elementary rule in South Dakota

1901Railroad Co. v. Strickland, 80 Ga. 776 , 6 S. E. 27 ; Crane v. Andrews, 6 Colo. 353 ; McPhaul v. Lapsley, 20 Wall. 264 , 22 L.

1901Railroad Co. v. Strickland, 80 Ga. 776 , 6 S. E. 27 ; Crane v. Andrews, 6 Colo. 353 ; McPhaul v. Lapsley, 20 Wall. 264 , 22 L.

1901Railroad Co. v. Strickland, 80 Ga. 776 , 6 S. E. 27 ; Crane v. Andrews, 6 Colo. 353 ; McPhaul v. Lapsley, 20 Wall. 264 , 22 L.

1901Railroad Co. v. Strickland, 80 Ga. 776 , 6 S. E. 27 ; Crane v. Andrews, 6 Colo. 353 ; McPhaul v. Lapsley, 20 Wall. 264 , 22 L.

1968United States v. Pearson, supra. This case also recognized, as an elementary principle, that courts cannot terminate the trusteeship of the United States which "will continue until such time as the United States sees fit to terminate the relation of guardian and ward between itself and the said Indians." The nonexemption of Indians from federal income taxation is without significance on the power of a state to tax personal property owned by tribal Indians and located within Indian reservations.

1968United States v. Pearson, supra. This case also recognized, as an elementary principle, that courts cannot terminate the trusteeship of the United States which "will continue until such time as the United States sees fit to terminate the relation of guardian and ward between itself and the said Indians." The nonexemption of Indians from federal income taxation is without significance on the power of a state to tax personal property owned by tribal Indians and located within Indian reservations.

1968To hold otherwise, as this court said in Englund v. Berg, 69 S.D. 211 , 8 N.W.2d 861 , "would utterly destroy the efficacy of pleadings and burden litigants with the necessity of preparing for a trial at large".

1968To hold otherwise, as this court said in Englund v. Berg, 69 S.D. 211 , 8 N.W.2d 861 , "would utterly destroy the efficacy of pleadings and burden litigants with the necessity of preparing for a trial at large".

1965Cramer v. Cramer, 81 S.D. 94 , 131 N.W.2d 102 .

1965Cramer v. Cramer, 81 S.D. 94 , 131 N.W.2d 102 .

1950A classic expression of the doctrine of separability is taken from Allen v. Louisiana, 103 U.S. 80 , 26 L.Ed. 318 , as follows: “It is an elementary principle that the same *341 statute may be in' part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected. ‘But,’ as was said by Chief Justice Shaw, in Warren v. Mayor and Aldermen of Charlestown, 2 Gray, 84 , 2 Mass. 84 , ‘if they are so mutually connected with and dependent on each other, as conditions,

1950A classic expression of the doctrine of separability is taken from Allen v. Louisiana, 103 U.S. 80 , 26 L.Ed. 318 , as follows: “It is an elementary principle that the same *341 statute may be in' part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected. ‘But,’ as was said by Chief Justice Shaw, in Warren v. Mayor and Aldermen of Charlestown, 2 Gray, 84 , 2 Mass. 84 , ‘if they are so mutually connected with and dependent on each other, as conditions,

1950A classic expression of the doctrine of separability is taken from Allen v. Louisiana, 103 U.S. 80 , 26 L.Ed. 318 , as follows: “It is an elementary principle that the same *341 statute may be in' part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected. ‘But,’ as was said by Chief Justice Shaw, in Warren v. Mayor and Aldermen of Charlestown, 2 Gray, 84 , 2 Mass. 84 , ‘if they are so mutually connected with and dependent on each other, as conditions,

1943Iowa Loan & Trust Co. v. Schnose, 19 S. D. 248, 103 N. W. 22 , 9 Ann.

1943Clark Implement Co. v. Wadden et al., 34 S. D. 550, 149 N. W. 424 , L.

1922On the other hand, the true attitude of the court should never be hostile to either- party, but should stand on a plane of neutrality, equality, and fairness, as between the opposing parties, before the jury, when advising them as to the law of the case by means of his instructions, and for the court to adv.ise the jury in this spirit of neutrality and fairness between the state and the accused that the jury should not consider the failure of the defendant to testify in his own behalf as creating any presumption against him would certainly result favorably for defendant.” We are not unmindful

1911Louis, 47 Mo. 474 ; Warrensburg v. Miller, 77 Mo. 56 ; Sayre v. Tompkins, 23 Mo. 443 ; Bank v. Kansas City, 73 Mo. 555 .’ There are exceptions to this elementary rule of equity practice; for instance, to remove a cloud upon attached property, in the hands of a sheriff, when the cloud is created by a recorded mortgage.

1911Louis, 47 Mo. 474 ; Warrensburg v. Miller, 77 Mo. 56 ; Sayre v. Tompkins, 23 Mo. 443 ; Bank v. Kansas City, 73 Mo. 555 .’ There are exceptions to this elementary rule of equity practice; for instance, to remove a cloud upon attached property, in the hands of a sheriff, when the cloud is created by a recorded mortgage.

1911Louis, 47 Mo. 474 ; Warrensburg v. Miller, 77 Mo. 56 ; Sayre v. Tompkins, 23 Mo. 443 ; Bank v. Kansas City, 73 Mo. 555 .’ There are exceptions to this elementary rule of equity practice; for instance, to remove a cloud upon attached property, in the hands of a sheriff, when the cloud is created by a recorded mortgage.

1911Louis, 47 Mo. 474 ; Warrensburg v. Miller, 77 Mo. 56 ; Sayre v. Tompkins, 23 Mo. 443 ; Bank v. Kansas City, 73 Mo. 555 .’ There are exceptions to this elementary rule of equity practice; for instance, to remove a cloud upon attached property, in the hands of a sheriff, when the cloud is created by a recorded mortgage.

1911Ball v. Dolan, 21 S. D. 619, 114 N. W. 998 , 15 L.

1910The case comes within the elementary rule stated in Brand v. Williams, 29 Minn. 238 , 13 N. W. 42 . ‘An action for money had and received can be maintained wherever one man has received or obtained the possession of the money of another which he ought in equity and good conscience to pay over.’ This may not have been appellant’s exclusive remedy, but the facts pleaded present an action at law.” So in this case the complaint clearly set forth facts showing that the defendant had in his possession, moneys which in equity and good conscience belonged to the plaintiff, and the plaintiff was entitl

1910The case comes within the elementary rule stated in Brand v. Williams, 29 Minn. 238 , 13 N. W. 42 . ‘An action for money had and received can be maintained wherever one man has received or obtained the possession of the money of another which he ought in equity and good conscience to pay over.’ This may not have been appellant’s exclusive remedy, but the facts pleaded present an action at law.” So in this case the complaint clearly set forth facts showing that the defendant had in his possession, moneys which in equity and good conscience belonged to the plaintiff, and the plaintiff was entitl

1907The headnote prepared by this court in Landauer v. Conklin, 3 S. D. 462, 52 N. W. 322 , is as follows: '“A fundamental rule of interpretation applied to statutes, mandatory as well as directory, is that words in a statute, if of common use, are to be taken in their natural and ordinary sense, without any forced or subtle construction either to limit or extend their import.” Delivering the opinion of the court in United States v. Wiltberger, 5 Wheat.

1903In the case of Omaha Coal Co. v. Fay, 55 N. W. 211 , the Nebraska court say: “Where only consequential damages are claimed, they must be specially pleaded; and in such cases the jury should be confined by the instructions, in assessing the amount of recovery,, to the consideration of such damages as are so pleaded. ’ ’ According to an elementary rule, instructions concerning exemplary damages, though properly alleged, should never be given unless evidence applicable thereto has been introduced.

1903Railroad Co. v. Le Gierse, 51 Tex. 189 ; Kennedy v. North Mo. R.

1901Railroad Co. v. Strickland, 80 Ga. 776 , 6 S. E. 27 ; Crane v. Andrews, 6 Colo. 353 ; McPhaul v. Lapsley, 20 Wall. 264 , 22 L.

1901Hurlbut v. Leper, 12 S. D. 321, 81 N. W. 631 .

1901In Noyes v. Belding, 5 S. D. 603, 59 N. W. 1069 , this court in speaking of such evidence, said: “According to an elementary rule requiring the best evidence of which a case in its nature is susceptible, no evidence should be received which presupposes better evidence in the party’s possession, under his control, or within his reach; and, in the absence of preliminary proof, as a foundation for the introduction of parol evidence concerning the nature of a' judicial record, the evidence was properly excluded.

1900Ev. 701; 3 Rice, Ev. § 72; Sweeney v. Gas Co., 130 Pa. St. 193, 18 Atl. 612 ; Woodford v. McClenahan, 9 Ill. 89 ; Railroad Co. v. Hickman, 28 Pa. St. 318; Gartrell v. Stafford (Neb.) 11 N. W. 732 .

1894Railroad Co. v. Strickland, 80 Ga. 776 , 6 S. E. 27 ; Crane v. Andrews, 6 Col. 353 ; McPhaul v. Lapsley, 20 Wall. 264 ; Clifton v. U. S., 4 How. 242 .