176 N.W. 652 | S.D. | 1920
This is an appeal from a judgment and an order overruling a motion for a new trial. Respondent moves to dismiss the appeal on the ground that it was not taken within the statutory time for appealing.
The notice of intention to moye for new trial was not served until the 28th day of January, 1919. This was after the expiration of the time for appealing- from the judgment. When the time for appealing from the judgment was allowed to expire, and, no notice of intention tc move for new trial had! been given-, the judgment became final. The trial court lost jurisdiction to determine the matters presented 011 the motion or to grant a new trial. Keyes v. Baskerville, supra.
“* * * ‘When the time for appeal from judgment has expired, the trial court has no authority thereafter to entertain a motion for a new trial under the objection of the adverse party, unless the final character of the judgment has been suspended by procedings commenced prior to the time for appeal has expired. In applying this rule this court held in Skaar v. Eppenland, supra, that where a motion for a new trial is duly noticed to be heard at a date prior to the expiration of the time for appeal from a judgment, but continued by consent of the parties, and finally submitted and determined after the time for appeal from.' judgment has expired, the final character of the judgment is suspended by such proceedings, and the court has jurisdiction to determine a motion for a new trial, even though the time for appeal from judgment has expired.- But in Gobi v. Bechtold, supra, this court held that the final character of the judgment is not suspended, so as to authorize the court to entertain the motion, by the mere fact that notice of motion was served prior to the time in which an appeal from the judgment has expired.”
We believe the above rule correctly interprets the appeal statute, and adopt the same as the rule to be followed in this state. The matter is discussed at length in the case just cited, and a repetition of the same would be of no benefit here.
The motion to dismiss the appeal is granted.