243 N.W. 916 | S.D. | 1932
Appellant above named has attempted by a single notice in writing (section 3146, R.C. 1919) to take an appeal to this court in the above-entitled cause from two separate, disconnected, and appealable orders made and entered in the court below prior to final judgment, to-wit, from an order granting a temporary injunction and from an order overruling a demurrer to the complaint. Prior to the serving and filing of his brief on appeal, but after expiration of the time to appeal from the respective orders, respondent brought on for hearing in this court, pursuant to order to show cause, his motion to dismiss the appeal as duplicitous, which motion is now for disposition.
After the service of the notice of appeal and before making the motion to dismiss, respondent, by his counsel, excepted to the sufficiency of the sureties on the undertaking on appeal, in writing waived all objections to a substituted undertaking thereafter furnished by appellant, and, on two occasions, for the accommodation of appellant's counsel, entered into a written stipulation extending the time for serving and filing appellant's brief on appeal, and thereafter accepted service of appellant's brief.
[1, 3] Whatever may be the practice in other jurisdictions, it has been the rule in this state, almost since statehood, that two independent separate appealable orders cannot be united and made the subject of one appeal, and an effort so to do lays the entire appeal open to dismissal for duplicity. Hackett v. Gunderson (1891)
[4] Appellant contends that the orders sought to be appealed from in this case are not separate independent appealable orders within the meaning of the rule above stated. In this contention appellant is plainly in error.
[5] Appellant further submits that the rule in this state against double appeals is unsound, and is not, in fact, supported by the authorities from other states, particularly Wisconsin, cited in support thereof in the earlier cases. That question we are not disposed to review. The point is one of practice and procedure. Whether originally sound in theory or not, our rulings have been settled and uniform since 1891. Bearing in mind the importance of settled practice (Morrison Skaug v. Connery,
[6-9] Appellant further contends that, conceding his attempted appeal to be duplicitous, and conceding that a duplicitous appeal is bad, nevertheless it constitutes a mere irregularity, and the fact *124 that the notice purports to appeal from two separate independent appealable orders is merely a defect in the notice which can be waived by respondent, and in this case has been waived by respondent by his conduct in admitting the sufficiency of the sureties on the substituted appeal bond, stipulating for extension of time to file appellant's brief, and accepting service of said brief.
Appellant bases his argument on this phase of the matter primarily upon the language of Corson, J., in an opinion on rehearing in the case of Ewing v. Lunn. In that case (
We are of the opinion that this obiter statement was unsound and ill-advised. While that language has not been discussed in subsequent cases, nevertheless our practice has not proceeded along the lines thereby indicated. It has been the position of this court subsequently that a valid notice of appeal within the time prescribed by law is essential to give this court jurisdiction of the subject-matter, that this court has no power to extend the time for taking an appeal by serving the statutory notice, and that a duplicitous notice is ineffectual as to any of the orders or judgments thereby sought to be appealed from. In National Surety Co. v. Cranmer (1911)
Such holding is utterly inconsistent with the idea that duplicity in a notice of appeal constitutes a mere irregularity. That a duplicitous notice of appeal affects the jurisdiction of this court over the subject-matter is the inference from the language of this court in State ex rel Hitchcock v. Till (1926)
[10-12] We are of the opinion that the notice of appeal in this case is clearly duplicitous. We are further of the opinion that such defect constitutes more than a mere irregularity and goes to the jurisdiction of this court over the subject-matter, and, the time for appeal from the two orders mentioned in the notice having expired, the notice as it now stands must be held ineffectual, and this court would have no power at this time to render the appeal effectual as to either order by striking from the notice all reference to the other.
We think, therefore, that the motion to dismiss the appeal must be granted, and it will be so ordered.
WARREN and RUDOLPH, JJ., concur.
POLLEY and ROBERTS, JJ., absent and not participating.