3 S.D. 138 | S.D. | 1892
The above-entitled action was tried by the court below upon a demurrer interposed to the complaint by tbe defendants, which demurrer was overruled, and defendants appealed. The decision of the lower court was reversed, and a judgment was rendered directing the circuit court to sustain the demurrer, and in addition adjudged that the defendants recover the sum of $150.60, the costs of the appeal. A remittitur was sent down to the circuit court ordering “that the case be, and is hereby, remanded to the circuit court for further proceedings according to law and the judgment of this court.” On the day of its reception the remittitur was filed in the office of the clerk of the court, and the defendants caused a judgment to be entered in the court below;, as follows: “It is ordered and adjudged that the said judgment of said supreme court be, and the same is hereby, made the judgment of this court, and that the said demurrer be, and the same is hereby, sustained, and that the plaintiff’s complaint herein be, and the same is hereby, dismissed.” An execution was issued for the collection of the costs upon the appeal, which execution was returned fully satisfied. Subsequent to the return of the execution the plaintiff served a notice upon the defendants of a motion for leave to serve an amended complaint. On the day of the hearing of the motion the court made an order granting the plaintiff leave to
The only question in the case is whether an amended complaint in an action can be filed when the original complaint has been dismissed, without an order setting aside or vacating the judgment of dismissal. The judgment entered in the case at bar was “.that the plaintiff’s complaint herein be, and the same is hereby, dismissed.” Then follows a judgment for costs. The complaint being dismissed, there was no foundation upon which the action could rest, and it clearly seemed to be a final termination of the case, and no action pending. In 2 Wait, Pr. p. 517, the author says: “A complaint once dismissed so far terminates the action that no motion or proceeding can be had in the case except for the purpose of carrying into effect the order of dismissal. In special cases, however, and upon proof that substantial justice requires it, the court will always entertain and grant a motion to sustain the complaint.” In the case of Tillspaugh v. Dick, 8 How. Pr. 33, Parker, J., says: “The dismissal of the complaint was a judgment in favor of the defendant, and entitled him to receive whatever items of costs are given by the Code for services rendered.” In Taft v. Transportation Co., 56 N. H. 417, the court says: “The entry 'dismissed’ by order of court appears to have been devised by the court for the purpose of absolutely putting an end to such defective actions. * * * The term 'dismissed’ acquires a technical meaning in suits at law in our practice. I think that under the rule spoken of by Judge Bell, and ever since under our practice, the term 'dismissed’ has signified a final ending of the suit; not a final judgment on the controversy, but an end of that proceeding.” The abstract before us shows there was no motion or application .to vacate or set aside the judgment of dismissal, and we presume, therefore, it was not done. We must also presume upon the rejectments of the judgment of the court below, unless the contrary is shown. If the court caused an erroneous judgment to be entered, or an imposition had been practiced upon it, there can be no doubt the court would have been prompt in rectifying any error or injustice done the plaintiff, whenever its attention was called to the fact. The judgment
