Houser v. Nolting

• Decision Date: 04 April 1899
• Citation: Houser v. Nolting, 11 S.D. 483, 78 N.W. 955 (S.D. 1899)
• Parties: ED. HOUSER, Plaintiff and respondent, v. J. H. NOLTING, Defendant and appellant.
• Court: South Dakota Supreme Court

11 S.D. 483

78 N.W. 955

ED. HOUSER, Plaintiff and respondent,

v.

J. H. NOLTING, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Roberts County, SD Hon. A. W. Campbell, Judge Affirmed E. J. Forman Attorney for appellant. Howard Babcock Attorney for respondent. Opinion filed April 4, 1899

CORSON, P. J.

This is an appeal from an order of the circuit court dismissing an appeal taken thereto from a judgment rendered by a justice of the peace. The appellant contends that the court below erred in dismissing the appeal—First, because the respondent in the circuit court filed no written motion for the dismissal of the appeal, stating the grounds on which he would rely; second, because the respondent, in its notice of motion to dismiss the appeal appeared generally, and not specially for the purposes of the motion; third, because the notice of motion did not point out specifically the ground upon which the motion would be made; and, lastly, because the respondent failed to show that, by reason of the variance between the paper left at his office and the original notice, he was misled, prejudiced, or injured.

Appellants’ first contention is untenable. Our Code does not require a motion to be in writing in such case, but the notice of motion served is sufficient. Olinger v. Liddle, 55 Wis. 621, 13 NW 703.

The second point made by appellant is equally untenable. When the motion is simply to dismiss the appeal, and the court is not called upon to do any act which presupposes that it has jurisdiction of the case, appearing generally and not specially will not confer jurisdiction upon the appellate court. Reedy v. Howard,(1898).

The record does not support the contention of appellant that the notice of motion does not specify the grounds upon which the motion would be made. The ground of the motion is stated to be that no notice of appeal was served on the plaintiff or his attorney.

It appears from the record in the case that a notice of appeal was served upon the justice, and a paper purporting to be a notice of appeal without signature, was left at the office of the attorney for respondent. But the latter paper is not a copy of the original notice of appeal served upon the justice, and differs from the original in several particulars. It is stated in the original notice that the appeal is from a judgment rendered on May 27, 1897, in favor of plaintiff and against the defendant, for the sum of...