11 S.D. 493 | S.D. | 1899
This action was tried in justice’s court, and" judgment rendered therein, April 13, 1896. April 28th defendant filed its undertaking on appeal. April 30th plaintiffs excepted tó the sureties. May 9th defendant filed a second undertaking. May 11th plaintiffs excepted to the sureties on this undertaking. Neither of the sureties on either undertaking ever justified. May 16th defendant filed a third undertaking, with two sureties, who had not signed either of the other undertakings. June 9th the record was transmitted by the justice to the circuit court. October 6th it was filed in the office of the clerk of that court. October 4th plaintiffs noticed a motion to dismiss the appeal, which was not heard because of the continuance of the case, by consent of parties, on account of sickness of plaintiffs’ attorney; and April 2, 1897, another motion to dismiss was served upon defendant’s attorney. Upon the second motion to dismiss, the court made the following order: “The above entitled cause was brought on for hearing at the regular April, A. D. 1897, term of said court held at the court house in the city of Milbank, county of G-rant, and State of South Dakota, on the 13th day of April, 1897, before Hon. A. W. Campbell, judge of said court; and, upon notice duly given, a motion was made by plaintiff’s counsel therein to dismiss the appeal of the defendant, on the ground of a failure on the part of the sureties' to justify before the justice before whom said action was tried, or at all, after exception to’ said sureties had been taken by the plaintiffs ,in said action; and it appearing that the said plaintiffs duly excepted to said sureties, and that neither they nor any other sureties justified before said justice according to law; or at all; and it further appearing that 'the records in said cause and 'transcript of the
As to the second ground for dismissal of the^appeal, the record shows that the papers were not transmitted to the clerk by the justice until June 9, 1896. If the appeal was ever perfected, it could not have been later than May 16th, 24 days be'fore the papers were transmitted to the clerk, and over 3 months before they were filed in his office. Assuming it was competent to excuse this delay, no excuse was shown, and the trial court was justified in dismissing the appeal on this ground alone. Edminstér v. Rathbun, 3 S. D. 129, 52 N. W. 263; Comp. Laws, § 6136.
Defendant’s contention that plaintiffs’ motion came too late is not tenable. . The statute provides that the appeal shall be filed by the clerk on payment of his costs. “If not so filed
The court below did not err in dismissing the appeal^ but its judgment must, be modified. It should merely dismiss, leaving the judgment in the justice court, as if no appeal had been taken, and give plaintiffs judgment for the amount of their costs and disbursements in the circuit court. The action is remanded to the circuit court, with directions to\modify its judgment as indicated herein. As this modification does not affect any substantial rights, respondents will recover the usual costs and disbursements.