3 S.D. 129 | S.D. | 1892
This action was commenced and tried in a justice-court, a judgment rendered in favor of the plaintiff, and appeal taken by the defendant to the circuit court, where the appeal was dismissed, and defendant appeals from said judgment of dismissal to this court. The case was tried and judgment rendered on December 20, 1890. On December 26th, the defendant served and filed with the justice a notice of appeal, and oh the same day filed an undertaking for costs on appeal, as provided by law, but the justice’s fee of one dollar for making this return was not paid until February 12, 1891. On the last-mentioned day this fee was paid’'and'the justice’s return filed, in ■ the circuit court, and on February 14th the appeal, on motion of the plaintiff, was dismissed. The only error assigned on this appeal is that the circuit court erred in dismissing the appeal in this action. The learned counsel for the appellant contends that there was nothing properly before the court below to warrant or authorize dismissing the appeal. The record, however, discloses the fact that a formal motion to dismiss was made, supported by two affidavits, in which the facts above stated are • clearly shown. It is true that the motion does not state the grounds on which the same would be made, but, as no objection appears to have been taken to it in the court below, it cannot be.taken for the first time in this court. The motion states fully upon what records, files, and affidavits the motion would be heard, and,- if the ■ appellant had any objection to the motion because the grounds of the same were not stated therein, he should have made the objection in the court below, when the motion could have been amended, had it been deemed insufficient. The motion read in connection with the affidavits referred to therein was evidently made upon two grounds: First, because the justice’s fee for his return was not paid within 30 days after the rendition of the judgment; and, second, because the return of the justice was not filed in the appellate court within 15 days after the appeal was perfected by the serving and filing of the notice of appeal, and filing an undertaking for costs.
The second ground upon which the motion seems to have been made — that the return of the justice was not filed in the appellate court within 15 days after the appeal was perfected — presents a more important question. The last clause of section 6136, Comp. Laws, is as follows: “No notice of trial and note of issue shall be required to be served or filed in order to bring the cause appealed upon the trial calendar in the district court, but said appeal shall be filed by the clerk, on payment of his costs, and entered upon the calendar, and shall stand for trial as soon as same is reached in the regular call of the calendar thereafter. If not so filed within 15 days from the time such appeal was perfected, then the same shall be dismissed by order of. the court at any time thereafter, upon motion of the appellee, after three days’ notice to the appellant or his attorney.” The respondent insists that the statute is mandatory, and that, unless the return is filed within the time specified, the appeal must be dismissed. Counsel for appellant contends that the requirements of the statute are directory merely. In our view of the case,' it does not become necessary to decide this question at this time, for assuming that the statute, as claimed by the