State ex rel. Gunderson v. King

• Decision Date: 01 September 1894
• Citation: 6 S.D. 297,60 N.W. 75
• Parties: STATE OF SOUTH DAKOTA ex rel. MAY T. GUNDERSON, Plaintiff and respondent, v. ROYAL F. KING, Bennett, Steere, and Hyde, Defendants and appellants.
• Court: South Dakota Supreme Court

6 S.D. 297, 60 N.W. 75 (1894)

STATE OF SOUTH DAKOTA ex rel. MAY T. GUNDERSON, Plaintiff and respondent, v. ROYAL F. KING, Bennett, Steere, and Hyde, Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Hughes County, S.D. Hon. H. G. Fuller, Judge Motion to dismiss—Granted as to defendant King. Reversed Peacock & March Attorneys for appellants. Albert Gunderson Attorneys for respondent. Opinion filed Sept. 1, 1894

KELLAM, J.

Without a word of explanation, the title to this case may be misleading. Appellant King was assignee of the State Bindery Company, a corporation. The other appellants were sureties on his bond. May T. Gunderson brought this suit on a claim against the assigning corporation, alleging the assignment, the giving of the bond (which under the statute, runs to the state) the collection of assets, and refusal to pay. The assignee and the sureties answered separately. The court sustained a motion to strike out so much of the answers as were relied upon as defensive, the motion as to the answer of the sureties being on the ground that it was frivolous, and not properly verified, and gave plaintiff judgment against said defendants. Respondent’s additional abstract, which is undisputed, and must be taken as true, shows that defendant King appealed from the order striking out his answer. This appeal was dismissed by this court. Subsequently, and on the 18th day of April, defendant King took and perfected an appeal from the judgment rendered against defendants. Still later, and on the 16th day of May, all of said defendants took another, appeal from said judgment. On the 31st day of May, King’s appeal of April 18th, was, by order of this court dismissed.

Upon this record, respondent moves to dismiss the present appeal,—being that of May 16th, by all of said defendants,—on the ground that when it was attempted to be taken, on said 16th day of May, there was no case in the circuit court to be appealed, it having been transferred to this court by King’s appeal of April 18th. So far as King’s rights are concerned, we do not see any escape from such result. The record shows that his April appeal was duly taken and perfected. When that was done the case, as to him, was in this court. It was still here in May, when he, in connection with the other defendants, attempted to take another appeal from the same judgment. Under such conditions his second appeal was nugatory. There was nothing for it to act upon—nothing that he could bring to this court by appeal. Hill v. Finnigan, 54 Cal. 311. We see no ground for holding that the dismissal of May 31st had a retnoactive effect, or related back to the time of its taking, so as to validate his second appeal. There is nothing to...