Reed v. Todd

166 N.W. 167 | S.D. | 1918

WHITING, P. J.

Motion to dismiss an appeal upon the ground that this court is without jurisdiction, said appeal being from a judgment, and it being claimed that such appeal was net taken’ within two years after the judgment was perfected by the filing of the judgment roll as required 'by section 442, C. C. P. The judgment was entered July 23, 1913, and the notice of the present appeal is dated November 9, 1917. Appellant attempted to take an appeal from this same judgment on July 23, 1915. Such attempted appeal was dismissed by this court. Our opinion is reported in Reed v. Todd, 36 S. D. 215 154 N. W. 447, Reference to. such, opinion will disclose that, from the statements in the notice of appeal, we found that the judgment had been perfected not later than July 24, 19x3; and, basing ,au.r holding upon such finding, we held that we had uo jurisdiction to allow appellant to cure the defects in her appeal, as to do so would amount to an extension "of the two 3-ears allowed by section 442 for appeal. Instead of seeking- permission to bring before this court further evidence to show that as a mat-of fact the judgment had not .been perfected by the filing of the judgment roll until after July 24, 1913, appellant acquiesced in the holding of this court. After more .than two 3-ears had elapsed from the 'dismissal of the former appeal, appellant, claiming that the judgment roll was- never filed until November 11, 1915, attempted another appeal.

[1-8] While it is the di^ of everv official who. files a record to indorse the usual) filing marks thereon, yet, unless made more Im statute, such indorsement is but evidence of the facts therein stated and no part of the filing itself. County Commissioners v. State, 24 Fla. 53, 3 South, 471, 12 Am. St. Rep. 183; Starkweather v. Bell, 12 S. D. 146, 80 N. W. 183. When the papers which properly constitute a judgment roll are found in the proper office so attached as to properly constitute a judgment roll, it will be presumed that the were so attached for the purpose of making up a judgment roll. Furthermore, as held upon the former appeal in this case, it will be presumed that the clerk complied with the provisions of section 319, C. C. P., and made u.p the judgment roll “immediately after filing the judgment.” It follows that, if there is an indorsement upon the judgment forming a part of a judgment roll, which indorsement shows the time of the filing of such..judgment, it will he • presumed, until there is .proof to the contrary, that the judgment roll 'was made up on. the date named in such indorsem-ent. In this -case it is undisputed.' that all the -papers, including the judgment, which would properly constitute the judgment roll, were all filed on o-r before July 24, 1913, the date of the filing of -the judgment. Without otih-er .proof that the judgment roll was not then, made up we would, as on the former appeal, presume it was made up- on July 24, 1913, Being so made up, it would without further action 'become a file of the clerk’s office. But we have, upon the present motion, proof that the judgment roll was not made up “immediately after the filing of the judgment,” and therefore the presumption -that it was so made up is overcome. Such proof does, however, show 'beyond question that the roll was made up by the attorney for respondents, and, as made u.p, .turned over to the clerk of the trial court before the taking of the former a-ppeal, and therefore much more than two years before the taking of the present appeal. The receiving of this roll by the clerk and giving i-t a a place among the files of his office was a filing of such roll. State ex. rel. v. Lamm, 9 S. D. 418, 69 N. W. 592. It further appears that, -in settling the record on behalf of appellant for the purpose of the prior appeal, the judge, at the request of appellant, made a certificate in which such roll of files was recognized as the iudgment roll in this action. The mere indorsement upon this roll, by the successor in office of the party who was-clerk ini the year 1913, of a statement 'that it was filed on November xi, 191-5, cannot prevail against the conclusive proof that such roll had been on file for months' prior to- that date.

Inasmuch as the attempted appeal conferred upon this court no jurisdiction except the power to dismiss same and to tax costs upon such dismissal, th-e appeal is dismissed, with -costs against appellant.