Ontjes v. Thomas

• Decision Date: 19 October 1921
• Docket Number: 4970
• Citation: 184 N.W. 795,44 S.D. 542
• Parties: WILLIAM ONTJES, Plaintiff and appellant, v. G. J. THOMAS, Defendant and respondent.
• Court: South Dakota Supreme Court

44 S.D. 542

184 N.W. 795

WILLIAM ONTJES, Plaintiff and appellant,

v.

G. J. THOMAS, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Aurora County, SD Hon Frank B. Smith, Judge #4970--Motion denied Porter & Bartlett Attorneys for Appellant. Jones, Muller & Conway, Spangler & Wire Attorneys for Respondent. Opinion filed October 19, 1921

WHITING, J.

The notice of appeal herein recites that such appeal is from the judgment (giving the date of entry thereof), from the order refusing to vacate said judgment, from the order denying plaintiff's motion to serve and file his proposed amended complaint (giving the date of such order, which is subsequent to the entry of judgment), and from the order overruling the motion for new trial. Respondent moves to dismiss this appeal upon the ground that it is an attempt to take a triple appeal—respondent contending that an appeal from a judgment, from an order refusing to vacate a judgment, and from an order, made after judgment, denying a motion to serve and file an amended complaint, are three separate appeals and cannot be combined. Respondent concedes that an appeal from an order denying a new trial could be combined with an appeal from a judgment.

Appellant contends that an order made after judgment for defendant, which order refuses an application to amend the complaint, is not an appealable order, and therefore reference to such order in the notice of appeal is but surplusage and cannot affect the validity of the appeal. In such contention, appellant is correct, at least where the notice of appeal discloses that the order refusing the amendment was made after judgment, and that such judgment was in force when the order refusing the amendment was made. The only subdivision of section 3168, R. C. 1919, the statute declaring what orders are reviewable on appeal—under which respondent could claim such order to be subject to review on appeal—is subdivision 2, which specifies as so reviewable:

"A final order affecting a substantial right, made ... upon a summary application in an action after judgment."

The order sought was in no sense an order affecting a substantial right—to allow a party against whom a judgment has been entered and remains in force, to amend his pleading would he to grant an empty privilege.

But an order refusing to vacate a judgment is such an order as is contemplated by the above subdivision to said section 3168. White v. White, 167 Wis. 615, 168 N.W. 704. That an appeal from a judgment cannot bring up for review any order made after such judgment is clear....