Hazeltine v. Browne

Citations

• 9 S.D. 351
• 69 N.W. 579
• 1896 S.D. LEXIS 176

Syllabus

<p>1. Under Comp. Laws, Sec. 5232, declaring that unless the sureties on an appeal bond, being excepted to by respondent, justify within 10 days, ■ “the appeal shall be regarded as if no undertaking had been given,” their failure to justify leaves the appeal ineffectual for any purpose, it being declared by Sec. 5219 that “to render the appeal effectual for any purpose, an undertaking must be executed.”</p> <p>2. Service of notice of exception to sureties on appeal bond, when personal, may be at any time before 12 p. m. of the last of the 10 days allowed by Comp. Laws, Sec. 5232, therefor; the limitation as to 9 p. m. in Sec. 5328 providing “the service may be personal, * * * or where there is no person in the office, by leaving it between” 6 a. m. and 9 p. m. not applying to personal service.</p> <p>3. Under Comp. Laws, Sec. 5218, providing that an undertaking on appeal “may be waived in writing” it is not waived by the parties stipulating for extension of time for serving abstracts and briefs, and respondent serving and filing a brief in the appellate court, after expiration of the 10 days after exception to sureties, allowed by Sec. 5232 for justification by them.</p>