Sands v. Cruickshank

Citations

• 12 S.D. 1
• 80 N.W. 173
• 1899 S.D. LEXIS 88

Syllabus

<p>1. When notice of appeal has been duly served, and an undertaking executed, the supreme court has jurisdiction of the appeal, and may entertain a motion to dismiss, based on facts appearing of record, and presented by an abstract filed by respondent, although the record has not yet been filed; but, before considering such motion, appellant, if he desires, will be permitted to file an additional abstract.</p> <p>2. A'notice of appeal, stating that the appeal is taken from an order entered in the action on a certain date, granting a new trial, “and from any judgment or order made thereon and from the whole thereof,” is not defective for duplicity, as, if it be construed as including an appeal from a judgment entered upon the order, no appeal from the ordér itself is necessary, and the language referring thereto will be disregarded, as surplusage.</p> <p>3. Laws 1887, Chap. 20, of the Territory of Dakota (Comp. Laws, § 5213 et seg.)wasa revision of the entire subject-matter of appeals to the supreme court, including the judgments to be entered therein and the manner of carrying them into effect, and operated to repeal by implication the provision of Code Civ. Proc. 1877, § 22, that no appeal from an order granting a new trial should be effectual unless the notice of appeal contained an assent on the part of the appellant that, if the order should be affirmed, judgment absolute should be entered against him, and requiring the supreme court, on the affirmance of such an order, to render judgment accordingly.</p>