14 S.D. 115 | S.D. | 1900
Lead Opinion
In the notice of appeal, which brings before us an order of the circuit court denying a rehearing in a case appealed thereto form the county court, an order overruling a motion to dismiss such appeal is designated for review. Although it was urged, in support of the motion to dismiss, that the appeal would not lie from the county to the circuit court for the reason that an administrator cannot be “a party aggrieved,” the motion for a rehearing was based upon the claim that the party appealing to that court never was an administrator and never gave an undertaking on appeal as required by statute, or at all. The facts, briefly summarized, may be stated thus: On the 14th day of May, 1898, appellant filed in county court a petition praying that the administrator of the estate of Peter Seydel, deceased, be required to pay certain taxes, penalties, and interest due upon real property within the limits of the city of Yank-ton, and upon this petition a citation addressed to Peter Seydal, administrator, duly issued from that court, made returnable a few days thereafter, and the sheriff in' whose hands such process was placed duly certified that he served the same personally upon Peter Seydel, administrator of the estate of Peter Seydel, deceased. Throughout the petition, citation, and return of the officer Peter Seydél is referred to as “administrator of the estate of Peter Seydel, deceased,” and his demurrer to the petition, signed, “French & Orvis, Attys. for Peter Seydel, Administrator of the Estate of.Peter Seydel, Deceased,” re
Unless by express provision of law, a court of last resort has no power to grant a rehearing after the remittitur has gone down, and all appellate courts lose jurisdiction over their decisions at the expiration of the term at which they are rendered. Wright v. Sherman, 3 S. D. 367, 53 N. W. 425; Dempsey v. Billinghurst, 8 S. D. 86, 65 N. W. 427; Ogilvie v. Richardson, 14 Wis. 157; Grogan v. Ruckle, 1 Cal. 193; Caldwell v. Bruggerman, 8 Minn. 286 (Gil. 252): Sullivan v. Speights, 14 S. C. 358; Brooks v. Railroad Co., 102 U. S. 107, 26 L. Ed. 91. According to section 4939 of the Compiled Daws, a court may, at any time within one year after notice thereof, relieve a party from a decision against him taken through his mistake, inadvertence, surprise, or excusable neglect, but it cannot be said that this proceeding is within such provision. Under our view, it is needless to determine the correctness of appellant’s contention that the case, in the absence of an undertaking on appeal, was never removed from the county court. In any event, the circut court
Concurrence Opinion
concurs only in the conclusion that the order of the circuit court denying appellant’s application for a rehearing should be affirmed.