Jerauld County v. Williams

Citations

• 7 S.D. 196
• 63 N.W. 905
• 1895 S.D. LEXIS 60

Syllabus

<p>1. Notice of a motion in an action in winch there are numerous defendants named in the pleadings is sufficient which gives the names of the first-named defendant, followed by the abreviation uetal.,” in the ab-sense of proof that the adverse party has in any way been misled or prejudiced by the failure to insert the names of all the defendants.</p> <p>2. An order of reference made under the provisions of the statute, as they existed prior to 1889, and made upon due notice, the adverse party not appearing at the hearing or interposing any objections to the making of the order, and no motion having been made to vacate or set aside the order, though several months elapsed between thp making of the order and the hearing before the referee, will be presumed to have been made with the consent of such opposite party, and will be held a valid and binding order.</p> <p>3. And, where it is not stated in the abstract that there was no “agreement of the parties filed with the clerk or entered in the minutes,” this court will presume such agreement was so made and filed or entered. Kent v. Insurance Co., 50 N. W. 85, 2 S. D. 306, followed.</p> <p>4. Where a civil action is brought by the state’s attorney in his official capacity in the name of the county, against the treasurer of the county and his sureties, to recover money alleged to be due from such treasurer to the county, a court will presume, in the absense of an affirmative showing to the contrary, that the action was brought by order of the county commissioners of the county.</p> <p>5. If the county recover judgment in such action, the judgment may include the 20 per cent, penalty specified in section 617, Comp. Laws, as against the sureties-as well as the principal.</p> <p>(Syllabus by the Court.</p>