Ewing v. LunnEwing v. Lunn
- Reporters:
- , ,
- Before:
- Fuller
Thе first trial of this action to recover a lаnd agent’s commission terminated in a verdict аnd judgment for plaintiffs which was ‘entered in circuit court February 18, 1904, and vacated therein‘on thе 27th day of July following by an order granting the defendant a new trial. Service of this order was duly admitted by counsel for plaintiffs who appeаred for his clients at the second trial held at the April, 1905, term and which resulted in a verdict favorable to defendant upon which judgment was rеn-’ dered.
*56A motion for a new trial made in plаintiffs’ behalf after the entry of judgment was denied оn the 24th day of October, 1905, and a notice оf appeal was duly served on opposing counsel and the clerk of the cirсuit court as follows: “Please take notiсe, -That the plaintiff‘s appeal to thе Supreme Court of the state of South Dakоta from the order of the circuit court, made and entered in said cause on the 27th day of July, A. D. 1904, vacating and setting aside the verdict of the jury and the judgment of the court, entered in sаid cause February 18, 1904, and granting a new trial of said cause; also from the judgment entered in said cause April 20, 1905, and from the order of the court denying plaintiff’s motion for a. new trial thereof, dated September 16, 1905, and duly entered herein, and from the whole thereof.” A motion is mаde in this court to dismiss the appeal on the ground of duplicity. While but one undertaking on aрpeal was given, the abstract contаins the record of two separate аnd distinct trials, including two bills of exceptions with assignmеnts of error predicated on eaсh, and the case is argued in the brief as a double appeal. The order vacating the first judgment and granting a new trial, on motion of rеspondent, and the order denying appеllant’s” motion to vacate the secоnd judgment and grant him a new trial being each the subject of an independent appeаl, calling for the review of alleged ‘errоrs occurring at two separate trials, the appeal cannot be entertаined. It has long been settled in this jurisdiction, and in othеr states having a similar statute, that an appeal cannot be taken from two separate and distinct appealable orders. Hackett v. Gunderson, 1 S. D. 479, 47 N. W. 546; Anderson v. Huffman, 12 S. D. 105, 80 N. W. 165.
From this uniform rule of practice nothing is here presented to justify a departure, and the appeal is dismissed.
CORSON, J., not sitting.