269 N.W. 472 | S.D. | 1936
[1-3] This cause is now before us on the motion of plaintiff-respondent Union Bond Mortgage Company to dismiss the appeal insofar as it purports to be an appeal from the order denying the motion for new trial below. The appeal has been previously dismissed to that extent as to defendant-respondent H.P. Brown upon his motion (same title (1936)
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117 N.W. 145. In that case notice of appeal had been duly served upon the moving respondent, but the appeal was nevertheless dismissed upon the ground that "numerous parties to an action who would be affected by a reversal or modification of an order appealed from neither joined in the appeal nor were served with notice thereof." The right of a party respondent duly served with notice of the appeal to move for the dismissal thereof because of failure to serve other parties who would be affected by a reversal or modification has likewise been recognized by this court in Sutton v. Consolidated, etc., Mining Co (1900)
[4] We do not understand appellant seriously to question the existence or propriety of the rule above stated, or its *599
applicability to the facts of this case, but appellant urges that respondent Union Bond Mortgage Company has waived its right to invoke the rule. We think not. Under our practice no specific time is fixed for raising such a question. The rights of Union Bond Mortgage Company in this connection are derivative from and dependent upon the rights of respondent H.P. Brown. Respondent H.P. Brown raised the question within two days after the filing of appellant's brief by motion to dismiss, which motion was granted by opinion filed April 16, 1936. Appellant then kept the matter open by moving on his part on April 22, 1936, for leave to remand the record, which motion was pending undetermined in this court until its denial on May 26, 1936. Same title,
"To the above named appellant and to Messrs. Sterling, Clark and Grigsby, his attorneys:
"Herewith find two copies of brief of respondent in the above entitled action. This is intended as service by mailing.
"This is respondent's brief in answer to all points raised in brief of appellant.
"If, as a result of proceedings already had, or proceedings now pending in the Supreme Court, the issue on appeal should be narrowed down so as to cover only part of appellant's assignment, as to the defendant H.P. Brown, respondent reserves its right to move that the scope of appeal be correspondingly narrowed as to it."
Subsequently, and within a reasonable time after this court denied appellant's motion to remand the record (thereby finally determining that appellant had no appeal as against H.P. Brown so far as concerned the denial of his application for new trial and could not improve his situation by further proceedings in the trial court), plaintiff-respondent moved here for dismissal as to it. We think there has been no waiver. *600
We see no escape from the conclusion that the motion of plaintiff-respondent for the same relief previously awarded to defendant-respondent H.P. Brown must be granted, and an order will accordingly be entered dismissing this appeal as to plaintiff-respondent in so far as the same purports to be an appeal from the denial of motion for new trial below.
All the Judges concur, excepting POLLEY, P.J., absent and not sitting.