Opinion of the Court-CORSON, P. J. [11 S. D. judgment. As the plaintiffs took no appeal from this order, we are inclined to the opinion that this court is not authorized to review this order on this appeal. But assuming the order is before us for review, and that the trial court erred in allowing the amendment after the appeal had been perfected, we are of the opinion that the amendment did not materially change the original judgment, or affect any substantial right of the plaintiffs; and hence the error, if any, would not constitute reversible error. We have discussed all the errors we deem material; not, however, overlooking any of the other errors assigned. As it appears that the court below, in computing the amout due on the taxes paid, made an error of $58.49 in favor of the defendants, the judgment must be modified by deducting that amount from the sum awarded to the defendants. The defendants urge that this amount should be disregarded, for the reason that plaintiffs have recovered a larger amount than they are entitled to for rents and profits. But the amount due plaintiffs has been determined by the judgment, and, as the defendants have not appealed therefrom, the judgment is conclusive upon this court, and no alleged error therein in favor of the plaintiffs can now be considered by this court. The circuit court is directed to modify the judgment in favor of the defendants as above indicated, and as modified it is affirmed. As the judgment is modified neither party will recover costs of the other, and the clerk's costs will be paid by the appellants. FULLER, J., dissenting. Jan., 1899.] Opinion of the Court-CORSON, P. J. AULTMAN, MILLER & Co. v. NELSON et al. (Opinion filed January 25, 1899.) Appeal from circuit court, Brookings county. IAN BENNETT, Judge. Hon. JUL Action in a justice court by Aultman, Miller & Co. against Andrew Nelson and another. Judgment for plaintiff, and defendant Niels Jensen appealed to the circuit court. From an order therein overruling a motion to dismiss the appeal, plaintiff appeals. Affirmed. Jenkins & Farrell, for appellant. Mathews & Murphy, for respondents. CORSON, P. J. This is an appeal from an order of the circuit court of Brookings county denying plaintiff's motion to dismiss the appeal taken from the judgment rendered by the justice of the peace. The same question is involved as in the appeal of Aultman, Miller & Co. v. Same Defendants, decided at this term, and reported in 11 S. D. 338, 77 N. W. 584; the only difference in the two cases being that the judgment rendered by the justice in this case was for $111.61 and the undertaking was in double that amount instead of $220 in the former. This case was, by stipulation, submitted upon the same abstract and briefs as the former, and must therefore be ruled by that decision. The order of the circuit court is affirmed. Opinion of the Court-CORSON, P J. [11 S. D. AULTMAN, MILLER & Co. V. NELSON et al. (Opinion filed January 25, 1899.) Appeal from circuit court. Brookings county. Hon. JULIAN Bennett, Judge. Action in a justice court by Aultman, Miller & Co. against Andrew Nelson and another. From a judgment there was an appeal to the circuit court; and from an order therein denying plaintiff's motion to dismiss the appeal, it appeals. Affirmed. Jenkins & Farrell, for appellant. Mathews & Murphy, for respondents. CORSON, P. J. This is an appeal from an order of the circuit court of Brookings county denying plaintiff's motion to dismiss the appeal taken from the judgment rendered by the justice of the peace. The same question is involved as in the appeal of Aultman, Miller & Co. v. Same Defendants, decided at this term, and reported in 11 S. D. 338, 77 N. W. 584; the only difference in the two cases being that the judgment rendered by the justice in this case was for $114.84, and the undertaking was in double that amount, instead of $220 in the former. This case was, by stipulation, submitted upon the same abstracts and briefs as the former, and must therefore be ruled by that decision. The order of the circuit court is affirmed. LYMAN COUNTY v. STATE (Hanson County Intervener.) 1. Laws 1881, Chap. 84. § 15, providing for the payment out of the state treasury of costs and expenses of criminal prosecutions arising in unorganized counties, being valid when enacted, was not abrogated by the adoption of the state constitution, which prescribes a new method of making appropriations. 2. Where items of a claim have been audited by the commissioners of a county, and a county warrant for each item duly issued, it will be presumed, in an action by the county against the state on such claim, that the items were carefully and honestly examined and audited, in amounts believed to be legal and reasonable. 3. Reasonable compensation for services allowed and paid to an attorney appointed by the court to prosecute a criminal action arising in an unorganized county, there being no state's attorney at the time, cannot be recovered from the state by the county. 4. It is otherwise, however, as to expense incurred by him in the prosecution. 5. Where a separable claim in part against one party and in part against another is pleaded as one cause of action, a general demurrer thereto by one party confesses a cause of action as to the other, and is properly overruled. 6. A complaint by a county against the state alleging the payment by plaintiff of costs and expenses incurred in a criminal prosecution arising in an unorganized county, for which the state is alleged to be liable, states but one cause of action, though it allege that the county has received the warrants of another county, which are unpaid, for some of the items of such costs. 7. An intervening county claiming from the state a part of the amount claimed by plaintiff county for costs and expenses incurred in a criminal prosecution arising in an unorganized county, on the ground that it has paid part of such costs and received the warrants of plaintiff therefor, which remain unpaid, is not entitled to any portion of such amount, without surrendering, or offering to surrender, such warrants. Opinion of the Court-HANEY, J. [11 S. D. 8. A county cannot sue the state for costs and expenses incurred in a crim'inal prosecution arising in an unorganized county, and paid by it, until the state auditor has refused to pay the claim. (Opinion filed January 7, 1899.) Action by Lyman county against the state to recover cost of criminal prosecution. On exceptions by defendant to report of referee. Findings of referee adopted, except as to one item allowed. Intervening complaint of Hanson county dismissed, on sustaining defendant's demurrer thereto. Judgment in favor of plaintiff on its claim, and in favor of defendant for costs of intervention. S. H. Wright, for plaintiff. Coe I. Crawford, (Attorney General) for defendant. P. A. Zollman and J. L. Hannett, for intervener. HANEY, J. A demurrer to the complaint herein having been overruled, defendant answered denying each and every allegation contained therein; and the action was, by consent, referred, to have the issues of fact determined. The report of the referee and exceptions of the defendant now demand attention. In ruling upon the demurrer, this court held "that plaintiff can recover for such items of costs and expenses as were actually, legally and necessarily incurred in the prosecution mentioned in the complaint, and for which its warrants have been issued." Lyman Co. v. State, 9 S. D. 413, 69 N. W. 601. Notwithstanding the strenuous contention of the learned attorney general, we are constrained to adhere to the conclusion there announced. The distinction between appropriation laws passed before, and those passed after, the taking effect of the constitution, is so clearly stated by this court in Cutting |