Carlton v. Saville
| Decision Date | 13 April 1929 |
| Docket Number | 6561. |
| Citation | 224 N.W. 957,55 S.D. 87 |
| Parties | CARLTON v. SAVILLE, Sheriff of Aurora County. GULLICK, Intervener. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Aurora County; R. C. Bakewell, Judge.
Action by Lewis D. Carlton against G. A. Saville, Sheriff of Aurora County, in which Ben Gullick, as trustee of the estate of Theophilus J. Carlton, bankrupt, intervened. From an adverse judgment, and an order denying plaintiff's motion for new trial, plaintiff appeals. Motion to dismiss appeal denied.
R. P Carlton, of Huron, for appellant.
Johnson & Simons, of Sioux Falls, for respondent.
The intervener moves to dismiss plaintiff's appeal from an order denying a new trial. The motion is made on six different grounds. The first and second of these will be considered last. The third ground is that a previous appeal was taken. It appears that whatever previous appeal was taken was abandoned, and therefore furnishes no ground for dismissal of this appeal. The fourth ground is that the time within which to appeal from the order denying a new trial expired on March 23, and appeal was not taken until July 2 more than three months after the expiration of time for appeal. The appeal was taken from both judgment and order within the time in which an appeal may be taken from the judgment; therefore this ground is not well taken. McVay v. Bridgman, 17 S.D. 424, 97 N.W. 20; Peters v Lohr, 24 S.D. 605, 124 N.W. 853; Braun v. Thuet Bros., 42 S.D. 491, 174 N.W. 807.
The fifth ground for dismissal is that the order to show cause why extension of time for serving notice of intention should not be granted had not been filed at the time it was served. An order to show cause is merely a substitute for a notice of motion. Lingenfelter v. Gehringer, 43 S.D. 275, 178 N.W. 946; McHarg v. Finance Corporation, 44 S.D. 144, 182 N.W. 705; Mitchell v. Morgan, 45 S.D. 138, 186 N.W. 568.
R. C. 1919, § 2592, provides: "Every direction of a court or judge, made or entered in writing and not included in a judgment, is denominated an order."
And section 2561 provides that: "An order becomes complete and effective as such when reduced to writing, signed by the court or judge, attested by the clerk and filed in his office."
Considering these two sections, this court in Brady v. Cooper, 46 S.D. 419, 193 N.W. 246, said: "It was plainly intended to require that all orders reduced to writing and signed by a judge, should be attested by the clerk and filed in his office. ***"
As relating to orders affecting the merits of an action or proceeding or determining a question in the course of an action or proceeding, the language used in Brady v. Cooper is proper, but we do not think it is applicable to an order to show cause, which is a mere substitute for a notice of motion. That every direction of a court or judge, made in writing and not included in a judgment, is not such an order as is required to be attested by the clerk and filed in his office, is apparent from a consideration of the practice which has always obtained in the courts of this state and of the territory of Dakota before the state was admitted into the Union, with reference to decisions in cases tried by the court without a jury. It has always been the practice for the trial judge in such cases, by a written direction to the attorney for the party in whose favor the decision is made, to indicate briefly the grounds of his decision and direct the attorney to prepare for his consideration, and signature, if found satisfactory, the findings of fact and conclusions of law constituting the decision, and it has never been the practice to require such written direction to be attested by the clerk and filed in his office. Section 2561 is found in a chapter of the Code entitled "Giving, Entering and Satisfying Judgments," and is applicable only to orders which are analogous to judgments in the sense that in some respect they affect the merits. It is the view of this court that an order to show cause, being simply one form of giving notice of the time and place of hearing a motion, is not such an order as is required to be attested by the clerk or filed in his office prior to the hearing of the motion.
The sixth ground is that the order extending the time within which to serve...
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