Reed v. Todd

154 N.W. 447 | S.D. | 1915

WPIITIN'G, J.

[1-3] Notice of appeal herein was served July 23, 1915. On July 27, 1915, the respondent served notice that he excepted to the sureties on the appeal undertaking. Section 458, C. G. P., provides.

“The respondent may, however, except to the sufficiency of the sureties within ten days after such notice of the appeal, and unless they or other sureties justify in the same manner as upon bail on arrest within ten days thereafter, the appeal shall be regarded as if no undertaking had been given.”

Appellant 'served notice, that such sureties would justify on August 16, 1915. Respondent, upon notice duly given, has moved the dismissal of this appeal. On August 7, 1915, this appeal stood “as if no undertaking had been given,” and therefore, under section 445, C. C. P., it was not from that date “effectual for any purpose.” When appellant failed, within ten days after the notice of July 27th, to. have his sureties justify, this court lost all jurisdiction of this cause, except the jurisdiction to strikea the files therein from- its record and to award judgment for costs. Section 420, C. C. P. Upon the hearing of the motion to dismiss, October 6, 1915, appellant, without previous notice given to respondent, .prsented to this court a new undertaking and asked to be allowed to serve and file the same as an undertaking on the appeal under the notice served July 23, 1915. Appellant’s motion is based upon section 461, C. C. P., which provides:

“When a party shall in good faith give notice of appeal, and shall omit, through mistake of accident ■ to do any other act necessary to perfect the appeal or make it effectual, including -the giving of a proper undertaking for costs and damages, or to stay proceedings, the court from which the appeal is taken, or the presiding judge thereof, or the .Supreme Court, or any one of the justices thereof, may permit an amendment or the proper act to ■be done, including the giving of a new undertaking, on such terms as may be just.”

In Aldrich v. Public Opinion Pub. Co., 27 S. D. 589, 132 N. W. 278, we held that relief, under section 461, could not be granted when to g-rant same would be to extend the period for taking-appeals beyond the time limited by statute. The present appeal is from a judgment. It appears that this judgment was entered •July 23, 1913, and the notice of appeal recites that it was filed and docketed on July 24, 1913. Under section, 442, C. C. P., an appeal from a judgment “must be taken within two years after the judgment shall be perfected by filing the. judgment roll.” Under section 319, C. C. P., it is the duty of the clerk of the trial court to make up the judgment roll “immediately after filing the judgment,” and under section 321, C. C. P., a judgment is hot properly docketed until it has been filed. It is certainly incumbent upon one applying- for relief under section 461, C. C. P., to affirmatively show facts authorizing the court or judge to grant the relief and further to show that a compliance with the application will 'benefit him, and will not be a mere futile act. From all that appears at this time the time for appeal herein expired not later than July 24, 1915.

The attempted appeal 'having become ineffectual for any purpose, and it not appearing that appellant is entitled to- any relief under said section 461, C. C. P., the appeal is ordered stricken from the records of this court, and judgment for costs is directed in favor of respondent.