Brannon v. White Lake Tp.

Citations

• 17 S.D. 83
• 95 N.W. 284
• 1903 S.D. LEXIS 10

Syllabus

<p>1. Comp. Laws 1887, § 5215, provides that an appeal must be taken by serving a notice on the adverse party and on the clerk of the court, and that the appeal shall be deemed taken by the service of the notice. Held, that service on both the adverse party and on the clerk was requsite to constitute an appeal, so that the fact that the judgment roll was not filed until after service on respondent did not invalidate the appeal where it was filed before service on the clerk.</p> <p>2. Under Comp. Laws 1887, § 4872, providing that the' trustee of an express trust may sue without joining the person for whose benefit the action is brought and that such a trustee shall be construed to include one with whom a contract is made for the benefit of another, an agent who purchases a township warrant with funds belonging to his principal, taking an assignment in his own name, may sue thereon.</p> <p>3. Comp. Laws 1887, § 4850, provides that an action on a contract, as well as an action upon a liability created by statute, other than a penalty or forfeiture, shall be brought within six years. Sections 1672 and 1673 authorize the registration of county, city, or town warrants by the treasurer at the option of the holder. Held, that as, after a township warrant was registered, no suit could be maintained thereon until there were funds for its payment in the treasurer’s hands, or until a sufficient time had elapsed for collecting them, the six years limitation thereon did not begin to run until that time.</p> <p>4. Where, in a suit on a registered township warrant, which is itself prima facie evidence of the cause of action, the condition of the town treasury when the case was begun is not disclosed, the direction of a verdict for defendant cannot be justified on the ground that the suit was premature.</p> <p>5. ■ A.township warrant represents but one indivisible cause of action, and where it is registered suit thereon is premature unless there is sufficient money in the treasury t