| S.D. | Sep 4, 1893
This is an appeal from the order of the circuit-court of Lincoln county, denying the motion of the defendant for leave to file an amended undertaking on an appeal from the justice’s court, in which the action was originally tried. The facts, briefly stated, are as follows: This action was commenced in a justice’s court for forcible entry and. detainer, and judg
The learned counsel for the respondent contends that the court properly denied the motion, for the reason that, the appeal from the justice’s court having been dismissed, and the order dismissing the appeal affirmed by this court, the circuit court had no longer jurisdiction of the case. We are of the opinion that the proposition of the respondent is correct. When the circuit court made the order dismissing the appeal, that court ceased to have jurisdiction of the case so long as that order remained on its records unreversed and not vacated or set aside. The decision of the circuit court was affirmed by this court, and the order dismissing the appeal therefore stands unreversed of record in the circuit court.
It is insisted by the learned counsel for the appellant that that court retained its jurisdiction of the case by its stay order and the appeal to this court, but we do not think this proposition tenable. ■ The circuit court ordered a stay of twenty days only on the original order, to give the defendant time to perfect his
It is contended that, because this court ordered the case “remanded to the circuit court for further proceedings according to law,” it therefore recognized the fact that the cause was still in that court. But we do not so understand the mandate of this court. The appeal was from an order made by the circuit court, and hence the remittitur would necessarily go to that court, and become a part of its records. It must be borne' in mind that it was the appeal that was dismissed, not the action, “on the ground that no proper undertaking on appfeal, as required by law, had been given or filed. ” Whether the circuit court retained the power to vacate and set aside the order dismissing the appeal after the same was appealed from and affirmed by this court, it is not necessary now to decide, as no motion was made to that effect; the motion of appellant being “to amend his undertaking on appeal herein from the justice, so as to insert a condition for costs on appeal, and to stay execution on the money part of the judgment herein, and for such further and other relief as'will be proper in the premises. ” Nor is it necessary to decide at this time whether the court, at the time the motion to dismiss the appeal was made, had such jurisdiction of the case as would have authorized it to have permitted a new undertaking to be filed, as no formal motion, at least, was made for leave to file such an undertaking. But, assuming that the court did have authority to permit the defendant to perfect his appeal by filing a new undertaking at the time the motion to dismiss the appeal was made, we think the application should have been made to the court before it made the order dismissing the appeal, or in connection with a motion to vacate or set aside the order. In Towle v. Bradley, 50 N.W. 1057" court="S.D." date_filed="1892-01-26" href="https://app.midpage.ai/document/towle-v-bradley-6683143?utm_source=webapp" opinion_id="6683143">50 N. W. Rep. 1057, this court said, quoting from Howard v. Harman 5 Cal. 78" court="Cal." date_filed="1855-07-01" href="https://app.midpage.ai/document/howard-v-harman-5432829?utm_source=webapp" opinion_id="5432829">5 Cal. 78: “When the appeal is taken bona fide, ahd not for delay, the appellate court will always permit another under