Reed v. Todd

• Court: South Dakota Supreme Court
• Writing for the Court: WHITING
• Citation: Reed v. Todd, 40 S. D. 27, 166 N.W. 167 (S.D. 1918)
• Decision Date: 18 January 1918
• Docket Number: No. 4304.,4304.
• Parties: REED v. TODD et al.

40 S.D. 27

166 N.W. 167

REED

v.TODD et al.

No. 4304.

Supreme Court of South Dakota.

Jan. 18, 1918.

Appeal from Circuit Court, Edmunds County; Frank McNulty, Judge.

Action by Nancy Reed against Wilbert A. Todd and others. Judgment for defendants, and plaintiff appeals. Appeal dismissed.Chas. H. Bartelt, of Sioux Falls, for appellant.

W. F. Mason and L. W. Crofoot, both of Aberdeen, for respondents.

WHITING, P. J.

Motion to dismiss an appeal upon the ground that this court is without jurisdiction, said appeal being from a judgment, and it being claimed that such appeal was not taken within two years after the judgment was perfected by the filing of the judgment roll as required by section 442, C. C. P. The judgment was entered July 23, 1913, and the notice of the present appeal is dated November 9, 1917. Appellant attempted to take an appeal from this same judgment on July 23, 1915. Such attempted appeal was dismissed by this court. Our opinion is reported in Reed v. Todd, 36 S. D. 215, 154 N. W. 447, Reference to such opinion will disclose that, from the statements in the notice of appeal, we found that the judgment had been perfected not later than July 24, 1913; and, basing our holding upon such finding, we held that we had no jurisdiction to allow appellant to cure the defects in her appeal, as to do so would amount to an extension of the two years allowed by section 442 for appeal. Instead of seeking permission to bring before this court further evidence to show that as a matter of fact the judgment had not been perfected by the filing of the judgment roll until after July 24, 1913, appellant acquiesced in the holding of this court. After more than two years had elapsed from the dismissal of the former appeal, appellant, claiming that the judgment roll was never filed until November 11, 1915, attempted another appeal.

[1][2][3][4][5][6][7] While it is the duty of every official who files a record to indorse the usual filing marks thereon, yet, unless made more by statute, such indorsement is but evidence of the facts therein stated and no part of the filing itself. County Commissioners v. State, 24 Fla. 55, 3 South. 471, 12 Am. St. Rep. 183;Starkweather v. Bell, 12 S. D. 146, 80 N. W. 183. When the papers which properly constitute a judgment roll are found in the proper office so attached as to properly constitute a judgment roll, it will be presumed that they were so attached for the purpose of making up a judgment roll. Furthermore, as held upon the former appeal in this case, it will be presumed that the clerk complied with the provisions of section 319, C. C. P., and made up the judgment roll “immediately after filing the judgment.” It follows that, if...