Martin v. Smith

• Decision Date: 04 April 1899
• Citation: 11 S.D. 437,78 N.W. 1001
• Parties: MARTIN et al. v. SMITH, Sheriff, et al.
• Court: South Dakota Supreme Court

11 S.D. 437

78 N.W. 1001

MARTIN et al.

v.SMITH, Sheriff, et al.

Supreme Court of South Dakota.

April 4, 1899.

Appeal from circuit court, Miner county; Frank B. Smith, Judge.

Action by L. J. Martin and another against Hugh Smith, sheriff of Miner county, and others. From a judgment for plaintiffs, and an order denying a new trial, defendants appeal. Dismissed.Henry C. Hinckley, for appellants. A. E. Chamberlain and L. J. Martin, for respondents.

HANEY, J.

In this action plaintiffs seek to recover possession of certain personal property taken from them by the sheriff, under a writ of attachment against the property of one Michael Keller. At the close of all the testimony, the court directed a verdict in favor of plaintiffs. Defendants attempted to appeal from the judgment and order denying a new trial. The appeal was taken June 28, 1897. At that time the order denying defendants' motion for a new trial had not been entered, nor had the papers constituting the judgment roll been attached together and filed in the clerk's office. On September 15, 1897, the circuit court made an order directing the clerk to enter the order denying a new trial, and to make up and file the judgment roll, as of May 24, 1897.

This court has frequently held that no appeal lies until the judgment or order has been entered as a permanent record of the court below. State v. Lamm, 9 S. D. 418, 69 N. W. 592;Chamberlain v. Hedger, 10 S. D. 290, 73 N. W. 75;Coburn v. Board, 10 S. D. 552, 74 N. W. 1026;Sinkling v. Railroad Co., 10 S. D. 560, 74 N. W. 1029;Machine Co. v. Skau, 10 S. D. 636, 75 N. W. 199;Smith v. Hawley (S. D.) 78 N. W. 355. This rule prevails in all the states having statutes on the subject of appeals similar to those in this state. 2 Enc. Pl. & Prac. 248. The rights of the parties in respect to an appeal are determined by the date of the actual entry of the judgment or order, and they cannot be affected by the entry of the judgment or order nunc pro tunc as of a prior date. Coon v. Lodge, 76 Cal. 354, 18 Pac. 384;Board v. Pabst, 64 Wis. 244, 25 N. W. 11;Rubber Co. v. Goodyear, 6 Wall. 153. This rule is not modified by Comp. Laws, § 5235. The acts which the trial court, or this court, may permit to be done, under this section, where a party has in good faith given notice of appeal, are such acts as are necessary to perfect the appeal or make it effectual. An appeal is taken by the service of the notice of appeal, and perfected by service of the undertaking for costs, or the deposit of money instead, or the waiver thereof, as prescribed in the statute. It is rendered effectual by the execution of an undertaking. Comp. Laws, §§ 5215, 5219. It is clear that section 5235 does not authorize this or the lower court to direct the entry of a judgment or order nunc pro tunc, after an appeal has been taken, for the purpose of making such appeal effectual. The order, made after judgment, denying defendants' motion for a new trial, was not appealable until it was actually entered; therefore it was not appealable when the appeal in this action was taken.

Defendants' amended abstract shows that the judgment was not perfected by filing the judgment roll when the appeal...