Minneapolis Threshing Mach. Co. v. Skau

• Court: Supreme Court of South Dakota
• Citation: 10 S.D. 636,75 N.W. 199
• Parties: MINNEAPOLIS THRESHING MACHINE COMPANY, Plaintiff and respondent, v. SKAU, Defendant and appellant.
• Decision Date: 17 May 1898

10 S.D. 636

75 N.W. 199

MINNEAPOLIS THRESHING MACHINE COMPANY, Plaintiff and respondent, v. SKAU,

Defendant and appellant.

South Dakota Supreme Court

Appeal from County Court, Minnehaha County, SD

Hon. W. A. Wilkes, Judge

Reversed

L. P. Bayard, A. B. Kittredge, Sioux Falls, SD

Attorneys for appellant.

Joe Kirby, C. A. Christopherson, Sioux Falls, SD

Attorneys for respondent.

Opinion filed May 17, 1898

CORSON, P. J.

Action to recover amount due for threshing, commenced in a justice’s court. A judgment was rendered in that court in favor of the defendant. The plaintiff appealed to the county court, and judgment in that court was entered for the plaintiff. From this judgment, the defendant appealed to this court. A motion was made in this court to dismiss the appeal:

(1) Because the abstract does not comply with rules of court, in that the different acts set forth do not appear in chronological order;

(2) because the order denying appellant’s motion for a new trial has never been entered in the records of the trial court, and the respondent claims the appeal from this order should be dismissed;

(3) because no notice of appeal and undertaking on appeal have ever been served or filed as required by law.

This motion was taken under advisement, to be determined when the case was reached on its merits.

The first ground is without merit, as we discover no such defect in the abstract as claimed by the respondent.

It affirmatively appears from the respondent’s additional abstract that the order denying the motion for a new trial was never entered. The appeal from the order denying a new trial after judgment, in order to be appealable, should have been duly entered. But the only effect of such a failure to enter when the appeal from the order is taken in the same notice with the appeal from the judgment is that this court will disregard the motion for a new trial, and refuse to review the evidence. The appeal cannot be dismissed, as there is no separate judgment roll, and the dismissal of the appeal from the order denying a new trial would subserve no beneficial purpose. In such case, if there is a proper motion to direct a verdict, the evidence will be reviewed in determining the correctness of the court upon that motion. An examination of the notice of appeal and undertaking on appeal discloses the fact that they were duly served. The motion to dismiss the appeal is denied.

After a jury was impaneled in the county court, the defendant (appellant here) “objected to any further proceedings in this case, for the reason that the court has no jurisdiction.” The objection was overruled, and appellant assigns this ruling as error. It is contended in this court that the ground was that it did not affirmatively appear that the notice of appeal from the judgment in the justice’s court had been served upon the attorney for the adverse party. There is no admission of service upon the notice of appeal filed with the justice, nor any affidavit showing service thereof. The jurisdiction of the appellate court does not, however, depend upon the question whether or not the record sent up by the justice affirmatively shows that all the steps necessary have been taken, but upon the fact that these steps have been taken, As to the manner the appellate court is to be advised that the notice of appeal has been duly served upon the adverse party, the statute is silent. Sec. 6132, Comp. Laws, provides that “the notice of appeal and the undertaking filed” shall be transmitted to the appellate court, but no mention is made of the proof of service of the notice of appeal. No proof of service appearing in the record, what presumption arises, and upon whom rests the burden of proof when such an objection is made? We are of the opinion that the prima facie presumption is that the notice has not been served, and that the burden of showing such service has been made rests upon the appellant, and that the respondent cannot be called upon to show that he has not been served until some evidence has been introduced tending to prove due service of the notice. This is so for the reason that the service of a notice of appeal upon the adverse party is indispensable in order to confer jurisdiction upon the appellate court. A general appearance will not confer jurisdiction upon the appellate court over the subject-matter. Goldstreet v. Newton, 2 Dak. 39, 3 N.W. 311. When, therefore, the objection was taken to the jurisdiction of the court, and there was no proof in the record that the notice of appeal had been' served, and no offer to make such proof, we are of the opinion that the court should have dismissed the appeal. There was no offer, so far as the record discloses, to make this proof on the part of the appellant. We are of the opinion, therefore, that the appeal should have been dismissed.

But, as that proof may be supplied on another trial, we proceed to discuss the other questions that must necessarily arise on such trial. The respondent relied upon a chattel mortgage to sustain its right to recover, by which the earnings of a certain threshing rig was attempted to...