Brown v. Brown
| Decision Date | 30 December 1925 |
| Docket Number | 6084. |
| Citation | 206 N.W. 688,49 S.D. 167 |
| Parties | BROWN v. BROWN. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lincoln County; Herbert B. Rudolph Judge.
Action by Jennie A. Brown against Walter W. Brown. Judgment for defendant, and plaintiff appeals. On motion to dismiss appeal. Motion denied.
Mundt & Mundt, of Sioux Falls, for appellant.
Bielski Elliott & Marker, of Sioux Falls, for respondent.
This matter comes up at this time on respondent's motion brought on by order to show cause for dismissal of the appeal sought to be taken herein.
The material facts are as follows:
The action was tried in the court below and findings of fact conclusions of law, and judgment filed therein on August 26, 1924. Thereafter, and on September 15, 1924, appellant duly served on respondent, in the form provided by statute, notice of her intention to move for a new trial in said cause.
Meantime, subsequent to the filing and entry of findings, conclusions, and judgment, but prior to serving her notice of intention, appellant brought respondent again before the trial court upon order to show cause "why an order should not be made amending, changing, and modifying the findings of fact and conclusions of law and judgment so that said findings of fact and conclusions of law and judgment may conform to the findings of this court and to either the undisputed or preponderance of the evidence and the law applicable to said evidence." This application was brought on for hearing before the court on September 8, 1924, the return day, and, after argument thereon, the matter was taken under advisement by the court, and nothing further appears to have been done except service of notice of intention above referred to until December 8, 1924, when the court signed, and there was attested and filed, a document entitled "Judgment nunc pro tunc." This document recited that it was thereby "ordered, adjudged, and decreed that the judgment made and entered by the court upon the trial of said cause as herein above referred to is hereby amended and modified so as to read as follows, to wit." Then follows an entirely new judgment in the cause, from which are omitted certain conditional or interlocutory features which were contained in the judgment of August 26th, and the concluding portion of which new or modified judgment is as follows:
"That the judgment heretofore made and entered herein as herein above referred to, in so far as same contains recitals other and different than those contained herein, hereby is annulled, and that the within judgment is founded upon the findings of fact and conclusions of law heretofore made and filed in said cause."
Notice of the filing and docketing of the judgment of December 8th was served by the respondent upon the appellant on December 15, 1924.
Appellant served no new notice of intention to move for new trial after the filing and entry of the judgment of December 8, 1924, and has never served but the one notice of intention, being that of September 15, 1924.
August 3, 1925, appellant moved the court for an extension of time for serving specifications of error and transcript whereupon respondent appeared specially and objected to the jurisdiction of the court upon the ground that no notice of intention to move for new trial had been served subsequent to the entry of judgment of December 8, 1924. This objection of respondent was overruled, and the time extended and the motion for new trial was brought on for hearing on August 10, 1925, at which time respondent preserved his objection to the jurisdiction of the court upon the same grounds by special appearance raising the same question, which objection was again overruled and an order entered denying appellant's motion for a new trial.
Within 60 days thereafter, and on October 8, 1925, appellant sought to perfect his appeal by serving and filing notice thereof, together with proper undertaking, giving notice of an appeal to the Supreme Court from the judgment dated December 8, 1924, and also from the order denying the motion for new trial made August 10, 1925.
Respondent on this motion now contends that the first judgment of August 26, 1924, is the only valid judgment, and that the court had no jurisdiction to render the judgment of December 8, 1924, and that meantime one year has elapsed since the valid judgment of August 26, 1924, and no notice of appeal therefrom has been served, and hence the judgment of August 26, 1924, has become res judicata, and there is no appeal from any judgment. Having thus maintained that no appeal from any judgment is before us because the judgment of December 8, 1924, is invalid, leaving as the only valid judgment that of August 26, 1924, respondent unobtrusively shifts to the somewhat inconsistent view that no appeal from an order denying new trial is before us, because the judgment of December 8, 1924, is in fact the final judgment of the court, and, no notice of intention to move for new trial having been served within 20 days from notice of the filing thereof, the court below had no jurisdiction to entertain the motion for new trial or to make the order denying new trial, and hence that there is no valid order from which to appeal.
The appeal from an order denying a motion for new trial and the appeal from a judgment in the same cause are...
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