1 S.D. 306 | S.D. | 1890
This is a motion by respondents to dismiss the appeal in this action, and also to strike the cause from the term calendar. The motion to dismiss the appeal is made upon the ground that the undertaking on the appeal was executed and filed in the court below more than three months before the notice of appeal now relied on was served and filed. An inspection of the record discloses the fact that on the 25th day of July, 1890, appellant executed and filed the undertaking for the costs on appeal now in controversy, and that, subsequently, on October 28, 1890, the appellant served a notice of appeal with a copy of this undertaking, and at the same time filed said notice of appeal, and refiled-the original undertaking, so executed and filed in July, in the office of the clerk of the court below. The question is therefore presented as to whether or not the undertaking so executed and originally filed in July, but a copy of which was served with the notice of appeal on October 28th, and refiled with notice of appeal, is a good and sufficient undertaking in this appeal. Section 5231, Comp. Laws, provides that “the undertakings required by this act may be in one instrument, or several, at the option of the appellant. The original must be filed with the notice of appeal, and a copy showing the resi
The motion to strike the cause from the term calendar is made upon the ground that the original papers or copies were not filed in this court 15 days before the term, as provided in the rules of this court, to entitle a cause to be placed upon the term calendar. This- motion is not resisted by the appellant. As before stated, this appeal was not perfected until October 28, 1890, and the original papers were not filed in this court until November 5, 1890. The motion to strike the cause from the term calendar is therefore granted, and it is ordered that the same be stricken from the term calendar for this term.