Fed. Land Bank of Omaha v. Le Mars Mut. Ins. Co. of Sioux Falls

• Decision Date: 29 March 1937
• Docket Number: No. 8022.,8022.
• Citation: 65 S.D. 143,272 N.W. 285
• Parties: FEDERAL LAND BANK OF OMAHA v. LE MARS MUT. INS. CO. OF SIOUX FALLS.
• Court: South Dakota Supreme Court

65 S.D. 143

272 N.W. 285

FEDERAL LAND BANK OF OMAHA

v.LE MARS MUT. INS. CO. OF SIOUX FALLS.

No. 8022.

Supreme Court of South Dakota.

March 29, 1937.

Appeal from Circuit Court, Charles Mix County; C. C. Puckett, Judge.

Action by the Federal Land Bank of Omaha against the Le Mars Mutual Insurance Company of Sioux Falls. From a judgment in favor of the defendant, the plaintiff appeals, and the defendant moves to dismiss the appeal.

Appeal dismissed.Bielski, Elliott & McQuillen, of Sioux Falls, for appellant.

L. E. Waggoner, of Sioux Falls, for respondent.

PER CURIAM.

Under the provisions of section 3147, Rev.Code 1919, appellant's time to appeal from the judgment herein expired on the 1st day of October, 1936. Late in the evening of that day appellant's attorney living at Sioux Falls mailed to the clerk of courts of Charles Mix county at Lake Andes, S. D., a notice of appeal and bond, together with the clerk's fee. This letter, together with the inclosures, reached the clerk of courts on either the 2d or 3d day of October. Conformable to an agreement had with counsel the clerk marked the papers filed as of October 1st. However, it is conceded that the papers were not in the clerk's office on October 1st, but reached that office either on the 2d or 3d day of October, and after the time for appealing from the judgment had expired. Respondent has moved to dismiss the appeal.

Section 3146, Rev.Code 1919, provides: “An appeal must be taken by serving on the adverse party and filing with the clerk of the court in which the judgment or order appealed from is entered a notice, in writing, signed by the appellant or his attorney. * * * The appeal shall be deemed to be taken by the service and filing of the notice of appeal.”

[1][2][3] We are convinced that the filing of the notice of appeal within the time limit provided by section 3147 is jurisdictional. Grieves v. Danaher, 60 S.D. 120, 243 N.W. 916;Furman v. Anderson, 61 S.D. 378, 249 N.W. 626;Ireland v. Ireland, 62 S.D. 300, 252 N.W. 852. Appellant contends that depositing in the mail on October 1st constituted a filing within the meaning of section 3146. In support of this contention appellant suggests that service of papers on an attorney is considered complete from the time of depositing in the mails. However, the authority for service of papers by mail is found in the statutes, and these statutory provisions govern. Sections 2581 to 2585, Rev.Code 1919. There is no statutory provision...