9 S.D. 351 | S.D. | 1896
This case comes before us on a motion to dismiss the appeal. The affidavit upon which the motion is made states, in substance, that a notice of appeal and undertaking on appeal were served on the 10th day of June, A. D. 1896; that on the 20th day of the same month a notice of exceptions to the sufficiency of the sureties on the undertaking was duly served upon the appellant’s attorney in person, and that the sureties have never justified. The respondent therefore insists that at the expiration of the ten days allowed the sureties to justify by statute this court lost jurisdiction of the appeal, there being thereafter no undertaking on appeal in the case.
The facts stated in respondent’s affidavit are not denied by the appellant, but he shows by affidavit that the notice that the sufficiency of the sureties was excepted to was served upon the attorney at 10:30 p. m., and that, subsequently to the expiration of the 10 days allowed by law in which the sureties are required to justify, a stipulation was made by the attorneys of the respective parties, extending the time for serving abstract and briefs, and also that the respondent has served and filed a brief in this court. Appellant therefore contends that the notice of exceptions to the sufficiency of the sureties was served too late, and that by the stipulation and service and filing a brief the respondent has waived the failure of the justification of the sureties, and the appeal is still properly in this court.
This court held, in Bonnell v. VanCise, 67 N. W. 685, that serving and filing an undertaking on appeal was necessary in order to transfer the case to this court, and give this court jurisdiction of the appeal. Sec. 5232, Comp. Laws, provides that “the respondent may, however, except to the sufficiency of the sureties, within ten days after the notice of the appeal, unless they or other sureties justify * * * within ten days thereafter, the appeal shall be regarded as if no undertaking had been given.” The failure, therefore, of the sureties .to justify, left the appeal, in legal effect, ineffectual for any purpose (Sec-2519, Comp. Laws), as that section declares that “to render
The contion of the appellant is that the service, being made upon the tenth day after the notice of appeal was served, should have been made before 9 o’clock p. m., and that the service at 10:30 p. m. was not within time, and he calls our attention to Sec. 5328, Comp. Laws. By that section “the service may be personal or by delivery to the party or attorney, on whom the service is required to be made; or it may be made as follows. ” The limitation in the following Subdivision 1, ‘ ‘or where there is no person in the office, by leaving it between the hours of six in the morning and nine in the evening,” does not apply to personal service. We are of the opinion that personal service upon the attorney may be made at any time before midnight of the last day of service. The service, therefore, made upon the attorney personally at 10:30 p. m., was sufficient service.
We are also of the opinion that the execution of the stipulation and serving and filing a brief in this court by the defendant did not affect the right of the respondents to have the appeal dismissed. Sec. 5215 provides that “the appeal shall be deemed taken by the service of the notice of the appeal, and perfected on service of the undertaking for costs, or