Black Hills Flume & Mining Co. v. Grand Island & W. C. R.

Citations

• 2 S.D. 546
• 51 N.W. 342
• 1892 S.D. LEXIS 19

Syllabus

<p>1. When the circuit judge within his circuit, grants an order to show cause why an order oí injunction should hot be made, returnable before himself, and concludes the order with the words, “done in chambers,” and makes an order of injunction reciting that “the judge of said court, having considered the return,” etc., and concludes with the words, “done at chambers at Custer City,” etc., held, that such an order will be considered by this court a judge’s, and not a court, order. Held, further, that such an order made by the judge is not appealable.</p> <p>2. Section 4828, Comp. Laws, providing that the circuit courts “are always open for the purpose of hearing * * * motions and applications, of whatever kind or character, * * * and of which the district (circuit) courts have jurisdiction, * * * and all such * * * motions and applications may be heard and determined at any place within the” circuit, does not have the effect of repealing statutes especially conferring upon the judge authority to make orders as such judge; and the judge may still make such orders as a judge, if he deems it proper to do so.</p> <p>8. This court is not authorized by either the law or the constitution to review an order made by a judge; and therefore, in all cases when an order has been made by a judge that could be made by the court, a motion must be made to the court to vacate or set aside the order, as provided in Subdivision 5, $ 5236, Comp. Laws, before a review can be had in this court.</p> <p>(Syllabus by the Court.</p>