Grieves v. Danaher

• Decision Date: 15 August 1932
• Docket Number: 7418.
• Citation: 243 N.W. 916,60 S.D. 120
• Parties: GRIEVES v. DANAHER.
• Court: South Dakota Supreme Court

243 N.W. 916

60 S.D. 120

GRIEVES v. DANAHER.

No. 7418.

Supreme Court of South Dakota

August 15, 1932

Appeal from Circuit Court, Tripp County; R. C. Bakewell, Judge.

Suit by Don G. Grieves, as receiver of mortgaged property, against Clara Danaher. From an order granting a temporary injunction and overruling a demurrer to the complaint, defendant appeals. On plaintiff's motion to dismiss the appeal.

Motion granted.

P. A Hosford, of Winner, for appellant.

Windsor Doherty, of Winner, for respondent.

CAMPBELL P. J.

Appellant above named has attempted by a single notice in writing (section 3146, R. C. 1919) to take an appeal to this court in the above-entitled cause from two separate, disconnected, and appealable orders made and entered in the court below prior to final judgment, to wit, from an order granting a temporary injunction and from an order overruling a demurrer to the complaint. Prior to the serving and filing of his brief on appeal, but after expiration of the time to appeal from the respective orders, respondent brought on for hearing in this court, pursuant to order to show cause, his motion to dismiss the appeal as duplicitous, which motion is now for disposition.

After the service of the notice of appeal and before making the motion to dismiss, respondent, by his counsel, excepted to the sufficiency of the sureties on the undertaking on appeal, in writing waived all objections to a substituted undertaking thereafter furnished by appellant, and, on two occasions, for the accommodation of appellant's counsel, entered into a written stipulation extending the time for serving and filing appellant's brief on appeal, and thereafter accepted service of appellant's brief.

Whatever may be the practice in other jurisdictions, it has been the rule in this state, almost since statehood, that two independent separate appealable orders cannot be united and made the subject of one appeal, and an effort so to do lays the entire appeal open to dismissal for duplicity. Hackett v. Gunderson (1891) 1 S.D. 479, 47 N.W. 546; Williams v. Williams (1894) 6 S.D. 284, 61 N.W. 38; Anderson v. Hultman (1899) 12 S.D. 105, 80 N.W. 165; Gordon v. Kelley (1905) 20 S.D. 70, 104 N.W. 605; Nat. Surety Co. v. Cranmer (1911) 27 S.D. 515, 131 N.W. 864; Robinson v. Glover (S. D. 1931) 239 N.W 848. The rule does not apply to an appeal from a judgment and from an order subsequent to the judgment denying or granting new trial. Hawkins v. Hubbard (1892) 2 S.D. 631, 51 N.W. 774; Kountz v. Kountz (1901) 15 S.D. 66, 87 N.W. 523; McVay v. Bridgman (1903) 17 S.D. 424, 97 N.W. 20; Fuller v. Anderson (1926) 50 S.D. 568, 210 N.W. 992. And apparently, if the same question is presented to the appellate court for review by appeal from either of two orders joined in one notice of appeal, the appeal will not be bad for duplicity. City of Sioux Falls v Mansors (1918) 41 S.D. 105, 168 N.W. 751. And, where one of the orders sought to be appealed from in the single notice can be reviewed on appeal from the other, or is for any reason unappealable, the portion of the notice purporting to appeal therefrom will be treated as surplusage, and the notice will be held to constitute a good appeal as to the other order or judgment. Williams v. Williams (1894) 6 S.D. 284, 61 N.W. 38; Granger v. Roll (1895) 6 S.D. 611, 62 N.W. 970; Meade County Bank v. Decker (1904) 17 S.D. 590, 98 N.W. 86; State ex rel. Hitchcock v. Till (1926) 50 S.D. 346, 210 N.W. 157; Morrison & Skaug v. Connery (1929) 54 S.D. 329, 223 N.W. 210; Harmdierks v. Smith (1929) 56 S.D. 173, 227 N.W. 845.

Appellant contends that the orders sought to be appealed from in this case are not separate independent appealable orders within the meaning of the rule above stated. In this contention appellant is plainly in error.

Appellant further submits that the rule in this state against double appeals is unsound, and is not, in fact, supported by the authorities from other states, particularly Wisconsin, cited in support thereof in the earlier cases. That question we are not disposed to review. The point is one of practice and procedure. Whether originally sound in theory or not, our rulings have been settled and uniform since 1891. Bearing in mind the importance of settled practice (Morrison & Skaug v. Connery, 54 S.D. 329, 223 N.W. 210), we do not propose to review the merits of the rule at this time or to change it.

Appellant further contends that, conceding his attempted appeal to be duplicitous, and conceding that a duplicitous appeal is bad, nevertheless it constitutes a mere irregularity, and the fact that the notice purports to appeal from two separate independent appealable orders is merely a defect in the notice which can be waived by respondent, and in this case has been waived by respondent by his conduct in admitting the sufficiency of the sureties on the substituted appeal bond, stipulating for extension of time to file appellant's brief, and accepting service of said brief.

Appellant bases his argument on this phase of the matter primarily upon the language of Corson, J., in an opinion on rehearing in the case of Ewing v. Lunn. In that case (21 S.D. 55, 109 N.W 642) there was an attempt to appeal by a single notice from an order vacating a judgment in favor of appellants and from a subsequent judgment in favor of respondents on a second trial. There was no motion to dismiss the appeal brought on by order to show cause, but what was denominated a "Motion to Dismiss Appeal" was embodied in respondents' brief. When the cause was reached for oral argument in this court, there was no appearance on either side, and the matter was submitted on the printed briefs, and in the first opinion (supra), this court dismissed the appeal. Thereafter a rehearing was granted, and in the opinion on the rehearing (22 S.D. 95, 115 N.W. 527, 529) the court decided, as a matter of law. that there was no double appeal within the principle of Hackett v. Gunderson, 1 S. D. 479, 47 N.W. 546, for the reason that by expiration of time and participation in a new trial one of the orders attempted to be appealed from was no longer appealable when the notice was served, and the court held therefore that so much of the notice as purported to give notice of an appeal from that order was a nullity and would be regarded as surplusage, and the appeal would be held good as to the judgment embraced in the notice. But, by way of obiter dictum, Corson, J., before proceeding in the opinion on rehearing to hold that there was, as a matter of law, no double appeal, used the following language: "An examination of the record discloses the fact that no notice of a motion to dismiss the appeal was served nor motion made as required by rule 23 of this court, and it further appears from the record that the case was submitted at the April term, 1906, under rule 21, neither party appearing by their attorneys when the case was called for argument. Assuming that there was a double appeal...