Smith v. Atlas Elevator Co.

• Decision Date: 26 January 1929
• Docket Number: No. 6696.,6696.
• Citation: 54 S.D. 373,223 N.W. 319
• Parties: SMITH v. ATLAS ELEVATOR CO. et al.
• Court: South Dakota Supreme Court

54 S.D. 373

223 N.W. 319

SMITH

v.ATLAS ELEVATOR CO. et al.

No. 6696.

Supreme Court of South Dakota.

Jan. 26, 1929.

Appeal from Circuit Court, Sully County.

Action by Fred R. Smith, as Superintendent of Banks, receiver of the Citizens' State Bank of Agar, against the Atlas Elevator Company and another. From an order denying a new trial, defendants appeal. On plaintiff's motion to dismiss appeal. Motion denied.Robt. B. Fisk, of Gettysburg, for appellants.

O'Keeffe & Stephens, of Pierre, for respondent.

BROWN, J.

Respondent moves to dismiss the appeal from the order denying a new trial in this case, on the ground that the notice of intention was not served within the time prescribed by statute and that an extension of time granted by the court was without good cause. The extension of time was granted upon an application claiming that the failure to serve notice of intention within the statutory time was due to long-continued illness on the part of appellant's attorney. Illness of a party's attorney might be of such a nature as to furnish good cause for an extension of time to give notice of intention to move for a new trial, and while the sufficiency of the showing that the necessity for the extension of time in this case was, in fact, due to the attorney's illness is questioned by respondent, we do not think there was such an abuse of discretion as to justify us in saying that the trial court was not authorized to grant the extension of time.

The motion to dismiss the appeal is denied.

SHERWOOD, P. J., POLLEY, CAMPBELL, and BURCH, JJ., concur.