Smith v. Hawley

• Decision Date: 01 February 1899
• Citation: 11 S.D. 399,78 N.W. 355
• Parties: SMITH v. HAWLEY, Sheriff.
• Court: South Dakota Supreme Court

11 S.D. 399

78 N.W. 355

SMITH

v.HAWLEY, Sheriff.

Supreme Court of South Dakota.

Feb. 1, 1899.

Appeal from circuit court, Brookings county; J. O. Andrews, Judge.

Action by William H. Smith against W. H. Hawley, as sheriff of Brookings county. From judgment for plaintiff, defendant appealed. Dismissed.Alexander & Hooker, for appellant. Cheever & Hall, for respondent.

HANEY, J.

Respondent moved to dismiss this appeal for the reason that neither the judgment nor order appealed from had been entered when the appeal was taken. The motion was noticed for hearing on the motion day of the proper circuit. It was based upon the affidavits of Philo Hall, Esq., one of respondent's attorneys, and the clerk of the circuit court, which show that the judgment and order were not entered until after the appeal was perfected. The hearing of the motion was postponed on the court's own motion, and, when finally heard, appellant appeared by counsel, and filed written objections to the hearing upon substantially the following grounds: (1) That the notice of motion was not served at least eight days before the motion day of the Third circuit, as required by the rules of this court; (2) that the statements showing entry of the judgment and order before the appeal was taken, contained in the abstract, have not been denied by an additional abstract; and (3) that the affidavits attached to the notice of motion are not competent evidence of the facts alleged therein.

When the court rule requiring notice of motions to the adverse party of at least eight days was adopted, the statute provided that “when notice of motion is necessary it must be served eight days before the time appointed for the hearing, but the court or judge may, by order to show cause, prescribe a shorter time.” Rule 23; Comp. Laws, § 5325. In 1893 the statute was amended by making the time six days, and providing for costs in certain cases. Laws 1893, c. 70. The language of the original section and amendment is such as to make it doubtful whether the law was intended to apply to the supreme court, but, however this may be, we think the statute does not preclude the court from requiring more than six days' notice of motions in this court, and we hold that rule 23 is still in force. Therefore, if appellant had appeared specially, and objected on this ground alone, the objection would have been well taken; but, having appeared and objected on other grounds, we think he waived the question of...