Ramsdell v. Duxberry

Citations

• 14 S.D. 222
• 85 N.W. 221
• 1901 S.D. LEXIS 10

Syllabus

<p>1. A party given the right of appeal from the judgment on the judgment roll may take it without bringing up in the abstract of the record the proceedings on the motion for new trial, if he'deems proper.</p> <p>2. An order denying a motion to vacate the judgment and for a new trial is not res judicata, precluding disturbance of the original judgment on appeal from it alone; no motion for a new trial being necessary to a review thereof.</p> <p>3. Failure to index appellant’s abstract, caused by the absence of his attorney from the state while it was being printed, is not cause for striking it out; the inadvertence being immediately remedied before the hearing by serving and filing a new abstract, properly indexed.</p> <p>4. A party having elected to begin action in justice court, the cause cannot be transferred by stipulation to the circuit court, so as to confer jurisdiction; the law providing no method for.removal, except when a question of boundaries or title to land is raised by the answer, or an appeal after judgment, dependent on a notice and undertaking, which cannot be waived.</p> <p>5. Without the issuance of a summons, which Comp. Laws, §§ 4892, 4893, 4904, provide shall be served in commencing a civil action in the circuit court, except in the case of defendant’s voluntary appearance, which is declared to be equivalent to personal service thereof, such an action could not be instituted by stipulation, so as to confer purisdiction, there being no statute providing therefor; Sections 5540-5542, authorizing submission, without a summons, of a case on an agreed statement of facts, having no application thereto.</p>