State ex rel. Lindsay v. Boyden

Citations

• 18 S.D. 379
• 100 N.W. 761
• 1904 S.D. LEXIS 66

Syllabus

<p>1. Under Rev. Code Civ. Proc. § 756, requiring- the writ of certiorari to be directed to the board or any other person having- the custody of the records or proceedings to be certified, á writ to review the acts of a board of county commissioners relative to a petition to change the county seat is properly directed to the board which, by Rev. Pol. Code § 824, is required to keep a book in which all its orders and decisions shall be recorded, and should not be directed also to the county auditor, who, by section 885, is made ex officio clerk of such board, and required to keep a record of its proceedings; the clerk’s possession being the possession of the board, and it being in legal contemplation the custodian of the record.</p> <p>2. The board of county commissioners being the necessary defendant to a writ of certiorari to review its acis, and its clerk, the county auditor, being improperly made a defendant with it, he is not a party aggrieved by the judgment annulling the order of the board, so as to allow review thereof on appeal by him alone, under Rev. Code Civ. Proc. § 440 authorizing review on appeal by the party aggrieved.</p> <p>3. A defendant not aggrieved by the judgment as to the subject-matter, having appealed alone from the entire judgment for the evident purpose of having it reversed as an entirety, may not thereon have a review of the question of costs, they having been assessed against all the defendants; but he should move in the court below for a modification in respect to costs, and, if the motion is denied, appeal from the order denying it, giving -notice to the other defendants, they, on the question of being required to pay his share of the costs, being adverse parties, to whom Rev. Code Civ. Proc. § 441, requires the giving of notice.</p>