We believe, however, that defendant's conduct falls into that category we have previously entitled "playing fast and loose with the courts." Behrens v. Baldenecker, 1956, 76 S.D. 327, 77 N.W.2d 917; Nyswanger v. Roberts, 1940, 67 S.D. 362, 293 N.W. 187; Smith v. Reid, 1932, 60 S.D. 311, 244 N.W. 353. Defendant's conduct is clearly analogous to that in Behrens v. Baldenecker, supra.

On this claim, quo warranto is the proper proceeding, and we confine our review strictly to whether Koch is lawfully in possession of that office. See Burns v. Kurtenbach, 327 N.W.2d 636 (S.D.1982) (quo warranto examining the propriety of an election); Smith v. Reid, 60 S.D. 311, 244 N.W. 353 (1932) (defeated candidate has standing). [¶ 10.] According to the undisputed facts, Koch's petition for the Republican primary in Jerauld County contained the requisite number of signatures.

For the Applicants to pursue an action in quo warranto on their own, under SDCL 21-28-2(1) they must establish they have "a special interest in the action." In Smith v. Reed, 60 S.D. 311, 244 N.W. 353 (1932) this Court held that a defeated candidate has such a special interest. However, in Knockemuss v. De Kerchove, 66 S.D. 446, 285 N.W. 441 (1939) we ruled that a private citizen claiming a special interest could not do so merely on the claim he was a citizen and a taxpayer.

In Behrens v. Baldenecker, 76 S.D. 327, 331, 77 N.W.2d 917, 919 (1956), the plaintiff's inconsistent assertions in county court and circuit court about whether the defendants had an interest in certain property were said to "fall within the category of conduct playing fast and loose with the courts." See also Nyswanger v. Roberts, 67 S.D. 362, 293 N.W. 187 (1940); Smith v. Reid, 60 S.D. 311, 318, 244 N.W. 353, 356 (1932) (Campbell, P.J., concurring). More recently, this court held that "[o]ne who has taken a position in a judicial proceeding may not later take a position inconsistent with his earlier position." Federal Land Bank of Omaha v. Johnson, 446 N.W.2d 446, 447 (S.D. 1989).

37 Am.Jur. Municipal Corporations, Sec. 222, p. 854; Capital Gas Co. v. Young, 109 Cal. 140, 41 P. 869, 29 L.R.A. 463; People v. Sullivan, 113 Cal.App.2d 510, 248 P.2d 520. A city councilman is a public officer of the municipal corporation, State ex rel. Ralich v. Millsop, 138 W. Va. 599, 76 S.E.2d 737; Rogers v. Croft, 203 Ga. 654, 47 S.E.2d 739; Smith v. Reid, 60 S.D. 311, 244 N.W. 353. In the case of State ex rel. Scott v. Trousdale, 16 Nev. 357, the Nevada Court said:

Relief by injunctions operates in futuro and the right to it may be determined as of the time of the decision in the appellate court. American Fruit Growers, Inc. v. Parker, 22 Cal.2d 513, 140 P.2d 23; Cal-Dak Co. v. Sav-on Drugs, Inc., 40 Cal.2d 492, 254 P.2d 497. While generally speaking, courts of final resort confine investigations of facts to the record presented at the time the appeal was perfected, in injunction actions it may take cognizance of those occurring during the pendency of the appeal where they bear directly on the question presented by the appeal. City of Tulsa v. Chamblee, 188 Okla. 94, 106 P.2d 796. See Smith v. Reid, 60 S.D. 311, 244 N.W. 353; 5B C.J.S. Appeal and Error § 1842, p. 250. [9, 10] The record here and the completed construction obviate the reason for continuing the injunction.

This conduct falls within the category of conduct playing fast and loose with the courts which we have at least twice condemned. Smith v. Reid, 60 S.D. 311, 244 N.W. 353; Nyswanger v. Roberts, 67 S.D. 362, 293 N.W. 187; 19 Am.Jur., Estoppel, § 72; Bigelow on Estoppel, Sixth Edition, p. 783; 33 C.J.S., Executors and Administrators, § 128; In re Jones' Estate, 174 Kan. 506, 257 P.2d 116; Carruthers v. Whitney, 56 Wn. 327, 105 P. 831. The judgment appealed from is affirmed.

Authorities of other jurisdictions where statutes are similar to our own are at great variance. See Hammer v. Commonwealth ex rel. Hoover, 169 Va. 355, 193 S.E. 496; State ex rel. Gall v. Barnes, 136 Minn. 438, 162 N.W. 513; State ex rel. White v. Barker, 116 Iowa 96, 89 N.W. 204, 57 L.R.A. 244; Jones v. Riggs, 154 N.C. 281, 70 S.E. 465; Smith v. Reid, 60 S.D. 311, 244 N.W. 353; State ex rel. Murdock v. Ryan, 41 Utah 327, 125 P. 666; Vrooman v. Michie, 69 Mich. 42, 36 N.W. 749; People ex rel. Barton v. Londoner, 13 Colo. 303, 22 P. 764, 6 L.R.A. 444; People ex rel. Hiller v. Bevirt, 297 Ill. App. 335, 17 N.E.2d 629; State ex rel. Pooser v. Wester, 126 Fla. 49, 170 So. 736; 44 Am. Jur., Quo Warranto, Section 74. It will be noticed that a number of these cases decided under statutes similar to our own go so far as to hold that the interest of a citizen and taxpayer is sufficient to enable a relator to maintain a proceeding upon information in the nature of quo warranto. The precise question to be determined here is whether members of a city council elected from certain wards have such an interest within the meaning of the statute to enable them to prosecute a proceeding in the nature of quo warranto, to have determined the right of another person to hold office as a member of that body from a different ward.

When she surrendered the office she knew the grounds upon which disqualification of respondent was claimed, and that the circuit court had dismissed her action. Cf., Smith v. Reid, 60 S.D. 311, 244 N.W. 353. She does not contend that she vacated the office under any form of compulsion.

Plaintiffs appeared before a conciliation commissioner, and the testimony in that proceeding is at variance and entirely inconcistent with the position of these plaintiffs in their proposed amended replies. Plaintiffs listed in the schedules filed in the conciliation proceedings the notes in the amounts of $7,632 and $7,420, and under examination of counsel and the Commissioner admitted that the amounts were correct and that the notes were to be paid after the death of the mother. A party who has assumed a particular position in a judicial proceeding must maintain therewith some degree of consistencey. Smith v. Reid, 60 S.D. 311, 244 N.W. 353. While courts exercise in the furtherance of justice liberality in granting motions to amend pleadings, we think under the facts here presented that the trial court would have been without the bounds of judicial discretion if he had granted the motions to amend. It is the claim of the appellants that the trial court fixed the amounts of the undertakings upon an erroneous conception of the law.