COURT CIVIL PROCEDURE
Courts §§ 7350-7354
before review of order made by judge will be made, motion to vacate must be made. Mining Co. v. Grand Island, W.C.R., 2 S.D. 546, 51 N.W. 342.
Powers conferred upon a judge may be exercised by the court. King v. McClurg, 7 S.D. 67, 63 N.W. 219.
Order made by judge in another circuit, although marked "by the court," is made at chambers and not appealable. Custer County Bank v. W. H. Walling Mercantile Co., 16 S.D. 579, 94 N.W. 582
§ 7351. Judgment by default. Ex parte applications may be made, heard and determined and judgments by default given at any place within the state.
[R.C. 1905, § 6763; 1893, ch. 86, § 2; R.C. 1899, § 5177.]
§ 7352. Acts of judge are acts of court. All orders made, judgments given or other acts done by any judge of the district court in any action, special proceeding or other matter, civil or criminal, shall be deemed and held to be the orders, judgments and acts of the court and the several judges of the district court shall have jurisdiction throughout the state to exercise all the powers conferred by law upon the district court or judges thereof, subject to the limitations in this article provided.
[R.C. 1905, § 6764; 1893, ch. 86, § 3; R.C. 1899, § 5178.]
Notice purporting to issue from court under its seal and signed by clerk is sufficient. Matson v. Swenson, 5 S.D. 191, 58 N.W. 570.
§ 7353. No judge to act on matter not pending in his district. Exceptions. No judge of the district court shall hear or determine any action, special proceeding, motion or application, or make any order or give any judgement in any action or proceeding not pending in the judicial district for which he is elected except in the following cases:
1. Upon the written request of the judge of the district in which such action or proceeding is at the time pending.
2. When, upon the application of either party to such action or proceeding and upon due notice to the opposite party, if he shall have appeared and is entitle to such notice, it shall be made to appear by affidavit to the satisfaction of such judge who shall have power to hear and determine such preliminary application, that the judge of the district in which such action, proceeding, motion or application, is pending or about to be commenced, is absent from his district, or incapacitated or disqualified to act therein, such application shall be made only to the judge of a district adjoining that in which such action or proceeding is pending, and upon the hear thereof counter affidavits may be used.
[R.C. 1905, v. 6765; 1893, ch. 86, § 4; R.C. 1899, § 5179.]
Power of judge in relation to matters pending in another district, see Gould v. Elevator Co., 3 N.D. 95, 54 N.W. 316; Holden v. Haserodt, 2 S.D. 220, 49 N.W. 97; Id., 3 S.D. 4, 51 N.W. 340; William v. William, 6 S.D. 284, 61 N.W. 38.
On validity of acts of circuit judge. Northwestern Port Huron Co. v. Zickrick, 23 S.D. 89, 115 N.W. 525.
Judge outside of district may act upon request in cause not pending at time of request. State v. Heiser, 20 N.D. 357, 127 N.W. 72
Blanket request made to judge of district not adjoining to act generally does not confer jurisdiction. State v. Heiser, 20 N.D. 357, 127 N.W. 72.
§ 7354. Order or judgment, how vacated. No order or judgment given by a judge of any district contrary to the limitations of the proceeding sections shall for that reason be void, but such order or judgment may be vacated upon application within thirty days, from the time the same shall been made or given to the judge of the district in which the action or proceeding in which the same was made or given is pending, and if appealable, by the supreme court on appeal.
[R.C. 1905, § 6766; 1893, ch. 86, § 5; R.C. 1899, § 5180]
Judgment entered by order of judge of district which was detached from trail district after trial, but before decision, is voidable only. Bruegger v. Cartier, 20 N.D. 72, 126 N.W. 491.
As to manner of attack upon judgment voidable because judge was not appointed or elected for district in which be acted. State v. Heiser, 20 N.D. 357, 127 N.W. 72.
On necessity of making application for order to vacate verval order to show cause before he has right to review. Albrecht v. Zimmerly, 23 N.D. 337, 136 N.W. 240.
1703
184.99.185.125 01:14, 2 November 2022 (UTC)Leviticuss007
