McLaughlin v. Michel

Citations

• 14 S.D. 189
• 84 N.W. 777
• 1900 S.D. LEXIS 26

Syllabus

<p>Comp. Laws, § 6132, provides that on receiving notice of appeal, and on payment of one dollar for the return, and filing an undertaking as required, the justice must, within five days, transmit to the clerk of the circuit court certain papers, and may be compelled by an order entered on motion to transmit the same, and may be fined for neglect or refusal to do so. Section 6136 provides, inter alia, that the appeal shall be filed by the clerk, on payment of his costs, and entered on the calendar, and shal stand for trial as soon as reached, and, if not so filed within fifteen days from the timo it was perfected it shall be dismissed at any time thereafter on motion, after three days’ notice. Held, that the provision for filing the appeal within fifteen days was mandatory only so far as to require the court to dismiss on proper motion therefor, unless appellant showed a satisfactory excuse for the delay, and that a dismissal in such case was not warranted where it appeared that the undertaking was filed and the justice fee duly paid, and appellant’s attorney relied on the statement of the justice before the fifteen days expired that the appeal had been filed.</p>