177 N.W. 499 | S.D. | 1920
Motion to dismiss an appeal from an order overruling a demurrer to a complaint. Our statute (section 3147. Rev. Code 1919) requires that an appeal from an order shall be taken “within sixty days after written notice of the filing of the order shall ihave been given to the party appealing.” Sixty days from the giving of such a notice had not expired when this appeal was taken; but respondent contends that the giving of such notice had been waived more than 60 days before this appeal was taken. Two questions are presented to us: Can a party entitled to such notice waive same? If so, did' appellant do that which amounted to a waiver?
“Waiver is the voluntary surrender of a right; estoppel is the inhibition to assert it from the mischief that has followed. Waiver involves both knowledge and intention, and estoppel may arise where there is no intent to mislead. Waiver depends upon what one himself intends to do; estoppel depends rather upon what he caused his adversary to do. Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice or into an altered position; an estoppel always involves this element. Estoppel results from an act which may operate to the injury of the other party; waiver may affect the opposite party beneficially. * * *
“The most general distinction lies in the fact that the term, 'waiver,’ besides implying an intention on the part of a party to relinquish a right which is not necessarily present in estoppel, refers only to the act or consequence of the act of the party against whom! the 'waiver is sought to be enforced, regardless of the attitude assumed by the other party, whereas estoppel arises where, by the fault of one party, another has been induced, ignorantly or innocently to change his position for the worse in such manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right in controversy. . The distinction is more easily preserved in dealing only with express waiver, but where the waiver relied upon is constructive, or merely implied from the conduct of a party irrespective of what his actual • intention may have been, it is at least questionable if there are not present some of the elements of estoppel. * * * A waiver exists only where one with full knowledge of a material fact does or forbears to do something inconsistent with the existence of the right or of his intention to rely upon that right.”
.With the above in mind, let us consider that act of appellant which respondent contends amounts to a waiver. The order overruling the demurrer gave appellant, defendant below, time to answer. Before the expiration of such time defendant made
“A-motion to the court or other proceeding by a party, with reference to the decision, which presumes his knowledge that it has been -made, and 'by which he seeks to protect his own interest against the rights of the other party under the decision, will be regarded as a waiver of his right to a notice of the 'decision.”
The appeal is dismissed at appellant’s costs.