Ryan v. Davenport

• Decision Date: 03 April 1894
• Citation: 5 S.D. 203,58 N.W. 568
• Parties: RYAN v. DAVENPORT.
• Court: South Dakota Supreme Court

5 S.D. 203

58 N.W. 568

RYAN

v.DAVENPORT.

Supreme Court of South Dakota.

April 3, 1894.

Syllabus by the Court.

1. Interlocutory orders are not appealable unless made so by statute.

2. An order denying a motion to set aside the service of a summons is not within either provision of section 5236 of the Compiled Laws, and is therefore not appealable.

Appeal from circuit court, Turner county; E. G. Smith, Judge.

Action by John Ryan against J. N. Davenport. A motion to set aside the service of summons was denied, and defendant appeals. Dismissed.Keith & Bates, for appellant. Joe Kirby and S. V. Jones, for respondent.

FULLER, P. J.

This appeal is from an order of the circuit court denying a motion to set aside the service of a summons as irregular and void. From the affidavit of appellant, J. N. Davenport, upon which the motion in the circuit court was partially predicated, we obtain, in substance, the following facts, namely: The defendant, a resident of Minnehaha county, was in attendance upon a justice's court in Turner county, both as a party and a witness in his own behalf in a case in which the state of South Dakota was plaintiff and the said J. N. Davenport was defendant; that within an hour and thirty minutes from the conclusion of the trial, and while he was returning to his home, though still in Turner county, the summons of which he complains was served upon him. Respondent's counsel moved to dismiss the appeal from this court for the reason that no appeal will lie from an order denying a motion to set aside the service of a summons, and we are of the opinion that the position is well taken, and that the appeal must be dismissed. The order is interlocutory, and the right to appeal therefrom depends entirely upon our statute, in which are enumerated the orders from which an appeal will lie. Interlocutory orders are not appealable unless expressly made so by statute. Haynes, New Trials & App. 188, and cases there cited. Section 5236 of the Compiled Laws is as follows: “The following orders when made by the court may be carried to the supreme court: 1, 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. 2, A final order affecting a substantial right made in special proceedings, or upon a summary application in an action after judgment. 3, ***. 4, When it involves the merits of the action or some part thereof. ***”...