Silvius v. Brunsvold

WHITING, J. [1] Plaintiff appealed from an order of the trial court vacating a default judgment and allowing defendant to answer and 'defend upon payment of certain terms therein fixed. Respondent moves the dismissal of said appeal upon the ground that said terms have been paid to. and accepted by appellant, and that therefore appellant has waived or abandoned his right to appeal from such order. Under the holding of this court in Lounsbery v. Erickson, 16 S. D. 375, 92 N. W. 1071, appellant, if he accepted and retained the terms allowed, him in said order, forfeited any right to question the correctness of the court’s ruling. 2 Cyc. 645. [2] Appellant does not deny accepting and retaining such terms, but he insists that respondent’s motion is not properly before this court. Appellant insists that the facts upon which the motion is based must appear in the settled record settled by the trial court. There is a dispute as to whether or not the fact of the acceptance and retention of such terms does appear in the settled record; but, in the view which we take of this case, it becomes unnecessary for us to have the settled record sent to this court for examination. The ruling appealed from, if considered on its merits, must stand or fall upon the record settled in the lower court; but proof of facts, whether those occurring before or after appeal, showing that an appellant has estopped himself from appealing or has abandoned an appeal already taken, being proof of something having nothing to do with the correctness of the ruling appealed from, and therefore not properly to be found in the record settled for appeal, may be presented to the appellate court in the form of affidavits when offered upon a motion to dismiss such appeal. Proof of payment and acceptance of the terms [255] had no more a proper place in the settled record than would proof of payment and satisfaction of a judgment have proper place in a record settled for purposes of appeal from such judgment. The appeal herein is dismissed.