McConnell v. Spicker

Citations

• 13 S.D. 406
• 83 N.W. 435
• 1900 S.D. LEXIS 160

Syllabus

<p>1. Where the names of the parties to the action are correctly given in a notice of appeal, and it does not appear that any judgment except the one appealed from was rendered between them, the mere fact that the notice incorrectly states the date of entry of the judgment is not ground for dismissing the appeal.</p> <p>2. Where a notice of appeal was duly served, and an undertaking in fact executed, the supreme court has jurisdiction, though the appeal may not have been perfected by serving notice of the undertaking on defendants.</p> <p>3. Comp. Laws, § 5219, provides that, to render an appeal effective, an undertaking- must be executed by the appellant, conditioned for the payment of the judgment, etc. Section 5232 gives the respondents the right to except to the sufficiency of the sureties on such, undertaking within 10 days after notice o£ the appeal. Held that, since the failure to execute an undertaking until 8 days after service of the notice of appeal deprived respondents of a portion of the time allowed them under the statute to except to its sufficiency, such failure rendered the appeal ineffective.</p> <p>4. Where the record shows that the appeal has not been perfected by filing an undertaking within the specified time, the supreme court has no jurisdiction, a.nd will dismiss the appeal on its own motion.</p>