Greenly v. Hopkins, 7 S.D. 561

Greenly v. Hopkins

7 S.D. 561 | S.D. | 1895

Kellam, J.

This is an appeal from a judgment rendered by the circuit court of Brookings county. Respondent’s motion to dismiss the appeal must be sustained. Appellant’s abstract shows that the judgment was rendered and dated September 25, 1895, and sets out the same in full. The abstract then recites. “The foregoing judgment having been duly entered in said court on the 13th day of October, 1894, the plaintiff and appellant perfected .a» appeal,” etc. The date may refer to the entry of judg*563ment, or it may refer to the taking of the appeal. The notice of appeal was served, if at all, on the day named, October 13,1894. Respondent filed an additional abstract, which denies that such judgment was on that day, or before that time, entered in said court, or that it or any judgment in said action has ever yet been entered, or that any judgment roll has been filed therein. If the recital of appellant’s abstract should be so read as to make the denials of respondent’s additional abstract raise an issue of fact, we perhaps should be at liberty to go to the original papers for a settlement of such dispute, though in Iowa, from which state our rules as to the making and the effect of abstracts are taken, it is held that the counter statements of respondent’s abstract will be taken as true unless denied by another abstract of appellant. See 2 Enc. PI. & Prac. p. 317, and cases there collected. But, treating in this case the two abstracts as presenting an issue of fact to be settled by the original files, they do not show that the judgment appealed from was entered prior to the taking of the appeal. The judgment itself shows by the certificate of the clerk indorsed thereon that it was filed in his office October 10, 1894, and recorded in Judgment Book B April 6, 1895. As the judgment book is provided by statute for the entry of judgments, we conclude that the meaning of this certificate is that the judgment was entered in such judgment book on the 6th day of April, 1895, more than four months aftér the appeal was taken. The certificate of the clerk further affirmatively shows that at a date five months subsequent to the taking of the appeal no judgment roll had been filed in the clerk’s office. Section 5216 of the Compiled Laws provides that an appeal from a judgment ‘ ‘must be taken within two years after the judgment shall be perfected by filing the judgment roll.” Sections 5101-5103 provide very particularly for the entry of the judgment in the judgment book, and for making up and filing the judgment roll and section 5216, supra, seems to allow an appeal to be taken only after the judgment roll is filed. In the faqe of these dj? *564rect statutory provisions and the facts presented by the record, we do not see how we can entertain this appeal. The appeal is dismissed without prejudice.

All concur.