*1 only any distinguishes inheritance from lineal collateral The statute between two parents’ family adoptive of his/her of and types member heirs an individual must be an adoptive parents themselves. other than heir be affected it. There- Estate, fore, supra. holding In re Eddins’ since we have that respondent ruled great authority decedent, of weight is in line with the heir at law of her In jurisdictions. from other are rights unaffected SDCL 29-1-13 and we where are confronted with converse her that contention she is entitled to inherit situation, principle portion we of that find that that of decedent’s estate that is of is the same. The contractual nature “ancestral property” is without merit. beyond adop- adoption does not extend Therefore, respondent since is not parents ruling child. The tive and the entitled to inherit property from the Estate, supra, exemplifies re that Eddins’ decedent, qualified she is not to serve as agree Oregon principle and we administratrix of his estate. ap The order Estate, In re Frazier’s Supreme Court in pointing vacated, administratrix is the Let right generally supra, to inherit is ters of revoked, Administration and the equivalent. adop- and Just as an reciprocal matter is remanded to the circuit court for tive child cannot inherit from the lineal or proceedings. further adoptive collateral members of his/her family, of adoptive ents’ those members All the Justices concur. parents’ family cannot inherit from the Estate, re su- adopted child. In Frazier’s Calhoun,

pra; supra; re of In re Estate Therefore, Estate, supra.

Loake’s

dent is not an heir &t law of decedent. however,

Respondent argues, 29-1-134 makes her and of certain eligible inherit

her kin from decedent complete exclusion of her CANTON CONCRETE PRODUCTS COR the property brother sister because PORATION, Appellant, property.” Respondent’s argu “ancestral First, respects. ment is erroneous two ALDER, Individually, City James W. applies only “[kjindred . the statute Bank, the American State same degree” relationship to the Inc., Alder Construction De ap decedent. It cannot be contended that Respondents. fendants and pellant and respondent this case are “in degree” relationship same No. Appellant decedent. a half-sister and Supreme Court of South Dakota. is a niece of the decedent’s adoptive Appellant is clearly mother. Argued May degree relationship higher to the dece Decided Dec. Second, respondent. dent than is the stat only ute draws a distinction between half- who are

bloods heirs law of decedent

and whole bloods who are heirs at law of

the decedent. that in the case property,”

of “ancestral whole heirs blood

inherit exclusion of half-blood heirs. by descent, devise, gift intestate of some ancestors, one of his in which all case those equally Kindred of the half blood inherit who are blood such ancestors those with of the whole blood the same must be excluded from such inheritance. degree, unless the inheritance came to the

damages the value of construction ma- (Alder) terials to James Alder Construction, pro- Alder Inc. The materials to Alder vided were used in a construction project Alder had contracted City of Yankton (City). performance A bond City by furnished Alder to the form of a certified check drawn on the (Bank). American State Bank The contract provided that guarantee the bond was to payment “obliga- “bills” and performance tions” by incurred Alder of the contract.

Upon the completion project returned City the certified check check Bank. was cancelled proceeds the Bank the contract used to obligations settle Alder’s at Bank. Alder pay failed to Plaintiff for the materials it had now apparently furnished and in- solvent.

This action commenced service was complaint upon a summons and the City 1, February 1973. Bank on An- swers were the Bank and served proceedings March No further oc- June, 1975, curred in the until matter when was Alder served with the summons and 19, 1975, complaint. On Plaintiff complaint served an amended Bank’s Alder, attorney and the City answers 9, by September the Bank were 1976, 27, Plaintiff On October served a of trial the Defendants. On No- 18, 1976, vember the Bank moved Lennox, Buechler, for plaintiff Milton for failure of dismissal and appellant. prosecute. Apparently Goetz, Hirsch, William J. Klimisch 19, January agreed ties a trial date Yankton, Klimisch, for respondent Haar & held the trial was not be- City Yankton. desired to cause Plaintiff’s counsel attend Yankton, Welter, respon- N. J. Delvin Inauguration. the Presidential Alder, and Al- individually W. dent James 1977, the call of February On Inc. der Construction was and Plaintiff’s counsel calendar Hagerty, D. Richard again The Defendants’ counsel was absent. Bank. dent American State moved then for a dismissal 15-6-41. 15-6-40 and under §§ ZASTROW, Justice. granted the trial court. On February an order of dismissal Corporation Products Canton Concrete entered trial court. action to recover brought an (Plaintiff) 122 Co., mailed to Plaintiff’s Omaha v. LeMars Mut.

copy was Ins. 285; at the direction of the the clerk of the court S.D. Lasell v. Yankton judge. 880; trial Plaintiff’s counsel admits re- County, S.D. N.W.2d ceiving of the order on Weins, Weins Kneeland, 1949, N.W.2d State Piedmont Ind. Sch. 25, 1977, precisely fifty-nine On *3 Ed., 1960, Dist. v. Meade Co. Bd. of 78 S.D. dismissing after the order days Long Knight Const. entered, filed, and received Co., Inc., 1978, S.D., 262 N.W.2d 207. counsel, Plaintiff’s he filed a motion to aside the order of dismissal. The mo- set The Plaintiff contends that because there 5,1977, May was heard on and an order was no entry judgment” “notice of filed denying May the motion on 1977. On with the clerk of the court the time limit 1,1977, July the Plaintiff’s counsel served a appeal begin for the did not to run. appeal, assignments of error and support of this contention he cites Foss v. undertaking on the Defendants. The an Spitznagel, 77 S.D. 97 N.W.2d originals with the clerk were filed 856. In Foss this court held that the time thirty- one hundred court on for appeal begin did not until written days copy after judgment notice of the given order was received Plaintiff’s counsel. required 33.0702, as by SDC now SDCL 15-26-2. There the settled record con- The Defendants have filed a motion to tained no evidence that a written notice of appeal jurisdiction for lack of judgment given appellant. perfect failure to file and for this the settled record contains the sixty days within after written notice of the affidavit of the clerk which verifies that appealed given. order from was she mailed a copy certified of the order to part: 15-26-1 SDCL Plaintiff’s counsel on February * * Appeals Supreme Court Furthermore, Plaintiff’s counsel has admit- may be taken as in this title during ted argument oral from: copy certified of the order from the (1) clerk on affecting An order a substantial Kneeland, In State v. supra, the attorney action, right, made in when such had mailed a certified order in effect determines the action copy of the final order in a corpus habeas a prevents from which proceeding. This court held that certi- “[a] taken; appeal might an be copy fied which filing showed the date hav- ing served, been it was written notice of the Any appeal other from a than filing of the order in compliance with SDC ment sixty days must be taken within 33.0702 as amended Ch. S.L.1943 after written notice of the SDCL [now 15-26-2].” shall have given been We requirement find no appealing. An the judgment service of the copy must be made sixty days must be taken within after the by the attorney for the prevailing party, signed, attested, shall filed particularly where the and written notice of thereof shall admits that he received the copy have been adverse the clerk. The mailing of a certi repeatedly This court has held that fied of the order constituted written failure file the notice of within notice of of the 'order under jurisdictional time limit is a SDCL 15-26-2. requires defect which the dismissal Brandriet, appeal. Caplan court has previously ad This 294, Federal Land Bank of question dressed the of whether a motion to MORGAN, JJ., judgment suspends the DUNN concur. aside an order set However, of civil our rules WOLLMAN, J., PORTER, J., C. dis- 15-6-60(b) provide procedure SDCL sent. orders en- judgments relief from WOLLMAN, Justice (dissenting). Chief neglect. or excusable tered for mistake SDCL 15-26-2 does not its the motion question There is little require terms that the service of the notice relief under SDCL aside the order seeks set of an order must be made by asserts Plaintiff’s motion 15-6-60(b), since attorney the prevailing party, such a judge by tele- advised the trial that counsel requirement long been assumed jury trial in Febru- phone that he wanted Pierre, court. In Labidee hearing dis- of counsel’s ary, but because this court said: ability have misunderstood may object of the above statute [SDCL 15-6- response. judge’s gives to a party two-fold. 15-26-2] 60(b) specifically provides that “[a] *4 power running the to set the time after (b) does not affect under this subdivision adversary may which his not suspend its finality the of a Thuet, Braun v. N.W. rules, nearly Under identical operation.” But it also party assures each .807. such a motion has been the statutory period the of time within which running the of the suspend not may appeal does not commence to run Kauder, appeal, Kauder v. limit on time for adversary until his such notice. N.E.2d St.2d 38 Ohio at 177 N.W. at 500. Schnell, 1977, N.D., Schnell The fact that counsel admitted actually vacated the unless Public Huso Bismarck or set aside. See irrelevant, by the clerk is for under West 1974, N.D., Board, N.W.2d 100. School Dorman, ern Electric Co. relief; grounds 60(b) states 6 Rule 227, knowledge the existence of a subject to a reasonable all of these makes running filed order does start the of the limitation; and, addition, subjects time appeal in the absence of written notice to (1), (2) a maximum grounds of the order. year of one period stated, our Simply statute does con- of the more extend- judgment. Because order which 26-1(2). dismissing the Plaintiff’s 118. The time to Workers of tion, should not ed time judgment does not affect relief on stated the time for ment. 7 Moore’s See, also, Moore’s Practice It, therefore, ^[*] rule sound periods See America, one or more of the 6 ^[*] 60(b) affect policy dictated that equally applicable appealable appeal from the Hodgson v. United follows that applicable to a and hence does for relief ^[*] Federal Practice appeal from C.A.D.C.1972, 473 ^[*] under SDCL time. from a final a motion ^[*] expired, ¶204.12[1]. finality of to a final the order 60(b) grounds not toll ¶ 60.29. 60(b) ^[*] Mine F.2d mo- 15- template that the trial court should involved duty perhaps especially might order to under consideration counsel for notifies the adverse late sel for the merits appeal and I would responsibility process might finally falls have a of its orders or deny prevailing party. would rests the prevailing party promptly end that special record, process counsel for the under our consider a case such as interest in motion to brought long-protracted litiga- such as it is. any given here, triggering judgments. giving rules with coun- a trial seeing conclusion, prevailing become appel- judge of an latest, to state that Justice I am authorized joins this dissent. PORTER is dismissed.