Brown v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 17 May 1898
• Citation: 75 N.W. 198,10 S.D. 633
• Parties: BROWN v. CHICAGO, M. & ST. P. RY. CO.
• Court: South Dakota Supreme Court

75 N.W. 198

10 S.D. 633

BROWN v. CHICAGO, M. & ST. P. RY. CO.

Supreme Court of South Dakota

May 17, 1898

Appeal from circuit court, Hutchinson county; E. G. Smith, Judge.

Action by Alfred Brown against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff. Defendant appeals to the circuit court, thence to the supreme court. Judgment of circuit court dismissing appeal affirmed.

Robert B. Tripp, for appellant. Wellington Brown, for respondent.

CORSON P. J.

This is an appeal from the judgment of the circuit court dismissing an appeal taken from a judgment rendered by a justice of the peace. The plaintiff and respondent moved the circuit court to dismiss the appeal on several grounds, the principal one being that the appellant filed no undertaking on appeal. The motion was resisted upon the ground that an undertaking on appeal was waived by the respondent by his counsel, who signed the following indorsement upon the appeal: "Due service admitted this 25th day of January, 1897, and undertaking for costs and stay pending appeal is hereby waived." The counsel for appellant in this court contends that by the provisions of section 4700, Comp. Laws an undertaking on appeal from justice's court may be waived. That section is as follows: "Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement." We are unable to agree with counsel in his contention. The filing of an undertaking on appeal is required not only for the benefit of the adverse party, but on grounds of public policy, and for public reasons, and constitutes one of the essential steps in perfecting an appeal. "An appeal from a justice's court is not effectual for any purpose unless an undertaking be filed." Comp. Laws, § 6133. This court has held in several cases that the giving of an undertaking is jurisdictional, and that the appellate court acquires no jurisdiction over the case until the undertaking is filed. Rudolph v. Herman, 2 S. D. 399, 50 N.W. 833; McDonald v. Paris, 68 N.W. 737; Smith v Coffin, 70 N.W. 636; Bonnell v. Van Cise, 8 S D. 592, 67 N.W. 685. In the latter case the court held that by the express provisions of the Code an undertaking might be waived on an appeal from the circuit court to this court. The learned counsel for the appellant contends that the provisions as to waiver of undertakings on appeals from the circuit court should be held applicable to appeals to a justice's court. We cannot agree with counsel in this contention. The law permitting a waiver of the undertaking on appeals from the circuit court was enacted in 1887, and by its express terms is made applicable to appeals under the provisions of that act. Laws 1887, c. 20, § 5. The law governing appeals from the justice's court is found in the Revised Codes of 1877, and was not amended by the act of 1887. We cannot hold, therefore, that the legislature intended that the act of 1887, expressly made applicable to appeals from the higher courts, should also be applicable to appeals from justices' courts. The undertaking therefore, being essential, in order to confer jurisdiction upon the appellate court, cannot be waived by the parties, in the absence of any statutory provision authorizing such a waiver. This seems to be the view of the supreme court of Massachusetts in construing a similar statute. In Santom v. Ballard, 133 Mass. 464, that court says: "The case before us was brought in the Central district court of Worcester, which rendered judgment against the plaintiff. He claimed an...