14 S.D. 222 | S.D. | 1901
This is an action originally commenced in a justice’s court to recover damages for the alleged conversion of personal property. The summons was in the usual form. A complaint,answer and replication were filed in the justice’s court. On the re
Before proceeding to discuss the merits of the case it will be necessary to dispose of certain motions made on the part of the appellant and the respondent. The respondent has sought to bring before the court, by an additional abstract, what purport to be the proceedings on the motion for a new trial had in the court below. The appellant has moved to strike out said amended abstract for the reason that the proceedings had on the motion for a new trial are no part of the record of this case, as no appeal has been taken from the order denying the motion, and the appellant relies wholly upon errors appearing in the judgment roll for a reversal of the same. We are of the opinion that this motion should be granted. A party is given the right of appeal from the judgment upon the judgment roll, and he may take such an appeal without bringing up the proceedings on the motion for a new trial, if he deems it proper to do
It is contended on the part of the respondent that as the court below denied the motion to vacate the judgment and for a new trial, and no appeal having been taken therefrom, that order is res adjudicata, and that this court cannot now disturb the original judgment. This position is not tenable. No motion for a new trial was necessary in the court below in order to enable this court to review the judgment, and hence the decision of the court upon the motion for a new trial cannot affect the proceedings in this court. The respondent's amended abstract, therefore, must be stricken from the record.
Respondent has also moved to strike out the appellant’s abstract on the ground that the abstract, as served, contained no index to the same. It seems from the showing made on the part of the appellant that the failure to annex an index to the abstract was caused by the absence of his attorney from the state while the abstract was being printed, and was an inadvertence which was immediately remedied by serving and filing new abstracts, properly indexed. As the appellant has shown a sufficient excuse for his failure to annex an index to the original abstract, and before the hearing served and filed abstracts properly indexed, the motion to strike out the abstract is denied. This brings us to the merits of the case.
It is contended on the part of the appellant that: “ (i) There was no notice of appeal, and notice of appeal from the justice’s court to the circuit court cannot be waived by the parties to an action, so as to confer jurisdiction upon the circuit court. (2) There was no undertaking on appeal from said justice’s court to the
The question next presented is, could the parties by stipulation institute a new suit in the circuit court court without the issuance of summons? In this state a civil action in the circuit court is commenced by the service .of a summons. Section 4892 Comp. Laws. Section 4893, Id., provides the requisites of a summons. Section 4904, Id., provides : “From the time of the service of a summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.” The last clause of the section contemplates the existence of a summons, and simply dispenses with the service of the same where there is a voluntary appearance of the party. In many of the states, including California and others of the Pacific coast states, an action is commenced by the filing of the complaint. Of course, in such a case the issuance of a summons is not absolutely essential, if a party defendant voluntarily appears and answers the complaint. But when, as in this state, an action is commenced by the issuance and service of a summons, there can be no action over which the circuit court has jurisdiction until a summons has been issued and served, except in the class of cases provided for in section 4904, above quoted, and in section 4858, Id., which provides that: “An attempt to commence an action is deemed equivalent to the commencement thereof when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants or one of them usually or last resided. * * * But