Clay County v. Simonsen

2 Dakota 112

• Court: Supreme Court Of The Territory Of Dakota
• Decided: December 15, 1878
• Status: Published

Opinion

Shannon, C. J.

This case was before this court at the June-term, 1877, and is reported in the new volume of decisions, page 403. At that time the whole case was fully considered, and as was then supposed, finally decided. (1 Dak. Rep., 403.)

By the statement of counsel, at the argument, on the former occasion, as to a written stipulation to be filed, but not then presented', the court was led to understand that the case was presented to us in such a way .as to have the question of the defendants’ liability determined on demurrer. The opinion of the court by Mr. Justice Bennett, evidently proceeded upon that supposition. But it seems from the stipulation since filed, as well as from the record now brought here, that we were led into a mistake or a misapprehenson, and that the case was not then in such regular form as to have it decided on demurrer. It now appears that there was nothing stipulated tending toward the equivalent of final judgment, and that such judgment was not entered until after the case was remanded to the District Court.

So far as the merits of the controversy were then discussed, or now appear before us, we see no • reason to change our former views; and we now adopt and reiterate them, deprecating, however, the mistake we were led into in considering the case at all until a regular final judgment.

It follows that the judgment of the District Court must be affirmed, and it is so

Ordered.

All the Justices present concurring.