Farmers' & Merchants' State Bank v. Michael

• Decision Date: 14 September 1915
• Docket Number: 3856
• Court: South Dakota Supreme Court
• Parties: FARMERS' & MERCHANTS' STATE BANK OF HECLA, Plaintiff and respondent, v. J. L. MICHAEL, Defendant and Appellant. FIRST NATIONAL BANK OF HECLA, Plaintiff and respondent, v. J. L. MICHAEL, Defendant and appellant.

36 S.D. 172, 153 N.W. 1008 (1915)

FARMERS' & MERCHANTS' STATE BANK OF HECLA,

Plaintiff and respondent,

v. J. L. MICHAEL,

Defendant and Appellant.

FIRST NATIONAL BANK OF HECLA,

Plaintiff and respondent,

v. J. L. MICHAEL,

Defendant and appellant.

South Dakota Supreme Court

Original proceedings

#3856--Motions to dismiss denied

Amos N. Goodman, Thomas L. Arnold

Attorneys for Appellant.

Buell F. Jones

Attorney for Respondents.

Opinion filed September 14, 1915

WHITING, J.

These actions are before us upon orders to show cause, each requiring the appellant to show cause, if any there be, why the appeal should not be dismissed. The appeal in each case is from an order of the trial court refusing to dissolve an attachment which had been issued in said action and levied upon defendant's property, and the two records present the same facts. The grounds upon which the dismissal of each appeal is asked are: (1) That the order appealed from is not an appealable order; (2) that there is no settled record upon which the appeal can be based; and (3) that the main action herein has been settled by and between the parties by the payment of the amount prayed for in the complaint, together with the costs.

The order appealed from is an appealable order.

Quebec Bk. v. Carroll, 1 S.D. 1, 44 N.W. 723; Wyman v. Wilmarth, 1 S.D. 35, 44 N.W. 1151; Hall v. Harris, 1 S.D. 279, 46 N.W. 931, 36 Am.St.Rep. 730.

That there is no settled record is a fact that cannot be taken advantage of upon a motion to dismiss an appeal. In case there is no settled record, and the errors complained of are such as can only be presented upon a settled record, the appeal will not be dismissed, but the judgment below will be affirmed. Respondent seems to be of the opinion that the record for this appeal must be settled in accordance With the provisions of chapter 178, Laws of 1913. If the order appealed from complies with the provisions of rule 5 of the circuit court (22 S.D. 1), or if the trial court, failing to comply with such rules, thereafter and within proper time made and attached to such order a certificate covering any omissions in such order, there exists a "settled record" sufficient for the purposes of this appeal."

Each action was settled and dismissed under and pursuant to a stipulation whereby the parties recognized the fact that an appeal was to be taken from the order refusing to vacate the attachment. Respondent contends that as soon as a cause was settled...