Ripple v. Wold

MILLER, Chief Justice

(concurring in part, dissenting in part).

[¶ 20.] I agree that SDCL 15-6-25(a)(l) applies to this Court, and therefore the ninety-day provision of that statute was triggered by Wolds’ suggestion of death upon the record. However, the principle of judicial restraint dictates that I must respectfully dissent from the rest of the majority opinion. The issue of ineffective service was not properly before this Court and should not be considered.9

[¶21.] Ripples never argued ineffective service to the trial court or,to this Court. SDCL 15 — 6—12(h)(1) provides:

A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in § 15-6-12(g), or (B) if it is neither made by motion under § 15-6-12 nor included in a responsive pleading or an amendment thereof permitted by § 15-6-15(a) to be made as a matter of course. (Emphasis added).

See also Matter of R.P., 498 N.W.2d 364, 367 (S.D.1993); Williams Ins. v. Bear Butte Farms Partnership, 392 N.W.2d 831, 834 (S.D.1986). It seems clear that in past cases this Court has not chosen to make an argument for a party as to insufficiency of service of process, so why start now?

[¶22.] While the present case raises the issue of when the ninety-day period begins to run and not a jurisdictional issue as was the case in Williams Ins. and Matter of R.P., there is our general rule that “[w]e will not address issues raised for the first time on appeal.” Mash v. Cutler, 488 N.W.2d 642, 648 (S.D.1992) (citations omitted). The issue was never raised to the trial court and should therefore be deemed waived. See Gesinger v. Gesinger, 531 N.W.2d 17, 22 (S.D.1995) (citing Fullmer v. State Farm Ins. Co., 514 N.W.2d 861 (S.D.1994); Hepper v. Triple U Enterprises, Inc., 388 N.W.2d 525, 527 n. 3 (S.D.1986)). Further, the issue was never raised to this Court and should also be deemed waived. See Id. (citing Zens v. Chicago, Milwaukee, St. Paul & Pac., 479 N.W.2d 155, 159 (S.D.1991)). Ripples had two strikes at this issue and failed to raise it; this Court should not now pinch hit for Ripples’ attorneys. We are a reviewing, court and should not consider matters not properly before us or matters not determined by the trial court. Schull Constr. Co. v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963).

[¶23.] The majority argues that to hold other than it does would be to prejudice the substantial rights of Ripples. But cannot the same be said for all the countless parties in the past whose arguments we have not addressed because they were not properly before us? Were the situations of these other parties different because they actually tried to present their issues to us? It is not the responsibility, nor the duty of this Court to make an argument for a party because that party’s attorney failed to make it.10 As to *445the majority raising the issue of ineffective service, all that can be said is: “The point appears here in its virgin state, wearing all its maiden blushes, and is therefore out of place.” Cleveland v. Chambliss, 64 Ga. 352, 359 (1879).

. While the majority holds that Ripples were not personally served, the fact remains that it is raising an issue sua sponte and I feel that is inappropriate. No matter what the majority states, it cannot be denied that the issue of ineffective service of process was never argued to the trial court nor this court.

. The majority relies on In re Estate of Tallman, 1997 SD 49, ¶ 14, 562 N.W.2d 893, 897, and SDCL 15-6-61, to hold that this Court has the power to disturb a judgment for the sake of promoting substantial justice. While we do have such power, it should be used cautiously. Tall-man involved this Court recognizing that a party had made a judicial admission and should be bound by it lest another party be required to pay twice on a debt. In Tallman, we were not making arguments for the parties. What the majority is attempting to do in the present case is to play a more affirmative role in disturbing the lower *445court’s judgment. Such affirmative action sets a bad precedent.