Aldrich v. Pub. Op. Pub. Co.

Citation132 N.W. 278,27 S.D. 589
PartiesALDRICH v. PUBLIC OPINION PUB. CO. et al.
Decision Date28 June 1911
CourtSupreme Court of South Dakota

27 S.D. 589
132 N.W. 278

ALDRICH
v.
PUBLIC OPINION PUB. CO. et al.

Supreme Court of South Dakota.

June 28, 1911.


Appeal from Circuit Court, Brown County; Frank McNulty, Judge.

Action by J. M. Aldrich against the Public Opinion Publishing Company, a corporation, and another. Judgment for plaintiff, and defendants serve notice of appeal. Motion by respondent to show cause why the appeal should not be dismissed, and motion by appellants for leave to serve an undertaking. Motion for leave to serve undertaking denied, and appeal stricken from the records of the court.

Corson and Haney, JJ., dissenting.

[132 N.W. 279]

Case & Shurtleff, for appellants.

Taubman & Williamson, for respondent.


WHITING, J.

This case comes before the court upon an order to show cause issued upon application of the respondent, requiring the appellants to show cause why the appeal herein should not be dismissed, and upon a motion, asking this court to allow appellants to serve upon respondent, as of the date of serving the notice of appeal, appellants' undertaking upon appeal. As the questions presented upon the motion and order to show cause are virtually the same,

[132 N.W. 280]

such motion and order to show cause will be considered together.

From the affidavits presented to us, it appears that appellants, defendants in the trial court, moved such trial court for an order changing the place for trial of this cause. This motion for change of venue was denied by an order dated October 28, 1910, and it is from this order that the appeal herein was taken. The notice of appeal was prepared December 24, 1910, and was served upon attorneys for respondent December 26, 1910. No undertaking upon appeal was served with the notice of appeal. An undertaking was procured December 27, 1910, but was never served upon the respondent. Counsel for appellants supposed the bond had been served, and first learned that it had not been about February 1, 1911, when he caused a copy thereof to be made and forwarded to respondent's attorneys, which bond was returned for the reason that it was not served in time. Appellants have set forth facts showing their efforts to comply with the statutes relating to the giving and serving undertaking on appeal, and supporting their claim of good faith herein, all of which are presented to induce this court to excuse the delay herein and in answer to the motion of respondent upon the order to show cause. Respondent seeks a dismissal because of appellants' failure to serve an undertaking upon appeal at time of service of notice of appeal.

Before considering whether or not appellants have made such a showing as would entitle them to the relief which they seek, providing this court has the power or authority to grant such relief, we are confronted with certain questions of practice concerning which the decisions of this court do not seem to us to have been, at all times, consistent, and we think this a proper occasion for the review of these questions to the end that we may reach conclusions which will present harmonious and consistent rules relating to the taking and perfecting of appeals.

Section 441 of the Rev. Code of Civ. Proc. reads: “An appeal must be taken by serving a notice in writing, signed by the appellant or his attorney, on the adverse party, and on the clerk of the court in which the judgment or order appealed from is entered, stating the appeal from the same, and whether the appeal is from the whole or a part thereof, and if from a part only, specifying the part appealed from. The appeal shall be deemed taken by the service of the notice of the appeal, and perfected on service of the undertaking for costs, or the deposit of money instead, or the waiver thereof, as hereinafter prescribed. When service of a notice of appeal and undertaking cannot in any case be made within this state, the court may prescribe a mode for serving the same.”

Section 445 of said Code reads: “To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars: Provided, that no bond shall in any action or proceeding be required of the state of South Dakota, or any county, incorporated town or city thereof, on any appeal to any court of the state of South Dakota, when the state, or any county, incorporated town or city shall be the party directly interested therein.”

Section 461 of said Code reads: “When a party shall in good faith give notice of appeal, and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual, including the giving of a proper undertaking for costs and damages, or to stay proceedings, the court from which the appeal is taken, or the presiding judge thereof, or the Supreme Court, or any one of the justices thereof, may permit an amendment, or the proper act to be done, including the giving of a new undertaking, on such terms as may be just.”

Under a section similar to section 441, supra, the Supreme Court of Oregon held that it acquired jurisdiction through the service and filing of notice of appeal, regardless of whether the undertaking was served as required by the statute. Undoubtedly this decision is correct, because in Oregon there is no section similar to our section 445, supra; but in New York and California where they have sections similar to our section 445, the courts have held, as has this court in the past (Bonnell v. Van Cise, 8 S. D. 592, 67 N. W. 685) that no jurisdiction is acquired through the service and filing of the notice of appeal, where, under the Code, a bond would be necessary to render the appeal effectual. Kelsey v. Campbell, 38 Barb. (N. Y.) 238;Elliott v. Chapman, 15 Cal. 383.

In the New York case the court said: “An appeal without an undertaking amounts to nothing, and accomplishes nothing. For the section requiring an undertaking declares that without it the appeal shall not be effectual for any purpose. An appeal which is not effectual for any purpose is a nullity. It effects nothing. It makes no change whatever in the proceedings, but leaves them in the same condition as they were before the notice of appeal was given. This is too plain for argument.”

In the California case the court said: “The true construction of section 348 of the practice act is that an appeal shall not be effectual for any purpose, unless an undertaking be filed or a deposit made with the clerk within five days after the filing of the notice; and if this be the construction it is clear that the failure to file the undertaking, or make the deposit, is fatal to the appeal. The consequence attached to the failure is

[132 N.W. 281]

that the appeal shall not be effectual, and this consequence can only be enforced by giving full effect to the provision as to time. If we hold that this provision is merely directory to the parties, nothing is required to give jurisdiction to this court but the filing and service of the notice. We do not see upon what principle such a construction could be maintained. It is true section 337 provides that the appeal shall be taken by filing a notice with the clerk and serving a copy upon the adverse party, or his attorney, but this section must be construed in connection with section 348, by the provisions of which an undertaking or deposit is absolutely necessary to give effect to the appeal. The notice is the first step in the proceeding, which ripens into a perfect appeal upon a compliance with the terms of the latter section.”

[1] This court has repeatedly held in construing our Justice Code that the circuit court acquires no jurisdiction whatsoever, unless the undertaking on appeal is given. Rudolph v. Herman, 2 S. D. 399, 50 N. W. 833;McDonald v. Paris, 9 S. D. 310, 68 N. W. 737;Smith v. Coffin, 9 S. D. 503, 70 N. W. 636;Brown v. Railway Co., 10 S. D. 633, 75 N. W. 198, 66 Am. St. Rep. 730;Brown v. Brown, 12 S. D. 380, 81 N. W. 627. The Justice Code, § 99, provides: “The appeal is taken by serving a copy of the notice of appeal on the adverse party or his attorney, and by filing the notice of appeal with the justice.” Such Code (section 103) also, at the date of the above decision, provided: “An appeal from a justice's court is not effectual for any purpose, unless an undertaking be filed. ***” Thus the decisions construing such sections are in perfect harmony with the decision in Bonnell v. Van Cise, supra. The Van Cise Case quotes with approval the above quotation from Kelsey v. Campbell, supra. It must be taken then as the settled law of this state-there not being a single decision to the contrary-that the service of notice of appeal to this court, where there is no bond on appeal, becomes an absolute nullity.

After the above decisions of this court, the statutes of this state were amended, so that in the last-quoted statute the words “for any purpose” were left out, and there was added a provision allowing a new undertaking to be filed where an appellant, who had attempted in good faith to make and file a proper undertaking, had filed an insufficient undertaking. So that now, on appeal from a justice court, the circuit court gets jurisdiction of the appeal upon the making and filing of the bond, even if it is defective. It will be noted, however, that on such an appeal, if no bond is given, no jurisdiction whatever is conferred upon the circuit court, and it would be powerless to relieve the appellant from his default and allow him to file a bond.

[2] Section 461, supra, of the Rev. Code of Civ. Proc., as such section read prior to 1903, did not contain the clauses, “including the giving of a proper undertaking for costs and damages, or to stay proceedings,” and, “including the giving of a new undertaking.” It is urged that the adding of these clauses broadens such section and confers a jurisdiction upon the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT