(concurring in part, dissenting in part).
I would affirm the order denying appellant’s attorney’s motion to withdraw as counsel. Granted that the trial court’s refusal to permit attorney Rice to withdraw was based upon its desire that appellee should have someone upon whom to effect valid service of the garnishee summons and affidavit, see SDCL 21-18-10, I would hold that in the circumstances of the case before us the trial court’s decision did not constitute an abuse of discretion. Inasmuch as appellee’s claim for the arrearages in alimony has been reduced to judgment and that the monthly garnishment proceedings are the only legal procedure available to her to collect on this judgment, I simply cannot see how attorney Rice is being subjected to bondage or punishment merely by being required to act as a conduit for the service of those garnishment proceedings. In view of the extant judgment, appellant appears to have no defense to the monthly garnishment proceedings. Hence, there is little for attorney Rice to do other than to forward to appellant the monthly garnishment papers, hardly an onerous burden.
If appellant himself is desirous that the attorney-client relationship between him and attorney Rice should be permitted to cease, he need only comply with the trial court’s condition. I quite agree with the majority opinion that given the nature of the circumstances under which appellant departed the state, it is highly unlikely that he will accede to this condition, but I hardly think that that is a matter that should cause us much concern.
I agree that inasmuch as the appeal is not from a money judgment and no stay of execution has been requested (indeed, there could hardly be a stay of something that was not granted), the trial court should not have required more than the cost bond provided for by SDCL 15-26A-23.
I would award appellee $1,500.00 attorney fees for this appeal, to be payable by appellant himself and not by attorney Rice.
I am authorized to state that Chief Justice FOSHEIM joins in this concurrence in part and dissent in part.