the interest and penalties on the unpaid debt was nonmarital because Tom was responsible for the imposition of those amounts, not because of Annette's role in remedying the situation.\\n[\\u00b6 22.] Finally, Tom asserts the circuit court erred by attributing all payments made on the parties' IRS debt to principal. The parties initially owed the IRS an unpaid tax liability of $83,455. This tax liability generated an additional $44,376 in interest and penalties. However, the parties were credited with $23,661 in payments to the IRS. The circuit court applied the entirety of this credit toward the $33,455 underlying tax liability, leaving the interest and penalties unaffected. According to Tom, \\\"Annette should be responsible for half of the interest accumulated on the unpaid taxes, even if penalties and interest on the penalties are made Tom's responsibility.\\\" Thus, the essence of Tom's argument is that the circuit court abused its discretion by categorizing the interest and penalties on the IRS tax liability as Tom's nonmarital debt. We disagree that the circuit court abused its discretion in this regard.\\n[\\u00b6 23.] The Nebraska Supreme Court decided a substantially similar case in Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000). In Meints, over the course of seven years, a \\\"husband incurred a federal income tax liability of $19,162.31, plus an additional $11,235.36 in statutory penalties for late filing, for a total Internal Revenue Service (IRS) liability amounting to $30,397.67.\\\" Id. at 567. During those same years, \\\"the husband and the wife filed separate income tax returns.\\\" Id. However, the husband testified \\u2014 and the wife did not dispute \\u2014 that he \\\"spent the funds that he failed to withhold from his income for IRS tax purposes on family expenses[.]\\\" Id. Consequently, the \\\"district court did not treat the tax liability incurred by the husband as a marital debt and proceeded to divide the remaining marital estate accordingly.\\\" Id. at 566. On appeal, the Nebraska Supreme Court noted that \\\"[i]ncome tax liability incurred during the marriage is one of the accepted costs of producing marital income, and thus . should generally be treated as a marital debt.\\\" Id. at 569. When \\\"taxes are overdue, the principle behind the rule is the sanie, and the underlying tax liability [is] ordinarily . a marital debt.\\\" Id. However, the court also noted that even underlying tax liability need not be classified as marital debt \\\"if credible evidence establishes that the delinquent tax-paying spouse spent significant funds on nonmari-tal pursuits.\\\" Id. As an extension of these principles, the court held \\\"that an innocent spouse who has filed separate tax returns, and paid his or her taxes in a timely fashion, should' not be forced to share in any statutory penalties for the late filings of a dilatory spouse.\\\" Id. Consequently, the court concluded that while the underlying tax liability was properly considered a marital debt, the accrued interest and penalties were nonmarital debt \\\"solely attributable to the husband's late filings.\\\" Id.\\n[\\u00b6 24.] Although the facts of the present case \\u00e1re not identical to those presented in Meints, we think they are sufficiently analogous to apply the same principles. Like the Nebraska Supreme Court, the circuit court here concluded the underlying tax liability was a marital debt while the accrued interest and penalties were Tom's nonmarital debt. The circuit court so found for the following reasons:\\n(1)If Defendant had . timely paid the taxes, then interest and penalties would not have accrued. The IRS wouldn't have a lien on the marital property and Plaintiff would realize more hard cash from the sale of the home.\\n(2) Defendant was the person responsible for . paying the taxes.\\n(3) The Defendant concealed his dereliction from his wife. She had no knowledge that Defendant failed to pay income taxes.\\n(4) Upon discovery of the Defendant's deep dereliction, Plaintiff \\u2014 with the help of Defendant's accountant \\u2014 worked through a garbage bag full of records to recreate the delinquent tax years. As a result, returns were filed, thus setting the stage for a return to solvency.\\n(5) The IRS lien was a function of Defendant's character \\u2014 a tendency to profligacy and financial neglect. '\\nAdditionally, the circuit court also found that \\\"Tom's failure to file income taxes was willful as well as negligent and as a result the parties incurred a significant amount of penalties and interest that they should not have incurred had Tom managed their financial affairs properly.\\\" Tom has not convinced us that the circuit court clearly erred in its relevant factual findings. Therefore, like the Nebraska Supreme Court in Meints, we must likewise conclude that Annette is \\\"innocent\\\" and should not suffer the consequences of Tom's concealed mismanagement of the family's finances \\u2014 i.e., the interest and penalties portion of the tax lien.\\n[\\u00b6 25.] In light of the foregoing, the circuit court's application of the parties' $23,661 credit was proper. Tom has not asserted that any portion of this credit was paid out of his nonmarital funds. Therefore, it was proper for the circuit court to apply half of the credit toward each of the parties' shares of the underlying tax liabili ty and then equally divide the remaining tax liability between the parties,\\n[\\u00b6 26.] 5. Whether the circuit court abused its discretion by ordering Tom to pay all mortgage, insurance, and property-tax payments on the marital home until its sale.\\n[\\u00b6 27.] Tom asserts that the mortgage, insurance, and property-tax payments on the marital home should have been proportional to the allocation of the asset between the parties. Although the circuit court ordered Tom to make the foregoing payments on the home, the court ordered the first $6,000 of any net proceeds obtained from the sale of the home to be paid to Tom and any remaining proceeds to be equally divided between the parties. Annette argues that she remained equally obligated on the debt even though the circuit court \\\"simply ordered Tom to pay the entire mortgage\\\" instead of having \\\"Tom pay half of the mortgage debt and Annette pay half of the mortgage debt with alimony that Tom paid to her[.]\\\"\\n[\\u00b6 28.] As Tom points out, we reviewed an analogous property division in Foley v. Foley, 429 N.W.2d 42 (S.D.1988). In Foley, a husband and wife divorced, and the circuit court ordered the husband to make monthly payments of $518 for \\\"the house payment, consisting of principal, interest and insurance\\\" and $176 \\\"for utilities, food, and necessaries!.]\\\" Id. at 48. The court did not identify whether it considered these payments a portion of the property settlement or an award of spousal or child support, but the awards were set to terminate upon the later occurrence of the parties' youngest child reaching age 18 or finishing high school. Id. at 43-44. While the ' court determined that the parties would retain joint title to the marital home, the court decided the wife would receive 70% of the net proceeds from the sale of the home and the husband would receive the remaining 30%. Id. at 44. The court ordered the home be sold if the wife remarried or upon the later occurrence of the parties' youngest child reaching age 18 or finishing high school. Id. After the home was eventually placed on the market for sal\\u00e9, the wife petitioned for modification, which the circuit court granted.'\\n[\\u00b6 29.] On appeal of the modification, we commented on the circuit court's distribution of the mortgage and insurance payments. We said:\\nIt is 1.. clear that unless the mortgage payments were made, the property could have been foreclosed upon preventing either party from receiving any possible gain on the sale of, the home. Although the trial court was justified in requiring [h]usband and [w]ife to share these payments, the percentages should have reflected the percentage interest of each party in the asset (or liability). To require [h]usband to pay an additional twenty percent would be permissible only if such payments were part of [h]usband's continuing support obli-gation to [w]ife.\\nId. at 47. Consequently, we remanded to give the circuit court an opportunity either to reimburse the husband for the additional 20% of the mortgage and insurance payments he had paid or to clarify that the additional sum was an award of spousal support rather than a property division.\\n[\\u00b6 30.] We think Foley is inconsistent with the discretion given to circuit courts to equitably divide marital property in divorce proceedings. Foley itself was a split decision, and it appears that we have never relied on Foley for the notion that a party's responsibility for preventing foreclosure on the marital home must be proportional to that party's interest in the asset. Such a rule ignores the equity court's larger function of dividing the total of marital property. A court is not required to equally divide each individual asset; rather, the overall division of the entirety of the marital assets must be equitable. To the extent that Foley suggests otherwise, it is overruled. In light of the larger property division, requiring Tom to pay an extra $1,250 per month to preserve the one asset that would be used first to satisfy his tax debt to the IRS was not an abuse of discretion.\\n[\\u00b6 31.] 6. Whether the circuit court's decree effectively executed its division of the parties' IRS debt.\\n[\\u00b6 32.] In addition to disputing the circuit court's categorization of the interest and penalties as his nonmarital debt, Tom asserts \\\"the manner in which the [c]ircuit [c]ourt attempted to accomplish this goal fails in its purpose because it does not account for the likelihood that the parties would make payments on the debt before the sale of their home.\\\" According to Tom, \\\"[a]ny findings regarding the amount of proceeds from the home sale that will go towards the IRS lien are clearly erroneous\\\" because the circuit court could not have known whether and by how much the tax lien would change by the time of sale. Tom asserts that he has been making $500-per-month payments on the tax lien under a settlement agreement -with the IRS. Thus, Tom concludes that \\\"[t]o properly accomplish the objective of making [him] responsible for $44,375 of the IRS debt, it is necessary to use a formula that accounts for payments on the debt made by each party before the home sells.\\\" We disagree.\\n[\\u00b6 33.] Tom ignores the larger picture of the entire property division: Tom's burden on appeal is not to prove merely that one aspect of the actual property division deviated from the circuit court's intended property division. Rather, Tom must convince us that the property division, as executed, was an abuse of discretion. Although a circuit court must \\\"have regard for equity and the circumstances of the parties\\\" when dividing the marital estate, SDCL 25-4-44, \\\"[i]n the division of property rights, there is no rigid formula that must be followed, nor any fixed percentage to which either party is entitled.\\\" Clement v. Clement, 292 N.W.2d 799, 801 (S.D.1980) (citation omitted). When a circuit court divides property, \\\"the law does not require perfection that would approach a mathematical certainty.\\\" Pellegrin v. Pellegrin, 1998 S.D. 19, \\u00b6 24, 574 N.W.2d 644, 649. In this case, the circuit court did not abuse its discretion by declining to adopt a formula that would account for potential, minor variations in the amount of Tom's tax-lien obligations. Considering the property division as a whole, Tom's monthly obligation to make the tax payment would only affect the overall property division marginally if at all. Such a decision is not \\\"a choice outside the range of permissible choicest.]\\\" Gartner, 2014 S.D. 74, \\u00b6 7, 855 N.W.2d at 850 (quoting Arneson, 2003 S.D. 125, \\u00b6 14, 670 N.W.2d at 910).\\n[\\u00b6 34.] 7. Whether the circuit court abused its discretion in determining the amount and duration of spousal support.\\n[\\u00b6 35.] Tom asserts the circuit court abused its discretion in ordering Tom to pay Annette $1,000 per month in spousal support for a period of 10 years beginning on the first day of the month following the sale of the home. Tom argues the court .abused its discretion in two respects. First, Tom argues that the circuit court clearly erred by concluding Annette's income potential would never approach Tom's. Second, because the 10-year period does not begin until the home sells, Tom argues that the effect of the circuit court's order \\\"was to essentially extend Tom's alimony obligation by a month for every month the home remains unsold.\\\" According to Tom, \\\"having the period run from ah undetermined point in the future (whenever the home sells) cannot be reasonably justified.\\\" We are not persuaded by either argument.\\n[\\u00b6 36.] The circuit court's evaluation of the parties' earning capacities was not clearly erroneous. Tom asserts that \\\"[t]he alimony award is . based on the erroneous factual finding that Annette's 'income potential despite her degree will never approach Tom's.' \\\" The reason for this, Tom suggests, is that \\\"[tjhere was no evidence suggesting [Annette] could not become qualified to drive equipment at a coal mine, or similarly drive trucks that service the oil fields in North Dakota.\\\" However, Tom offers no authority for the proposition that a spouse seeking support must move to another state and seek out a particular occupation or necessarily risk having its income potential be imputed to that spouse. The circuit court found that Annette earns $10 per hour, seven hours per day, while school is in session. Additionally, at -the time of divorce, Annette hoped to continue driving a school bus at least one shift per day at $14.50 per hour. Finally, the court found that Annette has received additional training enabling her to drive charter busses during the summer and for school trips. In comparison, the court also found that Tom has demonstrated an ability to earn' in excess of $100,000 per year. Although Tom asserts that he has only earned this amount annually once in his lifetime, that one year occurred immediately prior to the year of divorce and at the same job he currently holds. Consequently, the circuit court found that Tom will likely earn between $96,000 and $120,000 per year, whereas Annette will earn between $20,000 and $24,000 per year. Therefore, we are not \\\"left with a definite and firm conviction\\\" that the circuit court made a mistake in concluding Annette's earning capacity will never approach that of Tom's. See id. \\u00b6 8, 855 N.W.2d at 850 (quoting Olson, 2008 S.D. 97, \\u00b6 9, 757 N.W.2d at 222).\\n[\\u00b6 37.] Even if we agreed that the circuit court clearly erred in its findings on the parties' respective .earning capacities, Tom would not necessarily prevail. A circuit court that grants a divorce \\\"may compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented!.]\\\" SDCL 25-4-41. Relevant circumstances include \\\"the parties' (1) length of marriage; (2) earning, capacity; (3) financial condition after the property division; (4) age, health, and physical condition; (5) station in life or social standing; [and] (6) relative. fault in the termination of the marriage.\\\" Scherer v. Scherer, 2015 S.D. 32, \\u00b6 10, 864 N.W.2d 490, 494. While spousal support \\\"will not be awarded in such an amount as would.allow a [spouse] capable of work to sit in idleness, [neither] will it be denied merely because [the spouse] may be able to obtain employment and support [him- or] herself.\\\" Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D.1977). Thus, earning capacity is but one factor a court should consider in determining an award of spousal support.\\n[\\u00b6 38.] In this case, the circuit court's findings on the relevant factors support its order for spousal support..-. The parties were married for approximately 14 years. Annette's anticipated annual income is about one-fourth to one-sixth of Tom's. Neither party will derive much financial potential from the property, division. Both parties are relatively healthy and in good physical condition, although Tom is approximately eight years older than Annette. The court found that without the ordered support, Annette would be relegated to little more than \\\"a lower rudimentary middle class existence.\\\" . While the circuit court clearly assigned blame for the parties' dire economic situation to Tom, the divorce itself was granted on the basis of irreconcilable differences. Based on these factors, we cannot-conclude the circuit court abused , its discretion by ordering Tom to pay spousal support for 10 years following the sale of the home.\\n[\\u00b6 39.] Although Tom argues that \\\"having the [support] period run from an undetermined point in the future (whenever the home sells) cannot be reasonably justified[,]\\\" he offers no authority for the conclusion that such an arrangement is inherently unreasonable. In this case, such an arrangement only benefited him. Neither the total amount Tom is required to pay, nor the total amount Annette receives in support, is changed by this arrangement; the only difference is when Tom is required to pay certain amounts. By delaying the start of the 10-year period, the- circuit court merely gave Tom the- benefit of only having to. pay $2,500 per month while the home was on the market rather than $3,500 per month. In contrast, Annette receives no additional benefit from this arrangement. Although she is permitted to live in the home prior to sale, she is deprived of the flexibility that accompanies a cash payment of spousal support during that time. Tom can hardly complain about such an arrangement. The circuit court has discretion to \\\"compel one party to make such suitable allowance to the other party for support during the life of that other party or, for a shorter period [.] \\\" SDCL 25^4-41 (emphasis added). The circuit court did not abuse its discretion by ordering Tom to pay spousal support -for a period of 10 years - following the sale of the parties' home.\\n[\\u00b6 40.] 8. Whether Annette should be awarded appellate attorney fees.\\n[\\u00b6 41.] Annette requested reimbursement of appellate attorney fees. SDCL 15-26A-87.3' permits us to grant appellate attorney fees \\\"where' such fees are permissible at the trial level.\\\" Grynberg Expl. Corp. v. Puckett, 2004 S.D. 77, \\u00b6 33, 682 N.W.2d 317, 324 (quoting Hentz v. City of Spearfish, Dep't of Pub. Works, Office of Planning & Zoning, 2002 S.D. 74, \\u00b6 13, 648 N.W.2d 338, 342). Therefore, \\\"if appropriate, in the interests of justice, [this Court] may award payment of [appellate] attorneys' fees in all cases of divorce, annulment of marriage, determination of paternity, custody, visitation, separate maintenance, support, or alimony.\\\" SDCL 15-17-38. Here, not only does Tom receive more in the division of marital property and debts, his income is substantially greater than Annette's. As noted above, the circuit court found that Tom's expected income is between $96,000 and $120,000 per year, whereas Annette's is only between $20,000 and $24,000 per year. Therefore, we conclude that Tom should pay Annette's appellate attorney fees in the amount of $7,587.49.\\nConclusion\\n[\\u00b6 42.] We decline Tom's invitation to alter the standards of review applicable to this case. Whether the circuit court erred by not specifically stating that Tom's support obligation to Annette terminates in the event of Tom's death is not ripe for review. The circuit court was not required to assign 50% of the mortgage, insurance, and property-tax payments to Annette, and we overrule Foley on this issue. The court did not abuse its discretion in deciding that the interest-and-penalties portion of the IRS tax lien is Tom's nonmarital debt. Because Tom's tax payments are unlikely to ever benefit Annette, the circuit court-did not abuse its discretion by declining to give Tom a credit for half of each tax payment. The circuit court did not abuse its discretion in ordering Tom to pay $1,000 in spousal support to Annette each month for 10 years following the sale of the home. Finally, Tom must pay Annette's appellate attorney fees. We affirm.\\n[\\u00b6 43.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.\\n. By the time the parties submitted their briefs for this appeal, the current pay-off amount for the tax lien was $55,504.\\n. Tom claimed that the money he earned as a hunting guide was only enough to cover his own expenses. When asked whether he reported this income on the parties' tax returns, Tom asserted his 5th Amendment right to remain silent.\\n. Although Annette did not raise this argument, a dispute is not justiciable unless it is ripe. Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 732, 118 S.Ct. 1665, 1670, 140 L.Ed.2d 921 (1998); see also Brendtro v. Nelson, 2006 S.D. 71, \\u00b6 12 n. 1, 720 N.W.2d 670, 674 n. 1. Whether a controversy is justiciable may be considered by a court on its own motion. See Nat'l Park Hosp. Ass'n v. Dep't of the Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 2030, 155 L.Ed.2d 1017 (2003); Baldwin Cty. v. Palmtree Penthouses, Ltd., 831 So.2d 603, 605 & n. 4 (Ala.2002); Kapuwai v. City & Cty. of Honolulu, Dep't of Parks & Recreation, 121 Hawaii 33, 211 P.3d 750, 757 (2009); W.B. v. Commonwealth, Cabinet for Health & Family Servs., 388 S.W.3d 108, 115 (Ky.2012); Brickley v. Horton, 951 A.2d 801, 802 (Me.2008); Wilson v. State Highway Comm'n, 140 Mont. 253, 370 P.2d 486, 488 (1962); Appeal of Buckeye Power, Inc., 42 Ohio St.2d 508, 330 N.E.2d 430, 431 (1975) (per curiam); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Williams v. Univ. of Utah, 626 P.2d 500, 503 (Utah 1981); Daniels v. Mobley, 285 Va. 402, 737 S.E.2d 895, 899 (2013).\\n. Although Annette initially, attempted to convince the circuit court to categorize the entire tax lien as Tom's nonmarital debt, she has not made the same argument on appeal. Therefore, it is undisputed that the circuit court properly categorized that portion of the tax lien representing the parties' underlying tax liability, which does not include interest and penalties, as marital debt.\\n. Annette was actually required to pay a small portion of the interest. The court calculated Annette's remaining share of the underlying tax liability at $5,564. This amount reflects half of the difference between the tax-lien-payoff-statement amount ($55,504) and the sum of the penalties ($15,516) and interest ($28,860). However, Tom's exhibit JJ indicated the payoff amount of $55,504 was higher than the calculated total of $54,170 ($33,-455 in unpaid taxes plus $15,515 in penalties plus $28,860 in interest minus $23,661 in payments) because of additional interest that had accrued. Therefore, Annette should have only been responsible for $4,897 \\u2014 i.e., half of the difference between the unpaid taxes ($33,-455) and the credit ($23,661).\\n. It does not appear that Tom's monthly payments are likely to ever benefit Annette. The thrust of Tom's argument is that every $500 payment he makes reduces the total amount of the tax lien and consequently increases Ann\\u00e9tte's equity by $250. However, under the decree, Tom is required to pay Annette $22,187 regardless of whether the sale proceeds are sufficient to cover that amount. Thus, if the net proceeds from the home sale are less than $22,187, Annette will not receive any additional value from Tom's $500 payments. Because Tom is then entitled to any remaining proceeds up to $5,000, Tom's payments will not affect the amount Annette receives unless the net proceeds exceed $27,187. However,' if the home sells for $27,187, Annette \\u2014 as a joint owner of the property \\u2014 is already entitled to 50% of the $22,187 in proceeds allocated to her by the court (i.e., the court functionally ordered Tom to pay Annette only $11,094). Likewise, Tom would also already be entitled to 50% of the $5,000 the court ordered he receive. Thus, at the point at which each of Tom's $500 tax payments would be adding $250 to Annette's equity on a monthly basis, Tom would already have been permitted to retain $8,594 (50% of $22,187 minus 50% of $5,000) in proceeds that would have been distributed to Annette under a true 50/50 division of the property. At that rate, the home would need to be on the market for nearly three years before Tom's tax payments caught up with Annette's deficit.\\nFurther, even if we agreed with Tom's conclusion that the circuit court's decree did not effectively carry out the court's intended property division, Tom ignores the bigger picture of the entire property division. It is clear from the circuit court's decree, findings of fact, and conclusions of law that \\u2014 aside from the interest and penalties on the tax liability\\u2014 the court intended to divide the marital estate equally. However, the parties themselves came to an agreement regarding the distribution of personal property and debts other than the tax lien. Under that agreement,' Annette received $37,477 in personal property but assumed $21,000 in debt. In contrast, Tom received $54,011 in personal property but assumed only $9,916 in debt. As a result of this $27,618 disparity in value between property received by the parties, the circuit court ordered Tom to pay Annette $10,000 tb help balance the personal-property division. This amount, however, still leaves Tom with approximately $7,618 more than Annette. Considering the $8,594 deficit discussed in the preceding paragraph, it appears that Tom's payments would not even begin to tip the financial advantage in Annette's favor \\u2014 i.e., result in her receiving more cash value than Tom as a result of this property division\\u2014 until the home had been on the market for over five years.\\nIn order .to be entitled to relief bn appeal, Tom has the burden of establishing that the circuit court's decision 'was \\\"outside the range of permissible choices,\\\" Gartner, 2014 S.D. 74, \\u00b6 7, 855 N.W.2d at 850, not merely that the court failed in execution to impose an intended debt liability to the penny. As things stand, Tom's tax payments are unlikely to ever benefit Annette under the circuit court's decree. If the total of the sale price and Tom's tax payments ever reach the point where Annette benefits from them, it would take years of such tax payments for the property division to equalize, let alone tip in Annette's favor to such an extent that it becomes inequitable.\\n. If w\\u00e9 so held, it is not difficult to imagine myriad future divorce appellants arguing that their support-seeking, former spouses ar\\u00e9 not entitled to support because they could simply learn to drive a truck, move to Wyoming, and work the coal mines. In a similar vein, such a holding would also invite any support-seeking spouse to claim his or her former spouse is voluntarily underemployed if that spouse earns less than he or she could in the coal mines of Wyoming.\"}"
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+"{\"id\": \"6910839\", \"name\": \"Roger HAMILTON, Plaintiff and Appellant, v. Richard A. SOMMERS, Melissa E. Neville and Bantz, Gosch & Cremer, Prof., LLC, Defendants and Appellees\", \"name_abbreviation\": \"Hamilton v. Sommers\", \"decision_date\": \"2014-10-29\", \"docket_number\": \"No. 26720\", \"first_page\": \"855\", \"last_page\": \"876\", \"citations\": \"855 N.W.2d 855\", \"volume\": \"855\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:31:51.484956+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 51.] KONENKAMP, ZINTER and SEVERSON, Justices, concur.\", \"parties\": \"Roger HAMILTON, Plaintiff and Appellant, v. Richard A. SOMMERS, Melissa E. Neville and Bantz, Gosch & Cremer, Prof., LLC, Defendants and Appellees.\", \"head_matter\": \"2014 S.D. 76\\nRoger HAMILTON, Plaintiff and Appellant, v. Richard A. SOMMERS, Melissa E. Neville and Bantz, Gosch & Cremer, Prof., LLC, Defendants and Appellees.\\nNo. 26720.\\nSupreme Court of South Dakota.\\nArgued March 24, 2014.\\nDecided Oct. 29, 2014.\\nDan Rasmus, Minneapolis, Minnesota, Timothy L. James, Yankton, South Dakota, for plaintiff and appellant.\\nThomas J. Welk, Jason R. Sutton, Meghan K. Woster, Boyce, Greenfield, Pash-by & Welk, LLP, Sioux Falls, South Dakota, for defendants and appellees.\", \"word_count\": \"11149\", \"char_count\": \"69153\", \"text\": \"WILBUR, Justice.\\n[\\u00b6 1.] Roger Hamilton appeals summary judgment dismissing his claims of legal negligence or malpractice and breach of fiduciary duty brought against his former attorneys. We affirm in part, reverse in part, and remand.\\nBackground\\n[\\u00b6 2.] This case began as a dispute related to 112 bee sites located in Marshall, Roberts, and Day counties in northeast South Dakota. In order to place bee hives onto private property, the hive owner must secure written permission from the landowner and file the permission slip with the South Dakota Department of Agriculture (Department). Here, the 112 sites were previously registered to James Paysen. Paysen sold the 112 sites in the mid-1990s to John Kelley; but significantly, Kelley did not register them. In 2006, Kelley sold the 112 sites to Adee Honey Farms, which was owned by Richard Adee.\\n[\\u00b6 3.] Around the same time as Adee's purchase, plaintiff/appellant Roger Hamilton, a local beekeeper, learned that Kelley was \\\"going under.\\\" Hamilton obtained an \\\"abandonment map\\\" from another local beekeeper (Mike Block) to determine what sites may be available. Block also prepared and gave Hamilton a revocation form used to revoke a landowner's permission. Using the map, revocation forms, and new permission forms, Hamilton acquired 10 bee sites formerly registered to Paysen on which Adee had unregistered hives. Block, along with another regional beekeeper (Monte Amman), acquired the other 102 sites. Hamilton and Block drove together to Pierre to register their permission forms with the Department.\\n[\\u00b6 4.] Claiming the 112 sites as his own, Adee petitioned for an administrative hearing seeking to have the sites registered in his name. The hearing occurred on May 15, 2007. Hamilton, Block, and Amman prevailed; thus, the Office of Hearing Examiners found Hamilton had properly registered his 10 bee sites.\\n[\\u00b6 5.] Following the administrative hearing, Adee sued Hamilton, Block, and Amman on August 25, 2007, jointly and severally, for interference with business relations and/or expectancy, unfair competition, and civil conspiracy (Underlying Lawsuit). Seeking representation, Hamilton, Block, and Amman met with attorneys Richard Sommers and Melissa Neville of Bantz, Gosch & Cremer, L.L.C. (collectively \\\"Appellees\\\") on September 27, 2007, in Aberdeen, South Dakota.\\n[\\u00b6 6.] At the meeting, Appellees discussed the potential conflict of interest that could occur when representing all three defendants. Appellees asked whether Hamilton, Block, or Amman had insurance coverage that would compel the insurance carriers to respond to Adee's suit. Block and Amman replied affirmatively. Appellees wrote a demand letter to Block and Amman's carrier requesting that the insurance company defend the lawsuit, which the carrier declined. Hamilton allegedly said he did not have insurance; Appellees did not inquire any further. In hindsight, Hamilton did, in fact, have insurance in that regard. At the meeting's conclusion, Hamilton, Block, and Amman orally agreed to Appellees' representation.\\n[\\u00b6 7.] On October 3, 2007, Appellees sent a letter to Hamilton, Block, and Amman confirming the joint representation and enclosing a conflict of interest waiver. Block and Amman signed and returned the waiver; Hamilton claims he never received, signed, or returned the waiver.\\n[\\u00b6 8.] On July 7, 2009, Adee offered to settle solely with Amman if Amman transferred his bee sites to Adee and testified against Hamilton and Block in the Underlying Lawsuit. Appellees informed Hamilton, Block, and Amman of the settlement offer. Amman stated that he could not settle because, unbeknownst to Hamilton, Block, and Appellees, he had sold his business \\\"including bee hive locations\\\" on January 5, 2009, to Whetstone Valley Honey, Inc. (Whetstone). Amman's sale undercut the defense's theory that Adee had no legally protected interest in the bee sites because the permissive use was revocable at any time and, thus, the bee sites could not be sold. Additionally, the sale valued each bee site at approximately $5,000; allowing Adee to precisely state his alleged damages. Surprised by the sale, Appel-lees explained to the defendants that it was a major problem for their defense.\\n[\\u00b6 9.] The next week on July 13, 2009, Judge John Flemmer held a pre-trial conference in the Underlying Lawsuit. There, Judge Flemmer denied Appellees' motions to exclude evidence of Amman's sale and for a continuance to add witnesses who could explain the sale. During the conference, Appellees recognized there may be a conflict of interest between defendants if evidence of the sale was presented stating: \\\"there may be an irretrievable conflict now between Mr. Amman and the other two Defendants.\\\"\\n[\\u00b6 10.] After the pre-trial conference, Appellees raised the possibility of settling. Adee's demand was a settlement with all defendants or none. Hamilton expressed reservations about settling, but, eventually; Hamilton, Block, and Amman signed a settlement agreement on July 17, 2009. Under the settlement terms, Hamilton, Block, Amman, and Whetstone agreed to transfer their interests in the bee sites to Adee and to send landowners letters requesting they register their sites with Adee. Additionally, Hamilton, Block, and Amman agreed to pay Adee $7,500 for honey delivery to the bee sites' landowners for the 2009 season.\\n[\\u00b6 11.] After the settlement, Hamilton hired a new attorney (John Wiles) and advised Appellees that he did not intend to comply with the agreement. Block also hired new counsel (Lee Schoenbeck) and refused to comply with the agreement. Adee moved to enforce the agreement, and during a hearing, Judge Flemmer rejected Hamilton and Block's argument that the settlement was unenforceable because of duress or fraud. As part of the court's findings of fact, Judge Flemmer specifically found that Hamilton had signed the conflict waiver form that Appellees claim they mailed to him. Hamilton did not appeal Judge Flemmer's decision.\\n[\\u00b6 12.] On September 29, 2010, Hamilton sued Appellees asserting three causes of action: legal malpractice, breach of fiduciary duty, and negligent infliction of emotional distress, all based on an alleged conflict of interest relating to Appellees' representation of co-defendants Hamilton, Block, and Amman in the Underlying Law suit. On May 31, 2012, Hamilton amended his complaint adding an allegation of legal malpractice for Appellees' alleged failure to properly investigate whether Hamilton had applicable insurance coverage.\\n[\\u00b6 13.] During discovery, Hamilton retained David Lillehaug, then a partner at a Minneapolis law firm, as an expert witness. As to the conflict of interest claim, Lillehaug opined that the seriousness of the conflict between Hamilton, Block, and Amman made the conflict of interest non-consentable, and, even if it were consenta-ble, Appellees breached the standard of care by failing to obtain informed consent from Hamilton. Also, Lillehaug opined that Appellees breached the standard of care by failing to withdraw or move for continuance when Adee offered to settle with only one defendant (Amman) when Amman's sale came to light. Lillehaug based his conflict of interest opinion on his practice under the Model Rules of Professional Conduct Rule 1.7, and in his interpretation, its similarity with South Dakota's Rules of Professional Conduct Rule 1.7. Lillehaug testified, in his opinion, that \\\"the standard of care with respect to conflict of interest . is essentially a national standard of care and that there is nothing unique about South Dakota in that regard.\\\" As to the insurance investigation claim, Lillehaug opined that Hamilton's statements that he had no insurance \\\"warranted] further inquiry and investigation.\\\" Lillehaug based his insurance investigation opinion on his career experience, which occurred almost entirely in Minnesota, and on information from other attorneys, including two attorneys licensed to practice in South Dakota (one based in Washington, D.C.).\\n[\\u00b6 14.] Appellees moved to strike Line-hang's opinions asserting he applied the wrong standard of care to both the conflicted representation and insurance investigation claims. Appellees also moved for summary judgment asserting Hamilton's failure to meet his initial burden of presenting evidence to support his claims. Hamilton agreed to dismiss his negligent infliction of emotional distress claim.\\n[\\u00b6 15.] On April 15, 2013, the circuit court, Judge Gene Paul Kean presiding, granted Appellee's motion to strike, stafl ing, Lillehaug \\\"lacked adequate foundation to testify about the applicable standard of conduct\\\" and his expert testimony would be \\\"irrelevant, unhelpful to the jury, and confusing to the jury because his opinions [were] based upon a national standard of conduct[J\\\" The circuit court also granted Appellees' motion for summary judgment. On the conflicted representation claim, the court found Hamilton failed to provide sufficient evidence of proximate cause and damages arising from the settlement. On both the conflicted representation and insurance investigation claim, the court found Hamilton failed to provide sufficient evidence of a breach of the standard of care because Hamilton failed to provide admissible expert testimony. The circuit court found that even if the expert testimony was admissible, Hamilton failed to provide admissible expert testimony that Appellees violated the standard of care applicable to attorneys in the same or similar locality as Roberts County, which the court determined to be a South Dakota statewide standard of conduct.\\n[\\u00b6 16.] Hamilton timely appeals, raising the following issues: (1) whether the circuit court erred in striking Lillehaug's expert opinion; (2) whether South Dakota should adopt a national standard of care for legal malpractice claims; (3) whether the circuit court erred in finding that collateral estoppel precluded litigation on the conflicted representation claim; (4) whether the circuit court improperly weighed the evidence as to the proximate cause of Hamilton's damages; and (5) whether the circuit court committed reversible error by denying a continuance after striking Lille-haug's testimony.\\nStandard of Review\\n[\\u00b6 17.] \\\"Summary judgment is an extreme remedy, . not intended as a substitute for a trial.\\\" Discover Bank v. Stanley, 2008 S.D. 111, \\u00b6 19, 757 N.W.2d 756, 762 (quoting Cont'l Grain Co. v. Heritage Bank, 1996 S.D. 61, \\u00b6 17, 548 N.W.2d 507, 511). Our review of summary judgment is well settled:\\nWe must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.\\nDe Smet Farm Mut. Ins. Co. of S.D. v. Busskohl, 2013 S.D. 52, \\u00b6 11, 834 N.W.2d 826, 831 (quoting Brandt v. Cnty. of Pennington, 2013 S.D. 22, \\u00b6 7, 827 N.W.2d 871, 874). We review the circuit court's findings of fact \\\"under the clearly erroneous standard.\\\" Peterson v. Issenhuth, 2014 S.D. 1, \\u00b6 15, 842 N.W.2d 351, 355 (quoting Eagle Ridge Estates Homeowners Ass'n, Inc. v. Anderson, 2013 S.D. 21, \\u00b6 12, 827 N.W.2d 859, 864). We review the circuit court's conclusions of law de novo. Id.\\n[\\u00b6 18.] Further, we review \\\"a circuit court's decision to admit or deny an expert's testimony under the abuse of discretion standard.\\\" Burley v. Kytec Innovative Sports Equip., Inc., 2007 S.D. 82, \\u00b6 12, 737 N.W.2d 397, 402. An abuse of discretion \\\"is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.\\\" Thurman v. CUNA Mut. Ins. Soc'y, 2013 S.D. 63, \\u00b6 11, 836 N.W.2d 611, 616.\\nAnalysis\\n[\\u00b6 19.] Whether the circuit court erred in striking Lillehaug's expert opinion, which was based upon a national standard of care.\\n[\\u00b6 20.] Hamilton contends that his expert's (Lillehaug's) testimony was reliable and any deficiency should go towards the weight, not admissibility, of his testimony. Appellees contend that Lille-haug based his testimony on an incorrect standard of care (national) and, thus, the circuit court appropriately excluded Lille-haug's testimony. These arguments touch on the first two issues raised by Hamilton; therefore, we will address those issues together.\\n[\\u00b6 21.] A negligence action in general requires four elements to be proven. As stated in Bernie v. Catholic Diocese of Sioux Falls, \\\"[i]n order to prevail in a suit based on negligence, a plaintiff must prove duty, breach of that duty, proximate and factual causation, and actual injury.\\\" 2012 S.D. 63, \\u00b6 15, 821 N.W.2d 232, 240 (quoting Highmark Fed. Credit Union v. Hunter, 2012 S.D. 37, \\u00b6 9, 814 N.W.2d 413, 415). Moreover, a successful claim against an attorney for legal malpractice requires proof of four elements: \\\"(1) the existence of an attorney-client relationship giving rise to a duty, (2) the attorney, either by an act or failure to act, breached that duty, (3) the attorney's breach of duty proximately caused injury to the client, and (4) the client sustained actual damage.\\\" Peterson, 2014 S.D. 1, \\u00b6 17, 842 N.W.2d at 355.\\n[\\u00b6 22.] \\\"[T]he existence of a duty is a question of law to be determined by the court\\\" and not the jury. Janis v. Nash Finch Co., 2010 S.D. 27, \\u00b6 8, 780 N.W.2d 497, 500 (quoting Small v. McKennan Hosp., 403 N.W.2d 410, 413 (S.D.1987)). \\\"The court determines, as a matter of law, the existence and scope or range of that duty.\\\" 57A Am.Jur.2d Negligence \\u00a7 78 (2014). Depending on the facts of the case, locality may or may not be one of the considerations of the court in determining duty as a matter of law. \\\"In terms of legal malpractice, as in tort law generally, the standard of care is the behavioral component of duty.\\\" Michael P. Ambrosio & Denis F. McLaughlin, The Use of Expert Witnesses in Establishing Liability in Legal Malpractice Cases, 61 Temp. L.Rev. 1351, 1357-58 (1988). \\\"Once the court determines that the law imposes a duty[,] . it must then determine what conduct the law requires to fulfill that legal duty.\\\" Id.\\n[T]he required standard of conduct is the exercise of professional care and skill. Although this general legal standard of care is established by law, the question of whether the legal standard of care has been fulfilled in a particular case is decided by the malpractice trier of fact. On this issue, the role of the expert witness is critical. Except in certain cases, it is an expert witness who must establish the particular standard of care, i.e., the particular level of professional conduct required to meet the legal standard of care, and whether an attorney's conduct conforms to this standard of care. This is because the degree of skill and care ordinarily exercised by lawyers in particular cases is generally beyond the common knowledge of laypersons.\\nId. (footnotes omitted).\\n[\\u00b6 23.] Consideration of the following criteria is required in determining the reasonableness of a lawyer's conduct: \\\"(1) the requisite skill and knowledge; (2) the degree of skill and knowledge to be possessed and exercised; (3) the effect of local considerations and custom; and (4) any special abilities possessed by the lawyer.\\\" 2 Ronald E. Mallen & Jeffrey M. Smith, with Allison D. Rhodes, Legal Malpractice \\u00a7 20:2 (2014 ed.). \\\"A translation of these considerations into a standard of care means that an attorney should exercise the skill and knowledge ordinarily possessed by attorneys under similar circumstances.\\\" Id. \\\"Considerations of locality, custom and special skills are treated as the 'similar circumstances.' \\\" Id.\\n[\\u00b6 24.] Analyzing the facts in this case, in regard to the conflicted representation claim, we note that Lillehaug wrote in his expert report that \\\"the applicable standard of care is consistent with, and well stated by, Rule 1.7.\\\" He noted how South Dakota's Rules of Professional Conduct Rule 1.7 is identical to the American Bar Association's Model Rules of Professional Conduct Rule 1.7. Then, during his deposition, Lil-lehaug testified that a national standard of care applied to legal ethics:\\nLillehaug: Okay. My opinion is that the standard of care with respect to conflict of interest, the issue relevant to us today, is essentially a national standard of care and that there is nothing unique about South Dakota in that regard. I believe I am familiar with the South Dakota standard of care with respect to conflict of interest, not just by reading the rule, but by discussions with South Dakota attorneys over the years, but I can't identify any particular attorneys or discussions.\\nAttorney: So let me understand this . I asked: Are you familiar with the standard of care for legal ethics in South Dakota? And what you're saying to me is that you believe, as is relevant to this case, that it's a national standard of care and it's not a local standard of care; is that correct?\\nLillehaug: Correct.\\n[\\u00b6 25.] In regard to the insurance investigation claim, Lillehaug identified the standard of care as: \\\"to take competent and diligent steps to identify and confirm liability coverage and tender the case to the carrier for defense and indemnity.\\\" Lillehaug testified his opinion was based on his experience and what he has learned from other more senior and experienced lawyers throughout the course of his career with respect to cases that involve insurance. He claimed that \\\"other lawyers\\\" included two members of the South Dakota Bar. Appellees' attorney asked:\\nAttorney: Are you familiar with the standard practice regarding investigating insurance coverage in South Dakota by South Dakota lawyers?\\nLillehaug: I'm not aware that there is anything different with respect to South Dakota as far as investigating insurance coverage than in any other state. Attorney: Have you done any investiga-\\ntion to determine whether there is any standard of care different in South Dakota than what you have had?\\nLillehaug: No.\\n[IT 26.] Lenius v. King is cited in the dissent as adopting the locality rule for defining the standard of care for attorneys in South Dakota. However, the issue that was appealed and decided in Lenius was the need for an expert on the standard of care. 294 N.W.2d 912, 913 (S.D.1980). Although the circuit court in Lenius gave a jury instruction that included locality, that part of the instruction was not appealed and was thus not analyzed by the Court, other than to state, \\\"[W]e are not persuaded that the instruction incorrectly states the law applicable in this case.\\\" Id. at 914. The Court went'on to note that the circuit court applied the same standard of care required of a lawyer that is required for the medical profession. Id. We have since adopted a national standard of care for specialists in medicine. See Mousseau v. Schwartz, 2008 S.D. 86, \\u00b6 17, 756 N.W.2d 345, 352 (citing Shamburger v. Behrens, 418 N.W.2d 299, 306 (S.D.1988), overruled on other grounds by Russo v. Takata Corp., 2009 S.D. 83, 774 N.W.2d 441).\\n[\\u00b627.] In describing a lawyer's duty, this Court in Lenius merely stated, in general:\\nIn a malpractice action the jury decides, from evidence presented at trial by other lawyers called as expert witnesses, whether a lawyer possessed and used the knowledge, skill, and care which the law demands of him. The opinions and testimony of such experts are indispensable in determining questions which are unfamiliar to ordinary witnesses and, within that field, the opinions of lay witnesses are not admissible.\\n294 N.W.2d at 914 (emphasis added).\\n[\\u00b6 28.] In applying a standard of care, locality can also be considered as a factor or special circumstance when determining whether an attorney has met the standard, in an appropriate case, such as where local rules, practices or customs are relevant to claimed breach of duty. However, in many cases locality is not relevant to the application of the standard of care. Therefore, the application of the locality rule is fact specific and will not be an issue in every case. See Dwain E. Fagerlund, Legal Malpractice: The Locality Rule and Other Limitations of the Standard of Care: Should Rural and Metropolitan Lawyers Be Held to the Same Standard of Care?, 64 N.D. L.Rev. 661, 686-87 (1988). For the two issues in this case \\u2014 first, conflict of interest in representing multiple clients and, second, investigation of insurance coverage \\u2014 there was no showing that locality was a relevant factor.\\n[\\u00b6 29.] In cases where locality may be relevant to the expectations a client has of his lawyer, we agree with the circuit court that a statewide focus would usually be appropriate. \\\"[A]n attorney's required level of skill and ability is not defined by the individual locality in which he practices. The state is the more logical and generally accepted territorial limitation on the standard of care.\\\" Moore v. Lubnau, 855 P.2d 1245, 1249 (Wyo.1993). However, there may be cases where it is not appropriate to apply a statewide standard, and we should not limit ourselves to only using a statewide approach.\\n[T]here is the possibility that limiting the standard of care to the state may foster an unacceptably low level of performance in certain areas of the law. It is plausible that in some areas of law, all the lawyers in a given state may lack the necessary skill, knowledge, and experience to handle a case properly. If such were the case, testimony by a lawyer practicing in that state as to the standard of care in a similar situation would serve to perpetuate an unacceptably low level of legal service.\\nFagerlund, supra \\u00b6 28, at 686-87.\\n[\\u00b6 30.] Although it is now unlikely that David Lillehaug is in a position to testify in this case due to his current position on the Minnesota Supreme Court, he was, at the time his testimony was offered, highly qualified as an attorney to testify to the standard of care for attorneys. His expert testimony, when read in its entirety, addressed the issues of the requisite obligations of an attorney. His testimony should not have been stricken because it failed to meet a locality standard, even when expanded by the circuit court to the statewide standard. Striking his testimony is illustrative of a glaring problem in applying the locality rule to all attorney malpractice actions, as there was no showing that locality unique to the jurisdiction had any impact on the standard of care in this case. His testimony met the requirements of SDCL 19-15-2, by assisting the trier of fact to understand a fact in issue. The striking of his testimony illustrates the trap in applying such a standard when locality is not relevant to attorneys' actions.\\n[\\u00b6 31.] In determining the standard of care to be applied in this case, the circuit court on remand should evaluate the case under the standard that a lawyer, who owes a duty of care, must exercise the competence and diligence normally exercised by a lawyer in similar circumstances. If applicable, the court must consider locality, custom, and special skills in determining \\\"similar circumstances.\\\" Mallen et al., supra \\u00b6 23, \\u00a7 20:2. The court should specifically identify the \\\"similar circumstances,\\\" if any, to be used by the jury in their determination whether the duty, as defined by the court, was breached. See id. The trier of fact must apply that standard of care and address breach of duty, proximate and factual causation, and actual injury.\\n[\\u00b6 32.] Whether the circuit court erred in finding collateral estoppel precluded litigation on the conflicted representation issue.\\n[\\u00b6 33.] Hamilton argues that Judge Flemmer's finding, during the Underlying Lawsuit, that Hamilton signed a conflict of interest waiver at the outset of Appellees' representation was clearly erroneous, and that the circuit court was incorrect when it determined collateral estoppel precluded relitigation of that issue. Ap-pellees argue that this issue is moot, or in the alternative, that the .'circuit court was correct when it determined collateral es-toppel precluded relitigation of that issue.\\n[\\u00b6 34.] The collateral estoppel doctrine \\\"bar[s] relitigation of an essential fact or issue involved in the earlier suit\\\" if a four-part test is satisfied: \\\"(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? (4) Did the party against whom the plea is asserted have a full and fair opportunity to litigate the issue in the prior adjudication?\\\" Estes v. Millea, 464 N.W.2d 616, 618 (S.D.1990). We review a circuit court's application of collateral es-toppel de novo. Am. Family Ins. Grp. v. Robnik, 2010 S.D. 69, \\u00b6 14, 787 N.W.2d 768, 774.\\n[\\u00b6 35.] In the Underlying Lawsuit after a formal hearing, Judge Flemmer found that Hamilton signed a conflict waiver at the outset of Appellees' representation. That finding was not objected to nor appealed. Applying the four-part collateral estoppel test, the circuit court found: \\\"(1) the issue was decided by Judge Flemmer in a former adjudication; (2) Judge Flem-mer entered a final judgment on the merits; (3) Hamilton previously litigated the issue and lost on the merits against Adee; (4) Hamilton had a full and fair opportunity to litigate the issue of conflicted representation in the prior adjudication.\\\" Ultimately, based on collateral estoppel, the court determined \\\"the finding that a conflict of [interest] waiver was signed appears settled.\\\"\\n[\\u00b6 36.] We agree that collateral estop-pel applies to the limited issue of whether Hamilton had signed a conflict of interest waiver. See Estes, 464 N.W.2d at 618 (barring \\\"relitigation of an essential fact or issue involved in the earlier suit\\\"). Collateral estoppel does not apply to the broader question of whether Appellees engaged in a nonconsentable, conflicted representation of Hamilton.\\n[\\u00b6 37.] Whether the circuit court improperly weighed evidence in granting summary judgment regarding proximate cause.\\n[\\u00b6 38.] In addition to basing summary judgment regarding conflicted representation on Hamilton's failure to present expert testimony as to the appropriate standard of care, the circuit court relied on Hamilton's purported failure to bear his burden of production regarding proximate cause.\\n[\\u00b6 39.] Proximate cause is an essential element of a legal malpractice claim. Peterson, 2014 S.D. 1, \\u00b6 17, 842 N.W.2d at 355-56 (citing Chem-Age Indus., Inc. v. Glover, 2002 S.D. 122, \\u00b6 24, 652 N.W.2d 756, 767). Likewise, proximate cause is an essential element of a breach of fiduciary duty claim. Chem-Age Indus., Inc., 2002 S.D. 122, \\u00b6 38, 652 N.W.2d at 772. Proximate cause is defined as \\\"a cause that produces a result in a natural and probable sequence and without which the result would not have occurred. Such cause need not be the only cause of a result. It may act in combination with other causes to produce a result.\\\" Peterson, 2014 S.D. 1, \\u00b6 17, 842 N.W.2d at 355-56 (quoting Estate of Gaspar v. Vogt, Brown & Merry, 2003 S.D. 126, \\u00b6 6, 670 N.W.2d 918, 921). This Court has further defined proximate cause as \\\"[a]n immediate cause and which, in natural or probable sequence, produced the injury complained of.... Furthermore, for proximate cause to exist, the harm suffered must be found to be a foreseeable consequence of the act complained of.\\\" Weiss v. Van Norman, 1997 S.D. 40, \\u00b6 13, 562 N.W.2d 113, 116-17 (quoting Musch v. H-D Coop., Inc., 487 N.W.2d 623, 624 (S.D.1992)). \\\"Causation is generally a question of fact for the jury except when there can be no difference of opinion in the interpretation of the facts.\\\" Id. Further, this Court has worded the attorney malpractice causal requirement in the negative:\\n[I]t is often said that the plaintiff can recover against the defendant-attorney only when it can be shown that the injury would not have occurred \\\"but for\\\" the negligence of the lawyer. Thus, the plaintiff must establish that the total or partial loss would not have occurred had it not been for some act or omission on the part of the attorney.\\nId. \\u00b6 12 (quoting Haberer v. Rice, 511 N.W.2d 279, 284 (S.D.1994)). The plaintiff can satisfy the causation element by recreating the underlying action \\u2014 known as a \\\"case within a case.\\\" Haberer, 511 N.W.2d at 285.\\n[\\u00b6 40.] Specifically, Hamilton argues he provided sufficient proximate cause evidence based on whether he would have been successful in the Underlying Lawsuit. He argues the following facts for support:\\n(1) Adee received a much better result through settlement than he would have at trial because he did not request any bee sites in the underlying matter; (2) Hamilton won at the administrative hearing based on the landowners having the right to decide who placed hives on their land; (3) Hamilton's damages are based on the loss of bee yards and [Ap-pellees] cannot claim this is speculative because it is the same theory they used to argue Adee would obtain a large jury verdict; (4) Sommers told Hamilton he had done nothing wrong and that Adee could provide no fact on which a jury could find against him; (5) Block and Amman testified in their depositions that Hamilton did nothing wrong; (6) there was no interest in settlement until after the motion hearing; and (7) there was no evidence that Hamilton misrepresented facts or that he aided in misrepresentations made by Amman and Block.\\nAppellees argue that no reasonable jury could have found that Hamilton would have received a better result in the Underlying Lawsuit but for Appellees' alleged negligence.\\n[\\u00b6 41.] Here, the circuit court found that Hamilton would not have prevailed in the Underlying Lawsuit, citing evidence to support a civil conspiracy claim against Hamilton, including joint participation in preparing the revocation and permission form, printing the listing sites, dividing respective territories by geographic region, establishing a territorial boundary line in obtaining sites \\\"sold\\\" to Adee, and traveling to Pierre to register the sites. The court stated there was evidence that Hamilton went to sites where he knew Adee had been, including where he actually saw Adee's hives, and received permission from the owner to place bee hives at that site.\\n[\\u00b6 42.] Hamilton argues that the circuit court improperly weighed that evidence. Upon review, we agree. The evidence mentioned by the court raises genuine questions of material fact. The circuit court conceded: \\\"Thus, Hamilton raises a question of fact as to whether he participated with Block and Amman in the alleged conspiracy.\\\" The circuit court then went on to weigh evidence and resolve disputed evidence to conclude that Hamilton participated in the alleged conspiracy and, therefore, would not have prevailed in the Underlying Lawsuit. The judge's function at the summary judgment stage, however, is not to weigh the evidence and determine the matters' truth. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). But, it appears that is what the court did here. Weighing the evidence to derive its conclusion that Hamilton would not have prevailed in the Underlying Lawsuit was reversible error.\\n[1143.] Alternatively, Hamilton argues he provided sufficient proximate cause evidence to show that fhe Underlying Lawsuit's settlement was unreasonable. Ap-pellees argue that the settlement was reasonable.\\n[\\u00b6 44.] When reviewing a settlement's reasonableness, we are aware of a lawyer's hindsight vulnerability. Settlement negotiations often require flexible and educated positions, by both parties, in arriving at an agreeable solution. That flexibility requires a flexible standard of care. A California appellate court aptly stated that \\\"[t]he standard should be whether the settlement is within the realm of reasonable conclusions, not whether the client could have received more or paid less.\\\" Filbin v. Fitzgerald, 211 Cal.App.4th 154, 149 Cal.Rptr.3d 422, 433 (2012) (internal quotation marks omitted). The court justified: \\\"No lawyer has the ability to obtain for each client the best possible compromise but only a reasonable one.\\\" Id. (internal quotation marks omitted).\\n[\\u00b6 45.] The circuit court determined that Hamilton provided insufficient evidence that Appellees' settlement was unreasonable, what would have been a reasonable settlement, and that Adee would have agreed to the settlement. See Stern Oil Co. v. Brown, 2012 S.D. 56, \\u00b6 8, 817 N.W.2d 395, 398 (\\\"[T]he party challenging summary judgment must substantiate his allegations with sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy.\\\" (quoting Tolle v. Lev, 2011 S.D. 65, \\u00b6 11, 804 N.W.2d 440, 444)). In his brief, Hamilton does not seem to dispute those findings. Instead, Hamilton argues he never should have been put in the position to settle. It is premature, however, to address this matter, as a remand may or may not substantiate Hamilton's claim.\\n[\\u00b6 46.] Hamilton also argues Appellees' failure to investigate insurance coverage was the proximate cause of Hamilton's damage. Appellees argue that Hamilton provided insufficient evidence to support his claim.\\n[\\u00b6 47.] On review, we note that the circuit court did not address this exact issue in its memorandum decision or order. In its order, the court based its decision to grant summary judgment on the insurance investigation claim on Hamilton's failure to provide sufficient expert testimony, not on a failure to provide sufficient evidence to support a finding of proximate cause. As no finding or conclusion was based on this argument, we do not address it.\\n[\\u00b6 48.] Whether the circuit court committed reversible error by denying a continuance after striking Lillehaug's testimony.\\n[\\u00b6 49.] Because of our ruling on the preceding issues, we need not reach this issue.\\nConclusion\\n[\\u00b6 50.] The circuit court did not err by finding collateral estoppel precluded litigation of the limited issue of whether Hamilton signed a conflict of interest waiver. However, the circuit court abused its discretion by striking Hamilton's expert's opinion, leaving Hamilton without the necessary expert opinion to establish the applicable standard of care. In addition, the circuit court inappropriately weighed evidence during summary judgment in its proximate cause determination on the conflicted representation issue. As a result, summary judgment was improper. We affirm in part, reverse in part, and remand consistent with this opinion.\\n[\\u00b6 51.] KONENKAMP, ZINTER and SEVERSON, Justices, concur.\\n[\\u00b6 52.] GILBERTSON, Chief Justice, dissents.\\n. \\\"Sold\\\" is a relative term because landowners may revoke permission to place bee hives on their property at any time for any reason.\\n. Neville testified that at the meeting, Hamilton said he did not have insurance. Hamilton does not dispute that fact, saying in his deposition that he had a different insurance company and did not realize he had coverage.\\n. Appellant's brief skews Sommers's testimony to say that he \\\"acknowledged on the record that a conflict of interest existed.\\\" But, review of the hearing transcript shows that Sommers stated a conflict of interest may occur if the evidence of the sale is admitted because defendants then may need to testify against each other.\\n. During the pendency of this litigation, David Lillehaug was appointed to the Minnesota Supreme Court. At the time attorney Lillehaug gave his opinions, he was not a member of the Minnesota Supreme Court and will be referred to as \\\"Lillehaug.\\\"\\n. The duty of an attorney providing professional services has been articulated in various ways:\\nCalifornia: \\\"The general rule with respect to the liability of an attorney for failure to properly perform his duties to his client is that the attorney, by accepting employment to give legal advice or to render other legal services, impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.\\\" Kirsch v. Duryea, 21 Cal.3d 303, 146 Cal.Rptr. 218, 578 P.2d 935, 938 (1978) (quoting Lucas v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685, 689 (1961)).\\nColorado: \\\"An attorney owes his client a duty 'to employ that degree of knowledge, skill, and judgment ordinarily possessed by members of the legal profession in carrying out the services for his client.'\\\" Hopp & Flesch, LLC v. Backstreet, 123 P.3d 1176, 1183 (Colo.2005).\\nIowa: An attorney breaches the duty of care owed to the client when the attorney fails to use \\\"such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the task which [is undertaken].\\\" Martinson Mfg. Co. v. Seery, 351 N.W.2d 772, 775 (Iowa 1984).\\nMinnesota: \\\"Attorneys have a duty 'to exercise that degree of care and skill that is reasonable under the circumstances, considering the nature of the undertaking.' \\\" Jerry's Enters. Inc., v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 817 (Minn.2006) (quoting Prawer v. Essling, 282 N.W.2d 493, 495 (Minn.1979)).\\nNebraska: \\\"In a legal malpractice action, the required standard of conduct is that the attorney exercise such skill, diligence, and knowledge as that commonly possessed by attorneys acting in similar circumstances.\\\" Young v. Govier & Milone, 286 Neb. 224, 835 N.W.2d 684, 694 (2013).\\nTwo states adjacent to South Dakota apply a statewide standard:\\nNorth Dakota: An attorney providing professional services has a duly to perform those services with \\\"that degree of skill, care, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in the State.\\\" Wastvedt v. Vaaler, 430 N.W.2d 561, 565 (N.D.1988).\\n. Wyoming: \\\"To succeed on a legal malpractice claim, a plaintiff must establish each of the following: (1) the existence of a duty; (2) the accepted standard of legal care; (3) that the attorney departed from the accepted standard of care; and, (4) that the attorney's conduct was the legal cause of the injuries suffered. Ordinarily, the question of whether the fourth element, causation, has been shown will not arise unless the plaintiff has established each of the other three elements. To establish a departure from, the standard of care, the plaintiff must show that the attorney failed to exercise the degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction.\\\" Gayhart v. Goody, 98 P.3d 164, 169 (Wyo.2004) (citations omitted).\\nRestatement (Third) of The Law Governing Lawyers provides that \\\"a lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances.\\\" Restatement (Third) of The Law Governing Lawyers \\u00a7 52 (2000).\\n. \\\"Consideration of the locality, such as local rules, practices or customs, can determine the propriety of the attorney's conduct. If expert testimony is required locality considerations may limit the geographical area from which expert witnesses can be selected.\\\" Mallen et al., supra \\u00b6 23, \\u00a7 20:5.\\n. \\\"The ability of the practitioner and the minimum knowledge required should not vary with geography. The rural practitioner should not be less careful, less able or less skillful than the urban attorney. The fact that a lower degree of care or less able practice may be prevalent in a particular local community should not dictate the standard of care.\\\" Moore v. Lubnau, 855 P.2d 1245, 1249 (Wyo.1993) (quoting 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, \\u00a7 15.5 (3d ed. 1989)).\\n. Lillehaug referenced the Model Rules of Professional Conduct. Although the Model Rules do not establish the standard of care for lawyers, a violation of a Model Rule can be evidence of a breach of a civil standard of conduct. See generally Mallen et al., supra \\u00b6 23, \\u00a7 20:7.\\n. As explained in Mallen et al., supra \\u00b6 23, \\u00a7 20:2:\\nFor example, when the only circumstance is that of a specialty, such as patent law, the standard could simply be described as \\\"the skill and knowledge ordinarily possessed by lawyers engaged in the practice of patent law.\\\" In other words, the court in instructing the jury should, whenever possible, incorporate and specifically identify the similar circumstances that affect the standard of care. When the \\\"circumstances\\\" are complicated or lengthy, for clarity it may be desirable to identify each operative circumstance in a separate instruction.\"}"
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+"{\"id\": \"6948890\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Mark SMITH, Defendant and Appellant\", \"name_abbreviation\": \"State v. Smith\", \"decision_date\": \"2014-03-12\", \"docket_number\": \"No. 26811\", \"first_page\": \"626\", \"last_page\": \"631\", \"citations\": \"844 N.W.2d 626\", \"volume\": \"844\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T01:37:21.030291+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 22.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Mark SMITH, Defendant and Appellant.\", \"head_matter\": \"2014 S.D. 15\\nSTATE of South Dakota, Plaintiff and Appellee, v. Mark SMITH, Defendant and Appellant.\\nNo. 26811.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Feb. 18, 2014.\\nDecided March 12, 2014.\\nMarty J. Jackley, Attorney General, Ellie J. Bailey, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.\\nTodd A. Love, Bettmann Hogue Law Firm, Prof. LLC, Rapid City, SD, for defendant and appellant.\", \"word_count\": \"2793\", \"char_count\": \"16986\", \"text\": \"GILBERTSON, Chief Justice.\\n[\\u00b6 1.] In this appeal, Defendant Mark Smith challenges the validity of a Part II Information filed against him that alleged Smith had previously been convicted of two DUI offenses. He claims the predicate convictions were invalid due to the courts' lack of subject matter jurisdiction. Smith also appeals the circuit court's denial of his request for a suspended imposition of sentence, claiming that the statute relied on by the court violated the constitutional prohibition against ex post facto legislation. We affirm.\\nFacts and Procedural History\\n[\\u00b6 2.] Smith was arrested in April 2012, suspected of driving under the influence of alcohol. A grand jury indicted Smith for driving while under the influence of alcohol in violation of SDCL 32-23-1(2), or alternatively, for driving while having .08% or more by weight of alcohol in his blood in violation of SDCL 32-23-1(1). The grand jury also indicted Smith for obstructing a public officer in violation of SDCL 22-11-6. In June 2012, a Part II Information was filed alleging that Smith had been convicted of two prior DUI offenses.\\n[\\u00b6 3.] In 2008, Smith was charged with alternative counts of driving or control of a vehicle while under the influence of alcohol or driving or control of a vehicle while having .08% or more by weight of alcohol in his blood. The record reflects that the prosecution in that case handed the information to the judge at the arraignment hearing. Smith pleaded guilty and was granted a suspended imposition of sentence.\\n[\\u00b6 4.] In 2009, Smith was again arrested and charged with the same alternative offenses, stemming from a separate driving incident. The record does not indicate how the information was filed with the court, but the judgment of conviction in that case states that an information was filed with the court on the same day as the arraignment. Smith pleaded guilty and was sentenced to 180 days in jail, with all jail time suspended on certain conditions.\\n[\\u00b6 5.] Smith moved to dismiss the 2012 Part II Information. He argued that the 2008 and 2009 convictions were invalid for enhancement purposes because the magistrate courts in each of the actions failed to obtain subject matter jurisdiction over the actions. Specifically, Smith argued that the judges' failure to strictly follow procedure meant the informations were not validly filed and the courts therefore lacked jurisdiction. Following a hearing on the matter, the circuit court denied the motion. In October 2012, the circuit court entered its findings of fact and conclusions of law. The circuit court found that in each prior conviction, Smith was fully advised of his constitutional and statutory rights and subsequently waived those rights. The court also concluded that the State properly filed an information with the court at the time of the hearings in both of the prior cases before Smith entered his pleas to the charged offenses.\\n[\\u00b6 6.] In February 2013, Smith pleaded guilty to driving or control of a motor vehicle while having .08% or more by weight of alcohol in his blood as charged in the 2012 indictment. Smith also admitted to the Part II Information. At the sentencing hearing, the circuit court took under consideration Smith's request to be granted a suspended imposition of sentence. The circuit court ultimately denied Smith's request, ruling that Smith was ineligible for a suspended imposition of sentence pursuant to SDCL 23A-27-13. Smith was sentenced to two years in the penitentiary, with the execution of sentence suspended on certain conditions.\\n[\\u00b6 7.] Smith appeals raising two issues:\\n1. Whether the circuit court erred in denying Smith's motion to dismiss the Part II Information based on the court's lack of jurisdiction in the underlying convictions.\\n2. Whether application of SDCL 23A-27-13 violated the constitutional prohibition against ex post facto legislation.\\nAnalysis and Decision\\n[\\u00b6 8.] 1. Whether the circuit court erred in denying Smith's motion to dismiss the Part II Information based on the court's lack of jurisdiction in the underlying convictions.\\n[\\u00b6 9.] Smith first argues that the circuit court erred in denying his motion to dismiss the Part II Information in this case. He asserts that the magistrate judges in both of his underlying convictions failed to \\\"note thereon the filing date\\\" of the information, as mandated by SDCL 15-6-5(e). Smith contends that this failure made the predicate convictions invalid for lack of jurisdiction. Accordingly, Smith asks this Court to reverse the circuit court decision and order the dismissal of the Part II Information. This ultimately raises an issue of jurisdiction, which we review de novo. State v. Koch, 2012 S.D. 59, \\u00b6 4, 818 N.W.2d 793, 794 (citing Sazama v. State ex rel. Muilenberg, 2007 S.D. 17, \\u00b6 9, 729 N.W.2d 335, 340).\\n[\\u00b6 10.] SDCL 23A-6-3 states in part: \\\"All informations shall be filed with the court having jurisdiction of the offense by the prosecuting attorney prior to arraignment.\\\" SDCL 15-6-5(e) further provides that:\\nThe filing of pleadings and other papers with the court as required by this chapter shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.\\nSmith asserts that the judges in both of his underlying convictions failed to personally \\\"note thereon the date\\\" before transmitting the informations to the office of the clerk. He argues that this failure robbed the court of subject matter jurisdiction. We disagree.\\n[\\u00b6 11.] In both State v. Arguello, 519 N.W.2d 326 (S.D.1994) and State v. Heftel, 513 N.W.2d 397 (S.D.1994), this Court examined the procedure in question and held that the failure of a judge to personally note the filing date on the information does not deprive the court of jurisdiction. As in this case, the informations in Arguel-lo and Heftel were given to the court during the course of the arraignment, but date-stamped by the clerk of courts at a later time. Arguello, 519 N.W.2d at 328; Heftel, 513 N.W.2d at 402. In both Heftel and Arguello, we distinguished the effect of failure to strictly comply with SDCL 15-6-5(e) with the failure of the State to file an information, which had been held to deprive the court of jurisdiction. Heftel, 513 N.W.2d at 402 (citation omitted); Arguello, 519 N.W.2d at 329 (citation omitted).\\n[\\u00b6 12.] We noted that \\\"[t]he purpose of an Indictment or Information is to apprise a defendant of the nature of the charges against him with sufficient specificity so that he may defend against the charges and may later plead the Indictment or Information as a bar to a subsequent charge.\\\" Arguello, 519 N.W.2d at 328 (citations omitted). Therefore, \\\"when the purpose of the act has been fulfilled and the defendant can claim 'no surprise, prejudice or disadvantage' \\\" we will not invalidate the jurisdiction of the court simply because the judge failed to personally note the date on the information. See id. (quoting Heftel, 513 N.W.2d at 402-03).\\n[\\u00b6 13.] Contrary to our holdings in Hef-tel and Arguello, Smith argues that the failure of the judge to personally note the time of filing with the court is a jurisdictional error, depriving the court of the ability to hear a case. Smith cites no authority to directly support this proposition. Instead, he cites to In re Gillespi, 397 N.W.2d 476 (S.D.1986), to argue that \\\"failure to comply with the procedural requirements robs the court of jurisdiction.\\\" Gil-lespi does not stand for the rule as so broadly stated by Smith, nor does Smith indicate in any way that Gillespi should be read to modify or overrule our decisions in Heftel and Arguello.\\n[\\u00b6 14.] Smith does not claim any other error in the lower courts' procedures. The settled law of this Court indicates that the claimed error does not rise to the level of jurisdictional error. We therefore conclude that the courts in Smith's predicate convictions assumed proper jurisdiction over the cases and that the circuit court did not err in denying Smith's motion to dismiss the Part II Information.\\n2. Whether application of SDCL 23A-27-13 violated the constitutional prohibition against ex post facto legislation.\\n[\\u00b6 15.] Smith next argues that the circuit court failed to exercise its discretion by denying his request for a suspended imposition of sentence. The circuit court held that Smith had already received a suspended imposition of sentence in 2008, and was therefore ineligible for another suspended imposition of sentence pursuant to SDCL 23A-27-13. Smith contends that the 2010 amendment to SDCL 23A-27-13, as applied in this case, violates the constitutional prohibition on ex post facto legislation. Smith asks this Court to remand the case with instructions to reconsider his request for a suspended imposition of sentence, without applying the 2010 amendment. This Court reviews de novo Smith's challenge to the constitutionality of SDCL 23A-27-13. See State v. Schmidt, 2012 S.D. 77, \\u00b6 12, 825 N.W.2d 889, 894 (citing State v. Tiegen, 2008 S.D. 6, \\u00b6 14, 744 N.W.2d 578, 585).\\n[\\u00b6 16.] The South Dakota Constitution, article VI, \\u00a7 12 provides that \\\"[n]o ex post facto law . shall be passed.\\\" We have explained this prohibition by stating:\\n[I]t is settled that criminal or penal legislation amending existing law may not change the legal consequences of acts completed before its effective date, a statute, however, is not rendered unconstitutional as an ex post facto law merely because it might operate on a fact or status preexisting the effective date of the legislation, as long as its punitive features apply only to acts committed after the statutory proscription becomes effective.\\nState v. Arguello, 2002 S.D. 157, \\u00b6 14, 655 N.W.2d 451, 454 (quoting Lewis v. Class, 1997 S.D. 67, \\u00b6 28, 565 N.W.2d 61, 65).\\n[\\u00b6 17.] In 2010, the Legislature amended SDCL 28A-27-13, adding \\\"No person who has previously been granted . a suspended imposition of sentence is eligible to be granted a second suspended imposition of sentence.\\\" See 2010 S.D. Sess. Laws ch. 128, \\u00a7 1. Smith argues that the 2010 amendment retroactively increased the punitive effect of his 2008 conviction by denying him the \\\"benefits and opportunities that were granted to him in 2008 by the magistrate court.\\\" He asserts that at the time of his 2008 conviction, he \\\"had the expectation that should he ever be convicted of a felony offense, he would be eligible for a suspended imposition of sentence.\\\" Accordingly, Smith argues that the 2010 amendment violates the ex post facto clause by adding consequences to his 2008 conviction that did not exist at the time of conviction. Smith's arguments are not convincing.\\n[\\u00b6 18.] The 2010 amendment did not alter Smith's suspended imposition of sentence in 2008. Rather, any punitive effect of the amendment only operated upon Smith's 2013 conviction, guiding the court's determination of the range of potential penalties for Smith's third arrest and conviction for driving under the influence. In that regard, the 2010 amendment has a similar effect as an amendment to a penalty-enhancement statute. We have rejected ex post facto challenges to amended penalty-enhancement statutes, because they simply \\\"appl[y] past convictions to determine punishment for a conviction that occurs down the road\\\" such that \\\"the punishment is for the then existing conviction and not prior convictions.\\\" See Arguello, 2002 S.D. 157, \\u00b6 11-15, 655 N.W.2d at 454; State v. Nilson, 364 N.W.2d 532, 533 (S.D.1985). Similarly, the 2010 amend ment in this case only changed the legal consequences of Smith's third DUI arrest and conviction, which happened after the enactment of the amendment. Therefore, the amendment is not retroactive in effect and does not implicate the ex post facto clause.\\n[\\u00b6 19.] Furthermore, Smith's assertion that the 2010 amendment \\\"directly denied Smith benefits and opportunities that were granted to him in 2008 by the magistrate court\\\" is misplaced. He argues that he had an \\\"expectation\\\" in his eligibility for leniency in future convictions. Smith misconstrues the nature of suspended imposition of sentencing. As we have stated, \\\"[t]he granting of suspended imposition of sentence is strictly a matter of grace and rests solely within the discretion of the court. It is not a matter of right or entitlement[.]\\\" State v. A.B., 2008 S.D. 117, \\u00b6 25, 758 N.W.2d 910, 917 (quoting State v. Divan, 2006 S.D. 105, \\u00b6 16, 724 N.W.2d 865, 872). Because leniency is discretionary, Smith cannot claim that any future \\\"benefits and opportunities\\\" were \\\"granted\\\" to him in 2008. It was always within the sole discretion of the court to deny a request for the suspended imposition of sentence. Thus, Smith's assertion that the amendment acted as an additional penalty by taking away these alleged \\\"benefits and opportunities\\\" is without support.\\n[\\u00b6 20.] The 2010 amendment to SDCL 23A-27-18 is prospective in effect. In this case, its only effect was upon the sentencing for Smith's third DUI arrest, which occurred after the amendment was enacted. Contrary to Smith's assertions, the amendment did not retroactively deprive Smith of any right allegedly granted to him in 2008. Accordingly, the circuit court's application of SDCL 23A-27-13 did not violate the constitutional prohibition against ex post facto legislation.\\nConclusion\\n[\\u00b6 21.] Based on the above stated reasons, we affirm.\\n[\\u00b6 22.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.\\n. In Gillespi, this Court found there was no personal jurisdiction over Beadle County or the Beadle County Treasurer where those parties were not properly served by the opposing party. 397 N.W.2d at 477-78. Gillespi is not applicable in this case, where Smith challenges the subject matter jurisdiction of the court. Failure to serve a party is materially distinguishable from the procedural issue at bar because failure to serve may raise issues of surprise, prejudice, and disadvantage. See Straub v. Lyman Land & Inv. Co., 31 S.D. 571, 141 N.W. 979, 980 (1913) (noting that proper service of process is \\\"reasonably calculated to bring notice of the commencement of the action home to the defendant.\\\"). We have specifically found the issue of unfair surprise is not present when a judge simply fails to note the date on the information before passing it to the clerk's office as mandated by SDCL 15-6-5(e). See Heftel, 513 N.W.2d at 402 (citing State v. Graycek, 368 N.W.2d 815, 818 (1985)); Arguello, 519 N.W.2d at 328 (citation omitted).\\n. As amended, SDCL 23A-27-13 provides: Upon receiving a verdict or plea of guilty for a misdemeanor or felony not punishable by death or life imprisonment by a person never before convicted of a crime which at the time of conviction thereof would constitute a felony in this state, a court having jurisdiction of the defendant, if satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may, without entering a judgment of guilt, and with the consent of the defendant, suspend the imposition of sentence and place the defendant on probation for such period and upon such terms and conditions as the court may deem best. No person who has previously been granted, whether in this state or any other, a suspended imposition of sentence is eligible to be granted a second suspended imposition of sentence. A court may revoke such suspension at any time during the probationary period and impose and execute sentence without diminishment or credit for any of the probationary period.\\n. In Arguello, the defendant was convicted of driving under the influence in 1993 and 1995, at which time the look-back period for sentencing enhancement was only five years. 2002 S.D. 157, \\u00b6 2-3, 655 N.W.2d at 452. In July 2001, the look-back period was extended to ten years. Id. \\u00b6 3. The defendant was convicted of a third DUI in August 2001, and the circuit court enhanced his penalty based on his 1993 and 1995 convictions. Id. \\u00b6 2. This court unanimously held that the punishment was \\\"imposed for the current offense only\\\" and therefore did not violate the prohibition on ex post facto legislation. Id. \\u00b6 12-13. Nilson involved a similar challenge when a habitual-offender statute allowed prior convictions to be used for five years, rather than four. 364 N.W.2d 532, 532-34. In Nilson, we stated that \\\"[subsequent offender provisions . do not undertake to punish again for the prior offenses.\\\" Id. at 533 (citation omitted).\"}"
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+"{\"id\": \"7067518\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. George J. CARUSO, Defendant and Appellant\", \"name_abbreviation\": \"State v. Caruso\", \"decision_date\": \"2012-09-12\", \"docket_number\": \"No. 26351\", \"first_page\": \"386\", \"last_page\": \"390\", \"citations\": \"821 N.W.2d 386\", \"volume\": \"821\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:54:30.663852+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 14.] GILBERTSON, Chief Justice, ZINTER, SEVERSON, and WILBUR, Justices, concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. George J. CARUSO, Defendant and Appellant.\", \"head_matter\": \"2012 S.D. 65\\nSTATE of South Dakota, Plaintiff and Appellee, v. George J. CARUSO, Defendant and Appellant.\\nNo. 26351.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Sept. 4, 2012.\\nDecided Sept. 12, 2012.\\nMarty J. Jackley, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.\\nAan P. Caplan, Henderson, NV, and Joseph E. Ellingson, Spearfish, SD, for defendant and appellant.\", \"word_count\": \"1654\", \"char_count\": \"10082\", \"text\": \"KONENKAMP, Justice.\\n[\\u00b6 1.] George J. Caruso was convicted of simple assault and sentenced to 360 days in the Meade County Jail. He sought bail pending appeal, in accord with SDCL 23A-43-16. The motion was denied. Caruso appeals. Under SDCL 15-26A-2, we granted Caruso's motion to suspend the rules and grant expedited proceedings.\\nBackground\\n[\\u00b6 2.] Caruso, a member of the Hells Angels Motorcycle Club, was convicted by a jury of simple assault. The conviction arose from an altercation between members of the Hells Angels and the Mongols Motorcycle Club during the 2011 Sturgis Motorcycle Rally. Caruso started the confrontation when, unprovoked, he threw a punch at a rival gang member who was passing by a motorcycle shop in Sturgis, South Dakota. Caruso's attack incited, in the trial court's words, a \\\"sprawling melee\\\" in the public streets and sidewalks. Despite immediate law enforcement action, two people were stabbed.\\n[1\\u00cd 3.] Caruso was arrested and eventually released from custody after posting a $1,000 cash bond. A jury found Caruso guilty of simple assault on January 26, 2012, and a presentence investigation was ordered. The trial court permitted Caruso to remain at liberty on his previously posted bond. On March 5, 2012, Caruso was' sentenced to 360 days in the Meade County Jail.\\n[\\u00b6 4.] Caruso filed a motion to permit bond pending appeal. A hearing was held on April 18, 2012, before Circuit Court Judge Eekrich who also presided over the January 2011 jury trial. The court took the matter under advisement and issued a memorandum decision denying Caruso's motion on April 26, 2012.\\n[\\u00b6 5.] In its decision, the court addressed each of the factors described in SDCL 23A-43-4. Specifically, the court found that Caruso resides and has a successful construction business in Massachusetts; he never resided in Sturgis nor had any familial ties there; he has \\\"substantive\\\" financial resources; and he does not have a mental condition. The court also found that Caruso's character references attested to his unqualifiedly high moral character, but, considering his behavior on August 10, 2011, the court reasoned that the references exaggerated and incompletely described Caruso's character. Further, the court found that Caruso attended all required court proceedings, but determined that he was more of a flight risk following sentencing because he \\\"now stands convicted and sentenced to 360 days in jail\\\" and \\\"would be less inclined to return to a foreign jurisdiction half a continent away from home.\\\" Based upon Caruso's unprovoked violence and indifference to the welfare of innocent bystanders, the court found that Caruso \\\"personifies danger to the community.\\\" In considering the weight of the evidence, the court noted that Caruso's \\\"sucker-punch\\\" and the violent aftermath were captured by a video camera and the court had no reason to dispute the jury's guilty verdict. Further, the court noted that Caruso has a prior felony conviction in federal court for conspiracy to distribute a controlled substance in 1993. Lastly, the court found that Caruso's appeal was neither frivolous nor for purposes of delay. Caruso appeals the denial of bond asserting that the trial court abused its discretion in denying his motion.\\nStandard of Review\\n[\\u00b6 6.] Under SDCL 23A-43-16, in deciding whether to release a defendant pending appeal, trial courts \\\"shall consider the criteria as set forth\\\" in both SDCL 23A-43-4 and SDCL 23A-43-16. Once the court has considered these criteria, it \\\"may\\\" release a defendant pending the outcome of an appeal. SDCL 23A-43-16. \\\"If the court in its discretion determines that the defendant is eligible for release, the court shall release the defendant in accordance with \\u00a7 23A-43-2 and 23A-43-3.\\\" Id. (emphasis added). Thus, we review a trial court's ultimate decision to grant or deny release under an abuse of discretion standard. State v. Janklow, 2004 S.D. 36, \\u00b6 6, 678 N.W.2d 189, 191. An abuse of discretion \\\"is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.\\\" State v. Lemler, 2009 S.D. 86, \\u00b6 40, 774 N.W.2d 272, 286 (citations omitted).\\nAnalysis and Decision\\n[\\u00b6 7.] Caruso contends that the trial court abused its discretion in refusing to release him pending appeal. . Specifically, he argues the trial court abused its discretion because he meets all the factors set forth in SDCL 23A-43-16 and the circumstances have not changed since the trial court released him on bail pending sentencing. SDCL 23A-43-16 provides, in part,\\nOn motion of a defendant who has been convicted of an offense, the court in which the conviction was had may release the defendant prior to the entry of judgment, pending the expiration of time for filing notice of appeal, and pending the outcome of the appeal. The court in determining the eligibility of the defendant for release shall consider the criteria as set forth in \\u00a7 23A-43-4, the risk that the defendant will flee or pose a danger to any person or to the community, and in the case of an appeal, whether the appeal is frivolous or taken for purposes of delay. If the court in its discretion determines that the defendant is eligible for release, the court shall release the defendant in accordance with \\u00a7 23A-43-2 and 23A-43-3.\\n[\\u00b6 8.] While the decision to grant or deny bail pending appeal is within the discretion of the trial court, \\\"when 'a state makes provisions for bail pending appeal, the Eighth and Fourteenth Amendments provide that it may not be denied arbitrarily or unreasonably.' \\\" Janklow, 2004 S.D. 36, \\u00b6 9, 678 N.W.2d at 192 (quoting Grooms v. Solem, 562 F.Supp. 512, 513 (D.S.D.1983) (citations omitted)). Thus, \\\"the failure of the trial judge to indicate on the record, at the time of his ruling, the factors he considered and facts upon which he relied, constitutes a violation . of the Fourteenth Amendment's due process clause.\\\" Id. \\u00b6 11 (citing U.S. ex rel. Bad Heart Bull v. Parkinson, 381 F.Supp. 985, 987 (D.S.D. 1974) (citations omitted)).\\n[\\u00b6 9.] \\\"The statutes and relevant case law do not require that findings be made on each factor, nor is there a requirement to balance the competing factors.\\\" Id. \\u00b6 14. Rather, a trial court's decision must be supported by \\\"findings of fact sufficient to pass the 'constitutional muster' alluded to in the Bad Heart Bull decisions.\\\" Id. \\u00b6 10. On appeal, this Court must \\\"determine from the record made whether . denial of bail is constitutionally permissible.\\\" Id.\\n[\\u00b6 10.] Caruso was convicted by a jury of simple assault. Once convicted, \\\"[Caruso was] no longer clothed with the presumption of innocence\\\" nor did he have an absolute right to bail pending appeal. Id. \\u00b6 14 (quoting State v. Means, 257 N.W.2d 595, 600 (S.D.1977)). Instead, as previously stated, the decision to grant bail pending appeal was within the trial court's discretion. In exercising its discretion, the trial court, in accordance with SDCL 23A-43-16, was required to consider the factors set forth in SDCL 23A-43-4, the risk that the defendant would flee or pose a risk to any person or to the community, and whether the appeal is frivolous or taken for purposes of delay. See id. \\u00b6 12.\\n[\\u00b6 11.] Here, in addition to the testimony presented at the bond hearing, the trial court had the opportunity to review Caruso's criminal history, the presentence investigation, as well as the trial evidence. As this Court stated in State v. Burgers and Janklow, \\\"[W]e may presume that the trial court judge was familiar with the file and the relevant facts.\\\" Janklow, 2004 S.D. 36, \\u00b6 14, 678 N.W.2d at 193 (citing State v. Burgers, 1999 S.D. 140, \\u00b6 15, 602 N.W.2d 277, 281). And, \\\"[h]aving presided over the trial, the trial court judge was in the best position to assess the weight of the evidence.\\\" Id.\\n[\\u00b6 12.] The trial court discussed the statutory factors, made findings of fact regarding each factor, and provided reasons for denying the motion. In particular, the court found that Caruso, a resident of Massachusetts, was more of a flight risk following sentencing because he was convicted and sentenced to 360 days in jail. Thus, the court reasoned, Caruso was no longer holding out hope for a lighter sentence and would be less inclined to appear for sentencing. The trial court's findings of fact are supported by the record and accordingly are not clearly erroneous. That the circumstances remained the same since the court released Caruso on bail pending imposition of sentence did not compel the court to continue release. The sentencing was \\\"enough to confer fresh discretion upon the trial court in considering bail pending appeal.\\\" State v. Aikens, 135 N.H. 569, 607 A.2d 948, 949 (1992). Therefore, the trial court did not abuse its discretion in refusing bail pending the outcome of the appeal.\\n[\\u00b6 13.] Affirmed.\\n[\\u00b6 14.] GILBERTSON, Chief Justice, ZINTER, SEVERSON, and WILBUR, Justices, concur.\\n. The motorcycle shop, Sturgis Choppers, is one block from the Meade County Courthouse. Defendant Caruso is part-owner of the shop.\\n. See Bad Heart Bull, 381 F.Supp. at 987.\\n. SDCL 23A-43-4 includes the following criteria:\\n[T]he nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings, and the risk that he will flee or pose a danger to any person or to the community.\"}"
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+"{\"id\": \"7073940\", \"name\": \"Rose PRAY, Plaintiff and Appellant, v. CITY OF FLANDREAU, Defendant and Appellee\", \"name_abbreviation\": \"Pray v. City of Flandreau\", \"decision_date\": \"2011-07-27\", \"docket_number\": \"No. 25824\", \"first_page\": \"451\", \"last_page\": \"456\", \"citations\": \"801 N.W.2d 451\", \"volume\": \"801\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:42:51.794246+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 18.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, and MEIERHENRY, Retired Justice, concur.\", \"parties\": \"Rose PRAY, Plaintiff and Appellant, v. CITY OF FLANDREAU, Defendant and Appellee.\", \"head_matter\": \"2011 S.D. 43\\nRose PRAY, Plaintiff and Appellant, v. CITY OF FLANDREAU, Defendant and Appellee.\\nNo. 25824.\\nSupreme Court of South Dakota.\\nConsidered on Briefs May 23, 2011.\\nDecided July 27, 2011.\\nJohn A. Shaeffer of Shaeffer Law Office, Flandreau, South Dakota, Attorneys for plaintiff and appellant.\\nGary P. Thimsen, Adam R. Hoier of Woods, Fuller, Shultz & Smith, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.\", \"word_count\": \"2387\", \"char_count\": \"13839\", \"text\": \"KONENKAMP, Justice.\\n[\\u00b6 1.] Plaintiff fell and was injured when a Rottweiler broke loose from its owner and dashed across the street toward her. She brought an action for damages against the dog owner and the city. As against the city, she asserted that it knew the dog was dangerous and failed to enforce its vicious animal ordinance. In granting summary judgment for the city, the circuit court ruled that the city owed plaintiff no special duty. We affirm because plaintiff has failed to establish that the city acted to protect plaintiff individually or as a member of a specific class, induced her specific reliance on the city's protection, or failed to use due care to avoid increasing the risk of harm to her.\\nBackground\\n[\\u00b6 2.] On December 12, 2009, Rose Pray was walking her dog on a sidewalk in the City of Flandreau across the street from Willis Whiteskunk's home. As she walked by, Whiteskunk and his girlfriend, Kristen Stearns, were outside hanging Christmas lights on Whiteskunk's home. Whiteskunk was on a ladder, and Stearns was holding Whiteskunk's Rottweiler on a leash. Suddenly, the Rottweiler broke free and bolted across the street toward Pray and her dog. Whiteskunk yelled for his dog to return, and it did, but not before Pray fell, either because of Whiteskunk's dog or because she tripped over her dog's leash. Whiteskunk ran over to Pray and asked if she was alright. Pray was crying: she had hurt her knee and could not stand on her own. Whiteskunk drove her to the hospital. She had a broken knee.\\n[\\u00b6 3.] Pray brought a negligence suit against the city and Whites-kunk. Pray alleged that the city knew Whiteskunk's dog was dangerous and negligently failed to enforce its vicious animal ordinance. In arguing for summary judgment, the city contended that it owed no duty to Pray, relying on Tipton v. Town of Tabor (Tipton I), 538 N.W.2d 783, 785 (S.D.1995). One generally owes no duty to control the conduct of third persons. Id. But in Tipton I, this Court held that \\\"a government entity is liable for failure to enforce its laws . when it assumes a special, rather than a public, duty.\\\" Id. (citing Hagen v. City of Sioux Falls, 464 N.W.2d 396, 399 (S.D.1990)). To determine whether a special duty exists, four elements must be considered: (1) whether the city had actual knowledge of the dangerous condition; (2) whether persons reasonably relied on the city's representations and conduct; (3) whether an ordinance or statute is clearly for the protection of a particular class of persons rather than the public as a whole; and (4) whether the city failed to use due care to avoid increasing the risk of harm. Id. at 787 (citing Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806-07 (Minn.1979)).\\n[\\u00b6 4.] At a hearing on the city's motion for summary judgment, Pray agreed that Tipton I applied, but argued that summary judgment was inappropriate because there were material issues of fact in dispute on whether the city had actual knowledge that the dog was vicious, on whether she relied on the city's ordinance to protect her from vicious animals, and on whether the city increased the risk of harm to Pray when it failed to ensure that Whiteskunk complied with City of Flan-dreau Ordinance, Title 6, chapter 6.4 (Ordinance 6.4). In opposition to the city's motion for summary judgment, Pray presented evidence that eight months before her injury, on April 14, 2009, Whiteskunk's dog bit a city employee while the employee attempted to read the gas meter at Whi-teskunk's home. After the attack, the city declared Whiteskunk's dog a vicious animal as described in Ordinance 6.4. The city issued Whiteskunk a letter informing him of the designation and advising him of the restrictions and requirements applicable to owning a vicious animal. In particular, Whiteskunk was informed:\\nIf the animal is kept indoors, the animal must be under the control of a person over 18 years of age.\\nIf the animal is outdoors and attended, the animal shall be muzzled, on a leash no longer than six (6) feet and under the control of a person over 18 years of age. If the animal is outdoors and unattended, the animal must be locked in an escape proof kennel approved by the Chief of Police or his representative.\\nThe fencing material used in the kennel must not have openings with a diameter of more than two (2) inches, and in the case of a wooden fence the gaps shall not be more than two (2) inches;\\nAny gates within such pen or structure shall be lockable and of such design to prevent the entry of children or the escape of the animal;\\nThe required pen or structure shall have a top and bottom with both secured to the sides;\\nThe pen or structure shall protect the animal from the elements;\\nThe pen or structure may be required to have double exterior walls to prevent the insertion of fingers, hands or other objects within reach of the animal; and\\nA sign denoting a vicious animal shall be displayed on the kennel or enclosure and on a place visible from the sidewalk or road adjacent to the property where the animal is kept.\\nThe owner shall carry a minimum of $100,000 liability insurance covering the medical and/or veterinary costs resulting from the vicious actions or any other damage the animal may do or cause to be done. Proof of such insurance shall be filed with the Chief of Police.\\n[\\u00b6 5.] Pray also offered evidence that sometime after April 28, 2009, and after Whiteskunk received this letter, Michael Eisenbarth, the Chief of Police at that time, went to Whiteskunk's residence to ensure compliance. But, according to Pray, the city failed to verify that Whites-kunk had a vicious animal sign displayed in an area visible from the sidewalk or adjacent road.\\n[\\u00b6 6.] At the conclusion of the hearing, the circuit court granted the city's motion for summary judgment. In its oral ruling, it remarked that there were issues of fact on whether the City had actual knowledge, whether there was reliance, and whether the harm was aggravated. But because Ordinance 6.4 is clearly for the protection of the public as a whole, the court concluded that Pray failed to establish an issue of fact on whether the ordinance was enacted for the protection of a particular class. Because she could not meet all four Tipton I elements the court granted summary judgment to the city. Pray appeals.\\nAnalysis and Decision\\n[\\u00b67.] Pray asserts that she need not establish all four Tipton I elements to prove that the city owed her a special duty. Because the circuit court found issues of fact on three of the four elements, she argues that summary judgment was improper. The city concedes that Pray was not required to establish an issue of fact on each of the four elements. But it maintains that there are no issues of fact on any element, thus the city undertook no special duty with respect to Pray.\\n[\\u00b6 8.] In Tipton I, we wrote that \\\"[sjtrong evidence concerning any combination of these factors may be sufficient to impose liability on a government entity.\\\" 538 N.W.2d at 787 (citation omitted). Then, in Tipton II, we reiterated that all four elements need not necessarily be met for a special duty to exist. Tipton v. Town of Tabor (Tipton II), 1997 S.D. 96, \\u00b6 28, 567 N.W.2d 351, 363-64 (quoting Andrade v. Ellefson, 391 N.W.2d 836, 841 (Minn. 1986)). Therefore, the circuit court erred in ruling that Pray needed to prove every element. Yet the court's error will not preclude us from determining whether there is any legal reason to justify summary judgment. See Strassburg v. Citizens State Bank, 1998 S.D. 72, \\u00b6 5, 581 N.W.2d 510, 513 (citation omitted).\\n[\\u00b6 9.] \\\"Summary judgment is usually inappropriate in a negligence case, except when no duty exists as a matter of law.\\\" McGuire v. Curry, 2009 S.D. 40, \\u00b6 7, 766 N.W.2d 501, 505 (citing Bordeaux v. Shannon Cnty. Sch., 2005 S.D. 117, \\u00b6 11, 707 N.W.2d 123, 126 (citation omitted)). The circuit court's conclusion that no duty was owed to a plaintiff is a question of law, reviewed de novo. Id.; Tipton I, 538 N.W.2d at 785. To establish that the city owed Pray a special duty, she must show some duty owed to her as an individual or as a member of a class, rather than to the public as a whole. See Tipton II, 1997 S.D. 96, \\u00b6 13, 567 N.W.2d at 358. It is insufficient that the city enacted a vicious animal ordinance. \\\" '[E]nactments and regulations are intended only for the purpose of securing to individuals the enjoyment of rights and privileges to which they are entitled as members of the public, rather than for the purpose of protecting any individual from harm.' \\\" Id. \\u00b6 10 (quoting Restatement (Second) of Torts \\u00a7 288 cmt. b (1965)). Nonetheless, in Tip-ton I, we rejected a bright-line rule that a special duty can only exist if \\\"there is language in a statute or ordinance[,] which shows an intent to protect a particular and circumscribed class of persons.\\\" 538 N.W.2d at 787 (overruling Hagen v. City of Sioux Falls, 464 N.W.2d 396 (S.D.1990)). Had we not rejected such a rule, Pray's claim would fail, for the city's vicious animal ordinance, by its plain language, is not intended to protect a particular or circumscribed class of persons.\\n[\\u00b6 10.] An enactment's words being just one consideration, however, we look to the additional relevant elements identified in Tipton I: actual knowledge of a dangerous condition, reasonable reliance, and failure to avoid increasing the risk of harm. Id. These additional elements assist courts in deciding whether a special duty has been assumed, and whether a city \\\"has by its conduct already made a policy decision to deploy its resources to protect [an individual or class of individuals].\\\" Tipton II, 1997 S.D. 96, \\u00b6 13, 567 N.W.2d at 358.\\n[\\u00b6 11.] Because we view the evidence in a light most favorable to the nonmoving party, we must conclude that the city had actual knowledge of the dog's dangerousness. Indeed, the evidence is substantial. Before April 14, 2001, several postal workers reported Whiteskunk's dog to the city. Postal workers Martin Parsley and Erika Leacraft testified by deposition about their encounters with Whiteskunk's Rottweiler, and its dangerous propensities. Most significant, on April 28, 2009, the city declared the Rottweiler to be vicious after it bit a city employee.\\n[\\u00b6 12.] In Tipton II, we held that evidence of actual knowledge alone is insufficient to establish that a city undertook a special or private duty. See 1997 S.D. 96, \\u00b6 28, 567 N.W.2d at 364. To conclude otherwise would impose liability against a government entity for simple negligence, and would \\\"judicially intrude[] upon resource allocation decisions belonging to policy makers.\\\" Id. Therefore, \\\"[o]nly when actual knowledge is coupled with one or more of the other factors, can we uphold both the spirit and substance of the private duty exception.\\\" Id.\\n[\\u00b6 13.] On the remaining elements\\u2014 reasonable reliance on representations and conduct of the city, and evidence of a failure by the city to use due care to avoid increasing the risk of harm \\u2014 there are no issues of fact in dispute. Pray presented no evidence that she relied on specific actions or representations of the city, which caused her to forego other alternatives of protecting herself. See Tipton II, 1997 S.D. 96, \\u00b6 32-33, 567 N.W.2d at 365. Nor has she presented any evidence that she was aware the city declared Whites-kunk's dog to be vicious.\\n[\\u00b6 14.] Nonetheless, Pray avers that the city failed to use due care to avoid increasing the risk of harm to her because the city failed to ensure that Whiteskunk complied with the requirements of Ordinance 6.4 after the city specifically acted and declared Whiteskunk's dog to be vicious. The city's failure, according to Pray, increased the risk of harm to her because if Whiteskunk had a sign warning that a vicious dog was on the premises she would have walked a different route. This element, however, does not ask whether the city simply failed to act, but whether the city failed to use due care to avoid increasing the risk of harm. The city has to be more than negligent. A failure to diminish potential harm is not enough. The city's actions must either cause the harm itself or have exposed Pray to new or greater risks, leaving Pray in a worse position than she would have been before the city's actions. See id. \\u00b6 38.\\n[\\u00b6 15.] While there is evidence that the city failed to ensure Whiteskunk's full compliance with Ordinance 6.4, there is no evidence that Pray was in a worse position after the city's action than she would have been had the city not acted. Before the city acted, Whiteskunk had no restrictions or requirements for his vicious dog. There was no requirement that it be on a leash, contained in an escape-proof kennel, or controlled by a person over 18 years old. Because there is no evidence that the official action taken by the city caused the harm itself or exposed Pray to new or greater risks, leaving her in a worse position than she was in before the city took action, Pray has failed to establish an issue of fact in dispute on this element.\\n[\\u00b6 16.] Although the circuit court incorrectly ruled that all four Tipton I elements must be established to prove a special duty, we can declare as a matter of law that Pray has not met the legal requirements to show such a duty.\\n[\\u00b6 17.] Affirmed.\\n[\\u00b6 18.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, and MEIERHENRY, Retired Justice, concur.\"}"
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+"{\"id\": \"773656\", \"name\": \"FRITSCHEL v. GROSSHAUSER et ux.\", \"name_abbreviation\": \"Fritschel v. Grosshauser\", \"decision_date\": \"1909-12-01\", \"docket_number\": \"\", \"first_page\": \"129\", \"last_page\": \"136\", \"citations\": \"24 S.D. 129\", \"volume\": \"24\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:52:22.943955+00:00\", \"provenance\": \"CAP\", \"judges\": \"CORSON and McCOY, JJ., dissent.\", \"parties\": \"FRITSCHEL v. GROSSHAUSER et ux.\", \"head_matter\": \"FRITSCHEL v. GROSSHAUSER et ux.\\nPlaintiff contracted with a husband to build a house. upon property, the title to which was in the wife. . He relied in no manner on the property as security, but contracted for collateral security for the entire amount of the contract. The husband failed to comply with the terms of the original contract, but under a supplemental contract deposited the money as agreed in the original contract to the order of plaintiff\\u2019s bondsmen. Held, in an action against both husband and wife to enforce a mechanic\\u2019s lien against the property and to recover a money judgment against the defendants, that, in the absence of a showing that the wife knew of the husband\\u2019s failure to put up the collateral security, there was no implied agreement on her part to ,pay for the building because she knew of its erection; it being presumed that she supposed it was being constructed under the written contract, and there could be no personal judgment against the wife.\\nThere being no contract express or implied with the wife, and the title to the property being in her, plaintiff was not entitled to a mechanic\\u2019s lien against the property.\\nHad the title been in the husband, the contractor could not claim a mechanic\\u2019s lien, since prior to the time of filing the lien he had received collateral security; the deposit of the money subject to the order of -the contractor\\u2019s bonds-men in accordance with the condition of the supplemental contract being security for the payment of -the contract price of the house. /\\nWhere findings of the trial court are \\u2022 based upon conflicting evidence, they will not be disturbed on appeal.\\n(Opinion filed, Dec. 1, 1909.)\\nAppeal from Circuit Court, Mead County. Hon. W. G. Ricii, Judge.\\nAction by Henry E. Fritschel against Emil Grosshauser and wife. Judgment for plaintiff, and defendants appeal. Modified in part, and, as modified,\\naffirmed.\\nWesley A. Stuart, for appellants. Polk & McNenny, for respondent.\", \"word_count\": \"2809\", \"char_count\": \"16957\", \"text\": \"WHITING, J.\\nThis case was tried to the court without a jury, and the court, having refused the findings and conclusions asked for by the defendants, made and entered findings and. conclusions favorable to the plaintiff, and rendered its judgment based thereon. The defendants moved for a new trial, and,'this motion having been denied, they have appealed to this court from said judgment and order denying a new trial.\\nThe action is one wherein the plaintiff, claiming to have constructed a dwelling house for the defendants, and having filed a mechanic's lien against said house and land on which 'same was situated, is seeking to enforce such mechanic's lien, as well as recover a money judgment against the defendants. The findings of the court are in brief as follows: That the plaintiff and defendants on or .about October 15, 1906, entered into a building agreement for the construction of the dwelling house in question on land which was at that and all times since the property of the defendant Della Grosshauser. That between October 18, 1906, and the early part of December, plaintiff, under his agreement and with full knowledge and consent of both defendants, performed necessary labor and furnished material for the construction of said building of the actual and reasonable value of $1,273.56. That defendant paid plaintiff on account of said work and material $400 and no more. That early in December, 1906, plaintiff discontinued work on building, and thereafter defendants paid out on account of materials furnished by plaintiff the further sum of $135.10. That on, January 22, 1907, plaintiff filed mechanic's lien against land and building and expended $5.50 therefor. That there remained as due plaintiff $726.90, 'with interest at 7 per cent, from' January 22,1907. That, immediately after the preliminary agreement between plaintiff and defendants, the plaintiff and Emil Grosshauser entered into a written contract, -the parte thereof material to this case being as follows: Exhibit' A: \\\"Building Contract. This agreement, made and entered into this 18th day of October, 1906, by and between H. E. Eritschel, of the county of Meade and state of South Dakota, party of the first part, and Emil Grosshauser, of .the county of Meade and state of South Dakota, party of the second part, witnesseth: That for and in considera tion of the sum of twelve hundred and twenty-five ($1,225) dollars, to be paid as hereinafter specified, by the party of the second part, the party of the first part hereby agrees to furnish all material and labor, and construct a dwelling house on the lots now owned by the party of the second part in Sturgis, South Dakota. Said dwelling house to be constructed according to and patterned after design No. 38 in the Radford Ideal Homes plan book on page twenty-one (21) with the exception hereinafter specified, and according to the specifications hereinafter contained, to wit:\\nSecond party agrees to pay for .the labor, material and construction of said dwelling house the sum of twelve, hundred and twenty-five ($1,225) dollars, to be deposited in the Meade County Bank of Sturgis, South Dakota, by the said second party upon the execution of this agreement, subject to the check of said first party for labor and material, according as the construction of said dwelling house progresses. Said first party to fiurnish bonds in the sum of twelve hundred and twenty-five ($1,225) dollars as security for the faithful performance of this contract, said bonds to he exonerated upon the acceptance of said dwelling house by second party. It is further agreed that this contract does not include wiring, plumbing or painting of said dwelling house. Executed in duplicate by the parties hereto the day and year above written. H. E. Eritschel. Emil Grosshauser. Witnessed by M. R. Robbins, Percy H. Helm.\\\" That Emil Grosshauser had no interest in premises except as husband of' Della Grosshauser, and plaintiff did not know that Emil Grosshauser did not own said propery. That Emil Grosshauser never complied with any of the terms of the written contract. That about October 30, 1906, Emil Grosshauser and plaintiff entered into a supplementary contract in words and figures as follows: Exhibit B: \\\"Whereas Henry Eritschel of Sturgis City, S: D., and Emil Grosshauser, of the same place, have heretofore entered into a building contract whereby said Eritschel was to erect a certain building for said Grosshauser, and whereas, disputes have occurred between said parties as to the time and terms of'payments to be made by said Grosshauser, and to settle said disputes: It is hereby agreed by and between said parties that on the 30th day of November, 1906, or as soon there after as convenient, Henrj? Fruth,'one of the bondsmen for said Fritschel, on said building contract, shall and will estimate the proportion of the work done and material on hand by said Fritschel on and for said building, and allow him therefor such sum as he thinks proper, having in mind the amount of work to be done, material furnished to complete the building, which said sum said Grosshauser is to consent to, and endorse bis consent thereon and pay, and it is further agreed that hereafter as the work on said building progresses the said Fritchel shall demand of said Fruth a further estimate of the work done and material on hand, and Fruth is to allow and pay the same out of the money belonging to said Grosshauser in the Commercial National Bank; and when the building is completed according to the terms of said contract, said Fruth is -to cause the same to- be paid out of the money of Grosshauser put in his name for that purpose, at or before the execution of this instrument, and said Henry Fruth is hereby authorized to make payments from said money at any time he feels justified in doing so, for the purchase of material. This agreement does not qualify any of the agreements heretofore entered into by said parties in relation to this matter, hut is in addition thereto. H. E: Fritschel. E. T. Grosshauser. Dated the 30th day of November, 3906. M. McMahon, Witness.\\\" That at the time of making this last contract Emil Grosshauser had paid plaintiff nothing on- said building, but agreed to pay over the money if this supplementary contract was executed. That Emil Grosshauser never secured the estimate to be made as provided in said supplementary contract, and Henry Fruth, therein named refused to make the estimates when requested by plaintiff to make them, and never made any estimates at all. That the building was not constructed according to the plans provided for in the original written contract, but was built on a larger scale of different materials and on different lines, clearly increasing its cost, which changes were made at the request and direction of both defendants. That Della Grosshauser was frequently at the building and directed the work. That plaintiff ceased work on the building at direction of Emil Grosshauser, and that other parties were employed to finish the construction of said building. That the premises were not the homestead of either of the defendants.\\nAmong the findings requested by the defendants were findings to the following effect: That plaintiff and Emil Grosshauser on October 18, 1906, entered into the written contract above quoted; that there' was never any contract between plaintiff and defendant Della Grosshauser in relation to such building; that soon after October 18th the plaintiff entered upon the performance of such written contract, and continued thereunder until about December 3, 1906; that on November 28, 1906, the plaintiff, with Henry Fruth and another, as sureties, executed and delivered to defendant Emil Grosshauser an indemnity bond conditioned to save Grosshauser harmless from mechanic's lien against the building; that at the time the supplemental contract, above quoted, was executed, the house was inclosed sheathed, roofed, and partitions placed therein and partly lathed; that no changes whatever were made in the plan of said building after the execution of the supplemental contract of November 30th; that, upon the execution of such supplemental contract, Emil Grosshauser immediately placed under the control of Henry Eruth the full sum of $1,225, under the provisions of such supplemental contract; that plaintiff abandoned the construction of such building, and, though requested to continue the same by his bondsmen and Emil Grosshauser, plaintiff refused to do so; and that thereafter the said bondsmen completed the building paying in construction thereof the full sum of $1,225, including the $400 paid plaintiff. Some other findings are requested by defendants but they are not material for the purposes of this opinion.\\nNo useful purpose would be subserved by a recitation in detail of the evidence herein, but the following facts seem to us to conclusively appear from the \\\"testimony herein: Some time in September, 1906, there was some preliminary talk between plaintiff and defendants regarding the erection of the building, but no contract was entered into until the written contract of October 18th, and the construction of said building was under such written contract (it will thus' be seen that there was never airy contract between plaintiff and Della Grosshauser). Emil Grosshauser wholly failed to make the deposit of money as agreed in the contract of October 18th. Changes were made in the plans of said building by mutual agreement of the parties, which changes were all agreed upon and made prior to November 30th. There arising a dispute between the parties -in regard to payments, the supplemental contract was entered into for the purpose of settling all farther controversy, and immediately on execution of the same Emil Grosshauser deposited the $1,225 to the order of Fruth in the bank that was agreed upon, and soon thereafter the $400 was paid plaintiff by Fruth. That, after plaintiff quit the job, he was requested by his bondsmen to complete the same and refused to do so, whereupon the bondsmen completed the building, and in doing so necessarily used the balance of the $1,225. The evidence is conflicting as to whether plaintiff was justified in quitting work, and as to whether the changes in the plan of said building increased the cost thereof.\\nIt is clear from the above that the court should have made some of the above findings, asked for by the defendants. The question therefore arises whether, under such changes in the findings, the conclusions and judgment would have been different. The court concluded that plaintiff was entitled to a personal judgment for the $723.96 and interest against both defendants and to a lien against the property. Appellants contend, first that the plaintiff was not entitled to any personal judgment against either of the defendants; second, that, if entitled to a personal judgment against Emil Grosshauser, plaintiff would not be entitled to one against Della Grosshauser; and third, that having taken collateral .security, plaintiff was not entitled to a mechanic's lien. It is clear that the trial court, in order to find both defendants liable, must have found that the contract under which this building was erected was made with both defendants, or else that, so far as Della Grosshauser was concerned, there was an implied liability. We think that the court was in error in either of these conclusions. The preliminary conversation and agreement never took the form of a contract and was never acted upon as such, and whatever talk was had in September was wholly merged in the written contract of October 18th, which was between plaintiff and Emil Gross hauer only. In passing, we wish to note that there was absolutely no evidence to support the finding that the plaintiff did not know that the title to the premises was in Della Grosshauser. There was no finding, nor was there any evidence, upon the question as to whether Della Grosshauser knew that her husband had failed to conjply with the provisions of the original written contract, and, so far as this case stands, under the evidence, the plaintiff entered into a contract with the husband, under which, it is apparent, he relied in no manner whatsoever on the property as security, for the reason that lie contracted for collateral security to the entire amount of the contract. Plaintiff was relying entirely upon this- collateral security and 'the personal responsibility of Emil Grosshauser. So far as plaintiff was concerned, it became absolutely immaterial to him as to who was the owner of the land. Without some showing that Della Grosshauser knew of the failure to put up the collateral security, there can arise no implied agreement on her part to pay for the building simply because she knew of its erection; it being presumed that she. supposed it was being constructed under the written contract between plaintiff and her husband. There was therefore no basis for any personal judgment against defendant Della Grosshauser. Inasmuch as there was no contract, express or implied, with Della Grosshauser, and the title to this land was in her, it follows that plaintiff was not entitled to a mechanic's lien against this property.\\\" But, under the facts in this case, even if the title to this land had stood- in-Emil Grosshauser, the plaintiff could not claim a mechanic's lien, for the reason that prior to the time of filing such lien he had received collateral security.' Regardless of the failure of Emil Grosshauser to deposit the mqney as agreed upon in the original contract, yet, when he did deposit th\\u00e9 money subject to the order of plaintiff's bondsmen, in accordance with the' conditions of the supplemental, contract, such deposit became security for the payment of the contract price for the erection of the building, and destroyed plaintiff's right to a mechanic's lien. Allis Co. v. Madison, etc., 9 S. D. 459, 70 N. W. 650; Harrison, etc., v. Council Bluffs Waterworks Co, 25 Fed. 170. There is a direct conflict in the evidence on the questions of whether or not the changes in \\u2022the plans increased the expenses of the construction of the building, and was to be paid for by the defendant Emil Grosshauser, and also as to whether the plaintiff was justified in stopping work when he did and refusing to finish said building, so that this court feels unwarranted in disturbing the findings of the lower court in regard to these matters. It is therefore the order of this court that the trial court in conformity with this opinion enter its judgment modifying its former judgment, dismissing the action as against the defendant Della Grosshauser, delaying the right of plaintiff to a mechanic's lien against the property in question, but giving plaintiff a personal judgment as against the defendant Emil Grosshauser in the same sum as in the judgment appealed from.\\nIt is the further order of this court that the appellants be allowed their costs on this appeal.\\nCORSON and McCOY, JJ., dissent.\"}"
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+"{\"id\": \"8200582\", \"name\": \"Kirk HOGEN, Plaintiff and Appellee, v. Elizabeth (Hogen) PIFER, Defendant and Appellant\", \"name_abbreviation\": \"Hogen v. Pifer\", \"decision_date\": \"2008-10-08\", \"docket_number\": \"No. 24760\", \"first_page\": \"160\", \"last_page\": \"165\", \"citations\": \"757 N.W.2d 160\", \"volume\": \"757\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:29:44.001646+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.\", \"parties\": \"Kirk HOGEN, Plaintiff and Appellee, v. Elizabeth (Hogen) PIFER, Defendant and Appellant.\", \"head_matter\": \"2008 SD 96\\nKirk HOGEN, Plaintiff and Appellee, v. Elizabeth (Hogen) PIFER, Defendant and Appellant.\\nNo. 24760.\\nSupreme Court of South Dakota.\\nConsidered on Briefs on Aug. 26, 2008.\\nDecided Oct. 8, 2008.\\nMelissa B. Nicholson of Nicholson & Nicholson, Sioux Palls, South Dakota, Attorneys for plaintiff and appellee.\\nKaren L. Crew, Michael B. Crew of Crew and Crew, Sioux Falls, South Dakota, Attorneys for defendant and appellant.\", \"word_count\": \"1986\", \"char_count\": \"12178\", \"text\": \"ZINTER, Justice.\\n[\\u00b6 1.] Approximately one year after her divorce, Elizabeth Pifer moved the circuit court to relocate the parties' minor son from South Dakota to Illinois. The circuit court denied Pifer's motion, and Pifer appeals. We affirm.\\nI\\n[\\u00b6 2.] Kirk Hogen and Elizabeth (Ho-gen) Pifer entered into a stipulation and agreement for divorce on May 19, 2006. At the time, both parties lived in Vermillion. Under the divorce decree, they shared joint legal custody of their son Jake (age eleven at the time). Pifer had primary physical custody, and Hogen had rights of visitation. Hogen's visitation included two evenings during the week and alternating weekends. Every other midweek visitation included an overnight. Neither party was prohibited from moving more than a de minimus distance from the Vermillion area after the divorce.\\n[\\u00b6 3.] One year after the divorce, Pifer sent Hogen a notice of intent to relocate Jake to Channahon, Illinois so that she could live with her boyfriend Paul Pifer, whom she planned to marry that summer. Hogen objected and moved for a hearing on the matter. Thereafter, Pifer formally moved to allow the relocation.\\n[\\u00b64.] The parties retained Dr. Andre Clayborne to conduct an evaluation of Pifer's request to relocate. Before Dr. Clayborne's evaluation was completed in October of 2007, Pifer married Paul Pifer. In his evaluation, Dr. Clayborne opined that Jake was currently living in the best arrangement in Vermillion, an arrangement that involved maximum contact with both parents. Dr. Clayborne also opined that he \\\"was not convinced that the move would serve Jake's best interest in any way. It would be [my] opinion that under the given circumstances that Jake is thriving in his current environment.\\\" Dr. Clay-borne did, however, note that because of Jake's close emotional connection to Pifer, if Pifer were to move to Illinois, it would be in Jake's best interest to move with her.\\n[\\u00b6 5.] A court trial was held on October 25-26, 2007. At trial, Dr. Clayborne focused on Pifer and Jake's close relationship, testifying that Hogen and Jake \\\"have a good relationship as well, but . the emotional connection is with mom.\\\" The circuit court acknowledged Dr. Clay- borne's evaluation and trial testimony favoring Pifer. Although the court indicated it did \\\"not have any real quarrel with Dr. Clayborne's decision in terms of emotional attachment,\\\" the court observed that Dr. Clayborne downplayed the attachment Jake had with his father. The court further observed that it couldn't \\\"say anything negative about either parent,\\\" and found that \\\"[i]t's very clear both parties are fit.\\\"\\n[\\u00b6 6.] Regarding Jake (who had turned thirteen the day before trial), the court found that he was \\\"well-adjusted,\\\" did \\\"well in school and otherwise,\\\" and \\\"appear[ed] to have a good handle on life.\\\" The court noted that Jake was in seventh grade, was an \\\"A\\\" student and \\\"star athlete,\\\" had friends and extended family in Vermillion, and was \\\"very popular.\\\" After further noting that Jake had grown up in Vermillion, the court found that moving to Illinois \\\"would be a significant adjustment\\\" and would \\\"disrupt\\\" his stability. The circuit court was also concerned about visitation problems for Hogen if Jake moved. The court explained that Hogen worked as a golf professional, and summer was his busy season requiring approximately sixty-hour work weeks. Pifer, on the other hand, had two and one-half months off during the summer. The court opined that Pifer's proposed move to Illinois, which required summer visitation with Ho-gen in Vermillion, would be counter-intuitive because Hogen would be spending so much visitation time working.\\n[\\u00b6 7.] The court also noted that although Jake expressed a preference to move, he had not spent any meaningful time in Illinois. Further, following its own personal interview of Jake, the court found that Jake did not have a reason for his preference. The court found that \\\"[Jake's] preference relat[ed] more to his desire to please his mother than his own interests in the case.\\\"\\n[\\u00b68.] The court ultimately found that based on Jake's age, his involvement in school, his connection with the community, and his relationship with Hogen, stability favored Jake living in Vermillion. The court ultimately concluded that it was not in Jake's best interest to move to Illinois.\\nII\\n[\\u00b6 9.] SDCL 25-5-13 provides that \\\"[a] parent entitled to the custody of a child has the right to change his residence, subject to the power of the circuit court to restrain a removal which would prejudice the rights or welfare of the child.\\\" This statute requires the circuit court to determine whether it is in the best interest of the child to relocate out of state. Maxner v. Maxner, 2007 SD 30, \\u00b6 23, 730 N.W.2d 619, 625. In our review of a custody decision, \\\"we decide only whether the court abused its discretion.\\\" Id. \\u00b6 11, 730 N.W.2d at 622. Abuse of discretion \\\"is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.\\\" Id. This standard does not mean that a trial court's custody decision remains inviolate. \\\"Rather, it is a recognition that trial courts are in a better position to make these difficult choices because the parents are present in the courtroom and the judge is better able to assess [the situation] firsthand.\\\" Id.\\nIII\\n[\\u00b6 10.] At the hearing, Pifer testified that she would not relocate to Illinois if the court would not allow Jake to move with her. Pifer first argues that the circuit court improperly focused on this testimony in denying her motion to relocate. She contends that the circuit court's consideration of her willingness to stay in Vermillion isolated the \\\"maximum continuing contact\\\" factor to the exclusion of other relevant factors. She also contends that affirming the circuit court's decision would result in no out-of-state relocations. We disagree with both contentions.\\n[\\u00b6 11.] In Zepeda v. Zepeda, this Court rejected rebanee on a single factor in favor of a balanced consideration of multiple factors when making a custody determination. 2001 SD 101, \\u00b6 15, 632 N.W.2d 48, 54 (citing Fuerstenberg v. Fuerstenberg, 1999 SD 35, \\u00b6 31, 591 N.W.2d 798, 809). Those factors generally include fitness, stability, primary caretaker, child's preference, harmful parental misconduct, separating siblings, and substantial change in circumstances. Fuerstenberg, \\u00b6 24-33, 591 N.W.2d at 807-10.\\n[\\u00b6 12.] Contrary to Pifer's argument, this case is unlike Fortin v. Fortin, 500 N.W.2d 229 (S.D.1993). In that case the circuit court \\\"ignore[d] several factors\\\" and prohibited an out-of-state relocation \\\"for the sole reason that the move would disrupt the noncustodial father's visitation with and influence over his son[.]\\\" Id. at 232. In this case, the circuit court issued seventy-three findings of fact and fourteen conclusions of law reflecting a balanced consideration of all relevant factors. The court's consideration of Pifer's willingness to stay in Vermillion was mentioned only once, and the court did not focus on \\\"maximum continuing contact.\\\" Instead, the court considered a number of factors including Jake's age, his relationship with his father, his involvement in the school and community, his friends and extended family in Vermillion, and the finding that a move to Illinois would be a significant adjustment disrupting his stability. Therefore, the circuit court did not erroneously focus solely on a custody arrangement that would ensure maximum contact with both parents.\\n[\\u00b6 13.] For the same reason, the circuit court's decision is no precedent for a blanket rule prohibiting all out-of-state reloca-tions. On the contrary, the court's use of a balanced approach considering a number of factors cannot be precedent for a per se rule. Furthermore, the circuit court specifically noted that this was the unusual case where both parents had spent considerable effort successfully co-parenting Jake, which enabled Jake to thrive and succeed in the Vermillion community.\\n[\\u00b6 14.] Pifer also argues there was insufficient evidence for the circuit court to deny her motion to relocate. Pifer argues that Dr. Clayborne opined that it would be in Jake's best interest to move with her to Illinois, and therefore \\\"there is no evidence upon which the [circuit] court could have concluded that it was in Jake's best interests to remain in Vermillion with his father if his mother did relocate.\\\" Dr. Clay-borne, however, indicated in his October 2007 follow-up evaluation that it would not be in Jake's best interests to move:\\nOn the issue of moving, it is apparent that the move is being made to benefit Liz and Paul. [I] was not convinced that the move would serve Jake's best interest in any way. It would be [my] opinion that under the given circumstances that Jake is thriving in his current environment. He is a straight \\\"A\\\" student, a star athlete, has many friends, and is much respected in the Vermillion community. Currently, he has access to both of his parents and is able to see them as often as he likes. From [my] perspective for Jake, he is currently in the best living arrangement.\\nAlthough Dr. Clayborne's trial testimony was more favorable to Pifer, he essentially held to his original opinion, only slightly favoring Pifer if the move was made. Dr. Clayborne testified:\\nYou know, again I struggled with that particular concept.... I think I made the statement inside of the report, realistically if both parents are staying in town or were to stay in town, this is probably the ideal situation for him. The move I don't necessarily see as being in his best interest per se, but again weighing that \\u2014 between that and the emotional connection with his mom, I guess I would err on the side of placing him with his mom.\\n(Emphasis added).\\n[\\u00b6 15.] Considering all of Dr. Clay-borne's opinions together with the circuit court's considerations, there was substantial evidence to support the court's decision. Further, this is a case in which the court recognized that both parents had done an excellent job of co-parenting for the benefit of their son. As we stated in Maxner, \\\" '[c]hoosing between two satisfactory options falls within a judge's discretion.' \\\" 2007 SD 30, \\u00b6 11, 730 N.W.2d at 622 (quoting Arneson v. Arneson, 2003 SD 125, \\u00b6 14, 670 N.W.2d 904, 910). This is such a case.\\n[\\u00b6 16.] Hogen submitted a motion for appellate attorney fees. The motion is accompanied by an itemized and verified statement of the costs incurred pursuant to SDCL 15-26A-87.3. An award of appellate attorney fees is permissible if they are accompanied by a verified, itemized statement of the legal services rendered and if the attorney fees are otherwise allowable. Id. Attorney fees are allowable in domestic relation cases, \\\"considering] the property owned by each party, the relative incomes, the liquidity of the assets and whether either party unreasonably increased the time spent on the case.\\\" Barnes v. Matzner, 2003 SD 42, \\u00b6 24, 661 N.W.2d 372, 379 (additional citation omitted). These financial factors do not appear in this record, and there does not appear to be evidence that either party has proceeded unreasonably. We also \\\"examine the fee request[ ] from the perspective of whether the party's appellate arguments carried any merit.\\\" Arneson, 2003 SD 125, \\u00b6 38, 670 N.W.2d at 917. Considering the closeness of this case involving two fit parents, we deny Hogen's motion.\\n[\\u00b6 17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.\\n. Dr. Clayborne had performed the initial home study for the divorce.\\n. In fact, the circuit court never utilized that phrase in either its findings or conclusions of law.\"}"
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+"{\"id\": \"8348844\", \"name\": \"Mary C. LOWE, Plaintiff and Appellant, v. Karl M. SCHWARTZ, Defendant and Appellee\", \"name_abbreviation\": \"Lowe v. Schwartz\", \"decision_date\": \"2007-08-08\", \"docket_number\": \"No. 24347\", \"first_page\": \"63\", \"last_page\": \"71\", \"citations\": \"738 N.W.2d 63\", \"volume\": \"738\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:09:42.264015+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 23.] ZINTER and MEIERHENRY, Justices, concur.\", \"parties\": \"Mary C. LOWE, Plaintiff and Appellant, v. Karl M. SCHWARTZ, Defendant and Appellee.\", \"head_matter\": \"2007 SD 85\\nMary C. LOWE, Plaintiff and Appellant, v. Karl M. SCHWARTZ, Defendant and Appellee.\\nNo. 24347.\\nSupreme Court of South Dakota.\\nConsidered on Briefs May 21, 2007.\\nDecided Aug. 8, 2007.\\nClark J. Bormann of Bormann & Myer-chin, LLP, Bismarck, ND, for appellant.\\nKarl M. Schwartz, Sikeston, MO, pro se appellee.\", \"word_count\": \"3819\", \"char_count\": \"23621\", \"text\": \"GILBERTSON, Chief Justice.\\n[\\u00b6 1.] On August 23, 2006, Karl M. Schwartz (Schwartz) filed a motion in the South Dakota Fifth Judicial Circuit for relief from the circuit court's October 17, 2005 order, compelling him to name his ex-wife, Mary C. Lowe (Lowe), as the beneficiary of and pay the premiums on a former-spouse-protection annuity related to his United States Coast Guard retirement plan. On August 28, 2006, Lowe filed a motion to amend a November 15, 2004 judgment and decree of divorce and order Schwartz to continue her beneficiary status and to increase alimony. The motions were heard on September 18, 2006, whereupon the circuit court granted Schwartz's motion while denying Lowe's. Findings of fact and conclusions of law, along with the order granting Schwartz's motion for relief were entered on November 1, 2006. We affirm.\\nFACTS AND PROCEDURE\\n[\\u00b62.] Schwartz and Lowe married in August 1997. Schwartz was a thirty-eight-year-old member of the Coast Guard and Lowe was a forty-six-year-old business consultant earning a substantial income. Schwartz had relatively few assets while Lowe had accumulated a net worth of about $365,000. Schwartz retired from the Coast Guard in April 1998. Lowe was the primary income earner, although Schwartz began collecting a modest retirement from the Coast Guard. In 2000, Lowe suffered a heart attack. The two separated later that year.\\n[\\u00b63.] Forced to discontinue her business consultant activities following her heart attack, Lowe essentially began living off her accumulated assets. She filed for divorce in 2003. By May 28, 2004, the date of the trial on the divorce action, Lowe's net worth had shrunk to about $80,000.\\n[\\u00b6 4.] The circuit court's amended judgment and decree of divorce was filed on November 15, 2004. In the decree, Lowe was awarded permanent alimony of $135.00 per month from Schwartz's $1359.00 monthly Coast Guard retirement pay so that she could receive healthcare benefits under the Coast Guard's Continued Health Care Benefit Program (CHCBP). Schwartz was directed to complete whatever paperwork was necessary to establish Lowe's coverage under the CHCBP while converting her from the Coast Guard's survivor-benefit plan to a former-spouse-protection plan, for healthcare only. Consistent with this provision, the decree and underlying conclusion of law No. 7 expressly set out that Lowe was not entitled to survivor-beneficiary payments through the Coast Guard's former-spouse-protection-annuity plan.\\n[\\u00b6 5.] On May 2, 2005, Lowe filed a motion to vacate the divorce decree. The circuit court denied Lowe's motion and the corresponding order was filed on June 23, 2005. Lowe appealed that order to this Court, entering notice on August 15, 2005. Pending review of that matter, Lowe filed an application to this Court for special relief seeking an order requiring Schwartz to continue Lowe's survivor-beneficiary status under the former-spouse-protection-annuity plan. We granted Lowe's application on October 11, 2005, and remanded to the circuit court for an order continuing Lowe's status as a survivor-beneficiary. The circuit court's order was entered on October 17, 2005. On June 7, 2006, in Lowe v. Schwartz, 2006 SD 48, 716 N.W.2d 777, we affirmed the circuit court's order denying Lowe's motion to vacate the judgment of decree and divorce.\\n[\\u00b6 6.] On August 23, 2006, Schwartz filed a motion for relief from the October 17, 2005 order on the ground that the November 15, 2004 divorce decree, setting out that Lowe was not entitled to survivor benefits, was affirmed by Lowe. On August 28, 2006, Lowe filed a motion to amend the divorce decree by increasing the amount of permanent alimony, on the ground there had been a change of circumstances, and to continue her status as a survivor beneficiary.\\n[\\u00b6 7.] On September 18, 2006, the circuit court ruled from the bench denying Lowe's motion and granting Schwartz's motion for relief. The circuit court's bench ruling was incorporated into its findings of fact and conclusions of law which, along with its order, was filed on November 1, 2006.\\n[\\u00b6 8.] Lowe appeals raising two issues:\\n1. Whether the circuit court abused its discretion by not increasing Lowe's alimony.\\n2. Whether the circuit court erred by not ordering Schwartz to continue Lowe's status as a survivor beneficiary of the Coast Guard's former-spouse-protection-annuity plan.\\nSTANDARD OF REVIEW\\n[\\u00b6 9.] A circuit court's decision regarding whether to modify an alimony award is reviewed under the abuse of discretion standard. Jameson v. Jameson, 1999 SD 129, \\u00b6 13, 600 N.W.2d 577, 581 (citation omitted). \\\"An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.\\\" Anderson v. Anderson, 2002 SD 154, \\u00b6 11, 655 N.W.2d 104, 107 (citation omitted). We review the circuit court's findings of fact under the clearly erroneous standard and conclusions of law de novo. Roth v. Roth, 1997 SD 75, \\u00b6 7, 565 N.W.2d 782, 784.\\nANALYSIS AND DECISION\\n[\\u00b6 10.] 1. Whether the circuit court abused its discretion by not increasing Lowe's alimony.\\n(3) [\\u00b6 11.] Following a divorce decree, the circuit court may from time to time modify an award of support lasting for a lifetime or shorter duration, giving consideration for the parties' change in circumstances, as provided by SDCL 25-4-41. Lowe argues that a change in her and Schwartz's financial conditions since the November 15, 2004 divorce decree constitutes a change in circumstances, justifying an increase in her permanent alimony.\\n[\\u00b6 12.] Permanent alimony is among several types of alimony recognized in South Dakota. See Sanford v. Sanford, 2005 SD 34, \\u00b6 24, 694 N.W.2d 283, 290. - Permanent alimony is distinguishable from other forms of alimony in that it is intended as an allowance for support and maintenance for such things as food, clothing, habitation and other necessaries. Fox v. Fox, 467 N.W.2d 762, 767 (S.D.1991) (citations omitted). Necessaries may include medical or health insurance coverage. Harding-Moyer v. Harding, 2000 SD 126, \\u00b6 12, 616 N.W.2d 899, 902.\\n[1\\u00cd13.] Although the specifics of permanent alimony are determined by the facts of each case, common to it are payments until death of the recipient or other significant event, such as remarriage, which terminates the need for continuing support. Sanford, 2005 SD 34, \\u00b6 24, 694 N.W.2d at 290. We have held that circuit courts have continuing jurisdiction to modify permanent alimony as circumstances may require. Saxvik v. Saxvik, 1996 SD 18, \\u00b6 11, 544 N.W.2d 177, 180. To justify modification, there must be a change of circumstances from that which existed at the time of the divorce decree. Id. \\u00b6 9, 544 N.W.2d at 179 (citations omitted). Although the change need not be substantial, mere proof of a change is insufficient to mandate modification. Id. \\u00b6 21, 544 N.W.2d at 182 (citation omitted). The party seeking modification bears the burden of proving a change of circumstances justifying modification. Id. \\u00b6 9, 544 N.W.2d at 179 (citations omitted).\\n[\\u00b6 14.] While Schwartz's monthly retirement pay had only changed from $1,359 to $1,452, Lowe presented evidence that his average monthly earned income had increased from between $2,200 and $2,500 at the time of the May 28, 2004 divorce trial to about $3,250 per month from January through August of 2006. Lowe also presented evidence showing her own monthly income, including alimony, since the divorce trial had fallen from $317 to $264 per month. While she submitted an exhibit showing her average monthly living expenses for 2006 totaled about $3,800, the exhibit did not include any information as to living expenses for the balance of 2004 or 2005. Since the divorce trial, Lowe's net worth had continued to decline, falling from about $80,000 to $6,287. Over the same period, Schwartz's debt had increased from $26,000 to $40,000.\\n[\\u00b6 15.] Conclusion of law No. 6, underlying the November 15, 2004 divorce decree, states that Lowe is to receive, from Schwartz's retirement, alimony of $135 per month \\\"so that [she] can continue her health care benefits through the [CHCBP].\\\" See note 1 supra (re. CHCBP eligibility criteria). Lowe testified at trial that her CHCBP premiums remained unchanged since the divorce decree at $311 per month.\\n[\\u00b6 16.] The foregoing evidence was essentially acknowledged in the circuit court's findings of fact from which it concluded there was an insufficient basis to grant Lowe's motion for an increase in alimony. In so deciding, the circuit court also stated in its incorporated bench ruling and in conclusion of law No. 14 that it was aware at the time of the divorce decree that because of Lowe's diminished earnings capacity, her net worth would continue to decline unless she was able to find other means of supplementing her income. The circuit court pointed out that it had taken that factor into account in determining the amount of alimony to award in the decree. See Saxvik, 1996 SD 18, \\u00b6 19, 544 N.W.2d at 182 (holding that recipient spouse's increased income, post divorce settlement, was a factor considered at the time alimony was awarded and hence could not be relied on to support payor spouse's petition to eliminate alimony when the change in recipient spouses earnings occurred); see also Foley v. Foley, 429 N.W.2d 42, 46 (S.D.1988) (observing that while five \\\" 'significant and material' changes in [the recipient spouse's] circumstances\\\" were fully anticipated by the trial court when it awarded support alimony, other changes in circumstances that justified modification of support were not anticipated). The following remarks from the bench are consistent with the circuit court's conclusion that Lowe's reduction in assets did not constitute circumstances justifying an alteration of the prior alimony award:\\nAt the time I awarded alimony, I knew that her assets were declining and that they were going to continue to decline, and I took that into account when I made the alimony award at that time. So there has been no change in that. It hasn't declined more rapidly than I anticipated or less rapidly. It has continued to decline at the rate that I anticipated.\\n[\\u00b6 17.] The sole purpose the circuit court identified for granting Lowe alimony was to enable her to continue to receive healthcare benefits through the CHCBP. Evidence at the motions hearing revealed that the cost of Lowe's healthcare benefit thereunder remained unchanged since the divorce decree. Compare with Foley, 429 N.W.2d at 46 (holding, in a case where unforeseen events circumvented the alimony-awarding court's economic objectives for the recipient spouse, that \\\"when the trial court imposes a decision upon the parties which is based upon certain assumptions, the courts should be available to modify the decision so that the intended goals of the original decision are met\\\"). The record also evinces only slight changes to Schwartz's retirement pay and Lowe's monthly income. While Lowe avers that Schwartz has realized a substantial increase in earned income, any such increase appears to be inconsistent at best. Although Lowe's net worth has declined since the divorce trial, the record reflects that it was declining at the time of the divorce decree, that the circuit court was cognizant of that fact when it granted alimony and that it was aware that it most likely would continue to decline. Considering the foregoing, we conclude that Lowe has not met her burden to prove changes that justify increasing alimony and thus, no abuse of discretion in the circuit court's order denying the same.\\n[\\u00b6 18.] 2. Whether the circuit court erred by not ordering Schwartz to continue Lowe's status as a survivor beneficiary of the Coast Guard's former-spouse-protection-annuity plan.\\n[\\u00b6 19.] Lowe now for the second time on appeal seeks to compel Schwartz to continue her survivor-beneficiary status under the former-spouse-protection-annuity plan. As before, Lowe argues that since entitlement to healthcare benefits under the CHCBP is conditioned on, among other requirements, receipt of Coast Guard retiree pay or survivor benefits, her healthcare benefits will cease should Schwartz predecease her.\\n[\\u00b6 20.] In Lowe, we reviewed the circuit court's denial of Lowe's motion to vacate the divorce decree that she had in part grounded on the survivor-beneficiary issue. 2006 SD 48, \\u00b6 7, 716 N.W.2d 777, 778-79. Following the divorce trial, Lowe failed to submit proposed findings of fact and conclusions of law or object to those proposed by Schwartz. Id. \\u00b6 16, 716 N.W.2d at 781-82. Hence, Lowe's attack on the circuit court's decision as to survivor-beneficiary status was couched in a motion premised in relief under SDCL 15 \\u2014 6\\u201460(b)(1) that averred insufficient evidence underlying the circuit court's corresponding findings of fact and conclusions of law. Id. \\u00b6 9,11, 716 N.W.2d at 779. The issue had been tried on the merits below. Id. \\u00b6 12, 716 N.W.2d at 779. We affirmed the circuit court because Lowe neglected to avail herself of the opportunity to raise her sufficiency of evidence argument by objecting to the findings of fact and conclusions of law. Id. \\u00b6 16, 716 N.W.2d at 781.\\n[\\u00b6 21.] Lowe's motion to amend the divorce decree in the instant case, as it pertains to the survivor beneficiary issue, is nothing more than an attempt to resurrect a matter that we have previously settled. Therefore, there was no error in the circuit court's denial of her motion to amend as to the same, and we need give it no further consideration on appeal.\\n[\\u00b6 22.] Affirmed.\\n[\\u00b6 23.] ZINTER and MEIERHENRY, Justices, concur.\\n[\\u00b6 24.] SABERS and KONENKAMP, Justices, concur in part and dissent in part.\\n. Information was provided to the circuit court that several criteria needed to be met before a former spouse could be covered under the CHCBP. A former spouse must not remarry before age fifty-five, must have been enrolled in the Coast Guard's health care program (TRICARE) for at least eighteen months prior to divorce, receives or is court ordered to receive a portion of the retired Coast Guard member's retirement pay or is a recipient of the Coast Guard member's surviv- or, annuity benefit. Lowe had been enrolled in TRICARE for more than eighteen months prior to the divorce and by the September 2006 motions hearing, she had reached age fifty-five and had not remarried.\\n. Rather, the decree provided that Schwartz was free to designate a beneficiary.\\n. Lowe contends, and it appears from the information provided to the circuit court in 2004, that a former spouse may continue to receive post-divorce, healthcare benefits as long as the former spouse receives a portion of the Coast Guard retiree's retirement pay or is a recipient of survivor benefits following the retiree's death. Since retirement payments end upon the death of a retiree, it appears that a former spouse's continued healthcare coverage is then conditioned upon the receipt of survivor beneficiary payments. Hence, the reason for Lowe's motion to vacate the divorce decree and application to this Court for special relief pending appeal of the circuit court's order denying the motion.\\n. In Sanford we summarized the various types of alimony and how they may be distinguished. 2005 SD 34, \\u00b6 24, 694 N.W.2d at 290. In addition to permanent alimony, we identified lump-sum alimony, restitutional or reimbursement alimony and rehabilitative alimony. Id. (citations omitted). We also noted that there are types of alimony subject to future modification in order to take into account unforeseen circumstances that may arise. Id. \\u00b6 24, 694 N.W.2d at 290-91 (citation omitted).\\n. Factors that are considered when assessing the need, amount and duration of alimony are: \\\"(1) length of the marriage; (2) respective earning capacity of the parties; (3) their respective age, health and physical condition; (4) their station in life or social standing; and (5) relative fault in termination of the marriage.\\\" Sanford, 2005 SD 34, \\u00b6 24 n. 4, 694 N.W.2d at 290 n. 4 (citations omitted).\\n.Our holding in Saxvik was limited, establishing that permanent alimony is modifiable support that may be reinstated, even when terminated subsequent to the decree, if dictated by a change in circumstances. 1996 SD 18, \\u00b6 11, 15, 544 N.W.2d at 180. However, we reiterated that lump-sum alimony and restitution or reimbursement alimony are not subject to modification. Id. \\u00b6 13, 544 N.W.2d at 180 (citations omitted). Our holding was likewise inapplicable \\\"to divorce cases where the trial court [finds] no basis for an award of alimony to begin with.\\\" Id. \\u00b6 15, 544 N.W.2d at 180 (citations omitted). We withheld determination of whether rehabilitative alimony is modifiable, while suggesting that it must be considered on a case-by-case basis. Id. \\u00b6 14, 544 N.W.2d at 180.\\n. Lowe cites, as particularly supportive of her argument for increasing alimony, Schwartz's average earned income during the most recent three months preceding the September 2006 hearing. Schwartz's average earned income during that three-month period was about $5,500 per month. However, we note that the compilation from which the averages were derived shows that the monthly totals for the extraordinary three-month period range from $2,628 to $8,005 and that Schwartz's average monthly income for January and February of 2006 was $0.\\n. Close examination of Lowe's statements of net worth, submitted as an exhibit at trial, reveals that her overall decrease in net worth since the divorce trial attributes about equally between a decrease in the value of assets and an increase in debt. At least some of the decrease in the value of assets is a consequence of depreciation and trading of vehicles. Lowe traded her 1996 Alfa Gold (divorce trial value: $28,790) and 1996 Dodge Ram 2500 (divorce trial value: $11,780) for a 2000 Winnebago 35U (motions trial value: $55,199). While this trade results in an increase to assets of about $15,000, her RV Loan Balance correspondingly increased about $17,000 to $54,331, resulting in a decrease to net worth of $2,000. Over the relevant period, her 1992 Jeep Cherokee depreciated by about $1,700. Lowe attributes an estimated $6,500 decrease in the value of a 1986 8x8 trolley to vandalism. Lowe also attributes a $2,500 tax liability to a 2005 Toyota Camry (motions hearing value: $19,825) that she won at a casino.\\n. The remarks of plaintiffs counsel at the divorce trial, during closing argument, summarized the evidence then presented as to the continuing decline in value of Lowe's assets: \\\"Certainly her health is all shot. It doesn't look like very good prospects for earning income. Tax returns shown as devastating, her assets are dwindling on at a dangerously fast rate.\\\"\\n. The circuit court could have concluded that Lowe's assets were declining at a significantly reduced rate following the November 15, 2004 divorce decree as compared to the rate of decline before that date. Assuming Lowe's net worth remained consistent at approximately $365,000 until her heart attack in 2000, after which she discontinued her employment as a business consultant, and that her assets at that point began to decline, the rate at which her assets declined over the approximate four-year period preceding the divorce decree would be about $6,000 per month. The $74,000 reduction in assets over the 27-month period between the divorce trial and the motions hearing corresponds to a monthly reduction of about $2,750 per month.\\n. SDCL 15 \\u2014 6\\u201460(b)(1) provides in pertinent part:\\nOn motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect[.]\"}"
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+"{\"id\": \"8372405\", \"name\": \"David CHRISTENSEN, Petitioner and Appellant v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee\", \"name_abbreviation\": \"Christensen v. Weber\", \"decision_date\": \"2007-10-10\", \"docket_number\": \"No. 24299\", \"first_page\": \"622\", \"last_page\": \"624\", \"citations\": \"740 N.W.2d 622\", \"volume\": \"740\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:06:24.719780+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 10.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.\", \"parties\": \"David CHRISTENSEN, Petitioner and Appellant v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.\", \"head_matter\": \"2007 SD 102\\nDavid CHRISTENSEN, Petitioner and Appellant v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.\\nNo. 24299.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Aug. 27, 2007.\\nDecided Oct. 10, 2007.\\nGregory T. Brewers of Strange, Farrell & Johnson, P.C., Sioux Falls, SD, for petitioner and appellant.\\nLawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, SD, for respondent and appel-lee.\", \"word_count\": \"1199\", \"char_count\": \"7085\", \"text\": \"MEIERHENRY, Justice.\\n[\\u00b6 1.] This action involves David Christensen's writ of habeas corpus to this Court. Christensen's motion for a certificate of probable cause was untimely before the circuit court. The circuit court granted the motion and certified seven issues for appeal, despite the motion's untimeliness. Christensen then timely filed his notice of appeal to this Court. We dismiss for lack of jurisdiction.\\nFACTS AND PROCEDURE\\n[\\u00b6 2.] On August 31, 2006, the circuit court signed Findings of Fact and Conclusions of Law and its Order denying Christensen's habeas petition. Notice of Entry was served on October 5, 2006. Christensen filed his motion for certificate of probable cause on October 16, 2006. The circuit court granted parts of the motion and certified seven issues for appeal on October 18, 2006. Christensen timely filed his notice of appeal to this Court on October 26, 2006.\\n[\\u00b6 3.] Pursuant to SDCL 21-27-18.1, the last date Christensen could timely file his motion for certificate of probable cause to the circuit court was October 2, 2006.\\nANALYSIS AND DECISION\\n[\\u00b6 4.] SDCL 21-27-18.1 governs this action and provides in relevant part:\\nA final judgment or order entered under this chapter may not be reviewed by the Supreme Court of this state on appeal unless the circuit judge who renders the judgment or a justice of the Supreme Court issues a certificate of probable cause that an appealable issue exists. A motion seeking issuance of a certificate of probable cause shall be filed within thirty days from the date the final judgment or order is entered .\\nThe plain language of this statute indicates that the deadline to file the motion for certificate of probable cause to the circuit court is thirty days from the actual entry of the order, not the notice of entry. This Court has previously interpreted this statute as jurisdictional. Hannon v. Weber, 2001 SD 146, \\u00b6 4, 688 N.W.2d 48, 49. Thus, the motion filed with the circuit court was fourteen days late and is defective.\\n[\\u00b6 5.] Christensen requests that we apply the thirty-day limitations period from the time of notice of entry. Christensen asserts that neither his counsel nor State's counsel knew the order had been signed and that the order was not returned to either of them. The certificate of service shows that notice of entry and copies of the order were sent to counsel on October 5, 2006, three days past the expiration of the limitations period. However, there is no notice of entry requirement in SDCL 21-27-18.1 as there is in SDCL ch. 15-26A. As we have previously stated, this Court cannot' read into the rule a notice requirement when one does not exist. Hannon, 2001 SD 146, \\u00b6 4, 638 N.W.2d at 49.\\n[\\u00b6 6.] The State wishes to waive the timeliness issue and proceed on the merits in the interest of judicial economy. The State cites Loop v. Solem in support of this request. 898 N.W.2d 140 (S.D.1986). In Loop, this Court remanded for a new sentencing to allow for a new appeal period when Loop's appeal was untimely and deprived this Court of jurisdiction under SDCL 23A-32-15. Id. at 142. However, there is a critical difference between the case before us and the situation in Loop. Loop was before this Court on \\u00e1 second habeas petition, timely filed, on an ineffective assistance of counsel claim. This Court had jurisdiction when it remanded Loop back to the trial court for resentenc-ing in order to effectively reset the limitations period.\\n[\\u00b6 7.] The State is correct in its assertion that there are two potential remedies available to Christensen that will allow this Court to consider his petition on the merits. After dismissal, Christensen may return to the circuit court and seek to vacate the order quashing the writ. As in Haf-ner, such action by the circuit court will allow Christensen thirty-days from entry of the new order quashing the writ to refile his motion for certificate of probable cause. Hafner v. Leapley, 520 N.W.2d 252, 253 (S.D.1994). If Christensen is denied this remedy he may return to this Court on a second habeas petition and seek the remedy provided in Loop. However, Christensen is not currently before this Court on a second habeas petition. Our interpretation of SDCL 21-27-18.1 as jurisdictional deprives this Court of the ability to waive the untimeliness of the motion or to proceed with the appeal on the merits.\\n[\\u00b6 8.] The untimeliness of the motion before the circuit court deprived that court of jurisdiction to grant a certificate of probable cause. Hannon, 2001 SD 146, \\u00b6 8, 638 N.W.2d 48; Hafner, 520 N.W.2d at 253. Because the circuit court lacked jurisdiction, this Court too lacks jurisdiction to consider the issues certified on appeal.\\n[\\u00b6 9.] Dismissed.\\n[\\u00b6 10.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.\\n. The thirtieth day fell on Saturday, September 30, 2006. The motion was due Monday, October 2, 2006.\\n.SDCL 21-27-18.1 is a Supreme Court Rule last amended July 1, 2002. 2002 SL Ch. 250, \\u00a7 3. The last amendment to this rule extended the period in which a petitioner has to file a motion for a certificate of probable cause to this Court from fifteen days to twenty days upon refusal of the circuit judge to issue a certificate. The rule first appeared in 1983 and was modified in 1986 and 1989. At no time did the rule require notice of entry for the limitations periods to begin.\\n. While we recognize the virtues of the State's judicial economy argument, this cannot overcome lack of jurisdiction.\\n. In Hafner, this Court held it was proper for the trial court to vacate its original order and issue a new order quashing the writ in order to restart the thirty-day statutory time limit. The circuit court held that it was impossible for Petitioner Hafner to file a motion for certificate of probable cause within thirty days of the filing of the entry of the order because neither State nor Petitioner was aware the judgment had been filed until after the expiration of the thirty days. Pursuant to SDCL 15 \\u2014 6\\u201460(b) the court vacated its original order and issued a new order quashing the writ. Hafner was then timely notified by the State of entry of the order. Id. Upon reissuance of the certificate of probable cause, this Court considered Hafner's appeal on the merits. 520 N.W.2d at 253.\\nFurther, this Court is aware that the one-year statute of limitation for SDCL 15 \\u2014 6\\u201460(b)(1)\\u2014 (3) may have expired. However, there is no one-year limitation period for SDCL 15 \\u2014 6\\u2014 60(b)(6), and as affirmed in Hafner, this is an appropriate ground upon which to vacate and reissue the order quashing the writ. Id.\"}"
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+"{\"id\": \"8388139\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Chad Thomas DUBOIS, Defendant and Appellant\", \"name_abbreviation\": \"State v. Dubois\", \"decision_date\": \"2008-02-27\", \"docket_number\": \"No. 23976\", \"first_page\": \"197\", \"last_page\": \"212\", \"citations\": \"746 N.W.2d 197\", \"volume\": \"746\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T01:59:45.027165+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 49.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Chad Thomas DUBOIS, Defendant and Appellant.\", \"head_matter\": \"2008 SD 15\\nSTATE of South Dakota, Plaintiff and Appellee, v. Chad Thomas DUBOIS, Defendant and Appellant.\\nNo. 23976.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Jan. 7, 2008.\\nDecided Feb. 27, 2008.\\nLawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.\\nJames A. Eirinberg, Sioux Falls, South Dakota, Attorney for defendant and appellant.\", \"word_count\": \"6287\", \"char_count\": \"38858\", \"text\": \"MEIERHENRY, Justice.\\n[\\u00b6 1.] A jury found Chad Dubois guilty of five counts of possession of child pornography. Dubois appeals and we affirm.\\nFACTS\\n[\\u00b6 2.] Dubois met Derek St. John, an adult, on an internet dating site. St. John contacted Dubois via his 1-800 telephone number and the two began to date. During this relationship, St. John had access to Dubois' computers. While on Dubois' desktop computer, St. John observed a couple of pornographic pictures depicting children approximately \\\"six to eight years old.\\\"\\n[\\u00b6 8.] Apparently disturbed by the pictures, St. John reported the pictures to his probation officer, Kathy Christenson. Christenson put St. John in contact with Shannon Riter, a special agent for the South Dakota Division of Criminal Investigation (DCI), who investigated the allegations and obtained a warrant to search Dubois' apartment. Upon executing the search warrant, the authorities obtained possession of two computers, a laptop and a desktop.\\n[\\u00b64.] The State Forensic Laboratory (Lab) analyzed the computers' hard drives for pornographic images of children. A forensic computer analyst for the Lab discovered sixteen images that he believed were of persons below the age of eighteen on both computers' hard drives. One of the individuals depicted in a few of the pictures was later identified as A.J., a male minor who met Dubois in an internet chat room.\\n[\\u00b6 5.] A.J., who was twelve or thirteen at the time the pictures were taken, testified that Dubois contacted him in the chat room, and they communicated about various topics including sex. A. J. also testified that when he told Dubois his age, Dubois was \\\"pretty cool about it.\\\" After Dubois provided A.J. with his 1-800 telephone number, the two had contact by telephone. Many of the communications between Du-bois and A.J. were sexually charged, covering both anal and oral sex.\\n[\\u00b6 6.] During one of these conversations, Dubois elicited pictures from A.J. stating: \\\"I will show you mine, if you show me yours.\\\" Dubois later sent pictures of himself naked to A.J. and succeeded in convincing A.J. to reciprocate by sending naked pictures of himself to Dubois. A.J. testified that Dubois requested pictures that displayed A. J.'s penis.\\n[\\u00b6 7.] At trial, the State presented the jury with numerous pictures depicting alleged child pornography as well as other evidence which tended to prove Dubois had solicited the images. After viewing the evidence, the jury found Dubois guilty of five counts of possession of child pornography under SDCL 22-24A-3. The court sentenced Dubois to thirty years in the South Dakota State Penitentiary.\\n[\\u00b6 8.] Dubois appeals raising the following issues:\\n1. Whether the trial court erred when it denied Dubois' motion to suppress evidence gained from the search of his home.\\n2. Whether the trial court erred when it permitted the State to present a chat room discussion engaged in by Dubois.\\n8. Whether there was sufficient evidence to convict Dubois of possessing child pornography.\\n4. Whether the sentence constitutes cruel and unusual punishment.\\nANALYSIS\\n1. Denial of Dubois' Motion to Suppress\\n[\\u00b6 9.] Dubois contends there was no probable cause for the issuance of the search warrant; therefore, the executed search violated the Fourth Amendment of the United States Constitution and Article VI, section 11 of the South Dakota Constitution. We disagree.\\n[\\u00b6 10.] When considering the sufficiency of evidence supporting a search warrant we are required to \\\"look 'at the totality of the circumstances to decide if there was at least a \\\"substantial basis\\\" for the issuing judge's finding of probable cause.'\\\" State v. Helland, 2005 SD 121, \\u00b6 12, 707 N.W.2d 262, 268 (citations omitted).\\n[0]ur inquiry is limited to determining whether the information provided to the issuing court in the warrant application was sufficient for the judge to make a \\\" 'common sense' determination that there was a 'fair probability' that the evidence would be found on the person or at the place to be searched.\\\" On review, we are limited to an examination of the facts as contained within the four corners of the affidavit. Furthermore, we review the issuing court's probable cause determination independently of any conclusion reached by the judge in the suppression hearing.\\nId. (citations omitted).\\n[\\u00b6 11.] Probable cause cannot be determined by some \\\"formulaic solution.\\\" Id. \\u00b6 15. Probable cause \\\"lies somewhere between mere suspicion and the trial standard of beyond a reasonable doubt.\\\" Id. (citations omitted). We are required to assess the \\\"probabilities in a particular context\\\" and balance \\\"the government's need to enforce the law with the citizen's right to privacy.\\\" Id. (citations omitted).\\nWe have previously articulated the standard for determining the existence of probable cause sufficient to support the issuance of a search warrant:\\nThere need not be a prima facie showing of legal evidence of a suspected act. The standard of probable cause for the issuance of a search warrant is a showing of probability of criminal activity. In addition to the reasonable ground to believe that some violation of the law exists, probable cause for a search warrant necessarily implies that there is a violation in respect to some property located on some premises, or on some person, which can be identified expressly or by reasonable inference from the information given in the affidavit so as to be capable of being particularly described in the warrant.\\nId. \\u00b6 16 (quoting State v. Kaseman, 273 N.W.2d 716, 723 (S.D.1978)) (other citations omitted). Furthermore, we are \\\"not empowered to conduct an after-the-fact de novo probable cause determination; on the contrary, the issuing court's legal basis for granting the warrant is examined with 'great deference.' \\\" Id. \\u00b6 17 (quoting State v. Jackson, 2000 SD 113, \\u00b6 9, 616 N.W.2d 412, 416 (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983))). \\\"[W]e will draw every reasonable inference possible in support of the issuing court's determination of probable cause to support the warrant.\\\" Id. (citing State v. Habbena, 372 N.W.2d 450, 456 (S.D.1985) (citing State v. Wellner, 318 N.W.2d 324, 327 (S.D.1982))).\\n[\\u00b6 12.] Dubois contends the warrant was invalid as a result of a flawed affidavit, on the basis of the following assertions: 1) it failed to inform the magistrate the informant had a criminal past (including crimes of dishonesty), and was currently on probation; and 2) the officer did not corroborate the information provided by the informant.\\n[\\u00b6 13.] The affidavit did omit the informant's criminal record; however, this omission does not vitiate probable cause. See State v. Corum, 663 N.W.2d 151, 160 (N.D.2003) (holding that the omission of the criminal record and the leniency provided to the informant was not sufficient to negate probable cause for the warrant). \\\"An affidavit that is purported to contain recklessly and intentionally misleading information or material omissions is reviewed under the two-part analysis in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).\\\" Helland, 2005 SD 121, \\u00b6 32, 707 N.W.2d at 273. \\\"First, [Dubois] must show by a preponderance of the evidence that a . statement knowingly and intentionally, or with reckless disregard for the truth was [omitted] . by the affiant in the warrant affidavit.\\\" Id. Second, Dubois must establish the omitted fact would have defeated probable cause. Id. Applying the Franks test, Dubois' arguments fail.\\n[\\u00b6 14.] The affidavit clearly stated that Agent Riter was \\\"contacted by South Dakota probation officer Kathy Christenson\\\" who informed Agent Riter that Christen-son's \\\"client, Derek St. John, provided criminal information regarding a male subject.\\\" The \\\"common sense\\\" inference drawn from these disclosures is that St. John was on probation and surely had a criminal record. Habbena, 372 N.W.2d at 456 (stating \\\"[w]e will not read the warrant affidavit in a hyperteehnical manner; rather, we read each affidavit as a whole and interpret each in a common sense and realistic manner\\\") (citations omitted).\\n[\\u00b6 15.] Moreover, although the specifics of St. John's criminal record may have cast some doubt on his credibility, the omitted record does not vitiate probable cause demonstrated in the affidavit. The affidavit noted that the identity of the informant was known and that the informant furnished detailed eye-witness accounts of criminality. See State v. Sweedland, 2006 SD 77, \\u00b6 21, 721 N.W.2d 409, 414 (stating \\\"explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first hand, entitles the informant's tip to greater weight than might otherwise be the case\\\"); see also State v. Griggs, 306 Mont. 366, 34 P.3d 101, 104 (2001) (stating when an informant \\\"whose identity is known, who personally observes the alleged criminal activity, and who openly risks liability by accusing another person of criminal activity-may not need further law enforcement corroboration\\\"); see also State v. Thomas, 267 Neb. 339, 673 N.W.2d 897, 908-09 (2004) (stating informants who identify themselves are considered more reliable); State v. Lammers, 267 Neb. 679, 676 N.W.2d 716, 725 (2004) (stating \\\"an untested citizen informant who has personally observed the commission of a crime is presumptively reliable\\\").\\n[\\u00b6 16.] Additionally, contrary to Dubois' assertion, St. John's statements were corroborated. St. John named two individuals who at one time lived with Dubois, both were confirmed to have been on Dubois' lease at one time by the assistant manager of Dubois' apartment complex. St. John also stated that Dubois had a prescription for Dextromethamphetamine for social use. Dubois was confirmed to have \\\"numerous prescriptions\\\" of Dextrometh-amphetamine. The State's omission of St. John's criminal record in the affidavit did not affect its validity.\\n[\\u00b6 17.] Dubois also claims that Agent Riter intentionally omitted evidence that St. John had a dear incentive to mislead investigators because he was a scorned lover. Although Dubois describes St. John as a \\\"jilted lover,\\\" there was no evidence presented that would support this allegation. Other than unsupported general allegations, Dubois cannot point to any facts that show that St. John provided his testimony or statements to Agent Riter for personal gain or out of spite. In fact, the opposite appears to be true. St. John told Agent Riter that he ended the relationship with Dubois. Moreover, St. John testified that he had been over to Dubois' residence four times after he turned Dubois in for possession of child pornography. We cannot assume Agent Riter knew St. John was a \\\"jilted-lover\\\" and then intentionally omitted this fact when drafting the affidavit. Contrary to Dubois' assertion, the affidavit does not contain \\\"intentionally misleading . omissions\\\" related to St. John's criminal record or romantic history. Helland, 2005 SD 121, \\u00b632, 707 N.W.2d at 273.\\n2. Chat Room Discussions\\n[\\u00b6 18.] Next Dubois contends that it was reversible error to present content of internet chat room conversations, not related to any of the pictures charged, to the jury. He claims the admission of these \\\"prior bad acts\\\" was a violation of SDCL 19-12-5 (Rule 404(b)) and SDCL 19-12-3 (Rule 403), as well as his right to due process and a fair trial as articulated in both the Fifth Amendment of the United States Constitution and Article VI, section 2 of the South Dakota Constitution.\\n[\\u00b6 19.] It is well established that the trial court's rulings on evidentiary matters are presumed to be correct. State v. Crawford, 2007 SD 20, \\u00b6 13, 729 N.W.2d 346, 349. \\\"This Court must review the trial court's decision to admit these prior acts under an abuse of discretion standard.\\\" State v. Janklow, 2005 SD 25, \\u00b6 39, 693 N.W.2d 685, 698. Dubois \\\"must first demonstrate error and then show that error was prejudicial.\\\" Crawford, 2007 SD 20, \\u00b6 13, 729 N.W.2d at 349.\\n[\\u00b6 20.] Rule 404(b) allows the State to admit evidence of a defendant's other acts evidence for the limited purpose of proving \\\"motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.\\\" SDCL 19-12-5. Prior to the admission of other acts evidence, the trial court must undergo a two-step process. \\\"First, the offered evidence must be relevant to a material issue in the case. Second, the trial court must determine '[wjhether the probative value of the evidence is substantially outweighed by its prejudicial effect.' This balancing must be conducted on the record.\\\" State v. Owen, 2007 SD 21, \\u00b6 14, 729 N.W.2d 356, 362-63.\\n[\\u00b6 21.] Dubois' defense strategy, from the opening statement and throughout the trial, focused on the claim that Dubois had no knowledge of these pictures. He asserted that these pictures were downloaded by someone else without his knowledge or by mistake. The State argued that this trial tactic opened the door for it to prove absence of mistake and that Dubois had knowledge of the content and presence of the pictures. State v. Anderson, 2000 SD 45, \\u00b638, 608 N.W.2d 644, 656 (noting that trial tactics may open doors for evidence which would typically not be permitted). Ultimately, the trial court permitted a single chat to be read into evidence under Rule 404(b).\\n[\\u00b6 22.] Prior to the chat's admission, the trial court conducted the two-step test as required by Rule 404(b). Initially, the test began at a pre-trial motion hearing where Dubois sought to suppress the chat logs. Dubois argued the chats were irrelevant and highly prejudicial and would only be used to \\\"inflame and bias the jury towards [Dubois].\\\" The State argued that the chats were relevant to combat the defense of identity and lack of knowledge. Reciting the two-step test, the trial court indicated that the chat logs might be relevant depending on Dubois' defense strategy, yet suppressed the evidence for the time being. However, the trial court emphasized that if Dubois \\\"presents evidence which indicates that [he's] trying to argue it's a mistake or there's no knowledge or no plan or preparation, in that case the State in rebuttal, on a hearing outside the presence of the jury, I may allow them in to show one of those things.\\\" The trial court further indicated that the chat(s) \\\"may well be relevant and it may outweigh the prejudicial effect.\\\"\\n[\\u00b623.] After Dubois presented a defense which focused on mistake of identity and lack of knowledge, the judge revisited the issue. The trial court informed Dubois that, by arguing \\\"someone else did it\\\" he had opened the door for a single chat to come into evidence. Although the trial court did not repeat the two-step test at that time, the trial court indicated why the evidence was relevant and permitted the State and Dubois to argue the issue.\\n[\\u00b624.] First, the State described how the evidence was relevant to rebut Dubois' defense of identity and lack of knowledge. Second, the state argued that it was not prejudicial. Then, Dubois again claimed the evidence was irrelevant; however, he did not argue the evidence was prejudicial. Faced with the evidence presented, the trial court only permitted the admission of a single chat. Although the trial court did not repeat on the record the balancing procedure analysis previously conducted at the motion hearing, the court had clearly warned that if Dubois asserted the defense of mistake of identity and no intent, the probative value \\\"may outweigh the prejudicial effect.\\\"\\n[\\u00b625.] To determine if the court conducted the two-part test, we consider the courts analysis at both the pre-trial motion hearing and during trial. Therefore, although the balancing test appears deficient when one merely reads the trial transcript, it becomes more complete when read in conjunction with the pre-trial motion hearing. The trial court clearly warned that its original determination of relevance and prejudice would change if Dubois claimed lack of knowledge or mistake. When Du-bois made those claims, the court admitted one chat. The court substantially applied the test, and we find no abuse of discretion in admitting the evidence.\\n[\\u00b6 26.] Finally, even if the evidence was admitted in error, Dubois fails to demonstrate how the error was prejudicial. State v. Fool Bull, 2008 SD 11, \\u00b6 10, 745 N.W.2d 380, 385 (\\\"Error is prejudicial when, in all probability . it produced some effect upon the final result and affected rights of the party assigning it.\\\")\\n[\\u00b6 27.] The State presented as a witness one of the victims, A.J., depicted in the pictures representing three of the counts. A.J. testified to being twelve to thirteen years of age during his communications with Dubois and at the time the nude pictures of himself were taken. A. J. recounted the context under which he took the images for Dubois to download. A.J. met Dubois in a Yahoo chat room, \\\"South Dakota Chat.\\\" The relationship began innocent enough, discussing school and other neutral topics; however, even in the first chat Dubois suggested the two trade pictures, stating: \\\"I will show you mine, if you show me yours.\\\" Eventually the conversations turned to sexual topics: \\\"Like anal and oral sex.\\\" A.J. testified that he informed Dubois of his age and Dubois was \\\"pretty cool about it\\\" and the two \\\"[cjontinued to talk . about sex stuff.\\\" Similar to Dubois' relationship with St. John, Dubois also provided A.J. his 1-800 number and asked A. J. if he would like to converse on the telephone. A.J. called Dubois three to four times and the contents of the conversations basically were: \\\"How was your day. And then like sex stuff.\\\" At first the two talked on-line or by telephone, every day for a couple of months. Overall, the two stayed in contact for a little over a year.\\n[\\u00b6 28.] During these communications, Dubois sent naked pictures of himself to A.J. and then requested A.J. take \\\"nude pictures\\\" of himself and send them to Du-bois. Dubois specifically requested images that displayed A.J.'s penis. A.J. testified that he was \\\"convinced\\\" by Dubois to take nude pictures of himself and send them to Dubois. The pictures were taken by A.J. in his bedroom while A.J. was twelve or thirteen years old and engaged in a sexually charged conversation/relationship with Dubois. Although Dubois requested to meet with A.J. personally, the meeting never occurred.\\n[\\u00b6 29.] Furthermore, St. John testified that he asked Dubois about the children depicted in the illicit pictures, to which Dubois allegedly replied: \\\"they [children depicted in images] were old enough to know what they were doing . they knew what they were doing.\\\" Based on these and other facts presented at trial, the State presented ample evidence, even without the challenged chat-room testimony, to convict Dubois of knowingly possessing pictures of minors engaging in prohibited sex acts. SDCL 22-24A-3(3).\\n[\\u00b6 30.] Dubois complains of other admissions of prior acts evidence; however, Dubois failed to object to these at trial. Consequently, we could only review them under the \\\"plain error\\\" test. State v. Nelson, 1998 SD 124, \\u00b6 8, 587 N.W.2d 439, 443. The complained of evidence does not constitute plain or prejudicial error, nor does it constitute a miscarriage of justice; thus, the plain error test does not apply. Id. \\u00b6 8; SDCL 23A-44-15. Therefore, because Dubois failed to object to these issues at trial, the same are waived. Interest of JMJ, 2007 SD 1, \\u00b6 25, 726 N.W.2d 621, 632-33 (stating that if the issue is not preserved at trial it is waived) (citation omitted).\\n3. Sufficiency of the Evidence\\n[\\u00b6 31.] Dubois contends that the evidence presented by the State was insufficient to support the guilty verdict. We disagree.\\n[\\u00b632.] This Court's standard of review in a challenge to the sufficiency of the evidence is well settled:\\nIn determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making that determination, we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict. Moreover, the jury is . the exclusive judge of the credibility of the witnesses and the weight of the evidence. Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence.\\nState v. Lewis, 2005 SD 111, \\u00b6 8, 706 N.W.2d 252, 255 (quoting State v. Pasek, 2004 SD 132, \\u00b6 7, 691 N.W.2d 301, 305). Furthermore, \\\"[n]o guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.\\\" State v. Barry, 2004 SD 67, \\u00b6 6, 681 N.W.2d 89, 91-92 (citing State v. Knecht, 1997 SD 53, \\u00b622, 563 N.W.2d 413, 421).\\n[\\u00b6 33.] For the crime of possession of child pornography, the State must prove the individual \\\"[k]nowingly possesses, distributes, or otherwise disseminates any visual depiction of a minor engaging in a prohibited sexual act, or in the simulation of such an act.\\\" SDCL 22-24A-3(3) (emphasis added); see also SDCL 22-24A-2(2) (defining child pornography as: \\\"any image or visual depiction of a minor engaged in prohibited sexual acts\\\"). SDCL 22-24A-2 (16) defines a \\\"prohibited sexual act\\\" as:\\n. [A]ctual or simulated exhibition of the genitals, the pubic or rectal area, or the bare feminine breasts, in a lewd or lascivious manner;.... The term includes encouraging, aiding, abetting or enticing any person to commit any such acts as provided in this subdivision....\\n[\\u00b6 34.] Dubois first contends that the State did not prove he had \\\"knowingly\\\" possessed the pictures. The evidence at trial showed otherwise. St. John testified that he confronted Dubois about these images on his computer several times. When confronted about the pictures, Du-bois stated: \\\"they [children depicted in the images] were old enough to know what they were doing.\\\" A.J. testified that the images representing counts IV, V, and VI were of himself at age twelve or thirteen. He also testified how Dubois solicited these pictures of A.J.'s penis during sexually charged conversations. The evidence was sufficient to satisfy the knowledge element of the charge.\\n[\\u00b6 35.] Dubois next claims that the images representing counts IV, V, and VI did not depict lewd or lascivious acts but merely were naked pictures of a minor. Although the South Dakota statutes do not provide a definition of \\\"lewd or lascivious,\\\" Black's Law Dictionary defines lewd as: \\\"[o]bscene or indecent; tending to moral impurity or wantonness,\\\" 926 (8th ed 2004); Black's Law Dictionary defines lascivious as: \\\"([o]f conduct) tending to excite lust; lewd; indecent; obscene.\\\" 897 (8th ed 2004). In United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd 812 F.2d 1239 (9th Cir.1987), cert denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987), the California district court set out factors to aid in determining whether a picture of a minor constituted \\\"lascivious exhibition of the genitals or pubic area\\\" under the Child Protection Act. The following factors were determined to be relevant:\\n1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;\\n2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;\\n3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;\\n4) whether the child is fully or partially clothed, or nude;\\n5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;\\n6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.\\nId. at 831-32. For a picture to be considered lascivious, the court did not require all factors to be present; rather, the court considered \\\"the overall content of the visual depiction, taking into account the age of the minor.\\\" Id. at 832. The Dost factors are neither exhaustive nor mandatory; however, they provide a workable criterion to an otherwise case-specific inquiry. Moreover, although these factors are not without criticism, numerous other jurisdictions utilize the Dost factors as guidance for determining whether a picture is \\\"lewd or lascivious.\\\" See generally People v. Lamborn, 185 Ill.2d 585, 236 Ill.Dec. 764, 708 N.E.2d 350 (1999); State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1993); People v. Kongs, 30 Cal.App.4th 1741, 37 Cal.Rptr.2d 327 (Cal.App. 2 Dist.1994); Alexander v. State, 906 S.W.2d 107 (Tex.Ct.App.1995); Foster v. Commonwealth, 1989 WL 641956 (Va.App.1989); State v. Dixon, 1998 WL 712344 (Tenn.Crim.App.1998); Commonwealth v. Bean, 435 Mass. 708, 761 N.E.2d 501 (2002); Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003); Foster v. Commonwealth, 1989 WL 641956 (Va.Ct.App.1989); State v. Morrison, 31 P.3d 547 (Utah 2001); People v. Bimonte, 187 Misc.2d 677, 726 N.Y.S.2d 830 (N.Y.City Crim.Ct.2001).\\n[IT 36.] Counts IV, V, and VI are images of A.J., a minor who testified at trial. A.J. testified to the context upon which he took these images. A.J. explained that Dubois sent him naked pictures of himself and then requested A.J. to reciprocate. The pictures were taken while A.J. was twelve or thirteen years old and engaged in a sexually charged conversation with Dubois. Dubois specifically requested images that displayed A.J.'s penis.\\n[\\u00b6 37.] The nature of the depicted images in counts IV and VI are such that the jury could have found them lewd or lascivious. The focus of these images is on A. J.'s genitals. A.J. is completely naked and posing in a provocative unnatural manner. Moreover, counts IV and VI are clearly \\\"designed to elicit a sexual response,\\\" based on the conditions in which the pictures were taken and the unnatural poses. Dost, 636 F.Supp. at 832 (noting \\\"combined effect of the setting, attire, pose, and emphasis on the genitals is designed to elicit a sexual response in the viewer, albeit perhaps not the 'average viewer', but perhaps in the pedophile viewer\\\"); George v. State, 358 Ark. 269, 189 S.W.3d 28, 34-36 (2004) (noting that the act must be viewed in the context of a child's innocence).\\n[\\u00b6 38.] Count V is arguably not as lascivious as the other counts. Again, the picture is of a minor (A.J.) entirely nude. The picture depicts the entire left side of A. J.'s body. A. J.'s pelvis is extended and slightly turned to the camera exposing the entirety of A.J.'s genitalia. Further, A.J.'s genitalia occupy the center of the picture and appear to be the focal point of the image.\\n[\\u00b6 39.] Although whether count V represents a lewd or lascivious exhibition of a minor's genitals may be arguable, it was for the jury to determine. Cummings v. State, 353 Ark. 618, 628, 110 S.W.3d 272, 277 (2003) (stating that whether an image is lewd is a question for the fact finder). Whether a picture is lewd or lascivious is a question for the fact finder, which will not be disturbed \\\"unless it is clearly 'unreasonable, arbitrary and unsupported by the evidence.' \\\" Welch v. Haase, 2003 SD 141, \\u00b6 25, 672 N.W.2d 689, 697 (citation omitted); Atkins v. Stratmeyer, 1999 SD 131, \\u00b6 6, 600 N.W.2d 891, 894 (stating that \\\"a jury's verdict should not be set aside 'except in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law'\\\") (citation omitted). Moreover, \\\"[i]f the jury's verdict can be explained with reference to the evidence, rather than by juror passion, prejudice or mistake of law, the verdict should be affirmed.\\\" Welch, 2003 SD 141, \\u00b6 25, 672 N.W.2d at 697 (citation omitted) (emphasis in original). \\\" '[A]t the appellate level we do not substitute our judgment for that of the jury or trial court.' \\\" State v. Luna, 264 N.W.2d 485, 488 (S.D.1978) (citation omitted). A \\\"verdict on appeal may not, as a matter of law, be set aside for insufficiency of the evidence if the evidence sustains some rational theory of guilt.\\\" Id. Considering the age of the minor, the nature and the content of the picture (count V), we find that the jury's verdict sustains a rational theory of guilt.\\nA Sentence of Thirty Years\\n[\\u00b6 40.] For the five counts of child pornography the trial court sentenced Dubois to forty-six years, sixteen of which will run concurrently, for a total of thirty years in the South Dakota State Penitentiary. Du-bois contends that a thirty year sentence is grossly disproportionate to the crime committed and constitutes cruel and unusual punishment, in violation of the Eighth Amendment of the United States Constitution and Article VI, section 23 of the South Dakota Constitution.\\n[\\u00b6 41.] \\\"It is well-settled that we employ very limited principles in our constitutional review of sentences. These principles include giving 'substantial deference' to the legislature's broad authority to determine the types and limits of punishment' and the notion that 'the Eighth Amendment does not mandate adoption of any one penological theory.' \\\" State v. Garber, 2004 SD 2, \\u00b6 28, 674 N.W.2d 320, 327 (citations omitted). As a result of these principles, a sentence within the statutory maximum will rarely be disturbed. Id. When assessing the constitutionality of a particular sentence we apply the gross dis-proportionality test. State v. Williams, 2006 SD 11, \\u00b6 12 n. 2, 710 N.W.2d 427, 432 n. 2.\\n\\\"[To] assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court.\\\" If the sentence does not appear grossly disproportionate, no further review is necessary. If the sentence does appear grossly disproportionate, an intra- and inter-jurisdictional analysis shall be conducted. We also consider \\\"the gravity of the offense and the harshness of the penalty;\\\" and other relevant factors, such as the effect this type of offense has on society.\\nId. \\u00b6 12 (citations omitted). When reviewing sentences, we evaluate the individual sentence for each count, opposed to scrutinizing the aggregate sentence. State v. Buchhold, 2007 SD 15, \\u00b6 30-32, 727 N.W.2d 816, 823-24.\\n[\\u00b6 42.] We have previously noted \\\"crimes against children especially sex offenses, have increased nationwide by epidemic proportions\\\"; as a result, our Legislature has imposed significant penalties for persons who exploit children for sexual gratification. State v. Blair, 2006 SD 75, \\u00b6 24, 721 N.W.2d 55, 62. Each image of child pornography represents a separate offense, punishable by up to ten years in the state penitentiary and a $20,000 fine. State v. McKinney, 2005 SD 74, \\u00b6 27, 699 N.W.2d 460, 468 (citations omitted); SDCL 22-6-1(7).\\n[\\u00b6 43.] Dubois contends the thirty year sentence was grossly disproportionate to the crimes. He argues that the court failed to consider that there was no evidence presented demonstrating his sexual deviance had progressed beyond mere possession of child pornography, that there was no evidence of any actual \\\"emotional or other\\\" harm caused to the victims, and that he has no substantial criminal record.\\n[\\u00b6 44.] We first consider Dubois' conduct. Three of the charges derived from contact (via telephone and internet) Dubois had with a twelve to thirteen-year-old (A.J.). Dubois had knowledge of his age yet continued to carry on sexually charged conversations and to solicit the child for pictures of his penis. Furthermore, Du-bois unsuccessfully attempted to set up face-to-face meetings with the minor. Ad ditionally, evidence was presented which demonstrated similar conduct with another allegedly underage child. This predatory behavior certainly concerned the court. It stated, \\\"[Dubois] preyed upon children half [his] age . in an attempt to satisfy [himself].\\\"\\n[\\u00b6 45.] The court believed Dubois to be a person with psychological problems who attempted to minimize his crimes. Although Dubois claims there was no evidence presented that his sexual deviance had progressed, the pre-sentence psycho-sexual evaluation labeled him as: \\\"self-absorbed\\\"; \\\"defensive\\\"; minimizing his actions as merely conversations; and described Dubois as being in the \\\"development stage of pedophilia.\\\" The judge noted that in his thirty years on the bench he had never heard such a classification. The evaluations also warned of risk factors that indicated it was only a matter of time until Dubois became more confident and assertive, \\\"in eliciting the young men.\\\" The sentencing court relied on this evaluation heavily, acknowledging that it had read it \\\"several times.\\\"\\n[\\u00b6 46.] Dubois' description of his crimes as harmless is unfounded. We have recognized that there are many layers to the harm caused by child pornography. First, the fact that the image exists and was \\\"disseminated perpetuates the abuse initiated by the producer of the materials. '[T]he materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.' . The consumer who 'merely' or 'passively' receives or possesses child pornography directly contributes to this continuing victimization.\\\" McKinney, 2005 SD 74, \\u00b6 29, 699 N.W.2d at 469 (citations omitted) (emphasis in original). Second, the mere existence of child pornography is a direct violation of that child's privacy and reputational interests. Id. (citations omitted). Third, the aficionado or consumer of this abusive material \\\"instigates the original production of child pornography by providing an economic motive for creating and distributing the materials.\\\" Id. (citations omitted). Congress has explicitly found:\\n[T]he existence of and traffic in child pornographic images . inflames the desires of child molesters, pedophiles, and child pornographers, thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children who are victimized as a result of the existence and use of these materials[.]\\nId. (quoting United States v. Norris, 159 F.3d 926, 929-30 (5thCir.1998) (quoting 1996 Act, 121, 110 Stat at 3009-27)). \\\"The consumers of child pornography therefore victimize the children depicted in child pornography by enabling and supporting the continued production of child pornography, which entails continuous direct abuse and victimization of child subjects.\\\" Id. (citations omitted). In this case, Dubois was more than a passive participant; he actively preyed on at least one child.\\n[\\u00b6 47.] Finally, Dubois claims that the sentencing court failed to consider his minimal criminal record, which included two convictions for theft by deception. Although a court may consider past criminal conduct when sentencing, the court made it clear that its main concern was Dubois' exploitation of children. The court stated specifically that the sentence was designed to \\\"incapacitate\\\" the threat of Dubois. The court expressed its belief that Dubois' chances of rehabilitation were \\\"slim\\\" because of Dubois' minimalization of his crimes and his failure to recognize that he has psychological problems. Dubois has failed to establish that the sentence constitutes cruel and unusual punishment.\\n[\\u00b6 48.] We affirm.\\n[\\u00b6 49.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.\\n. St. John was on probation for Grand Larceny-\\n. The pertinent portion of SDCL 22-24A-3 reads:\\nA person is guilty of possessing, manufacturing, or distributing child pornography if the person:\\n(3) Knowingly possesses, distributes, or otherwise disseminates any visual depiction of a minor engaging in a prohibited sexual act, or in the simulation of such an act. Consent to performing these proscribed acts by a minor or a minor's parent, guardian, or custodian, or mistake as to the minor's age is not a defense to a charge of violating this section.\\n. SDCL 19-12-5 states:\\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.\\n. SDCL 19-12-3 states:\\nAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\\n. In Dubois' brief he asserted that there were no oral or written findings to explain why the chat log was admissible. Contrary to this assertion the trial court provided Dubois with many warnings that he could potentially open the door wide enough to allow the chat room discussion into evidence. Finally, the court stated that:\\n[F]rom the very beginning, in the opening statements, the defense has indicated that part of the defense was that someone else did that. There were other users and they could have been the ones who placed [the pictures] on there. In your cross-examination of Mr. Light, you went into that, that there were twenty-four others who were using this.\\n. The complained of chat, which was allowed to be read into the record, was allegedly between Dubois and another boy who claimed to be fifteen years old. Dubois carried on a sexually charged conversation with this person and then sent him to a website where the alleged \\\"fifteen-year-old\\\" could view nude pictures of Dubois. Dubois asked the person if he had any pictures or a camera, the \\\"fifteen-year-old\\\" had neither. Dubois then provided the \\\"fifteen-year-old\\\" with his 1-800 number so they could converse telephonically and attempted to schedule a face-to-face meeting.\\n. Dubois does not contest the lewdness or lasciviousness of pictures representing counts I and II.\\n. In U.S. v. Hill, 322 F.Supp.2d 1081, 1086-1087 (C.D.Cal.2004), the court criticizes the Dost factors as \\\"malleable and subjective.\\\" Id. at 1085. While the Dost factors are not a \\\"bright-line\\\" test, they do provide some guidance.\\n. The trial court sentenced Dubois ten years each for counts I, II and IV all set to run consecutively, and eight years each for counts V and VI, set to run concurrently with counts I, II and IV.\"}"
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+"{\"id\": \"8412190\", \"name\": \"Mary C. LOWE, Plaintiff and Appellant, v. Karl M. SCHWARTZ, Defendant and Appellee\", \"name_abbreviation\": \"Lowe v. Schwartz\", \"decision_date\": \"2006-06-07\", \"docket_number\": \"No. 23749\", \"first_page\": \"777\", \"last_page\": \"782\", \"citations\": \"716 N.W.2d 777\", \"volume\": \"716\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:38:53.400407+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 19.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.\", \"parties\": \"Mary C. LOWE, Plaintiff and Appellant, v. Karl M. SCHWARTZ, Defendant and Appellee.\", \"head_matter\": \"2006 SD 48\\nMary C. LOWE, Plaintiff and Appellant, v. Karl M. SCHWARTZ, Defendant and Appellee.\\nNo. 23749.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Feb. 13, 2006.\\nDecided June 7, 2006.\\nClark J. Bormann of Bormann & Myer-chin, LLP, Bismarck, North Dakota, Attorneys for plaintiff and appellant.\\nKarl M. Schwartz, Sikeston, Missouri, Pro Se appellee.\", \"word_count\": \"2933\", \"char_count\": \"17460\", \"text\": \"ZINTER, Justice.\\n[\\u00b6 1.] Mary C. Lowe failed to appeal from a final judgment and decree of divorce. Instead, she moved to vacate and modify the judgment under SDCL 15 \\u2014 6\\u2014 60(b). The trial court denied the motion. We affirm.\\nFacts and Procedural History\\n[\\u00b6 2.] Lowe and Karl M. Schwartz were married on August 23, 1997. At the time of the marriage, Lowe was a business consultant, and Schwartz was a member of the Coast Guard. Their 1997 federal income tax return reported that Lowe made $101,093 and that Schwartz had wages of $28,019.\\n[\\u00b6 3.] In April 1998, approximately seven months after the marriage, Schwartz retired from the Coast Guard and began to receive monthly retirement benefits. After Schwartz's retirement, Lowe's income paid the vast majority of the household expenses. However, in June 2000, Lowe suffered a heart attack and was diagnosed with arteriosclerotic cardiovascular disease. Because of the stress of her job, Lowe was unable to continue working as a business consultant earning a substantial income.\\n[\\u00b6 4.] Prior to Lowe's diagnosis, the marital relationship had begun to deteriorate. Although Lowe and Schwartz attended counseling, they were unable to rehabilitate the marriage. In August 2003, Lowe filed for divorce alleging extreme cruelty and neglect.\\n[\\u00b6 5.] At trial, it was established that after her illness, Lowe became self-employed, selling \\\"beanie babies and beads\\\" over the Internet. It was also established that during the course of the marriage Lowe's net worth declined from $365,000 to $80,000. In comparison, Schwartz entered the marriage with virtually no assets and left the marriage with relatively little except his retirement. At the time of the divorce, he was earning between $2,200 and $2,500 per month as a truck driver. He was also receiving $1,359 per month from his Coast Guard retirement.\\n[\\u00b6 6.] After considering the circumstances of the parties, the trial court granted the divorce on the grounds of extreme cruelty, divided the marital assets, and awarded Lowe alimony in the amount of $135 per month. The trial court requested that Lowe's attorney prepare conforming findings of fact and conclusions of law. When Lowe's attorney failed to prepare them, Schwartz's attorney prepared proposed findings and conclusions. The trial court's ultimate findings, conclusions, and judgment ordered that: 1) Lowe was entitled to alimony in the amount of $135 per month from Schwartz's retirement benefit; 2) the $135 was to be used for Coast Guard survivor medical benefits (insurance); however, Schwartz was not entitled to any of the Coast Guard former spouse protection annuity; 3) Schwartz was to cooperate in completing the paperwork necessary to convert the Coast Guard \\\"survivor benefit plan\\\" to a \\\"former spouse protection\\\" plan for medical benefits only; 4) in the event Lowe was not eligible to receive the Coast Guard surviv- or medical benefits, Schwartz was not obligated to provide any alternative insurance or other monetary payment other than the $135; 5) Lowe was to satisfy a $4,300 judgment she had previously obtained against Schwartz; and 6) any of Schwartz's property, that was subject to execution under the judgment was to be released.\\n[\\u00b6 7.] Lowe did not object to the trial court's findings of fact and conclusions of law, and she did not appeal the trial court's final judgment. Instead, Lowe filed a motion to vacate and modify the judgment under SDCL 15 \\u2014 6\\u201460(b). The trial court denied Lowe's motion. Lowe appeals, raising the following issues:\\n1) Whether Lowe was entitled to relief from the judgment on the ground that the value of Schwartz's retirement plan was not considered a marital asset.\\n2) Whether Lowe was entitled to relief from the judgment on the ground that there was insufficient evidence to support the trial court's findings of fact and conclusions of law.\\nAnalysis and Decision\\n[\\u00b6 8.] \\\"The decision to grant or deny a motion under SDCL 15 \\u2014 6\\u201460(b) rests with the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion.\\\" Walsh v. Larsen, 2005 SD 104, \\u00b6 6, 705 N.W.2d 638, 641 (quoting Porter v. Porter, 1996 SD 6, \\u00b6 4, 542 N.W.2d 448, 449 (citing Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994))).\\nRule 60(b)\\n[\\u00b6 9.] Lowe's motion alleges that Schwartz's retirement plan was not considered a marital asset and that there was insufficient evidence to support some of the trial court's findings of fact and conclusions of law. Before considering these underlying arguments, we must address the availability of Rule 60(b) relief. In considering the availability of Rule 60(b) relief, we note that each of Lowe's underlying arguments could have been raised on a direct appeal. Lowe, however, did not appeal. Instead, she sought the \\\"extraordinary remedy\\\" of Rule 60(b) relief. See People ex rel. D.G., 2004 SD 54, \\u00b6 7, 679 N.W.2d 497, 500.\\n[\\u00b6 10.] Rule 60(b), however, \\\"is not a substitute for an appeal. It does not allow relitigation of issues that have been resolved by the judgment. Instead it refers to some change in conditions that makes continued enforcement inequitable.\\\" Sjomeling v. Stuber, 2000 SD 103, \\u00b6 14, 615 N.W.2d 613, 616 (quoting 11 Charles A. Wright et al., Federal Practice and Procedure \\u00a7 2863 (2d ed 1995)). See also United States v. Young, 806 F.2d 805, 806 (8thCir.1986) (\\\"Rule 60(b) is not available as a substitute for appeal.\\\"). Therefore, \\\"[a]n appeal from a Rule 60(b) decision does not bring the original judgment up for review, but only the decision on the request for relief from the judgment under Rule 60(b).\\\" Chester v. St. Louis Hous. Auth., 820 F.2d 259, 260 (8thCir.1987) (quoting Fox v. Brewer, 620 F.2d 177, 179-80 (8thCir.1980)).\\n[\\u00b6 11.] Lowe's motion was premised on SDCL 15-6-60(b)(l), which provides:\\nOn motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:\\n(1) Mistake, inadvertence, surprise, or excusable neglect[.]\\nThe intent of this rule is to \\\"preserve the delicate balance between the sanctity of final judgments and the incessant command of a court's conscience that justice be done in light of all the facts.\\\" Action Carrier, Inc. v. United Nat'l Ins. Co., 2005 SD 57, \\u00b6 14, 697 N.W.2d 387, 391 (quoting Upper Plains Contracting Inc. v. Pepsi Americas, 2003 SD 3, \\u00b6 16, 656 N.W.2d 323, 328 (quoting Colton Lumber Co. v. Siemonsma, 2002 SD 116, \\u00b6 10, 651 N.W.2d 871, 874)). \\\"The trial court should exercise its discretion liberally in accordance with legal and equitable principles so as to promote the ends of justice.\\\" Elliott v. Cartwright, 1998 SD 53, \\u00b6 7, 580 N.W.2d 603, 604 (citations omitted).\\n[\\u00b6 12.] However, unlike most Rule 60(b)(1) cases, this case was tried on the merits. In fact, the trial court entered the judgment only after both parties retained counsel, engaged in discovery, and completed a trial on the same issues raised in the motion. Therefore, this judgment was obtained after considering the facts. Thus, the necessity for a liberal exercise of discretion was diminished, making Lowe's burden of establishing an abuse of discretion more difficult. As the Eighth Circuit Court of Appeals has observed \\\"[tjhere is much more reason for liberality in reopening a judgment when the merits of the case never have been considered than there is when the judgment comes after a full trial on the merits.\\\" MIF Realty L.P. v. Rochester Assocs., 92 F.3d 752, 756 (8thCir.1996) (citing 11 Charles A. Wright et al., Federal Practice and Procedure \\u00a7 2857, at 257-58.\\n[\\u00b6 13.] Furthermore, it must be emphasized that all of Lowe's arguments with the trial court's judgment arise from Lowe's failure to prove her case or prevail on arguments that either were or could have been raised at trial. As a result, Lowe's Rule 60(b) motion is seeking to correct alleged mistakes of the trial court that occurred during trial and that resulted in, from Lowe's perspective, an unsatisfactory judgment. However, \\\"relief will not be granted under Rule 60(b)(1) merely because a party is unhappy with the judgment.\\\" 11 Charles Alan Wright, Arthur R. Miller <& Mary Kay Kane, Federal Practice and Procedure \\u00a7 2858, at 276. Rather, under Rule 60(b)(1), Lowe \\\"must make some showing of why [s]he was justified in failing to avoid mistake or inadvertence [at trial].\\\" Id. at 276-77. We consider Lowe's motion under this standard.\\n1) Vacation of a Final Judgment on the Allegation That a Retirement Plan Was Not Considered a Marital Asset\\n[\\u00b6 14.] Lowe argues that the trial court mistakenly failed to consider Schwartz's retirement plan as a marital asset in making its property award. However, the trial court did consider the retirement plan as a marital asset in dividing the property. On numerous occasions during trial, it was brought to the court's attention that Schwartz was receiving $1,359 per month in retirement benefits. Furthermore, after hearing substantial evidence regarding Schwartz's retirement plan, the court allowed the parties two weeks to provide the court with more information regarding the transferability of the retirement plan. Finally, the trial court actually awarded Lowe a portion of the benefits. The court indicated its award was approximately ten percent of the monthly benefit. Consequently, there was no mistake or neglect because the retirement plan was considered a marital asset and was apportioned between the parties even though the plan and its present value were not apportioned as Lowe now requests. Under the circumstances, Lowe has failed to demonstrate the mistake or excusable neglect necessary for Rule 60(b)(1) relief.\\n2) Vacation of a Final Judgment on the Allegation That the Trial Evidence was Insufficient to Support the Trial Court's Findings of Fact and Conclusions of Law\\n[\\u00b6 15.] Lowe also argues that there was insufficient evidence to support the trial court's findings of fact and conclusions of law determining that: 1) Lowe should be denied survivor annuity benefits; 2) Lowe agreed to satisfying the money judgment she had against Schwartz if she received any property or alimony; and 3) Lowe agreed to release Schwartz's property that was subject to execution under the judgment.\\n[\\u00b6 16.] In analyzing this issue, it must be noted that Lowe did not object to these findings of fact and conclusions of law. Consequently, although Lowe had the opportunity to address the sufficiency of the evidence, she neglected to avail herself of the opportunity to bring her arguments to the court's attention at trial. That failure precludes Rule 60(b) relief. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure \\u00a7 2858, at 279-80 (providing a collection of analogous cases that indicate relief has been denied based on an attorney's omission in \\\"failing to read a proposed settlement, losing track of time, or when the oversight was due to the 'demands of being a busy lawyer' \\\") (citing In re Four Seasons Secs. Laws Litig., 502 F.2d 834 (10thCir.1974) (failing to read a proposed settlement); Lomas & Nettleton Co. v. Wiseley, 884 F.2d 965 (7thCir.1989) (losing track of time); Lepkowski v. U.S. Dep't of Treasury, 804 F.2d 1310 (D.C.Cir.1986) (demands of busy lawyer)). \\\"[C]ourts have[, however,] held that [a] party should not be deprived of the opportunity to present the merits of the claim because of a technical error or slight mistake by the party's attorney.\\\" Id. at 272-73. But, in this case, Lowe was not deprived of the opportunity to present the merits of her current claims. Moreover, she has not made any showing of justification or excuse for her trial counsel's failure to submit proposed find ings and conclusions or objections to Schwartz's proposed findings. Having failed to object to the court's findings at trial, and having made no showing of justification or excuse for this omission, Lowe's collateral attack on the sufficiency of the evidence fails.\\n[\\u00b6 17.] In sum, Lowe failed to exercise her opportunity to litigate and appeal the court's division of the retirement plan and the sufficiency of the evidence. Furthermore, she has not demonstrated mistake or excusable neglect. Because Lowe failed to make the requisite Rule 60(b)(1) showing, the trial court correctly denied Lowe's motion.\\n[\\u00b6 18.] Affirmed.\\n[\\u00b6 19.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.\\n[\\u00b6 20.] SABERS, Justice, dissents.\\n. Lowe had Schwartz sign a promissory note for money she loaned him for a down payment on a motorcycle. On July 10, 2001, Lowe received a judgment against Schwartz for the entire amount of the note.\\n. Two additional points need to be made. First, finding of fact twenty-two and conclusion of law six both provided that \\\"[Schwartz] shall pay to [Lowe] permanent alimony in the sum of $135 per month from [Schwartz's] retired pay.\\\" (Emphasis added.) Consequently, at the hearing on Lowe's motion to vacate the judgment, the trial court stated:\\nThe argument that's been made is that the [c]ourt didn't have the opportunity to consider the value of the retirement fund that was held by Mr. Schwartz, and that is \\u2014 I understand the argument that's being made, and I understand where it's coming from, but it's simply not correct.\\nThe [c]ourt had access to the information. I knew that Mr. Schwartz had a retirement stipend monthly in the amount of $1,359. It is true that it was not ever calculated out at the trial date like it has been done in this motion, where a person calculates out life expectancy and comes up with a total value amount for a lifetime of retirement income, and then reduces it to a present value; but the [c]ourt is certainly aware that that can be done. That wasn't necessary in this case. It wasn't presented by either party. Instead, what the [c]ourt had in its grasp and in the information provided to it was that Mr. Schwartz was receiving a retirement income of $1,359 per month.\\nAfter considering all of the evidence and the arguments presented, including all of the assets that the parties had accumulated and brought into the marriage, the [c]ourt awarded Ms. [L]owe a 10 percent amount of that retirement, and that was $135.... I considered the value of his retirement benefit, and there is nothing that's new being presented here today.\\nSecond, at trial, the court questioned counsel why the retirement plan was omitted from Schwartz's financial statement stating: \\\"When I look at his financial statement I don't see listed on assets his Coast Guard retirement.\\\" Schwartz's attorney responded with the argument that the retirement plan had little cash value:\\nThat's because it's not worth anything to him cash value right now. He can't go take $10,000.00 out of it right now. He gets a monthly payment on that like social security. So that's why it's not listed here.\\nI can't tell you his Coast Guard retirement is worth $80,000.00. If he dies tomorrow, it's not worth anything. That's why we don't have that listed on assets, it's just a monthly payment he gets.\\nAlthough this explanation would not, in and of itself, have been sufficient to exclude the retirement plan as a marital asset, this exchange clearly shows that Lowe and the court were aware of Schwartz's retirement plan and the fact that it was not listed on his financial statement. At this point, Lowe had the opportunity to object to the omission, argue that it was a marital asset subject to division, and present evidence regarding its present value based on life expectancy. Lowe, however, failed to pursue these matters at trial. And, on her Rule 60(b)(1) motion, she did not explain why she was justified in failing to do so. Therefore, she failed to establish mistake or excusable neglect even if the retirement plan had not been considered as a marital asset.\\n. Lowe is represented by different counsel on appeal.\"}"
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+"{\"id\": \"8419842\", \"name\": \"Kimberly Kay Spieker MILLER, f/k/a, Kimberly Kay Jacobsen, Plaintiff and Appellee, v. Todd Wayne JACOBSEN, Defendant and Appellant\", \"name_abbreviation\": \"Miller v. Jacobsen\", \"decision_date\": \"2006-04-05\", \"docket_number\": \"Nos. 23630, 23649\", \"first_page\": \"69\", \"last_page\": \"84\", \"citations\": \"714 N.W.2d 69\", \"volume\": \"714\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:00:02.863536+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 63.] KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.\", \"parties\": \"Kimberly Kay Spieker MILLER, f/k/a, Kimberly Kay Jacobsen, Plaintiff and Appellee, v. Todd Wayne JACOBSEN, Defendant and Appellant.\", \"head_matter\": \"2006 SD 33\\nKimberly Kay Spieker MILLER, f/k/a, Kimberly Kay Jacobsen, Plaintiff and Appellee, v. Todd Wayne JACOBSEN, Defendant and Appellant.\\nNos. 23630, 23649.\\nSupreme Court of South Dakota.\\nConsidered on Briefs on Jan. 9, 2006.\\nDecided April 5, 2006.\\nNancy L. Oviatt of Green, Roby, Oviatt, Cummings & Linngren, Watertown, South Dakota, Attorneys for plaintiff and appel-lee.\\nRebecca L. Morlock Reeves of Wiles and Rylance, Watertown, South Dakota, Attorneys for defendant and appellant.\", \"word_count\": \"6881\", \"char_count\": \"40965\", \"text\": \"GILBERTSON, Chief Justice.\\n[\\u00b6 1.] Kimberly Kay Spieker Miller (Kimberly) filed a motion seeking modification of a child support obligation order and divorce decree from Todd Wayne Ja-cobsen (Todd). The trial court found facts sufficient to warrant an increase in Todd's child support obligation but denied Kimberly's motion to modify the divorce decree. We affirm on Issues 1, 2, 3, and 5 and remand Issue 4 to the trial court for a determination of when an upward deviation from the basic child support obligation for transportation needs ends.\\nFACTS AND PROCEDURE\\n[\\u00b6 2.] Kimberly and Todd were married on May 13,1989. Their son, Andrew Kris-tian, was born on July 19, 1989. Andrew has been disabled since birth due to cerebral palsy and a seizure disorder. Kimberly and Todd divorced on May 10, 1993, at which time Kimberly was awarded full custody of Andrew under a stipulated agreement and subject to Todd's visitation rights.\\n[\\u00b6 3.] The stipulated agreement called for Todd to continue paying child support per the terms specified as long as Andrew \\\"is dependent or until further order of the court.\\\" It also required the parties to exchange income information annually and for Todd to provide proof of $200,000 in life insurance maintained for Andrew's benefit. In addition, the agreement called for Kimberly to claim Andrew as a depen-dant for income tax purposes in odd numbered years and Todd to claim him in even numbered years. Under the terms of the original stipulated agreement, Todd was required to pay $516 per month in basic child support per the support schedule in SDCL 25-7-6.2. An additional $155 per month in child support was included based on Andrew's special needs. The language of the agreement provided:\\nThe parties further agree that in addition to the basic child support obligation which is set by the schedule found at SDCL 25-7-6.2, Todd will pay an additional $100 per month as support. Todd also agrees to pay an additional $55 per month in recognition of the special needs his son has for transportation. Said additional $55 per month payment shall continue to be made each month until the van in which Kim now transports Andrew is paid in full or October 28, 1997.\\n[\\u00b6 4.] In 2001, Kimberly contacted Todd to inform him that due to changes in circumstances and Andrew's enrollment in a specialized school in Sioux Falls, South Dakota, with tuition paid by public funds, any dollar amount over $300 per month received by Kimberly would have to be forwarded to the State. Therefore, she proposed a reduction from the original $676 child support obligation to $300. In June 2001, the parties signed a modification to the child support agreement thereby incorporating the new amount.\\n[\\u00b6 5.] Currently, Andrew is fifteen years old and weighs sixty-five pounds. His disability requires him to have extensive care and assistance with activities of daily living. Andrew must be fed, dressed and diapered daily, as well as requiring assistance with medications, bathing, and toileting twice a day. He takes medications three times per day for seizure control, drooling, and bowel elimination. Andrew must be turned at least once each night when he is sleeping. He also has a drug pump in his abdomen that delivers medication to his spinal column for relief of muscle tightness. Andrew spends the majority of his day in his wheelchair and requires physical assistance for transfers to and from his wheelchair.\\n[\\u00b6 6.] Kimberly and Andrew have lived in Watertown, South Dakota, since 1993. Kimberly works as an occupational therapy assistant, and is remarried. Todd has lived in Longmont, Colorado, since before the divorce and is now remarried. He sees Andrew approximately once a year for a visit. Todd has not seen Andrew since 2003 and has made no recent contact with Andrew's school or caregivers.\\n[\\u00b6 7.] Andrew attends school at Children's Care Hospital in Sioux Falls during the school year and during summer session. He remains in Sioux Falls at the school from Monday morning to Friday afternoon each week school is in session. Kimberly drives him to Sioux Falls each Monday morning that school is in session and returns on Friday afternoons to take him back to Watertown for the weekend. Andrew is home in Watertown every weekend from Friday night until Monday morning, during school holidays, and during summer break. Thus, Andrew lives with Kimberly slightly more than fifty percent of the year.\\n[\\u00b6 8.] Kimberly has been for the last fifteen years, and continues to be, Andrew's primary caregiver at home. She attends to his medical needs, coordinates and arranges for his care when she is at work, and attends all his medical appointments. She often uses her vacation time from work to attend to Andrew's needs and, on occasion, has had to take leave without pay due to Andrew's medical needs. Kimberly and her husband have made numerous adaptations to their home to provide better care for Andrew. They recently installed a lift system and bathtub in Andrew's room and have built a wheelchair ramp outside their home.\\n[\\u00b6 9.] Kimberly's parents have provided care for Andrew when he is home on school breaks and Kimberly is at work. Her parents have provided the care without charge. Due to their ages and her father's recent retirement, Kimberly anticipates having to hire caregivers in the near future to administer medication and meet Andrew's complex physical needs while he is home and she is at work. The cost of the care was estimated at $2,400 per year by Kimberly at the hearing.\\n[\\u00b6 10.] Andrew's disability requires Kimberly to use a van equipped with a lift and lock-down system to transport him from Watertown to Sioux Falls each week for school, to medical appointments, and to recreational outings. The van is used exclusively for Andrew's transportation, not for Kimberly or her family's use. Kimberly has purchased two vans since the divorce. She replaced the original van with a used van with high mileage in January 2004, but it has been expensive to operate and must be replaced. Based on Kimberly's knowledge of Andrew's limitations and needs for his future growth, including additional headroom, at the time of the hearing Kimberly planned to trade in the current vehicle and purchase a new van in the near future. The total cost was estimated at approximately $35,654, but after trade in of the current vehicle and lift system and rebates, the sum of $30,075 needed to be borrowed to pay for the new van. Kimberly's monthly payment was scheduled to be $507.66.\\n[\\u00b6 11.] On November 5, 2004, Kimberly initiated the current proceedings seeking a modification of Todd's child support obligation and a modification to the divorce decree to permit Kimberly to claim Andrew each year as a dependant for income tax purposes. Prior to filing her motion to modify the judgment of divorce, 'Kimberly requested Todd's compliance with the terms of the stipulated agreement with regard to proof of life insurance maintained for Andrew's benefit and proof of income. Todd failed to respond to the requests, and Kimberly filed a motion with the court to compel production. Todd failed to produce the required information until the morning of the hearing.\\n[\\u00b6 12.] On December 15, 2004, a hearing on the matter was held. After testimony from both Kimberly and Todd, the trial court held that Todd's child support obligation per SDCL 25-7-6.2 was based on an annual income of $84,000, and a monthly net income of $4,159, which provides a monthly basic child support obligation of $690. The trial court found Andrew spent significant time outside Kimberly's home at school and, therefore, modified the child support obligation by deviating downward by fifty percent to $345 per month. The trial court found that Andrew required caregivers to attend to his complex physical needs and that due to Kimberly's parents' advancing age, paid caregivers would need to be hired at an annual cost of $2,400. Therefore, it ordered an additional upward deviation to Todd's basic child support obligation, of $144 per month for caregivers to provide the necessary care for Andrew while he is in Kimberly's home and she is at work.\\n[\\u00b6 13.] The trial court also found that Andrew's special health care needs required the purchase of a new van and lift system, and ordered an upward deviation of $380 per month for the cost of the new van and lift system. Based on Kimberly's documentation, the loan for the new van was scheduled to be paid in full on February 1, 2011. The trial court ordered Todd to make the $380 monthly payment through the life of the loan until it was paid in full on February 1, 2011.\\n[\\u00b6 14.] Todd's total child support payment was set at $869 per month, which included $345 in basic child support plus the upward deviations of $144 for paid caregivers and $380 for the van payment. The trial court ordered that the $345 in basic child support and the $144 upward deviation for paid caregivers was effective December 1, 2004, and was to be paid to the Office of Child Support Enforcement \\\"[b]eginning March 1 and on the 1st day of each month thereafter!.]\\\" Th\\u00e9 .trial court did not specify a time for the expiration of this portion of Todd's child support obligation, but noted with regard to the monthly $380 van payment \\\"there has to be a mechanism for closing that off, if it is a four year [loan] I think it ought to be for four years.even though the child is going to be 18 and probably the child support obligation will end, but the moral obligation.doesn't end.\\\" i\\n[\\u00b6 15.] Finally, the trial court awarded Kimberly $750 of the $1;128 in attorney fees she incurred to bring the motion to modify the divorce decree. The trial court found a portion of Kimberly's attorney fees were incurred due to Todd's failure to timely comply with the requirement in the divorce decree to provide the income and insurance information after numerous requests.\\n[\\u00b6 16.] Todd appeals the following issues:\\n1. Whether the trial court erred when it calculated Todd's net monthly income.\\n2. Whether the trial court erred in calculating Todd's child support obligation when it included upward deviations for the purchase of a van and paid caregivers for Andrew.\\n3. Whether the trial court erred when it failed to provide Todd with a credit for overpayments in vehicle and medical payments previously made to Kimberly.\\n4. Whether the trial court erred when it failed to comply with SDCL 25-5-18.1 and specify the termination date of Todd's child support obligation.\\n5. Whether the trial court erred when it awarded Kimberly attorney fees.\\n[\\u00b6 17.] Both parties request attorney fe\\u00a7s for the appeal currently before this Court per the provisions of SDCL 15-26A-87.3. Each party has submitted affidavits with verified, itemized statements of legal services with their respective motions for attorney fees. Todd requests $3,928.68 in attorney fees, while Kimberly requests $3,727.\\nSTANDARD OF REVIEW\\n[\\u00b6 18.] We review the trial court's award or denial of child support under the abuse of discretion standard. Midzak v, Midzak, 2005 SD 58, \\u00b6 17, 697 N.W.2d 733, 738 (citing Billion v. Billion, 1996 SD 101, \\u00b6 14, 553 N.W.2d 226, 230 (citing Vander Pol v. Vander Pol, 484 N.W.2d 522 (S.D.1992))). A trial court's award of attorney fees is also reviewed under the abuse of discretion standard of review. In re South Dakota Microsoft Litig., 2005 SD 113, \\u00b627, 707 N.W.2d 85, 97-98 (citing Anderson v. Aesoph, 2005 SD 56, \\u00b6 18, 697 N.W.2d 25, 31) (citations omitted). As such, our purpose is not to determine \\\"whether we would have made an original like ruling, but whether a judicial rnind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.\\\" Johnson v. Johnson, 468 N.W.2d 648, 650 (S.D. 1991) (citing Nelson v. Nelson, 454 N.W.2d 533 (S.D.1990)). The exercise of discretion by the \\\"trial court must have a sound basis in the evidence presented.\\\" Linard v. Hershey, 489 N.W.2d 599, 603-04 (S.D. 1992) (citing Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334 (1975)). An abuse of discretion occurs when \\\"discretion [is] exercised to an end or purpose not justified by, and clearly against, reason and evidence.\\\" Watson-Wojewski v. Wojewski, 2000 SD 132, \\u00b6 14, 617 N.W.2d 666, 670 (quoting Billion, 1996 SD 101, \\u00b6 14, 553 N.W.2d at 230 (quoting Kanta v. Kanta, 479 N.W.2d 505, 507 (S.D.1991))).\\n[\\u00b6 19.] We review the trial court's findings of fact under the clearly erroneous standard. Johnson, 468 N.W.2d at 650 (citing SDCL 15-6-52(a)). We will overturn the trial court's findings of fact on appeal only when a complete review of the evidence leaves the Court with a definite and firm conviction that a mistake has been made. Id. (citing Johnson v. Johnson, 451 N.W.2d 293, 295 (S.D.1990)).\\nANALYSIS AND DECISION\\n[\\u00b620.] 1. Whether the trial court erred when it calculated Todd's net monthly income.\\n[\\u00b6 21.] A parent's net monthly income for child support purposes is determined under SDCL 25-7-6.3, which provides in relevant part:\\nThe monthly net income of each parent shall be determined by the parent's gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:\\n(1) Compensation paid to an employee for personal services, whether sala ry, wages, commissions, bonus, or otherwise designated!].]\\n[\\u00b6 22.] Todd failed to provide Kimberly with his income information as required by the stipulated agreement. He did provide a copy of his 2003 W-2 on the morning of the hearing, which indicated his wages for 2003. During Todd's direct examination, the following testimony was given:\\nQ. Todd, how are you employed?\\nA. I'm employed with Lockheed as a systems engineer.\\nQ. And is that \\u2014 are you salaried or are you paid hourly?\\nA. I'm salary.\\nQ. What is your salary for this year?\\nA. I think it's approximately $84,000.\\nTodd's 2003 W-2 was then entered into evidence, which indicated his salary for 2003 was $75,785. During cross-examination, Todd was asked if his current salary was $84,000. Todd responded: \\\"I'd have to look at the W-2 but it's probably 83.\\\" Todd also stated his annual salary increases were only a percentage or two at the most.\\n[\\u00b6 23.] On appeal, Todd contends the trial court erred when it found his annual gross income to be $84,000 and his monthly gross income to be $7,000. He argues the amount should have been determined using his 2003 W-2, resulting in an annual gross income figure of $76,000 and a monthly gross income figure of $6,333.33. Without citing any authority, Todd contends the trial court erred when it failed to base Todd's net monthly income on actual earned income received by Todd as evidenced by his 2003 W-2.\\n[\\u00b6 24.] The trial court based its finding of fact as to Todd's annual income on Todd's testimony. The trial court was not required to base its finding of fact solely on wages as evidenced by the 2003 W-2 when competent evidence existed in the record to support a determination of 2004 wages. Todd testified his 2004 salary was either. $84,000 or $83,000 and that his monthly salary might differ by one, to two percent due to shift differentials,/-Therefore, there was sufficient evidence in the record for the trial court to find Todd's current salary was $84,000.\\n[\\u00b6 25.] Todd next argues that the trial court erred when it failed to consider the higher cost of living in Colorado. Todd cites to Johnson, 468 N.W.2d at 651, for the proposition that the trial court should have considered the higher cost of living in Colorado as compared to South Dakota. Todd entered no evidence into the record at the hearing to support his claim. Rather, in the Defendant's proposed findings of fact and conclusions of law, which were ultimately refused by the trial court, finding of fact number thirteen stated: \\\"There is a cost-of-living difference between Wa-tertown, South Dakota[,] and Longmont, Colorado. One Hundred Thousand Dollars ($100,000) in Watertown, South Dakota!],] has been compared to One Hundred Eighteen Thousand Dollars ($118,000) in Longmont, Colorado.\\\"\\n[\\u00b6 26.] In Johnson, this Court stated:\\nAs to father's- contentions concerning the higher costs of-living in California, we note that these are mere conclusory assertions without evidentiary support in the record. However, while recognizing that father's assertions may have merit, we note that father fails to mention that not only was an increase in costs of living occasioned by his move to California but so too was a $7,000 to $8,000 per year increase in his wages for similar work. Thus, while father might suffer the detriment of higher costs of living in California, he also gains the benefit of a higher wage scale to offset those costs.\\n468 N.W.2d at 651.\\n[\\u00b6 27.] The same reasoning applies in the instant case. There is no competent evidence in the record to support Todd's bare and conclusory assertion as to the cost of living in South Dakota versus Colorado. Nor is there any mention of the salary differential Todd was able to obtain by securing employment in Colorado rather than in South Dakota. The trial court did not err when it did not consider the cost-of-living differential between South Dakota and Colorado.\\n[\\u00b6 28.] 2. Whether the trial court erred in calculating Todd's child support obligation when it included upward deviations for the purchase of a van and paid caregivers for Andrew.\\n[\\u00b6 29.] SDCL 25-7-6.10 provides in relevant part: \\\"Deviation from the schedule in \\u00a7 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon the following factors: . (3) Any necessary education or health care special needs of the child[.]\\\" Child care expenses may also be considered as a factor for additional support above the basic amount in the schedule in SDCL 25-7-6.2, as they are not included within the basic child support obligation. Juttelstad v. Juttel-stad, 1998 SD 121, \\u00b6 17, 587 N.W.2d 447, 451.\\nVan Purchase\\n[\\u00b6 30.] Todd argues the trial court abused its discretion when it ordered an upward deviation of his child support obligation for the purchase of a van for Andrew. Todd contends the trial court sua sponte provided Kimberly with the deviation for the purchase of a new van. He attempts to characterize her testimony at the child support hearing as merely an expression of her concerns over the van. Todd then argues that Kimberly's need for a vehicle is no different than any other parent's need for a vehicle for family transportation, analogizing the need for a larger van to accommodate Andrew's growth to that of \\\"any other mother's need to have a van so as to accommodate more of a child's friends.\\\" Todd then argues the trial court abused its discretion when it failed to consider that Kimberly's decision to purchase a Chevrolet van, instead of a Volkswagen van, rendered obsolete the lift and lock-down system previously purchased by Todd's family. Finally, Todd argues that a vehicle is not a necessary or special need within the meaning of SDCL 25-7-6.10, and therefore, an upward deviation from the basic child support obligation may not be imposed for the purchase of the van.\\n[\\u00b6 31.] Kimberly instituted the proceedings for two purposes, first, to modify the child support obligation and second, to change the divorce decree to allow her to claim Andrew as a dependant in each tax year. At the hearing, Kimberly testified to the need for a new van for Andrew's transportation due to the age of the current van, the travel to and from Andrew's school in Sioux Falls, and Andrew's physical growth. Todd's claim that the trial court sua sponte provided Kimberly with the upward deviation for the van is without merit.\\n[\\u00b6 32.] Todd's arguments that a vehicle is not a special need within the meaning of SDCL 25-7-6.10 and that the need is one for transportation for Kimberly are equally -without merit. Kimberly testified at the hearing that the need for additional headroom for Andrew as he continues to grow was the basis of the decision to purchase a Chevrolet van rather than another Volkswagen van that could accommodate the current lift and lock-down system. In addition, Kimberly testified that the Easter Seals Society had already approved a $500 contribution toward the cost of the $1,000 ramp and lock-down system for the new van. Furthermore, Todd offered no testimony at the hearing as to how the purchase of a Volkswagen van would better accommodate Andrew's physical needs. The trial court entered specific findings of fact regarding Andrew's disability and physical limitations and how his need for reliable transportation to school and for medical visits made the purchase of the new van a special need within the meaning of SDCL 25-7-6.10.\\nPaid Caregivers\\n[\\u00b6 33.] The circuit court's order included an upward deviation from the basic child obligation for paid caregivers for Andrew while he is in Kimberly's home and she is at work. The circuit court found the annual cost of paid caregivers to be $2,400 and ordered Todd to pay $144 per month for the upward deviation.\\n[\\u00b6 34.] Todd argues that Kimberly would be unjustly enriched by the upward deviation ordered by the trial court for the paid caregivers. Todd contends that Kimberly testified only that she may incur such expenses, that she offered no evidence as to the cost and number of hours of care required, and that he should not be required to pay these expenses until such time that they are incurred.\\n[\\u00b6 35.] Todd again mischaracter-izes the record. Kimberly testified at length as to how the age of her parents and her father's impending retirement would preclude them from caring for Andrew on- a regular basis as they have for the past fifteen years. Kimberly's mother is sixty-five years old and is no longer physically able to lift Andrew by herself and transfer him to and from his wheelchair. Kimberly's father is seventy years old and semi-retired. In addition, Kimberly testified that the hourly rate she would need to pay suitable caregivers would range from eight to ten dollars per hour and that she would be seeking a nursing student with some medical training and skills due to Andrew's complicated medication regimen. She also testified the care would be required during the six-week summer break and over the Christmas and holiday breaks when Kimberly was scheduled to work. Kimberly testified the annual cost of the care provider would be $2,400 given the rate and the number of hours of care needed.\\n[\\u00b6 36.] Todd did not offer any evidence at the hearing to support his contention on appeal that Kimberly would be unjustly enriched by his payment for caregivers .until such time as the expenses are actually incurred. Nor does Todd offer any authority for his proposition that he should not have to pay the expenses until they are actually incurred. Todd cites to Juttel-stad, 1998 SD 121, \\u00b620, 587 N.W.2d at 451-52, for the proposition that Kimberly would be unjustly enriched as she would receive more in support payments than the expense actually incurred. However, in that case the Court's holding concerned a mother who admitted she knowingly accepted more in child care reimbursements than the actual expenses she incurred. Id. \\u00b621. The holding in Juttelstad does not apply to the instant case, as Kimberly has yet to receive any payments for caregivers from Todd and there are no facts to indicate she will receive more money from Todd than the expense she will incur for the services.\\n[\\u00b6 37.] The obligation to provide specialized caregivers for Andrew belongs to Kimberly and Todd, not to Kimberly's parents as suggested by Todd. See SDCL 25-7-6.18. There is evidence in the record to support the need for such care and the amount of the expense that will be incurred. The trial court entered specific findings of fact as to the need for paid caregivers. The trial court then allocated seventy-two percent of the expense to Todd and twenty-nine percent of the expense to Kimberly based on their gross income figures.\\n[\\u00b6 38.] The trial court did not abuse its discretion when it included an upward deviation in the child support obligation for the purchase of a van and for paid caregivers. There is ample evidence in the record to support the deviations, and deviations for both are permitted under the statutory scheme.\\n[\\u00b6 39.] 3. Whether the trial court erred when it failed to provide Todd with a credit for alleged overpay-ments in vehicle and medical payments previously made to Kimberly.\\n[\\u00b6 40.] Todd claims the trial court erred when it failed to order a credit or reimbursement for his alleged overpay-ments of van payments for the original van and child medical expense payments. Todd claims Kimberly had been unjustly enriched by his overpayments.\\n[\\u00b6 41.] It is well settled in South Dakota that a modification cannot be made to past-due child support payments, except for those payments that accrue during the time of a pending modification petition. Juttelstad, 1998 SD 121, \\u00b6 17, 587 N.W.2d at 451. The underlying rationale for the rule is that a past-due payment or child support installment becomes a final judgment by law and cannot be retroactively modified. Id. (citing SDCL 25-7-7.4; Agee v. Agee, 1996 SD 85, \\u00b6 20, 551 N.W.2d 804, 806). However, the prohibition on retroactive modifications does not apply when a parent is current on all support obligations and that parent is seeking a correction for overpayment of child care expenses. Id. We have not had the opportunity to consider the applicability of the holding in Juttelstad to upward deviations to the basic child support obligation codified in SDCL 25-7-6.10.\\nVan Overpayments\\n[\\u00b6 42.] Todd argues he overpaid Kimberly $55 per month for the purchase of a vehicle to transport Andrew. The original child support agreement required Todd to make the payment until October 28, 1997, or until the vehicle was paid in full. Todd continued making the payment from October 1997 until June 2001 and contends he overpaid Kimberly by $2,420. Kimberly did not bring Todd's error to his attention during that time.\\n[\\u00b6 43.] In the instant case, Kimberly testified at the hearing that she continued to accept the $55 per month after the first van was paid off and used the money toward the purchase of the second van required for Andrew's transportation and other transportation expenses such as repairs and maintenance for the van. Todd did not testify at the hearing to the issue of the $55 overpayment. Todd testified at the hearing in support for his contention that he should not have to provide additional funds toward the purchase of a new vehicle and that Kimberly was already reimbursed for repairs, maintenance, and wear and tear on the vehicle by the state, as she received mileage reimbursement for the weekly trips from Watertown to Sioux Falls. Todd included the credit or reimbursement for the alleged $2,420 overpayment in his proposed findings of fact and conclusions of law that were ultimately rejected by the trial court. Todd contends Kimberly was unjustly enriched by the $55 payment as she no longer had any vehicle expenses from October 1997 to June 2001.\\n[\\u00b6 44.] The upward deviation of $55 for the van payment was not a part of the original child support obligation as determined by using the schedule in SDCL 25-7-6.2. Rather, it is more akin to additional child support for child care expenses as was the case in Juttelstad. Thus, the rule against retroactive modifications does not apply to the alleged $2,420 overpayment as Todd is current on all his child support obligations, both the basic amount per SDCL 25-7-6.2 and all upward deviations, and is seeking a correction or credit for overpayment of an upward deviation under a theory of unjust enrichment.\\n[\\u00b6 45.] However, in order to recover, Todd must show that Kimberly was unjustly enriched by the overpay-ments. See Juttelstad, 1998 SD 121, \\u00b6 19, 587 N.W.2d at 451. \\\"Unjust enrichment occurs 'when a party confers a benefit upon another party who accepts or acquiesces in that benefit and it is inequitable to receive that benefit without paying.' \\\" Id. (quoting Sporleder v. Van Liere, 1997 SD 110, \\u00b6 16, 569 N.W.2d 8, 12 (quoting Randall Stanley Architects, Inc. v. All Saints Community Corp., 1996 SD 138, \\u00b6 20, 555 N.W.2d 802, 805)).\\n[\\u00b6 46.] For Todd to establish that Kimberly was unjustly enriched at his expense, he must show Kimberly received a benefit to which she was not entitled. He then must show that Kimberly was cognizant of the benefit and that her retention of the benefit without reimbursing Todd unjustly enriched her.\\n[\\u00b647.] Kimberly did not concede she received a benefit as a result of the $2,440 overpayment, as she used the monies for expenses incurred for Andrew's transportation above and beyond the expense of purchasing the original van. Kimberly testified she and her husband paid $6,000 for the second van purchased for Andrew in 2004, as well as repairs and maintenance work on the original and second van. Todd offered no evidence of unjust enrichment at the hearing and offered only bare allegations in his proposed findings of fact and conclusions of law.\\n[\\u00b6 48.] The trial court rejected Todd's proposed findings of fact and conclusions of law wherein he addressed the issue of the overpayment. No specific finding of fact was entered by the trial court on this issue. However, the facts in the record indicate that Kimberly was not unjustly enriched by the retention of the $55 per month from October 1997 to June 2001, as she incurred substantial and legitimate expenses for Andrew's transportation above and beyond the mileage reimbursement and the alleged $2,420 overpayment. The trial court did not abuse its discretion in refusing to order Kimberly to reimburse or credit Todd for the alleged overpayment.\\nMedical Overpayments\\n[\\u00b6 49.] Todd contends he overpaid Kimberly $100 per month in medical care expenses from January 1996 to June 2001, for a total of $9,020. Todd argues the overpayment occurred when Andrew transitioned from Todd's insurance to Medicaid in 1995. Todd argues at that time all of Andrew's medical expenses began being covered by Medicaid, thus eliminating the need for the $100 per month upward deviation under the terms of the original stipulated agreement.\\n[\\u00b6 50.] Todd mischaraeterizes the nature of the additional $100 above the basic child support amount in the original stipulated agreement. The language of the agreement provided Todd would pay an additional $100 as support due to Andrew's special needs. The language did not limit the additional $100 to medical expenses not covered by insurance. That subject was specifically addressed in another portion of the stipulated agreement wherein Todd agreed to pay for seventy-six percent of any uncovered medical expenses and Kimberly agreed to pay for twenty-four percent of such expenses. More importantly, the additional $100 did not have an expiration date attached to it as did the upward deviation for the van payment. Therefore, Kimberly did not receive monies from Todd to which she was not entitled under the terms of the stipulated agreement. Based on the evidence in the record, the trial court did not err when it failed to order Kimberly to reimburse or credit Todd with $9,020 in alleged overpayments.\\n[\\u00b6 51.] 4. Whether the trial court erred when it failed to comply with SDCL 25-5-18.1 and specify the termination date of Todd's child support obligation.\\n[\\u00b6 52.] SDCL 25-5-18.1 provides in relevant part:\\nThe parents of any child are under a legal duty to support their child in accordance with the provisions of \\u00a7 25-7-6.1, until the child attains the age of eighteen, or until the child attains the age of nineteen if the child is a full-time student in secondary school.\\nIn Birchfield v. Birchfield, 417 N.W.2d 891, 895 (S.D.1988), this Court made it unequivocally clear that a parent's statutory duty to support his or her child terminates per the provisions of SDCL 25-5-18.1, no later than age nineteen. A trial court may not impose a duty to support a child beyond the age of eighteen, or the age of nineteen if the child is still enrolled full-time in high school. Radigan v. Radi-gan, 465 N.W.2d 483, 485 (S.D.1991) (citing SDCL 25-5-18.1; Birchfield, 417 N.W.2d at 895). However, the parties are free to agree to provide support beyond the age of nineteen. Birchfield, 417 N.W.2d at 895 (citing Wame v. Wame, 360 N.W.2d 510 (S.D.1984)).\\n[\\u00b6 53.] Ordinarily, we do not address a question on appeal that was not before the trial court. State v. Hays, 1999 SD 89, f 16, 598 N.W.2d 200, 203 (citing State v. Henjum, 1996 SD 7, \\u00b6 13, 542 N.W.2d 760, 763). \\\"The trial court must be given an opportunity to correct any claimed error before we will review it on appeal.\\\" Id. (quoting Henjum, 1996 SD 7, \\u00b6 13, 542 N.W.2d at 763 (quoting State v. Heftel, 513 N.W.2d 397, 401 (S.D.1994))).\\n[\\u00b6 54.] In the instant case, the trial court did not impose an absolute duty upon Todd to support Andrew beyond the age specified in SDCL 25-5-18.1. The trial court's order is silent as to an ending date for the basic child support and upward deviation for paid caregivers. Therefore, the issue of whether the trial court could impose an obligation for basic child support and the upward deviation for paid caregivers is not properly before the Court. Thus, we do not address this portion of the issue as raised by Todd.\\n[\\u00b6 55.] The issue of whether the trial court could impose an obligation for child support beyond the age of eighteen as specified in SDCL 25-5-18.1 has been properly preserved as it pertains to the van payment. Todd objected to the inclusion of the upward deviation for the van payment in its entirety when he objected to Kimberly's inclusion of the upward deviation in her proposed findings of fact and conclusions of law. Therefore, we address only this portion of the issue.\\n[\\u00b6 56.] The trial court ordered Todd to pay the $380 monthly child support payment for the purchase of the van until the van was paid in full. The estimated payoff date for Kimberly's loan is February 1, 2011. Given that Andrew was born on July 19, 1989, he will be eighteen years old on July 19, 2007. In effect, the trial court ordered Todd to pay this portion of the child support payment up until Andrew is twenty-two years of age.\\n[\\u00b6 57.] Kimberly argues the language of the stipulated agreement entered into by the parties in 1993 controls this issue. It provides in relevant part: \\\"that Defendant's obligation for payment of child support shall continue as long as Andrew Kristian Jacobsen is dependent or until further Order of the Court.\\\" Kimberly argues that the meaning of the word \\\"dependent\\\" is in reference to Andrew's physical and mental disability, which will require continued care throughout his adult years, rather than his attainment of the age of majority.\\n[If 58.] We remand this issue to the trial court in order to fully develop the record and allow each party to present evidence and argument as to the termination date of the child support obligation. If the trial court holds that Todd's child support obligation terminates per SDCL 25-5-18.1 upon Andrew's eighteenth birthday, we direct the trial court to reconsider the monthly support amount. If the trial court determines the meaning of the term \\\"dependent\\\" in the child support agreement entered into by the parties called for support for Andrew for life, the vehicle payment termination date may stand as originally ordered.\\n[\\u00b6 59.] 5. Whether the trial court erred when it awarded Kimberly attorney fees.\\nIn determining whether one party should be required to pay another par ty's attorney fees, we will consider the property owned by each party; their relative incomes; whether the requesting party's property is in fixed or liquid assets; and whether either party unreasonably increased the time spent on the case.\\nJohnson, 468 N.W.2d at 652 (quoting Studt v. Studt, 443 N.W.2d 639, 644 (S.D.1989) (quoting Senger v. Senger, 308 N.W.2d 395, 398 (S.D.1981))).\\n[\\u00b6 60.] Applying the factors above, and considering the facts of the case before us, we do not find that the trial court erred when it found that a portion of Kimberly's attorney fees were the result of Todd's unwillingness to comply with the requirement to produce proof of insurance and income after multiple requests. Providing Kimberly with the required information on the morning of the hearing did not eliminate the attorney hours and fees she incurred to prepare the various requests and file the motion to compel.\\nAppellate Attorney Fees\\n[\\u00b6 61.] Kimberly and Todd both filed separate motions for appellate attorney fees accompanied by itemized statements of expenses. In view of the above, we award Kimberly the full amount of appellate attorney fees she requested, $3,727.\\n[\\u00b6 62.] We affirm on Issues 1, 2, 3, and 5 and remand Issue 4 to the trial court for a determination of the meaning of the word \\\"dependent\\\" in the original stipulated agreement and its effect on the termination of the upward deviation from the basic child support obligation for the van payment.\\n[\\u00b6 63.] KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.\\n[\\u00b6 64.] SABERS, Justice, concurs in part and dissents in part.\\n. Kimberly argues on appeal that Todd waived this issue, as his proposed findings of fact and conclusions of law included an upward deviation for a van payment but at a lower dollar amount. Despite what appears at first glance as a waiver of this issue, Todd objected to the inclusion of any upward deviation for a van payment when he opposed its inclusion in Kimberly's proposed findings of fact and conclusion of law. Therefore, we address the issue of the upward deviation for the van.\\n. SDCL 25-7-6.18 provides in relevant part: \\\"The court may enter an order allocating the reasonable child care expenses for the child, which are due to employment of either parent, job search of either parent, or the training or education of either parent necessary to obtain a job or enhance earning potential.\\\"\\n. In Juttelstad, the child care expenses were labeled an upward deviation. 1998 SD 121, \\u00b6 17, 587 N.W.2d at 451. However, child care expenses are more properly characterized as an additional child support amount, as child care is not codified as an upward deviation under SDCL 25-7-6.10, but rather is codified separately at SDCL 25-7-6.18.\\n. SDCL 25-7-6.10 provides:\\nDeviation from the schedule in \\u00a7 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:\\n(1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent;\\n(2) Any financial condition of either parent which would make application of the schedule inequitable. If the total amount of the child support obligation, including any adjustments for health insurance and child care costs, exceeds fifty percent of the obligor's monthly net income, it shall be presumed that the amount of the obligation imposes a financial hardship on the obligor. This presumption may be rebutted based upon other factors set forth in this section;\\n(3) Any necessary education or health care special needs of the child;\\n(4) The effect of agreements between the parents regarding extra forms of support for the direct benefit of the child;\\n(5) The obligation of either parent to provide for subsequent natural children or stepchildren. However, an existing support order may not be modified solely for this reason; or\\n(6) The voluntary act of either parent which reduces that parent's income.\"}"
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+"{\"id\": \"8419926\", \"name\": \"STATE of South Dakota, Plaintiff and Appellee, v. Jessie KREBS, Defendant and Appellant\", \"name_abbreviation\": \"State v. Krebs\", \"decision_date\": \"2006-04-26\", \"docket_number\": \"No. 23296\", \"first_page\": \"91\", \"last_page\": \"103\", \"citations\": \"714 N.W.2d 91\", \"volume\": \"714\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:00:02.863536+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 30.] GILBERTSON, Chief Justice, and SABERS, Justice, concur.\", \"parties\": \"STATE of South Dakota, Plaintiff and Appellee, v. Jessie KREBS, Defendant and Appellant.\", \"head_matter\": \"2006 SD 43\\nSTATE of South Dakota, Plaintiff and Appellee, v. Jessie KREBS, Defendant and Appellant.\\nNo. 23296.\\nSupreme Court of South Dakota.\\nArgued Oct. 4, 2005.\\nDecided April 26, 2006.\\nLawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.\\nTimothy J. Rensch of Rensch Law Office, Rapid City, SD, for defendant and appellant.\", \"word_count\": \"5766\", \"char_count\": \"34880\", \"text\": \"MEIERHENRY, Justice.\\n[\\u00b6 1.] Sixteen year-old Jessie Krebs appeals his conviction for first-degree manslaughter. We affirm in part, reverse in part, and remand for trial.\\nFACTUAL AND PROCEDURAL BACKGROUND\\n[\\u00b6 2.] Jessie Krebs (Krebs) was charged with murder and manslaughter in the stabbing death of Chance Darrow (Darrow). The charges stem from an incident involving a fight during the early morning hours of July 12, 2003. Events leading up to the incident started on the prior evening of July 11, 2003. After getting off work from his construction job, Krebs met several of his friends to socialize. The group of friends spent most of the evening and early morning hours driving around the area from Box Elder to Rapid City, South Dakota. The group re turned to Krebs's apartment in Box Elder after 2:00 a.m. Around 3:00 a.m., Krebs along with two male friends, his girlfriend, and his female cousin headed for Rapid City in Krebs's vehicle. The purpose of the trip was to meet a girl named Rianna who was planning to fight another girl named Angelique. The group knew Angelique was hosting a keg party at her residence in Rapid City. Angelique's party started around 10:00 p.m. in a large open field behind her trailer. A bonfire marked the site of the party. After meeting in a Rapid City parking lot, Krebs's group followed Rianna and three of her friends to the party site.\\n[\\u00b6 3.] When they arrived, Rianna and her girlfriends headed for the bonfire. Krebs and his two male companions also headed for the bonfire, while his girlfriend and cousin waited in the vehicle. Almost immediately, Rianna confronted Angelique and the two began to fight. Eventually, fighting erupted between Krebs's group and the partygoers.\\n[\\u00b6 4.] During the melee, Krebs and Darrow began to fight. The two exchanged blows. At some point Krebs stabbed Darrow with Krebs's double-edged, fixed-blade knife that Krebs had brought with him. Krebs and his two male companions fled the scene. Darrow died a short time later en route to the hospital.\\n[\\u00b6 5.] Krebs was charged with alternative counts of second-degree murder and first-degree manslaughter. He moved to transfer the charges to juvenile court. The trial court denied the motion and Krebs was tried as an adult. At trial, Krebs sought to establish a claim of self defense. The jury acquitted Krebs of the murder charge but convicted him of first-degree manslaughter. He was sentenced to twenty years in the South Dakota State Penitentiary. Krebs appeals his conviction and raises the following issues:\\nISSUES\\n1. Whether the trial court erred in refusing to transfer Krebs to juvenile court.\\n2. Whether the trial court erred by allowing the State to present undisclosed inculpatory testimony in violation of a pretrial discovery order.\\n3. Whether the trial court erred by allowing the State to introduce a video tape showing Darrow's distraught girlfriend and Darrow's body being removed from her vehicle.\\nDECISION\\nTransfer to Juvenile Court\\n[\\u00b6 6.] Krebs contends that it was error for the trial court not to transfer the case to juvenile court. Krebs was 16 years old at the time of the incident, and he was charged with second-degree murder, a Class B felony, and first-degree manslaughter, a Class 1 felony. South Dakota law requires that a child charged with Class B and Class 1 felonies be tried in circuit court as an adult. SDCL 26-11-3.1. The law allows the child to request a transfer hearing \\\"to determine if it is in the best interest of the public that the child be tried in circuit court as an adult.\\\" Id. If the child is sixteen years of age or older, \\\"there is a rebuttable presumption that it is in the best interest of the public that [the] child . be tried as an adult.\\\" Id. The statutory factors for the court to consider are as follows:\\n(1) The seriousness of the alleged felony offense to the community and whether protection of the community requires waiver;\\n(2) Whether the alleged felony offense was committed in an aggressive, violent, premeditated, or willful manner;\\n(3) Whether the alleged felony offense was against persons or property with greater weight being given to offenses against persons;\\n(4) The prosecutive merit of the complaint. The state is not required to establish probable cause to show prosecutive merit;\\n(5) The desirability of trial and disposition of the entire felony offense in one proceeding if the child's associates in the alleged felony offense are adults;\\n(6) The record and previous history of the juvenile;\\n(7) The prospect for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile, if the juvenile is found to have committed the alleged felony offense, by the use of procedures, services, and facilities currently available to the juvenile court.\\nSDCL 26-11-4.\\n[\\u00b6 7.] If the court determines that the child should be tried as an adult in circuit court, the court is required to enter an order and findings of fact. Id. The trial court's findings \\\"may not be set aside upon review unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.\\\" Id. As to the seven factors in SDCL 26-11-4, we have stated: \\\" 'It is not necessary that evidence be presented on all of these factors at each transfer hearing, or that the trial court must make express findings on each factor.' \\\" State v. Milk, 519 N.W.2d 313, 318 (S.D.1994) (citations omitted). In addition, \\\"[c]ontrolling weight is not given to any one factor, and the court is not 'confined to a consideration of only the listed factors to the exclusion of others.' \\\" Id. (citation omitted).\\n[\\u00b6 8.] Consequently, our initial task is to review the findings of fact of the trial court. In its findings, the trial court considered the statutory factors in light of the transfer hearing evidence. Applying the factors, the court found that the alleged offense was (1) \\\"an extremely serious . felony offense,\\\" (2) \\\"committed in an aggressive, violent and premeditated manner,\\\" (3) \\\"was against a person,\\\" as opposed to property, and (4) had prosecutive merit. Factor (5) did not apply since the disposition did not involve associates. Factor (6) was favorable to Krebs since he had \\\"no prior criminal record or previous history as a juvenile.\\\" The trial court specifically pointed out that \\\"Krebs voluntarily brought a knife to a situation where he expected conflict and therefore expected that someone could be killed by his action.\\\" \\\"[I]f you take a knife . to a place where you expect conflict,\\\" the court pondered, \\\"then you expect to possibly have to use that knife.\\\" The court entered a written finding that \\\"the evidence indicates a deliberate intent to take a weapon to a fight under circumstances where [Krebs] anticipated conflict; further, the victim in this case suffered five stab wounds.\\\"\\n[\\u00b6 9.] As to factor (7), the trial court initially determined that the system had \\\"sufficient resources for the likely reasonable rehabilitation of the juvenile.\\\" Nevertheless, the trial court found that the prospect for adequate public protection if Krebs were convicted was small because of the lack of procedures, services, and facilities available in the juvenile system. Based on these findings, the court deter mined that it-was not in the best'interests of the \\u2022 public for Krebs to be tried in juvenile court.\\n[\\u00b6 10.'] Krebs claims that the trial court's'' findings are clearly erroneous. Specifically, Krebs asserts that two of the finding's contradict each other. In one finding; the court determined that the juvenile system had resources to rehabilitate Krebs. In a following finding, the court determined that the juvenile procedures, s\\u00e9rvices, and facilities could not adequately protect the public from Krebs. If he can be rehabilitated, Krebs argues, the public is protected. \\\" Krebs also claims that there ivas insufficient proof of an aggressive, violent, or premeditated act or that carrying a knife to a fight constitutes knowledge that someone could be killed.\\n[\\u00b6 11.] Much of the evidence upon which the trial court based its findings was undisputed. The evidence revealed that Krebs and his friends went to a party anticipating a fight between two girls. One of the girls was a friend of Krebs's group, Krebs took his knife with him to the party. The anticipated fight between the girls ensued. Fighting then broke out between members of Krebs's group and the group at the party. During the fight, Krebs ended up in a struggle with Darrow and -stabbed Darrow. There was no evidence that Darrow had been armed. The coroner testified that Darrow suffered five stab wounds and died as the result of a stab wound to the abdomen which perforated the abdominal artery. The coroner also testified that Darrow's lethal stab wound matched the knife recovered from the roof of Krebs's apartment building.\\n[\\u00b6 12.] Based on these undisputed facts, the court was justified in finding that the-offense was a serious felony. Even assuming that premeditation was not supported by the evidence as Krebs claims, the evidence supported a finding that a serious, violent crime against a person resulting in a death had occurred. The statute does not require that the court make a finding of premeditation. The statute only requires the court to consider \\\"[w]hether the alleged felony offense was committed in an aggressive, violent, premeditated, or willful manner.\\\" SDCL 26-11^4(2) (emphasis added). Because the statute lists the factors in the disjunctive, the manner of the crime can be aggressive, violent, premeditated, or willful. Although the court found all four, any one or more of the four factors would have sufficed. We cannot say that this finding is clearly erroneous.\\n[\\u00b6 13.] Krebs argues that the court's findings regarding rehabilitation prospects and protecting the public were contradictory. The circuit court was convinced by the evidence that Krebs could be rehabilitated but still found that the juvenile system could not protect the public. Although this may seem contradictory, it is not. The two factors for the court to consider involve two separate concepts. One factor is the likelihood of reasonable rehabilitation of the child in the juvenile system. The other factor is whether the juvenile system, as established, can protect the public. The rehabilitation factor requires only a likelihood that the child can be rehabilitated. Even though a penal system contemplates rehabilitation, it must also establish safeguards for the consequences that may result when it fails to rehabilitate. Thus, a correctional facility establishes rehabilitation programs but still maintains secure facilities for the protection of the public. The judge determined that those safeguards were lacking in the juvenile system. One of the judge's concerns was that the juvenile system would lose jurisdiction of Krebs when he reached the age of 21. The judge expressed concern regarding whether the ju venile system could deal with \\\"what was going on\\\" with Krebs within that time period. The judge said to the parties at the end of the hearing:\\nThere is nothing in [Krebs's] character that supports the purpose to take a life or to cause injury to other people. This raises a conflict for me.\\nThe question is what is in the best interest of society. And I know that we lose jurisdiction on this case when you reach 21. And I'm not satisfied we know fully what's going on or how this occurred.\\nWere this act not committed, I'd expect you to run for president or have every other opportunity to be a very positive, contributing member of our community. And I don't think anybody here would question your character or your personality or your abilities.\\nBut this act flies in the face of that and leaves me with a concern about your future potential assuming the scenario that I've shared stands unaddressed.\\nAnd while I believe the juvenile system has resources, I don't know that I can say with sufficient satisfaction that the State \\u2014 -that the defendant has overcome the burden....\\nThe trial court was not clearly erroneous in its determination. The evidence before him depicted, on the one hand, a young man with a lot of potential who would probably do very well in the juvenile system. On the other hand, the judge saw the violence of which the young man was capable. These diametrically opposed characteristics convinced the judge of the need for rehabilitative services beyond the age of 21.\\n[\\u00b6 14.] Additionally, the trial court's inquiry recognized the rebuttable presumption created by the Legislature. Under the law it is presumed that it is in the public's best interest to try Krebs as an adult. Consequently, transfer was proper only if evidence rebutted that presumption and indicated that it was in the public's interest to transfer jurisdiction to juvenile court and if doing so would be in Krebs's best interest. This Court has stated that even where it is in the juvenile's best interest to be tried as a juvenile, \\\"that is not the only criteria to be considered.\\\" In re S.K., 1999 SD 7, \\u00b6 39, 587 N.W.2d 740, 746. Rather, the interests of the public govern, and it must be in both the interests of the child and the public for the child to be tried as a juvenile. Id. The trial court determined that the presumption had not been rebutted. We cannot say that the trial court's findings were clearly erroneous or that his decision not to transfer Krebs to juvenile court was an abuse of discretion.\\nState's Untimely Disclosure of Inculpato-ry Evidence\\n[\\u00b6 15.] Prior to Krebs's trial, the court imposed a deadline by which the state was to disclose \\\"[a]ll statements considered by the prosecution to be relevant to the alleged crime made by any person which would tend to incriminate or exculpate [Krebs], whether reduced to writing or not.\\\" On the third day of trial, the State called a female witness to the stand. The State had not disclosed the witness as possessing inculpatory evidence, and the State did not indicate the full nature of her testimony in its opening statement. The witness testified that Krebs and his two male friends came to her house around 5:00 p.m. on Saturday, July 12, the afternoon of the stabbing, and stayed until the next morning. While they were there, the witness claimed she observed one friend hit Krebs in the face, arms, and legs in ways that \\\"looked like it hurt.\\\" She also testified that the boys were purposely scratching- themselves and each oth\\u00e9r on their arms and stomachs. According to the witness, Krebs jokingly stated that \\\"he killed before and he'd kill again.\\\" She also testified that on Sunday morning, July 13, she saw the trio laughing and bumping knuckles as they read newspapers.\\n[\\u00b6 16.] When she was first interviewed by authorities, the witness did not inform them of her observations because \\\"they didn't ask\\\" and she did not think her observations were important. To the witness, \\\"it just seemed like they were being teenage boys and fighting and hitting each other and wrestling around.\\\" She testified that she did not tell anyone, including law enforcement, of her observations until she told the State's attorney during trial preparation the weekend before the trial started.\\n[\\u00b6 17.] After her testimony, Krebs moved for a mistrial. He argued that the evidence violated the discovery order requiring the State to notify the defense of all inculpatory statements. The State's attorney admitted that the information was discovered the weekend before trial and had not been disclosed. He argued, however, that the information was work product and not subject to the discovery order. The trial court denied Krebs's motion for a mistrial. The court found that the State did not violate the discovery order by failing to notify Krebs upon discovery of the inculpatory evidence. Because he determined that no violation occurred, the trial court imposed no sanctions or remedial measures. See SDCL 23A-13-17 (Rule 16(d)(2)).\\n[\\u00b6 18.] At oral argument in this appeal, the State conceded that the Pennington County State's Attorney violated the discovery order by failing to provide inculpa-tory evidence and that the undisclosed evidence was not protected by the work product doctrine. Regardless of the discovery order violation, however, the State claims that Krebs suffered no prejudice. Krebs, on the other hand, contends that he was prejudiced. He claims that without knowledge of the incriminating nature of the testimony, he was unable to prepare countering evidence or to present opposing expert testimony that his injuries were not self-inflicted.\\n[\\u00b6 19.] At trial, Krebs moved for a mistrial immediately after the testimony was presented. When a party makes such a motion, \\\"[t]he decision to grant or deny a mistrial must be based on the prejudicial effect of the witnesses] statement,\\\" and \\\" '[prejudicial error' is error which in all probability must have produced some effect upon the jury's verdict and is harmful to the substantial rights of the party assigning it.\\\" State v. Michalek, 407 N.W.2d 815, 818-19 (S.D.1987) (citations omitted). Similarly,.when a discovery order is violated, the inquiry is whether the defendant suffered any material prejudice as a result of the late disclosure. State v. Archambeau, 333 N.W.2d 807, 810-11 (S.D.1983). We have established that \\\"[ajlthough a trial court's order for the production of evidence must be expeditiously carried out and obeyed, not every failure to produce evidence as ordered is, without more, prejudicial error.\\\" Id. at 811. \\\"[Ijmplicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.\\\" Marshall v. State, 305 N.W.2d 838, 843 (S.D.1981) (citation omitted). We recently reiterated our standard of review:\\nWe presume the evidentiary rulings made by a trial court are correct, and review those rulings under an abuse of discretion standard. The test for abuse of discretion \\\"is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.\\\" If error is found, it must be prejudicial in nature before this Court will overturn the trial court's evidentiary ruling. \\\"Error is prejudicial when, in all probability . it produced some effect upon the final result and affected rights of the party assigning it.\\\"\\nState v. Mattson, 2005 SD 71, \\u00b6 13, 698 N.W.2d 538, 544 (citations omitted). Thus, our standard of review for the violation of a discovery order mirrors the standard applied when reviewing both mistrial motions and evidentiary issues.\\n[\\u00b620.] In order to determine whether Krebs was prejudiced by the undisclosed evidence, we examine the nature of the testimony and its effect on the jury. The evidence was highly relevant to Krebs's self defense theory. Since Krebs admitted stabbing Darrow, his only defense was that he had done so to meet Darrow's aggressive actions against him during the fight. Thus, the main issue for the jury was whether Krebs was acting in self defense. The State presented the undisclosed testimony to dispute Krebs's claim. The witness's testimony was the only testimony suggesting that Krebs's injuries were self-inflicted and conflicting directly with other testimony describing Krebs's injuries and demeanor. The defense had no notice of the inculpatory nature of this witness's testimony prior to the time she testified at trial. On cross examination, the witness said that she had not told anyone \\u2014 not even the police \\u2014 this version of her observations until she informed the State's attorney while preparing her testimony the weekend before trial. The State's attorney learned of the inculpatory evidence at least four days before the witness testified, yet he did not inform the defense or the court.\\n[\\u00b6 21.] The testimonial evidence was not only inculpatory, it completely undercut Krebs's defense. This fact distinguishes State v. Moran where we found that a discovery order violation was adequately remedied, even though undisclosed DNA evidence was admitted at trial, 2003 SD 14, \\u00b6 17-24, 657 N.W.2d 319, 324-26. There, the DNA evidence was not central to the defense that the victim consented to sexual intercourse, and therefore \\\"it would have been futile for [the defendant] to hire his own DNA expert.\\\" Id. \\u00b6 23, 657 N.W.2d at 326. In this case, simply offering the testimony of Krebs and his two male friends, whose biases were specifically argued by the State, was not enough to cure the prejudice that resulted from the late disclosure. 'Nor was it within the expertise of the jury to be able to view the photos of Krebs, taken shortly after his arrest, and determine for themselves whether his wounds were self-inflicted. Had Krebs expected the introduction of such evidence, he could have taken further action to counter its damaging effect.\\n[\\u00b6 22.] The probability of the effect of the testimony upon the jury is, in part, evidenced by its prominence in the State's final argument. In final argument, the State's attorney included this statement concerning the witness's testimony:\\n[The witness] testified she doesn't know Chance Darrow . or anybody else associated with [Darrow]. She also testified that until that day she didn't know [Krebs]. She thought they were being idiots, smacking each other around and scratching each other. She didn't know. What did that mean? They were enhancing their injuries because they know their story about self defense is bogus.\\nFurther, in the penultimate paragraph of its rebuttal, the State asserted the following:\\nI submit to you that [the witness's] credibility is enhanced by the fact that not only were [Krebs and his friends] bumping knuckles, they admitted to that, because there was no way around it.\\nThe State's attorney considered the persuasiveness of the testimony to be of such importance that he mentioned it twice in his final argument. Almost as its final word to the jury, the State argued that the witness's testimony was more believable than the testimony of Krebs and his friends.\\n[\\u00b6 23.] As we have noted, \\\"[discovery statutes exist to eliminate trial by ambush.\\\" State v. Sorenson, 2000 SD 127, \\u00b6 9, 617 N.W.2d 146, 148 (citation omitted). Yet an ambush is exactly what occurred here, where \\\"the [S]tate was anything but conscientious and candid.\\\" State v. Sahlie, 90 S.D. 682, 688, 245 N.W.2d 476, 479 (1976). The failure to disclose the inculpa-tory testimony materially prejudiced Krebs's defense and constitutes reversible error. Therefore, we remand for a new trial.\\nVideo Tape Evidence \\u2014 Probative Value verses Prejudicial Effect\\n[\\u00b6 24.] Krebs also claims that the trial court erred in admitting a videotape. The video came from the camera mounted on the dashboard of the responding officer's vehicle. On his way to the scene, the officer encountered a car driven by Darrow's girlfriend which carried Darrow and his friend Michael. The video captures the stop and the emotional interactions between the officer, Darrow's girlfriend, Darrow's friend Michael, and a second responding officer. For a short time, Darrow can be seen in the background of the video through the back window of the car; he then slumps from view. The video next shows the arrival of emergency personnel and their removal of Darrow's body from the car. Finally, the video shows the officer's short trip down Melody Lane to the site of the party and his entry into the driveway.\\n[\\u00b6 25.] Although the State produced the video after the discovery deadline, Krebs did not claim that he was prejudiced by its untimely production. Rather, Krebs moved to exclude the tape because it was not relevant and highly prejudicial. Despite our remand for a new trial, we address the admissibility of the videotape because of the likelihood that the issue may arise again on remand.\\n[\\u00b6 26.] We review evidentiary rulings of the trial court under an abuse of discretion standard. We have said,\\n\\\"For us to disturb the evidentiary rulings of the circuit court, we must determine that an abuse of discretion has occurred.... [A]n abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.\\\"\\nState v. Moriarty, 501 N.W.2d 352, 355 (S.D.1993) (citation omitted). In this case, the trial court did not initially admit the video because it was not relevant and its prejudicial effect outweighed its probative value. The State persisted and then offered the tape without the sound to show \\\"the passenger getting out of the vehicle\\\" and to show \\\"the crime scene and the darkness of the area as the vehicle is traveling down that road.\\\" After viewing the tape with counsel without the sound, the judge allowed the tape to come in \\\"to show what occurred at that particular time.\\\" The judge stated that removing the sound \\\"takes away at least enough of the prejudice that it makes it probative enough for the State to use in their case in chief, to show what occurred at that particular time, and I am going to allow it for that purpose.\\\"\\n[\\u00b6 27.] Although the trial court's ruling on relevancy is somewhat vague, we cannot say the admission of the video was an abuse of discretion. Because the sound was removed, the court was satisfied that the tape's prejudicial effect was adequately reduced. The trial court found that the probative value of the scene depicted on the tape outweighed its prejudicial impact and that it should be presented to the jury. Under our standard of review, we cannot say that the trial court abused its discretion.\\n[\\u00b6 28.] Krebs also raised the issue of whether the trial court erroneously allowed the admission of prior bad acts evidence under SDCL 19-12-5 (Rule 404(b)) without prior notice from the State. Because we reverse for a new trial, we need not reach this issue.\\n[\\u00b6 29.] We affirm the trial court's decision to transfer Krebs to circuit court. Because of the prejudicial admission of undisclosed inculpatory evidence, however, we reverse and remand for a new trial.\\n[\\u00b6 30.] GILBERTSON, Chief Justice, and SABERS, Justice, concur.\\n[\\u00b6 31.] KONENKAMP and ZINTER, Justices, concur in part and concur in result in part.\\n. The trial court made both oral and written findings.\\n. Under Rule 16(d)(2) of the Rules of Criminal Procedure,\\nIf, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply with an applicable discovery provision, the court may order stich party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.\\nSDCL 23A-13-17.\\n. The witness testified on the third day of the five day trial.\\n. In its closing argument, the State argued \\\"there was no self-defense here, and [Krebs] knows it. And [Krebs and his friends Steve and Brian] all knew it.... [Steve's] best friend was on trial for murder. [Brian's] friend was on trial for murder. Jessie Krebs is on trial for murder. Who has the most to lose; who has the most to gain?\\\"\\n. This witness's testimony is not the only evidence which the State failed to disclose in violation of the trial court's orders. The State did not produce the video from the police car's dashboard camera until approximately one week before trial. Further, not until after the jury was selected did Krebs receive a police report referring to a witness who, at some time during the party, was injured in a fight. Finally, on the second day of trial, the State produced a videotaped interview of Michael Wisely, one of the State's witnesses and a friend of Darrow. As to the dashboard tape, Krebs's motion in limine to exclude was denied, and that issue on appeal is considered herein. See infra \\u00b6 24-27. Krebs also made several motions for mistrial based on the other late productions by the State, but those motions were also denied. While Krebs did not raise these issues on appeal, it shows a dilatory pattern by the State's attorney which the defendant had to deal with throughout the proceedings.\"}"
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+"{\"id\": \"8516224\", \"name\": \"HURLEY et ux., Plaintiffs v. STATE, Defendant\", \"name_abbreviation\": \"Hurley v. State\", \"decision_date\": \"1966-06-21\", \"docket_number\": \"File No. 10110\", \"first_page\": \"156\", \"last_page\": \"180\", \"citations\": \"82 S.D. 156\", \"volume\": \"82\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:23:01.268610+00:00\", \"provenance\": \"CAP\", \"judges\": \"RENTTO, P. J., and HOMEYER, J., concur.\", \"parties\": \"HURLEY et ux., Plaintiffs v. STATE, Defendant\", \"head_matter\": \"HURLEY et ux., Plaintiffs v. STATE, Defendant\\n(143 N.W.2d 722)\\n(File No. 10110.\\nOpinion filed June 21, 1966)\\nBangs, McCullen, Butler & Foye, and Sieler, Sieler & Varilek, Rapid City, for plaintiffs.\\nFrank L. Farrar, Atty. Gen., and John B. Wehde, Sp. Asst. Atty. Gen., Pierre, for defendant.\", \"word_count\": \"7843\", \"char_count\": \"46581\", \"text\": \"HANSON, Judge.'\\nThis is the final chapter, we trust, in protracted proceedings involving damages claimed by an abutting property owner for loss of access to West Boulevard in Rapid City. The action orig- mated against the city. On appeal, Hurley v. City of Rapid City, 80 S.D. 180, 121 N.W.2d 21, it was determined the city was not legally responsible for the damages claimed. Plaintiffs then filed a claim in the amount of $75,000 against the State of South Dakota. The claim was denied and this action commenced under SDC 1960 Supp. 33.0604. The Hon. F. Thomas Parker, one of the judges of the Seventh Judicial Circuit, was appointed Referee. During the reference certain pretrial questions were certified to and determined by this court in Hurley v. State, 81 S.D. 318, 134 N.W.2d 782. The issues were thereafter heard by the Referee, without a jury, and he reports there has been a substantial impairment of plaintiffs' right of access by the construction of a barrier by the State constituting a taking and damaging of plaintiffs' property in the amount of $20,000, together with interest at 6 percent per annum since April 19, 1959. The State excepts to the Referee's Report upon the following grounds: (1) There has been no compensable taking or damaging of plaintiffs' property, and (2) there was not a unity of use between the two lots sufficient to support a consequential damage award as one parcel.\\nThe facts found by the Referee and as disclosed by the evidence show plaintiffs have owned Lots 1 and 2 of Tract A in Lot 25, Block 25 of Riverside Addition in Rapid City since 1954. Lot 1 is situated on the corner of Omaha Street and West Boulevard. Lot 2 adjoins on the west. Before the taking West Boulevard and Omaha were conventional public streets. Plaintiffs had open, free, and unobstructed access to West Boulevard on the east of their lots for a distance of 162 feet and to Omaha street on the south for a distance of 80 feet. West Boulevard was converted from a conventional street into part of Interstate 90. As part of the construction the State Highway Commission on April 19, 1959 erected a steel barrier along the west side of West Boulevard. This steel barrier runs along the entire east side of plaintiffs' lots and extends around the corner on Omaha street for a distance of 10 feet. The barrier precludes all direct access from plaintiffs' property to West Boulevard.\\nThe Referee found before the construction of the barrier and conversion of West Boulevard into part of Interstate 90 the highest, best, and most profitable use of the two lots was for a service station with a fair market value of $30,000. After the construction of the barrier the property was no longer usable as a service station and had a fair market value of $10,000. Therefore, plaintiffs' property was substantially impaired and damaged by the loss of access in the amount of $20,000. The Referee also found the highest, best, and most profitable use of Lots 1 and 2 were as a unit. The lots were vacant and unoccupied.\\nIt is universally recognized that an owner of land abutting on a conventional street or highway has certain private rights in the street or highway distinct from that of the general public. 29A C.J.S. Eminent Domain \\u00a7 105(1), p. 424 et seq. Right of access is one of these private property rights which cannot be taken for public use or materially impaired without compensation. 29A C.J.S. Eminent Domain \\u00a7 105(2), p. 429. This has long been the settled law of this state. In the early case of Edmison v. Lowry, 1892, 3 S.D. 77, 52 N.W. 583, 17 L.R.A. 275, the court said: \\\"This right of the abutting owner is a peculiar, distinct, and separate right from that of the general public to use such street as a public highway. It includes, not only the rights of the general public, but the further right to the street for light and air, access, ingress, and egress, at all times, subject only to the easement of the public and the rights of the municipality. This right to an unobstructed street in front of his premises for light and air, access, ingress, and egress, belonging to an abutting owner, constitutes the most valuable part of the property, especially in crowded thoroughfares and on business streets, and without these rights the property, in many instances, would be greatly diminished in value. These rights, therefore, constitute property that cannot be taken for public use, except upon payment of just compensation. See also Hyde v. Minnesota, D. & P. Ry. Co., 29 S.D. 220, 136 N.W. 92, 40 L.R.A.,N.S., 48.\\nUntil the latter part of the last century most states refused to compensate an owner of land which had been damaged by the construction of a public improvement where there was no physical taking of any part of the property on the theory that consequential damages were not recoverable under the \\\"taking\\\" clauses of their eminent domain constitutional clauses. This was recognized as unjust and \\\"in 1870 a constitutional amendment was adopted in Illinois providing that private property should be neither taken NOR DAMAGED for public use without compensation. This action by Illinois was followed by many of the other states It is now contained in the constitutions of Alabama, Arizona, Arkansas, California, Colorado, Georgia, Illinois, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, Pennsylvania, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming It is under the later provision of the constitution protecting an owner against 'damage' that a landowner may claim compensation for the destruction or disturbance of easements of light and air, and of accessibility, or of such other intangible rights as he enjoys in connection with and as incidental to the ownership of the land itself\\\". 2 Nichols on Eminent Domain \\u00a7 6.44, pp. 486, 487.\\nThis basic rule has long been recognized in South Dakota i. e., even though no part of private property is physically taken the landowner is entitled to compensation under the taking and damaging clause of our constitution (\\u00a7 13, Art. VI) when the construction of a public improvement causes damage to property \\\"if the consequential injury is peculiar to the owner's land and not of a kind suffer\\u00e9d by the public as a whole.\\\" State Highway Commission v. Bloom, 77 S.D. 452, 93 N.W.2d 572; Searle v. City of Lead, 10 S.D. 312, 73 N.W. 101, 39 L.R.A. 345; Whittaker v. City of Deadwood, 12 S.D 608, 82 N.W. 202; In Re Yankton-Clay County Drainage Ditch, 38 S.D. 168, 160 N.W. 732.\\nSpecific statutory authority is granted to the state highway department to acquire \\\"private or public property rights for controlled-access facilities and service roads, including rights of access, air, view, and light SDC 1960 Supp. 28.09A05.\\nIt is equally well settled, however, that an abutting landowner's right of access is not absolute, but is subject to reasonable regulation and restriction by the state under its police power in the public interest. As expressed in Darnall v. State, 79 S.D. 59, 108 N.W.2d 201 \\\"The construction of a highway past a place of business gives owners no vested right to insist that it remain there as a changeless road in a changing world The right of ingress and egress has been held to be subject to reasonable regulations in the public interest and for the promotion of public convenience and necessity it has been declared to be a reasonable or convenient access and not access at all points along the highway.\\\" Under the circumstances, it was concluded by the majority of the court there could be no recovery as there was no physical taking and the owner's access to the highway was not unreasonably diminished or interfered with. Therefore, Darnall's loss due to diversion of traffic was the end result of a lawful exercise of the police power. The State contends the same principle applies and the same conclusion is dictated here. We do not agree.\\nThe three broad inherent powers of governmental sovereignty by which the state carries out its fundamental purpose of protecting the health, safety, morals, and general welfare of the public are the powers of taxation, police, and eminent domain. These are co-existing and may be and often are exercised simultaneously to perform a single governmental function. In such case, it is difficult to determine with exactitude when regulation under the police power ends and a compensable taking of private property begins. The question was answered by the Nebraska Court in Balog v. State, 177 Neb. 826, 131 N.W.2d 402 as follows: \\\"The fact that appellant [State of Nebraska] had under the police power the right to improve its streets and thereby control the traffic thereon does not mean that it had immunity from liability to respond in damages which resulted to private property abutting the improvement where a part of the property of appellee was taken by condemnation. The exercise of police power may or may not involve the taking of private property and it may or may not involve mere noncompensable inconvenience to the owner thereof. The distinction is not whether it is a valid exercise of police power but whether or not the property itself is taken or damaged.\\\" Likewise, the Minnesota Court said \\\"While courts have assumed that designating a regulation an exercise of police power prevents compensation by eminent domain proceedings, for practical purposes this is simply a convenient way of describing which activities confer a right to damages and which do not. The prohibiting or limiting of access to a highway may well be an exercise of police power in the sense that it is designed to promote traffic safety, but at the same time it may cause com-pensable injury to an abutting owner. The damage to him must be different in kind and not merely in degree from that experienced by the general public.\\\" Hendrickson v. State, 267 Minn. 436, 127 N.W.2d 165.\\nIn each case, therefore, the relative rights of the public and private interests must be considered and the reasonableness of the regulation and the degree of its interference with private property determined. If, after the construction of a public improvement an abutting landowner continues to have reasonable access to his property, he has no compensable complaint. But if the right of access is destroyed or materially impaired, the damages are compensable if the injury sustained is peculiar to the owner's land and not of a kind suffered by the public generally. In other words \\\"police regulations must be reasonable, and the legislature cannot, under the guise of the police power, impose unreasonable or arbitrary regulations which go beyond that power, and in effect deprive a person of his property within the purview of the law of eminent domain, as by depriving the owner of all profitable use of the property not per se injurious or pernicious, restricting the lawful uses to which the property can be put and destroying its value, permanently so restricting the use of the property that it cannot be used for any reasonable purpose, or completely destroying the beneficial interest of the owner.\\\" 29A C.J.S. Eminent Domain \\u00a7 6, p. 182.\\nIn the present case, plaintiffs' property is situated on the corner of two streets in a commercial zone of the City of Rapid City. Before the construction of Interstate 90 free, open, and unobstructed access was available from the property to both Omaha Street on the south and West Boulevard on the east. Its highest, best and most profitable use was for an automobile service station and one of the major considerations contributing to its value for such purpose was the right of access to two streets. Negotiations with major oil companies were in progress when the state erected the steel barrier closing all access to the property from West Boulevard and for a limited distance on Omaha Street. The barrier left access only to the west bound traffic on Omaha Street. Likewise, all pedestrian traffic was closed off from the east and from the south. Consequently, the Referee correctly concluded plaintiffs' right of access was substantially impaired and they suffered a compensable loss. Their damages were different in kind and not merely in degree from that experienced by the general public and their private property right of access was taken in the constitutional sense requiring compensation to be paid therefor.\\nThe measure of damages for the obstruction or substantial impairment of an abutting landowner's right of access to a street or highway is the difference between the market value of the property considered at its highest, best, and most profitable use immediately before and immediately after the destruction or impairment. Boxberger v. State Highway Commission, 126 Colo. 526, 251 P.2d 920. Because plaintiffs acquired Lots 1 and 2 at different times and the property is vacant the State contends the Referee erred in considering his property as a single parcel for the assessment of damages.\\nWhen part of one, or one, of several lots or tracts of land is taken by eminent domain the owner is not ordinarily entitled to compensation on the residue unless the lots or tracts were used as a unit for a single purpose. \\\"There is no single rule or principle established for determining the unity of lands for the purpose of awarding damages in eminent domain cases. While, generally, there must be unity of title, contiguity of use, and unity of use, under certain circumstances, the presence of all these unities is not essential.\\\" 29A C.J.S. Eminent Domain \\u00a7 140, p. 591. For example, in State Highway Commission v. Fortune, 77 S.D. 302, 91 N.W.2d 675 and in State Highway Commission v. Bloom, 77 S.D. 452, 93 N.W.2d 572, this court recognized that physically separated tracts of land commonly owned and used could be considered one parcel. \\\"In many cases Hie court can, as a matter of law, determine that lots are distinct or otherwise, but ordinarily it is a practical question to be decided by the jury or other similar tribunal which passes upon matters of fact, which should consider evidence on the use and appearance of the land, its legal divisions and the intent of its owner and conclude whether on the whole the lots are separate or not. In such cases the land itself rather than the map should be looked at, and one part of a parcel is not to be considered separate and independent merely because it was bought at a different time from the rest and is separated from it by an imaginary line.\\\" 4 Nichols on Eminent Domain, \\u00a7 14.31, p. 715.\\nPlaintiffs have continuously owned Lots 1 and 2 since 1954. There is no physical barrier, line fence, street, alley, or intervening land between them. They are separate only on plats. Lot 1 is 40 feet wide and 162 feet long. Lot 2 is 40 feet wide at its junction with Lot 1 on Omaha Street, but it extends only 125 feet north and fans out to a width of 63.9 feet across its northern boundary. Because of its location, irregular shape, and size the two lots in conjunction were particularly adaptable and valuable as an automobile service station. The owners held the property for this singular purpose and were negotiating with major oil companies for a favorable sale or lease of the premises. Access to West Boulevard was a major consideration contributing to their value. Without such access the value of the lots was necessarily and permanently reduced. Their use for any purpose was materially diminished. Under the circumstances, the Referee properly considered Lots 1 and 2 as a single parcel or unit for the assessment of damages.\\nAs the damages constitute compensation for the taking of private property by the state for highway right-of-way, there exists an appropriation for payment. Darnall v. State, 79 S.D. 59, 108 N.W.2d 201. We, therefore, confirm and adopt the Report of the Referee and order entry of judgment in favor of plaintiffs against the State of South Dakota for the sum of $20,000 together with interest thereon at the rate of 6 percent per annum from the 19th day of April, 1959.\\nAlthough the issues directly involved have been disposed of we feel compelled, in the public interest, to consider the adequacy of the remedy now afforded a landowner whose property has been taken or damaged without just compensation. An allied question is whether or not \\u00a7 13, Art. VI of the South /Dakota Constitution is self-executing. Before its amendment by the people in 1962, \\u00a7 13, Art. VI provided \\\"Private property shall not be taken for public use, or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained, and before possession is taken As amended, it now provides \\\"Private property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the Legislature and according to Section 6 of this Article. \\\" Ch. 297, Laws of 1961. Trial by jury in condemnation cases is still guaranteed in the amendment by reference to \\u00a7 6 of Art. VI which assures \\\"the right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy\\nThe legislature has adequately provided remedies and procedures in condemnation actions which are available to a con-demnor. See SDC 1960 Supp. 28.13A, 37.40, and Ch. 195, Laws of 1963.' However, no specific remedy is afforded a person whose land has been taken or damaged by the condemning authority without compensation. In other words, he has a basic constitutional right, but no remedy for its enforcement.\\nThis question was considered in Darnall v. State, 79 S.D. 59, 108 N.W.2d 201, which involved an inverse condemnation action by private landowners against the state. The action originated in circuit court, however this court assumed jurisdiction under the provisions of SDC 1960 Supp. 33.0604. The majority of the court concluded the legislature had provided an adequate remedy by 33.0604 consequently the question of whether or not \\u00a7 13, Art. VI of South Dakota Constitution was self-executing and the question of whether or not plaintiffs had a common law action in circuit court for the redress of their alleged damages was not decided.\\nSDC 1960 Supp. 33.0604 provides:\\n\\\"It shall be competent for any person deeming himself aggrieved by the refusal of the State Auditor to allow any just claim against the state, to commence an action against the state by filing with the Clerk of the Supreme Court in accordance with the foregoing sections a complaint setting forth fully and particularly the nature of the claim. He shall at the same time file an undertaking in the penal sum of five hundred dollars, with two or more sureties, to be approved by the State Treasurer, to the effect that he will indemnify the state against all costs that may accrue in such action, and pay to the Clerk of said Court all costs in case he shall fail to prosecute his action, or to obtain a judgment against the state; and thereupon the action shall be placed upon the calendar of said Court.\\n\\\"The plaintiff, within ten days after having filed such complaint and undertaking, shall serve a copy of the complaint upon the Attorney General and the State Auditor, together with a notice to plead or answer thereto within thirty days after the service of such complaint and notice, exclusive of the day of service;' and the Attorney General shall thereupon be required to answer or plead within the time specified in such notice.\\n\\\"The trial of such action shall be conducted in accordance with the foregoing sections and any special rule or order made for trial of the particular case by the Supreme Court.\\n\\\"No execution shall issue against the state on any judgment, but whenever final judgment against the state shall have been obtained in any such action the Clerk of the Supreme Court shall make and furnish to the State Auditor a duly certified transcript of such judgment, and the Auditor shall thereupon audit the amount of damages and costs therein awarded, and the same shall be paid out of the State Treasury.\\\"\\nSince Darnall several inverse condemnation actions against the state have been brought in this court under the permissive provisions of the above statute. This experience clearly demonstrates such procedure does not afford an adequate remedy for persons whose private lands have been taken or damaged by the state without compensation for the following reasons:\\n1. A $500 bond is required to assert a constitutional right;\\n2. A jury trial is a matter of grace rather than a right guaranted by \\u00a7 13, Art. VI and \\u00a7 6, Art VI of our constitution;\\n3. Necessary or indispensable parties defendant cannot be joined;\\n4. As a condition precedent there must be a specific appropriation to pay the claim presented;\\n5. All questions of fact must be referred to a referee;\\n6. The procedure is complex, limited, delaying in nature and contrary to the spirit of \\u00a7 20, Art. VI of our Constitution which assures all persons that \\\"All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay\\\";\\n7. Because it is restrictive and qualified it does not afford a proper, satisfactory, or complete remedy;\\n8. The Supreme Court is not a proper forum for the determination of fact issues.\\nIn the absence of an adequate remedy which can be invoked by condemnees whose private property has been taken or damaged by the state without compensation \\u00a7 13, Art. VI of our Constitution is deemed to be self-executing. In such cases the aggrieved landowner has a common law action in circuit court where his constitutional right to trial by jury may be asserted. This conclusion was forecast in Searle v. City of Lead, 10 S.D. 312, 73 N.W. 101, 39 L.R.A. 345, wherein this court observed that \\\"The provisions of the constitution are not limited to a change of grade once established, but are general, and include all damages to private property for public use. The legislature is not authorized to restrict the language or take from the citizen the protection the constitution has thrown around him and his property. This provision of the constitution is self-executing, and, if there was no law to carry it into effect, a court of equity would, in the exercise of its inherent power, provide some method for ascertaining the damages, if any, caused by the injury threatened.\\\" This is in accord with the great weight of authority according to the following summary appearing in 16 C.J.S. Const.Law \\u00a7 49, p. 149: \\\"While there is some authority that such a provision is not self-executing, it is generally held that a constitutional prohibition against taking or damaging private property for public use without just compensation therefor is self-executing, even though the method of ascertaining such compensation is left for legislative determination. It requires no legislation for its enforcement and confers the right to obtain compensation regardless of statutory provision therefor. Neither consent to sue the state nor the creation of a remedy by legislative enactment is necessary to obtain relief for a violation of the constitutional provision. A constitutional provision that suits may be brought against the state in such manner and in such courts as shall be directed by law does not require the enactment of a statute before suit may be brought to enforce the constitutional provision against the taking or damaging of property for public use without compensation. When the constitution forbids taking of, or damage to, private property, and points out no remedy and no statute affords one for the invasion of the right of property thus secured, the common law, which provides a remedy for every wrong, will furnish the appropriate action for the redress of such grievance.\\\"\\nTherefore, by this caveat we overrule contrary conclusions concerning the adequacy of the remedy afforded by SDC I960 Supp. 33.0604 for landowners whose property is alleged to have been taken or damaged by the state without just compensation. Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360. In the absence of an adequate remedy provided by the legislature which condemnees may invoke in such cases, Section 13, Article VI of our Constitution is deemed to be self-executing granting them a right of trial by jury in the circuit courts of our state.\\nRENTTO, P. J., and HOMEYER, J., concur.\\nBIEGELMEIER, J., concurs in part and dissents in part.\\nROBERTS, J., dissents.\"}"
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+"{\"id\": \"8516778\", \"name\": \"HEALEY et al. v. WIPF, Secretary of State\", \"name_abbreviation\": \"Healey v. Wipf\", \"decision_date\": \"1908-09-02\", \"docket_number\": \"\", \"first_page\": \"343\", \"last_page\": \"350\", \"citations\": \"22 S.D. 343\", \"volume\": \"22\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T22:06:22.838016+00:00\", \"provenance\": \"CAP\", \"judges\": \"EUDEER, J., taking no part in this decision.\", \"parties\": \"HEALEY et al. v. WIPF, Secretary of State.\", \"head_matter\": \"HEALEY et al. v. WIPF, Secretary of State.\\nTlie primary election law (Laws 1907, p..286, c. 139,. \\u00a7 3),. declares that thereafter all party candidates for the elective offices named, and for tbe office of United States senator, shall be nominated, and all party delegates to political conventions, and all precinct, county, state and national committeemen shall be nominated and elected at a primary election held in accordance with the provisions of this act; that all other nominations of such candidates shall be by petition in 'the manner provided by law. Section 6, subd. 1, provides that the name of no candidate for United States senator, nor of any candidate for member of Congress, nor for any state office, including judges of the circuit court, shall be printed on any official ballot used at a primary election, unless the nominating petition in the form prescribed shall have been filed in the office of the Secretary of State. Held, that such act prescribed the exclusive mode of nominating party candidates for the offices specified therein.\\nThe primary election law (Laws 1907, p. 285, c. 139), though construed as prescribing an exclusive mode of nominating candidates for offices mentioned therein, is not unconstitutional as an improper infringement on an elective franchise, such franchise being a mere privilege, and not a natural right, which the Legislature may regulate to any extent not prohibited by the federal and state Constitutions.\\n(Opinion filed, Sept. 2, 1908.)\\nMandamus by William Healey and others to compel D .D. Wipf, as Secretary of State, to receive and file certain nomination certificates of Democratic candidates and to- certify their names to the auditors of the several counties, that \\u2019such names may be printed on the official ballots to be voted at the November, 1908, general election.\\nWrit dismissed.\\nW. A. Lynch and T. H. Null, for plaintiffs. S. W. Clark, Attorney General, for defendant.\", \"word_count\": \"2786\", \"char_count\": \"16939\", \"text\": \"HANEY, P. J.\\nThis original special proceeding was instituted to compel the defendant, as Secretary of State, to receive and file nomination certificates of certain Democratic party candidates, and to certify the names of such candidates to the auditors of the several counties for the purpose of having them printed on the official ballots to be voted at the coming general election, in accordance .with the provisions of article 6, c. 19, Rev. Pol. Code. It appears from the application that the Democratic Party is an organized political party that has participated in state, county, township, and municipal elections for 12 years last past, during which time it has regularly, presented to the electors of this state its party candidates to be voted for at such elections; that it participated in the June, 1908, primary election, electing delegates to its state convention, members of its state committee, a national committeeman and precinct committeemen, in the manner provided by the primary election law, and likewise nominated a candidate for Governor and a candidate for Lieutenant Governor, but the electors composing its membership wholly failed and neglected to file any nominating petitions for any .of the following state officers: Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Railway Commissioner, Commissioner of School and Public Lands, and Attorney General, consequently no candidates of that party for the offices named were voted for or nominated at the June primary; that the delegates elected as aforesaid assembled at Rapid City, July 14, 1908, and proceeded to organize a state convention by the election of Hon. P. P. Wickham as presiding officer ,and Mr. T. W. Taubman, as secretary; that such convention so organized proceeded .to and did nominate candidates for the offices before named; that a certificate showing the nomination of such candidates, signed by the aforesaid presiding officer and secretary, conforming to the requirements of article 6, c. 19, Rev. Pol. Code, was presented to the defendant, as Secretary of State, who refused to receive and file the same. It further appears from the application that the Democratic state central committee, treating the official positions before named as vacant, met at Mitchell on August 4th, and proceeded to fill such assumed vacancies by naming the same persons as candidates, that certificates showing the action of the committee were presented to the defendant, as Secretary of State, who refused to receive and file the same, and that the plaintiffs are the persons so nominated by the state convention and state central committee. To this application defendant demurred on the following grounds: (1) The plaintiffs have no legal capacity to sue in this form of action; (2) there is a defect of parties in that the state is not made a party by one of its officers, by the Attorney General or by relation of the plaintiffs; and (3) the application does not state facts sufficient to constitute a cause of action or to justify this court in issuing the writ prayed for.\\nAs we understand the argument of counsel it is contended (1) that the Primary Election Law (Laws 1907, p. 285, c. 139) should not be considered as prescribing an exclusive mode of nominating party candidates for the offices mentioned in. the application; and (2) that, if it should 'be so considered, it is unconstitutional and void. The first contention is clearly untenable. Section 3 reads as follows: \\\"Hereafter all party candidates for the elective officers hereinafter named, and for the office of United States senator, shall be nominated, and all party delegates to political conventions, and all precinct, county, state, and national committeemen shall be nominated and elected at a primary election held in accordance with the provisions of this act. All other nominations of such candidates shall be by petition in the manner now provided by law.\\\" Section 6, subd. 1, declares: \\\"The name of no candidate for United States senator, nor of any candidate for member of Congress, nor for any state office including judges of the circuit court,\\\" shall be printed upon any official ballot used at the primary election unless a nominating petition in the form prescribed shall have been filed in the office of the Secretary of State. The phrase \\\"any 'state office\\\" in section 6 must be read in connection with and be qualified by the words \\\"elective officers\\\" in section 3. Each of the officers involved in this proceeding is mentioned in section 8, relating to fees, and in section 11, relating to the form of the official primary ballot. Sections 61, 69, and 72 contain these provision's: \\\"Any candidate for nomination whose name is printed upon any official primary election ballot who receives the highest number of votes cast by the voters of his party for any candidate for nomination to the office for which he is a candidate, and not less than thirty per cent, of the total vote cast in his party for all the candidates for nomination to such office at the primary election shall be the nominee of his party for such office, and any candidate for national, state, or precinct committeeman who receives the highest number of votes cast for any candidate for election to the position for which he is a candidate shall be duly elected to such position. In all cases where no candidate receives as high as thirty per cent of the total vote cast by the voters in his party for all the candidates for the same office for 'which he is a candidate, no nomination shall result, but such candidates shall submit to the decision of the following state or county convention, as the case may be. Such convention must decide among the candidates whose names were submitted to the voters at the primary and cannot consider new candidates. The convention shall nominate one of the contesting candidates and certify his nomination to the Secretary of State or to the county auditor as provided under existing laws. All county conventions held under the provisions of section 12 of this act shall have authority, in addition to that of making nominations in cases where no candidate for county office before the primary received thirty per cent, of the vote, to fill vacancies caused by the failure of candidates to file nominating petitions or by withdrawals, death, or sxiy other reason, and to pas's party resolutions. If for any reason after a nomination as a party candidate for an elective office has been made or a party committeeman elected, as provided in this act, a vacancy shall occur, the state or county committee of the political party, as the case may be, in which the vacancy occurs is hereby authorized to fill the same.\\\" Consideration of these excerpts and of the act as a whole irresistibly leads to< these conclusions: (1) That it was the intent of the Legislature to prescribe a mandatory method of making party nominations to all elective state office's, including judges of the'circuit court; (2) that such method does not permit the nomination of party candidates to> either of such offices by the state convention, except where no candidate has received the requisite vote at the primary; and (3) that such method permits the state central committee to nominate only where a vacancy occurs after a candidate has been nominated at the primary. It necessarily follow's that the plaintiffs are not entitled to have their names printed on the ballots to be voted at the coming general election, as candidates of the Democratic Party, unless the Legislature was without power to establish any compulsory 'primary system whatever.\\nThough numerous particular provisions of statutes relating to primary elections have been attacked in the courts as unconstitutional or subversive of inherent rights, we are aware of no decision wherein it i's held that the Legislature is without power to prescribe any mandatory rule whatever for the regulation of party procedure so far as it concerns nominations to public officesl On the contrary, all the decisions we have examined either declare or as sume that, where the Australian ballot system is in force, as it is in this state, the relation between the nomination and election of a public officer is such as to imperatively demand legislation respecting party nominations, and any legislation on the subject will necessarily interfere with the customs and usages of organized political parties. As said by the Supreme Court of California, \\\"the procedure of political parties may be regulated, and the wisdom of the Legislature may well be exercised in devising methods to check political corruption and fraud.\\\" Britton v. Board, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115. This court has said: \\\"To what extent, if at all, the rights of organized political parties should be recognized and regulated by law is a matter of public policy, to be determined by the legislative department; a matter which does not concern this court. Its duty is done when it gives effect to the legislative will expressed in statutes which do not conflict with any provision of the federal or state Constitution.\\\" State v. Metcalf, 18 S. D. 393, 100 N. W. 923, 67 L. R. A. 331; Morrow v. Wipf, 22 S. D. 146, 115 N. W. 1121. In considering legislation relating to tire regulation of party nominations great care should be taken to discriminate between preconceived notions regarding the wisdom of such regulations and the application of constitutional limitations upon the legislative power. The elective franchise is not a natural right. It is a privilege which may be taken away by the power which conferred it; and the only limitations upon the power of the Legislature to regulate its exercise and enjoyment are the express and implied limitations found in the federal and state Constitutions. So far as this controversy is concerned, the essential feature consists in the right of each qualified elector to express, and have due effect given to, his individual choice of such elective political officers- as control the affairs in which he is interested. Thus, every qualified elector in the state should have an opportunity to express his choice of elective state officers; every qualified elector of the county should have an opportunity to express his choice of elective county officers; every qualified elector in each local subdivision should have the same opportunity, and he cannot be deprived of this opportunity by unconstitutional restrictions upon his right to participate in the selection of candidates, whenever a nomination is legally or practically a condition precedent to an election. Where the electorate is limited, as to the voters of a civil township or school district, an effective expression of individual prefernces may be promoted by the absence of legislative regulations respecting methods of procedure. Where, however, as in the case of the selection of a state officer, the number of electors is large, the problem becomes vastly more complicated, and laws regulating the exercise of the elective franchise are absolutely essential to an effective enjoyment of the privilege. Much was said in the oral, argument about the inherent rights of organized political parties, as if such an organization possessed an entity independendent of the individual electors composing its membership. In a restricted sense only is this true. We are dealing with the rights of the individual electors belonging to the Democratic Party in this state, not with the rights of an artificial person known by that name, because, strictly speaking, no such person or entity exists. Theoretically a party candidate is the choice of the majority of the electors composing the party. This choice may be ascertained by means of a primary election, a mass convention, a delegate convention, or the action of an authorized committee. With the relative merits of these methods this court is not concerned, however pronounced may be the individual opinion of its members. The question to be determined is whether the Legislature has power to require the use of one to the exclusion of others in making party nominations to elective state offices. Piad the statute required such nominations to be made by a delegate convention, and the Democratic organization had employed a primary election, its nominees might have objected to* the invasion of its supposed rights with a far more plausible argument than the plaintiffs have presented in this case. The truth is, their entire argument rests on the erroneous assumption that the party, as a distinct entity, has an absolute right to follow any mode of procedure deemed advisable by the person or persons having control of the party machinery, whereas the will of any voluntary association is the will of the majority of its members, and the only constitutional right involved is the right of each individual elector composing such majority to exercise and enjoy the elective fran chise in the same manner and upon the same terms as all other electors in substantially the same situation, provided, of course, that the legislative regulation does not substantially interfere with the exercise and enjoyment of such franchise. As to state elections under the Australian system, there must be regulation, and it certainly cannot be successfully contended that the rights of the individual elector are impaired by substituting a direct primary, conducted at public expense, according to established rules, for the methods formally employed by political parties in this state. Under this statute the elector's rights are clearly defined and clothed with the sanctions of positive law, while in the absence of any legislation on the subject he would have no enforceable rights whatever with respect to party nominations. In the language of Chief Justice Parker, speaking for the New York Court of Appeals, concerning legislation of substantially the same import: \\\"The dominant idea pervading the entire statute is the absolute assurance to the citizen that his wish as to the conduct of the affairs of his party may be expressed through his ballot, and thus given effect, whether it be in accord with the wishes of the leaders of his party or not, and that thus shall be put in effective operation in the primaries the underlying principle of democracy, which makes the will of an unfettered majority controlling. In other words, the scheme is to permit the voters to construct the organization from the bottom upwards, instead of permitting leaders to construct it from the top downwards.\\\" People v. Democratic Gen. Com. of Kings Co., 164 N. Y. 335, 58 N. E. 124, 51 L. R. A. 674.\\nSo we conclude that plaintiff's contention as to the invalidity of the (Statute is noit tenable, that plaintiffs are not entitled to have their names printed on the general election ballots as candidates of the Democratic Party, and that defendant is entitled to a judgment of dismissal upon the merits.\\nEUDEER, J., taking no part in this decision.\"}"
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+"{\"id\": \"8516987\", \"name\": \"REX TWP., Respondent, v. BAILEY TWP., Appellant\", \"name_abbreviation\": \"Rex Twp. v. Bailey Twp.\", \"decision_date\": \"1929-11-19\", \"docket_number\": \"File No. 6019\", \"first_page\": \"119\", \"last_page\": \"125\", \"citations\": \"56 S.D. 119\", \"volume\": \"56\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:53:58.923038+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHERWOOD, P. J., CAMPBELL, J., and DULLER, C. (sitting in lieu of BROWN, J., disqualified), concur.\", \"parties\": \"REX TWP., Respondent, v. BAILEY TWP., Appellant.\", \"head_matter\": \"REX TWP., Respondent, v. BAILEY TWP., Appellant.\\n(227 N. W. 488.)\\n(File No. 6019.\\nOpinion filed November 19, 1929.)\\nM. Q. Sharpe, of Kennebec, for Appellant.\\nBrown & Brown, of Chamberlain, for Respondent.\", \"word_count\": \"2161\", \"char_count\": \"12606\", \"text\": \"MISER, C.\\nA complete statement of the issues on this appeal was given in the former opinion of this court, reported in 54 S. D. 307, 223 N. W. 200. They may be summarized thus: In April, 1922, Rex township, which had been organized for about 15 years as a civil township of Lyman county, was subdivided into Rex township and Bailey township. It had an outstanding indebtedness of $2,400 and owned some personal property consisting largely of road scrapers. The board of adjustment appointed under authority of section 6039, Rev. 'Code 1919, found that the assessed valuation of Bailey township was $403,723 and of Rex township $603,354, and on that ratio apportioned the indebtedness, charging Bailey township with $960 and Rex township $1,440. The personal property was equitably apportioned by giving specific items to each township. This division was made. Rex township paid the entire indebtedness of $2,400 and called upon Bailey township for reimbursement of $960. Upon the refusal of Bailey township to make reimbursement, suit was brought therefor.\\nIn the answer of Bailey township, it was alleged that, while the board of adjustment had signed and filed a report adjusting the indebtedness as above stated, said report did not truthfully set forth the actual determination of the board of adjustment. The answer alleged: \\\"Said board of adjustment by mutual agreement, determined that they would ascertain the proportion which the assessed valuation of the plaintiff bore to the assessed valuation of the defendant, and make a report dividing all of the indebtedness on that basis, but with the specific understanding that the Board of Supervisors of the plaintiff and the defendant assemble in a joint meeting and. adjust the road and bridge indebtedness upon a basis of each township being chargeable for the work and material furnished within its boundaries, but by oversight or mistake in drafting the said adjusters' report, this latter provision was omitted from said report as signed and filed and set forth in plaintiff's complaint, and said report is therefore incomplete and incorrect and is not in fact the true determination and adjustment made by the board of adjustment.\\\"\\nThis appeal is from the order sustaining a demurrer to such answer.\\nThe authority of the board of adjustment is stated in section 6039, Rev. Code 1919, in the following language: \\\"Such board shall have power to determine and declare what portion of the bonded or other indebtedness of the original township shall be assumed and paid by each of the new townships so organized, and also to ascertain and determine what sum either of such new townships shall pay to the other on account of school buildings or other public improvements which such township may have received prior to and retained on such division, and also to make a just and equitable division of all money or other property belonging to such original township at the time of such division.\\\" The statute then proceeds to prescribe the 'basis of such adjustment in the following language: \\\"All such divisions and adjustments shall be made, as near as may be, on the basis of the assessed valuation of property in each of such townships, as determined by the assessor for the year preceding such division, and on the value of such school buildings and other property at the time of such division of such townships.\\\"'\\nDid the board of adjustment, however inadvertently, adjust the indebtedness according to law ? Certainly it was made on the basis of assessed valuation. Bailey township contends, however, that, during the 15 years of existence of old Rex township, at least 90 per cent of the money raised by taxation was expended for roads and bridges in what is now the new Rex township, and that, during the year preceding the division, more than 80 per cent of the funds raised from taxation were expended for roads and bridges within the new Rex township; that, had the indebtedness been apportioned in accordance with the actual, though unexpressed, intention of the board of adjustment, Bailey township would not have been required to pay to exceed $480. Assuming that roads and bridges are \\\"other property\\\" within the meaning of section 6039, it is apparent that Bailey township is not attempting to have their value \\\"at the time of such division of such township\\\" used' as a 'basis of adjustment, but instead seeks to use as a basis of adjustment the respective amounts expended. In appellant's brief, the contention is advanced that the adjusters decided to have the warrant register canvassed and to have each township assume and pay for the recent road work done within its boundaries. While this would rediuce the period of investigation from the approxi mately 15 years of old Rex township's existence down to the period beginning with the oldest outstanding warrant and ending with the latest outstanding warrant, it would still not use as the basis of adjustment the \\\"value\\\" of such roads and bridges \\\"at the time of such division of such township.\\\"\\nBut is it right to assume that roads and bridges are such \\\"other property\\\" as forms one of the bases of adjustment under section 6039? Counsel for Rex township takes the position that under no circumstances can roads and bridges be considered property of such a kind as is used as a basis of adjustment between townships. Counsel admits that they are public improvements, but not the kind of public improvements contemplated by section 6039. Counsel contends that the property intended to be considered by the statute is property of such a nature that its benefits inure solely to one or the other of the two- townships, that is, property in which one or the other township may be said to have a proprietary interest; that roadis and'bridges are not property-of this kind, because any resident of the other township has just as much right 'to use them as does a resident of the township -where they are located. In support of these contentions, counsel cites. State ex rel. Mountrail County v. Amundson, 23 N. D. 238, 135 N. W. 1117, 1118; State ex rel. Foster v. Ritch, 49 Mont. 155, 140 P. 731; State ex rel. Judith Basin County v. Poland, 61 Mont. 600, 203 P. 352.\\nIn the North Dakota case, the language construed was \\\"public property owned by -the original county.\\\" With reference to' the contention that the county has no greater interest or ownership in its courthouse and public grounds than it has in its highways and bridges, the North Dakota court said: \\\"It is true that each are paid for 'by public moneys, but as to the courthouse, grounds, and other property the county has a proprietary interest therein and may, under certain conditions,' sell and' transfer title to another. Not so, however, as to roads and bridges. They may not be sold, leased, or otherwise disposed of by the county, for they belong to the general public.\\\" See, also, State ex rel. Judith Basin Co. v. Poland, supra.\\nIn Bonneville County v. Bingham County, 24 Idaho, 1, 132 P. 431, 432, the Idaho court had under construction an act creating plaintiff county out of defendant county. The court construed the phrase \\\"public property belonging to Bingham county\\\" as not ap plying to roadis and bridges. It said: \\\"Said section in no way mentions bridges and roads as public property, and the Legislature perhaps did not so mention bridges and roads for the reason that bridges and roads are not generally recignized as public property. Elliott on Roads and Streets, vol. i, \\u00a7 32, cites many authorities.\\\" To the same effect, see Steuben Tp. v. L. S. & M. S. Ry. Co., 58 Ind. App. 529, 108 N. E. 545; Lamphier v. Karch, 59 Ind. App. 661, 109 N. E. 938. See, also, Elliott on Roads and- Streets (4th Ed.) \\u00a7 36; 9 C. J. 464; State ex rel. Foster v. Ritch, supra.\\nThat roads and bridges are not property within the meaning of section 6039 is supported by various sections of our statute law relating to townships. Section 6153 is part of article 23 (section 6149 et seq.), which prescribes the method by which a civil township is abolished. By section 6153, the provisions pf the article do not apply to any township owning real property. Section 6152 requires the surplus funds of the abolished township to be used up in work on its roads. If roads are property, the two sections are inconsistent, and no method has been devised for the abolishment of a township owning such property. Although bridges are part of the public highways (section 8669, Rev. Code 1919; 4 R. C. L. 195), the township's proprietary ownership therein is so lacking that the duty of constructing them rests upon the county commissioners (section 29, c. 333, Laws 1919), and whenever the majority of the freeholders' o\\u00ed a civil township or a majority of the freeholders living within a radius of three miles of a proposed location of a bridge petition the board of county commissioners for such bridge, and the estimated cost thereof exceeds $200, if the board of county commissioners approve of its location and construction, they shall proceed to erect the same. Section 30, c. 333, Laws 1919. This is inconsistent with proprietary ownership by the township. It may be, as said in State ex rel. Foster v. Ritch, supra, that a bridge upon a road that has been abandoned has a distinct, independent value and may possess the character of township property; but there is no suggestion that such a question is presented by this appeal. Finally, section 6039 does not specifically mention roads and bridges. Here the entire warrant indebtedness is claimed to have -been incurred for roads and bridges. The failure to mention an item of such importance in township- finances is significant. The statute does not declare that road and bridge in debtedness should toe apportioned on the basis of location where spent. Had that 'been the legislative intent, it would have been easy to have so declared it and, in view of the authorities on which the decisions above cited are based, highly necessary to do so.\\nThe holding that roads and bridges are not \\\"other property\\\" within the meaning of section 6039 is based on precedent and the sound weight of authority. But such precedent is consonant with equity. As said by the North Dakota court in State v. Amundson, supra: \\\"The organization of the new county effects no change whatsoever as to the benefits to be derived \\\"in the future 'by the citizens of the new county from the roads and bridges in the old county. They will have the benefit thereof in the future the same as they had in the past, and consequently there is n,o equitable reason why they should not bear their just proportion of the cost of constructing the same.\\\" In the case at bar, whether the bridges and culverts were located by the county commissioners on petition or by the township supervisors, the mere filing of a report of a board of adjusters with the county auditor made them neither more nor less accessible to every member of the original township. See, also, the opinion of Justice David J. Brewer in Board of Com'rs of Marion County v. Harvey County, 26 Kan. 181, 195.\\nBut appellant contends that the demurrer admits the allegation of the answer that the report, as signed and filed, was not a complete nor correct report of the determination of the board. It does. It also specifies in what it is incomplete and incorrect. The ultimate effect of the pleading, in the light of the law as above stated, is to show compliance by the board of adjustment with the statute, plus a harmless attempt to delegate the doing of something which could not legally be done. If the personal property has been equitably divided (and there is no suggestion that it has not), if the indebtedness has been adjusted in the only way the law permits (and the ultimate effect of the answer is to show that it has), why should the report be reformed or set aside? Under the facts alleged, it would be the duty of any subsequent board of adjustment to file the same sort of a report as is already on file, because the \\u00e1mount expended for roads and bridges which are in actual use as highways cannot be made a basis of adjustment under the statute.\\nThe order sustaining the demurrer is affirmed.\\nSHERWOOD, P. J., CAMPBELL, J., and DULLER, C. (sitting in lieu of BROWN, J., disqualified), concur.\\nPOLLEY J. I still adhere to the former opinion filed herein.\\nMISER, 'C., sitting in lieu of BU'RCH, J., disqualified.\"}"
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+"{\"id\": \"8517035\", \"name\": \"CITY OF SIOUX FALLS, Respondent, v. BESSLER, et al, (RITER, Intervener) Appellants\", \"name_abbreviation\": \"City of Sioux Falls v. Bessler\", \"decision_date\": \"1942-09-25\", \"docket_number\": \"File No. 8471\", \"first_page\": \"635\", \"last_page\": \"639\", \"citations\": \"68 S.D. 635\", \"volume\": \"68\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T21:42:38.340024+00:00\", \"provenance\": \"CAP\", \"judges\": \"POLLEY, J., concurs.\", \"parties\": \"CITY OF SIOUX FALLS, Respondent, v. BESSLER, et al, (RITER, Intervener) Appellants\", \"head_matter\": \"CITY OF SIOUX FALLS, Respondent, v. BESSLER, et al, (RITER, Intervener) Appellants\\n(5 N. W.2d 633.)\\n(File No. 8471.\\nOpinion filed September 25, 1942.)\\nRehearing Denied November 14, 1942\\nBielski, Elliot & McQuillen, of Sioux Falls, for Appellants.\\nRoy D. Burns, of Sioux Falls, and R. C. Riter, of Pierre, for Respondent.\", \"word_count\": \"1366\", \"char_count\": \"8012\", \"text\": \"WARREN, J.\\nThe City of Sioux Falls, a municipal corporation, brought this action to enjoin the unlawful use of the defendant's property. Charles F. Riter served a complaint in intervention. The defendants by their attorneys presented to the building inspector a purported application for a permit authorizing them to construct a building on their lot, known as a multiple residence. It would seem as a matter of fact the building had already been constructed as a four-apartment building and was being used for that purpose at the time of such application.\\nSometime in November, 1939, the plaintiff, City of Sioux Falls, issued a building permit to the defendants and is shown by a certain exhibit in the record giving them permission to erect a duplex upon their lots which were located within a restricted building area under a zoning ordinance of the City of Sioux Falls.\\nAt the close of the trial the court made findings of fact and thereafter conclusions holding that the zoning ordinance applied to. the property and that the construction and maintenance and use of a multiple residence or apartment building on said real property was prohibited by said ordinance. It found all issues in favor of the plaintiffs. A judgment was thereafter entered, permanently restricting and enjoining the defendants from maintaining, using and occupying or permitting the maintenance, use or occupancy of the building upon said real property as an apartment house or a multiple residence. The defendants have appealed from the judgment.\\nAppellants' assignments of error, fall into three main propositions. Appellants' main contention seems to be the fact that the governing body of the city neglected to appoint a board of adjustment as provided by \\u00a7 26 of the City's Zoning Ordinance; that the entire ordinance is invalid as to appellants' property. This ordinance provides for a method of appeal to a board of adjustment with power to reverse rulings of the building inspector, to allow exceptions to the ordinary limitations fixed by the Zoning Ordinance and to otherwise relax regulations of said ordinance in the interest of carrying out the spirit of the Zoning Ordinance. It seems admitted that for several years no such board of adjustment had existed.\\nThe record indicates that there had been an application for a permit to erect a building; the kind and size is in dispute. The exhibit in the record discloses that a permit to build a duplex was granted in November, 1939, and that the court upon the disputed evidence made findings that an application to the building inspector for a permit under the building ordinance of the City of Sioux Falls to construct upon the property a duplex one story house with eight rooms had been made and that a permit to build a duplex had been granted. We believe that the evidence sustains the finding. The finding seems to be sustained by the fact that on September 11, 1940, one of the appellants, as shown by an exhibit directed to the building inspector, stated that he had made application on October 30, 1939, for a permit to build a duplex residence on the property in controversy and that he wanted to change and construct the basement so as to make the same into two apartments, thereby making said building into a four-apartment residence. It would therefore seem that the. record amply sustains the finding that appellant sought permission to build a duplex and that permission was granted. The fact that a later application was made to the building inspector to build a multiple residence and the application not having been granted, appellants took no further action to.set an appeal therefrom in motion does not place the appellants in the most favorable, position. There was no concerted attempt to have this property re-zoned for a multiple residence except that they started the circulation of a petition which they abandoned when the intervener objected. There is no showing whatsoever by appellants of an application to the- governing body of the City of Sioux Falls to change the boundaries of the use districts by an amendment of the Zoning Ordinance. As we read the appellants' contention they do not claim that they asked for re-zoning but that they wanted the building inspector to determine their right to erect, use and operate this multiple residence and in case that he failed to give them permission, then they would have a right to appeal to the board of adjustment.\\nIt is inconceivable that the duties of the Board of Adjustment as expressed in the City Ordinance No. 26 would permit that Board to re-zone the property as that power seems to have been granted to the governing body of the municipality exclusively by our zoning statutes, SDC 45.2601 and 45.2614 inclusive.\\nUnder the general nature of the powers conferred and under Ordinance No. 26 upon the'Board of Adjustment to make certain modifications and changes in specifications, there are certain facts hereinbefore pointed out in this opinion that could not assist appellants herein to obtain the relief petitioned for in changing the then existing building which had been erected under an application for the building of a duplex into that of a four multiple residence 43 C. J. 354.\\nTherefore the failure of the city to maintain a board of adjustment as defined by statute to act did not deprive the appellants of any remedy or rights which they claim to be entitled to as under the proceeding presented there was nothing therein that such a board would have had the power to act upon.\\nWe do not believe under the record before us that much space should be devoted to the validity of the zoning regulations. The facts at issue before us as to the validity of the proceedings in zoning fall within well established authorities. The findings and the conclusions of the court must be sustained. Village of Euclid, Ohio, et al. v. Ambler Realty Company, 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016, and notes 1030 et seq. See 43 C. J. 334, 335; State of Ohio ex rel. Pairmount Center Company v. Arnold, 138 Ohio St. 259, 34 N. E.2d 777, 136 A. L. R. 840, annotation p. 844; Eggebeen et al. v. Sonnenburg et al., 239 Wis. 213, 1 N. W.2d 84, 138 A. L. R. 495, annotation p. 500. There is no evidence in the record tending to show that the court could have found that the zoning ordinance as applied to the appellants' property was unreasonable and arbitrary. Hence the court was fully justified in finding that the intervening respondent had a right to rely on the Zoning Ordinance of the City of Sioux Palls in which his property and that of the appellants were zoned for certain residence use and that by the appellants erecting a multiple residence would make intervener's property less valuable and would constitute an infringement upon his vested right to have said property used only for residence uses as provided under said zoning ordinance.\\nWe recognize the authorities presented hy the appellants as able and decisive of the particular facts at issue before them, but we are unable to apply the rules of law in those cases to the facts as presented by the record in the case before us. Here we have a different state of facts in which we must, in making our decision, take into consideration our statutes, the ordinances and the method and procedure pursued 'by appellants seeking permission to erect a building contrary to the zoning ordinance. A survey of the entire record and considering each and all of the various assignments of error convinces us that the trial court must be and it is hereby sustained.\\nThe judgment appealed from is affirmed.\\nPOLLEY, J., concurs.\\nRUDOLPH, -P.J., and ROBERTS and SMITH, JJ., concur in the result.\"}"
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+"{\"id\": \"8517151\", \"name\": \"STATE v. PIRKEY\", \"name_abbreviation\": \"State v. Pirkey\", \"decision_date\": \"1908-12-16\", \"docket_number\": \"\", \"first_page\": \"550\", \"last_page\": \"560\", \"citations\": \"22 S.D. 550\", \"volume\": \"22\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T22:06:22.838016+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. PIRKEY.\", \"head_matter\": \"STATE v. PIRKEY.\\nAn information charging that accused bought, received, and took stolen property into his possession, etc., is not defective as charging two separate offenses, buying and receiving.\\nWhen a -penal statute mentions several acts disjunctively, and provides that each shall constitute the same offense and be subject to the same punishment, an information may charge one or all of such acts conjunctively as constituting a single offense.\\nAn information alleging a larceny of specified property by three specified persons, and that thereafter accused unlawfully, feloniously, well knowing--that the property had been stolen, taken, and carried away, bought, received, and took the -property -into his possession, etc., charges a public offense.\\nUnder Rev. Code Cr. Proe. \\u00a7 535, providing that, if a court, to whom an application for a continuance on the ground of absent testimony is made, is satisfied as to the truth of the facts stated, and that the examination of the witness is necessary, he must order that a commission issue to take the testimony, and may direct that the trial be stayed long enough to execute and return the commission, or continue the case, the granting of an application is wholly discretionary with the trial court, and its action is reviewable only for .abuse.\\nIn a trial for receiving stolen property, the trial judge did not abuse his discretion in refusing a continuance asked by the accused on account of absent testimony, showing that witness was present when accused bought the property of a particular, person, and that such person signed a bill of sale, where the state showed that other persons were present at the sale, and all of them, excepting one, made affidavits. that accused\\u2019s pretended witness was not there.\\nUnder Rev. Pen. Code, \\u00a7 618, making it an offense to buy or receive in any manner, \\u201cupon .any consideration,\\u201d property, knowing that \\u25a0it has been stolen, the gist of the offense is the buying or receiving with such knowledge, and an information is not'bad for omitting to allege that the property was .bought or received \\u201cupon any consideration\\u201d; that phrase being synonymous with \\u201cany motive\\u201d.or \\u201cfor any cause.\\u201d\\nConsideration may mean either price or motive.\\nThe state could show that one accused of receiving stolen property exchanged therefor property known by him to have been stolen, to show the inadequacy of the consideration paid by accused.\\nEvidence admitted without objection is not subject to motion to strike.\\nA motion to strike particular evidence is properly refused, where part of the evidence was properly admitted.\\nIn a trial for receiving stolen property, a paper purporting to be a bill of sale for the property w.as properly excluded, where it was not shown to have been signed by the seller, and he testified that he did not know of, nor sign, the paper.\\nIn a criminal case, it was proper to show by a committing magistrate what a witness testified to before him, where it was sought to discredit the witness\\u2019 subsequent testimony.\\nIn a criminal case it was for the jury to determine whether testimony was contradicted by the witness\\u2019 testimony on a former hearing as testified to by the magistrate who received it.\\nWhile in arguing to the jury the prosecuting attorney cannot state as facts that which has not been proved, nor go beyond fair and reasonable criticism of the evidence, based upon a theory in the case supported by evidence, he should be allowed wide latitude to comment on the evidence as to accused\\u2019s conduct, and to draw such inferences from the evidence as he may deem proper.\\nThe conduct of counsel in a criminal case rests largely in the sound discretion of the trial court, whose judgment thereon should only he reversed for manifest abuse.\\nImproper remarks of the trial court and the prosecuting attorney are not ground for reversal, where the evidence amply sustains the conviction, and it does not appear that the remarks necessarily influenced the jury.\\nIn a trial for receiving stolen property, the identity of the thief is immaterial, though his name he specified in the information; the specification being unnecessary, and properly treated as surplusage.\\nA verdict convicting of receiving stolen property \\u201cas charged in the information\\u201d is not defective for failing to find the value of the property, where the information alleges the value to be $1,200, and the evidence on both sides shows the value to have greatty exceeded $2 0.\\nIn .a trial for receiving stolen property, an issue as to the value of the property need not be submitted, where the evidence on both sides shows the value to largely exceed $20; and, if the court does instruct on that point, the jury\\u2019s failure to find the value would not be reversible error.\\nHaney, P. X, dissenting in part.\\n(Opinion filed, December 16, 1908.)\\nAppeal from Circuit Court, Nyman County. Hon. FraNK B. Smith, Judge.\\nWilliam Pirkey was convicted of buying and receiving stolen property, and he appeals.\\nAffirmed.\\nPreston & Hamiett .and N. R. Furlong, for appellant. &. W. Clark, Atty. Gen., C. D. Sterling, Asst. Atty. Gen., and William Williamson, State's Atty., for respondent.\", \"word_count\": \"4265\", \"char_count\": \"24285\", \"text\": \"CORSON, J.\\nUpon an information duly filed by the state's attorney of Lyman County the defendant was tried and convicted of the crime of buying and receiving, stolen propertv knowing the same to have been stolen, and from the judgment he has appealed to this court.\\nThe first error assigned is that the court erred in overruling defendant's demurrer to the information. ,To this information the following demurrer was interposed: \\\"The defendant demurs to the information herein upon the ground: First, that more than one offense is charged, viz., buying stolen propertjr knowing the same to have been stolen, receiving stolen property knowing the same to have been stolen; second, that the facts stated in said information do not constitute a public offense.\\\" It is alleged in the infor mation that the defendant, on'the igth day of January, 1907, in the county of Lyman, unlawfully, knowingly and feloniously did commit the crime of buying and receiving stolen property knowing the same to be stolen. The information then proceeds to allege the larceny of 17 head of horses by three persons named therein, and that thereafter the defendant unlawfully, feloniously, well knowing said horses to have been stolen, taken, and carried away as aforesaid, did buy, receive, and take into his possession said 17 head of horses, the property of one Herman Woeppel, all of the reasonable value of $1,200, said horses being then and there stolen property. The contention of the appellant that two offenses are charged in the information, namely, the buying and receiving of \\u2022stolen property knowing the same to have been stolen is clearly untenable. The rule seems to be well settled that, when a penal statute mentions several acts disjunctively, and prescribes that each shall constitute the same offense and is subject to the same punishment, an information may c-harge any and all of such acts con-junctively as constituting a single offense. 22 Cyc. 380; State v. Donaldson, 12 S. D. 259, 81 N. W. 299; State v. Kerr, 3 N. D. 523, 58 N. W. 27. Mr. Bishop, in his work on Statutory Crimes, \\u00a7 244, says: \\\"If, as is common in legislation, a statute malees it punishable to do a particular thing specified, 'or' another thing, 'or another, one commits the offense who does any one of the things, or any .two, or more, or all of them. And the indictment may charge him with any one, or with any larger number, at the election of the pleader, employing, if the allegation is of more than one, the conjunction 'and' where 'or' occurs in the statute.\\\" The further contention of the appellant that the facts stated in the information do not constitute a public offense is clearly untenable for the reason hereinbefore stated.\\nIt is contended by the appellant that the court erred in not postponing the trial to enable the defendant to procure the itesti-mqny of one Ash, who the defendant claims was a material witness in his behalf, and who was at the time out of the state. Section 535 of the Revised Code of Criminal Procedure provides: \\\"If the court or judge to whom the application is made, is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be continued.\\\" It will be observed that the granting or refusing of the application ih wholly a matter in the discretion of the trial court and no error can be assigned on its action unless there is a manifest abuse of such discretion. Live Stock Company v. Burris, 10 S. D. 430, 73 N. W. 919; Saastad v. Okeson, 16 S. D. 377, 92 N. W. 1072, 9 Cyc. 166; Underhill on Crim. Ev. 268-270. -In our opinion the court committed no error, and did not abuse its discretion in denying said motion. The defendant claims that the said Ash was present at the time he purchased the horses in .controversy of one Morgan,' who had them in his possession, and that Morgan gave him a bill of sale, and that witness Ash would testify that Morgan signed the bill of sale. It was shown, however, on the part of the state that there were other persons present at the time of the sale of the horses by Morgan to the defendant, and it was further shown by the affidavits of all these persons except one that no such man as Ash was present at that time. The court was therefore fully justified under the evidence in denying the defendant's motion.\\nIt is contended by the appellant that the information is insufficient for the reason that it is not alleged therein that the said property was purchased or received \\\"upon any consideration,\\\" as one of the essential ingredients of the crime is that the property was bought or received \\\"upon some consideration.\\\" In our view of the statute the essential ingredient of the crime is that a party has bought or received stolen property knowing it tO' have been stolen. That part of section 618 of the Revised Penal Code material for the purpose of this decision reads as follows: \\\"Every person who- buys or receives in any manner upon any consideration any personal property of any value whatsoever, except as hereinafter provided, that has been stolen from any other, knowing the same to have been .stolen, \\\" is guilty of the offense. We are inclined to take the view that the words \\\"upon any consideration\\\"' are to be treated as synonymous with \\\"any motive\\\" or \\\"for any cause.\\\" It will be observed .that these words in the statute are preceded by the words \\\"in any manner\\\" showing the intention of the lawmaking power that every person who buys or receive's in any manner, or upon any consideration, or, in effect, for any motive, property known to him to have been stolen shall be deemed guilty of the offense. \\\"Consideration\\\" is defined by Blackstone as \\\"price or motive.\\\" 2 Blackstone Com. (Cooley) 444. This definition is quoted with approval in Latham v. Lawrence, 11 N. J. Law, 322, and 8 Cyc. 586. The omission, therefore, of any allegation as to the'payment of a consideration does not, in our opinion, constitute a failure to allege all the essential' ingredients constituting the offense, and does not render the information defective.\\nIt is further contended by the defendant that the court erred in admitting in evidence the testimony of witnesses tending to establish the fact that two horses, exchanged by the defendant for the horses obtained from the witness Morgan, were stolen, and in not striking out .all of the evidence received on that subject. On the trial evidence was introduced tending to prove that the defendant' at the time he purchased the 17 horses of Morgan, giving therefor the two horses he then l^ad and $100 in money, knew that the two horses that he transferred to Morgan were stolen at. the time he transferred them to Morgan. This evidence seems to have been introditced and admitted for the purpose of showing -the inadequacy of the consideration paid by the defendant, and for that purpose it was clearly competent. If the defendant knew the horses he gave in exchange as paid consideration for the 17 horses purchased of Morgan were stolen property at the time he transferred them to Morgan, they could .not have been of much value to the defendant, and it was competent therefore, for the state to show the fact that these horses were known by the defendant to have been stolep horses at the time he transferred them to Morgan. 10 Ency. of Ev. 671; Cohen v. State, 50 Ala. 108; People v. Hertz, 105 Cal. 660, 39 Pac. 32. The evidence sought to be stricken out by the defendant included his own admission to witness Foster, in effect, that he knew that one of them had been stolen, but thought that one of them was straight. Much of the evidence, however, sough,*, to be stricken out was admitted witho'ut objection, and was not subject, therefore, to a motion to strike out. Hence the court properly denied the motion, which included the evidence admitted without objection as well as evidence which was objected to; ^nd, as the motion was to strike out all of this evidence the court, in any event, committed no error in denying the same.\\nIt is further contended by the defendant that the court erred in excluding a paper purporting to be a bill of sale from Morgan Jo the defendant of the 17 horses alleged to have been received by the defendant, but the court was clearly right in excluding this paper. It was not proven by any person present to have been signed by Morgan, and Morgan testified that he had no knowledge of the paper, and never signed it.\\nOn the ,trifil one John Williams, a witness for the defendant, who had also been a witness for the defendant on the preliminary hearing before the justice, in his cross-examination before the trial court, was interrogated as to many of the answers given by him before the committing magistrate, and it was sought by the state to discredit and impeach him by showing contrary statements made by him on the preliminary examination. The committing magistrate was sworn as a witness to testify as to what was stated by Williams in his testimony before him on the preliminary examination for the purpose of impeaching him. It is contended by the defendant that the testimony of the committing magistrate did not tend to impeach the witness or show that he had made contrary statements as to any material fact but that was a matter, however, for the jury, and we think the court committed no error in permitting the state to prove by the magistrate the testimony as given before him by the witness Williams, and whether or not there was a conflict in the evidence was not for the court to determine, but' for the jury. The contention that the testimony was irrelevant and immaterial is clearly untenable, as the question as to the value of the horses was, as we have seen, material for the purpose of showing the knowledge of the defendant .as to their (being stolen property. ' ' '\\nIt is contended.by the defendant'that the judgment should be reversed for the reason that the statement, made by the state's at- tor,ney in his argument to the jury, that Mr. Pirkey, when he wanted to get those horses, went down to a ranch (naming it), a noted rendezvous of horse thieves, and tfyat he knew that Morgan and his associates had just come from a place (naming it) another notorious rendezvous of horse thieves, to which the defendant at the time objected, was such misconduct of counsel as entitled the defendant to a new trial. He also contends it was error for the court to remark when the objection was made to counsel's statement, \\\"Oh, everybody knows what kind of places those are.\\\" It is claimed by the Attorney General that there was some evidence in the case from which the inference might properly be drawn .that the places were rendezvouses for criminals, and the statements made do not therefore entitle the defendant to a reversal of the judgment. We are unable to agree with the Attorney General in this contention, and we think'it doubtful from an examination oi the evidence if there was sufficient to justify the remarks of the counsel or those of the court. But, assuming that under the evidence counsel for the state was not authorized to make the statement above referred to, and that the remarks of the court were not proper, and that .the remarks of the counsel and the court would ordinarily constitute error, still we are of the opinion that it was not such prejudicial error as entitles the defendant to a reversal of the judgment in this case. While this court has held that presumptively error occurring on the trial is prejudicial, it has also' held that, where it can see from the record that the defendant has not been prejudiced by the error, this court will refuse to reverse the judgment and grant a new trial. In the case of State v. Reddington, 7 S. D. 368, 64 N. W. 170, this court in its opinion said: \\\"Injury is presumed from error, but the presumption is undermined and destroyed by the positive showing by the record itself that injury did not, and could not, result from such error. By 'injury' is meant 'effect upon the result.' This is the well-defined doctrine of the statute, which allows the defendant in error to except in the decision of the court upon a matter of law by which his substantial rights iare prejudiced, and not otherwise (section 419, Rev. Code Cr. Proc.), and which requires this court on writ of error to give judgment without regard to technical errors or de fects or to exceptions which do not affect the substantial rights of the parties (Id. section 500).\\\" While counsel for the state in his argument to the jury can not be permitted to state to them as facts what has not been proven by the evidence in the case or go beyond the bounds of fair and reasonable criticism of the evidence, based upon a theory in the case that is supported by the testimony, yet this rule is not intended to limit counsel in such manner as to injuriously affect his case on the merits. He should be allowed a wide latitude of argument, and have the right to comment upon the evidence as to the conduct of the defendant and to draw such inferences from the evidence as he may deem proper. The conduct of counsel on the trial, however, must rest largely in the sound discretion of the trial court, and the judgment should only be reversed in cases of clear and manifest abuse of this discretion. Thompson on Trials, \\u00a7 963, 964; 12 Cyc. 573; People v. Barnes, 113 Mich. 213, 71 N. W. 504. No case has been called to our attention in which there has been a reversal of the judgment for remarks of the state's attorney similar to the statement made by him in the case at bar. Assuming, therefore, as claimed by the defendant, that the remarks of the counsel for the state and by the court were not authorized by the evidence as to the character of the places referred to, it does not necessarily follow that the judgment should be reversed and a new trial granted for the alleged errors. An examination of the record in this case satisfies us there was ample evidence to sustain the verdict of the jury, and that the remarks of the counsel and court could not necessarily have influenced the jury in arriving at their verdict, and that the error, therefore, is a technical error that should be disregarded by this court.\\nIt is further contended that the court erred in charging the jury, of its own motion, \\\"It does not matter who stole the property.\\\" This instruction, however, was clearly correct. The question for the jury to decide in this case, was whether or not the defendant had purchased or received stolen property described in the information dm,owing the same to have been stolen, and although it was alleged in the information that certain parties named therein had stolen the property, this allegation was not material and may be properly treated as surplusage, and the fact that the state had unnecessarily made 'this allegation did not impose upon it the duty of proving that the persons therein named had stolen the property. The learned author of ,the note to the case of State v. Sakowski, 191 Mo. 635, 90 S. W. 435, reported in 4 Am. & Eng. Ann. Cas. p. 751, states the rule as follows: \\\"An allegation in' an indictment need not be proved if it might have been omitted from the indictment without detriment to it and without affecting the charge against the accused.\\\" And the author cites a number of cases in support of the proposition, among which are Durham v. People, 5 Ill. 172; State v. Brown, 8 Humph. (Tenn.) 89; Smith v. State, 17 Tex. App. 191; Hall v. State, 120 Ga. 142; 47 S. E. 519; and Bryant v. Com. 68 S. W. 846. It seems to be well settled that an information for buying or receiving stolen property knowing it to have been stolen need not allege the names of the persons who committed the larceny, and it will be sufficient on the trial to prove that the property was stolen without proving who were the parties that committed the larceny. 22 Cyc. 369, 370; People v. Caswell, 21 Wend. 86; State v. Dan, 18 Nev. 345, 4 Pac. 336. The case of Com. v. King, 9 Cush. 284, which seems to be in conflict with the rule before stated, is clearly not so, as in that case there was a failure to prove that the property alleged to have been received as stolen property was in fact stolen. Of course under the information in this case it was necessary to prove that the property which the defendant is alleged to have bought or received had been in fact stolen by some one, although it was not material by whom.\\nIt is further contended by the defendant that the verdict of the jury was insufficient, and the judgment should be reversed for the reason that it failed to find the value of the property alleged to have bought or received by the defendant, but in our opinion this contention is untenable. The allegation in the information is that the property was of the value of $1,200, and the jury found by its verdict that the defendant is guilty as charged in the information, and the value as proven on the trial, both by the witnesses for the state and for the defense, was greatly in excess of $20. Du Bois v. State, 50 Ala. 139; State v. Colwell, 43 Minn. 378, 45 N. W. 847; State v. White, 25 Wis. 359; Com. v. Butler, 144 Pa. St. 568, 24 Atl. 910. We do not wish to be understood, however, as holding that in all cases where the court has instructed the jury to find the value of the property they may, instead of specifically finding the value of the same, return a general verdict and such verdict be sustained. In a case where the question as to the value of the property'has been raised by the defense, and the jury should disregard the instruction of the court, it might be ground for reversal. But where, as in the case at bar, the evidence, not only on the part of the state but on the part of the defendant, shows the value of the .property to be largely in excess of $20, the cour-would be justified in not submitting to the jury the question of value; and, if it does so instruct them, failure of the jury to make such a finding under the instruction of the court might constitute technical error, but would not be a ground for reversing the judgment.\\nWe have not' overlooked the other errors assigned, but in our opinion they do not merit a separate discussion, as the case seems to have been fairly submitted to the jury by the court, and the evidence was clearly sufficient, in our opinion, to warrant the jury in finding the defendant of the offense as charged in the information.\"}"
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+"{\"id\": \"8517522\", \"name\": \"STATE, Respondent, v. HEINTZ, Appellant\", \"name_abbreviation\": \"State v. Heintz\", \"decision_date\": \"1929-12-31\", \"docket_number\": \"File No. 6771\", \"first_page\": \"324\", \"last_page\": \"328\", \"citations\": \"56 S.D. 324\", \"volume\": \"56\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:53:58.923038+00:00\", \"provenance\": \"CAP\", \"judges\": \"\\u2022SHERWOOD, P. J., and POLEEY, -CAMPBELL, and BROWN, JJ\\u201e concur.\", \"parties\": \"STATE, Respondent, v. HEINTZ, Appellant.\", \"head_matter\": \"STATE, Respondent, v. HEINTZ, Appellant.\\n(228 N. W. 395.)\\n(File No. 6771.\\nOpinion filed December 31, 1929.)\\nFellozas, Fellows & Whiting, of Mitchell, for Appellant.\\nM. Q. Sharpe, Attorney General, and Raymond L. Dillman, Assistant Attorney General, for the State.\", \"word_count\": \"1181\", \"char_count\": \"7073\", \"text\": \"BURCH, J.\\nDefendant was convicted of larceny and sentenced to two years' imprisonment in the state penitentiary. He appeals from the judgment and an order denying a new trial.\\nThe evidence of the larceny and appellant's connection therewith is largely circumstantial. On the morning of the I'gth of January, 1928, Howard Rake; the complaining witness, missed from his flock of Buff Orpington chickens some twelve or more. He testified he found the lock on the chicken house broken that morning- and that the chicken house was closed and locked the evening before. Upon discovery that some of his chickens were gone, he went to the town of M't. Vernon and' found in the possession of Brakke & Thompson, merchants and dealers in poultry, certain chickens that he claimed were his. He took these chickens, fifteen in number, to his place and there turned them loose in the daytime, in the presence of his wife and two neighbors, who observed the action and behavior of the chickens, and in the trial testified thereto. Brakke & Thompson purchased the chickens of appellant. With the exception of two or three of the chickens, otherwise positively identified 'by marks, their identification was determined by the actions and behavior of the chickens when released. The complaining witness testified that he had not sold or consented to' the taking of the chickens, and the state established facts sufficient to establish the loss of Rake's chickens by theft. Appellant says he raised the chickens, now claimed by Rake which were found at Brakke & Thompson's place of business. He contends there is no evidence of the larceny of these identical chickens, that they were not stolen but were in fact the property of appellant, and that there is no sufficient competent evidence to show they were the chickens stolen from Rake.\\nAppellant strenuously argues that the admission of evidence concerning the behavior and action of the chickens when released at the 'home of the complaining witness was error. In substance, he contends such evidence is so unreliable and fantastic as to be inadmissible as evidence in a court of law to establish identity. He says the proof of his guilt depends upon the circumstance of his having possession of the stolen property, and for that reason the identity of the property as stolen property must be proven beyond a reasonable doubt. Conceding the necessity of proving the identity of the property as the stolen property of Rake, it does not bar the introduction of-any competent evidence tending to prove the identity whether it be sufficient in and of itself to establish the identity beyond a reasonable doubt. It was not error to admit the evidence if it tended to establish identity. On the cpiestion of its competency we have only to consider whether or not such evidence had any probative force. It is well known that many animals have habits or instincts causing them to seek their homes. In the case of the homing pigeon the instinct is so well known and invariable that messages of the highest importance are intrusted for carriage by these pigeons. It is well known that many other animals have well-developed and dependable homing instincts. If the chicken has such an instinct and uniformly behaves differently when at home than when away, we can see no reason why their behavior may not indicate their recognition of home. If such instinct is so well developed as to cause invariable actions, then such actions may be conclusive. What weight shall be given to' such evidence is for the jury to say, not for this court. If it has any probative force, it is admissible for what it is worth. Appellant says the 'hen is proverbially stupid and its actions will demonstrate its stupidity. If there is a proverb based on the stupidity of the hen, it is not better known than the one based on her habit of coming home to roost.. Actions of the stupid may be as invariable as those of the astute, perhaps more so because less affected by direction of the intellect. The evidence was admissible. State v. Buseman, 124 Kan. 496, 260 P. 641; People v. Brown, 325 Ill. 307, 156 N. E. 369; State v. Wagner, 202 Iowa, 739, 210 N. W. 901; Id. (Iowa) 222 N. W. 407, 61 A. L. R. 882.\\nSome of the witnesses, after describing the behavior of the chickens, said they acted like they were at home, and this was allowed to stand over the objection of appellant that there was no proper foundation laid for receipt of such witnesses' opinions. Rake and his wife were chicken raisers and the other witnesses were neighbors. In the absence of a request on the part of appellant for leave to further test the knowledge and experience of such witnesses in handling and raising chickens, we think the discretion of the trial court in determining in the first instance the foundation necessary for its admission should not be disturbed.\\nAppellant testified in his own behalf and was questioned on cross-examination as to the number of chickens he raised, the number he had sold, if he had previously sold any to Brakke & Thompson, and concerning crates carried in his car. This was objected to as not proper cross-examination. We are satisfied the court did not err in permitting this line of cross-examination, and no useful purpose would be served in discussing in detail the questions asked and objections thereto involved in the assignments of error pertaining to this .line of cross-examination.\\nAppellant asked, and the court granted, an instruction to the effect that to warrant a conviction on circumstantial evidence each fact in the chain of circumstances necessary to be established to prove the guilt of the accused must be proven by competent evidence beyond a reasonable doubt, and the facts so proven must produce a moral certainty of accused's guilt and that it is not sufficient if they coincide with and render probable the guilt of the accused, but they must exclude every other reasonable hypothesis of innocence. Because the court gave this requested instruction and did not of his own motion without request charge that the evidence to connect accused with the offense was wholly circumstantial, and further failed on his own motion without request to further instruct on the law of circumstantial evidence, appellant complains that the requested instruction was rendered meaningless. Appellant having introduced the subject should have requested sufficient to cover the subject fairly, and cannot complain if the court did not add to or explain the instruction requested and given.\\nWe have carefully examined all assignments of error and have discussed those deemed of sufficient importance to merit discussion. 'We find no prejudicial error, and1 the judgment and order appealed from are therefore affirmed.\\n\\u2022SHERWOOD, P. J., and POLEEY, -CAMPBELL, and BROWN, JJ\\\" concur.\"}"
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+"{\"id\": \"8517569\", \"name\": \"STATE, Respondent, v. WILSON, Appellant\", \"name_abbreviation\": \"State v. Wilson\", \"decision_date\": \"1915-12-18\", \"docket_number\": \"File No. 3835\", \"first_page\": \"416\", \"last_page\": \"420\", \"citations\": \"36 S.D. 416\", \"volume\": \"36\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T18:35:26.114389+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE, Respondent, v. WILSON, Appellant.\", \"head_matter\": \"STATE, Respondent, v. WILSON, Appellant.\\n(155 N. W. 186.)\\n(File No. 3835.\\nOpinion filed December 18, 1915.)\\nCriminal Law \\u2014 Burglary\\u2014Allegation of Ownership of Building, Necessity \\u2014 Statute.\\nWhere an information for burglary failed, to allege tbe ownership of tbe -burglarized building, but did identify it by tbe city lot and block, and also.as a -building in which a firm whose individual names and firm \\u2022 name were stated as those of tbe owners of a hardware store kept by them therein, and in which they were doing a hardware business, held, that, under Code Cr. Proc. Sec. 226, as amended by Laws 1913, Cb. 242, providing 1 that, when an offense involves commission of larceny or private: injury, and is described with sufficient certainty in other respects to identify the act,' an erroneous allegation as to .the person injured or the ownership of tbe property taken, is not material, held, that t'bei information sufficiently describes tbe building, and was sufficient to sustain a conviction.\\nAppeal from Circuit Court, Davison County. Hon. Frank B. Smith, Judge.\\nThe defendant, Harry Wilson, was convicted- of burglary in the third degree, and he appeals.\\nAffirmed.\\nRoscoe Satterlee, for Appellant.\\nClarence C. Caldwell, Attorney General, Byron S. Payne, Assistant Attorney General, and Lcuiritz Miller, State\\u2019s Attorney, for the State.\\nAppellant cited:\\n6 Cyc. 201; Bortwood v. State, 29 Tex. 47, 94 Am. Dec. 258; State v. George James, 194 Mo. 268, 5 A. & E. Anno. Cas. p. 1007; Winslow v. State, 26 Neb. 308, 41 N. W. it 16; Jackson v. State, 55 Wis. 586, 13 N. W. 448; State v. Jeli-nek, 95 Iowa, 420, 64 N. W. 259.\\nRespondent -cited:\\nState v. 'Stunkard, 28 S. D. 311; Secs. 230, 569, 500, 'Code Cr. Proc.; Pen. Code, Se-c. 566; Daws 1913, Ch. 242; State v. Morse, (S. D.) 150 N. W. 93; State v. Simas, 25 Nev. 432, 62 Pac. 242; 3 Ency. El. Pfac. 762; People v. Price, 143 Cal. 351, 77 Pac. 73; People v. Mendozo, (Gal.) 118 Pac. 964.\", \"word_count\": \"1337\", \"char_count\": \"7600\", \"text\": \"SMITH, J.\\nAppellant was convicted of the -crime of burglary in the third -degree upon an information which charged that:\\n\\\"The said Harry Wilson did willfully, unlawfully, and feloniously break and -enter i-nto a certain two-story building situated on lot 14, -block 10, of the original plat of the town, now city -of Mt. Vernon, county of Davison, state of South Dakota, in which said building was then and there kept -certain property, to-wit, a stock -of hardware merchandise then and there owned by A. H. Olson and John Asmussen, doing business as copartners under the firm name of Olson & Asmussen, with intent tiren and there to steal therein, -contrary,\\\" etc.\\nAppellant's -only contention is -that the information does not state facts sufficient to -constitute a public offense, in -that it does not allege the ownership -of the premises where the burglary occurred.\\nIt is stated in text-books and in many decisions that, as a general rule, an indictment or information for burglary should contain an allegation of ownership of the building entered. Such an allegation was required under the common-law rules of pleading, and the same rule has been applied under the statutes of a considerable number of the states. The reason for the rule generally assigned is that such an allegation identifies the property, thus advising the accused of one of the particulars of the crime charged, shows that the property entered is not the property of the -accused, and enables- the accused to plead with more certainty \\u2022a former conviction or acquittal in bar of another prosecution for the same offense. State v. Jelinek, 95 Iowa, 420, 64 N. W. 259; Commonwealth v. Perris, 108 Mass. 1; State v. Davis, 138 Mo. 107, 39 S. W. 460.\\nAppellant cites and relies chiefly upon States v. James, 194 Mo. 268, 92 S. W. 679, 5 Ann. Cas. 1007. The Missouri court in that case says:\\n\\\"In the absence of a statute, we are relegated to- the common law rule, and we hold the information -bad, in substance, in failing to allege the names of the copartners, if the Drysdale-Ulen Hardware Company was a firm, and, if a corporation, in not alleging it w'as a corporation.\\\"\\nThe court also says that the rule as to alleging ownership is fully supported by the appellate courts of many states, including California. The court is in error, at least so- far as California is concerned. The opinion in the James Case was rendered March 6, 1906. On May 24, 1904, two years prior to the decision in the James Case, the Supreme Count of California -had held in People v. Price, 143 Cal. 351, 77 Pac. 73, that, under the statute in that state, it was unnecessary to allege the ownership of the building in an information for burglary, where the building was otherwise so 'described that the defendant could' not be misled as to the property referred to, citing People v. Rogers, 81 Cal. 209, 22 Pac. 592; People v. Main, 114 Cal. 632, 46 Pac. 612; People v. White, 116 Cal. 19, 47 Pac. 771.\\nIn People v. Price, supra, the court says:\\n\\\"Streets are named and building's thereon are numbered for the purpose of-identifying the houses in a city, and it is hard to conceive of a more certain or accurate method to accomplish that end.\\\"\\nThat court further says:\\n\\\"Many cases from other jurisdictions are cited by respondent which are in harmony with the action of the court below. But the case must be governed by our own statutes as construed by this court.\\\"\\nThe statute referred' to is section 956 of the California Penal Code, which provides:\\n\\\"When an offense involves the commission of, or an attempt to commit, a private injury, andi is described with sufficient certainty in other respects to -identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.\\\"\\nThat section is practically -identical with: our section 226, Code Crim. Proc., -as 'amended by chapter 242, Taws 1913.\\nThe 'California court further says :\\n\\\"This is a rule of criminal pleading, and applies to burglary as well as to- larceny and other cases. Under it the name of the owner of the property entered is immaterial, except where necessary to identify the -property. People v. Prather, 120 Cal. 606 [53 Pac. 259.]\\\"\\n\\\"Suppose we admit, as is contended, that a person could not be convicted of burglary as to his own house not occupied by -another; it does not follow from this that 'the defendant must be informed in the complaint or information that the house in question is not his, or that it belongs to another. If the house is described by street and number, he can find out, if he does not already know, whether it is his or not, and can suffer to prejudice by the absence of an allegation as to ownership.\\\"\\nTo the same effect are State v. Mish, 36 Mont. 168, 92 Pac. 459, 122 Am. St. Rep. 343; State v. Rogers, 40 Mont. 248, 106 Pac. 3; People v. Main, 114 Cal. 632, 46 Pac. 612; People v. White, 116 Cal. 19, 47 Pac. 771; People v. Mendozo, 17 Cal. App. 157, 118 Pac. 964; Spencer v. State, 5 Okl. Cr. 7, 113 Pac. 224.\\nIn the case at bar the information identifies the .property alleged to have been burglarized, not only by city lo-t -and block, but also as a building in which the firm of Olson & Asmussen kept a stock of hardware merchandise owned by them, and in which building they were doing business. Certainly the information sufficiently 'describes and identifies the building. State v. Williams, 120 Iowa, 36, 94 N. W. 255; Hahn v. State, 60 Neb. 487, 83 N. W. 674; State v. McAnulty, 26 Kan. 533; Brown v. State, 81 Miss. 143, 33 South. 170; State v. Simas, 25 Nev. 432, 62 Pac. 242.\\nThe order and judgment of the trial court must be affirmed.\"}"
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+"{\"id\": \"8589525\", \"name\": \"Union Nat. Bank of Omaha v. Halley et al.\", \"name_abbreviation\": \"Union Nat. Bank of Omaha v. Halley\", \"decision_date\": \"1905-07-06\", \"docket_number\": \"\", \"first_page\": \"474\", \"last_page\": \"483\", \"citations\": \"19 S.D. 474\", \"volume\": \"19\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:21:03.885521+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Union Nat. Bank of Omaha v. Halley et al.\", \"head_matter\": \"Union Nat. Bank of Omaha v. Halley et al.\\n1. In an action to enforce the liability of a stockholder of an insolvent bank, where it does not affirmatively appear from the complaint that there are other creditors of the bank or other solvent stockholders who have not paid the amount due from them, the question of a defect of \\\" \\u25a0 'parties plaintiS or defendant is not raised by a demurrer to the com- , . plaint. ,\\n2. Under. Const, art. 18, l 3, providing that the stockholders of any bank- . ing corporation shall be individually liable for all debts thereof to the extent of the amount of their stock therein at the par value thereof, in addition to the amount invested in such stock, a stockholder of an in.solvent South Dakota bank is individually liable to a creditor of the ' \\u25a0 \\u2022 bank up to the par value of his shares, notwithstanding Civ. Code, \\u2022 g 864, providing that the shareholders of every banking association organized under the laws of South Dakota shall be individually responsi- *\\u2019 ble equally and ratably, and not one for the other, for all contracts, debts and engagements of the association, since the constitutional provision is self-executing, and the statute must be construed to make it accord therewith.\\n3. In the absence of a statute requiring creditors of a banking corporation to bring their suit in equity to enforce the individual liability of shareholders on the insolvency of the bank, a creditor of an insolvent South-Dakota bank may proceed against one or more of the stockholders to recover the amount of his indebtedness in an action at law.\\n4. Under Const, art. 18, \\u00a7 3, making stockholders of banking corporations organized under the laws of South Dakota individually liable for all contracts, debts and engagements of the bank to the extent of the- par value,of their stock, in addition to the amount invested in such stock, a creditor may sue a stockholder on a judgment recovered against an in-insolvent banking association.\\n(Opinion filed July 6, 1905.)\\nAppeal from circuit court, Pennington county; Hon. Levi McGee, Judge.\\nAction by the Union National Bank of Omaha against James Halley and another. Prom an order sustaining; a demurrer to the complaint, plaintiff appeals.\\nReversed.\\nMartin & Mason, for appellant.\\nIn a suit brought to enforce a stockholder\\u2019s statutory liability in a state bank, the defendant Halley demurred to plaintiff\\u2019s complaint upon three grounds:\\nFirst, that there is a defect of parties plaintiff, based upon the supposition that there may be other creditors who ought to join with the plaintiff bank in seeking to enforce the -liability. It does not appear from the complaint that there are other creditors, hence is not a ground for demurrer, but for answer.\\nSecond, that there is a defect of parties defendant. This is based upon the supposition that there are other stockholders of the defunct bank. The law creating their liability is, that shareholders \\u201cshall be individually responsible for all contracts. \\u201d Civil Code, S. D., Sec. 864, Constitution S. D., Art. 18, Sec. 3.\\nWhere an action at law can be maintained and the shar.ehold er\\u2019s liability is limited and several, each shareholder being liable for a sum certain, a separate action will lie against each one. 1 Cook Stockholders Sec. 222.\\nThe third ground is that the complaint does not state facts sufficient to constitute a cause of action. The constitution in ' this state provides \\u201cThe shareholders or stockholders of any banking corporation shall be held individually responsible and liable for all contracts, debts and engagements of such corporation to the extent of the amount of their stock therein at the par value thereof, in addition to the amount invested in such shares or stock.\\u201d Constitution S. D. Art. 18, Sec. 3; Rev. Civ. Code of S. D., Sec. 868.\\nBoth the wording of the Constitution and the statute have been taken from the United States National Banking Act. U. S. R. S. \\u00a7 51\\u00d31.\\nThe question is, whether the complaint shows a \\u201ccontract, debt .or- engagement\\u201d of a banking corporation when it alleges a judgment obtained against such corporation.\\nA judgment is a \\u201cdebt or engagement.\\u201d 3 Thompson Corporations, \\u00a7 3117; Kilton v. Providence Co., 48 Atl. Rep. 1040; \\u20221,Cook-Stockholders, \\u00a7 224.\\nCharles J. Buell and A. K. Gardner, for respondent.\\nThe liability of stockholdersinbankingcorporations created under the laws of this state is defined by Revised Civil Code, \\u00a7 864. In all states where the liability, as in South Dakota, is in the nature of a proportionate liability, or if the nature of the liability is such that it is necessary to take an account of stock and debts for the purpose of determining the extent of each stockholder\\u2019s liability, equally and ratably, and not one for the \\u2022other, the remedy to enforce the liability is an equitable action brought by all the creditors or by one of them in behalf of all the others similarly situated, and against all the stockholders. Hirshfleld v. Fitzgerald, 157 N. Y. 166; Richardson v. Boot, 70 Pac. 454; Zang v. Wyant, 56 Pac. 565; Emmanuel v. Barnard, 99 N. W. 666; Van Pelt v. Gardner, 74 N. W. 1083; German National Bank of Lincoln v. Bank,.74 N. W. 1086; Eau Claire National Bank v. Benson, 106 Wis. 624, 82 N. W. 604;' National Ger. Am. Bank v. Tupley, 56 Minn. 620, 57 N. W; 1065; Rounds v. McCormick, 114 Illinois 252; Harper v. Union Mfg. Co., 100 Illinois 225; Overmeyer v. Cannon, 82 Ind. 457; Maine Trust Co. v. Southern Loan Co., 92 Maine 444; Dun-> stone v. Hoptonic Co., 47 N. W. 322;Peck v. Miller, 39 Mich,- ' 594; Hadly v. Russel, 40 N. H. 109; Ladd v. Cartwright, 7 Ore. 329; Pollard v. Bailey, 20 Wall, 520; Terry v. Little, 101 U. S.-216; 3 Clark and Marshall, Private Corporations, p. 2582.\\nAll statutes creating an additional liability on the part of the stockholders are in derogation of the common law. They-are to be strictly construed. 2 Cook on Stockholders, Sec. 214.\\n\\u25a0 The plaintiff in an action to enforce the statutory liability of the defendant stockholders must affirmatively show its right so to do. The complaint nowhere alleges the amount of the. indebtedness of the insolvent bank for-which it is claimed defendant and other stockholders may be liable. This allegation is essential to the complaint stating facts sufficient to consti-' tute a cause of action. Richardson v. Boot, 70 Pac. 454; U. S\\u2019, v. Knox, controller, 102 U. S.425; Crease v. Babcock, 10 Metcalf 525; Coleman v. White, 14 Wis. 762.\\nThe individual liability of the stockholders In insolvent banks must be restricted in its meaning to such contracts, debts and engagements as have been duly contracted in the ordinary course of its business. Richman v. Iron's, 121 U. S. 27; Schrader v. Manufacturer\\u2019s Bank, 133 U. S. 67; Ward v.-' Joslin, 186 U. S. 142; Ward v. Joslin, lOOPed. '676.\", \"word_count\": \"2756\", \"char_count\": \"16202\", \"text\": \"Corson, P. J.\\nThis is an appeal by - the .plaintiff-from; an Order 'sustaining the defendants' demurrer to its complaint. The com plaint states, in substance, that the' plaintiff is a corporation' duly organized under and by virtue of the banking laws'of. the United States; .that the Minnekahta.State Bank was in-May, 1899, and for years prior thereto, a banking association or'Corporation organized and existin'g under and by virtue of the laws of the State of South Dakota, and doing business in, the'city of Hot Springs; that said bank' was organized with'a capital stock of $25,000, divided into 250 shares of 'the par value of $100; that defendant James Halley was on, prior, and subsequent to said date a stockholder in said state bank, owning and'having on the records of said bank 20-shares of stock Of the par value of $2,000; that -the plaintiff is the owner and holder of a judgment against said state bank, duly entered in the circuit court of Pall River county on May 6, -1899, for the sum of over $7,000, and that no part of the same had been paid,, and that 'the whole thereof is due and owing to this plaintiff with interest thereon; that said state b'ank is, and has been' for years past, insolvent, and without assets; and that no part of said judgment is collectible from said bank \\u2022 on execution or otherwise, and the plaintiff demands judgment'for'the sum' of $2,000 and its costs. The defendant' Halley'interposed a demurrer to said complaint, on the grounds (l);that there is a defect of parties plaintiff; (2) that there is a defect' of parties defendant; (3) that the complaint does-not state facts sufficient to constitute a cause of action. This demurrer was sustained,' and from the order sustaining the same this appeal was taken.\\nIt is contended by the respondent in support of the ruling, of the court below (1) that a suit at law by a single creditor against one or more shareholders of an insolvent corporation cannot be maintained in this state, and that the only remedy in such a case is a bill in equity, in which all the creditors, or one. in behalf of all, should be made plaintiff, and all persons owning stock in the bank should be made defendants; (2) that the; complaint does not state facts sufficient to constitute a cause of. action, in that it does not appear from the complaint what was the amount of the outstanding indebtedness of the.bank and' the names of the stockholders, and the amount due from each, and that these allegations are essential in a complaint to constitute a cause of action; (3) that the plaintiff can only recover, upon the original cause of action, and not upon the judgment; The appellant, on the other hand, contends that neither the other creditors nor the other stockholders were necessary parties to the action; that it was not necessary in the complaint to set forth the amount of the indebtedness of the bank to parties: other than the plaintiff, or the amount of stock held by other stockholders; and that the indebtedness by judgment comes, within the provisions, of the law authorizing the recovery of money from stockholders of a state bank. As it'does not affirmatively appear from the complaint that there are other, creditors of the insolvent corporation or other solvent stockholders who have not paid the amount due from them as such stockholders, the contention that there is a defect of parties plaintiff and parties defendant is not presented by the demurrer, and the question of the defect of parties cannot, therefore; be considered upon this appeal. The third ground of the demurrer, namely, that the complaint does not state facts suffn cient to constitute a cause of action is also in our opinion untenable. Section 864 of the Civil Code provides as follows: \\\"The shareholders of every association organized under this chapter shall be individually responsible, equally and ratably and not one for the other, for all contracts, debts and engagements of such association made or entered into to the extent of the'amount of his stock therein, at the par value thereof, in addition to the amount invested in and due on such shares.\\\" This section was evidently adopted to carry into effect section 3 of article 18 of the State Constitution, which provides as follows: ' 'The shareholders or stockholders of any banking corporation shall be held individually responsible and liable for all contracts, debts and engagements of such corporation to the extent of the amount of their stock therein at the par value thereof, in addition to the amount invested in such shares of stock; and such individual liabilities shall continue for one year after any transfer or sale of stock by any stockholder or stockholders.\\\" It will be observed that the section of the Constitution is broader and more comprehensive than the section of the statute above quoted, in that it provides that \\\"stockholders of any banking corporation shall be held individually responsible and liable for all contracts, debts and engagements of such corporation to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares of stock.\\\" The insertion, therefore, of the clause in the statute, \\\"shall be equally and ratably and not one for the other, \\\" must be construed so as to make it accord with the constitutional provision above quoted. The provisions of the Constitution relating to the liability of stockholders in a banking corporation are self executing, and hence, under the allegations of the complaint, the defendant Halley was absolutely liable to the extent of the par value of his shares of stock for any indebtedness incurred by the banking corporation, and as it appears from the complaint that the plaintiff has a judgment against the banking association, and that the said association is insolvent, and has no assets upon which an execution can be levied; that the judgment is unpaid; and that Halley is a stockholder in said bank, owning 20 shares thereof of the par value of \\u00a72,000 we are of the opinion that the complaint does state facts sufficient to constitute a cause o\\u00ed action as against him. What Halley's rights may be as to contribution from the other stockholders it is not now necessary to decide, as that question is not before us on this appeal.\\nThe contention of the respondent that the action should be by a suit in equity, in which the amount of indebtedness must be set forth, and the names and amount of stock held by the respective stockholders, is not tenable, as no provision is made in the Code for such an action, and this court cannot, without trenching upon the powers of the Legislature require the institution of such an action. Undoubtedly, it would be competent for the lawmaking power to prescribe a method of procedure by which an insolvent state bank could be placed in the hands of a receiver with authority in the bank examiner to levy the requisite assessments in order to pay off the indebtedness of the banking association, and to authorize the bank examiner or receiver to enforce the collection of such assessments by a suit in equity, in which the right of creditors and stockholders might be carefully guarded. But in the absence of such provisions this court cannot prescribe such a procedure or requite a creditor of a banking association to assume the duty of settling up the affairs of such insolvent banking association by a bill in equity in order to adjust the rights of the creditors and stockholders. The Constitution having made the stockholder absolutely liable to the extent of the par value of his stock for any indebtedness of the association, he may be required to pay the amount to any creditor who may first bring an action for the same, and he can only relieve himself from liability when he has satisfied a creditor or creditors of the bank to the extent of-the par value of his stock. There seems to be a conflict in the authorities upon this question, but this conflict arises mainly from the dissimilarity in the statutes of the various states relating to the liability of stockholders in a banking association. The decisions from the State of California referred to by the respondent in his brief are clearly not in point under our statute, as the provisions of the California Code in reference to liability of stockholders are entirely different from those imposed by our Constitution and the law of this state. In view of this conflict in the authorities, we are of the opinion that this court cannot impose upon a creditor the duty suggested by respondent, and the conclusion reached by us is that a creditor may proceed against one or more of the stockholders to recover the amount of his indebtedness in an action at law.\\nThe contention of the respondent that the plaintiff should have brought its action upon its original cause of action, and not upon the judgment, is also untenable. The judgment is prima facie evidence, at least, as against a stockholder of the amount due-from.the banking association, as a judgment comes clearly wiiliin the terms \\\"contracts, debts, and engagements\\\" of such association.\\nOur conclusion is, therefore, that the circuit court erred in sustaining the defendant's demurrer to the plaintiff's complaint, and the order sustaining the same is reversed, and the circuit court is directed to permit the defendants to file an answer upon such terms as may be just.\"}"
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+"{\"id\": \"8589689\", \"name\": \"In re McCLELLAN'S ESTATE\", \"name_abbreviation\": \"In re McClellan's Estate\", \"decision_date\": \"1906-04-03\", \"docket_number\": \"\", \"first_page\": \"498\", \"last_page\": \"526\", \"citations\": \"20 S.D. 498\", \"volume\": \"20\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:07:47.854783+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re McCLELLAN\\u2019S ESTATE.\", \"head_matter\": \"In re McCLELLAN\\u2019S ESTATE.\\nWhere, on appeal to the circuit court in proceedings for the appointment of an administrator, it was agreed that all the petitions for appointment should be heard together, and thereafter the motion of one of the petitioners, who had perfected a separate appeal for a separate trial, was resisted on the ground of the agreement to consolidate, one of the parties so resisting the motion could not thereafter contend that the appeal of the party who moved for a separate trial should have been dismissed.\\nRev. Prob. Code 19 03, \\u00a7 88, declares that, when a petition for letters of administration is filed, the judge must give notice, and section 89 provides that any interested parson may contest the petition by filing a written opposition, while section 359 declares that, when the appeal to the circuit court is on question of fact, the trial must be de novo, and that the court has power to proceed in the same manner as if the case had originated there, and to try-all questions of fact arising-upon the issues. Proceedings for the appointment of an administrator were appealed to the circuit court, and thereafter another and separate, appeal was taken by persons who were not parties at the time the proceeding was first removed to the circuit court. Held that, irrespective of the question whether the last appeal was properly perfected, it was nevertheless sufficient to -constitute a written opposition to the petitions of the parties to the original appeal, and hence to justify the circuit court in considering as one case all the questions raised by both appeals.\\nWhere, on.appeal to the circuit court in proceedings for the appointment of an administrator, the only question at issue was whether or not certain of the parties petitioning for appointment were related to the deceased, error, if any, in allowing an administrator already appointed to participate in the trial, was harmless. Under Const, art. 6, \\u00a7 6, declaring that the right of trial by jury shall remain inviolate and shall extend to all cases at law, parties who petitioned for letters of administration had no constitutional right to a jury trial.\\nFor the purpose of proving the contents of records of the British army, it was competent to show, by the deposition of an officer having the custody of such records, that they were not allowed to be removed from the country, and after such showing copies of the records sworn by the officer to have been true and correct were admissible in evidence.\\nWhere on an issue as to the time a certain person enlisted in a certain regiment, it was undisputed that only one person of that name enlisted during a certain 4 year period, error, if any, in admitting without proper foundation secondary evidence as to whether the regiment existed during a part of this period, was harmless.\\nWhere documents admissible in evidence were inaccessible, photographic reproductions made by a photographer shown to be capable, and who testified that the photographs were accurate reproductions of the originals, were admissible.\\nError, if any, in permitting admittedly genuine signatures to be compared by experts with photographic reproductions of other signatures, was rot cause for reversal, where the experts were not exceptionally well qualified, and their evidence was conflicting and unsatisfactory, so as to he of comparatively little force.\\nIn a trial by the court, error in admitting- incompetent evidence is not alone sufficient cause for reversal; it being presumed that the court disregarded it.\\nThe findings of a trial court on disputed questions of fact, though under the statute not as controlling upon the appellate court as the verdict of a jury, must stand, unless the evidence clearly preponderates against them.\\nIn a proceeding for the appointment of an administrator, evidence held sufficient to support findings by the trial court that certain petitioners were not brothers and sisters, and others not children and grandchildren, of decedent.\\nIn a proceeding for the appointment of an administrator, in which certain of petitioners claimed to he children and grandchildren of deceased, evidence by one of these petitioners that a maternal uncle had told him that the records of. the War Department showed that a person of the same name as deceased was serving in the army in the vicinity in which deceased lived, was admissible, not to prove the contents of the records or that the father was in fact residing at the place named, but that the family had received information as to the father\\u2019s location.\\nIn a proceeding for the appointment of an administrator in -which certain of petitioners claimed to be children and grandchildren' of deceased, a letter written by a deceased brother of those petitioners who claimed to be children of deceased, stating that he had seen and talked with his father at the town where deceased was living at the time of his death, was admissible as a declaration relating to family history.\\nIn a proceeding for the appointment of an administrator in which certain of petitioners claimed to be children and grandchildren of deceased, a letter written by one of the alleged grandchildren who was present at the trial, stating that he had seen and talked with his grandfather at the town in which deceased lived, was objectionable both as hearsay and as a self-serving declaration.\\nUnder Rev. Code Civ. Proc. 1903, \\u00a7 301, subd. 4, authorizing a new trial for newly discovered evidence which could not with reasonable diligence have been discovered and produced at the trial, alleged newly discovered evidence consisting merely of an additional certified copy of a document, a certified copy of which was introduced at the trial, and photographic reproductions of the original, did not require the granting cf a new trial; there being no showing as to why the photographic reproduction was not obtained in time for the trial, and no motion for a continuance having been made to enable the parties to procure such reproduction.\\nThe policy of the law is to require a party to be diligent in securing his evidence when the cause is tried, and, when alleged newly discovered evidence is merely cumulative and unlikely to change the result, a motion for a new trial is properly denied.\\n(Opinion filed, April 3, 1906.)\\nAppeal from Circfiit Court, Minnehaha Count}'. Hon. A. W. CampbEij,, Judge.\\nJudicial settlement of the estate of John McClellan, deceased. Rrom a decree of the circuit court setting aside the appointment of William Van Eps, the administrator, Mary A. Vine and others, as. alleged brothers and sisters of the decedent, and John S. McClellan and others, as alleged children and grandchildren of decedent, appeal.\\n'Affirmed.\\nU. S. G. Cherry, for Mary A. Vine.\\nAdministration must he granted to the persons entitled to inherit in the order named in the statute. In the event of the failure of heirs or next of kin the right devolves upon creditors. If there be no creditors then the administration' may be granted to any person legally competent. But the right to administer is a statutory one and not discretionary with the Court. Prob. C. Sec. 94, R. C. 1903. Upon the filing of either an original or a contesting petition and the giving of the notice provided by law the Court acquires jurisdiction of the estate and the subject-matter of the proceeding. The publication of the notice has the effect of constructive service upon all persons interested in the estate. Prob. C. Sec. 88, R. C. 1903. On hearing of the original petition and one or more contesting petitions the Court must order the issuing of letters of administration to the party best entitled thereto. Prob. C. Sec. 90, R. C. 1903. And letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to tire administration, when such other persons fail to appear and claim the issuing of letters to themselves. Prob. C. Sec. 92, R. C. '1903. Upon compliance with the statutory requirements on the part of the appellant and the grant of appeal by the. Probate Court, the matter appealed is removed from such Court, and it has no power, pending that appeal, to take further steps in regard thereto. 2 Woerner on Ad., Sec. 547 (Second Ed.) ; State v. Litchenberg, 4 Wash. 231, 29 Pac. 999; Durham v. Durham, 16 Gray, 577. In probate matters where an appeal has been effected by a party thereto and a supersedeas bond given, the appeal binds all parties interested in the issue, whether they have appeared or not, and if they wish to join in the issue, they must do so in the Court to which the matter has been transferred by the appeal. State v. Guinotte, 156 Mo. 513, 50 U. R. A. 787; Benoist v. Murrin, 48 Mo. 48. The right of the petitioner to a trial by a jury of the issue of fact involved is constitutional. Sec. 6, Art. VI. In matters of handwriting, photographs are inadmissible for use as a basis of comparison. Hynes v. McDermott, 82 N. Y. 42, 49.\\nGrigsby & Grigsby, for James S. McClellan.\\nWhere there is no contradiction of the evidence of plaintiff and his witnesses, and said witnesses were not impeached, it was error to deny its conclusiveness. Hull v. Uittauer, 162 N. Y. 569; Eng-maun v. Estate of Immel, 18 N. W. 182; Jones on Evidence, Sec. 904; Schrechter v. Watson, 70 N. Y. Supp. 1. Counter-affidavits are admissible to impeach the new witness, to contradict the showing of diligence, and even to controvert the newly-discovered evidence by showing that it would be insufficient to change the result. But it would seem that if the evidence thus presented is conflicting, the merits of the case and the credibility of the witness as should be determined by a new trial. 14 Enc. PL & Prac., 912-13. The declaration of deceased persons may be received when such declarations -refer to the birth, living or survival, marriage, issue or want of issue, death, the times definite or relative of these facts, relative age or seniority, name, relationship generalX, and its degree, and the place of residence when proved for the purpose pi identification of persons legally related by blood or marriage to the declarant. Jones on Evidence, Vol. 2, Sec. 316-317. Taylor on Evidence, Vol. 1, Sec. 635-648; Jewell v. Jewell-(x Howard, U. S. 219) ; Berkeley Peerage Case, E, 54 Geo. 3 to H., 56, Geo-. 3, Campbell\\u2019s Reports. When the declarations come from the proper source, that is, from legal relatives, since deceased, they are admissible, although they consist of hearsay on hearsay. Taylor on Evidence, Vol. 1, Sec. 639; Monkton v. Attorney General, 2 Russ. & Mylnc, 155 ; Byers v. Wallace, 28 Southwestern, 1057; Red River Cattle Co. v. Wallace, 33 Southwestern, 30r Eisenlorrl v. Clum, 126 X. Y. 552; Chirac et al v. Reinecker (2 Peters, U. S. 6x3). Even general repute in the family, proved by 'the testimony of a surviving member of it, has been considered as falling within the rule. Eaton v. Talmadge, 24 Wis. 222; People v. Fulton Ins. Co., 25 Wendell, 205; Jackson v. King, 5 Cowens, 237.\", \"word_count\": \"11496\", \"char_count\": \"67986\", \"text\": \"HANEY, J.\\nA resident of. Sioux Falls, known as \\\"John McClellan,\\\" died intestate in that city August 3, 1899. Directly, numerous petitions for letters of administration were filed in the county court, among which were the following: One by E. J. Taber, as next friend and alleged creditor, praying appointment of himself; one by H. H. Keith, as an alleged creditor, praying appointment of himself; one by the State Banking & Trust Company, as an alleged creditor, praying appointment o\\u00ed E. J. Taber; one by Margaret Hammil and Mary McClelland, as alleged nieces of the decedent, praying appointment of William Van Eps; one by Mary A. Vine, on behalf of herself and others, as alleged brothers and sisters of the decedent, praying appointment of Cyrus Walts. On the h\\u00e9aring of these petitions the county court appointed Van Eps, to whom letters of administration were issued, and who duly qualified and entered upon the discharge of his duties. From the order appointing Van Eps, separate appeals were taken to the circuit court,, on questions of both law and fact, by Keith, Vine, and the trust company. After these appeals had been perfected, James S. McClelland filed in the comity court a petition reciting in detail what had previously taken place and alleging that Van Eps was not related to the decedent ; that the decedent's sole surviving heirs were certain alleged sons and grandsons; that he \\\"contests and opposes each and every of the petitioners\\\" therein mentioned; and praying that Van Eps letters be revoked. This petition was denied and an appeal taken to the circuit court on questions of both law and fact. For the sake of brevity, these alleged sons and grandsons will be termed the \\\"Arkansas claimants\\\"; the alleged brothers and sisters, represented by Mary A. Vine, the \\\"Canadian claimants\\\" ; and the alleged nieces, Mary Hammil and Mary McClelland, the \\\"Ireland claimants.\\\" In the circuit court Van Eps, as administrator, the Canadi\\u00e1n and the Ireland claimants, moved to dismiss the appeal of the Askansas claimants on the following grounds: (I) That no sufficient appeal bond had been filed; (2) that the order appealed from was not entered before the appeal was taken; and (3) that neither the circuit nor the county court had jurisdiction thereof, for the reason that the Arkansas claimants' petition was filed in the county court after the matter of Van Eps' appointment had been removed by appeal to the circuit court. This motion was denied. At the April, 1900, term of the circuit court the Arkansas claimants \\\"moved the court to submit to the determination of a jury all the issues of fact involved in the several appeals, said motion was granted, and all parties to said appeads consented \\u00fc> the trial of all said appeals together in one. trial, and thereupon the court so ordered.\\\" The trial resulted in a verdict favorable to the Canadian claimants. After-wards, on motion of' the Ireland and Arkansas claimants, a new trial was granted. On June 11, 1901, the matter again came on for hearing before the circuit court; all previous parties, except the Canadian, Ireland, and Arkansas claimants, and the administrator being in default. Thereupon the Canadian claimants moved the court to submit certain proposed issues of fact to a jury. They also moved to have all issues of fact arising upon the trial so submitted. Both motions were denied. So' the case entitled \\\"In the Matter of the Estate of John McClellan, Deceased,\\\" was called for trial. Whereupon the Arkansas claimants moved that their appeal be placed on the calendar for trial independent!)' of the case called. To this the Canadian claimants obj ected on the following grounds: (x) Because the Arkansas claimants had not filed the required appeal bond; (2) because their pretended appeal was not properly upon the calendar of the present or preceding; term; (3) because the order appealed from was not entered when the appeal was taken; (4) because the court was without jurisdiction to hear the appeal, the county court having been without jurisdiction to consider the Arkansas claimants' petition, for the reason that it was filed in the latter court after the matter of Van Eps' appointment had been removed by appeal to the circuit court; (5) because no appeal had been perfected; and (6) because, \\\"at the last trial, after the overruling of the objections above stated, the petitioners James S. Mc-Clelland and the persons named as relatives in said petition, and claiming' to be parties entitled tp administer the estate, consented in open court to the trial of this matter as one proceeding, and that the matter was so tried, and that this is merely a retrial of that matter.\\\" The abstract states that this motion and these objections were both overruled. The Canadian claimants then objected to the administrator appearing or participating in the proceeding, for the reason that he was not a proper party and should be entirely indifferent in a contest between rival claimants to the estate, which objection was overruled, and tne trial proceeded without a jury. At its conclusion \\\"the learned circuit court filed its decision in writing-finding specifically that none of the claimants was an heir of the decedent; concluding- as a matter of law \\\"that the order of said county court appointing William Van Eps administrator of the estate of John McClellan, deceased, should be reversed, vacated, and set aside, to the end that some person may by said court be appointed administrator of said estate upon the application of some person or persons authorized to petition therefor\\\"; and directing that judgment be entered accordingly. Thereafter the Canadian and Arkansas claimants made separate applications for a new trial, each of which was denied, and from the orders denying- such applications appeals were taken to this court.\\nIt will be observed that at the second trial in the circuit court there remained only four parties, namely, the Canadian claimants, alleged brothers and sisters of the decedent; the Ireland claimants, alleged nieces of the decedent; the Arkansas claimants, alleged sons and grandsons of the decedent; and Van Eps, the administrator\\u2014 each of whom was defeated by the decision. The Canadian and Arkansas claimants alone appealed, and they alone are in position to challenge the correctness of such decision.\\nThe Canadian claimants contend the court erred in not dismissing the Arkansas claimant's appeal. The contention is untenable. It is not consistent with their conduct in the circuit court. Before the first trial they consented to have all the petitions heard together, and no reason was shown why the consolidation thus effected should have been set aside. When the Arkansas claimants asked for a separate trial they objected on the ground, among others, of the former agreement to consolidate. If they did not desire to have the Arkansas claimants' petition heard in connection with their own, they should not have resisted the motion for a separate hearing. Moreover, the course pursued by the learned circuit court is sanctioned by the statute and did not prejudice any substantial rights. The Revised Probate Code of 1903 provides :\\n\\\"Sec. 83. When a petition praying for letters of administration is filed, the judge must give notice thereof containing the name of the decedent, the name of the applicant for letters, and the day and term of the court at which the application will be heard, which notice must be published by posting or printing in a newspaper, the same as required for notice of the probate of a will.\\n\\\"Sec. 89. Any person interested may contest the petition by filing written opposition thereto on the ground of the incompetency of the applicant, or may assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant must file a petition and give the notice required for an original petition, and the court must hear the two petitions together.\\\"\\n\\\"Sec. 359. When the appeal is on questions of fact, or on questions of both law and fact, the trial in the circuit court must be de novo, and shall be conducted in the same manner as if the case and proceedings had lawfully originated in that court; and .such appellate court has the same power to decide the questions of fact which the county court or judge had, and it may, in its discretion, as in suits in chancery, and with like effect, make an order for the trial by a jury of any or all the material questions, of fact arising upon the issues between the parties, and such an order must state distinctly and plainly the questions of fact to be tried.\\\"\\nThe Canadian and Ireland claimants' petitions were certainly pending in the circuit court by reason of the appeal from the order of the county court appointing Van Eps, Von questions of both law and fact.\\\" They were there for trial de novo; the hearing to be conducted in the same manner as if the case and proceedings had originated in the circuit court. Though the Arkansas claimants' appeal may not have been properly perfected or neither cottrt acquired jurisdiction of their petition as such, nevertheless it was in fact filed in the circuit court, and was amply sufficient to constitute the written opposition of interested persons who at least were authorized to contest the other-pending petitions on the ground of the-mcompetency of the applicants. The right of the Canadian claimants to question Van Eps' 'appointment rested alone on their alleged relationship? to the decedent. Such relationship was the only issue of fact presented by their petition. If successful as to such issue, they would name the administrator; if not successful, it was wholly immaterial to them who was the administrator or what was done with other petitions for letters of administration. The right to- contest a petition includes the right to cross-examine witnesses, make objections to testimony, and offer evidence tending to prove the incompetency of the petitioner. If either group of claimants was related to the decedent, neither of the others could be. Hence, evidence in support of one tended to refute the allegations of the-others, and the only sensible method of procedure was to hear all the petitions together, the course required by the statute and pursued by the learned circuit court.\\nFor the same reasons, the contention of the Arkansas claimants that they should have been given a separate trial cannot be sustained. They had consented to the consolidation of the several cases, the other petitioners were entitled to contest their claim.of' relationship to the decedent, and the statute required the court to-hear all the petitions together.\\nIt is contended that the court erred in overruling the objection interposed at the beginning of the hearing, to the participation of Van Eps therein. We are inclined to think he was not, as administrator, interested in the only issue involved, namely, whether any of the several claimants were related to the decedent. But, assuming this to be so, his activity could not have prejudiced any one's substantial rights. The inquiry demanded a thorough investigation. The trial was by the court without a jury. Its rulings on the introduction and rejection of evidence were subject to review. Unless the Canadian claimants can show that proper evidence was excluded or improper evidence admitted they have no cause to complain, and no other parties are complaining.\\nIt is urged that the court erred in refusing the damand of the Canadian claimants for a trial by jury. Section 6, art.-6,-of the state Constitution ordains that \\\"the right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy.\\\" The effect of this provision was merely to continue unimpaired and inviolate the right as it existed in the territory when the Constitution was adopted. It neither added to nor took from that right, except to extend it to \\\"all cases at law\\\" without regard to the amount in controversy. 6 Am. & Eng. Ency. Law, 974; Belatti v. Pierce, 8 S. D. 456, 66 N. W. 1088. The law in force when the Constitution was adopted was the same as it is now. It expressly authorized the court to decide the questions of fact, or in its discretion, as in suits in chancery, and with like effect, to submit such questions to a jury. Rev. Prob. Code 1903, \\u00a7 359; Comp. Laws 1887, \\u00a7 5976; Prob. Code 1877, \\u00a7 326. So the right did not exist when the Constitution was adopted, a petition for letters of administration is not a \\\"cas\\u00e9 at law\\\" as that term is understood and construed by the courts, and the court invaded no constitutional right by refusing a jury trial. Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598.\\nThe Canadian claimants sought to prove that their brother John McClelland entered and deserted from the British army at Toronto\\\" in 1856. To- show that this enlistment and desertion occurred in 1859, alleged copies of the original attestation and register sheet of one John McClelland were introduced in evidence, to the intro- ductiou of which numerous objections were interposed and overruled. T. A. G. Sangster testified by deposition that he was a captain o\\u00ed a certain regiment, the first batallion of which was formerly \\u00a1mown as the iooth regiment (Royal Canadians) ; that the depot of the regiment was then at Birr, Kings county, Ireland; and that he was in charge of the original records of the men of such regiment. He stated the manner in which the attestation and register sheet of each man was prepared and preserved; that they were filled up at the time stated therein by officers whose duty it was to make and keep the records; that they had never been allowed out of the custody of the regiment; that he had made a thorough and complete search through the records of the regiment and had found that the only John McClellan or John McClelland who. enlisted for the iooth regiment between the years 1856 and i860, inclusive, was a certain John McClelland, who enlisted on February 15, 1859, and deserted on April 12, 1859; that the iooth regiment was not in existence in 1856 or 1857; that the iooth regiment disbanded in 1818 and was not raised again until' 1858; that he had verified the history of the iooth regiment from the original records kept at the war office in Rond\\u00f3n, which he had personally inspected; that he had in his custody the original attestation and register sheet of the John McClelland mentioned;' that the originals could not be sent to America; that Exhibits A and B were true and correct copies of such originals; and that it was not possible that the originals had been altered, as the several dates therein were perfectly dear and distinct, and the originals bore no trace whatever of any alteration or attempt at alteration. The records being in a foreign country made and preserved under the military regulations of that country, it was clearly competent to show by an officer of the British army what such regulations were, that such regulations had been complied with, and what was found by the proper custodian after a thorough search of the regimental archives. The evidence so received was the best which the nature of .the case afforded, with the possible exception of the statement regarding the existence of the iooth regiment; and, if that statement was erroneously received, it was error without prejudice, for the reason that the search of the records disclosed the fact that only one person by the name of John McClelland or John McClellan was enlisted in the regiment from 1856 to 1860, both inclusive; a fact which rendered the statement as to the existence of the regiment in 1856 and'1857 immaterial and harmless, the testimony of the British officer as to the. contents of the regimental records being uncontradicted.\\nIt was not error to receive in. evidence photographic reproductions of portions of the enlistment papers. The photographer testified that he had been engaged solely in that business for upwards of 10 years; that he was manager of the Armagh branch of the firm of 'Allison, Photographers, Belfast\\\"; one of the highest class photographers in Ireland ; that he went to the barracks at Birr and took time and correct negatives of certain portions of the original attestation and registration sheet, they being submitted to him for that purpose by the officer in charge of the same; and that the exhibits attached -to his deposition were correct and exact photographs in every detail of the portions of the originals which they respectively represent. The originals could not be produced; the witness was not cross-examined; the photographs themselves appeared to be correct reproductions; the foundation for secondary evidence was properly laid; aiid though testimony subsequently received, touching different photographic processes, may have diminished the evidentiary value of the photographs, it did not render the ruling on their admission erroneous or require their exclusion. And they clearly were admissible for the purpose of showing that the copies furnished by the custodian of the original records were true and correct; especially with respect to the dates of the soldiers' enlistment and desertion, the only really important purpose served by such records.\\nExperts in handwriting were permitted to compare the signatures in the photographic reproductions of the enlistment papers with proved signatures of the decedent and a proved signature of the Canadian McClelland, for the evident purpose of showing that the signatures on the enlistment papers were written b3r the latter and not by the former. Regarding the use of photographic reproductions for comparison of handwriting the authorities are conflicting. We apprehend that -the constant development of the art has served to weaken, if not remove, many reasons assigned in earlier cases for not allowing such comparisons, but the question need not now be determined. The several signatures were before the trial judge; none of the so-called experts was exceptionally well qualified; their evidence was conflicting and unsatisfactory; and, in view of the entire record, it would be unreasonable to suppose that a different ruling regarding this testimony would have resulted in a different decision. Moreover, if the evidence was incompetent, the judgment cannot be reversed on that ground alone, for the presumption is that the court disregarded it and based its findings upon the competent evidence in the case. Godfrey v. Faust, 18 S. D. 567, 101 N. W. 718; Id., 20 S. D. \\u2014 105 N. W. 460.\\nThe learned circuit court found that the Canadian claimants are not brothers and sisters of the decedent. The findings of a trial court on disputed questions of fact are always presumptively right, and though, under our statute, not as controlling upon this court as the'verdict of a jury, must stand, unless the evidence clearly preponderates against them. Feldman v. Trumbower, 7 S. D. 408, 64 N. W. 189; Randall v. Burk Tp., 4 S. D. 337, 57 N. W. 4; Reid v. Kellogg, 8 S. D. 596, 67 N. W. 687; Webster v. White, 8 S. D. 479, 66 N. W. 1145; McKenna v. Whittaker, 9 S. D. 442, 69 N. W. 587; Hulst v. Association, 9 S. D. 144, 68 N. W. 200; Grewing v. Machine Co., 12 S. D. 127, 80 N. W. 176. There was evidence tending to prove that the Canadian claimants were the surviving sons and daughters of Abraham McClelland, a native of Ireland, who was the father of five sons and four daughters, named William, Samuel, John, Abraham, Thomas, Jane, Frances, Margaret, and Mary Ann, and who, after his marriage, resided for a time at Irvcnstown, county Fermanagh, later at or near Armagh, county Armagh, whence he emigrated with all his family, except Willi\\u00e1m, in 1850, taking ship at Belfast, landing at Quebec and settling at Niagara on the Take, Canada, where he was joined by his son William two years later; that Abraham McClelland was a farmer and linen weaver and belonged to the constabulary in Ireland; that his son John, who is claimed to have been the decedent, was born at Trvenstown, September 27, 1831; that John was about 5 feet 7^ inches in height, weighed about 160 pounds, had dark gray or hazel eyes, brown hair, and unusually large thumb joints, a family char acteristic; that he killed a neighbor's dog while living in the county Armagh; that he used his left hand more than his right, though he wrote with his right, having been required to do so at school; that he was fond of hunting, always shooting from the left shoulder; that he had a peculiar disposition, much given to joking and story telling, frequently referring'to stout women as \\\"Mullingar heifer and beef to the heels\\\" ; that he had a peculiar habit of straightening up and throwing back his shoulders; that the family were all Protestants ; that John was fond of reading the Bible, though he belonged to no church; that he worked for a time on a farm across the river in New York state, afterwards on farms in Canada; that he drove stage between Niagara and St. Catherine's, worked in the woods timbering where he once was lost, his last occupation in Canada being that of a butcher; that he brought home a Bible on the fly leaf of which he wrote his name, the word \\\"Bible,\\\" and \\\"April 5th, 1855\\\" ; that he was in the habit of singing or repeating certain lines about an \\\"Irish .girl with red and rosy cheeks\\\"; that he was addicted to the use of intoxicants; that early in the year 1856 he and one of his brothers had a serious altercation regarding the butchering of some animal, in which blows were exchanged, and he left home, declaring his brother should \\\"never see his face again on earth\\\"; that he went to Toronto, where he enlisted in the tooth regiment, soon after deserted, met his mother at Youngstown on the American side, bade her farewell, and started for the west; that two letters were received from him by his mother, one of which contained a tintype of himself; that these letters and tintype were preserved by his mother until her death in 1890, after which they were not seen and could not be found at the time of the trial; that aside from these letters he was never again heard from by his family; and that he had not been married when he left home. No one remembered the contents of the letters or from what place they were written, beyond a vague impression that they came from the west, and in some way referred to Colorado. A photograph of decedent and certain other persons taken about 14 months before his death was shown members, relatives, and neighbors of the Canadian family, all of whom swore they recognized the picture as that of the Canadian McClelland. There was also testimony tending to prove that the name of the Canadian family was properly spelled McClelland, and that in unimportant matters the final \\\"d\\\" was often omitted; that the Thomas of that family belonged to the mounted police during the Reil Rebellion; and that his name was frequently mentioned in the newspapers in connection with that uprising. It was shown and is conceded that the decedent was at Sioux City in June, 1857; that he came from there to Sioux Falls in August of the same year; that he enlisted in the Dakota cavalry late in 1861 ; serving therein until early in 1865; that from May to November of that year he was employed in locating a military road from Minnesota to Montana, after which he was at Yankton and the Crow Creek Indian Agency until 1870, when he returned to Sioux Falls and there resided until the time of his death; that in an application for membership in the Masonic lodge at Yankton, dated September 8, 1867, his age was given as 35; and that in an application for membership in the lodge at Sioux Falls, dated January 28, 1874, his age was given as 42. There was testimony tending to prove that the decedent was about 5 feet 7J4 inches in height, weighed, -when he came to Dakota, about 160 pounds, had brown hair before it became gray, dark gray or hazel eyes, large thumb joints, and was fond of hunting; that he shot from the left shoulder, carried his cane in the left hand, but wrote with his right; that he had a peculiar habit of throwing back his shoulders, was an inveterate joker, was familiar with the Bible, belonged to no church, and used intoxicating liquors to excess, especially in the later years of his life; and that prior to 1862 he wrote his name \\\"McClelland,\\\" after which time he dropped the final \\\"d.\\\" Numerous residents of Sioux Falls who had known him intimately testified that Mrs. Bulkley, one of the Canadian claimants present at the trial, bore a striking resemblance to the decedent, and that there was a less marked resemblance to her brother Thomas, who also was present. Though it is evident that the decedent was extremely reticent regarding his relations and personal history before coming to Dakota, numerous witnesses testified to conversations wherein he had alluded to such matters. Some of the allusions were to the folowing effect: That his father's name was Abraham; that his family left Ireland in 1850, landed at Quebec, and settled in Canada; that he was in the British army and \\\"left-them\\\" or took \\\"French-leave\\\"; that he was once lost in the big woods of Canada; that he had relations in Canada; that he was never married; that he knew and described people who lived near Niagara on the Fake; that he left Canada in 1856; came to Dakota by way of Sioux City; that he came from a place pretty near between the counties'of-Tyrone and Ar-magh, Ireland; spoke of Lough Neagh, appearing to be familiar with the locality of Armagh; spoke on hunting trip of having newspaper with article relating to the Reil Rebellion, which referred to Thomas McClelland, and remarked that he had a brother Tom; that he had a sister with two children in Canada; spoke of being at Toronto, Niagara Falls, Sioux Falls, and St. Anthony Falls; said in August, 1897, he was 65 and was born in September; that he had a sister named Jane; that he had 10 years start of one bom in 1841; that he was born in Fermanagh, but did not live long in that county; spoke of having had trouble about killing a ,beef; said he would call the witness \\\"Tom\\\" because he had a brother .named Thomas;' said he had been over the road between Niagara and. St. Catherine's a number of times; that he was raised on a farm in Ireland; that his father was a linen weaver; that he had trouble in Ireland over the- killing of a neighbor's dog; and that he repeated the lines about 'an \\u2022 \\\"Irish girl\\\" heretofore mentioned. The records of Minnehaha county disclose numerous conveyances executed by the decedent from 1864 to shortly before his- death, wherein he was described as \\\"a single man,\\\" a \\\"single person,\\\" or \\\"unmarried.\\\" And though there was evidence tending to prove that his height was only 5 feet 6 inches, and that he made statements to the effect that his father was a school teacer named John, that he was horn in county Armagh in 1821, that he came from Ireland alone, and that he had no relations in this country, it cannot be denied that there was a large volume of evidence touching conversations and incidents in the decedents life strongly tending to prove that he and the Canadian McClelland were one and the same person. On the other hand, the records of the 100th regiment, if genuine and correctly reproduced, render such identity highly improbable,1 if not practically impossible. They show the enlistment of only one Mc Clellan or McClelland from 1856 to i860, both inclusive; that his age was given as 25 years and six months, his height 5 feet 7)4 inches, color of eyes hazel, hair brown, occupation butcher; and that he enlisted February 15, 1859, and deserted April 12, 1859, the year being in words, not figures, on the oath of allegiance, as shown by the photographic reproduction. If the Canadian McClel-land was born September 27, 1831, his age was 24 years, 4 months and 18 days on February 15, 1856; 27 years, 4 months, and 18 days on February 15, 1859. So, if the enlistment papers related to him, there was an error as to' his age whether he enlisted in 1856 or 1859. The Canadian McClelland disclosed by the evidence should have known his own age, and there was no apparent reason for misstating it when enlisting under his true name. While this error may not be important, it does not serve to identify him as the person described in the enlistment papers. Still the case of the Canadian claimants rests on the theory that their brother enlisted in 1856 and soon after deserted. His description, except as to age, corresponds identically with that of the recruit who enlisted early in 1859 and soon after deserted. The enlistment and desertion were at Toronto in and from the 100th regiment. It would be strange indeed if two men of the same name, ocupatioh, height, complexion, and color of hair and eyes, should have thus enlisted and deserted, one in [856, the other in 1859. .The only reasonable inference is that the regimental records referred to the Canadian claimants' brother, and the question arises whether he enlisted and deserted in 1856 or 1859. This is of vital importance, because, if he did not enlist until 1859, he was not the decedent, who is conceded to have been in Dakota from August, 1857. Numerous witnesses swore positively that the Canadian McClelland left home in 1856, giving more or less convincing reasons for the accuracy of their recollections. Nevertheless, it is more probable that they were mistaken than that the records were wrong, provided such records were genuine and correctly reproduced. There is nothing before us upon which to base an assumption that the British officer wlm had charge of these records, and who had no interest in the litigation, was guilty of fraud, perjury, or want of proper care in giving his deposition. It is true five residents of Toronto testified they were members of the iootli regiment, one of whom stated that there were several soldiers in it by the name of McClelland or McClellan; another that there was one McClelland and one McClellan, each of whom he described; and still another, that there was no' man by any such name during the years material to this controversy. But they were all positive that enlistments did not begin before 1858. And, though their evidence may have served in some slight - degree to discredit the records, it certainly cannot be said to have destroyed their probative force. Furthermore, in a letter written by Mrs. Vine to the county 'judge, dated November 13, 1899, this language occurs: \\\"I forward our family Bible which contains our brother John's signature on the inside of the fly leaf. Fie bought the bible himself about five years before he left home.\\\" The words on the fly leaf are: \\\"John McClellan Bible, April 5th, 1855.\\\" In a signed and sworn statement made by William McClelland, November 11, 1899, this language is found: \\\"John McClelland, my brother, left Portadown, Ireland, in 1850, was then 18 or 19 years old. Emigrated to America and settled in Niagara, Ont., left Niagara in i860 and went to Colorado, was last heard of when crossing the mountains with a mule train 30 years ago.\\\" In the original the words \\\"30 years ago\\\" are written in red ink; the balance of the statement being typewritten. It will be observed that these statements, probably made before it was known to the Canadian claimants that the decedent reached Dakota in 1857, corresponded with the dates shown by the enlistment papers, and though it was claimed that William was seriously ill when his statement was verified, and that Mrs. Vine wrote her letter in great haste, the effect of the statement and letter cannot be wholly disregarded, besides the Arkansas claimants intro-duc\\u00e1 evidence, hereafter considered, relating to- incidents in decedent's life which directly conflicts with what has been reviewed. Nearly all the testimony in the case was oral, relating to long past events involving the unaided recollection of witnesses more or less influenced by their relations to the litigation and litigants. There had been two previous trials. Opportunity and temptation to1 color particular circumstances were not wanting. Very much depended upon the memory, intelligence, honesty, the credibility of numerous witnesses. No reason is shown why the decedent, if he was the Canadian McClelland, would not 'have continued writing to his mother, or have visited her, possessed as he was of ample means and a disposition to travel for years prior to her death. Manifestly there was not'such a clear preponderance against the finding of the learned circuit court with respect to the alleged relationship of the Canadian claimants as would justify this court in setting it aside.\\nThe learned circuit court also found that the Arkansas claimants were not sons and grandsons of the decedent. Robert Wilson of Glenwood, Minn., age 69, testified substantially as follows: Witness was born in county Meath, Ireland; his mother's maiden name' was. Ruth McClelland; her father's name was'Samuel McClelland; she had three brothers, Charles, John, and one wlm died in childhood, and four sisters, Ann, Catherine, Mary Jane, and Elizabeth. Her brother John was born at Skryne county Meath, was nine or ten years older than the witness, was a gamekeeper on the Dillon estate. Game keepers were called \\\"wood-rangers\\\" and accompanied the owners of estates when out hunting. Witness saw his uncle John just before leaving Ireland in 1842, when the witness was ix years old. Witness' family'sailed from Liverpool, landed at. New York, were at Rochester, and went to Scugog Island, Canada, in 1847. ' Witness'''Uncle John, wife, and one child, three or four months' old, came to Scugog about- a year later and lived with witness' family during the firfet winter; \\u2022> His; wife taught school. White there'another child was'born. After being there over a year''John and his family removed to1 Port Perry; 'later to St. John, New Brunswick. Letters were received from his uncle while the latter was at St. John, which have been lost, in one of which it was stated that his uncle had separated from his wife on account of a quarrel with her brothers. Mullingar was a place in county Meath noted as a market for fat cattle, whence came the saying common in Ireland and Canada, when one sees a very stout woman: \\\"That she looks like a Mullinger heifer beef to the heels.\\\" Witness' uncle was of sandy complexion, had dark hair, dark blue eyes, was square built; a short man, rather light-hearted in general, though quick tempered. Was fond of sport, never liked work, did scarcely anything but hunt and fish, usually shooting from the left shoulder. Pie had two ' children when he left Scugog Island, and one afterwards. Witness recognized Exhibit 45 as the picture of his Aunt Hannah, his Uncle John's wife, and \\\"believed\\\" a picture of decedent was a picture of his uncle. John McClellan, a resident of Mine\\u00f3la, Tex., age 54, testified sitbstantially as follows: Was born at Skryne county Meath, Ireland. Father's name John McClellan; mother's maiden name Hannah Cruikshank. Teamed from father and mother, principally from mother, that parents went to Canada when witness was about three months old; that they sailed from Dublin to Liverpool, then to Quebec and Port Hope; that they landed at Port Plope and not at Quebec; and that they lived for a time on Scugog Island. Witness was four years old when family removed to St. John. Witness lived there about six years. Was eight-years old when his father left home. Never saw him afterwards. Father was engaged with mother's brothers, John and Joseph Cruikshank, as subcontractors constructing Intercolonial Canal'Railroad, then being built from St. John inland. Father went away in 1854. There were three sons in the family, the witness, the oldest, next William, who is dead, and James S., who was present at the trial and who was born in 1851. Witness remembered there was a quarrel between his father and mother's brothers. Could not state what was said because he ran-from the room when his father was knocked down by Joseph Cruikshank. Witness shown Exhibit 56, a Bible bearing upon inside of cover the inscription: \\\"A wedding present for John and Hannah McClelland from the Reverend Richard Radcliff, Feb. x, 1846\\\"\\u2014 below which is other writing obliterated by erasures. Witness had seen book many times, first saw it at home in New Brunswick. It was not then in same condition. There was in addition to inscription a record of the birth of the children. Was told by mother that she found father trying to erase entire page; that father intended to abandon and leave his home and claimed he would state he was not married to her, and that the children were illegitimate. Neither mother nor either of her brothers is now living. It was reputed in the family father 'was seen in New York state. This was learned from Joseph Cruikshank. Witness remained at St. John until 1862, when he went to Boston. After several months was followed by his brother William. Worked at or near Boston until fall of 1864, when both enlisted in Second Massachusetts cavalry, United States army. Served about five months and were discharged under the minor act. When discharged it was their family history that father was in Dakota. Had a fire in 1871, in which some of mother's and witness' books and papers were destroyed, including mother's original marriage certificate, after which there were no papers or documents belonging to father in the family. Witness has been in Texas about 11 years. William was on the stage. He enlisted in the Seventh United States cavalry. In 1869 or 1870 he told the witness he had deserted the preceding winter, gone into Dakota with some sort of a government surveying party and found his father at Yank-ton; that he had asked his father about the threat to declare the children illegitimate; and that his father said he would, if they did not let him alone. Witness shown Exhibit 53. It is a letter received from brother, William, before his arrival in winter of 1869 or 1870; received through the mail. It is in William's handwriting.. About the time mother received this letter she received a photograph. Exhibit 65 is that photograph, a picture of William and a comrade who served in the army with him. He signed the letter and assumed the name of \\\"Henry Wilber.\\\" After this William became an actor and followed that profession until his death. East saw him at Eittle Rock in 1880. He told witness he had seen his father while traveling through the country, thought it was at Sioux City. Witness shown Exhibit 66. It is picture of brother, William, whose staee name was \\\"William Standish.\\\" Mother died at Little Rock in 1881. The Wilber letter was in witness' possession after her death until it was sent to Grigsby, Wright & Grigsby, at Sioux Falls. Father had two older brothers, William and Charles; William died when a child. Believe he had four sisters, Ann, Elizabeth, Catherine, and Ruth; remember only Aunt Ruth, the mother of Robert Wilson. Brother William left children; one child by first wife being William McClellan, present in court. The testimony of James S. McClellan, another alleged son of the decedent, omitting, portions merely corroborative c-f preceding witness, was substantially as follows: Age 49 years; ' residence Little Rock, Ark.; foreman of planing mill and lieutenant colonel state militia. Witness' mother-told him the Bible, Exhibit 56, was a present from minister by whom she was married, and that inscription was written by such minister. The Bible was in possession of witness from mother's death until sent to county court. Was told by Uncle Joseph Cruikshank that father went to- Duchess county, N. Y., where he visited with a relative of the family. Witness was 13 when he went fro-m St. John to Boston. His mother secured assistance of her brother, Joseph Cruikshank, to ascertain name of regiment in which her two oldest sons had enlisted, who learned from the records at Washington where the boys were, and also that father was or had been in the army in Dakota. After fire witness prepared, under direction of mother, a family tree or record, which was with her until her death, and then with witness until produced in court. Witness was shown Exhibit 50 by mother, in Boston, in 1872, and told that she procured it from Ireland to take place of one destroyed by fire. Exhibit 53 (Henry Wilber's letter mentioned by previous witness) is in handwriting of brother, William, deceased. First saw it in fall of 1869 at Belmont, Mass. It was received by mother through the mail. Witness enlisted in regular army in 1872. During service, while in Dakota, received letter from mother that father was in Dakota, and afterwards mailed a letter addressed John McClellan, Sioux Falls, with a return card, name, company, and regiment on envelope, which was not returned and not answered. Brother William enlisted second time about 1866, in Seventh United States cavalry. Saw him next after this at Belmont, Mass., in 1869, when he told about deserting, going into Dakota and seeing father. The record or family tree referred to by this witness shows the sons of Samuel McClelland and Catherine Hopkins were William (died in infancy), Charles (first son), and John (second son, married to Hannah Cruikshank, February 26, 1846) ; daughters, Elizabeth, Ruth, Catherine, and Ann; and that the children of John McClellan and Hannah Cruikshank were John C., born December 16, 1846, William S., born June 8, 1849, and James S., born August 28, 1851. Exhibit 50 discloses that John McClellan, of full age, wood-ranger, residence Eismullen, was married to- Hannah Cruikshank, of full age, dressmaker, residence Kilcarty, in the. parish church of Skryne, county Meath, by Richard Radcliff, according to the rites and ceremonies of the United Church of England and Ireland, February 26, 1846, and is certified to- as a true copy of the marriage registry of the parties under date of October 24, 1872, by Oliver Brighton, M. A. Clk. I of Skryne. Exhibit 53, the AVilber letter, is dated Chicago, Ill., November 10, 1869, and reads as follows: \\\"Dear Mother: I got to this place some four weeks ago and am working at my trade, any kind of a carver can get work here now, and they pay good wages. I want to' come back east again and will start as soon as I get a little ahead. I have had enough of the west and have lots to tell you. I left Leavenworth two days,after I wrote you; got a chance to go north up the river with an outfit that was going to-Dakota. I thought I would go1 along. I had a rough time of it and got all of that country I want. I found father, he would hardly believe me at first. When I told him about Uncle John he said the Cruikshanks were all fools anyway. He explained a lot of' things I did not understand before, and I decided to give up the notion of going to California and will come back east again and tell you all about it. What.are the boys doing, is John still at Water-town? Where is Jim? Where is Uncle Joseph, is he still at Portland, Me.? I am still going by the name of Wilber. Your affectionate son, William S. McClellan. Address, Henry Wilber, Chicago, Ill.\\\" The testimony of an alleged grandson of decedent was substantially as follows: Name William McClellan; residence Little Rock, Ark., age 30; father's name William S. McClellan. Mother died when witness was about a year old. Afterwards lived with grandmother Hannah McCleJlan, at Boston. About 1880, when about 9 years old, went to Arkansas and lived with Uncle James S. McClellan, preceding witness. Afterwards was at Pittsburg, * Pa., with mother of witness' stepmother. Was with father's theatrical company. Knew that father wrote to grandfather, John McClellan, at Sioux Falls. Saw him write and mail some letters; could not say how many. He wrote a good many. Wrote frequently during a period of four years. Never saw any letter received from grandfather. Father died in 1888,' when witness was about 16.. After his death was engaged in various occupations. Was a sailor. Crossed ocean 15 times. Left sea in 1894. Went to Chicago, then to Omaha, and started for North Dakota. Traveled on the freight trains without paying fare. Reached Sioux Falls in fall of 1894, early in the morning. Mailed postal card addressed to John Me- Clellan, asking him to meet witness at post office between 6 and J in the evening; signed same: \\\"William Stan dish.\\\" Waited around until evening. Saw man near post office, asked if his name was John McClellan, who answered \\\"Yes.\\\" Witness said: \\\"I wrote you a postal card this morning.\\\" He said: \\\"You are not my son William Standish.\\\" Witness said: \\\"No, I am his son, and your grandson.\\\" Walked up street. He asked questions about family. Said he knew grandmother was dead, but did not know witness' father was dead. He gave a lot of advice, said witness should go to his Uncle Jim in Arkansas, settle down, and learn a trade. The conversation was all on the street. He gave, witness $15. Without speaking to any one about his grandfather witness left Sioux Falls, started for Arkansas, stopped at Crest\\u00f3n, Iowa, and worked for R. H. Hanna, after which he went to Little Rock, where he has since resided. Witness works in planing mill, is married, and has one child. James S. McClellan, being recalled, testified that Exhibit 57 was in the handwriting of his nephew, William McClellan; that he received it through the mail at Little Rock in 1895, since when it \\\"had been in his possession until these proceedings were commenced. William McClellan, being recalled, testified that this exhibit was written by him in 1895, addressed to James S. McClellan, Little Rock, Ark., and mailed at Crest\\u00f3n, Iowa. This letter which contains allusions to the writer's past life and his alleged visit to Sioux Falls corresponding with his testimony, was received in evidence over the-objection that it was a self-serving declaration offered in absence of any effort to impeach the witness. R. H. Hanna, age 60, residence Crest\\u00f3n, Iowa, testified that he first saw William McClellan, then present in court, at Crest\\u00f3n in 1894; that he was in witness' employ until August, 1895; that he heard him say he was in Sioux Falls in summer of 1894; and that he said he had a rich relative living in Sioux Falls. The deposition of Emanuel Boone, ' Sr., was to this effect: Age 73, residence Hill township, Pulaski county, Ark. Have known John C. McClellan of Texas and Janies S. McClellan of Arkansas since 1880. Became acquainted with tlieir mother Hannah McClellan in 1880. She died in 1880 or 1881, Shortly before her death she told the witness she was married in Ireland, to John McClellan; that they had but three children, named John C., James S., and William S.; that she and her husband had separated. Witness knew William S. McClellan during-a period of about four months, when he lived near the witness in 1-Till township. Heard William say his father's name was John McClellan, and that he lived in Dakota. Ralph Parliman, who had known decedent from June, 1878, to' day of his death, testified that, on a hunting trip in 1894, in a farmer's house, he and the farmer-having been talking about their wives and children, he said to decedent: \\\"Now, tell us about your wife.\\\" To which decedent replied : \\\"There is some things in a man's life he don't like to tell of.\\\" And that on the following morning decedent told the witness, in substance, that he was the father of three children.\\nNearly all of the testimony introduced in support of the Arkansas claimants' petition was received over properly stated objections. Here again the presumption must prevail that all incompetent evidence was disregarded by the trial court in making its findings of fact, and, of course, such evidence should not, now be considered for the purpose of setting aside the findings. Under well recognized rules relating to> the proof-of pedigree, there manifestly was sufficient uncontradicted competent evidence that Hannah Cruikshank married John McClellan in Ireland;, that he and she removed to- Scugog Island and then to St. John; that the)'- had three sons, two of whom were witnesses; that they separated at St. John on account of a quarrel between McClellan' and his brothers-in-law. So- the vital question is whether Hannah Cruikshank's husband was the decedent. It is, therefore, the evidence relating to this alleged identity which demands special attention. Were the declarations of Joseph Cruikshank, deceased, relative to what was revealed by the War Department records, admissible? Such declarations simply conveyed information of the fact that a man was, or had been, enrolled in a company or regiment serving in Dakota, under the name of John McClelland. Had Cruikshank been living- and called as a witness, he could not have-testified to the contents of the records. Nevertheless, the testimony-under discussion was admissible for the purpose of showing that information had reached the family that the missing father might be-in Dakota, not that he in fact was there, and that is all it tended to. establish, a circumstance of extremely slight consequence. Next, was the testimony relating to the statements and letter signed \\\"Henry Wilber\\\" of William S. McClellan, deceased, to the effect that he saw and conversed with his father in Dakota. This testimony, if competent, tended, in some degree, to establish the fact that Hannah's husband was in Dakota in 1869. Was it admissible? Among the recognized exceptions to the general rule, or principle, excluding-hearsay evidence, are declarations relating to pedigree and family history. \\\"The true grounds for the admission of this class of evidence are the necessity o'f the case and the improbability of such statements being false.\\\" 1 Elliott on Ev. \\u00a7 362. The declarant must be dead, he must be a legal relative, there must be no desire-actuating him to make a false statement, the declaration must be-relative to a matter of pedigree, and the declaration must be ante-litem motam. Id., \\u00a7 364, 369. All these conditions existed. We-think the testimony was admissible. Next comes the testimony of the grandson and his letter to his uncle. The letter was not admissible. The writer was living and called as a witness. Such self-serving declarations are excluded because open to the objections-against hearsay evidence in general, and because their admission would open the door to fraud and to the fabrication of testimony. 1 Jones, Ev. \\u00a7 236. With no means of knowing what the appearance of this letter was when introduced, its contents certainly leaves-room- for doubt as to whether it would not weaken rather than strengthen the cause for which it was produced. Then the identity of the decedent as a member of the Arkansas family rests almost, wholly on the declarations of William S. McClellan, deceased, regarding having seen his father in Dakota in 1869; the testimony of the younger William regarding having seen his grandfather at Sioux' Falls in 1894; the inference that decedent was the person they saw;, and the testimony of Ralph Parliman regarding decedent's declaration when asked to tell about his wife, and his declaration that he-was the father of three children. But this testimony was to- betaken in connection with and considered by the trial judge in the-light of all the competent evidence received in support of and opposition to all the petitions. It was for him to decide upon the credibility of each witness. It was for him to- determine whether de cedent's true name was John McClellan; what, if any, truthful statements the decedent had made regarding his age, father's name, birth place, names of relatives, and as to whether or not he was- ever married; what cause, if any, impelled the decedent to conceal his personal history; and why none of the letters alleged to have been written him by the Arkansas family, or nothing throwing light on his e'arly life, was found among his private effects. Was decedent born in September, 1831, as shown by the lodge records and numerous other declarations? If so, he was only 10, when Robert Wilson left Ireland, and only 14, in February, 1846, when Hannah Cruikshank was married. Was it reasonable that the alleged son would refrain from writing his mother after seeing his father in-Dakota, until he reached Chicago ? Was his such a letter-as would probably be written under the circumstances? Was it reasonable that he would write to his father frequently during a period of four years without receiving a reply? Was it reasonable that the alleged grandson would spend the day in Sioux Falls without making any inquiry concerning his grandfather? Would he probably have no curiosity or desire for information regarding his life, occupation, or possessions? No such information appears to have been imparted by the grandfather. What was the appearance and demeanor of this young man upon whose unusual story so much depended? This court has no means of knowing. The decision of the trial court should stand, in the absence of cogent reasons compelling a different conclusion. A careful consideration of the entire record will, we believe, leave an impartial mind totally finable to conclude whether or not these Arkansas claimants are sons and grandsons of the decedent, and, such being the case, it certainly cannot be said that there was a clear preponderance against the find.ing of the learned circuit court.\\nAnother ground assigned by the Arkansas claimants in then-motion for a new trial was \\\"newly discovered evidence, material to the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.\\\" Rev. Code Civ. Proc. 1903, \\u00a7 301, subd. 4. This was supported by an affidavit of one of their attorneys; the certified copy of a marriage registry corresponding with the one introduced in evidence on the trial ; photographic reproductions of portions of the original marriage registry containing the signatures of the contracting parties ; and'several affidavits of persons who were familiar with decedent's handwriting, and .who swore that they had examined the photographic signatures, and were of the opinion that one of them was the signature of the decedent. This was opposed by affidavits of other persons familiar with decedent's signature, who had examined the photographs and were of the opinion that they were not reproductions of decedent's signature. Two1 of the persons who made affidavits1 in opposition to the motion for a new trial subsequently filed affidavits to the effect that, upon further examination of the photographs, they desired to- have their former affidavits withdrawn. The showing did not justify the granting of a new trial. The Arkansas claimants' petition was filed February 24, 1900. They then had in their possession what purported to be a certified copy of their father's and mother's registry. The last trial in the circuit court did not take place until June xx, 1901. If they desired another certified copy or photographs of the original and could not procure them, they should have applied for a continuance. Moreover, there was no dispute regarding the time and place of their ancestor's marriage. The second certified copy was merely cumulative and wholly unnecessary. The certified copy which was in their possession before']their'petition was filed 'disclosed'that the original bore'the signatures \\u00f3f the \\\"parties'to the marriage. If they desired photographs of such signatures they should have procured them before the last- trial, or have asked for a continuance. And the conflicting opinions regarding the signatures shown 'by the pho-rogiaphs justify the conclusion that they would have no effect upon the result, were a new trial granted. The policy of the law is to require a party to be diligent in securing and presenting his evidence when the cause is tried, and, when the proposed evidence is merely cumulative in its character, and unlikely to change the result in case a new trial should be granted, the motion for a new trial is properly denied. Demmon v. Mullen, 6 S. D. 554, 62 IT. W. 380. It is proper to observe, in this connection, that the opinion evidence regarding handwriting introduced upon the' trial, and used on the motion for a new trial, was of such a character and so conflicting as to be of no value whatever.\\nIn view of the peculiar circumstances surrounding the estate involved in this proceeding, it will become the duty of the court having it in charge to insist upon the most efficient and honest administration until the property belonging to it shall have been lawfully distributed, and the state's attorney of Minnehaha county should have notice of all further proceedings in relation thereto, Rev. Civ. Code 1903, \\u00a71111.\\nThe estate should recover disbursements in this court and costs, except \\\"for argument\\\" to be taxed against the appellants. The orders appealed from are affirmed.\"}"
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+"{\"id\": \"8589912\", \"name\": \"STATE v. KAUFFMAN\", \"name_abbreviation\": \"State v. Kauffman\", \"decision_date\": \"1906-06-23\", \"docket_number\": \"\", \"first_page\": \"620\", \"last_page\": \"622\", \"citations\": \"20 S.D. 620\", \"volume\": \"20\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:07:47.854783+00:00\", \"provenance\": \"CAP\", \"judges\": \"EUERER, P. J., having been absent, has taken no part in this decision.\", \"parties\": \"STATE v. KAUFFMAN.\", \"head_matter\": \"STATE v. KAUFFMAN.\\nUnder Const, art. 6, \\u00a7 8, declaring that all persons shall he bailable by sufficient sureties, except for capital offenses, when proof is evident or presumption great, persons arrested for capital offenses, where the proof is not evident or the presumption\\u2019great, are entitled to bail as a matter of right, and Rev. Code Cr. Proc. \\u00a7\\u00a7 585, 586, providing that bail may be admitted upon all arrests for criminal offenses punishable by death unless the proof is evident or the presumption great, but shall be taken only by the Supreme Court or circuit court or a justice or judge thereof, \\u201cwho shall exercise their discretion therein,\\u201d is in conflict with the constitutional provision.\\nUnder Const, art. 6, \\u00a7 8, providing that all persons shall be bailable except for capital offenses when proof is evident or presumption great, Rev. Code Cr. Proc. \\u00a7\\u00a7 5S5, 586, constaining substantially the same provisions, and section 356, providing that defendant in a criminal case is presumed to be innocent, the burden is on the state in an application for bail, to show that the proof is evident or the presumption great.\\n(Opinion filed, June 23, 1906.)\\nOriginal application by Emma Kauffman to be admitted to bail.\\nApplication granted.\\nA. P. Orr, State\\u2019s Attorney, for the State. Aikens & Judge, for defendant.\", \"word_count\": \"1070\", \"char_count\": \"6195\", \"text\": \"HANEY, J.\\nHaving been held to answer the charge of murder and committed to the custody of the sheriff of Minnehaha county the defendant applies for an order admitting her to bail.\\nThe Constitution of this state secures to every one accused of crime the right to bail in all cases except when charged with a capital offense and even then, unless the proof of guilt is evident or the presumption of it is great. It declares: \\\"All persons shall be bailable by sufficient sureties, except for capital offenses when proof is evident or presumption great.\\\" Article 6, \\u00a7 8. As said by Mr. Justice Field in construing identically the same constitutional provision : \\\"The admission to bail, in capital cases, where the proof is evident or the presumption great, may be made a matter of discretion, and may be forbidden by legislation, but in no other cases. In all other cases, the admission to bail is a right which the accused can claim, and which no judge or court can properly refuse.\\\" People v. Tinder, 19 Cal. 539, 81 Am. Dec. 77. The statute provides: \\\"Bail, bjr sufficient sureties, shall be admitted upon all arrests in criminal cases where the offense is not punishable by death, and it may be taken by any of the persons or courts authorized by law to arrest and imprison offenders. Bail, by sufficient sureties, may be admitted upon all arrests in criminal cases where the punishment may be death, unless the proof is evident or the presumption great ; but it shall be taken only by the Supreme Court or a circuit court, or by a justice or judge thereof, who shall exercise their discretion therein, having regard to the nature and circumstances of the offense, and of the evidence and to the usages of law; if the case has been tried by jury, and the jury have disagreed on their verdict, then the above presumption is removed, and the defendant shall thereupon be entitled to bail, unless it shall appear to the court or judge thereof, b)r due proof, that such disagreement was occasioned by the misconduct of the jury.\\\" Rev. Code Cr. Proc. \\u00a7 585, 586. According to this legislation, where the offense is not punishable by death, the accused is entitled to bail as a matter of right, which may be taken by any of the persons or courts authorized by law to arrest and imprison offenders; where the offense is punishable by death, and the proof is evident or presumption great, the taking- of bail is forbidden; but where the offense is punishable by death, and the proof is not evident or presumption great, it may be taken by the supreme or circuit court, or by a judge of either as a matter of discretion. All of these provisions except the last are in harmony with the organic law. Where the offense is punishable by death, and the proof is not evident or presumption great, the accused clearly is entitled to bail as a matter of right; but it can be taken or ordered only by the circuit or supreme court, or by a judge thereof. Such is the case at bar. The accused is charged with murder. If the proof is evident or presumption great her admission to bail is forbidden. If the proof is not evident or the presumption great she is entitled to bail as a matter of right.\\nWhat, then, constitutes evident proof, or great presumption, within the meaning of the constitutional guaranty? These phrases are extremely difficult to define; their application to the facts of any particular case, not less difficult. This is disclosed by the numerous adjudications on the subject. 5 Cyc. 64. It would, therefore, be unwise to attempt the statement of a general rule applic able to all cases. Webster defines the word \\\"evident\\\" thus: \\\"Clear to the vision; especially, clear to the understanding, and satisfactory to the judgment.\\\" Its synonyms are: \\\"Manifest; plain; clear; obvious; visible; apparent; conclusive; indubitable; palpable; notorious.\\\" \\\"A defendant in a criminal action is presumed to be innocent until the contrary is proved.\\\" Rev. Code Cr. Proc. \\u00a7 356. The sole purpose of restraint before conviction is to secure the presence of the accused for trial. To grant bail is the rule; to refuse it, the exception. Any one who relies upon an exception should show that his case falls fairly within such exception. Has the state done so in this instance? We think not. Any extended presentation or discussion of the evidence introduced before the committing magistrate (none was offered b)'r the accused) upon which this application is based, in advance of a trial of the cause upon the merits, would be manifestly improper. It has all received careful consideration.\\nTo our minds the proof of the crime charged is not so plain and palpable as to warrant us in denjdng the defendant's application. She should be admitted to bail in such sum as is just and reasonable in view of all the circumstances.\\nEUERER, P. J., having been absent, has taken no part in this decision.\"}"
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+"{\"id\": \"9012163\", \"name\": \"Kathleen M. THOMPSON, As Personal Representative of the Estate of Terry L. Thompson, Plaintiff and Appellee, v. Larry MEHLHAFF d/b/a Mehlhaff Construction and d/b/a Mehlhaff Trucking, Defendant and Appellant\", \"name_abbreviation\": \"Thompson v. Mehlhaff\", \"decision_date\": \"2005-06-08\", \"docket_number\": \"Nos. 23229, 23230\", \"first_page\": \"512\", \"last_page\": \"526\", \"citations\": \"698 N.W.2d 512\", \"volume\": \"698\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T19:32:24.485716+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 48.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.\", \"parties\": \"Kathleen M. THOMPSON, As Personal Representative of the Estate of Terry L. Thompson, Plaintiff and Appellee, v. Larry MEHLHAFF d/b/a Mehlhaff Construction and d/b/a Mehlhaff Trucking, Defendant and Appellant.\", \"head_matter\": \"2005 SD 69\\nKathleen M. THOMPSON, As Personal Representative of the Estate of Terry L. Thompson, Plaintiff and Appellee, v. Larry MEHLHAFF d/b/a Mehlhaff Construction and d/b/a Mehlhaff Trucking, Defendant and Appellant.\\nNos. 23229, 23230.\\nSupreme Court of South Dakota.\\nArgued Jan. 12, 2005.\\nDecided June 8, 2005.\\nRehearing Denied July 13, 2005.\\nJack Theeler and Douglas M. Dailey of Morgan, Theeler, Wheeler, Cogley & Petersen, Mitchell, South Dakota, Attorneys for plaintiff and appellee.\\nGary P. Thimsen and Jennifer L. Woll-man of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellant.\", \"word_count\": \"6518\", \"char_count\": \"40295\", \"text\": \"GORS, Circuit Judge.\\n[\\u00b6 1.] Terry Thompson's wife, Kathleen, on behalf of his estate (Thompson), sued Mehlhaff Trucking (Mehlhaff) for the wrongful death of her husband following a two-truck collision. The jury found Thompson to be contributorily negligent more than slight and entered a zero damage award. The trial court granted Thompson's motion for judgment notwithstanding the verdict on the jury's finding of contributory negligence more than slight but let the verdict stand on Mehl-haff s liability and ordered a new trial on damages only. Mehlhaff appeals and Thompson has filed a notice of review. We affirm.\\nFACTS\\n[\\u00b6 2.] Spencer Quarries was paving a road with asphalt near Greenwood, South Dakota, in Charles Mix County. Spencer Quarries was using its trucks and employees and hired additional trucks and drivers from Mehlhaff to haul hot mix to the lay-down machine. The loaded trucks drove on the \\\"cold\\\" side of the road to avoid damage to the newly laid asphalt on the \\\"hot\\\" side of the road. The empty trucks returned on the freshly paved \\\"hot\\\" side of the road. As a result, at the time of the collision, trucks were driving on the left-hand or \\\"wrong\\\" side of the road instead of the usual right-hand or \\\"correct\\\" side of the road. To protect the freshly laid asphalt, the trucks were driving like they were in England instead of South Dakota.\\n[\\u00b6 3.] On June 16, 2000, Thompson, who was employed by Spencer Quarries, collided with Stanley Baltzer, an employee of Mehlhaff. Thompson was driving on the \\\"hot\\\" side of the road in the left-hand lane (where he was supposed to be). Balt-zer swerved sharply to the right as he went around a curve in the road and the collision occurred in Thompson's lane. The closing speed of the trucks was more than 100 miles per hour. Together the trucks' total weight was 128,000 pounds. Both Thompson and Baltzer were killed in the collision.\\n[\\u00b6 4.] Thompson's estate received worker's compensation benefits as a result of his death from his employer, Spencer Quarries. Baltzer's estate also collected worker's compensation benefits from his employer, Mehlhaff. Thompson then sued Mehlhaff asserting vicarious liability for the wrongful death of her husband caused by Mehlhaff s employee, Baltzer. Prior to trial, Mehlhaff moved for summary judgment claiming that Thompson was limited to the exclusive remedy of worker's compensation. The trial court denied summary judgment and allowed Thompson's suit against Mehlhaff to proceed.\\n[\\u00b6 5.] The case was tried January 20-22, 2004. The jury returned a zero verdict against Thompson and in favor of Mehl-haff. In answers to special interrogatories, the jury found Baltzer was negligent and also found that Thompson was contrib-utorily negligent more than slight. The trial court entered judgment in favor of Mehlhaff based on the jury's verdict.\\n[\\u00b6 6.] Thompson moved for judgment notwithstanding the verdict and for a new trial. The trial court granted Thompson's motion and entered a judgment for Thompson on liability based on the jury's finding that Baltzer was negligent. The trial court further granted a judgment notwithstanding the verdict on the jury's finding that Thompson was contributorily negligent. In doing so, the court concluded that it should have granted Thompson's motion for directed verdict on contributory negligence at the end of the trial because there was insufficient evidence for the jury to find contributory negligence more than slight. Finally, having granted a judgment notwithstanding the verdict for Thompson on liability, the trial court granted a new trial on damages. Mehlhaff appeals and Thompson raises one issue by notice of review.\\nANALYSIS\\nISSUE ONE\\n[\\u00b6 7.] Whether worker's compensation was Thompson's exclusive remedy.\\nSTANDARD OF REVIEW\\n[\\u00b6 8.] For the purpose of the summary judgment motion, both sides agreed that the material facts were not in dispute. Therefore, the exclusive remedy issue was strictly a question of law. Construction of worker's compensation statutes and their application to the facts is a question of law. Faircloth v. Raven Industries, Inc., 2000 SD 158, \\u00b6 4, 620 N.W.2d 198, 200. \\\"Questions of law are reviewed de novo without deference to the trial court.\\\" Olson-Roti v. Kilcoin, 2002 SD 131, \\u00b6 18, 653 N.W.2d 254, 258; City of Colton v. Schwebach, 1997 SD 4, \\u00b6 8, 557 N.W.2d 769, 771 (citing Jasper v. Smith, 540 N.W.2d 399, 401 (S.D.1995)).\\nDISCUSSION\\n[\\u00b6 9.] Spencer Quarries was the general contractor on the Greenwood project and Mehlhaff was a subcontractor. Thompson was a truck driver for Spencer Quarries. When Thompson was killed on the job, his wife, as the personal representative of his estate, received worker's compensation benefits for the death of her husband from Spencer Quarries. When Thompson's estate sued Mehlhaff for negligence, Mehlhaff moved for summary judgment and argued that the estate's claim should be dismissed because the worker's compensation benefits that were received from Spencer Quarries were Thompson's exclusive remedy. The trial court denied the motion.\\n[\\u00b6 10.] This case presents a question of first impression in South Dakota. Mehlhaff urges this Court to adopt the minority rule that worker's compensation is the sole remedy of an employee of a general contractor who is injured by the negligence of an employee of a subcontractor. However, for the reasons stated below, we decline to do so and instead adopt the majority rule that an employee of a general contractor may collect worker's compensation from the general contractor and also sue a negligent subcontractor or a subcontractor for the negligence of an employee of the subcontractor.\\n[\\u00b6 11.] The purpose of the South Dakota Worker's Compensation Act is to provide an injured employee with an expeditious remedy independent of fault and to limit the liability of employers and fellow employees. Harn v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D.1993). There is an inherent trade-off in the worker's compensation scheme. The employee is guaranteed compensation if injured on the job but the employer's liability is limited in exchange for this certainty. The quid pro quo is liability for immunity. Therefore, \\\"[w]orker's compensation is the exclusive remedy for all on-the-job injuries to workers except those injuries intentionally inflicted by the employer.\\\" Id. at 95.\\n[\\u00b6 12.] SDCL 62-3-2 provides that an employee's rights under the worker's compensation law for death or injury arising out of employment are exclusive as to both the employer and fellow employees. That statute provides:\\nThe rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer, or director of such employer, except rights and remedies arising from intentional tort.\\nSDCL 62-3-2 (emphasis added). Therefore, the employee cannot sue the employer or fellow employees except for intentional torts. Id. However, an injured employee can sue a third party for negligence subject to the employer's right to subrogation for the worker's compensation paid to the employee. SDCL 62-4-38. That statute provides:\\nIf an injury for which compensation is payable under this title has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at the employee's option, either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person. However, in the event the injured employee recovers any like damages from such other person, the recovered damages shall be an offset against any worker's compensation which the employee would otherwise have been entitled to receive.\\nId. (emphasis added). For example, if Thompson had been killed by a third party, such as a member of the motoring public unrelated to the construction project, Thompson's estate could collect worker's compensation and sue the third party for negligence. If Thompson's estate obtained a judgment from the third party, the estate would then have to repay the worker's compensation benefits to Spencer Quarries from that judgment.\\n[\\u00b6 13.] Here, Thompson's estate sued the subcontractor, Mehlhaff, for vicarious liability as a result of Baltzer's negligence. Mehlhaff asserts Thompson could not sue under 62-3-2 because Baltzer was a fellow employee. While it is correct that Thompson could not sue Baltzer if he were a fellow employee, Baltzer worked for Mehl-haff, not Spencer Quarries. Therefore, Baltzer was not a fellow employee. Consequently, SDCL 62-3-2 did not preclude Thompson from suing Mehlhaff.\\n[\\u00b6 14.] Mehlhaff also urges the adoption of a common employment theory to preclude this tort action. Mehlhaff argues that even if Thompson and Baltzer were not technically both employed by Spencer Quarries, as a practical matter they were both doing the same thing on the same job. For that proposition Mehlhaff relies upon a 1936 Massachusetts case, Dresser v. New Hampshire Structural Steel Co., 296 Mass. 97, 101, 4 N.E.2d 1012, 1013-14 (1936), wherein the court held:\\n[T]he plaintiff and the defendant's employer and every other workman on the job, regardless of his position, were engaged in a common employment and had the benefits of the Workmen's Compen sation Act. All the employers on the job, including the defendant, had insured under the act, and thereby provided for all employees the benefit of the act. By so doing, they became protected from a liability to pay damages to workmen and employees injured while with the scope of their common employment.\\nHowever, Massachusetts abolished \\\"common employment immunity\\\" by statute in 1972. MassGenL, ch 152, \\u00a7 15 (2003).\\n[\\u00b6 15.] Nevertheless, Mehlhaff asserts this Court should adopt the position of those minority jurisdictions that recognize the common employment doctrine. For example, in Haynes v. James H. Carr, Inc., 427 F.2d 700, 702 (4thCir.1970), the common employment theory was applied where a subcontractor was performing part of the same trade, business or occupation as the general contractor. The test applied there was whether the subcontractor was doing the same work that the general contractor was doing on the job site and whether the general contractor could have done the work if it had not elected to hire the subcontractor. Id. In Kast v. PPG Industries, Inc., 664 F.Supp. 237, 240 (W.D.Va.1987), an employee of a general contractor was also precluded from suing a subcontractor for negligence based on this theory. Similarly, in Alvis v. Bill Jackson Rig Co., Inc., 636 P.2d 910, 912 (Okla.App.1981), a general contractor's employee who was injured by a subcontractor could not sue because he was in the same employment as the subcontractors. As previously mentioned, these cases represent the minority rule.\\n[\\u00b6 16.] The majority rule is that the liability for benefits only runs up the ladder, not down. 6 Larson, Worker's Compensation Law, \\u00a7 111.04[l][e] (2004) and [2] (2002). Baltzer could collect worker's compensation from Mehlhaff but, if Mehl-haff did not pay, Baltzer could also collect worker's compensation from Spencer Quarries. Since Spencer Quarries would be liable for Baltzer's worker's compensation if Mehlhaff did not pay, Spencer Quarries would be immune from suit by Baltzer for negligence. See Metzger v. J.F. Brunken & Son, Inc., 84 S.D. 168, 172, 169 N.W.2d 261, 263-64 (1969). The general contractor receives immunity because the general contractor is the back-up provider of worker's compensation coverage. 6 Larson, Worker's Compensation Law, \\u00a7 111.04[l][b] 111-27 (2004). The opposite is not true.\\nWhen the positions are reversed, and an employee of the general contractor, or the general contractor as subrogee, sues the subcontractor in negligence, the great majority of jurisdictions have held that the subcontractor is a third party amenable to suit. The reason for the difference in result is forthright: the general contractor has a statutory liability to the subcontractor's employee, actual or potential, while the subcontractor has no comparable statutory liability to the general contractor's employee.\\n6 Larson, Worker's Compensation Law, \\u00a7 111.04[2] (2002). Thompson could not collect worker's compensation from Mehl-haff if Spencer Quarries did not pay. Mehlhaff was not an insurer of Spencer Quarries' employees even though Spencer Quarries was an insurer of Mehlhaff s employees.\\n[\\u00b6 17.] The quid pro quo for the employer's assumption of liability for worker's compensation is immunity from suit by the employee. Spencer Quarries was liable for and paid worker's compensation benefits for Thompson and therefore is entitled to immunity. Mehlhaff was not liable for and did not pay worker's compensation benefits for Thompson and therefore is not entitled to the quid pro quo of immunity from suit by Thompson. When Thompson took a job with Spencer Quarries, he waived his right to sue Spencer Quarries in return for a sure thing on liability. Thompson did not go to work for Mehlhaff and did not waive his right to sue Mehlhaff. Mehlhaff had no worker's compensation obligation to Thompson. As a result there was no quid pro quo between Thompson and Mehlhaff. Therefore, Mehlhaff was not an employer of Thompson under SDCL 62-3-10 entitled to immunity because Mehlhaff had no duty to provide compensation for Thompson.\\n[\\u00b6 18.] As the final argument in support of the common employment theory, Mehlhaff contends that Spencer Quarries was the \\\"statutory employer\\\" of Baltzer because it was also liable for worker's compensation insurance and benefits for Baltzer under SDCL 62-3-10. That statute provides:\\nA principal, intermediate, or subcontractor shall he liable for compensation to any employee injured while in the employ of any one of his subcontractors and engaged upon the subject matter of the contract, to the same extent as the immediate employer. Any principal, intermediate, or subcontractor who shall pay compensation under the provisions of this section may recover the amount paid from any person, who, independently of this section, would have been liable to pay compensation to the injured employee. Every claim for compensation under this section shall in the first instance be presented to and instituted against the immediate employer, but such proceeding shall not constitute a waiver of the employee's rights to recover compensation under this title from the principal or intermediate contractor, but the collection of full compensation from one employer shall bar recovery by the employee against any others, and he shall not collect from all a total compensation in excess of the amount for which any of such contractors is liable. This section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management, (emphasis added).\\nMehlhaff claims entitlement to the same immunity enjoyed by Spencer Quarries under SDCL 62-3-10. The statute provides that the employee shall not collect total worker's compensation in excess of the employee's total damages. However, this argument fails to appreciate that SDCL 62-3-10 does not provide that Thompson could not sue Mehlhaff; the statute only provides that Baltzer could not collect from Spencer Quarries if paid in full by Mehlhaff.\\n[\\u00b6 19.] Mehlhaff is not entitled to immunity and may be sued by Thompson. We hold that a general contractor who is liable for worker's compensation benefits is entitled to immunity but a subcontractor who is not liable for the benefits is not entitled to such immunity. Therefore, the worker's compensation benefits, which Thompson's estate received from Spencer Quarries, were not its exclusive remedy and Thompson's estate could sue Mehlhaff for Baltzer's negligence.\\nISSUE TWO\\n[\\u00b620.] Whether the trial court erred in excluding Mehlhaff s expert witness.\\nSTANDARD OF REVIEW\\n[\\u00b6 21.] Admission of expert testimony is within the broad discretion of the trial court. Schrader v. Tjarks, 522 N.W.2d 205, 209 (S.D.1994); Stormo v. Strong, 469 N.W.2d 816, 820 (S.D.1991). \\\"A trial court's evidentiary rulings are presumed to be correct and will not be re versed unless there is a clear abuse of discretion.\\\" Stormo, 469 N.W.2d at 820. In addition to showing an abuse of discretion, Mehlhaff must show that the excluded evidence might and probably would have resulted in a different verdict. Schrader, 522 N.W.2d at 209-10. Finally, the proponent of excluded evidence must also attempt to offe6r the excluded evidence at trial and make an offer of proof. Joseph v. Kerkvliet, 2002 SD 39, \\u00b6 7, 642 N.W.2d 533, 535 (quoting State v. Norville, 23 S.W.3d 673, 685 (Mo.Ct.App.2000)).\\nDISCUSSION\\n[\\u00b6 22.] On January 30, 2003, a year before the trial, the trial court set a date for the disclosure of expert witnesses as February 17, 2003, for Thompson and March 17, 2003, for Mehlhaff. Thompson disclosed experts on February 14, 2003, before the deadline. Mehlhaff did not disclose any experts by the March 17, 2003, deadline. Seven months after the deadline, Mehlhaff had not yet disclosed any experts. On October 17, 2003, Thompson filed a motion in limine to prohibit Mehl-haff from presenting any expert witness testimony. Finally, three weeks after the motion, and nearly eight months after the deadline had passed, Mehlhaff disclosed Thomas Alcorn as an accident reconstruction expert and moved for an extension of the deadline and a continuance of the trial set for January 20, 2004. The trial court denied the motion without a hearing.\\n[\\u00b6 23.] Alcorn was not allowed to testify at trial. After the close of Thompson's case, Mehlhaff made an offer of proof submitting Alcorn's report to establish what Alcorn's testimony would have been. The offer of proof was denied.\\n[\\u00b6 24.] Alcorn's report included the following in his \\\"Discussion:\\\"\\nThis analysis has also taken into consideration the actions of the drivers in this accident. Instructions given to the truck drivers indicate that the loaded trucks were to drive on the old section of roadway and empty trucks on the new section of roadway. At the time of the accident the Mehlhaff truck [driven by Baltzer] was loaded and traveling west on the old section of roadway in the eastbound lane apparently as he had been instructed. Analysis of the evidence indicates the Spencer Quarries truck [driven by Thompson] was traveling east in the eastbound lane and not in accordance with the instructions given by the contractor. He was traveling on the cured or old mat and not on the new mat. It should be noted that Mr. Dirks report indicates that the driver of the Spencer Quarries truck [Thompson] was the contractor's employee that instructed other drivers where to drive. In that case, the Spencer Quarries driver [Thompson] was in the wrong lane at the time of the accident. Failure on the part of the driver of the Spencer Quarries truck [Thompson] and trailer to drive in the opposing lane as the drivers had been instructed is a cause of this accident. The driver of the Mehlhaff truck [Baltzer] and trailer was following instructions that had been given at the time of the accident. Once he was able to determine that the Spencer Quarries truck [Thompson] and trailer were in his lane he attempted to avoid to the right. The Mehlhaff truck driver [Baltzer] did not contribute to the cause of this accident. (emphasis added).\\nAlcorn concluded that Thompson caused the accident, not Baltzer. Good stuff for the defense. In fact, it would have been the only evidence of contributory negligence. However, it was not allowed into evidence based on the untimely disclosure.\\n[\\u00b6 25.] Mehlhaff argues that exclusion of the testimony should have been the \\\"last resort\\\" sanction for failure to timely disclose the witness. Schrader; 522 N.W.2d at 210. Mehlhaff relies upon a four-part test from Verzwyvelt v. St. Paul Fire & Marine Ins. Co., 204 F.R.D. 309, 311 (W.D.La.2001), for determining whether to exclude a witness for untimely disclosure. First, the court should examine the party's explanation for failure to comply with the scheduling order. Id. Second, the court should determine the prejudice to the opposing party. Id. Third, the court should consider the possibility of curing the prejudice by granting a continuance. Id. Fourth, the court should take into account the importance of the witness' testimony. Id. However, even considering these factors the trial court did not abuse its discretion.\\n[\\u00b6 26.] First, the only explanation offered by Mehlhaff for failure to disclose Alcorn in a timely manner was that by agreement both parties continued other discovery past the deadlines. Moreover, the record shows that Mehlhaff did not contact Alcorn until March 23, 2003, after the disclosure deadline. Then, despite written discovery requests asking for the identity of expert witnesses and the identity of persons investigating or reconstructing the collision, Mehlhaff waited until November 7, 2003, to disclose the expert it had retained seven months earlier. Mehl-haff also failed to supplement its discovery as required by the rules of discovery.\\n[\\u00b6 27.] Second, in this case, Thompson would have been prejudiced by allowing Alcorn's late disclosure. Late disclosure would have required a continuance for additional discovery by Thompson and possible retention of additional experts.\\n[\\u00b6 28.] Third, granting a continuance would not have solved the prejudice to Thompson. Despite a scheduling order requirement that any additional motions be filed by October 17, 2003, Mehlhaff did not file the motion for extension of disclosure and continuance by the deadline. Even when Thompson moved in limine to exclude any expert testimony, Mehlhaff did not disclose Alcorn until November 7, 2003, and did not move to extend the deadline to disclose until November 11, 2003, almost a month after the deadline for filing pre-trial motions. Everything Mehlhaff did in respect to Alcorn's testimony was dilatory. No other efforts appeared to faze Mehlhaff. The trial court did not err in determining exclusion was the only way to remedy the prejudice.\\n[\\u00b6 29.] Fourth, Alcorn's testimony was not important enough to allow despite the violation of the disclosure deadline. Mehl-haff must show that Alcorn's testimony would have made a difference in the jury's finding. Schrader, 522 N.W.2d at 209-10. Thompson points out that the jury did find in Mehlhaff s favor so Alcorn's testimony would not have made a difference. While Thompson is correct, the argument begs the question because the trial court set aside the jury's verdict. The real question is whether the proffered evidence would have made a difference to the trial court which set aside the jury's finding of contributory negligence.\\n[\\u00b6 30.] Alcorn's report was not based on personal knowledge. Alcorn's facts were taken solely from the State of South Dakota Investigator's Motor Vehicle Accident Report, the South Dakota Highway Patrol Case Report and the Lewis L. Dirk Accident Reconstruction Report-Witness Information. Each of these reports concluded that Thompson and Baltzer were in their proper lanes of travel (i.e., the \\\"wrong\\\" side of the road) prior to the collision and that Baltzer crossed over into Thompson's lane where the collision oc curred. Inexplicably, Alcorn then concluded that Baltzer and Thompson were both traveling in the same lane and that Thompson was in the incorrect lane and that Thompson caused the accident by being in the incorrect lane. Where does this come from? There was no basis for this conclusion anywhere in the reports that Alcorn considered. Alcorn simply manufactured the conclusion out of whole cloth. Saying it is so does not make it so. Al-corn reached his conclusion based on a misinterpretation or misstatement of the evidence he considered. Therefore, it would have been misleading and should not have been admitted. If it had been admitted, cross-examination by Thompson would undoubtedly have exposed Alcorn's error. Therefore, there was no harm to Mehlhaff. There was no abuse of discretion when the trial court refused the offer of proof and no abuse of discretion in the trial court's refusal to extend the deadline to allow disclosure of Alcorn as a witness or to continue the trial.\\nISSUE THREE\\n[\\u00b6 31.] Whether the trial court erred in excluding evidence of Spencer Quarries negligence.\\nSTANDARD OF REVIEW\\n[\\u00b6 32.] Evidentiary rulings are reviewed under the abuse of discretion standard. Zepp v. Hofmann, 444 N.W.2d 28, 31 (S.D.1989). Rulings are presumed to be correct unless there is a clear abuse of discretion. Id.\\nDISCUSSION\\n[\\u00b6 33.] Thompson filed a motion in li-mine to prevent Mehlhaff from introducing evidence that Spencer Quarries was also negligent. Mehlhaff resisted, claiming that if the jury returned a verdict for Thompson, the jury should be allowed to apportion liability between Spencer Quarries and Mehlhaff if it found them both to be negligent. Under the exclusive remedy provision of the worker's compensation law found in SDCL 62-3-2, Spencer Quarries could not be held liable for Thompson's injury. However, Mehlhaff argued that the jury could still apportion liability between Spencer Quarries and Mehlhaff. Any apportioned liability against Spencer Quarries would reduce Mehlhaffs proportionate share of any award.\\n[\\u00b6 34.] The trial court ruled that the jury would not be allowed to consider any claimed negligence by Spencer Quarries for apportionment. However, the trial court did allow Mehlhaff to introduce Spencer Quarries' \\\"rules of the road\\\" for the Greenwood construction project.\\n[\\u00b6 35.] Mehlhaff argued that Spencer Quarries was partly responsible for the collision because Spencer Quarries' \\\"rules of the road\\\" for the project required trucks to drive on the wrong side of the road, confusing the drivers and contributing to the collision. Mehlhaff s request for apportionment was based on comparative negligence and supported by cases from several other jurisdictions with comparative negligence statutes. Significantly, Mehlhaff did not claim Spencer Quarries' alleged negligence was the sole proximate cause of the accident.\\n[\\u00b6 36.] Mehlhaffs position has previously been rejected by this Court in Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, \\u00b6 5, 641 N.W.2d 112, 120-21. In that case this Court adopted a Nebraska rule that precludes the employer, who could not be held liable because worker's compensation is the exclusive remedy, to be interjected into the case unless it was claimed that the employer's negligence was the sole proximate cause of the employee's injury. Id. Since Mehlhaff sought to apportion liability with Spencer Quarries, and did not claim that Spencer Quarries was entirely responsible for the collision, the trial court's ruling was correct and not an abuse of discretion.\\nISSUE FOUR\\n[\\u00b6 37.] Whether the trial court erred in granting the judgment notwithstanding the verdict on the issue of contributory negligence and ordering a new trial on the issue of damages.\\nSTANDARD OF REVIEW\\n[\\u00b638.] The standard of review on a motion for directed verdict and judgment notwithstanding the verdict is set forth in Roth v. Farner-Bocken, 2003 SD 80, \\u00b6 8, 667 N.W.2d 651, 658-59:\\nA motion for directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court's decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse. A motion for judgment n.o.v. is based on and relates back to a directed verdict motion made at the close of all the evidence. SDCL 15 \\u2014 6\\u201450(b). Thus, the grounds asserted in support of the directed verdict motion are brought before the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, then without weighing the evidence [we] must decide if there is evidence which would have supported or did support a verdictf.]\\nIn Fechner v. Case, 2003 SD 37, \\u00b6 6, 660 N.W.2d 631, 633-34, this Court stated:\\nRulings on motions for judgment notwithstanding verdict are reviewed under the abuse of discretion standard. Bland v. Davison County, 1997 SD 92, \\u00b6 26, 566 N.W.2d 452, 460. Evidence and inferences most favorable to the non-moving party are examined to determine whether there is substantial evidence to support the jury's judgment. Robinson v. Mudlin, 273 N.W.2d 753, 755 (S.D.1979). Conflicting evidence is not reweighed; witness credibility is not reassessed. The moving party's evidence is only given consideration if it is uncontra-dicted or tends to amplify, clarify or explain evidence which supports the verdict. Dartt v. Berghorst, 484 N.W.2d 891, 895 (S.D.1992); Nugent v. Quam, 82 S.D. 583, 589, 152 N.W.2d 371, 374 (1967).\\nThe standard of review on a motion for new trial is also set forth in Roth, 2003 SD 80, \\u00b6 9, 667 N.W.2d at 659:\\nWhether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court's decision absent a clear showing of abuse of discretion. If the trial court finds an injustice has been done by the jury's verdict, the remedy lies in granting a new trial. We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.\\nId., (citing Biegler v. American Family Mut. Ins. Co., 2001 SD 13, 1117, 621 N.W.2d 592, 598).\\nDISCUSSION\\n[\\u00b6 39.] At the close of the evidence, the trial court, although skeptical, allowed the question of contributory negligence to go to the jury. The jury was given instructions on negligence and contributory negligence. The jury found against Thompson returning a zero verdict and found in a special interrogatory that \\\"Terry L. Thompson [was] contributorily negligent more than slight.\\\" The trial court entered a judgment in favor of Mehlhaff based on the jury's verdict. Thompson moved for a judgment notwithstanding the verdict and for a new tidal. The trial court granted Thompson's motion and entered judgment for Thompson and against Mehlhaff for liability based on the jury's finding that Baltzer was negligent. The trial court also granted a judgment notwithstanding the verdict on the jury's finding that Thompson was contributorily negligent. The court concluded that it should have granted Thompson's motion for directed verdict on contributory negligence at the end of the trial because there was insufficient evidence for the jury to find contributory negligence. Finally, having granted judgment notwithstanding the verdict for Thompson on liability, the trial court granted a new trial on damages.\\n[\\u00b6 40.] Questions of negligence and contributory negligence are almost always questions for the jury. Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 903 (S.D.1994). When an action sounds in negligence, contributory negligence is available to temper the defendant's liability. Gehrts v. Batteen, 2001 SD 10, \\u00b6 7, 620 N.W.2d 775, 778. As long as there is competent evidence to support the theory of contributory negligence, it is proper for the issue to go to the jury. Parker, 2002 SD 29, \\u00b6 5, 641 N.W.2d at 115. The threshold for granting a directed verdict is that no reasonable jury could find contributory negligence.\\n[\\u00b6 41.] In support of the jury's verdict of contributory negligence more than slight, Mehlhaff submitted the following, which is viewed in the light most favorable to the verdict:\\n(1) it was general knowledge that drivers would try to stay off the hot side of the road whether they were empty or full;\\n(2) empty trailers can damage the hot side too;\\n(3) a foreman told a driver to use common sense so he always drove on the cold side whether empty or full;\\n(4) driver Baumiller testified that trucks would run empty on the cold side to stay off the new mat whenever possible;\\n(5) empty trucks driving on the cold side would use citizen's band radio communications to tell loaded trucks that they would get over to the hot side and out of the way;\\n(6) Baumiller said empty trucks drove on the cold side even after the collision that killed Baltzer and Thompson;\\n(7) driver Carr said it was common knowledge for empty trucks to travel on the cold side;\\n(8) an independent operator Magstadt had heard of other drivers getting chewed out for driving empty on the hot side;\\n(9) Waldera admitted that it was possible that drivers with empty trailers did not always drive on the hot side of the road\\n(10) Trooper Hanson testified that one reason Baltzer braked hard could have been an oncoming vehicle in his lane of travel;\\n(11) Michael Selves indicated it would be a normal reaction for a driver to swerve into the other lane to avoid something in his direct lane of travel\\n(12) investigator Lofgren could not dispute that Baltzer's skid marks began in the cold lane and show that he braked and steered into the hot lane;\\n(13) Thompson did not brake or attempt any evasive maneuvers to avoid the collision while Baltzer left 90 feet of skid marks\\n\\\"A claim that the evidence was insufficient to establish contributory negligence is viewed 'in the light most favorable to upholding the verdict.' \\\" Johnson v. Armfield, 2003 SD 134, \\u00b6 7, 672 N.W.2d 478, 481 (citing Parker, 2002 SD 29, \\u00b6 5, 641 N.W.2d at 115).\\n[\\u00b6 42.] Mehlhaffs \\\"evidence\\\" of contributory negligence is built on speculation and innuendo. Several witnesses testified that drivers sometimes returned empty on the cold side of the road instead of on the hot side in violation of the \\\"rules of the road\\\" for the project. However, no one testified that Thompson was on the cold side of the road at or near the time of the collision or that he had ever returned empty on the cold side. Additionally, there was no physical evidence that Thompson was on the cold side prior to the collision and everybody agreed that he was on the hot side of the road at the time of the collision. Speculation that Thompson \\\"might have been\\\" on the cold side did not meet the threshold necessary to create a question of fact for the jury on contributory negligence.\\n[\\u00b6 43.] We agree with the trial court that Thompson's motion for a directed verdict on contributory negligence should have been granted at the end of the evidence. Therefore, it was not an abuse of discretion to grant the motion for judgment notwithstanding the verdict. Since there was ample evidence for the jury to find Mehlhaff negligent, it was also not an abuse of discretion to allow the verdict against Mehlhaff to stand. All that was left was to set a new trial on damages.\\n[\\u00b6 44.] Mehlhaff further complains that the trial court erroneously instructed the jury that Thompson was entitled to a presumption of due care:\\nInstruction No. 18\\nIt is the established law of this state that in the absence of any evidence as to the conduct of a person who died of injuries received in an accident, there is the presumption that he, acting on the instinct of self-preservation, was in the exercise of ordinary care. The Court rules that this presumption is applicable only to the conduct of Terry Thompson. Stanley Baltzer is not entitled to the presumption.\\nIn Theunissen v. Brisky, 438 N.W.2d 221, 224 (S.D.1989), this Court said \\\"[t]his is a presumption, in the absence of evidence to the contrary, that a person killed in an auto accident was exercising due care for his protection at, and immediately before, the accident.\\\" Olesen v. Snyder, 277 N.W.2d 729, 735 (S.D.1979); Dehnert v. Garrett Feed Company, 84 S.D. 233, 236, 169 N.W.2d 719, 721 (1969); Vaughn v. Payne, 75 S.D. 292, 63 N.W.2d 798 (1954). \\\"This presumption is based on the natural instinct of self-preservation and the normal disposition to avoid self-destruction or personal harm.\\\" Id. Since we have concluded that the trial court was correct in granting the motion for judgment notwithstanding the verdict because there was insufficient evidence of contributory negligence, this instruction was properly given over Mehl-haff s objection that it was not supported by the evidence.\\nISSUE FIVE\\n[\\u00b6 45.] Whether the trial court erred in allowing Spencer Quarries' \\\"rules of the road\\\" to be introduced into evidence.\\n[\\u00b6 46.] The trial court ruled that Mehl-haff could introduce Spencer Quarries' \\\"rules of the road\\\" for the Greenwood construction project. Thompson noticed this ruling for review. However, it is not necessary to reach Thompson's notice of review issue in view of our decision affirming the trial court's order granting a judgment notwithstanding the verdict and order for new trial on damages.\\n[\\u00b6 47.] The trial court is affirmed.\\n[\\u00b6 48.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.\\n[\\u00b6 49.] GORS, Circuit Judge, for SABERS, Justice, disqualified.\\n. Baltzer's estate collected worker's compensation benefits for the death of Baltzer from his employer Mehlhaff.\\n.Alcorn's summary of the State of South Dakota Investigator's Motor Vehicle Accident Report contained the following: \\\"A 1987 Freightliner tractor [Baltzer] and trailer was traveling west on 310th Street in the eastbound lane. A 1991 Peterbilt tractor [Thompson] and trailer was traveling east on 310th Street in the westbound lane.... As the 1987 Freightliner tractor [Baltzer] and trailer entered a curve on 310th Street[, t]he driver steered towards the north and crossed over the centerline.\\\"\\nAlcorn's summary of the South Dakota Highway Patrol Case Report contained the following: \\\"Mr. Baltzer was traveling west on 310th Street in the eastbound lane. Mr. Thompson was traveling east on 310th Street in the westbound lane. Mr. Baltzer had crossed over the centerline and struck Mr. Thompson.\\\"\\nAlcorn's summary of the Lewis L. Dirk Accident Reconstruction Report-Witness Information contained the following: \\\"[A]ll drivers were driving on the wrong side of the road the day of the collision.\\\"\\n. In re Crumling, 214 F. 503, 504 (D.Pa.1914).\\n. Thompson noticed this ruling for review as set forth in Issue Five.\\n. Page 31 of Mehlhaffs brief contains the following: \\\"Because there was evidence that Spencer Quarries' actions or inactions in overseeing and managing the project were a contributing cause, traffic control regulations adopted in the contract were relevant under SDCL 19-12-1 in considering and allocating proportionate degrees of fault between the parties.\\\" (emphasis added).\\n. The only testimony that Thompson was on the cold side of the road was from Merle Vaughn who saw Thompson on the cold side when he turned around after dumping his load at the lay-down machine. Thompson had to drive on the cold side to go around the lay-down machine which was on the hot side of the road laying asphalt. By contrast, Marlin Magstadt testified that he was the last person to see Thompson just before the collision. Thompson was returning empty on the hot side of the road.\"}"
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+"{\"id\": \"919944\", \"name\": \"Hall v. Harris\", \"name_abbreviation\": \"Hall v. Harris\", \"decision_date\": \"1890-10-13\", \"docket_number\": \"\", \"first_page\": \"279\", \"last_page\": \"290\", \"citations\": \"1 S.D. 279\", \"volume\": \"1\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-11T00:20:28.660382+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the judges concurring.\", \"parties\": \"Hall v. Harris.\", \"head_matter\": \"Hall v. Harris.\\n1. On the trial of this action, brought by the defendant in an attachment suit for the value of property claimed by such party as additional exemptions, under the statute, against the sheriff, while such property was held by him under his warrant of attachment, and under an order of the court made on a motion to discharge the attachment, denying the same on the ground, among others, that the debt for which the attachment was issued was incurred for property obtained under false pretenses, said order was admitted in evidence as a bar to the action. Held, that the court committed no error in so admitting said order, and holding it a bar to the action.\\n2. Further held, that the words in the notice of intention to move for a new trial, that the same would be \\u201cmade on the minutes of the court and a \\u2022 bill of exceptions,\\u201d did not render said notice uncertain, and that the court committed no error in refusing to dismiss the motion upon that ground.\\n(Syllabus by the Court.\\nArgued April 29, 1890.\\nOpinion filed Oct. 13, 1890.)\\nAppeal from district court, Hughes county. Hon. James Spencer, Judge.\\nAction against the sheriff of Hughes county, South Dakota, for conversion of certain personal property. Verdict and judgment for defendant. Plaintiff appeals.\\nAffirmed.\\nThe facts are fully stated in the opinion.\\nCharles H. Burke (Walter C. Fawcett, of counsel,) for appellant.\\nThe notice of intention to move for a new trial is jurisdictional. It must inform the adverse party whether the motion 'for a new trial will be made upon a statement of the case, or a bill of exceptions or the minutes of the court. A notice of intention that the motion will be made npon a statement of the case the minutes of the court and a bill of exceptions is not sufficient. . Bear River Go. v. Boles, 24 Cal. 354; Coney v. Silverthorn, 9 Cal. 67; Calderwood v. Brooks, 28 Cal. 151. An order denying a motion for the vacation of an attachment is no bar to an action for damages caused by the attachment. The doctrine of res judicata applies only to judgments rendered in an action and not to mere decisions on summary applications or interlocutory proceedings. Upon the question of additional exemptions appellant had a right to a trial by jury and to hold that the determination of the motion to vacate was a bar to this action would be to deprive him of this right. Bennett v. Denney, 33 Minn. 530; Bennett v. Denney, 128 U, S. 498; Van Renselaer v. Sheriff, 1 Cow. 443; Simson v. Hart, 14 Johns 74; Wilcox v. Hawley, 34 N. Y. 658; Wilson v. Ellis, 30 Pa. 264; Baldwin v. Talbot, 4 N. W. 547; Bates v. Callender, 3 Dak. 257; Tasker v. Sheldon, 7'At. 762; Parsons v. Bedford, 3 Pet. 435.\\nCraiuford & 'Be Land, for respondent!\\nThe respondent\\u2019s notice of intention to move for a new trial was sufficient. Heinlen v. Heilbrun, 12 Pac. 673; Hart v. Kimball, 13 Pac. 852; Garner v. Gillen, 20 Pac. 654. An order denying a motion to dissolve an attachment is a bar to an action for damages arising from the attachment. The doctrine of res judicata applies. Howell v. Kingsbury, 15 Wis. 272; McCullough v. Clark, 41 Cal. 298; Dwight v. St. John, 25 N. Y. 203; Bank v. Upham, 14 Wis. 796; Culvers v. Hitchcock, 19 Wis. 342; Freeman on Judg., \\u00a7 325; Pellarsells v. Allen, 10 N. W. 261; Commissioners v. Lucas, 93 U. S. 113; Wells on Res Judicata, 56, 58, 363, 365; Demorest v. Day, 32 N. Y. 290; Supervisors v. Briggs, 2 Den. 33.\", \"word_count\": \"4369\", \"char_count\": \"24818\", \"text\": \"Corson, P. J.\\nThis is an action brought by the plaintiff against the defendant, as sheriff of Hughes county, to recover the value of certain personal property, alleged to have been wrongfully taken and converted by the. defendant, claimed by plaintiff as exempt property under the provisions of the stat ute providing for additional exemptions.. The defendant justified his taking and detention of the property under and by virtue of a warrant of attachment issued out of the district court of said Hughes county, in an action wherein William E. Sawyer et al. are plaintiffs, and James Hall (the plaintiff herein) is defendant; and also under and by virtue of a decision and order of the district court made in said action denying defendant's motion to discharge the said attachment. A trial was had in the district court, resulting in a verdict and judgment for the plaintiff. On motion, a new trial was granted in the court below, and a second trial had, resulting in a verdict and judgment for defendant; and from this judgment the plaintiff appeals to this court, for a review, not only of the errors in law alleged to have occurred on the second trial, but a review also of the order granting a new trial.\\nThe action of Sawyer et al. v. Hall, which we shall hereafter designate as the \\\"attachment suit,\\\" was commenced- on the 7th day of September, 1886, and the property in controversy in this action was seized under the warrant of attachment issued in that action about the 9th of that month. One of the grounds for the attachment set forth in the affidavit for the same was that the debt on which the attachment suit was brought was incurred for property obtained under false pretenses, and this allegation in the affidavit was recited, in the warrant of attachment, as one of the grounds un which the warrant was issued. Hall, through his agent, took the proper-proceedings to obtain out of the property attached his additional exemptions, under the statute, bat the sheriff refused, either to have the property appraised or to deliver it up. Hall thereupon gave notice of a motion to discharge the attachment, wdiich was heard by the court and denied, but with leave to renew the motion. Subsequently, in October, 1886, a new motion to vacate, discharge, and dissolve the attachment was given, and the second ground on which the motion was based, as stated therein, was as follows: '-That each and every allegation contained in said affidavit, except the allegation of indebtedness therein contained, are false. \\\" On this motion, a hear ing was had before the court, in which a large mass of evidence, in the form of documentary evidence and affidavits, was presented by the respective parties, and the court, after a full consideration of the motion, decided it against the defendant Hall, and on December 10, 1886, made an order in which, after various recitals, is the following: \\\"It is hereby ordered and adjudged that said motion be, and the same is hereby, denied, and said attachment is hereby sustained on the grounds, first, that the defendant has assigned and disposed of his property with intent to defraud his creditors; and on the further ground that the debt herein sued on was incurred for property obtained under false pretenses.\\\" Subsequently, to the above-mentioned hearing and order, the plaintiff herein (Hall) again demanded an appraisement, and the setting apart of his additional exemptions, which being refused by the sheriff, he commenced this action, before the issuance of an execution in the attachment suit, and while the sheriff still held the property under his warrant of attachment. On the first trial of this action the court refused to admit in evidence the order of the court of December 10th, a part of which is above given, denying the motion to d'scharge the attachment; and this refusal was the ground mainly relied on in the motion for a new trial, and the ground upon which the new trial was granted. On the second trial the court not only admitted this order in evidence, but held it conclusive of the fact that the debt, on which the warrant of attachment was issued, was incurred for property obtained under false pretenses, and a bar to plaintiff's action, and directed the jury to render a verdict for the defendant.\\nSection 5139, Comp. Laws, in relation to exemptions, is as follows: \\\"No exemptions, except the absolute exemptions, shall be allowed any person against an execution or other process issued upon a debt incurred for property obtained under false pretenses.\\\" The assignment of errors .is as follows: ' 'First. The court below erred in entertaining and in refusing to dismiss defendant's motion for a new trial, inasmuch as the defendant's notice of intention to make said motion failed to specify whether the same would be made upon the minutes of the court, a bill of exceptions, or a statement of the case. Second. The court below erred in allowing defendant's motion for a new trial, inasmuch as the same was allowed upon the ground of error of law occurring at the trial of said action, and excepted to by the party moving for a new trial; and no such error appears from the record. Third. T:ie court below erred in allowing defendant's motion for a new trial, on the ground that there was error of law by the court below in excluding the order made by the Hon. Louis K. Church, J., on the 10th day of December, 1886, sustaining the attachment proceedings under which the defendant seized the property in controversy, the court below having correctly decided in excluding said order. Fourth. The court below erred upon the second trial of this action in admitting as evidence the order mentioned in the last assignment. Fifth. The court below erred upon the second trial of said action in holding that the order mentioned in the last two assignments was a conclusive bar to this action, and upon this ground in directing the jury to find a verdict for the defendant. Sixth. That the judgment of the court below should have been for the plaintiff, and against the defendant, according to the law of the land.\\\"\\nOn the hearing in the court below of the motion for a new trial, the appellant moved to dismiss the motion, upon the ground that, in the notice of intention to move for a new trial, the moving party specified that the motion would be based ' 'upon the minutes of the court, and upon a bill of exceptions to be thereafter settled in the case,\\\" which motion to dismiss was denied. The learned counsel for appellant contend that such a motion was insufficient, and that the moving party must specify whether the motion will be based upon the minutes of the court, or a bill of exceptions, or a statement, and that a conjunctive statement left the appellant in as much doubt as would a disjunctive one. Section 5090, Comp. Laws, provides that \\\"the party intending to move for a new trial must, within twenty days, serve upon the adverse party a notice of his intention, designating the statutory grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the minutes of the court, or bill of exceptions, or a statement of the case.\\\" The learned counsel for the respondent contend that only the first clause relating to the time within which the notice must be given is mandatory, and that the latter clause is directory only, and that the notice given was, in form, a substantial compliance with the statute. We think the counsel are correct. The appellant had full notice that all the statutory methods of proceeding to obtain a new trial would be relied on, and when respondent elected which of the two methods he would pursue, such an election was an abandonment of the other method specified in his notice. We fail to see. how the appellant could in any manner be prejudiced by such notice and election under it. It frequently happens, as in this case, that the notice is given before the bill of exceptions or statement is settled, and the moving party may be uncertain whether or not the bill of exceptions or statement can be settled before the motion for a new trial can be heard. If it cannot, for any reason, be settled before the motion is heard, he may be compelled to rely upon the minutes of the court. If settled, he would, naturally, rely upon his statement, or bill of exceptions, on the hearing. This question, under a similar if not a statute identical with our own, was before the supreme court of California, in Hart v. Kimball, 72 Cal. 284, 13 Pac. Rep. 852, in which the court says: \\\"The respondent contends that the appeal from the order first mentioned should not be considered, for the reason, as he alleges, that the notice of motion for a new trial specified that such motion would be made, not only upon the minutes of the court, but also upon a bill of exceptions and a statement of the case, and that, therefore, the statement upon which the motion was heard by the trial court should have been disregarded, since the moving party-relied upon that method of procedure, and did not file any affidavits or use the minutes of the court. We do rot concur in this view of the law, for the respondent had full notice that all the statutory methods of procedure to obtain a new trial would be adopted by the appellants; and, when they elected which of such methods they would pursue, such election was their privi lege, and did not prejudice, in any way, the rights of the respondent, the other methods being thereby abandoned.\\\" The same question was also before the supreme court of Montana in a late case, also under a similar statute (Gamer v. Glenn, 20 Pac. Rep. 654,) in which the court says: ' 'Particular stress is laid upon the use of the words, 'option of the moving party, ' and the disjunctive word, 'or,' connecting the several grounds upon which the motion may be made. We do not think this construction tenable. While the appellant may select any one ground given by the statute, and rely upon it alone, he certainly is not precluded from relying upon two or more, or all of them, if, in his judgment, the necessities of his case require it. And if he sees fit to rely upon one ground, and abandon the others, when he comes to file his motion for a new trial, he can then elect to do so. To notify the respondent that he intends to rely on all of them cannot prejudice his rights in any manner that we can see. If he w ere to put his notice in the alternative, and thus leave it uncertain which of the grounds he relied on, this would be objectionable.\\\" We are of the opinion, therefore, that the court committed no error in denying appellant's motion.\\nThis brings us to a consideration of the main question in this case, and that is whether or not the court erred in granting the new trial, and in holding on the second trial that the order of December 10th was admissible in evidence, and a bar to this suit. All the assignments of error on this branch of the case will be considered together, as they really present but the one question. It is earnestly contended by the learned counsel for the appellant that such an order and decision of the district court, made upon a motion to discharge the attachment, cannot be a bar to this action, because upon the question of plaintiff's additional exemptions, under the law, he had the constitutional right of a jury trial, and that the effect* of the decision of the district court in this case would be to deprive him of that right; and, further, that it is only judgments rendered in an action that can have the effect of res adjudicata, and be pleaded in bar to an action. While the appellant would, un doubtedly, have bad the right to a jury trial in case he had sought his remedy in a different proceeding, and at the proper time, he could waive his right, either in an action commenced in the proper court or by a proceeding in which he seeks to have an adjudication by the court of the question, without the intervention of a jury. Such, we think, was the case here. Appellant made his motion to vacate the attachment proceedings before the court, and on that motion presented, and had determined, the question, as to whether or not the debt for which the attachment was issued \\\"was incurred for property obtained under false pretenses,\\\" and the court, having heard all the evidence adduced by the respective parties, and the arguments of counsel, determined that question against the appellant, the defendant in that action. The motion and hearing by the court for the discharge of the attachment was a proceeding authorized by the statute, and the determination of the motion was an adjudication by the court of a matter within its jurisdiction where the duty of hearing and d\\u00e9ciding the questions presented by the motion was by law imposed upon the court. By Section 5011, Comp. Laws', it is px-ovided that, \\\"in all cases, the defendant may move to discharge the attachment; if the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proof in addition to the affidavit on which the attachment was granted, and ixx such case the defendant may sustain the motion by affidavits or other proof in rebuttal of the affidavits or other proof offered and submitted on the part of the plaintiff to approve the motion.\\\" It will thus be seen that a full and thox-ough investigation of the facts is px-ovided for on the hearing of the motion. Affidavits, documentary and oral evidence, may be given on either side. In addition to a full hearing in the court below, an appeal to this court is provided for. In Bank v. Carroll, 44 N. W. Rep. 723, this court held that an order discharging , continuing, refusing, or modifying an attachment is appealable, and that arx appeal may be taken from such axi order before judgment upon the main issue in u the ox-iginal cause of action. In that case, the court, speaking through Mr. Justice Bennett, says: \\\"The primary object of the act was to give the right of appeal from all orders granting, refusing, continuing, or modifying a provisional remedy, or setting aside or dismissing a writ of attachment for irregularity. The words 'granting,' 'refusing,' continuing,' or 'modifying,' taken collectively, may embrace, and without doubt were intended to cover, all the proceedings that might be instituted in any provisional remedy; that is, anything which pertains to the granting of an attachment, it being a provisional remedy, or the refusing to grant it, or to any proceeding or order which after its issuance continued its life or existence, or that in any way modified or discharged it.\\\" The decision of the court, then, on that motion, being made upon a full hearing of the motion, and from which an appeal could have been taken, had the appellant so desired, should we think, be held conclusive of the matters adjudicated, upon all parties in that action, at least during its pendency.\\nWhat could have been the object the law-makers had in view in specifically providing for this motion to discharge the attachment, if the decision of the motion when made was not to be regarded as an adj udication of the matters submitted to the court, upon the motion? This court had occasion to consider the effect of an appealable order in the case of Weber v. Tschetter, 1 S. D. 205, in which the court, speaking through Mr. Justice Kellam, says: \\\"We think that where an issue of fact is distinctly and formally presented to the court for determination, as a means of fixing the legal rights of the parties, the supporting evidence of both sides duly considered, and from which determination either party may appeal, the decision of the court upon such issue ought to be held conclusive and final, without regard to the form in which such issue is presented, whether by action or motion, the important matter being that the issue be well defined, so as to preclude doubt as to what question was before the court; that it be fully heard and litigated, each side having an opportunity to be heard; and that the court should judicially pass upon and decide it. This being done, the determination as to the facts and rights involved should be final. In Wilson Co. v. McIntosh, (Kan.) 1 Pac. Rep. 572, the court (Brewer, J.) says: \\\"We think there is a growing disposition to enlarge the scope of the doctrine of res adjudicata, and to place more regard on the substance of the decision than on the form of the proceedings. One thing which indicates this is the increased facility of review in the appellate courts. Now, that the decision of a motion can be preserved in a separate record, and taken up by itself, presupposes a full and careful consideration in both the trial and appellate courts; and, when that is had, it w ould seem that the question thus separately and carefully considered should be finally disposed of, and not be thrown back for further litigation at the mere caprice of either party.' In Mabry v. Henry, 83 N. C. 298, it is said: 'The principle of res adjudicata, does not extend to ordinary motions incidental to the progress of a cause, but it does apply to decisions affecting a substantia] right subject to review in an appellate court.' In Dwight v. St. John, 25 N. Y. 203, the order of the court denying a motion to cancel a judgment entered by confession, being appealable as affecting substantial right, was held conclusive between the parties as to all matters actually involved and tried. 'The reasons assigned for investing courts with a discretionary power in rehearing matters decided upon motion, are applicable only to those proceedings from which no redress can be obtained by aj peal.' Freem. Judgm. \\u00a7 325,'' McCullough v. Clark, 41 Cal. 298.\\nIn this case, at the time the action was commenced, the defendant, as sheriff, was holding this property, not only under his warrant of attachment by which he was informed that this property was not exempt, because the debt had been incurred for property obtained under false pretenses, but under the order and decision of the court, uut of which his writ had issued, adjudicating that such was the fact. If an officer cannot be protected under such circumstances there must be a defect in the law; for, being advised both by his warrant of attachment and the decision and order of the court that the property could not be claimed as exempt property, he certainly could not have proceeded to have it appraised or deliver it up to the defend\\\"ant. We think the law is not chargeable with such injustice, and must hold that, in this case, the order of the court protected him. What effect we would give the order had the plaintiff waited until an execution had been issued in the attachment suit and had claimed his exemptions under the execution, we do not here decide, leaving that question to be determined when it properly arises. The case of Bennett v. Denny, decided by the supreme court of Minnesota, (33 Minn. 530, 24 N. W. Rep. 193) and by the supreme court of the United States on writ of error, (128 U. S. 498, 9 Sup. Ct. Rep. 134), is confidently relied on by the learned counsel for appellant, as sustaining the appellant's view in this case. We think, however, that on a careful examination of that case, it will be found that it is materially different from the case at bar, and that the principle upon which it was decided has no application to this case. That was a case where a United States marshal had levied upon property under a writ of attachment issued out' of the United States circuit court. The property was claimed by an assignee, under an assignment made under the state laws of Minnesota. In deciding the motion, Justice Nelson, of the United State district court, says: \\\"It is by virtue of this seizure that the marshal holds the property. On this statement of the facts, I shall not decide on this motion' who has the better title and right to the possession of the property taken. The writ of attachment properly issued in this suit against the debtor, and if the marshal has seized the property which belonged to Bennett, he is certainly liable in an action of trespass for the damages thereby sustained.\\\" The question, therefore, of the right of the assignee to the property, as between himself and the marshal, was not adjudicated, and the court did not intend to pass upon or determine that question, but intended to do as it did do \\u2014leave it to be adjudicated in the proper suit between the marshal and assignee. In the case at bar the court does determine and adjudicate the rights of the party to the exemption by de termining that the debt for which tho property was hold, was incurred for property obtained under false pretenses, which, as we have seen by Section 5139, Comp. Laws, precludes a party from claiming additional exemptions under the statute. The order of the court would be a bar to any new motion to discharge the attachment, and must be equally a bar to a suit brought against the officer while he still holds the property under his warrant of attachment, which the court had refused to discharge, because the property was not exempt property. We are of the opinion, therefore, that the court committed no error in granting the new trial or in holding the order of December 10th a bar to this action. The judgment must therefore be affirmed, and it is so ordered.\\nAll the judges concurring.\"}"
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+"{\"id\": \"921008\", \"name\": \"Stone v. Chicago, M. & St. P. Ry. Co.\", \"name_abbreviation\": \"Stone v. Chicago, M. & St. P. Ry. Co.\", \"decision_date\": \"1892-10-15\", \"docket_number\": \"\", \"first_page\": \"330\", \"last_page\": \"338\", \"citations\": \"3 S.D. 330\", \"volume\": \"3\", \"reporter\": \"South Dakota Reports\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T22:35:12.329783+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the judges concur.\", \"parties\": \"Stone v. Chicago, M. & St. P. Ry. Co.\", \"head_matter\": \"Stone v. Chicago, M. & St. P. Ry. Co.\\n1. To entitle a party to a continuance of a cause, on account of the absence of witnesses, the affidavit to support the application must show that the evidence of the witness will be material; that due diligence has been exercised in the endeavor to procure it; and must contain an assurance of the probable attendance of the witnesses, or procurement of their testimony, at the time proposed.\\n2. In an action of conversion, even if the defendant be guilty, he has the right to show that the plaintiff has not been damnified by the act of conversion, or that his damages were merely nominal.\\nS. The owner of property that has been converted by another can only recover as compensation an amount in damages commensurate with his actual loss, and any facts which, if established by proof, will go towards a mitigation of damages, are competent evidence on the trial.\\n(Syllabus by the Court.\\nOpinion filed Oct. 15, 1892.)\\nAppeal from circuit court, Turner county. Hon. D. Haney, Judge.\\nAction of trover to recover the value of certain personal property. Plaintiff had judgment. Defendant appeals.\\nBeversed.\\nThe facts are stated in the opinion.\\nWinsor & Kittredge, for appellant.\\nNovation is a substitution of a new obligation for an existing one. Section 3487, Comp. Laws; Guichard v. Brand, 15 N. W. 764; Glover v. Dowagiae, 12 N. W. 867. In a suit for conversion, if plaintiffs have received their damages or the amount of their interest in the property from any person connected with the transaction they can only recover their actual loss. Jelletts v. Bailroad, 15 N. W. 237; Squire v. Hollenbeck, 9 Pick. 551; Chamberlain v. Shaw, 18 Pick. 283; Pierce v. Benjamin, 14 Pick. 361; Kaley v. Shed, 10 Met. 319; Bates v. Courtwright, 36 HI. 518; Ball v. Liney, 48 N. Y. 6; 1 Wood\\u2019s C. C. 131.\\nL. B. French, for respondent.\\nA continuance is properly r\\u00e9fused where there is no showing of diligence. Clerk v. Dekker, 23 Pac. 956; Bailroad v. Styron, 1 S. W. 161; Blair v. Bailroad, Id. 352; Salmon v. Norton, 11 Pac. 108; Davis v. Bead, 11 S. W. 558; City v. Dykman, 17 N. E. 587; Bow-land v. Shephard, 43 N. W. 344; Northwestern Aid v. Prune, 16 N. E. 98. An affidavit for a continuance must show that the witness is a material one and that his deposition eould not be obtained. Grounds v. Ingram, 12 S. W. 1118.\\nThe defendant having delivered the property to- third persons without any order from the owner is liable for the full value of the property. Bedfield, Carrier, \\u00a7 318; Crane v. Binby, 10 Gray, 88; August v. Paper, 1 Gray, 621; Brown v. Haynes, 52 Me. 578; McMichael v. Morton, 13 Pa. 215; Sedg. Dam. 482. Any delivery of freight not in accordance with the terms of the bill of lading is a conversion. Bailroad v. Stern, 12 Atl. 756; Bank v. Bailroad, 7 N. E. 126; Dows v. Bank, 91 N. S. 618; View v. Steamship, 50 N. Y. 24; Bank v. Jones, 4 N. Y. 497; Freeman v. Railroad, 106 N. Y. 579; Wernway v. Railroad, 117 Pa. St. 46; Altman v. Railroad, 115 Mass. 233;Newcomb v. Railroad Id., 230; Bank v. Crocker, 111 Mass. 164; Forbes v. Railroad, 9 A. & E. R. R. 61; Wacker v. Railroad, Id. 251. It is not necessary to show a demand and refusal in order to maintain action, where there has been a conversation by wrong delivery. Boyce v. Brockway, 31 N. Y. 493; Claften v. Railroad, 7 Allen, 345.\", \"word_count\": \"3222\", \"char_count\": \"18027\", \"text\": \"Bennett, P. J.\\nOctober 24, 1884, one D. A. Temple shipped from Freeman, territory of Dakota, a carload of cattle by the Chicago, Milwaukee & St. Paul Railway, consigned to D. A. Temple, St. Paul, Minn., care of Pierce Bros., Minnesota Transfer. A bill of lading was given by the railroad company, in which said D. A. Temple was named as consignee, to order of George W. Stone & Co., of Parker, Dak. This bill of lading was delivered by the railroad company to George W. Stone & Co., who drew a draft for $563 on Pierce Bros., to whose care the cattle were shipped, attached the bill of lading to it, and forwarded it by mail for collection to the First National Bank of St. Paul. The draft was returned protested for nonpayment. In the meantime the railroad company delivered the cattle to Pierce Bros, without the consent or order of George W. Stone & Co., who held the bill of lading. Subsequently the firm of George W. Stone & Co. was dissolved, and the bill of lading was duly transferred to George W. Stone, who brought this action of conversion against the railroad company to recover the value of the cattle. In defense to this action the railroad company alleges \\u2014 First, that said Pierce Bros, paid said George W. Stone & Co. in full for said cattle; second, that D. A. Temple shipped at about the same time two carloads of sheep and this carload of cattle, and drew drafts on the same for $570 and $563, respectively; that said drafts represented, respectively, the value of the sheep and the cattle; that said drafts were presented to Pierce Bros., who paid one of said drafts, and received the cattle therefor, and refused to pay the other, because, as alleged, the sheep had been condemned as scabby, and that they were returned to George W. Stone & Co.\\nThe issue thus made was called for .trial on the 17th dav of September, 1890. The defendant then applied for a continuance, based upon the affidavit of one of defendant's attorneys, on the ground of the absence of material witnesses. This motion was overruled by the court, and this order is assigned as one of the errors in the trial. To properly consider the assignment, it will be necessary to substantially set out the contents of the affidavit upon which the jnotion was made. The \\u00bfffidavit states: \\\"That Frank Pierce and his brother, of the city of St. Paul, Minn., and J. P. Temple, of Morristown, Minn., are necessary and material witnesses for defendant, and that without their testimony defendant cannot safely proceed to trial. That the said Frank Pierce and-Pierce will swear that about the 23d day of October, 1884, one D. A. Temple shipped two carloads of sheep over defendant's railroad from Freeman, D. T., to Minnesota Transfer, Minn., to them, and drew draft against said shipment, payable to order of G. W. Stone & Co., for either $570.00 or $450.00 (affiant does not know which,) on said Pierce Bros. That on the 26th dav of October, 1884, the said Temple shipped the cattle in question in this suit from said Freeman to said Pierce Bros., and drew a draft to the order of G. W. Stone & Co. for $563.00 on Pierce Bros. That the two shipments arrived at Minnesota Transfer together, and that Pierce Bros, paid the draft against the sheep shipment, but, before paying the draft against the cattle, were notified by the inspector at Minnesota Transfer that the sheep were scabby. That-they then refused to pay the cattle draft, and applied the amount of draft already paid against the cattle. That D. A. Temple was then in charge of both shipments, and that he took charge of the sheep they refused to receive. That George W. Stone, or George W. Stone & Co., have never made any claim against them, or brought any suit or proceedings in reference to said cattle. That J. P. Temple will swear that within a day or two after that, about the 1st of November, D. A. Temple brought two carloads of sheep from Minnesota Transfer to him at Morristown, Minn., -and took receipt from him in the name of George W. Stone & Co., and that George W. Stone continually wrote to him about said sheep, as appears by letters, copies of which are hereto attached, and that all of said letters were received by Mm by due course of mail, postmarked at Parker, D. T., and that many of them were replies to letters written by Mm to George W. Stone & Co., at that place. Affiant further says that quite a wMle since, and affiant thinks in the winter of 1889 and 1890, Mr. Kennedy, who was plaintiff's attorney, and himself, had a conversation in which it was agreed that they would go to St. Paul, and take the depositions of these witnesses; that before the time agreed upon, Mr. Kennedy informed deponent he could not then go; that deponent served notice of taking depositions afterwards on him, but, before the time set, he informed deponent he could not go then, and asked him to let it go until some \\\"convenient time; that during the month of June, 1890, and at Sioux Falls, Mr. Kenn\\u00e9dy and the deponent had another conversation, in which Mr. Kennedy informed deponent (as deponent thinks he had done before) that he was going to- step out of the case, and that he would have other attorneys take his place, and it was then and there understood and agreed that no further steps should be taken in the case until other attorneys should be brought in; that the first notice affiant ever had of any other attorney being in the case was on Saturday, the 7th day of September, when Ms law partner, Mr. Kittredge, returned from Parker, when he was informed that Mr. French was in the case, and that plaintiff expected to try it. Then, on the opening of court last Tuesday, he, affiant, informed the court and Mr. French that, unless 'an agreement in reference to testimony could be made, he could not try the case this term. That afterwards, and on the same day, in Mr. Tboilman's office, he had a conversation with Mr. French to the same effect, and he and Mr. French said they thought drey could agree, but have been unable so to do. That D. A. Temple, from what affiant now learns for the first time, will be a necessary and material witness, and will swear that the sheep turned over to J. P. Temple by him for Stone & Co. are the same sheep against which the draft above referred (to) was drawn. That his present whereabouts is unknown to affiant, but he can find it out from his brother, J. P. Temple. That if said cause is continued, affiant will have either the personal attendance or the depositions of all' of said witnesses at the next term of this court. Affiant further states that, for nearly, if not quite, two months prior to the term of this court, Mr. Kennedy was absent from the state, and affiant could not have served notices of talcing depositions if he had desired. Affiant further states that he sent a written stipulation in reference to the matters referred to before in his affidavit, to E. C. Kennedy, at Parker, some tinje in the fall of 1889, and that he wrote said Kennedy about taking said depositions, or stipulating in reference to them; that said Kennedy replied that he thought they would do so when he could consult Mr. Stone, but has never done anything further in regard to it, and deponent has waited to hear from him; that said proposed stipulation and deponent's letter are in writing, and in plaintiff's possession.\\\"\\nIt has been very conclusively settled that to entitle a party to a continuance of a cause, when duly called for trial, on account of the absence of witnesses, the affidavit to support the application must state: (1) That the evidence of such witnesses will relate to the merits of the case, and is material. Oil Works v. Brown, 7 Abb. Pr. (N. S.) 382; People v. Vermilyea, 7 Cow. 369; Sellars v. Kelly, 45 Miss. 323; Bank v. Chester, 55 Cal. 49; Green v. King, 17 Fla. 452; Hubbard v. State, 7 Ind. 160; Steele v. People, 45 Ill. 153. (2) That due diligence has already been exercised in the endeavor to procure it. Conner v. Sampson, 22 Tex. 20; State v. Underwood, 76 Mo. 630; Wolcott v. Mack, 53 Ind. 269; Lillienthal v. Anderson, 1 Idaho, 673; Moon v. Helfer, 25 Kan. 139; Ingalls v. Noble, 14 Neb. 272, 15 N. W. Rep. 351. (3) An assurance of the probable presence of the witnesses, or that their testimony can be procured, at the time proposed. Brown v. Moran, 65 How. Pr. 349; Deming v. Patterson, 10 Ind. 251; State v. Tilghman, 6 Iowa, 496; Polin v. State, 14 Neb. 540, 16 N. W. Rep. 898; Lee v. Quirk, 20 Ill. 392.\\nAs to the materiality of the testimony of the absent witnesses. The affidavit states specifically what is expected to be proved by the witnesses, the Temples and Pierce Bros. That Pierce Bros, will swear that D. A. Temple shipped two carloads of sheep to them October 24, 1884, and drew a draft on said Pierce Bros, against said shipment, payable to the order of George W. Stone & Co. for either $570 or $450. That on the 26th of October, 1884, D. A. Temple shipped the cattle in controversy to Pierce Bros., and drew a draft for $563, payable to the order of George W. Stone & Co. on Pierce Bros., both of these shipments arriving on the same day. That Pierce Bros, paid the draft against the sheep shipment, but, before paying the draft against the cattle shipment, they were notified by the inspector that the sheep were scabby. They then refused to pay the cattle draft, but applied the amount of the draft already paid against the sheep shipment in payment of the cattle, and refused to receive the sheep, which were taken charge of by D. A. Temple the agent of the plaintiff. The affidavit further states that Pierce Bros, will swear that George W. Stone & Co. have never made any claim against them for nonpayment of the protested draft. The affidavit further states that J. P. Temple will swear that D. A. Temple brought two carloads of sheep to him from Minnesota Transfer, (at Morristown, and took a receipt from him in the name of George W. Stone & Co., and that George W. Stone continuously wrote to him about said sheep, and claimed and exercised ownership over them. The complaint is one in trover, based upon the alleged wrongful turning over of a carload of cattle to a party who was not the consignee, and who did not hold the order for them from the consignee. The answer alleges that the plaintiff has been paid in full for the cattle. It also alleges the same facts as set up in the affidavit in relation to the shipment of cattle and sheep; of the payment of the sheep draft; of the condemnation of the sheep; of the return of the sheep to D. A. Temple as the agent of George W. Stone & Co.; of the application of the money paid on the sheep draft to the payment of the cattle draft. If these alleged facts were true, and could have been proven by these witnesses, They became material in the trial of the issues raised by the pleadings. Even if the defendant was guilty of conversion, yet it had the right to show that the plaintiff had not been damnified by the act of conversion, or that his damages were merely nominal. The owner of property that has been converted by another can only recover as compensation an amount in damages commensurate with his actual loss; and any facts which, if established by proof, will go towards a mitigation of damages, are competent evidence in a trial of an action of trover or conversion. Cook v. Loomis, 26 Conn. 483; Chamberlin v. Shaw, 18 Pick. 278; Brewster v. Silliman, 38 N. Y. 423; Reynolds v. Shuler, 5 Cow. 323. Thus the fact that plaintiff did receive a large sum of money in payment of the cattle draft, and received in return the sheep, which were declared to be unsalable by competent authority, and that he exercised ownership and control over them after such reception, was ail competent evidence, at least in mitigation of damages that might have resulted by the act of conversion, if any there was, by the defendant.\\nThe evidence of the absent witnesses being material, do the facts alleged in the affidavit show that due diligence had been exercised in obtaining the witnesses? The record shows that the case has been pending for several years; that E. C. Kennedy, Esq., was llie attorney for the plaintiff in bringing the suit; that some time during the winter of 1889 or 1890, the attorneys for plaintiff and defendant had a conversation in which it was agreed that they would go to St. Paul, where these witnesses resided, and take their depositions; that at the time agreed upon, Mr. Kennedy, the attorney for plaintiff, could not go; that notice was afterwards served upon him that depositions would be taken; that the attorney for plaintiff again came to the attorney for defendant, saying he could not go at the time specified in the notice, and asking that the matter be deferred until June, 1890. At that time the attorneys had a further conversation about the matter, and the attorney for the plaintiff said he was going to step out of the case, and that other attorneys would take his place, and it was then agreed between them that no further steps should be taken until another attorney should be substituted. No notice of substitution was ever served upon, or any other notice given, the \\u00e1ttorney for the defendant, until Saturday, the 7th day of September, \\u2014 about three days before the case was called. At that time the defendant informed the court and the attorney for the plaintiff that he could not try the case at that term of court unless an agreement as to some of the facts could be entered into. No agreement was effected. We think, under the circumstances as detailed, due diligence has been exercised by the defendant in procuring the evidence desired, and that further and ample time should have been given it to procure the witnesses or their testimony. The affidavit also shows that the witnesses, or their depositions, could have been procured at the time designated, had a continuance been granted We are willing to concede that the propriety of continuing a cause rests very largely in the discretion of the trial court, and that its judgment should not be reversed, either continuing or refusing to continue a cause, unless it very clearly appears that the court's discretion has been erroneously exercised; but in the case at bar we think all the circumstances surrounding it, its long continuance on the calendar, the change of attorneys, and other matters appearing in the record, demand that the defendant should have the benefit of the doubt, and time to obtain and produce all the evidence it may have by way of defense. We therefore hold that the court below \\u2022erred in overruling the defendant's motion for a continuance, and the judgment is reversed and set aside, and the cause remanded for a new trial.\\nAll the judges concur.\"}"
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+"{\"id\": \"9405693\", \"name\": \"William O'TOOLE and Elisabeth O'Toole, Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE SOUTH DAKOTA RETIREMENT SYSTEM, Defendant and Appellee\", \"name_abbreviation\": \"O'Toole v. Board of Trustees\", \"decision_date\": \"2002-07-02\", \"docket_number\": \"No. 22016\", \"first_page\": \"342\", \"last_page\": \"349\", \"citations\": \"648 N.W.2d 342\", \"volume\": \"648\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T20:32:52.144108+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 20.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.\", \"parties\": \"William O\\u2019TOOLE and Elisabeth O\\u2019Toole, Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE SOUTH DAKOTA RETIREMENT SYSTEM, Defendant and Appellee.\", \"head_matter\": \"2002 SD 77\\nWilliam O\\u2019TOOLE and Elisabeth O\\u2019Toole, Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE SOUTH DAKOTA RETIREMENT SYSTEM, Defendant and Appellee.\\nNo. 22016.\\nSupreme Court of South Dakota.\\nArgued Jan. 10, 2002.\\nDecided July 2, 2002.\\nSheila S. Woodward of Johnson, Heide-priem, Miner, Marlow and Janklow, Yank-ton, South Dakota, Attorneys for plaintiffs and appellants.\\nMark Barnett, Attorney General, Wade A. Hubbard, Assistant Attorney General, Pierre, South Dakota, Attorneys for defendant and appellee.\", \"word_count\": \"3084\", \"char_count\": \"18759\", \"text\": \"LOVRIEN, Circuit Judge.\\n[\\u00b6 1.] William and Elisabeth O'Toole (O'Tooles) appeal the circuit court's judgment affirming the South Dakota Retirement System Board of Trustee's (Board) determination that O'Tooles were not entitled to an additional refund for the employer contributions made on their behalf. We affirm.\\nFACTS\\n[\\u00b62.] Elisabeth and William O'Toole were employed with state government until November 1 and August 23, 1996 (respectively). After leaving the state's payroll each had five years to apply for a refund of the contributions they made to the South Dakota Retirement System (System). Each applied for a refund on November 18, 1997 and each was issued a refund on November 26,1997.\\n[\\u00b6 3.] On December 5, 1997, Board decided to seek legislative approval of a change to the portability of its retirement benefits. This proposed change would allow vested members to withdraw both their own and their employer's contributions to System. To meet what it considered its fiduciary duty, Board immediately began to notify all interested persons and members that they should wait to remove benefits until the possible changes were approved or rejected.\\n[\\u00b6 4.] During the 1998 Legislative Session, the legislature approved and the governor signed the bills that granted the change in the portability of benefits. The changes went into effect on July 1, 1998. In addition to allowing the change in portability benefits, the legislature also specifically provided that no member or former member of the system, who had withdrawn contributions from the system before July 1, 1998, could receive any additional refund. SDCL 3-12-77.4\\n[\\u00b6 5.] Approximately eight months later, on March 9, 1999, O'Tooles contacted System to request a refund of employer contributions. The system administrator refused the request. A hearing was held before the Board of Trustees on April 13, 2000. Board affirmed the administrator's decision and O'Tooles filed an appeal with the circuit court. The circuit court affirmed Board's decision.\\n[\\u00b6 6.] The argument raised by O'Tooles before the administrator, the Board, and the circuit court was that they were entitled to an additional refund from System based on a claim that Board breached its fiduciary duty to them. O'Tooles argued that when they applied for their refund, Board was considering asking the legislature to approve a statute to allow an employee to withdraw contributions made by both the employee and employer. O'Tooles claim that Board had a fiduciary duty to disclose this to them but failed to do so. O'Tooles claim that had they been informed by Board of this possible statutory change, they would have waited to withdraw their contribution and would have received an additional $14,000, representing the contributions made on their, behalf by their state employers.\\n[\\u00b67.] On appeal, O'Tooles argue that the circuit court erred in applying a \\\"clearly erroneous\\\" standard to Board's findings and that Board breached its fiduciary duty in failing to provide information about a potential change in plan benefits to O'Tooles. Board argues that there is no remedy available for the O'Tooles as there is no provision in state law to make the payment requested by O'Tooles.\\n[\\u00b6 8.] On close review of the record, we conclude the issue before us is essentially jurisdictional. Under the facts of this case, did the Board have the authority, and thus jurisdiction, to give a refund to O'Tooles based on their claim of breach of fiduciary duty? We conclude that it did not.\\nSTANDARD OF REVIEW\\n[\\u00b6 9.] The Court reviews agency findings in the same manner required of the circuit court when reviewing a decision from an administrative agency. Associated Sch. Bds. v. Hughes County, 2002 SD 41, \\u00b6 8, 643 N.W.2d 417. See SDCL 1-26-36. This Court reviews findings of fact under the clearly erroneous standard, whereas questions of law are reviewed under the de novo standard. In re Dorsey & Whitney Trust Co. LLC, 2001 SD 35 \\u00b6 5, 623 N.W.2d 468, 471 (citing Permann v. Department of Labor, 411 N.W.2d 113, 115-117 (S.D.1987)). The issue on review is a question of law, upon which we apply a de novo standard of review. In re Estate of Galada, 1999 SD 21, \\u00b6 8, 589 N.W.2d 221, 222, see also Kroupa v. Kroupa, 574 N.W.2d 208, 210 (S.D.1998).\\nANALYSIS AND DECISION\\n[\\u00b6 10.] First, did Board have authority to consider O'Tooles' request for a refund of employer contributions? We conclude that it did.\\nIn administrative law the term jurisdiction has three aspects: (1) personal jurisdiction, referring to the agency's authority over the parties and intervenors involved in the proceedings; (2) subject matter jurisdiction, referring to the agency's power to hear and determine the causes of a general class of cases to which a particular case belongs; and (3) the agency's scope of authority under statute.\\n2 AmJur 2d Administrative Law \\u00a7 274 (1994) (internal citations omitted). Board has authority, under SDCL 3-12-56 to SDCL 3-12-58, to consider and decide requests for refunds. O'Tooles' request was fully within the scope of the administrator's statutory authority to make a determination.\\n[\\u00b6 11.] Second, did Board have authority to grant O'Tooles' request for a refund based on a claim of breach of fiduciary duty? We conclude that it did not.\\n[\\u00b6 12.] It is undisputed that at the time O'Tooles requested a refund, the Board stood in a fiduciary relationship with them. SDCL 3-12-47(33). As a fiduciary, Board had a duty to act in the highest good faith and to refrain from obtaining any undue advantage over members. Ward v. Lange, 1996 SD 113, \\u00b6 15, 553 N.W.2d 246, 251 (1996). In dealing with a member, Board had a duty to act primarily for the benefit of the member.\\n[\\u00b6 13.] When a member's request can be decided by Board in one of several ways, each authorized by statute, Board's decision must be consistent with its fiduciary duty to that member. If one decision would be consistent with Board's fiduciary duties but a second decision would not be, and Board makes the second decision, it is proper for the circuit court, on appeal, to review Board's decision in light of Board's fiduciary duty to the member.\\n[\\u00b6 14.] However, when a member's request can only be decided by Board in one way under the statute, the question of whether the Board's decision is consistent with its fiduciary duties to that member does not arise as a matter for Board consideration. Neither Board nor the circuit court can consider a claim of breach of fiduciary duty as a basis for granting a refund if granting that refund is prohibited by statute. Thus, even if O'Tooles had convinced Board, or the circuit court, that Board had breached its fiduciary duty, the remedy sought by the O'Tooles, a refund of the employer contributions, would still be prohibited by statute and beyond the authority of Board to grant.\\n[\\u00b6 15.] The Retirement System Board of Trustees has the power to make determinations in controversies, but is limited by the parameters given in state law. The general rule is that administrative agencies have only such adjudicatory jurisdiction as is conferred upon them by statute. Johnson v. Kolman, 412 N.W.2d 109, 112 (S.D.1987) (citing Springville Com. Sch. Dist. v. Iowa Dept. of Pub. Inst., 252 Iowa 907, 109 N.W.2d 213 (1961); Montana Bd. of Nat. Res. & Con. v. Montana Power Co., 166 Mont. 522, 536 P.2d 758 (1975); 2 AmJur2d Administrative Law \\u00a7 328). Furthermore, \\\"[an administrative agency] may not acquire jurisdiction by estoppel or consent, and, where it acts without jurisdiction, its orders are void.\\\" Montana Bd. of Nat. Res. & Con., 536 P.2d at 762 (quoting 73 CJS Public Administrative Bodies and Procedures \\u00a7 116). See also Pickering v. Illinois Human Rights Com'n, 146 Ill.App.3d 340, 99 Ill.Dec. 885, 496 N.E.2d 746 (1986); and Powell v. Khodari-Intergreen Co., 303 N.W.2d 171 (Iowa 1981).\\nAn agency has only such power as expressly or by necessary implication is granted by legislative enactment; agency may not increase its own jurisdiction and, as a creature of statute, has no common-law jurisdiction nor inherent power such as might reside in a court of general jurisdiction.\\nLee v. Div. of Fla. Land Sales & Condominiums, 474 So.2d 282, 284 (Fla.App. 5 Dist.1985).\\n[\\u00b6 16.] Under the facts of this case, Board did not have several alternatives from which to decide O'Tooles' request for a refund of employer contributions. It had only one lawful option. It is undisputed that O'Tooles were former members of the system who had withdrawn their contributions from the system before July 1, 1998. Given the provisions of SDCL 3-12-77.4, Board was precluded, by statute, from granting O'Tooles a refund. Thus there was no basis for the Board, or the circuit court, to consider if a possible breach of fiduciary duty by Board mandated one decision, granting a refund, over another decision, not granting a refund. The only decision Board could properly make was to deny the refund, even if a breach of fiduciary duty had occurred. The fact that O'Tooles may or may not have a valid claim of breach of fiduciary duty does not alter this conclusion nor does it confer on Board authority denied by statute.\\n[\\u00b6 17.] We are also mindful that this Court has long recognized a breach of fiduciary duty as a tort. Hoffman v. Louis Dreyfus Corp., 435 N.W.2d 211, 214 (S.D.1989) (internal citations omitted). Tort claims are properly brought in the circuit court, not before administrative agencies. The statutory authority given to an administrative agency to conduct hearings does not extend to deciding contested tort allegations leveled against the agency. Board had no statutory authority, and thus no jurisdiction, to consider or provide a monetary remedy based on a claim of tort damages. SDCL 3-12-72.1, and -77.4. \\\"The power to award damages for a tort rests with the courts and is strictly a judicial function.\\\" Pounds v. Denison, 115 Idaho 381, 766 P.2d 1262, 1266 (App.1988) (citing Youst v. Longo, 43 Cal.3d 64, 233 Cal.Rptr. 294, 729 P.2d 728 (1987)).\\n[\\u00b6 18.] Finally, it is essential not to confuse the distinction between damages awarded by a circuit court and a refund made by Board. The approach urged by O'Tooles, to allow Board and circuit court to consider a claim of breach of fiduciary duty as a reason to give a refund even when Board has no authority to give a refund, would have us blur that distinction. This we are unwilling to do. The breach of a fiduciary duty, while the basis for the award of damages in circuit court, is not the basis for a refund of employer contributions by Board.\\n[\\u00b6 19.] Board properly heard and denied O'Tooles claim for a refund of employer contribution based on the provisions of SDCL 3-12-77.4. The judgment of the circuit court, upholding Board's ruling on this basis, is affirmed.\\n[\\u00b6 20.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.\\n[\\u00b6 21.] SABERS, Justice, and GORS, Acting Justice, dissent.\\n[\\u00b6 22.] LOVRIEN, Circuit Judge, for AMUNDSON, Justice, disqualified.\\n[\\u00b6 23.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.\\n. SDCL 3-12-77.4 provides:\\nNo member or former member of the system who has withdrawn contributions from the system prior to July 1, 1998 may receive any additional refund under the provisions of\\u00a7\\u00a7 3-12-47 to 3-12-143.\\n. SDCL 3-12-56. Applications for membership for new or additional benefits, credited service, or benefit payments which may be granted by the board of trustees shall be made to the administrator on forms approved by the board.\\nSDCL 3-12-57. Any applications which on their face appear valid and to which the applicant is obviously entitled shall be approved by the administrator. If the administrator has any reason to question an application he shall forward it to the board of trustees who shall afford the applicant an opportunity for hearing upon reasonable notice. Action taken by the board on applications shall be treated as a contested case with right of review authorized by chapter 1-26.\\nSDCL 3-12-58. The board of trustees may adopt such rules as may be necessary to establish uniform procedures for the administration of the system and to insure uniformity of application of the provisions of this chapter. Such rules may be adopted in the following areas:\\n(1) Membership and class of membership;\\n(2) Contributions and the collection thereof;\\n(3) Criteria and procedures for the determination of applications for, and payment of disability allowances;\\n(4) Procedure for applications for benefits and the payment of benefits;\\n(5) Election of trustees; and\\n(6) Procedure for the conduct of meetings of the board.\\nThe rules shall be adopted pursuant to chapter 1-26 and shall be in accordance with the provisions of this chapter.\\n. SDCL 3-12-72.1. No part of the fund created by this chapter may be used for any purpose other than for the exclusive benefit of members and their beneficiaries and payment of reasonable administrative expenses of the system. No participating unit may receive any amounts from the fund except such amounts which may remain after the satisfaction of all liabilities of the system to its members.\\n. Since we do not need to decide the issue of whether O'Tooles have a valid claim for breach of fiduciary duty, we express no opinion on that issue.\"}"
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+"{\"id\": \"9485864\", \"name\": \"The PEOPLE of the State of South Dakota in the Interest of H.O., Minor Child, And Concerning C.O. and J.O., Respondents\", \"name_abbreviation\": \"People ex rel. H.O.\", \"decision_date\": \"2001-08-29\", \"docket_number\": \"No. 21842\", \"first_page\": \"603\", \"last_page\": \"605\", \"citations\": \"633 N.W.2d 603\", \"volume\": \"633\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"South Dakota Supreme Court\", \"jurisdiction\": \"South Dakota\", \"last_updated\": \"2021-08-10T23:10:02.397261+00:00\", \"provenance\": \"CAP\", \"judges\": \"[\\u00b6 12.] MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.\", \"parties\": \"The PEOPLE of the State of South Dakota in the Interest of H.O., Minor Child, And Concerning C.O. and J.O., Respondents.\", \"head_matter\": \"2001 SD 114\\nThe PEOPLE of the State of South Dakota in the Interest of H.O., Minor Child, And Concerning C.O. and J.O., Respondents.\\nNo. 21842.\\nSupreme Court of South Dakota.\\nConsidered on Briefs Aug. 9, 2001.\\nDecided Aug. 29, 2001.\\nMark Barnett, Attorney General, Roxanne M. Johnson, Assistant Attorney General, Pierre, Attorneys for appellant State of South Dakota.\\nRory King of Siegel, Barnett & Shutz, Aberdeen, Attorneys for appellees B.W. and K.W.\", \"word_count\": \"1260\", \"char_count\": \"7710\", \"text\": \"PER CURIAM.\\n[\\u00b6 1.] The State appeals an order, entered over the objection of the Department of Social Services, that allowed a mother and father who had abused and neglected their child to both voluntarily terminate their parental rights and transfer those rights to the child's aunt and uncle for the purpose of adoption. Because SDCL ch. 26-8A mandates the procedures to be followed in abuse and neglect actions, we vacate the trial court's order and remand.\\nFACTS AND PROCEDURE\\n[\\u00b62.] H.O. was born December 29, 1998, weighing 7 pounds, 6 ounces. Her parents received in-home services in basic parenting skills from the Department of Social Services (DSS) and other service providers. H.O. failed to gain weight and the parents reported she had difficulty feeding and \\\"spit up a lot.\\\" She was hospitalized on February 12, 1999, and diagnosed as a failure to thrive child. She gained some weight in the hospital, where it was discovered she did not have a gag reflex and was too weak to suck. She was also aspirating small amounts of fluid into her lungs.\\n[\\u00b6 3.] In March, a gastrostomy feeding tube was surgically inserted into her stomach. Despite training in the specialized feeding techniques she now required, her parents were unable or unwilling to adequately care for her. H.O. failed to improve and her parents began refusing to allow service providers into their home. H.O. was removed from her parents' home on April 9, 1999, and placed in foster care. At age 4 months, she weighed 9 pounds, 9.5 ounces. She began gaining weight while in foster care where she also received physical, occupational and speech therapies. She remained underweight for her age and exhibited developmental delay, requiring continuing evaluation.\\n[\\u00b64.] DSS filed an abuse and neglect petition on October 21, 1999. The parents admitted the allegations in the petition at a hearing on March 14, 2000, and the trial court adjudged H.O. to be an abused and neglected child. The court ordered continued custody with DSS and reunification efforts to be made with the family. The parents obtained psychological evaluations and counseling. The record shows that the Mother, with an I.Q. in the \\\"mildly mentally retarded range,\\\" lacks the functional capability to care for H.O. Although her love for her child was apparent, it was recommended that she not care for her unsupervised. The Father works outside the home and believes that childcare is the mother's responsibility. He was found to be unwilling to care for H.O. Another concern was the Father's admitted sexual abuse of a six-year old niece twenty years earlier, which had been kept a family secret.\\n[\\u00b6 5.] A final dispositional hearing was held on January 9, 2001. On this date, the parents petitioned to voluntarily terminate their parental rights and requested that the trial court place H.O. with her aunt and uncle, the Father's sister and her husband, in Colorado. The couple received a favorable evaluation from a home study performed by the Colorado DSS in cooperation with the South Dakota DSS. They indicated their intent to adopt H.O. The abuse and neglect action was left pending while the trial court considered the petition for voluntary termination and the parents' desire to transfer their parental rights.\\n[\\u00b6 6.] On January 19, 2001, the trial court entered an order terminating the Mother's and Father's parental rights to H.O. and transferring those rights to her aunt and uncle, authorizing their consent to adopt H.O. without further notice to the Mother and Father \\\"or any other person having such parental rights or interest in said child.\\\" The court ordered a transition period not to exceed three months.\\n[\\u00b6 7.] State appeals, raising the following issues:\\nWhether the trial court circumvented SDCL 26-8A-26 and -27 by accepting the voluntary termination of parental rights while an abuse and neglect action was pending.\\nWhether the acceptance of voluntary termination and transfer of parental rights constituted a conditional termination not permitted under South Dakota law.\\nWhether the trial court erred by dismissing the parents and their attorneys from the proceeding while the abuse and neglect action was left pending.\\nANALYSIS AND DECISION\\n[\\u00b6 8.] Terminations of parental rights are strictly governed by statute in South Dakota. Voluntary terminations, when no abuse or neglect of the child has been alleged, proceed under SDCL ch. 25-5A. SDCL ch. 26-8A governs abuse and neglect proceedings and mandates that following a termination of parental rights, custody of the child vests with DSS for the purposes of adoptive placement. SDCL 26-8A-27; In re J.H., 1999 SD 36, 590 N.W.2d 473; see also In re Z.Z., 494 N.W.2d 608 (S.D.1992). This is not a directive trial courts may ignore. J.H., 1999 SD 36 at \\u00b6 31, 590 N.W.2d at 479. DSS's role in adoptive placement cannot be circumvented by parents filing a petition to voluntarily terminate their parental rights to effect a private adoption, after their child has been adjudged abused and neglected.\\n[\\u00b6 9.] When there are allegations, and in this case an adjudication, of abuse and neglect, the State, in its role of parens patriae, steps in to protect the child. SDCL 26-8A-1; In re N.J.W., 273 N.W.2d 134, 137 (S.D.1978) (\\\"The State, as parens patriae, takes a necessarily strong interest in the care and treatment of every child within its borders.\\\") The Legislature has identified DSS as uniquely qualified to act for the State in this role. SDCL 26-8A-8, -9. The trial court usurped this role when it allowed the parents to evade the abuse and neglect proceeding and addressed their petition for voluntary termination in favor of the aunt and uncle. See In re 368 N.W.2d 602 (S.D.1985), reh'g granted, 379 N.W.2d 816 (S.D.1985) (trial court dismissed abuse and neglect action to consider petition for voluntary termination of parental rights filed at the initial hearing).\\n[\\u00b6 10.] This .is not simply a \\\"procedural defect.\\\" SDCL ch. 26-8A exists for the protection of the abused and neglected child, not the convenience of the parents, the attorneys, or the trial court. SDCL 25-5A-21, applying to voluntary terminations, provides that the chapter \\\"shall not be treated or construed as exclusive of any other remedy authorized by law but as cumulative merely.\\\" The court lacked statutory authority to consider the petition for voluntary termination exclusively while abandoning the abuse and neglect action.\\n[\\u00b6 11.] We need not address the State's remaining issues to decide this appeal. We vacate the order and remand for proceedings not inconsistent with this opinion.\\n[\\u00b6 12.] MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.\\n. The State asserts that after its notice of appeal was filed, the trial court permitted H.O. to be removed from South Dakota on March 31, 2001 and transferred to Colorado without further involvement by DSS.\\n. We have previously held the voluntary termination of parental rights provisions of SDCL ch. 25-5A are to be met with strict compliance. In re T.M.B., 416 N.W.2d 260, 262 (1987); In re I.M.I., supra. We can hold no less where termination is the result of an abuse and neglect proceeding that involves the same fundamental right to parent a child.\"}"
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