186 N.W. 967 | S.D. | 1922
Appellants perfected an appeal herein on the 6th day of June, 1921. It coming to the attention of this court that the record upon such appeal had been settled on the 23d day of March, 1921, and that no brief had been filed or further proceedings taken, thus rendering the appellants in default, this court, on the 9th day of August, 1921, found that such appeal had been abandoned, and dismissed same. 'Remittitur was transmitted to the trial court on the 30th day of August, 1921. February 1, 1922, appellants procured an order to show cause why this court should not vacate its order of dismissal, and permit appellants to file briefs on appeal. It is upon the return of such order to show cause that this cause is now before us.
Could it be possible that a circuit court, after it had remanded to a justice court a cause appealed to such circuit court, could, under said section 2378, vacate its judgment, reinvest itself with jurisdiction, and again function as an appellate court? The answer seems to us obvious; and we have been referred to no cases supporting appellants’ contention.
The case now .before us illustrates well the evils that might result from any such construction of section 2378. A will contest was brought in county court; from the judgment of that court, appeal was taken to the circuit court; and then, from the judgment of the circuit court, the appeal to this court was taken. The remittitur of this court was transmitted to the circuit court: and then the judgment of that court was transmitted to the county court, wherein the probate proceedings have since continued. Endless confusion and uncertainty with accompanying injury to society would result from placing such a construction upon section 2378 as contended for by appellants.