Hirning v. Timm ( 1934 )

Plaintiff and respondent moves the dismissal of the appeal from the order overruling motion for new trial on the showing that the transcript and the specifications of error were not served by the defendants and appellants within the statutory time. The cause was tried to the court, and notice of decision and of the making and entering of judgment was served upon appellants on June 26, 1933. Numerous orders staying proceedings were made. The transcript was furnished by the reporter on December 28, 1933, and on March 23, 1934, appellants' attorneys served on the attorneys for respondent a copy of the transcript with specifications of error attached. Thereafter, on March 26, 1934, respondent's attorneys secured an order to show cause why the orders staying proceedings should not be set aside and the motion of the defendants for a new trial should not be dismissed, and on the same day the order was served upon the attorneys for the appellants.

[1, 2] Granting that the orders staying proceedings did not extend the time for the service of a copy of the transcript and specifications of error, we are of the view that respondent waived any objection that he may have had to the jurisdiction of the court to hear a motion for new trial. Respondent applied for and obtained an order to show cause "why the stay orders above described should not be set aside as null and void and why the motion of the defendants for a new trial should not be dismissed." The respondent invoked the jurisdiction of the trial court and cannot be heard to object to the action of the court on jurisdictional grounds. Stokes v. Rabenberg, 51 S.D. 493, 215 N.W. 492; Huntley v. Youninger, 53 S.D. 195, 220 N.W. 530.

[3] The motion to dismiss is denied. The time for serving and filing briefs by the respective parties on this appeal, as provided by statute and rule of court, shall commence to run from the date of the filing of this opinion.

ROBERTS, P.J., and POLLEY, CAMPBELL, and RUDOLPH, JJ., concur.

WARREN, J., not sitting.