Edgerton Independent Consol. School Dist. No. 2 v. Western Surety Co.

CAMPBELL, J. The above cause was tried in the circuit court, and, from a judgment in favor of plaintiff, defendant appealed. Upon such appeal the judgment below was reversed, without directions, and the cause was remanded to the circuit court under the customary formula “for further proceedings according to law and the decision of this court.’ See Edgerton, etc., District v. Volz, 50 S. D. 107, 208 N. W. 576. Thereafter defendants moved the circuit court, pursuant to order to show cause, to dismiss plaintiffs’ complaint upon the merits, which motion was denied, and, from the order denying the motion, defendants have appealed. The situation is practically identical with that in the case of Warwick v. Bliss, 52 S. D. 107, 216 N. W. 865, and upon the authority of that case and the case of Nelson v. Menno State Bank, 53 S. D. 398, 220 N. W. 850, the present appeal is dismissed for the reason that such order is not appealable. MISER, C., sitting in lieu of BROWN, J., absent. SHERWOOD, P. J., and POLLEY, BURCH, and MISER, JJ., concur.