140 N.W. 267 | S.D. | 1913
Application by respondent to require appellants to show cause why ah appeal should not be dismissed. The affidavit upon which the order was granted discloses that judgment was entered in the circuit court of Corson county, for $1,500 and costs, on the 20th of April, 1912; that'on the 17th of July, 1912, defendants, who are appellants 'here, took an appeal from that judgment; that upon such appeal appellants failed to comply with the
In the case of Gade v. Collins, 8 S. D. 322, 66 N. W. 466, this court said: “When the motion for a .new trial is made and determined before a judgment is entered in the action, an appeal from the judgment brings up the order of the court denying or granting the motion for a new trial as an intermediate order that can be reviewed by this court, provided the decision of the court denying or granting the motion is assigned as error. * * * Unless the order denying or granting a new trial made after judgment is appealed from either in connection with the appeal from the judgment, or independently, the decision of, the court below upon the question of the sufficiency of the evidence to justify the findings or verdict will be res adjudicata.”
Section 939 of the Code of Civil Procedure of California is, in substance, the same as the provisions above quoted from our Code of Civil Procedure as to appealable judgments and orders.
Appeal from a judgment may go on after an appeal from the order has 'been dismissed. (Towdy v. Ellis, 22 Cal. 650) ; and an appeal from the order may go on after an appeal from the judgment has been dismissed (Schroder v. Schmidt, 71 Cal. 399, 12 Pac. 302). If is also held that an appeal may be taken from the order after the appeal from the judgment has been adversely disposed of. Schnittger v. Rose, 139 Cal. 656, 73 Pac. 449. The case of Fulton v. Cox, 40 Cal. 101, is directly in point. It is there held that the dismissal of an appeal from the judgment is 110 bar to an appeal by the same party from an order denying his motion for a new trial. See, also, Schnck v. Hagar, 24 Minn. 339; Chittenden v. German Am. Bk., 27 Minn. 143, 6 N. W. 773; Ashton v. Thompson, 28 Minn. 330, 9 N. W. 876; Kruger v. Adams & F. H. Co., 9 Neb. 526, 4 N. W. 252; Adams v. Bush, 2 Abb. Prac. (N. S. N. Y.) 104; Lane v. Bailey, 1 Abb. Prac. (N. S. N. Y.) 407; People v. McGuire, 4 Thomp. & C. (N. Y.) 658; Whitney v. Davis, 148 N. Y. 256, 42 N. E. 661; Webster v. Bd. of Supervisors, 47 Wis. 225, 2 N. W. 335.
The relief sought by the odder -to show cause should be denied, and the order to show cause dismissed.