MARY DALE,
Plaintiff and Appellee,
 v.
CITY OF SIOUX FALLS, SOUTH DAKOTA
Defendant and Appellant.
 
[2003 SD 124]

South Dakota Supreme Court
Appeal from the Circuit Court of
The Second Judicial Circuit
Minnehaha County, South Dakota

Hon. Doyle L. Sage, Judge

JACK THEELER of
 Morgan, Theeler, Wheeler, Cogley & Petersen
 Mitchell, South Dakota
Attorneys for plaintiff and appellee.

R. SHAWN TORNOW and
ALLEN J. EIDE
 Sioux Falls City Attorney's Office
Sioux Falls, South Dakota
Attorneys for defendant and appellant.

Considered on Briefs June 27, 2003

Opinion Filed 10/8/2003

#22831

ZINTER, Justice

[¶1.]          The City of Sioux Falls (City) attempts to appeal from a judgment entered by a magistrate court judge in favor of Mary Dale.  The judgment was entered in a civil action following its removal from a small claims proceeding.   Because a magistrate court appeal must be taken to circuit court, and because this Court has no jurisdiction to entertain City’s direct appeal from magistrate court, we dismiss for lack of appellate jurisdiction.         

FACTS AND PROCEDURAL HISTORY

[¶2.] The City filed a notice of appeal on April 21, 2003 from a February 2003 judgment awarding Dale $3,452 in damages.  The damages arose from a collision between Dale’s vehicle and a City snowplow. The action was initially started as a small claims proceeding, but the City petitioned for removal.  An order was subsequently entered providing that “the above-entitled matter is hereby removed to the regular civil docket of the Circuit Court.”  However, that order was signed by Magistrate[1]  Judge Doyle L. Sage.  Moreover, the subsequent pre-trial conference was conducted, and resulting scheduling order was entered by Magistrate Judge Sage.  Furthermore, the parties stipulated to a bench trial before Magistrate Judge Sage.  Finally, although the judgment and the findings of fact and conclusions of law were captioned in "circuit court," they were signed by Magistrate Judge Sage. 

[¶3.] City now attempts to appeal that judgment directly to this Court without having appealed to circuit court.  An order to show cause was issued requesting the parties to brief the issue of this Court's jurisdiction to directly review a civil judgment entered by a magistrate judge.  City contends that its appeal was proper because the proceedings below were in circuit court, or alternatively, the City was unaware that the magistrate judge could not act as a circuit court judge.  If it is determined that the magistrate judge was not acting as a circuit court judge, City argues that the judgment below should be vacated. 

[¶4.] Dale, however, argues that the City’s only remedy was to appeal to circuit court and that there is no direct appeal allowed from magistrate court to this Court.  Dale contends that despite the incorrect captioning of the matter as a "circuit court" action, the matter was tried in magistrate court by a magistrate judge.  Dale also points out that the parties stipulated to a bench trial before a magistrate judge, and the magistrate judge told the parties that the matter was proceeding in magistrate court.[2]   

ISSUE

[¶5.] Whether a direct appeal can be taken to the Supreme Court from a judgment entered by a magistrate judge.

[¶6.] “This Court has only 'such appellate jurisdiction as may be provided by the legislature.'  'The right to appeal is statutory and therefore does not exist in the absence of a statute permitting it.'"  State v. Hoxeng, 315 NW2d 308, 308 (SD 1982) (internal citations omitted).  This Court is also "required to take notice of jurisdictional questions, whether presented by the parties or not."  Wold Family Farms v. Heartland Organic Foods, 2003 SD 45, ¶ 12, 661 NW2d 719, 723.

[¶7.] In this case, the matter was commenced as a small claims proceeding, but the City petitioned for removal from the small claims procedure.  SDCL 15-39-57 authorizes removal of a small claims proceeding “to the regular civil docket of the circuit court or magistrate court.”  Id.  (emphasis added).  The City's petition requested removal to the “civil docket of the Second Circuit Court for Minnehaha County.”  That petition was granted and the action was captioned in circuit court.  However, the order was signed by a magistrate judge, and the matter proceeded without objection with a magistrate judge presiding.  Thus, notwithstanding the caption, this matter was clearly tried by a magistrate judge who had concurrent jurisdiction[3]  to try such civil matters.

[¶8.] Therefore, if the trial of this matter before a magistrate judge meant that the judge was exercising the power of the magistrate court, appellate jurisdiction was limited to a review by the circuit court.  SDCL 16-12A-27 specifically provided:

Except where appeal is denied by law there shall be a right of appeal to the circuit court from any final order or judgment of the magistrate court and such appeals shall be taken in the manner prescribed by law or rule for appeals to the circuit court.

In addition, SDCL 16-6-10 provided that "[t]he Circuit Court has jurisdiction of appeals from all final judgments, decrees or orders of all courts of limited jurisdiction, inferior officers or tribunals."  Therefore, as we have previously noted:

SDCL 16-6-10 vests in the circuit court jurisdiction of appeals from all final judgments, decrees or orders of all courts of limited jurisdiction.  Magistrate courts are, of course, courts of limited jurisdiction.  Moreover, the legislature has provided that appeals from magistrate court shall be taken to the circuit court.

Hoxeng, 315 NW2d at 308.  This Court has also adopted rules governing the manner in which such appeals are taken from magistrate court to the circuit court.  See SDCL ch 15-38 (appeal from magistrate court to the circuit court).  Therefore, "with the one exception provided by SDCL 23A-32-5 (appeals by the State from certain pre-trial orders of a circuit court or magistrate), there is no right of direct appeal from magistrate court to the Supreme Court.”  Hoxeng, 315 NW2d at 309.

[¶9.] City, however, argues that notwithstanding the fact a magistrate judge tried the matter, it believed, and the judgment indicates that it was proceeding in circuit court.  This argument is misplaced.  We addressed the opposite, but analogous question whether a circuit judge was acting as a magistrate judge in State v. Horst, 504 NW2d 862 (SD 1993).  There, we determined that a circuit court judge was acting as a circuit judge and not a magistrate judge even though a magistrate judge had concurrent jurisdiction.  Id. at 863.  We did so stating:

Except as is permitted by constitutional or statutory provision, a judge cannot act for a court other than one for which [that judge] was selected.  The jurisdiction of a judge being incident to, and growing out of, the jurisdiction of the court of which [that judge] is a member, a judge cannot, in the absence of authority of law, exercise the judicial functions of a court for which [the judge] has not been selected.

Id. at 863-64 (citations omitted).  Therefore, while both a magistrate judge and circuit judge have concurrent jurisdiction over this type of civil matter, the presiding  magistrate judge could not exercise the judicial functions of a circuit court in a trial. Because Magistrate Judge Sage could not have exercised the judicial functions of a circuit court, this matter was tried in magistrate court.  Therefore, the appeal from magistrate court must have followed the exclusive statutory method of appealing to circuit court.[4]   Because the City did not pursue the only appeal authorized by law, we have no jurisdiction to entertain this appeal or grant the City's request to vacate the decision below.

[¶10.] Appeal dismissed.

[¶11.] GILBERTSON, Chief Justice, KONENKAMP and MEIERHENERY, Justices, concur.

[¶12.] SABERS, Justice, concurs specially.

SABERS, Justice (concurring specially).

[¶13.] I agree that a magistrate judge cannot exercise the judicial functions of a circuit court and agree with the authorities cited herein for that proposition, except for State v. Horst, 504 NW2d 862 (SD 1993).

[¶14.] In Horst, a circuit court judge was acting as a magistrate judge on a removal from small claims.  The majority, over my dissent, held that “since a circuit court judge is always a circuit court judge” that somehow caused the magistrate court to become a circuit court.  Horst was wrongly decided then and wrongly relied upon now.   We should not use it to support this opinion.