Mundon v. Greenameyer , 44 S.D. 134 ( 1921 )

GATES, J.

[1] Respondent has moved the dismissal of the appeal on the ground that it was taken after the expiration of one year from the entry of judgment. In so far as the appeal is from the judgment, the motion must be granted. Keyes v. Baskerville, 41 S. D. 214, 170 N. W. 143.

Another ground of the motion is:

, “That the appeal Was not taken or perfected within 60 days after the date of the order denying a new trial, which order is sought to be appealed from herein, and which order would have ■been entered more than 60 days before the taking of the appeal herein had not such entry 'been prevented by the acts of th appellant’s counsel in withholding said) order from record.”

[2] By the provisions of section 3x47, Rev. Code 1919, an appeal from an order denying new trial must ¡be taken within 60 days after written notice of the filing of the order. The order was filed January 21, 1921, and the appeal was taken on January 29, 1921. The order was, however, dated November 23, 1921. Regardless of whether the excuse offered by appellant’s attorney justified the delay in filing the order, the remedy of respondent is not the dismissal of the appeal. His remedy was under section 2097, Rev. Code 1919. Not having availed himself of that rem>edy, he should not now be heard to complain of the delay in the filing of the order.

The motion to dismiss the appeal, in so far as it relates to the order denying new trial, is denied.