Northwestern Engineering Co. v. Ellerman

• Decision Date: 20 August 1943
• Docket Number: 8610.
• Citation: 10 N.W.2d 879,69 S.D. 397
• Parties: NORTHWESTERN ENGINEERING CO. v. ELLERMAN et al.
• Court: South Dakota Supreme Court

10 N.W.2d 879

69 S.D. 397

NORTHWESTERN ENGINEERING CO. v. ELLERMAN et al.

No. 8610.

Supreme Court of South Dakota

August 20, 1943

Rehearing Denied Oct. 20, 1943.

Alan Bogue and Everett A. Bogue, both of Vermilion and Philip & Leedom, of Rapid City, for appellant.

W W. French, H. A. Doyle, and Frank Biegelmeier, all of Yankton, for respondents.

RUDOLPH Judge.

Before we reach the merits of this controversy, it is necessary that we pass upon respondents' motion to dismiss the appeal. Appellant did not petition for an allowance of this appeal under the provisions of SDC 33.0704. It is the contention of respondents, in support of this motion, that the order from which the appeal is taken is not an order from which the appellant may appeal as a matter of right. So far as material to this motion, the facts disclose that in the lower court the defendants (respondents) made a motion to dismiss the plaintiff's (appellant) complaint on the ground that the same failed to state a cause of action. After a hearing the trial court entered its order sustaining the motion, the formal parts of such an order being as follows "Ordered that said motion (of defendants) to dismiss the above entitled action, with prejudice to another action, be, and the same is hereby sustained; and that defendants have judgment thereon; to which plaintiff excepts and its exception is hereby settled and allowed; but with leave to the plaintiff to amend its amended complaint within twenty days of notice of filing this Order should plaintiff be so advised. Dated September 12, 1942." It is from this order that the appeal is taken.

Under the provisions of SDC 33.0701 an appeal to this court may be taken from:

"(1) A judgment;

"(2) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken;

"(3) An order granting a new trial;

"(4) Any final order affecting a substantial right made in special proceedings, or upon a summary application in an action after judgment;

"(5) An order which grants, refuses, continues, dissolves, or modifies any of the remedies of arrest and bail, claim and delivery, injunction, attachment, garnishment, receivership, or deposit in court;

"(6) Any other intermediate order made before trial, any appeal under this subdivision, however, being not a matter of right but of sound judicial discretion, and to be allowed by the Supreme Court in the manner provided by rules of such Court only when the Court considers that the ends of justice will be served by determination of the questions involved without awaiting the final determination of the action or proceeding."

The order appealed from is not a judgment as defined by SDC 33.1701. The order itself contemplates the entry of a judgment and does not purport by its terms to be "the judicial act of the Court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and the verdict or decision." See Robinson v. Glover, 59 S.D. 332, 239 N.W. 848; Bode v. New England Inv. Co. et al., 1 N.D. 121, 45 N.W. 197; Loper et al. v. Hosier, Tex.Civ.App., 148 S.W.2d 889, and cases cited in note to In re Weber, 4 N.D. 119, 59 N.W. 523, in 28 L.R.A. 621. The order does not come within subdivisions 3, 4 or 5 of SDC 33.0701 as set out above. It follows that the order is either an order falling within subdivision 2 of the code section from which an appeal is permitted as a matter of right or it is an intermediate order within the meaning of subdivision 6. In order to appeal as a matter of right from orders as classified by subdivision 2, three things must appear: First, the order must affect a substantial right; second, the order must in effect determine the action; and third, the order must prevent a judgment from which an appeal might be taken. While it appears that the order under consideration does affect a substantial right and does in effect determine the action (the appellant having elected to stand upon its complaint and not amend), nevertheless, it appears from the order itself, that it does not prevent a judgment from which an appeal might be taken. We are of the opinion, therefore, that appellant was not entitled as a matter of right to appeal from this order.

By its briefs filed herein appellant has virtually conceded that it is not entitled to appeal from this order as a matter of right. However, appellant now asks the court to act under the power conferred by SDC 33.0729 and allow the appeal. This section of our Code is as follows: "When a party shall in good faith give notice of appeal, and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual, including the giving of a proper undertaking for costs and damages, or to stay proceedings, the court from which the appeal is taken, or the presiding judge thereof, or the Supreme Court or any one of the Judges thereof, may permit an amendment, or the proper act to be done, including the giving of a new undertaking, on such terms as may be just."

The notice of appeal from this order having been served and filed within the time prescribed by SDC 33.0702, we are of the opinion that the court has acquired jurisdiction to the extent that it is authorized to act upon appellant's present request for permission to appeal. SDC 33.0704, which provides for the petition for the allowance of an appeal, does not provide that an allowance must be granted within the sixty-day period within which the appeal must be taken. This section simply provides that a petition for allowance must be served and filed with the notice of the appeal; the time within which the appeal may be allowed or denied is within the discretion of the court. We are of the opinion, therefore, that it is the serving of the notice of appeal within the statutory time that confers jurisdiction upon the court and that the act of filing the petition for allowance falls within that class of acts described in SDC 33.0729 as "any other act necessary to perfect the appeal or make it effectual." In the case of Reich v. Martin et al., 61 S.D. 311, 248 N.W. 495, 496, this court overruled the case of Aldrich v. Public Opinion Publishing Co. et al., 27 S.D. 589, 132 N.W. 278, and any other opinion of this court which announced a rule contrary to the following: "When notice of appeal is served and filed in good faith this court acquires jurisdiction of the cause, at least to such an extent as to authorize and permit this court (even though the time for taking the appeal has expired) in its discretion and upon sufficient showing to permit the subsequent doing of any other act necessary to perfect the appeal or make it effectual, including the amendment of an undertaking, the serving of an undertaking, or the filing of an undertaking, even though no such undertaking has been previously served or filed." Under this broad and liberal rule we think there can be no question concerning the power of this court to act upon appellant's request.

We believe we should exercise our power and permit the appeal in this case. The appeal from the order was not taken until after the twenty-day period, within which plaintiff was permitted to amend its complaint, had expired. The entry of a judgment based upon this order was a mere formality, and while the entry of such judgment was necessary to give plaintiff the right to appeal as a matter of right, the practical effect of the order standing by itself is to determine the action and all the issues adversely to the plaintiff. It might be that the order would not constitute a bar to a subsequent action (Bode v. New England Investment Co., supra), but its effect in so far as plaintiff's present action is concerned is a determination of all issues adversely to the plaintiff. Under these circumstances, we believe the mistake or inadvertence, in failing to file and serve a petition for allowance of the appeal with the notice of appeal, should be excused. While it is true that there is before us no formal application for the allowance of this appeal, the procedure of requiring plaintiff to make such application, under the facts here presented, would simply be a consumption of time and effort which could add nothing to the facts which now appear in this court. We are of the opinion, therefore, that the ends of justice require that the court allow the appeal at this time and consider the case upon its merits.

The plaintiff seeks to recover damages for the failure of the defendants to comply with the terms of a certain written agreement signed by the parties, which is made a part of the complaint, described as Exhibit "A" and which is as follows:

"Exhibit 'A'

"This agreement made this 20th day of March, 1942, and between the Northwestern Engineering Company, of Rapid City, South Dakota, a corporation of the State of South Dakota, hereinafter called party of the first part, and Ellerman & McLain, of Yankton, South Dakota, co-partners hereinafter called party of the second part,

"Witnesseth: Whereas party of the first part proposes to submit a bid to the U. S. Engineer Office, Rapid City, South Dakota, for the construction of a portion of the Rapid City Air Base project, specifically Schedule 3, designated as Water Supply, Storage Facilities, Sewage Disposal System and Sewage Treatment Plant, in accordance with Invitation No. 631-42-58 issued by the U. S. Engineer Office, Fort Peck, Montana, which bids are to be opened at Rapid City, South Dakota, at 1:00 P. M. March 21, 1942, and

"Whereas party of the second part desires to subcontract a portion of the above-mentioned Schedule 3, namely section IV-Sewer System, in the event that party of the first part submits...