Adams v. Smith

6 Dakota 94

• Court: Supreme Court Of The Territory Of Dakota
• Decided: May 15, 1889
• Status: Published

Opinion

By the Court :

The pro forma judgment upon respondents’ demurrer is reversed upon the ground:

First, that appellant’s action was properly brought, and the act of the legislature of the territory of Dakota, passed March 11, 1887, under which the election was held by which the county seat of Brown county, D. T., was removed from Columbia to-Aberdeen, is in conflict with the act of congress approved July 30, 1886, prohibiting special legislation in the territories of the United States.

Second, that the appellant has such an interest in the subject-matter as enables him to maintain this action.

Third, that the judgment rendered is such a final judgment as. entitles him to an appeal.

All concur. Reporter : — The court granted the motion and directed the entry of final judgment, in form, substantially as prayed in the complaint. <7. S. Palmer, for the motion. Gamble Bros. and»/. II. Teller, contra.

In the state from which this statute, § 25, chap. 20, L. 1887, was taken, a final judgment will be rendered by the supreme court only where issue has been joined, trial had, and all the facts are before the court. It is only where there is nothing further to be acted upon by the court below. Person v. Merrick, 5 "Wis. 231; Boyd v. Sumner, 10 id. 41. This construction aught to be followed here. Under similar statutes, see Everest v. Perris, 17 Minn. 466; Phelan v. Supervisors, 9 Cal. 16; Bagley v. Eton, 10 id. 149; Pierson v. David, 1 la. 23.

The judgment of the October Term cannot be modified further than the insertion di the costs on appeal to the supreme court of the United States.

Under section 141, C. C. Pro., the district court, in its discretion, would have a right to permit the defendants to answer. After the judgment of reversal, the case stood the same as if the court below had overruled the demurrer. Ereem. Judg. (2ded.), § 481.