Sanford v. Kilpatrick

172 N.W. 805 | S.D. | 1919

FOELiBY, J-

The judgment from which this appeal is attempted to be taken was entered on the 23d day of February, 1916. On the 12th day of August, 1916, appellant procured from the trial judge a certificate settling the record and certifying, among other things, that said' record contained the judgment roll, together with a transcript of the evidence and the proceedings had at the trial. No other papers were filed in the case, nor does any other act appear to have been done after the record was settled until the 213d day of February, 1918, when the clerk made the following indorsement on the back cover of the settled record: “Judgment roll filed 'February 13, 1918.--, 'Clerk.” The appeal was perfected September 4, 1918. Respondent now moves to dismiss the appeal on the ground that it was not taken within the time fixed by law.

[1,2] Under section 442, Code of Civil Procedure, as it was at the time the judgment was entered, assuming the judgment roll was on file the 12th day of August, 1916, the day on which the record was settled, the time for appealing expired on the 12th day of August, 1918, and, under said section as amended by chapter 201, Laws of 1916-17, the time for appealing expired July 1, 1918. Union Investment Co. v. Schonebaum et al., 167 N. W. 398. But it is contended by appellant that the judgment roll was not filed until the 13th day of February, 1918, the day on which the clerk made the indorsement above set out. This identical question was considered by this court in Reed v. Todd, 166 N. W. 167. In this case it is certain that the judgment and all the other papers constituting a part of the judgment roll were on file in the clerk’s office not later than the 12th day of August, 1916. It is also certain that they were bound together and incorporated into the settled record as the judgment roll. They were treated by appellant as the judgment roll and so designated by the trial judge. The receiving and binding together of these papers by the clerk and giving them a place among the files of his office constituted a filing of the judgment roll. State ex rel. v. Lamm, 9 S. D. 418, 69 N. W. 592; Reed v. Todd, supra. The mere indorsement on the judgment roll by the clerk that it was filed February 13, 1918, cannot prevail when it appears positively that it had been filed more than a year and a half prior to that time. If the clerk, by indorsing the judgment roll when he did, could extend the time within which an appeal can be taken, he could have waited five or ten, or more years before making the indorsement, and always extend the time for appealing one year from the time of making such indorsement.

The appeal is dismissed.