Upload 100 files

sd/10595500.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10597802.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10602687.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10607550.json

@@ -0,0 +1 @@
+"{\"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).\"}"

sd/10634211.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10641492.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10657217.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10662355.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10663418.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10667082.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10667595.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10672870.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10672914.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10676371.json

@@ -0,0 +1 @@
+"{\"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).\"}"

sd/10680539.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10680945.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10681728.json

@@ -0,0 +1 @@
+"{\"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).\"}"

sd/10687287.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10688810.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10689321.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/10689882.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/11220121.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/11402959.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/11450990.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/11514996.json

@@ -0,0 +1 @@
+"{\"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).\"}"

sd/11647826.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/11790411.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/11819934.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/11957565.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/12150545.json

@@ -0,0 +1 @@
+"{\"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).\"}"

sd/12256101.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/12334000.json

@@ -0,0 +1 @@
+"{\"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)\"}"

sd/12556699.json

@@ -0,0 +1 @@
+"{\"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).\"}"

sd/12561542.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/12564416.json

@@ -0,0 +1 @@
+"{\"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).\"}"

sd/2366831.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/2384345.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/2385154.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/2387386.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/2391170.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/2394457.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/2395722.json

@@ -0,0 +1 @@
+"{\"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*),\"}"

sd/27181.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/27266.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/27302.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/27349.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/2735182.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/2739685.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/2755903.json

@@ -0,0 +1 @@
+"{\"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.\"}"

sd/2770638.json

@@ -0,0 +1 @@
+"{\"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.\"}"