Dodge v. Hess , 47 S.D. 67 ( 1923 )

GATES, J.

In this case a “money demand” summons (Rev. Code 1919 § 2331, subd. 1) was served; later a complaint based upon a cause of action in tort was served. On the 31st day thereafter the defendant’s caused to be served upon plaintiff’s attorneys a notice of appearance (R’ev. Code 1919 § 23132!) and an order to show cause, together with the affidavit on which the order was based, why the complaint should not be stricken because of a variance between it and the summons. Upon the hearing the trial court denied the motion upon the ground that a general appearance had been made by defendants in the action and upon the ground that defendants could not have been misled 'by the form oí the summons. Defendants appeal from the order and rely upon St. Paul Harvester Co. v. Forbreg, 2 S. D. 357, 50 N. W. 628.

We are unable toi find any provision of section 3168, Rev. Code 191x9, that' makes this an appealable order. It seems tO' us that wjhat was said in Ryan v. Davenport, 5 S. D. 203, 58 N. W. 568, is, in principle, applicable here. That was an appeal from an order refusing to set aside the; service of a summons. St. Paul Harvester Co. v. Forbreg, supra, w;as an appeal from an order vacating a default judgment.

The appeal is dismissed,,' with costs to respondent.

■ Note.. — Reported in 195 N. W. 972. See, Headnote, American Key-Numbered Digest, Appeal and error, Key-No. 103, 3 C. J. Sec. 316.