Neeley v. Roberts

Haney, J. This ’appeal is from an order setting aside a report of a referee, and modifying a restraining order previously made. Respondent moved to dismiss for the reason, among others, that the order had not been entered when the appeal was taken. Upon the hearing of this motion, appellant was granted an order to show cause why he should not be allowed to amend his abstract by adding thereto the following statement: “Said order appealed from was duly filed as a 635 record in said action on January 7, 1898, and duly recorded in the circuit court order book No. 2, on page 195, the same being the Hughes county order book No. 2, and that said order was duly recorded nunc pro tunc as of January 7, 1898.” It appears from appellant’s application to amend that the order appealed from was not entered when the appeal was taken and perfected, but that subsequently the clerk entered it as of a date prior to that time. His application to amend must be denied, and respondent’s motion granted. Martin v. Smith 11 S. D. 437, 78 N.W. 1001; Bank v. Oliver, 11 S. D. 444. The appeal is dismissed.