Dyea Electric Light Co. v. Easton

Citations

• 14 S.D. 520
• 86 N.W. 23
• 1901 S.D. LEXIS 53

Syllabus

<p>L Where a motion is made to dismiss an appeal on the ground that the judgment and order denying a new trial were not entered before the appeal was taken, the appellant must show affirmatively that the same was done.</p> <p>2. An affidavit by the clerk of the trial court stating that some time prior to a date subsequent to the date on which an appeal was perfected all the pleadings and papers on file in the cause were placed together in an envelope, on which the tine of the cause was indorsed, does not show that the judgment roll was made up and filed before the appeal was perfected, as provided by Comp. Laws, § 5103.</p> <p>3. An appeal cannot be taken from a judgment until it has been perfected by the filing of the judgment roll, as required by Comp. Laws, § 5216.</p> <p>4. A motion to dismiss an appeal from an order denying a new trial on the ground that the order was not entered before the appeal was taken must be denied where the appellant has furnished the appellate court with a certificate of the clerk of the trial court showing that the order was duly entered and recorded on the records of that court before the appeal was taken.</p> <p>5. Where an appeal is taken from a judgment, and an order denying a new trial, the appeal will not be dismissed when the same is properly taken from either the judgment or the order.</p>