Presho State Bank v. Northwestern Milling Co. , 45 S.D. 147 ( 1922 )

PER 'GURIAIM.

Respondent, criticizing the opinion of this court reported in Presho State Bank v. Northwestern Milling Co., 45 S. D. 58, 185 N. W. 370, prays for a rehearing. We refer to such opinion for an understanding of the question passed upon. Respondent, basing its argument upon two statutes of this state—R. C. 1919, § 47, “Acquiescence in error takes away the right of objecting to it,” and R. C. 1919, § 46, “He who consents to an act is not wronged by it”' — most strenuously contends that such sections are controlling’ in this case, and that this court erred in reversing the trial court because of its failure to comply with the rules for trial courts of record'. Respondent also expresses some doubt as to whether the files and records in the case disclose that the rules were disregarded by the trial court.

[1] That there may be no question as to the position of this court herein, we announce that the rules in question, promulgated under express direction of the Legislature, have all the force of mandatory statutes, and that attorneys, even with the consent of a trial court, have no power whatsoever to waive same. To hold otherwise would ■ practically nullify such rules where the trial courts might desire their observation to he waived. One can readily see the embarrassing position in which it would place an attorney if, in opposition to the known wishes of the trial judge, he should feel required to insist upon the observance of such rales. We cannot approve anything that would inevitably lead) to the consequences so clearly apparent.

[2] We assume that it was the junior member of the firm of counsel representing respondent who prepared the' petition for rehearing, as we feel certain that the senior member of such firm must be in ignorance of at least that part of its contents which expresses doubt as to whether the rules in question were disregarded upon the trial of this action. Senior counsel argued this cause before this court and openly announced that such rules were entirely disregarded upon such trial. In the light of such admission, counsel are not now in a position to suggest the contrary, especially when the printed record before us fairly advised us of the truthfulness of such admission.

The rehearing is denied.