Farmers' & Merchants' State Bank of Hecla v. Michael

153 N.W. 1008 | S.D. | 1915

WHITING, J.

These actions are before us upon orders to show cause, each requiring the appellant to show cause, if any there be, why the appeal should not be dismissed. The appeal in each case is from an order of the -trial court refusing to dissolve an attachment which had been is-sued in said action and levied upon defendant’s property, and the two records present the same facts. The grounds upon which the dismissal of each appeal is asked are: (i) That the order appealed from is not an appeal-able order; (2) that there is no settled' record upon which the appeal can be based; and (3) that the main action herein has been settled 'by and between- the -parties -by the payment of. the amount prayed for in the complaint, together with the costs.

[1] The order appealed from is an appealable order. Quebec Bk. v. Carroll, 1 S. D. 1, 44 N. W. 723; Wyman v. Wilmarth, 1 S. D. 35, 44 N. W. 1151; Hall v. Harris, 1 S. D. 279, 46 N. W. 931, 36 Am. St. Rep. 730.

[2, 3] That there is no settled record is a fact that cannot be taken advantage of upon a motion to- dismiss an appeal. In case there is no settled record, and the errors complained of are such as can only be presented upon a settled record, the appeal will not be dismissed, but the judgment below will 'be affirmed. Respondent seems to be of the opinion that the record for this appeal must be settled in accordance with the provisions of chapter 178, Laws of 1913. If the order appealed from complies with the provisions of rule 5 of the circuit court (22 S'. D. 1), or if ■the trial court, failing to comply with such rules, thereafter and within proper time made and attached to such order a certificate ■covering any 'omissions in such order, there exists a “settled record” sufficient for the purposes of this appeal.”

[4, 5] Each action was settled and dismissed under and pursuant to a stipulation whereby the parties recognized the fact that an appeal was to be taken from the order refusing to vacate the attachment. Respondent contends that as soon as a cause was settled and the attachment vacated there was left nothing to appeal from; that, if appellant desired to appeal from the order dissolving the attachment, he should not have voluntarily settled the main action. With such contention we cannot agree. Appellant did not question his liability on the causes of action, but did question the right of the respondent to have his property attached. If the attachments were not warranted by the existing facts, their ■issuance and the levies thereunder were clear violations of appellant’s rights, for which he would be entitled to recover damages, regardless of his liability upon the causes of action set forth in the complaint. Such damages might, in a given case, far exceed'the amount of recovery sought -by plaintiff. Certainly it is not the law of our land that a party is prevented from settling- an honest debt at the earliest possible time, and with the least possible cost, simply because his creditor has wrongfully attached bis property. Respondent has failed to cite us any authority- whatsoever in support of his contention. Appellant did not lose his right to review the order of the court in the ancillary proceedings b}' settling the main action after such order had been made.

The order to show cause is dismissed, and the relief sought by respondent denied.

McCOY, P. J., and iSMITH, J., not sitting.