Houser v. Nolting

Citations

• 11 S.D. 483
• 78 N.W. 955
• 1899 S.D. LEXIS 23

Syllabus

<p>1. A motion to dismiss an appeal from a justice need not be in writing, but it is sufficient if written notice of the grounds of the motion is given to the appellant.</p> <p>2. The fact that appellee appeared generally, instead of specially, on a motion to dismiss an apppeal, did not confer general jurisdiction on the circuit court, if it was not asked to do more than dismiss the appeal.</p> <p>3. An order of the circuit court dismissing an appeal from a justice will not be reversed on the ground that the notice of the motion to dismiss did not specify the grounds of the motion, where the notice, as contained in the record, shows that the dismissal was asked on the- ground that no notice of appeal was given.</p> <p>4. An original notice of appeal from a justice recited an appeal from a judgment rendered May 27th, with costs, for a certain amount, and was signed by defendant’s attorney. The copy served on respondent’s attorney recited a judgment rendered May 28, did not state the amount of costs, and was unsigned. Held, that under Comp^ Laws, § 6129, requiring a copy of the notice as filed with the justice to be served 'on the adverse party, the notice was insufficient to support the appeal.</p> <p>5. If a notice of appeal is left with a clerk in thex office of respondent’s attorney, the affidavit of notice indorsed on the notice must show that the attorney was absent at the time of service.</p>