State ex rel. Morgan v. Lamm

• Decision Date: 23 December 1896
• Citation: 9 S.D. 418,69 N.W. 592
• Parties: STATE ex rel. MORGAN v. LAMM.
• Court: South Dakota Supreme Court

9 S.D. 418

69 N.W. 592

STATE ex rel. MORGAN

v.LAMM.

Supreme Court of South Dakota.

Dec. 23, 1896.

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

Action by the state, on the relation of H. C. Morgan, against Edward Lamm, under the provisions of the prohibitory liquor law. From a refusal to dissolve an injunction granted on the prayer of plaintiff, defendant appeals. Dismissed.C. X. Seward and C. G. Sherwood, for appellant. Julian Bennett, for respondent.

CORSON, P. J.

This is an appeal from an order refusing to dissolve an injunction granted under the provisions of section 13, c. 101, Laws 1890, known as the “Prohibitory Liquor Law.” A motion to dismiss the appeal was made by the respondent, when the case was called for argument, on the ground that the order from which the appeal was attempted to be taken had never been entered in the trial court, and the respondent contends that, until so entered, no appeal lies from it to this court. The decision on the motion was reserved, and the case was heard upon the merits. It will therefore be necessary to first dispose of this preliminary motion to dismiss the appeal.

Section 5215, Comp. Laws, provides that “an appeal must be taken by serving a notice in writing, *** and on the clerk of the court in which the judgment or order appealed from is entered”; and by the last clause of subdivision 5 of section 5236 it is provided: “For the purposes of an appeal from an order, either party may require the order to be entered by the clerk of record, and it shall be entered accordingly.” The learned counsel for the appellant contends that the term “enter of record” means that it shall be filed by the clerk, and placed among the papers on file in the case. There is, however, a marked distinction between entering a paper of record and filing the same. Mr. Anderson, in his Law Dictionary, gives, as one of the definitions of “entry”: “Recording in due form and order a thing done in court.” In the same work, “file” is defined as receiving a paper into custody, and giving it a place among other papers. Bouvier gives substantially the same definitions of the two terms, as does Webster also. The terms “entered” and “filed” frequently occur in the statute, but they are never used as synonymous terms. In Locke v. Hubbard (recently decided) 69 N. W. 588, this court held that, to constitute a judgment, it must be entered in the judgment book, thereby giving it permanent form as a record of ...