State ex rel. Kleppe v. Steensland

192 N.W. 749, 46 S.D. 342, 1923 S.D. LEXIS 27

• Court: South Dakota Supreme Court
• Decided: March 14, 1923
• Docket: File No. 5168
• Status: Published

Opinion

DILLON, J.

Action commenced on January 22, 1920, on complaint of the relator, alleging that she, an unmarried woman, was pregnant, and that defendant was the cause of such pregnancy. The child was born on July io, 1920. A warrant was issued, and on May 4, 1920, the defendant was arrested1, and pleaded “not guilty.” The case was tried by a jury on May 11, 1921, and. a verdict rendered for the plaintiff. Judgment was signed on May 14, 1921, and docketed on March 30, 1922. The judgment was in favor of the relator for support and maintenance and education of such child in the sum of $400 for the first year after the birth of the child, and for the further sum of $300! yearly thereafter for 10 succeeding years making a total judgment of $3,400. Defendant appeals from the judgment, alleging error in rendering judgment for said sum.

[1] Judgment was rendered under chapter 137, Laws of 1921. Section 3 of the act provides:

“This act is necessary for the immediate support of the state government and its existing public institutions, an emergency is hereby declared to exist.”

We are of the opinion that this emergency clause is a nullity, and1 has no force or effect. State ex rel Richards v. Whisman, 36 S. D. 260, 154 N. W. 707, L. R. A. 1917B, 1; Hodges v. Snyder, 43 S. D. 166, 178 N. W. 575.

[2] It follows that section 2985 of the Revised Code of 1919 was in full force and effect at the time of the trial, birth of the •child, and the date of the judgment. Had section 2985 been followed the maximum' judgment for the first year after the birth of the child could not have exceeded $250, and could not have exceeded' $150 yearly for 10 years succeeding the first year. Thus it will be seen that judgment was actually rendered against the defendant for $1,650 in excess of the amount permitted by law. The judgment rendered by the court, as to the excess of $1,650, was unauthorized. The appellant’s case cannot be adjudicated under the statute that was not lawfully in force at the time of the trial and rendition of judgmenb

[3] The judgment should not have exceeded the sum of $L75°- There being no other prejudicial error in the record, and this error affecting only the amount of the recovery, no good reason exists why this error cannot be corrected, and the trial court is directed to so modify the judgment, by reducing the amount of damages from- $400 to $250 for the first year, and by reducing the judgment for $300 for each year for 10 years to $150 each year for ten years, as of the date of the judgment, and, as so modified, this cause is affirmed.

Appellant is awarded costs in this court.

Note — Reported in 192 N. W. 749. See American Key-Numbered Digest, (1) Statutes, Key-No. 251, 3'6 Cyc. 1194, 25 R. C. L. 801; (2)■ Bastards, Key-No. 78, 7 -C. J. Sec. 143; (3) Bastards, Key-No. .9-2, 7 C. J. Sec. 170, 2 R. C. L. 277.