Erpenbach v. Chicago, M. & St. P. Ry. Co. , 11 S.D. 201 ( 1898 )

Haney,'J.

Defendant appealed to the circuit court, on questions of law alone, from an order and judgment entered by a j ustice of the peace refusing to vacate a default judgment. On the notice of appeal is the following indorsement: “Due service of the within admitted this 19th day of February, 1897, and undertaking for costs and stay pending this appeal is hereby waived. [Signed] W. J. Hooper, Attorney for Plaintiff.” The case having been placed upon the calendar of the circuit court, and having been regularly brought on for trial, the plaintiff interposed the following motion: “The plaintiff, appearing at this time specially, and limiting his appearance for the purpose of this motion, moves, the court to dismiss the appeal (1) because no undertaking on appeal has been given or filed by defendant, as required by law; (2) that there is no appeal from an order of the justice refusing to vacate a default judgment.” Thereupon the court made the following order, from which defendant appealed to this court: “The foregoing motion of the plaintiff to dismiss the appeal of defendant herein having been regularly brought on to be heard upon the notice of appeal herein, indorsements thereon, and the transcript of the justice, with the papers transmitted to this court by him on said appeal, W. J. Hooper appearing for the plaintiff, and R B. Tripp for the defendant, and the court being now advised in the premises, it is ordered and adjudged that the said appeal be, and the same hereby is, dismissed; to which the defendant excepts, and its exception is allowed. ” It is suggested in defendant’s brief that there was no notice of the motion to dismiss, and therefore the circuit court erred in dismissing the appeal. Assuming that notice was necessary, the order recites that the motion to dismiss was regularly brought on for hearing, and there is nothing in the record which contradicts such recital. The precise question raised by the first ground of plaintiff’s motion to dismiss was decided by this court in Brown v. Railway Co., 75 N. W. 198. The order of the circuit court is affirmed.