Evans v. Bradley

Citations

• 4 S.D. 83
• 55 N.W. 721
• 1893 S.D. LEXIS 46

Syllabus

<p>1. An order made by a judge within Ms circuit, which he is authorized to make as a court or judge, will he presumed to be made by the court, unless it clearly appears from the order that the same was intended to he the order of the judge and not the order of the court.</p> <p>2. A peremptory writ of mandamus, issued by the judge within his circuit, concluding as follows: “Witness the Hon. William Gardner, Judge of the Circuit Court. In open court, at Rapid City, S. D., this 26th day of February, 1892. William Gardner, Judge.” — Held, to be the act of the court and not of the judge.</p> <p>3. When the facts stated in the alternative writ of mandamus are sufficient to authorize the court to issue a peremptory writ, in the absence of proof to the contrary in the record this court will presume that the facts stated in such alternative writ were proven to the satisfaction of the court, and that the peremptory writ was properly issued.</p> <p>4. When a county warrant is allowed by the board of county commissioners of a county, and drawn upon a special fund in the hands of the county treasurer, who has sufficient money in such special fund, not otherwise appropriated to pay the same, it is ordinarily the duty of such treasurer to pay such warrant. But if he has reasonable ground to question the legality of such warrant, or the power of the board to issue the same, he may decline to pay the same until the validity of such county warrant is determined by the judgment of a court of competent jurisdiction.</p> <p>5. When the legality of such county warrant has been established by the judgment of a court of competent jurisdiction, and the treasurer refuses to pay such judgment, the court may, upon proper application, issue a peremptory writ of mandamus to compel such treasurer to pay such judgment, when no facts are presented to the court tending to impeach or cast doubt upon the validity of such judgment, or show that the same has been, or is about to be, appealed from, or