Brown v. Brown
| Decision Date | 18 January 1900 |
| Parties | BROWN v. BROWN. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Brookings county; J. O. Andrews, Judge.
Action by George Brown against Albert Brown. Judgment for defendant. Plaintiff appeals. Reversed.Mathews & Murphy and Alexander & Hooker, for appellant. Cheever & Hall, for respondent.
This was an action commenced in a justice court, in which a judgment was rendered in favor of the plaintiff. The defendant attempted to appeal to the circuit court from the judgment so entered against him. The case was tried in the circuit court, and the plaintiff again recovered judgment. A new trial was granted, and subsequently thereto the plaintiff moved for a dismissal of the appeal. It appears that this motion was denied, but no exception seems to have been taken by the plaintiff to the order denying the motion. Subsequently the case was retried in the circuit court, and verdict and judgment were in favor of the defendant. Plaintiff has appealed to this court from the judgment entered upon the verdict at the last trial.
The appellant, who was plaintiff in the action, seeks upon this appeal from the judgment a review of the order denying the motion to dismiss the appeal. As before stated, the appeal is from the judgment only, there being no bill of exceptions in the case. The respondent insists in this court that, inasmuch as there is no bill of exceptions, the order denying the motion to dismiss the appeal is not before us for review, as it does not properly constitute a part of the judgment roll. Section 5103, Comp. Laws, provides what shall constitute the judgment roll, and reads as follows: “Unless the party or his attorney shall furnish a judgment roll, the clerk, immediately after entering the judgment, shall attach together, and file the following papers, which shall constitute the judgment roll: *** (2) In all other cases, the summons, pleadings, or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders or papers in any way involving the merits and necessarily affecting the judgment.” Section 5237 provides that: “Upon an appeal from a judgment, as well as upon a writ of error, the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment, appearing upon the record transmitted or returned from the district court, whether the same were excepted to or not; nor shall it be necessary in any case to take any exception or settle any bill of exceptions to enable the supreme court to review any alleged error which would, without a bill of exceptions, appear upon the face of the record.” Section 5217 provides that, upon an appeal being perfected, the clerk of the court from which the appeal is taken shall, at the expense of the appellant, forthwith transmit to the supreme court, if the appeal is from a judgment, the judgment roll. It will thus be seen that an appeal from a judgment only brings before us for review matters contained in the judgment roll. The question is therefore presented as to whether or not the order denying the motion to dismiss the appeal properly constitutes a part of the judgment roll. In the case of Smith v. Coffin, 9 S. D. 502, 70 N. W. 636, this court, in construing subdivision 4, § 5236, Comp. Laws, held that that subdivision included an order decisive of some question or point in the case, as distinguished from a mere ruling on matters of practice arising during the progress of the cause, and that the order in that case denying a motion to dismiss the appeal was appealable. It would seem to follow from this decision that the order of the court in this case is an appealable order, and subject to review as an intermediate order on an appeal from the judgment, and it would also seem that the order, being...
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