McConnell v. Spicker

Corson, J. The respondents move to dismiss the appeal in this case upon the grounds — First, that in the notice of appeal it is seated that the judgment appealed from was entered on the 6th day of December, 1899, and that in fact there was no judgment entered in said court between said parties on said date; second, that no undertaking on appeal to the su preme court was on the 2d day of January, 1899, at the time said notice of appeal was served, served upon respondents’ attorneys, or at any time served upon respondents or their attorneys. The first ground of the motion is without merit. The notice of appeal gives the names of the parties, and, it not appearing that any other judgment was rendered between the' parties, the error in stating that the judgment was entered on the 6th day of December, instead of the 1st, which was in fact the day the judgment was entered, Could not have misled or prejudiced the respondents. The second ground of the motion is disposed of by the case of Mather v. Darst, 11 S. D. 480, 78 N.W. 954. In that case this court held: ‘When the notice of appeal is duly served, and an undertaking executed, this court has jurisdiction of the appeal, though the appeal may not be perfected by the performance of all the acts specified in the statute.” If there were no other grounds for the dismissal of the appeal of which the court could take notice, the motion would have to be denied, but it appears from an inspection of the record in this case that no undertaking on appeal was in fact executed until eight days after the notice of appeal was served. It therefore affirmatively appearing from the record, made a part of the moving papers, that no undertaking was executed when the notice of appeal was served, this court has no jurisdiction of the appeal, and it must therefore upon its [408] own motion dismiss the same. By section 5219, Comp. Laws, it is provided that “to render an appeal effectual for any purpose an undertaking must be executed on the part of the appellant;” and by section 5232 it is provided that the respondent may except to the sufficiency of the sureties within ten days after such notice of the appeal, and that unless other sureties justify, etc., the appeal shall be regarded as if no undertaking had been given. This latter section clearly contemplates that the undertaking shall be executed at the time of the service of the notice of appeal. If no undertaking for costs has been executed at the time of the service of the notice of appeal, no appeal is taken, and no authority seems to be given for subsequently executing such an underbaking. If a party appealing may execute his undertaking on appeal eight days after the notice of appeal is served, he may execute it at any other time without notice to the respondent. As will be seen, the respondent is limited to ten days after notice of the appeal in which to except to the sufficiency of the sureties. If the undertaking can be executed at any time subsequent to the service of the notice of appeal, a respondent may be deprived entirely of his right to except to the sureties. In view of all the provisions of the statute, therefore, we are clearly of the opinion that the undertaking in this case, executed eight days after the notice of appeal was served, is ineffectual for any purpose. Counsel for the appellant read on the hearing a counter affidavit giving various conversations between himself and the attorneys for the respondents, which were, in effect, that they were satisfied with the notice of appeal; bub counsel can only' bind their clients in such case(by a waiver of the undertaking in writing, and signed by the attorneys. Section 5218. Comp. Laws. The affidavits of appellant’s counsel and the counter [409] affidavits of respondents’ counsel must therefore be disregarded. These views lead to the conclusion that the appeal in this case must be dismissed without prejudice, and it is so ordered.