Anderson v. Hultman

12 S.D. 105 | S.D. | 1899

Corson, P. J.

This purports to be au appeal from two orders, — one made on the 11th day of July, 1898, refusing to vacate an attachment, and the secoud made on the 13th day of August, 1898, denying the motiou to vacate and set aside the summons in the said action. The statement in the abstract of the notice of appeal is as follows: “On the 28th day of August, 1898, the appellant served notice of appeal from the said orders, and the whole of both of them, upon plaintiff’s attorneys and the clerk of said court, and upon the same day perfected his appeal from said orders, and the whole of both of them, by serving and filing a duly executed, justified, and approved undertaking on appeal.” The respondent moved to dismiss the appeal upon the following grounds: (1) That the whole of the record in the court below, upon which the orders were based, has not been transmitted to this court; and (2) because this is a double appeal, being an appeal from two separate and distinct orders, each of which is the subject of a separate appeal, the appellants made a counter motion to strike out the motion to dismiss the appeal, additional abstract on the part of the respondent, and his brief, on the ground that neither Mr. E. L. Drury nor Mr. John A. Stroube, who appear as attorneys for respondent, had ever been admitted to practice in the supreme court of this state. The notice of motion to dismiss the appeal and the brief appear to be signed by Messrs. Drury and Stroube as attorneys for the respondent, and by James Brown, Esq., who signs himself “of counsel.” While it may be true that Messrs. Drury and Stroube were not attorneys of this court when the notice of motion was served. Mr. Brown, who appears as counsel, was such an attorney, and the court will presume that he was duly authorized to appear for the respondent, in the absence of proof to the contrary. Tbe motion, therefore, to strike out the motion to dismiss the appeal, additional abstract, and brief, is denied: It may be proper to state that both Mr.' Drury and Mr. Stroube were entitled to be admitted as attorneys of this court when they moved to dismiss the appeal, and about the time the motions in this case were heard they were duly admitted.

That the appeal was attemped to be taken from two separate, distinct and appealable orders clearly appears from the appellant’s abstract and his notice of appeal. Both of the orders appealed from being appealable orders, under the decision in Hackett v. Gunderson, 1 S. D. 479, 47 N W. 546, the appeal mustbe dismissed. But, even if this were not so, this appeal would have to be dismissed for the reason that it affirmatively appears by the abstract that there was oral evidence admitted on the hearing of one or both of the orders, not incorporated in a bill of exceptions settled by the court or judge. Implement Co. v. Porteous, 7 S. D. 34, 63 N. W. 455. The ap peal is therefore dismissed.