Larson v. Munson

157 N.W. 318 | S.D. | 1916

WHITING, J.

This cause is (before us upon a motion to dismiss the appeal herein. Action wias brought to recover the amount due upon a promissory note. Defendant demurred to the complaint. The demurrer was, overruled. The appeal was from the order overruling defendant’s demurrer.

Defendant did not see fit to give- a supersedeas bond and thus stay further proceedings in the trial court. Owing to such • failure, plaintiff, long after the taking of the appeal herein, applied to the trial court for judgment. Such application was made upon notice 'to the defendant." Judgment was entered. The judgment recites :

“It appearing to the court that the plaintiff is entitled1 to judgment for the reason that defendants have appealed' said case to the Supreme Court * * * and haye failed', refused, and neglected to give a supersedeas1 bond or to in any manner secure or protect the plaintiff in said proceedings1, as heretofore ordered by the court.”

Said judgment .also recites:

“On motion of * * * plaintiff’s attorneys, and the defendants consenting thereto, it is ordered 'and adjudged,” etc.

The motion papers show that, upon'such judgment, plaintiff has -taken out an, execution and1 levied upon property of defendant sufficient to pay 'the same.

[1] The present motion is- based upon the above facts. Respondent seems, to -be of the opinion that appellant -lost his. right of appeal by neglecting to give a supersedeas bond as provided by law and the order of the tria-l co-ur-t.' We know of no (provision of our statute Chat prescribes the giving of a super-sedeas undertaking- .as a condition precedent to a right of appeal. The giving of such an undertaking is- a privilege, and'- not a d'u-ty. If one is not given, the hand of 'the adverse party is not stayed, and he can proceed as though no appeal was. pending, -taking- his ■chance, however, upon the appeal being1 successful and his 'being held, for any damages that may .have resulted- to appellant through such further -proceeding’s as he has taken.

[2] But in this case the appellant consented to judgment, thus completely removing any reason for an appeal and! making the question presented upon s-uch an appeal a purely moot question, and' the case, as it now stands, a moot case -not based upon any rights. Appellant having -consented to. the judgment, it must be presumed by this court that respondent was entitled thereto. It follows that -appellant was not wronged by the overruling- of his demurrer, and no right is now -involved1 on this appeal.

The -appeal is dismissed, without costs.