Sutton v. Consolidated Apex Mining Co.

Citations

• 12 S.D. 576
• 82 N.W. 188
• 1900 S.D. LEXIS 84

Syllabus

<p>1. Where the notice of appeal and undertaking for costs are properly served and filed as required by Comp. Laws, § 5219, and the bond given is sufficient, the appellate court has jurisdiction of an appeal from the judgment directing payment of money, whether the undertaking'for stay of proceedings authorized by Section5 220 is given or not.</p> <p>2. In an action to foreclose a first mortgage one of the plaintiffs held a second mortgage on the premises. The decree adjudged that certain lions were prior to both mortgages, and from that part of the decree plaintiffs appealed. The premises were then sold under the decree, and wore bought by one of the plaintiffs as trustee for the others, and enough was hid to pay the mortgage, the lien claims, and costs. Held, that the sale was not ground for dismissing' the appeal as to all the plaintiffs except the one who held the second mortgage, since the dismissal would have resulted in giving the lien claimants a precedence as against those plaintiffs, and if the other plaintiff succeeded in his appeal, his mortgage lien would have taken precedence over the lien claims, and the amount due the claimanls would necessarily ha.ve been deducted from the amount due the other appellants on the first mortgage.</p> <p>3. The appellate court will disregard a second additional abstract, served by appellant without leave, after the expiration of the 15 days specified in Sup. Ot. Rule 35, and promptly returned by the adverse party for that reason.</p> <p>4. In the absence of any showing to the contrary, it will be presumed that a notice of appeal was addressed to and served on all necessary parties.</p> <p>5. A party whose interests will not be affected by the rove-sal or modification of a judgment from which an appeal has been taken, is not an adverse parly, within Comp. Laws, § 5215, requiring the notice of appeal to be served on the adverse party.</p>