213 N.W. 509 | S.D. | 1927
Plaintiff brought this action against defendant sheriff, claiming to be entitled to the immediate possession of the sum of $2,000 in cash, which had been put up to guarantee the appearance of one T. J. Carlton in a criminal action, and claiming that, after the dismissal of said criminal action, defendant sheriff wrongfully levied upon said cash sum of $2,000 as the property of the said T. J. 'Carlton, when in truth and fact it was the property of this plaintiff. Defendant sheriff interposed his general denial, and alleged that the money in question was also claimed by one Gullick as trustee of the estate of the said T. J. ’Carlton in bankruptcy, and asked the court to designate a depository for the'money pending settlement of the controversy. The trial court designated the clerk of courts of Aurora county as such depository, and the money was deposited with him, and Gullick, the trustee in bankruptcy of T. J. Carlton, intervened and set up his claim to the fund in question, alleging it to be the property of his bankrupt, T. J. Carlton. The case was tried and resulted in a directed verdict and judgment in favor of the defendant sheriff and the intervening trustee in bankruptcy, and against the plaintiff. Plaintiff moved the court for a new trial, which motion was denied. From the order denying his motion for new trial, and from that alone, plaintiff has endeavored to appeal to this court, and the matter is now before us on the motion of the intervener respondent to dismiss the appeal; it being the contention of intervener respondent that appellant has failed properly to serve an undertaking for costs on appeal.
The facts appear to be as follows: On or about January 23, 1927, appellant served on attorneys for respondent intervener by mail a notice of appeal, accompanied by an undertaking for costs executed by one C. L. Trudeau and one Harry Roache, as sureties. Within 10 days thereafter, and on January 26, 19217, attorneys for intervener respondent duly served upon attorney for appellant
Appellant served but the one notice of appeal, namely, that of January 23, 1927; he never justified the sureties upon the undertaking served' therewith, or other sureties in their stead, pursuant to the demand of intervener respondent, but gratuitously prepared another undertaking, with one of the same sureties, on February 5, 1927, mailing a copy thereof to the attorneys for intervener respondent.
Appellant’s attorney claims that he was led to give less than 6 days’ notice of the justification of sureties by reason of a conversation had by him with one R. B. Palmer, attorney at Woonsocket, S. D., who represented the defendant sheriff, and appellant contends that, while the defendant sheriff and the intervener trustee were represented by different counsel, yet, in connection with several matters during the pendency of the cause, the attorneys for the intervener had requested the attorney for defendant to appear for them and -their client, in conjunction with his appearance for his own client, the defendant sheriff, instead of making a trip from their office at Sioux Falls, S. D., and themselves appearing for their client. Attorney Palmer in conversation with appellant’s attorney stated that while he did not know what
Appellant’s attorney further contends that, when he learned that the attorneys for intervener would not consent to the justification of sureties on January 31st, inasmuch as they had not received the full 6 days’ notice thereof, he telephoned to said attorneys on February 1st, and had a conversation with Mr. Simons of their firm, as a result of which appellant’s attorney claims he formed the opinion that it would be agreeable to the attorneys for intervener if appellant served a new undertaking with sureties who were responsible. We do not believe that the words claimed to have been spoken by Attorney Simons, assuming the version of appellant’s attorney as to the telephone conversation to be true in every detail, would justify any such inference as. appellant’s attorney claims to have drawn therefrom. In any event, however, Mr. 'Simons denies the making of any such statements as are attributed to him in the telephone conversation. And it is the established rule of this court that it will refuse to consider any
Appellant seems further to be of the view that, when he mailed a copy of his new undertaking to- the attorneys for intervener, and they failed to advise him that they objected to that undertaking, or to the service of it at that time, they must be held thereby to have admitted service and to have -waived any defects in the undertaking or the time of the service thereof within the decision of this court in Ea -Penotiere v. Kellar, 28 S. D. 469, 134 N. W. 48. This contention of course is incorrect. In the Kellar Case there was án admission of service. In the instant case there was no admission of service, nor -did the appellant request any such admission; he simply mailed a copy of his second undertaking with one of the same sureties who had been on the first undertaking, to whom the intervener had excepted and who had never justified, to the attorneys for the intervener. They were under no duty to speak, either as a matter of law or of good faith, and, under such circumstances, manifestly no waiver of any sort can be predicated on their silence.
It seems too -clear for argument that appellant has never perfected his appeal, and has not succeeded- in conferring any jurisdiction on this -court to proceed therewith. Sections 3150, 3164, (R. C. 1919; Donovan v. Woodcock, 18 S. D. 29, 99 N. W. 82; Aldrich v. Public Opinion Publishing Co., 27 S. D. 589, 132 N. W. 278; Reed v. Todd, 36 S. D. 215, 154 N. W. 447; Wiseman v. Wiseman, 50 S. D. 258, 209 N. W. 337.
The motion of intervener respondent to dismiss the appeal must be granted, and an order of dismissal will be entered.
