Collins v. Gladiator Con. Gold Min. & M. Co.

• Citation: 103 N.W. 385
• Parties: JOHN A. COLLINS, Plaintiff and respondent, v. GLADIATOR CONSOLIDATED GOLD MINING AND MILLING COMPANY, Defendant and appellant.
• Decision Date: 10 May 1905
• Court: Supreme Court of South Dakota

103 N.W. 385

103 NW 385a (1905)

JOHN A. COLLINS, Plaintiff and respondent, v. GLADIATOR CONSOLIDATED GOLD MINING AND MILLING COMPANY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Custer County, SD

Hon. Levi McGee, Judge

Motion denied

C. E. Smith

Attorneys for appellant.

Ed. L. Grantham and B. R. Wood

Attorneys for respondent.

Opinion filed May 10, 1905

HANEY, J.

This is an appeal from a judgment of the circuit court taken within two years after the filing of the judgment roll. A former appeal in the same action was dismissed because of appellant’s failure to prosecute such appeal according to the rules of this court. Respondent now moves to dismiss on the grounds (1) that the present appeal presents no question for determination, (2) that it was taken merely for delay, and (3) that it deprives him of the benefits of the former dismissal.

Whether the judgment roll presents reversible error is a question for consideration on the merits, not on a motion to dismiss.

The present appeal was taken November 19, 1904. On January 4, 1905, an order was issued requiring appellant to show cause on January 18, 1905, why it should not be dismissed. Since that time the motion has been pending in this court. As the appeal was taken within the time allowed by the statute (Rev. Code Civ. Proc. § 442), and appellant would not be expected to print his abstract and brief while the motion to dismiss remained undetermined, it cannot be concluded that the appeal is merely for delay, or that appellant has so far failed to prosecute it with reasonable diligence.

What was the effect of dismissing the former appeal? Our 1877 Code of Civil Procedure provided:

“Sec. 409. If the appellant fail to cause the requisite papers to be transmitted to the supreme court, as required by the preceding section and the rules of the court, the appeal may be dismissed.”

“Sec. 410. The dismissal of an appeal is, in effect, an affirmance of the judgment or order appealed from, unless the dismissal be expressly made without prejudice to another appeal.”

These provisions were omitted from the 1887 compilation, and do not appear in the Revised Code of 1903. They were repealed by chapter 20, D. 55, Laws 1887. Sands v. Cruickshanks,(1899). The statute is therefore silent as to the effect of a dismissal, and the authorities are conflicting. 3 Cyc. 199. The right to appeal is statutory. Where it has been once exercised, and a review by the appellate tribunal is lost through the inexcusable negligence of the appellant, no valid reason exists for allowing a second exercise of the right, so we conclude...