Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-10-01

wsdnssday's seaing, Oct. I, 1874 :
Of rHe SUPREME cove1. /:
PUBLISHED BY Authority. q
E. G. SMITH, Reporter. |.
~
RoBERT w. COLE ct al. Respondents. l.
- s. N. CADY ct al. appellants.
In THE SUPREME COURT OF THE TERna-
ToaY5oys RAKorA, At THE nncExsfR
sT9GTG ta.@. --.3S9
Appeal from ts Lavrssce County District
Court.
Continued from Sept. 3oth]
Sec: 20, on page 1852 Of. chapter 81, reyis-
asSd clyes, spsrty msy "b6 restofed' to- the
possession Of premises by order Of tho DIS
tript teop5t or judge thereof II the propefty
be mini6g property. -
Fist-When ousted by force or VIOLENCE.
Th]5 -wsel kept OUT of po.sss.ioa by
thf4eUe IL. Es EE. t.k9a
F0urth-When the party entered on Sun.
day.
Fifh-A legal holiday.
Sixth-When the party was temporarily
absent from his premises.
Fairly construed II may be stated thus:
When the party" has been deprived of min
ing property in which he was In possession
By unlawful fraudulent or criminal means.
the district cour: or ydistrict judge may BY
and protect him In the occupancy. thereof,
pending the ,determtninR Of. other questions
involved.
The last paragraph of section 90 removes
oil doubt upon this question, If doubt could.
otherwise exist. / give the language:
"The granting of such writ to extend on
" to the right Of possssslon under the facts
OF the case, in respect to the manner in
which the possession was obtained, leaving
the parties to their legal rights on, all other
questions as though no such writ had 49,
sued" tkE
There is no doubt in this respect the leg
%islature has conferred upon district courts
and district judges unusual power. 1t is
welltoobserve.hoMsver, that this power can
only be- exercised, lWhereby mean criminal,
cite q beach ofihe peace, the offending par.
~ or parties BY their disregard Of Law have
msde It necessary toIexerc,se unusual pow
) ers to compel them to obev the law, and re
spect The rights Of others. sYes an
In determining this question, l hay
not overlooked the inquiry, Of, to whether
the order or judgment under review is 81
fer fnal that an appeal Gao be taken TO thi
court. nor do l purpose to pass upon tha
: question, in determining this case.s-
The apparent necessity for pf6nbpt Judi
. ciai construction of the, statute, under cons
= liberation has led mo to disregard so far a
Epraciicable Ethe'consideratton Of other quees
= lions arising in this case.
l have remarked that the defendant
have taken issue upon the allegations of III
: complaint. In so holding / do not over
rule or modify the decision of this court a
to the insuf1ciency of the swe IN IL
caeegM Dole against Bqrleigh, but I d
hold that the party interesting an insult
cient pleading shall not be permitted in III
court to urge the insufRciency of his on
pleading.
The judgment or order appealed from i
this case should be affirmed except so t.
that upon the final dissemination Of the q,
\ ton IN the district court the order shout
be modified or set aside in accordance wit
the judgment Or decree finally in5tt
district court. W 3
Moody J.-This was an action brousl
By the respondents, plaintiffs below)
lltsthe district, court of Lawrepce count
= = Againstthe hpellahts. (defeudantsspelon)s
Observation-Disclosures of acsftaios tnnnn
situated in . mining claim in such count
: 1.-The Claim being called and known as Il
"Old Bfigg" mite. The plaintiffs allie
ip prior actual 0ccupspcY end continued liEl
aff9f RoeNl1SResyhatsdeesblan 81 sftspdfl
rsldurf6g thS teI6rorSfy tbsElcx fhereffomn1
laid PLAINTIFF entered upon and into 90
= ttdnnel. still retain the possession thereof,
~ refusal to surrender upon demand. and pr
. for q iejnnctioa; hsyisg the foree and 6
Is feet q 1 1fitsM fsstitoton and for.4su,
other and further relief as BY Law and rig
er they may DO entitled, and for costs.
The defendants answer by what may
8 iPsgpssayseh.r1a1sa ,s;sasce3blPlak =
IS Ssfs1 sa& al MdFesls}
] dbS2hEmEof Naatl6sIhR Saye&tuI
= cause, deny each and every msterisl allea
ton contained. therein. and fol. q. furlt
answer to- tho complaint of PLAINTIFF, {
PENDANTS allees the facts ID be, the IL,
stated in said complaint do not. constit,
. cause az aeti0n; that the same is not wi
In, the juyEisdictton Of said court; that /
statute upon which said action is based
unconstitutional; that it 10 moi within
jurlsdiction of the court TO issue . writ
r~eStltuFi9n, priorto the. rendition OF. aaju,
mSnt lhat-the amt nusto. b bassd up
, .3adennsnss,s shd. { jjgaak@aent CANNOT, s. I
positio6 Of utslbyy jdffy." PTS
The complaint, verified, together "
30 some afadavits not appearing 10 the ira
cript, were presented totshe then judge
rs the first JUDICIAL district court, who the
upon made the following order to Oh
cause. .ia3b' .u1e-E r. ~ IA,
(. ION reading the within complaint !,
q af1davits introduced on behalf Of plsint]
themj show csdss before he. At cS Ssa5
nd in Deadwood. Dakota. on the 9th day
Aprtl, AID, 1873. txt,tis hour Of 10 o'cl,
~. -E.lsNg G. lsA lnSrH HSks q ~. rAc