6 S.D. 626 | S.D. | 1895
This case comes before! us on a petition for rehearing. The appeal was decided at the last term of this court, and the opinion is reported in 62 N. W. 131. The grounds for a rehearing set forth in the petition are that this court had no jurisdiction of the case, for the reasons (1) that the appeal was from an order made by the judge, and not by the court; and (2) that the order appealed from was not an appeal-able order, it being an order sustaining the defendant’s objection to the introduction of evidence on the part of the plaintiff, on the ground that the complaint did not state facts sufficient to constitute a cause of action.
In support of the first proposition, the learned counsel for the respondent contends that the so-called “order” was made in chambers, as appears from a recital in the order, and therefore comes within the principle of the decision in Black Hills Flume and Min. Co. v. Grand Island & W. C. R. Co., 2 S. D. 546, 51 N. W. 342. That case, however, is not analogous, and does not rule the case at bar. The court held in that case that the order made, being one that could have been made by the court or the judge, clearly appeared to have been made by the judge. The order to show cause was made returnable before judge, and the order recites that the judge considered the motion, and both orders recite that they were made at chambers.
The second contention is equally untenable. The so-called “order” was a final judgment, dismissing the action, and awarding costs to the defendant. That it was a judgment clearly appears from the concluding portion, which is as follows: “And, the court being fully advised in the premises, it is ordered and adjudged that said objection be sustained, and the complaint herein be dismissed, with costs, and that the defendant have and recover of plaintiff its costs, taxed at,” etc. This was a final determination of the action. Again, the abstract states that “thereupon * * * the plaintiff perfected an appeal to the supreme court from said judgment.” This statment in the abstract is not questioned by any additional abstract, and we must therefore assume that the abstract is correct, and that the fact that it was a judgment was conceded.