Haukland v. Minneapolis & St. Louis R'y. Co.

Citations

• 11 S.D. 493
• 78 N.W. 958
• 1899 S.D. LEXIS 26

Syllabus

<p>1. If a record, on appeal from a justice, was not transmitted to the circuit court within 15 days, as required by the statute, and no excuse for the delay is shown, the circuit court may dismiss the appeal.</p> <p>2. Under Comp. Laws, § 6136, providing that on motion by appellee, made at any time, an appeal from a justice may be dismissed for failure to transmit the record within 15 days, mere delay in moving to dismiss is not a waiver of the right to a dismissal.</p> <p>3. After a record on appeal from a justice was transmitted, and two days before it was filed with the clerk of the circuit court, appellee gave notice of hearing of a motion to dismiss the appeal, but the hearing was continued by consent of parties. Six months thereafter another motion to dismiss was filed. Held, that the appellee was not guilty of laches defeating his right to a dimissal.</p> <p>4. On sustaining' a motion to dismiss an appeal from a judgment for plaintiff obtained before a justice, the circuit court should merely dismiss the appeal, leaving- the judgment of the justice remaining as if no appeal had been taken, and riot enter judgment for plaintiff.</p> <p>5. If a modification of a judgment on, appeal does not affect the substantial rights of the parties, the respondents may recover their costs.</p>